Chan Wai-hung v. Tam So
Read the full judgment text of DCCJ 4219/1979 on BabelCite. This District Court judgment was delivered on 10 December 1979.
1. The plaintiff seeks to recover possession of the suit premises for self-occupation. By his summons, the defendant challenges the plaintiff's capacity in prosecuting this action on the ground that the plaintiff "did not become" landlord before the 15th December 1973 as envisaged by Section 53(2)(b) of the landlord & Tenant (Consolidation) Ordinance, the material part of which reads as follows:
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DCCJ004219/1979 Summons to strike out claim for lack of any reasonable cause of action - Landlord becoming landlord after the 15th December 1973 - Right to seek an order for possession of premises for self-occupation under S.53 (2) (b) of the Landlord and Tenant (Consolidation) Ordinance - Meaning of the terms "a landlord" and "the landlord" in S.36 distinguished - purpose of S.53(2) (b) and of S.36 considered. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 4219 OF 1979 -----------------
----------------- Coram: Judge Liu, Q.C., in Court. Date of Judgment: 10 December 1979 ----------------- JUDGMENT ----------------- 1. The plaintiff seeks to recover possession of the suit premises for self-occupation. By his summons, the defendant challenges the plaintiff's capacity in prosecuting this action on the ground that the plaintiff "did not become" landlord before the 15th December 1973 as envisaged by Section 53(2)(b) of the landlord & Tenant (Consolidation) Ordinance, the material part of which reads as follows:
2. The plaintiff has a summons to amend waiting in the wings, but for the present purpose the facts may be taken as below:
3. It is unknown whether the named executors under the will of the plaintiff's late mother have accepted or renounced their office. We know not, therefore, whether the suit premises have devolved upon these executors or other personal representatives in their place under Section 3 of the Wills Ordinance. There is also no indication whether the interest of the suit premises has been effectually vested in the plaintiff by way of assent or conveyance under Section 66 of the Probate & Administration Ordinance. The Particulars of Claim seems to be defective, but the power to strike out a pleading is to be exercised sparingly and only in obvious cases when the claim is plainly as well unsustainable as uncurable. It is therefore necessary to consider the stand, if any, of the personal representatives. 4. A will speaks from death, and by the institution of this action the plaintiff cannot be said to have disclaimed the bequest of the suit premises. Thus, the plaintiff has, since the death of his late mother, been entitled to "receive" rent whilst the executors or other personal representatives would, in due course of administration, be entitled to "collect" rent for his benefit. It would seem that at no time, even prior to the assent or conveyance to the plaintiff under Section 66 of the Probate & Administration Ordinance, would the executors or other personal representatives under the said will be entitled to apply under section 53(2)(b) as "landlord" by its very definition as given in Section 49 of Part II of the Ordinance:
5. An application to reclaim protected property for use as a residence is a personal right of a non-corporate owner, himself enjoying the beneficial interest therein. Apart from out definition of "landlord" which excludes the personal representatives in this case as being not the "persons entitled to receive rent", it has been held in England under similar legislation containing no independent definition for the term "landlord" that personal representatives have no sufficient beneficial interest to repossess protected premises for use as a residence. Sharpe v. Nicholls(1); Parker v. Rosenberg(2). 6. Furthermore, in an application such as that in the instant case, circumstances are to be judged as at the time of the hearing. Mok Wai-bun v. Yu Ying & another(3). It would be incredibly eccentric to suggest that after the death of the plaintiff's late mother, the suit premises are still being required for use by her estate. If ever the Court should endorse any such "requirement" by the deceased's estate, it would be unwittingly perfecting an attempted derogation from the testatrix' bequest to the Plaintiff in the form of the statutory restriction against free alienation under Section 53(7) of the Ordinance. It is also difficult to see what hardship, however transient, could conceivably be experienced by the deceased's estate before the assent or conveyance to the plaintiff. Naturally, the executors or other personal representatives under the will of the plaintiff's late mother can themselves suffer no personal hardship. 7. In my judgment, the personal representatives can have no locus standi under Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance. 8. I turn next to consider the position of the plaintiff himself. He has obviously not disclaimed, and he is the person "entitled to receive rent" in respect of the suit premises and as such is the landlord within the meaning of Section 49. However, he became the landlord after the 15th December 1973, and on the face of Section 53(2)(b) his application for possession for self-occupation cannot be entertained. 9. It was contented on behalf of the plaintiff that the meaning of the term "the landlord" in Section 53(2)(b) of the Ordinance includes a successor-in-title. Mr. Ku for the plaintiff craved in aid the decisions in Cheung Hei v. Yung Yee-kam(4) and Loke Choong-wing v. Lai Lok-sin & others (5). These two cases in the District Court were decided under Section 36 of the Landlord & Tenant (Consolidation) Ordinance (formerly Section 20 of the Landlord & Tenant Ordinance) whereby "a landlord" may seek an order of eviction against a tenant who has sublet without the prior written consent of "the landlord". The language in Section 36 is such that the applicant/landlord and the landlord from whom written consent should have been first obtained may not necessarily be the same individual, and it had to be considered whether a successor-in-title might take advantage of a breach by way of unlawful subletting etc. committed in the time of his predecessor-in-title. Section 36 is couched in the following terms:
10. In both District Court cases, a successor-in-title was granted an order for possession against a tenant on his previous breach. In Cheung Hei's case, "a landlord" was held to include anyone for the time being entitled to receive rent in the capacity of a successor-in-title to a former landlord whose prior written consent should have been sought. The right to apply under S.36 is thus not limited to the very landlord in whose domain the unlawful subletting etc. was created. (For simplicity, I will hereafter refer to the prohibited acts collectively as "unlawful subletting"). In the latter case of Loke Choong-wing, "that landlord" was held to be referable to any predecessor-in-title in the chain of the same tenancy. The terms "a landlord" and "the landlord" in Section 36 presented not inconsiderable difficulties. 11. Section 36 is designed to discourage any prohibited act during the continuity of statutory protection. It aims at penalizing misconduct in a progressive situation. The hands of a successor-in-title should not be tied lest the system would be rendered unworkable. No other conclusion in these two District Court cases would have worked to the ends of practicability and common sense. On the other hand, Section 53(2)(b) deals with a static situation at the time when premises "are required" as judged at the hearing. What is being brought into focus is the date of the evolution of the right to receive rent and not the commencement of the tenancy. All landlords coming into being after the 15th December 1973 are excluded, and this time bar admits of no ambiguity. 12. In the instant case, the Court is invited to scrutinize the plaintiff's capacity to invoke a right of eviction conferred by Section 53(2)(b). In no way could the plaintiff be said to be entitled to receive rent in respect of the suit premises before the death of his late mother in 1976. The plain language of the section excludes the plaintiff who became the landlord after the 15th December 1973. A time bar was superimposed on the accurual of the plaintiff's interest under Section 53(2)(b). The Legislature could have easily exempted a devolution by will if it had intended that such legislative intervention with reference to a date in mid December 1973 could be set at naught by a devisee. The language in this subsection expressly shuts out all those who became landlords on or after the 15th December 1973, and the literal construction of this subsection can provoke no real sense of grievance. Devolution under a will is not different from a conveyance at arm's length. A purchase for valuable consideration is not on a par with a free gift to a devisee. For the plaintiff's mother, a bequest without having exercised her right under Section 53(2)(b) was no less a voluntary transfer than an outright sale in the open market. Some hardship may be occasioned by the death of a landlord after his application but before adjudication, but the plaintiff's mother died in 1976 without having embarked on any litigation, and these proceedings were not instituted by the plaintiff until August 1979. Even if Section 53(2)(b) could be stretched to give coverage to the doctrine of "relation back" as a successor-in-title, in my view the personal right to regain possession for one purpose or another conferred by Section 53(2)(b) on his late mother as his predecessor-in-title perished at inherit or succeed to. The plaintiff must stand or fall on his own right under Section 53(2)(b). In my view, the plaintiff became the landlord after the 15th December 1973 and cannot be granted an order for possession under this subsection. 13. In conclusion, the Particulars of Claim discloses no good cause of action, and it remains for me to order it to be struck out with costs to the defendant on the upper scale and to be taxed in accordance with Legal Aid Regulations.
Representation: Mr. John Ku of Ip, Ku & Stoppa & Co. for Plaintiff. Mr. K.Y. Chan of Tsang & Chau assigned for Defendant (Legal Aid). VCJ 4219/79
Mr. John Ku of Ip, Ku & Stoppa & Co. for Plaintiff. Mr. K.Y. Chan of Tsang & Chau assigned for Defendant (Legal Aid). Cases and authorities cited by the Court in Judgment:-
Representation: Mr. John Ku of Ip, Ku & Stoppa & Co. for Plaintiff. Mr. K.Y. Chan of Tsang & Chau assigned for Defendant (Legal Aid). (1) 1945 K.B. 382 (2) 1947 1 K.B. 371 (3) 1964 D.C.L.R. 59 (4) 1958 D.C.L.R. 261 (5) 1962 D.C.L.R. 168 |