Robert Foster Lusher v. J. L. Hillard
Read the full judgment text of DCCJ 1910/1980 on BabelCite. This District Court judgment.
1. The plaintiff brings this action for possession under Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance.
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DCCJ001910/1980 Landlord and Tenant (Consolidation) Ordinance Section 53(2)(b)(i) - landlord "reasonably requiring" premises owned by him for occupation as a dwelling for himself and specified other persons - "reasonably required" imports some objective standard of reasonableness - in deciding whether landlord 'reasonably requires' not concerned with position of tenant (e.g. hardship to the tenant) - construction of words "manifestly not be just and equitable". IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1910 OF 1980 -----------------
----------------- Coram: Judge de Basto, Q.C. in Court Date of Judgment: 20th June, 1980. ----------------- JUDGMENT ----------------- 1. The plaintiff brings this action for possession under Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance. 2. That Section was amended earlier this year. Under that Section, before its amendment, a landlord had to satisfy a Court that he "required" the premises the subject matter of an action, for occupation as a dwelling for himself, his father, his mother or any son or daughter of his over the age of 18. Now, however, by introducing the word "reasonably" in the amended Section, the legislature has interposed the protective element of objectivity. That is, and I regard this as exceedingly significant, the amended Section has introduced a concept of objectivity not previously required. If a landlord, who establishes he is acting bona fide, manages to persuade a Court that he reasonably requires possession for occupation as a residence for one of the persons specified in the Section then the landlord will be entitled to an order for possession unless the tenant satisfies the Court under Section 53(2)(b)(i), that an order for possession, in all the circumstances of the case, would "manifestly not be just and equitable". 3. How is the proviso, more particularly the words: "manifestly not be just and equitable" to be construed? In my view, the proviso means that a tenant must satisfy a Court that, having regard to all the circumstances of the case, there are clear, cogent and impelling reasons why the making of an order for possession would result in injustice. Or, to put it in another way, if an order for possession were made, one would expect a Court of Equity, apprised of all the circumstances of the case, to, so to speak, throw up its hands in dismay and exclaim: "That cannot be right!" 4. Although the Section refers to occupation by the landlord as a residence for himself, his father, his mother and any children over the age of 18, the Courts in England have given an extended interpretation to the word "landlord" which includes "all normal emanations" of the landlord. A landlord may reasonably require possession of a house for occupation as a residence for "himself" within the meaning of the Section if he requires it for the occupation of his children although he may himself be unable to live on the premises (see Smith v. Penny (1947) 1 K.B. 230). Those who are unrelated to the landlord may also be included, provided that they will occupy the premises as one household with the landlord (see Richter v. Wilson (1933) 2 Q.B. 426 CA). 5. Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance, as recently amended, reads :-
6. The onus is on a landlord to satisfy the court, by positive evidence, not only that he is acting bona fide but that he reasonably requires possession. If he fails to do that, that is an end of the matter. The case most cited on the construction of the words "reasonably required" is Aiken v. Shaw (1933) S.L.T. (Sh. Ct.) 21 at 22 where Sheriff Blades K.C. said:
That view was approved obiter by the English Court of Appeal in Kennealy v. Dunne (1977) 1Q.B. 837 at 844. 7. In determining the question of whether premises are reasonably required by a landlord, the position of the tenant (e.g. any hardship to him) is irrelevant. As was said in Sloane v. Cooke (1919) 53 Ir. L.T.R. 209, C.A.
but the position of the tenant may become relevant if the question arises of whether "in all the circumstances of the case it would manifestly not be just and equitable" ot make an order for possession. 8. I now come to the facts in brief outline. The plaintiff became the registered owner of the property known as No. 27 Lugard Road, The Peak, or or about the 1st October 1977. The plaintiff's wife moved into the first floor of the property on about the 19th or 20th October 1077, the plaintiff then being out of the Colony. 9. At the time of purchase the plaintiff was aware that the defendant was a tenant on the ground floor. The plaintiff's predecessors in title, Messrs Butterfield and Swire, had to the knowledge of the plaintiff before purchase, served a notice to quit on the defendant who had claimed protection under the Landlord & Tenant (Consolidation) Ordinance. 10. The plaintiff's family consists of his wife and four unmarried children, the youngest of whom is still at school in Hong Kong while the three older children attend various institutes of learning in America. 11. The plaintiff testified that he regarded Hong Kong as his home. He first came to the Colony in 1965 and apart from the years 1969 to 1974, he and his family have resided here continuously. They have no other residence either here or abroad. 12. The plaintiff's father, who is 84, lives by himself on a farm in Ohio. The father adamantly refuses to have any outsider look after him ever since a woman engaged by the plaintiff for that purpose left suddenly and without notice in the autumn of 1978. 13. The plaintiff's mother died in April 1979. She had been ill in hospital for many years and when she died her husband (who used to visit her nearly every day) became more and more withdrawn. The father suffers from diabetes mellitus and is required to take medication three times a day and to adhere to a rigid diet. Although the father's long-term memory is excellent his short-term memory is extremely poor as a result of which he frequently does not remember whether or not he has taken his medication at the prescribed times. The father has resorted to writing on small scraps of paper the time he was next due to take his medication and the plaintiff has found these strewn about the farmhouse. The plaintiff, on a number of occasions, has had to stop the father from taking medication already taken. The father also suffers from swollen ankles and from a knee injury sustained in a farm accident as a result of which he has difficulty climbing stairs. The plaintiff once found his father trying to climb stairs on his knees. There is a medical report by the father's physician (Exh. P7). The father's doctor in his report says, inter alia, that it appears the father is not paying proper attention to his diet and is not taking his medication as directed, possibly due to his living alone at age 84. The report ends with the opinion that it would be beneficial for the father's general health and well-being to reside with his sone in Hong Kong. 14. The plaintiff is extremely concerned that his father might leave the farmhouse during a snowstorm to get fire-wood and thereby run the serious risk of being frozen to death. The plaintiff testified the father has been snowed-in for seven days at a time. That, and the over - or under-dosage of the father's medication and the necessity for the father to maintain a rigid diabetic diet are the matters which seem most to worry the plaintiff. The plaintiff testified he was afraid that if his father did not follow the dosage prescribed for his medicine he might go into diabetic coma. The plaintiff said he was quite certain that his father would be delighted to come to live with him in Hong Kong. In cross-examination the plaintiff said he "believed" his father would want to come to live with him and his family. The plaintiff referred to himself as his father's keeper and said his father took the same attitude and deferred to his (the plaintiff's) judgment. The plaintiff testified the only suitable place to accommodate his father would be on the ground floor because of his inability or difficulty in climbing stairs. The plaintiff testified that if granted an order for possession he intended his father to live on the ground floor and that he would arrange for the property to be centrally heated and fully air-conditioned and dehumified. 15. The defendant is 64 years of age. He has spent 44 years in the East of which the last 24 years have been spent in Hong Kong. In 1936 he was commissioned into the Indian Army and was a General Staff officer intelligence. The defendant is the national coach of the Hong Kong waterpolo team, is also the Chairman of the waterpolo referees and is active in waterpolo administration. 16. Dr F.M. Otremba of the Families Clinic gave evidence. He testified the defendant suffered from three skeletal problems. In descending order of severity these were: (1) prolapsed intervertebral disc of lumbar-sacral spine giving rise to lumbago and sciatica. (2) cervical spondylosis - a type of arthritis giving rise to pain in the neck, shoulders and arms, and (3) osteoarthritis of both knees giving rise to pain in the legs and difficulty in walking. Dr Otremba produced his report (Exh. D3). In cross-examination the doctor said that the defendant had difficulty in ascending slopes and that living on flat, terrain would be more desirable for the defendant than living on the Peak. 17. Mr Brodie for the plaintiff questioned the doctor about evidence adduced in relation to the plaintiff's father. The doctor said it was not unusual for an old gentleman, if not supervised, to forget when he had taken his medicine or to forget to take a meal. He said that an old man of 84, suffering from diabetes, would be better off with a loving family rather than living in a hospital. 18. In September 1957 the defendant went to live on the first floor. He joined the Hong Kong Government in February 1958 and eventually held the offices of Commissioner for Essential Services and Director of Manpower. 19. In 1963 the defendant occupied the ground floor under a tenancy agreement with Butterfield and Swire dated the 16th January 1963 (Doc. 1) and the defendant has occupied the ground floor ever since. 20. He retired from Government in 1973. In 1974 he bought a house in South Africa with the intention of possibly retiring there but he sold that house the following year because he and his wife could not live with apartheid. Last year the defendant visited Sri Lanka also, as I understand it, with a view to possibly retiring there and the Sri Lankan Government has indicated it would be prepated to let him live there for five years. 21. The defendant is married to a German lady who resides in a house in England with their three children, the youngest of whom will soon be 15. The defendant bought the house in England in 1965. At the moment he intends to live in Hong Kong for at least three years - the defendant said he does not wish to retire in England because, inter alia, he would have to pay income tax on a global scale and he is afraid Exchange Control might be reintroduced at some future time. He also commented on the uncertainty of Hong Kong's political future due to the expiration of the New Territories' lease in 1997. He mentioned a number of times he wished to keep his "options open". He referred to a meeting at the Repulse Bay Hotel in September 1977 where the plaintiff and his wife had invited him to dinner. With respect to the defendant I think he is mistaken when he says that the plaintiff asked for two downstairs rooms nor do I think the plaintiff mentioned that his father was suffering from a heart condition. That meeting, after all, was almost three years' ago but what I do accept, and I regard it with some significance, is that as early as September 1977 the plaintiff mentioned his elderly father to the defendant in connection with No. 27 Lugard Road and his father's inability to climb stairs. 22. The defendant made a number of complaints against the plaintiff and these include the allegation that the plaintiff made unwarranted demands on the defendant not to park his car near or on the property and refused to enter into a dialogue about car parking rights; that he was not formally told that the plaintiff had bought the property until about 2½ months after the event; that he found a letter written by the plaintiff to him dated the 14th December 1977 (Exh. P3) "a bit offensive", that the plaintiff did not respond to suggestions that they should meet to talk things over. In answer to Mr Brodie, the defendant said that "it was a form of harrassment" for the plaintiff to refuse to meet to discuss matters. He also complained, through his counsel, that the landlord's use of the first floor was "quite incredible, extravagant, poorly organized and totally contrary to past usage". The defendant said he found the Lushers unco-operative and unresponsive to attemtps at friendliness. The defendant said he had "never been able to make out Mr Lusher" - he could only assume the plaintiff was trying to force him out of the flat. 23. It was quite apparent that the parties were not exactly fond of one another. The plaintiff testified that the relations between them were "cool" and he added, "The less I see of Major Hillard the better". The defendant, for his part, said he thought the plaintiff had behaved very peculiarly. "This may be the American way of doing things but it's certainly not the English way". He went on to say, "It is a well known fact that Americans tend to be a bit brash and aggressive. Nobody can deny this. It is in the newspapers all the time. I can't deny that I do think Americans tend to be a bit brash and aggressive". 24. The defendant is a gentleman who obviously holds strong views as to what is, and what is not, proper behaviour and I got the impression that anyone who did not conform to his code of conduct was regarded by him as unreasonable. 25. The defendant said that if he were forced to move out he would need about 800 sq. ft. by way of accommodation and that such accommodation would cost in the region of $7,000 - $8,000 a month whereas he could only afford $4,000. The defendant is not a poor man (although the plaintiff is very much richer). A majority of the defendant's investments are handled by a local firm of financial consultants. I do not know the terms of the mandate the defendant gave that firm in respect of his assets but the return on those investments appears to me to be very much on the low side. 26. I thought the defendant was unduly pessimistic about his future should he have to leave the premises. I would have thought it not beyond the bounds of probability that the defendant would be able to find accommodation for himself at a rental which, having regard to his present (or potential) income, he could afford. But even if this were not possible, the defendant has a house in England. Not many expatriates can afford the luxury of running two homes at the same time. Dr F.M. Otremba who gave evidence for the defendant said he thought about 50% of Government expatriates remain in Hong Kong after completing their employment. The defendant thought this figure was probably on the high side and suggested 25% but I wonder whether 10% may not be nearer the mark. But if the defendant were to leave Hong Kong (which I think unlikely) he has, as I mentioned, a home in England. 27. I found the plaintiff a good witness - I accept his evidence. I found the defendant honest in his beliefs but some of these, I thought, were out of touch with the realities of life. 28. The plaintiff is the only son of his adoptive father. I find that the plaintiff and his wife and their four children are a close family unit. I also find that a very close bond exists between the plaintiff and his father. I accept that, in all probability, if an order for possession were made, the plaintiff's father would come and live with the plaintiff and his family as one household at 27 Lugard Road. 29. The defendant, in his further and better particulars of the defence appears to refer to the plaintiff's elder children as "temporarily visiting members" of the plaintiff's family. I do not agree. I accept the evidence that the three elder children regard (or treat) Hong Kong as their "home" and I am satisfied that they form an intergral part of the plaintiff's household. 30. As Somervell L.J. said in Middleton v. Bull (1951) 2 T.L.R. 1010 at 1012.
31. As I stated before, I am satisfied the plaintiff's family is a close knit one and the views expressed by Scott L.J. in Smith v. Penny (supra) at 232 are apposite:
32. Mr Brodie in the course of his final address made some adverse comments on the manner in which the defence had been conducted; I do not myself wish to comment on that matter except to say that I think that the whole of the relevant evidence in this case could probably have been adduced in one and a half days. 33. I am satisfied the plaintiff is acting bona fide and has a reasonable requirement for the ground floor for occupation as a dwelling for himself, his father, his wife and their children. I am not satisfied that, in all the circumstances of the case, it would manifestly not be just and equitable to make an Order for possession. Judgment for the plaintiff. Representation: C.A. Brodie, Q.C. and Lester Kwok (David Y.Y. Fung & Co for the plaintiff Ruy Barretto (Deacons) for the defendant. |