Fung Lau and Another v. Fung Lai Yee and Another

DCCJ006824/1980

Joint landlords sought possession of premises under Section 53 (2)(b) of Landlord and Tenant (Consolidation) Ordinance, Cap. 7 Court finds only one landlord so requires - Court no Jurisdiction to make Order in favour of one plaintiff only in the case of two plaintiffs who are joint landlords.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 6824 OF 1980

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Coram: Judge de Basto, Q. C. in Court.

Date of Judgment: 23rd October, 1981.

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JUDGMENT

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1. This is a claim pursuant to Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance by the plaintiffs (who are brothers) as joint owners of premises which they claim to require possession for occupation as a residence for themselves. I am satisfied that the 1st plaintiff reasonably requires the suit premises for himself but I am not so satisfied in respect of the 2nd plaintiff. Indeed, I am satisfied the 2nd plaintiff has no intention of residing in the suit premises.

2. This action must accordingly be dismissed for the reasons I expressed in LEE Pui-man and Another v. LAM Wing-chung V.C.J. 6538 of 1980 where I held, in effect, that Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance did not cover the case where two joint landlords sought possession only in respect of one of them. In giving that decision I agreed with the decision in McIntyre v. Hardcastle (1948) 2 K.B. 82.

3. In this judgment, for the sake of convenience, I will refer to the words in Section 53(2)(b):-

"The premises are reasonably required by the landlord for principal tenant for occupation as a residence for himself, his father, his mother or any son or daughter of his over the age of 18"

or words very approximately the same as "the relevant words".

4. In 1947 Hong Kong received its first Landlord & Tenant Ordinance (No. 25 of 1947) Section 19 of which read:-

"It shall be lawful for a tenancy tribunal on the application of a landlord ...... to make an order for the recovery of possession ... where such premises are reasonably required for occupation as a residence for such landlord or for any son or daughter of his over eighteen years of age ....".

5. Apart from the fact that in Section 19 no mention was made of the landlord's father or mother, the words are almost the same as the relevant words.

6. In the 1960s many of the matters which are presently consolidated in the Landlord & Tenant (Consolidation) Ordinance were then dealt with by various Ordinances, these included:-

Section 6(2) of the Rent Increases (Domestic Premises) Control Ordinance 1963 read:-

"Notice to quit may be served ..... where in such notice the landlord or principal tenant specifies -

Section 23 of the Landlord & Tenant Ordinance (1964 Ed.) read:-

"It shall be lawful for a tenancy tribunal on the application of a landlord ... to make an order for the recovery of possession of any domestic premises or for the ejectment of the tenant there from where such premises are reasonably required for occupation as a residence for such landlord or for any son or daughter of his over eighteen years of age ....."

7. In 1973 the above Ordinances and their many amendments were consolidated into the Landlord & Tenant (Consolidation) Ordinance, 1973 of which Section 53(2)(b) read:-

"A court shall not make an order for possession of premises in respect of which there is a tenancy or sub-tenancy to which this part applies unless it is satisfied that -

and by Ordinance 6 of 1980 Section 53(2)(b) was amended to read as presently applies.

8. In 1948, one year after the relevant words first appeared in the 1947 Landlord & Tenant Ordinance, the English Court of Appeal gave its construction of the relevant words in Mclntyre's Case (supra). Despite all the numerous amendments to the Landlord and Tenant Ordinance between 1948 and 1980 the relevant words were never amended to provide that in the case of joint landlords they were entitled to exercise their rights severally as well as jointly. As long ago as 1964 Judge McMullin (as he then was) in Sun Pin and Another v. R.P. Greenwood (1964) D.C.L.R. 246 at 250 indicated that, in the case of jointlandlords, if the relevant words were intended to mean that the persons for whom the premises were sought could be either, or related to either, landlord "the specific intervention of the Legislature to effect such a change" would be required.

9. Mclntyre's Case (supra) has governed in England the construction of the relevant words from 1948 up to the present time. Despite numerous amendments to the Rent Acts over the years and despite the decision in Mclntyre's Case in 1948 Parliament has not seen fit to amend the relevant words to include a provision that in the case of joint landlords they were entitled to exercise their rights individually.

10. Since my judgment in LEE Pui-man's Case (supra) I have had the advantage of reading the judgment in CHEUNG Pui-sun and Another v. CHUNG Kwong-lam and YAN Yui-fai (V.C.J. 8183 of 1980).

11. I entirely agree with Eveleigh L.J. when he said in Tilling v. Whiteman (1980 A.C. 1 at 12 "..... there is no general principle to be drawn from Mclntyre v. Hardcastle". The Court of Appeal in Mclntyre's Case was not trying to establish a general principle - they merely indicated how certain words, in the context of an Act relating to landlords and tenants, were to be construed in the case of joint landlords. The concept of joint landlords is certainly not a recent one in either England or Hong Kong. The learned judge in CHEUNG Pui-sun's Case (supra) states, inter alia, "The cumulative effect of the House of Lords reference (in Tilling's Case) to Mclntyre v. Hardcastle is that the authority of that decision, while not at this stage overruled, is at best doubtful". With respect I do not agree. If anything Tilling's Case supports Mclntyre's Case.

12. In my copy of Woodfall on Landlord & Tenant at page 3141 the insert of which, in my copy, reads "Release 2: 1-i-81" footnote 63 reads "While the correctness of the principle laid down in Mclntyre v. Hardcastle is open in the House of Lords it is submitted that it is correct, see Tilling v. Whiteman, post".

13. I do not intend to discourse further on this subject except to say that I am in agreement with the learned authors of Woodfall and to express agreement with my brother Evans where he said in HAU Ming alias HAU Kwong-chuen v. KWOK Kan-yuen (V.C.J. 4106 of 1980):-

"If that is so it would be possible to have multiple ownership by any number of persons of one single tenanted unit and not only could one single member of that combine found a claim under Section 53(2)(b) for himself, but he could do so for his father, his mother or any son or daughter of his over the age of 18. The possibilities are limitless but outside that which is clearly the true intent of Section 53(2)(b) to allow a man to recover possession of his own personal premises on the basis of his or his family's need to have those premises for self use."

14. It does not require a fertile imagination to anticipate how some resourceful (for what of a better euphumism) landlords would use the relevant words if they are given an extended meaning which, for my part, I cannot for one moment think the Legislature intended.

15. The 1st plaintiff, before the 31st May, 1981 lived with his family in a room of 200 sq. ft, in Kennedy Terrace paying $100 a month rent. The 1st plaintiff and his wife have 6 children, all at school, ranging in age from 18 to 12. The landlord of Kennedy Terrace instituted an Action against, inter alia, the 1st plaintiff for possession on the ground that he wished to rebuild. In the course of that Action, the 1st plaintiff entered into an agreement with his landlord whereby, inter alia, he agreed to vacate those premises by the 31st May 1981. The 1st plaintiff now lives with his wife and three sons in a small movable stall while his three daughters live with a friend. The 2nd plaintiff, on the other hand, lives with his wife and 5 daughters in a flat which he bought two years ago for $220,000 after he had sold other premises where he was then living for $230,000.

16. The suit premises were bought in 1969 with money from the plaintiff's mother's savings and that of other members of the family. The 1st plaintiff said he paid "very little - he could not remember". The 1st plaintiff said, in effect, he received for himself the whole of the rent of the suit premises - the 2nd plaintiff said he did not receive any share of the rent of the suit premises but he took" a small sum once in a while", whatever that means. The 1st plaintiff said he did not know where his brother lived for a number of years. His answers were evasive especially when he was confronted with a number of registered letters which indicated the contrary. The 1st plaintiff was asked whether he was "close" to his brother and he replied, "Once in a while we would come together to have a chat". Later he said, "Every morning I would come down to have tea and see him every morning - and when I have not much business I won't see him".

17. The 1st plaintiff said it was two months before he gave evidence (the 3rd July, 1981) that it was decided that the 2nd plaintiff should also live in the suit premises. The Writ in this Action is dated the 9th October 1980. It was put to the 2nd plaintiff by Miss Eu for the defendant that his brother had testified it was only 2 months before he (his brother) gave evidence that it was decided they should both live in the suit premises and the 2nd plaintiff agreed but when Miss Eu repeated the question he said he disagreed with his brother because in 1972, 1973 and 1974 he (the 2nd plaintiff) had "the idea" of living in the suit premises. The Court then asked him:- "When did the idea that you and your brother should live in the suit premises originate?" The 2nd plaintiff replied "Yes - the idea was formulated two months before my brother gave evidence".

18. The 2nd plaintiff was questioned whether he knew anything about Cheung Kong, the large property developers, wanting to re-develope the building in which the suit premises are situated. The 2nd plaintiff indignantly denied that he knew anything about that. Later he said that "as regards to redevelopment" the owners of the 1st and 2nd floors were willing to sell their flats. It was put to him that he participated in meetings for redevelopment and he replied, "But the people downstairs (on the ground floor) refused to sell." The 2nd plaintiff said he went, his brother did not go, he represented his brother. When the Court asked him "You represented him in what?" he replied "To find out what was the opinion of the others."

19. The suit premises are 1700 square feet in area and consist of two completely separate units each with its own front entrance.

20. I thought the 2nd plaintiff a thoroughly unreliable witness - I do not believe he intended, or intends, to live in the suit premises with the 1st plaintiff. The 1st plaintiff was also an unsatisfactory witness in his evidence relating to his brother and I did not accept his explanation that he has a bad memory because he fell as a child.

21. For the reasons I have given I dismiss this Action with costs to the Defendant on the upper scale. I certify this case fit for Counsel.

Representation:

Mr. C.Yeung of T.S. Tong & Co. for the plaintiffs.

Miss Audrey Eu instructed by Cheng & Chan for the defendants.