Ho Kui Wah v. Yu Chow Say Mui

HCMP000400/1982

Landlord & tenant - claim for possession under s.53(2)(b) of landlord & Tenant (Consolidation) Ordinance - request under O.18 r.12(3) for particulars - tenant insisting not merely on "a statement of the nature of the case on which the plaintiff relies" but on a statement of ''all facts and matters relied upon in support (of 'reasonably requires')"- request too wide.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Barker, J.A. and Macdougall, J.

Date of hearing: 26 March 1982

Date of handing down judgment: 16 April 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. The respondent Landlord claimed possession of a protected tenement on the ground that she required the premises as a residence for herself "and her immediate family". The Tenant sought particulars of her immediate family and also demanded that the Landlord "state all the facts and matters relied upon in support of the allegation that the suit premises are reasonably required by the plaintiff for occupation as a residence for herself and her immediate family''. The landlord, having unnecessarily referred to the immediate family in the Particulars of Claim, rightly felt compelled to give further and better particulars of that phrase but she objected to the wide terms of the other demand. The Tenant applied to the District Judge for an order for particulars, but this was refused. The Tenant appeals.

2. Mr. Bunting submits with some justification that a tenant who is sued under s.53 (2)(b) of the landlord and Tenant (Consolidation) Ordinance cannot properly prepare his defence - or even consider the desirability of a settlement - unless he knows why the landlord says he requires the premises for occupation by himself or whomsoever it may be. For example, it may be that the landlord is living in rented accommodation and that his own landlord is taking proceedings to evict him: the tenant would wish to ascertain the genuineness and strength of that claim, which he could not do effectively if the first he heard of it was curing the landlord's evidence. Mr. Yeung recognises the difficulty but argues that the order sought is far too wide and requires his client in effect to give discovery of her proofs of evidence. Mr. Bunting says that he does not go so far as that and is only seeking the reasons for the Landlord's requirement, which Mr. Yeung is willing to give, although maintaining that he is not obliged to do so as the request is in truth not a request for particulars but is in the nature of interrogatories.

3. Mr. Bunting has been able to cite no case, either in Hong Kong or in England, where particulars of "reasonably required" have been ordered. In England, by reason of the form prescribed, it was at one time even arguable that a plaintiff claiming under the First Schedule to the Rent and Mortgage Interest Restrictions (Amendment) Act 1933 need not indicate the paragraph under which the claim was made: see the article by his Honour Judge Bradley at (1923) 39 L.O.R. 441, 445 et seq. The precedents in 2 McCleary's County Court Precedents (3) 869 and 24 Atkin's Court Forms (2) 313 do not suggest that any particulars need to be given beyond such as will show which paragraph is relied upon. Indeed, it is doubtful whether what has been asked for here is particulars at all. Mr. Bunting contends that they are particulars of a condition of mind and points out that it has been held that particulars may be ordered of an intention: O.18 r.12(1)(b) and Feeney v. Rix 1968 Ch. 693. In the case referred to one issue was whether any contribution which might have been made by the plaintiff to the purchase of a house in the name of the defendant was intended as a gift to the defendant. The court ordered particulars of "the overt acts of the plaintiff and the facts relied upon to show that the contributions (if any) of the plaintiff when made ... (if at all) were made with no intention of being made as a gift to the defendant". That seems to me to be distinguishable, because "reasonably requires" is strictly not a "condition of mind". What Mr. Bunting is really saying is that the Tenant needs "a statement of the nature of the case on which [the Plaintiff] relies": see O.18 r.12(3). Such a statement would have enabled the Tenant to know what evidence he ought to be prepared with and to prepare for trial (see Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R. 329), but it is not what has been asked for. As the application stands, I think the order sought was in terms so wide as to amount to requiring the Plaintiff to reveal her evidence, and that cannot be allowed. It appears from the judge's Reasons that the Landlord, through her solicitor, indicated her willingness to meet a request in less wide terms, but the judge said that the Tenant insisted on an order in the form in the application.

4. For these reasons I thought the appeal should be dismissed.

Barker, J.A. :

5. I agree.

Macdougall, J. :

6. I regret that I find myself in disagreement with my brethren as to the outcome of this appeal.

7. The respondent who is the landlord of premises of which she seeks possession in an action under section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance states in paragraph 7 of her particulars of claim:

"The said premises are reasonably required by the plaintiff for occupation as a residence for herself and her immediate family.

8. The relevant part of section 53(2) reads as follows:

9. Apart from the imprecise reference to her immediate family the respondent has thus in effect simply reproduced in her particulars of claim the relevant paragraph of sub-section (2) of section 53 under which she seeks relief as a landlord.

10. The appellant tenant of the premises sent a letter through his solicitors to the respondent's solicitors seeking further and better particulars as follows:-

"Under Paragraph 7 of the Particulars of Claim

11. The respondent's solicitors duly supplied the particulars sought under sub-paragraph (ii) of the request but declined to give the particulars sought under sub-paragraph (i), stating that they were of the opinion that the respondent was not entitled to them.

12. The appellant then made an application to a District Judge for an order that the respondent provide further and better particulars as follows:-

"State all the facts and matters relied upon in support of the allegation that the suit premises are reasonably required by the plaintiff for occupation as a residence for herself and her immediate family."

13. The learned Judge dismissed the application on the basis that he considered that the form of the order sought was wider than what was required under 0.18 r.12 in that "the term 'matters' was particularly wide and vague''. It is against the order of the learned Judge that the appellant has appealed.

14. To be more precise, the appellant has proceeded by way of notice of motion for an order that he be heard for an order that he be at liberty to appeal notwithstanding that the time limited by the Rules of the Supreme Court for so doing has expired.

15. Mr. Bunting for the appellant submitted that the appellant has an absolute right of appeal without leave and that that being so the appellant was out of time, hence the notice of motion for an order that the appellant be at liberty to appeal.

16. The basis of Mr. Bunting's submission is that section 68A of the Landlord and Tenant (Consolidation) Ordinance overrides section 63 of the District Court Ordinance. In this connexion he referred to R.S.C.C 59.

17. Mr. Bunting is anxious to obtain a definitive ruling on this point as there has apparently been a sharp division of opinion as to the correct manner in which to proceed in appeals of this nature and this has given rise to considerable confusion.

18. However, since Mr. Yeung for the respondent was content to argue the case on it's merits and was unprepared for argument on the point that Mr. Bunting is so anxious for the Court to resolve we were not disposed to consider it in the absence of argument on both sides. In the event we granted the appellant liberty to appeal de bene esse. Argument then proceeded on the merits of the appeal.

19. Mr. Bunting contended that paragraph 7 of the particulars of claim is so vague that it gives the appellant no inkling of the nature of the case he has to meet.

20. He argued that the basic functions of particulars were (1) to inform the other side of the nature of the case they have to meet, (2) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial, (3) to prevent the other side from being taken by surprise at the trial, (4) to limit the generality of the pleadings, (5) to avoid unnecessary expense and (6) to tie the hands of the party so that he cannot without leave go into any matters not included in his pleadings.

21. In his submission a better example of the need for further and better particulars would be more difficult to find than that of a defendant in an action under section 53(2)(b) by a landlord for possession of premises where the particulars of claim simply recite the bare words of paragraph (b). This is so because there are manifold reasons why a landlord might require possession of premises for occupation as a residence for himself, his father, his mother or any son or daughter of his over the age of 18.

22. Mr. Bunting argued that unless a defendant is made aware before the trial of the reason or reasons that a plaintiff will advance at the trial in an attempt to establish that he reasonably requires possession of the premises for occupation as a residence for himself or other relevant member of his family, he not only is left merely to conjecture as to the nature of the case on which the plaintiff will rely but he is unable to conduct any necessary investigation into the genuineness and reasonableness of the plaintiff's case. Furthermore the plaintiff is not tied down to specific reasons and is thus at liberty to expand his evidence at the trial so as to add a farther reason or reasons to that or those of which the defendant might have had knowledge otherwise than by way of particulars supplied to him by the plaintiff.

23. Notwithstanding that the precedents in 2 McCleary's County Court Precedents (3) 859 and 24 Atkins Court Forms (2) 313 do not indicate that any particulars need to be given beyond such as to indicate which paragraph is relied upon, I see no justification for giving rule 12(3) so restricted a meaning as to limit the scope of its application to actions of a particular kind.

24. Indeed, although in his article in (1923) 39 LOR 441 his Honour Judge Bradley states that in the way in which Form 247 is commonly used in rent restriction applications in England the defendant learns nothing as to the plaintiff's actual claim except that the plaintiff is asking for an order for possession and for payment to him of whatever rent appearing to be owing by the defendant, he goes on at page 446 to say -

"It may be suggested that the defendant might have avoided this hardship by applying for further and better particulars. But, having regard to the fact that in most cases the defendant, owning to lack of means, is not represented by a solicitor, it is submitted that it is not sufficient for the plaintiff to say that he would have supplied further particulars had they been requested."

25. Mr. Yeung contends that the order sought by the appellant for particulars of  ''the matters" relied upon by the respondent in support of her claim is so wide that it requires her in effect to give discovery of her proofs of evidence. I find this difficult to understand. It seems to me on a plain reading of the wording of the order sought by the appellant that he is seeking nothing more than the reasons that the respondent intends to advance at the trial to justify her contention that her requirement of the premises is reasonable. In effect, the appellant seeks to obtain, in the words of 0.18 r.12(3), "a statement of the nature of the case on which the [respondent] relies". To my mind the wording of the order sought by the appellant is no wider than the relevant words of rule 12(3) that I have just quoted.

26. Odgers in Pleading and Practice 22nd Edn. page 155 states:

"Particulars will be ordered whenever the master is satisfied that without them the applicant cannot tell what is going to be proved against him at the trial. But how his opponent will prove it is a matter of evidence of which particulars will not be ordered".

27. The word matters does not suggest to me that the appellant requires a statement of the evidence that the respondent proposes to adduce at the trial.

28. In this connexion it is interesting to note that the precedents for requests for further and better particulars in forms 83 and 84 in volume 25 of Atkins Court Forms 2nd Edn 1975 issue page 146 and form 23 in volume 27 of the 2nd Edn 1969 issue page 182 use the words the facts and matters relied on. It is true that these forms relate to requests for particulars in actions for libel and slander and actions alleging misrepresentation and fraud but if the word "matters" casts so wide a net as to envelop the respondents proofs of evidence in the instant case it must do likewise in actions for libel and slander and those alleging fraud and misrepresentation. The forms I have referred to would suggest otherwise.

29. It was suggested during the course of argument that the appellant's request is in truth not a request for particulars but is in the nature of interrogatories.

30. I also find this difficult to understand. Odgers in Pleading and Practice 22nd Edn page 277 states

"The party interrogating can compel his adversary to disclose the facts on which he intends to rely, but not the evidence by which he proposes to prove those facts. He cannot claim to see his opponent's brief, or ask him to name the witnesses whom he means to call at the trial. The party interrogating may ask anything to support his own case or answer his opponent's case; he is entitled to know precisely what is the charge made against him, and what is the case which he will have to meet. But he is not entitled to discover in what way his opponent intends to prove his case".

31. That being so, and if the respondents argument is that the order sought is too wide in that it embraces the respondent's proofs of evidence, it would be equally objectionable if the appellant sought the same information by way of interrogatories.

32. In my opinion, even if it were feasible in a case such as this to draft suitable and proper interrogatories that might give the appellant the information he seeks I do not see any reason as to why he should be subjected to the expense involved in such a procedure when he has available to him the simple and comparatively inexpensive remedy of requesting further and better particulars. To my mind the appellant has asked for nothing more than a disclosure by the respondent of what her case will be at the trial. He does not seek disclosure of the evidence by which the respondent proposes to prove that case. He is entitled to the order sought; it is not too wide.

33. I am entirely in agreement with Mr. Bunting that particulars are especially necessary in actions under sec 53(2)(b) of the landlord & Tenant (Consolidation) Ordinance. Indeed I find it surprising in the light of the notorious landlord and tenant problems that prevail in Hong Kong that the legislation does not contain a provision malting it mandatory for a plaintiff to specify in his particulars of claim the reason or reasons why he requires the premises for occupation as a residence for himself, his father, his mother or any son or daughter of his over the age of 18. Such a provision would not only assist the large number of unrepresented defendants who are unlikely to be unaware of their right to obtain particulars, but it would relieve the represented defendant of the tiresome burden of having to make the inevitable request for particulars in all cases in which they are not already supplied.

34. I would allow this appeal.

16th April 1982.

Representation:

M. Bunting (Baker & McKenzie) for Appellant.

W. Yeung (Gallant Y.T. Ho & Co.) for Respondent.