Wan Yee Mei v. Lam Cheong Pang

DCCJ004107/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4107 OF 1981

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Coram: Deputy Judge Bokhary in Court.

Date: 2 September 1982

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JUDGMENT

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1. The plaintiff is a widow aged 49. She is the registered owner of Flat H on the 7th floor of Tower Block No.8, Nan Fang Sun Chuen, Phase III in Quarry Bay. I will refer to this flat as ' the suit premises'.

2. By a tenancy agreement dated November 1, 1978, the plaintiff let the suit premises to the defendant for a term of 3 years commencing on the date of weeks agreement at a rent of $1,400 per month inclusive of rates. This term expired by effluxion of time on October 31, 1981. It is common ground that Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 applies to the suit premises, the rateable value of which does not exceed $80,000.

3. The plaintiff seeks an order for possession of the suit premises on the ground that she reasonably requires the same for occupation as a residence for herself. When he opened his case this morning, the plaintiff's solicitor said that all the other grounds pleaded in the Re-Amended Particulars of Claim were abandoned for, to quote him, "the purpose of this trial". The defendant denies the reasonableness and, indeed, the genuineness of the plaintiff requirement. Further, he contends that in all the circumstances of the case it would manifestly not be just and equitable to make an order for possession even if the plaintiff's requirement was genuine and reasonable. This then is the scope of the matters falling for decision by me.

4. At the present time the plaintiff lives in Flat B on the 11th floor of No.82 Gloucester Road. I will refer to this flat as 'the Gloucester Road flat'. Apart from the plaintiff, 4 persons live in the Gloucester Road flat. - They are a cousin of hers, this counsin's wife, their son and the plaintiff's late husband's grandmother.

5. In the action in this Court the reference to the second where of is No. 6121 of 1981, the owners of the Gloucester Road flat sought an order for possession of the sane on the ground that they intend to rebuild the same. The plaintiff (as the defendant in that action) entered into terms of settlement with them. These terms have been, in so far as was appropriate, made an Order of the Court. This, an order for possession of the Gloucester Road flat has been made, with a stay of execution until September 30, 1982.

6. After that date the plaintiff will have rd stay somewhere else. In essence, it is her case that that other place should be suit premises if she so wishes and she does 4&?wish. It is intended that her married cousin, his wife, their child and her late husband's grandmother stay there with her.

7. Apart from the suit premises, the plaintiff owns a flat in Johnston Road in respect of which she receives $2,500 by way of rent each month. She said in the witness-box that she does not own any other property. Miss Mok, who appears for the defendant invites me to infer that this is net so. She does this on the basis that from what the plaintiff said about her finances, it is to be inferred that if she has no more then between $8,000 and $10,000 by way of savings (as she says) she must have money in something else and that it is likely that that something else is a flat.

8. It is true that the plaintiff s account of her finances is a very full one. But I do not find her evidence as to the same inconsistent with her having no more than 2 flats and savings of between $8,000 and $10,000. Again, while the plaintiff's account of her finances is not very full, I did not find it evasive in manner or matter. I accept that she has no more than what she told me she has.

9. I am satisfied of the genudneness and reasonableness of the plaintiff's requirement

10. This brings me to what I will call the just and equitable provision.

11. The defendant appears to be in his forties. His wife is 42. She does not work because she has, he says, heart trouble. I accept this as far as it ones. But in the absence of medical evidence, I decline to find that this problem has any effect beyond making her unsuitable for employment within her range of skills. They have 4 children: 3 daughters aged 20,15 and 12 respectively and a son aged 9. The eldest daughter suffers from, it seems, mental stress. According to the defendant, a doctor attending her at a clinic says that she is capable of working. She does work; but she works at home. What she does is not clear; but it seems that she assembles items for a factory on a piece-,cork basis. The defendant says that she earns about $1,000 per month when she is well. The other 2 daughters seems to do much the same thing as their elder sister. It seems, however, that between them they earn only $500 at the most each month. Nothing was said in evidence as to whether any of the children attend school. Miss Mak's closing speech proceeded on the basis that none of them did. This may or may not be so. I hope it is not, have

12. The suit premises, which have an area of about 580 sq. ft., are divided into a number of cubicles. The defendant, his wife and their children occupy 2. The third one is occupied by a male cousin of his who is 46 years old and that cousin's son who is 20 odd years of age. The cousin's wife is in China. The fourth cubicle is occupied by a female cousin of the defendant and her son. She is 30 years of age. Her son is 9. Her husband is in China. The male cousin, his son and the female cousin all work in factories. One of the cousins pays the defendant $500 per month. The other pays him $200 per month. The nature of these payments was not probed. Perhaps they are no more than contributions towards family expenses. In any event, I take the position of these cousins and their children into account in considering the just and equitable provision.

13. The defendant is a watchman. He earns $1,450 per month. Additionally, he receives $8 per day by way of food allowance.

14. He says that he has tried to find alternative accommodations. The only specific instance he gave is a flat of a little over 500 square feet for which a rent of $3,000 per month was asked, the prospective landlord refusing to rent him one room only. On the whole, I am inclined to think search that the defendant's for alternative accommodation was more far-reaching than he made it sound in the witness-box.

15. The plaintiff is certainly better off than the defendant. But she is not all that well off either. She has worked hard for her money; and I accept her evidence that the present state of her health and the demands which looking after he late husband's grandmother are such that she cannot reasonably be expected to go out to work.

16. An order for possession would cause the defendant and the other occupants of the suit premises substantial hardship. But I do not think that such hardship would be crushing. I do not think that in all the circumstances of the case it would manifestly not be just or equitable to make an order for possession.

17. I make an order for possession. I also make an order for mesne profits at the rate claimed from August 1, 1982, until delivery of vacant possession.