Tam Yung v. Ghan Siu

DCCJ009318/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.9318 OF 1981

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Coram: H.H. Judge Li

Date: 29 July 1982

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RULING

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1. At the commencement of the hearing Mr. Kong for the Defendant invited me to rule on a preliminary point namely whether the Plaintiff has on the face of the Particulars of Claim a good cause of action for an order for possession for self-use. His argument was:

2. On 26th June 1981 the Court of Appeal in Lam Chun Kuen v. Wan Suet Ying Civil Appeal No. 47/81 decided that the Plaintiff has a good cause of action for an order of possession for self-use to take effect upon the expiry of the contractual term although at the date of the issue of the writ the contractual term had not expired. The Court of Appeal said: "I do not see how the contractual bargain is interfered with in any way if the order for possession is so drafted as not to take effect until after the expiry of the agreed term."

3. On the authority of that decision the Plaintiff has a good cause of action here. The writ was issued on 2/12/81 although the fixed term does not expire until 31/3/82. But the claim must be read to be a claim for an order for possession to take effect upon or after the expiry of the fixed term although that is not expressly spelt out.

4. Mr. Kong however seeks to distinguish that case on the ground that section 74A (aa) was not then in force. It was enacted by Ordinance No. 52/81 on 10/7/81 and deleted with effect from 19/12/81 by Ordinance No. 76/81.

5. Does section 74A(aa) apply and if so does it make a difference? Assuming it applies, in my judgment it does not make a difference. That provision does not create any rights. It makes clear that part II does not enable the Court to interfere with contractual bargains between the parties -see the observation of Leonard VP in Ngai Sau Ying v. Henry Chue Kwok Cheung Civil Appeal No. 30/82 at pages 2-4. It does not enable a Court to make an order for possession to take effect earlier than the expiry of the contractual term. But the Plaintiff by his claim in this case does not seek to obtain such an order. His claim must be read to be a claim for an order for possession to take effect upon or after the expiry of the fixed term on 31/3/82.

6. I have assumed that section 74A(aa) does apply to this claim. This was not contested by Mr. Lo for the Plaintiff. Although I need express no final views on it I am inclined to think that that concession is correct. When the Plaintiff issued his writ he had an accrued right to apply for and be granted an order for possession on the law as it stood at that time (see the Court of Appeal decision in Ngai Sau Ying). And there is no indication that the deletion of section 74A(aa) as from 19/12/81 was intended to have retrospective effect.

7. Accordingly I rule against the Defendant on the preliminary point and dismiss the application to strike out the claim on the ground of self-use.

Representation:

Mr. N. Lo of Messrs Yu, Tsang & Loong for plaintiff.

Mr. Louis Kong of Louis Kong & Co. for defendant.