Read the full judgment text of DCCJ 005283/1980 on BabelCite. This District Court judgment was delivered on 23 February 1981 before B.T. Caird.
Landlord and tenant – possession – subletting – Landlord & Tenant (Consolidation) Ordinance Cap. 7 – s.53(2)(e) – whether contractual tenancy must first be determined before statutory remedy pursued – s.50(6)(j) – exclusion from Part II of tenancies for fixed term of three years or more – Ordinance No. 6 of 1980 – retrospective effect to 18 December 1979 – sham transaction – corporate veil – whether subletting by subtenant caught by s.53(2)(e) – tenancy of Flat E 20/F Block 7 Chi Fu Fa Yuen, Pokfulam – oral arguments – terms of settlement – post-war premises let for domestic purposes – tenancy agreement dated 30 March 1979 for three-year fixed term – no prohibition against subletting – sublease to Rassil Limited (company wholly owned by 1st defendant's wife) at nominal rent with $36,000 'premium' – further sublease to 3rd defendant – whether s.53(2)(b) requires determination of contractual tenancy – LO Wah and LEUNG Wai v. CHUI Fun followed – Huggins JA on s.52(1) – whether transaction with Rassil Limited a sham – Salomon v. Salomon, Lee v. Lee's Air Farming Ltd, IRC v. Sansom applied – whether s.50(6)(j) excluded tenancy from Part II at time of agreement – whether s.5(i) of Ordinance No. 6 of 1980 catches tenancies previously excluded by s.50(6)(j) – distinction between 'tenant' and 'subtenant' in Part II – plaintiff's action fails – 1st and 2nd defendants entitled to court fees and disbursements.
Legal issues: Whether s.53(2)(e) is a rule of law requiring determination of contractual tenancy before a statutory remedy is pursued · Validity of the subletting transaction between 1st defendant and Rassil Ltd · Effect of s.50(6)(j) in excluding the tenancy from Part II of the Ordinance · Effect of Ordinance No. 6 of 1980 on the subletting claim
Outcome: Plaintiff's action for possession dismissed; 1st defendant's counterclaim not considered in view of the court's findings.