Shen Ta-chang and Another v. Chen Lai-pui

DCCJ006537/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO.6537 OF 1980

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Coram: His Honour Judge Downey in Chambers.

Date of Judgment: 2nd September, 1981

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REASONS FOR DECISION

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1. By these proceedings, the plaintiffs seek to recover premises, let to the defendant for domestic purposes, on the ground that they reasonably require the premises for occupation as a residence for themselves and their family.

2. At the trial, which began on 31st March 1981, the plaintiffs' claim was strenuously resisted by the defendant. After some 2½ days, the evidence of the second plaintiff had still to be completed. The hearing was adjourned and is due to be resumed on 1st October 1981.

3. On 24th August 1981, solicitors acting for the plaintiffs and the defendant, submitted to the court a draft summons, setting out terms of settlement and asking for them to be approved by the court. The order sought is in the form which is commonly called a "Tomlin Order". One of the terms in the schedule is that the defendant "shall quit and deliver up vacant possession of the premises .......... on or before the 30th day of September 1981". Being doubtful of my jurisdiction to make the order sought, I invited the parties' solicitors to attend and address me on this matter, I am, indeed, grateful to Mr. Wong and Mr. Hung for their assistance. In the event, they asked for their application to be adjourned sine die, with liberty to restore. Accordingly, it is not necessary for me to give reasons for my view that the court does not have jurisdiction to make an order for possession by consent, or even a "Tomlin Order" which seeks to achieve the same objective by a different route. But, out of respect for the assistance I have received from Mr. Wong and Mr. Hung, in this case, and in the hope that it may be of some assistance to other practitioners, I will do so.

4. A tenancy, to which Part II of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) applies, can only be terminated in one of the three ways mentioned in section 53(1). If a landlord requires an order of the court, it is, in my view, clear that the court only has jurisdiction to make an order for possession if it is satisfied that one of the grounds, specified in section 53(2), exists or is established. In this respect, the section restrict to the ordinary jurisdiction of the court to make orders for possession, in much the same way as similar provisions in the English Rent Acts. See Barton v. Fincham [1921] 2 K.B. 291; Thorne v. Smith [1947] K.B. 307; Middleton v. Baldock [1950] 1 K.B. 657. In Hong Kong, of course, the court is not required to be satisfied that it is also reasonable to make an order.

5. As a matter of general principle, the parties cannot by their agreement confer upon the court a jurisdiction which it does not possess, or remove any fetter thereon, imposed by statute. See CHOI Hau-ying v. Teh Hu Steamship Co. (H.K.) Ltd. [1969] D.C.L.R. 29, 32. Section 50(1) of Cap.7 contains a clear indication of the intention of the legislature ...(illegible) or sub-tenancy are not to enjoy freedom to contract out of the provisions of the statute. I appreciate that such restriction relates to provisions in the tenancy agreement, but I consider that the same restriction extends to subsequent agreements between the parties. A subsequent tenancy agreement (even, in my view, one which would be otherwise excluded from Part II) does not take away the protection enjoyed by a tenant under Part II, unless there is delivery of actual physical possession by the tenant to the landlord. Of. Capital Land Investment Co.,Ltd. v. Madam SE Mong-kai [1973] H.K.L.R. 371.

6. There is, in my view however, no objection to the court making an order for possession, without hearing evidence or conducting a full enquiry, if a tenant admits that the landlord has a good claim based on one of the statutory grounds. But any such concession should be made clearly and not be assumed to be made simply because the parties ask the court to make an order "by consent", for as Somervell, L.J. said in Thorne v. Smith [1947] K.B. 307, at 315:-

"The expression 'a consent order' may suggest some compromise or arrangement which might be inconsistent with the provisions of the Acts. When the defendant is agreeing to submit to judgment because he is satisfied that the plaintiff can establish his right to an order under the Acts, it might be advisable to avoid the use of the word 'consent', which may have a wider meaning and cover cases where the 'consent' was the result of an arrangement which could not properly be made the basis of an order."

This is not merely a pedantic or sophisticated distinction of form; the absence of a clear indication of the ground upon which the tenant is "consenting" to an order can have significant practical repercussions for one or both of the parties. Not infrequently, a claim for possession based on section 53(2)(b) is joined with alternative or additional claims based the other statutory grounds. In suchcases, it is surely desirable that the court and the parties should know on which ground the order is being made, so that they are not left in a state of uncertainty as to whether the restrictions contained in sub-section (7) apply to the premises, or exposed to the risk of prosecution, etc. under subsection (7B).

7. Mr. Wong submitted that these objections, assuming they are valid, do not arise where the parties ask for a "Tomlin Order", because the court is not being asked to make an order for possession, but merely being asked to stay all further proceedings, save for the purpose of carrying the agreed terms into effect. He also referred to Noel v. Becker (Practice Note) [1971] 1 W.L.R. 355 as authority for the proposition that the court is not concerned to approve or disapprove the terms of a "Tomlin Order". With respect, I would adopt that proposition, and the further one that the agreed terms in the schedule may go beyond the ambit of the action. See Phillips & Sons Ltd. v. Clarke [1970] Ch. 422. But, in my view, neither of these decisions is authority for the proposition that the agreed terms may go beyond the jurisdiction of the court. The court may not be concerned with the contents of the schedule, but it should surely be concerned with the effect of the order it is being invited to make.

8. I appreciate that where the parties resort to the from of a "Tomlin Order" the court is not strictly being asked to make "an order for possession", but is merely staying the proceedings to enable the parties to carry out their agreement by the tenant delivering up vacant possession, as he may do under section 53(1)(a) of Cap. 7. But, if the tenant is willing to do so, why ask the court to superimpose the threat of its coercive powers? If it should become necessary to enforce a "Tomlin Order", it will be necessary to obtain an order requiring the party in breach to perform his obligation under the compromise, before it can be properly enforced. Such an order would, in my view, be tantamount to an order for possession. Furthermore, there is some authority to the effect that an agreement (directly or indirectly) by a tenant to give up possession, where the statute does not require him to do so, will not be specifically enforced against a tenant (of. Barton v. Fincham [1921] 2 K.B. 291; R.M.R. Housing Society Ltd. v. Combs [1951] 1 K.B. 486; Traynor v. Duffy [1947] Ir. Jur. Rep. 9; Parkrow Property Co.,Ltd. v. Pereira [1953] E.C.D.341.

9. In my view, a court should be slow to make an order which it cannot, or will not, later enforce, and in proceedings which are governed by Part II of Cap. 7, it should at least satisfy itself that it has jurisdiction to make an order for possession or any other order having the like effect. The enquiry need not be thorough or unduly time-consuming, but that some enquiry should be held is, in my view, supported by the requirements of rule 22(2) of the District Court Civil Procedure (General) Rules. If the parties must satisfy the court that there is no bar to, or restriction upon, entering judgment where the defendant does not file a defence, the same should surely be done where the landlord's claim is clearly contested.

10. If I am correct in my understanding of the position, there is no need to fear that observance of the requirements will discourage parties from the sensible and laudable practice of settling their disputes in a friendly manner and on terms to their mutual advantage. Provided that there is a clear acknowledgement or admission that the landlord's claim is well-founded, I see no objection to the rest of their bargaining being incorporated in a consent order or "Tomlin Order".

Representation:

Mr. Steven Wong (Messrs. Fairbairn & Kwok) for plaintiff.

Mr. Spencer Hung (Messrs. Spencer Hung & Co.) for defendant.