Li La-fon v. Chan Wah

Case No.DCCJ 431/1972

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ000431/1972

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

RENT INCREASES APPLICATION NO. 431 OF 1972.

-----------------

	LI La-fon	Applicant
	and
	CHAN Wah	Respondent

-----------------

Coram: Judge Davies in Court.

Date of Judgment: 24th February 1973.

-----------------

JUDGMENT

-----------------

P.A	In this application, possession is being sought of Flat No. 18, Man Wai Building, 8/F., Kowloon (hereinafter referred to as "the suit premises"), of which, it is agreed, the Applicant is the registered owner, and the Respondent her tenant.

2. No issue has been taken on the validity of the Notice to Quit or the Counter-Notice, and Respondent concedes that the flat is situated in a building in respect of which an Occupation Permit was issued since 16th August 1945.

3. The matters for determination therefore are firstly, whether or not Applicant has established a genuine need for possession of the suit premises for herself and/or a specified category of relatives, and if so, then secondly, whether Respondent has succeeded in showing that greater hardship would result from the making of an order than from the refusal of one.

4. At present, Applicant resides at Flat 40, Man King Building, 18/F., Kowloon. It is a 3-room flat for which she pays $450.00 p.m. She lives there with her husband, her son, and her mother-in-law who is 86 years old.

P.B	Applicant's husband is 62 years old. He is at present still working (how much he earns she did not say), but he is at present under medical attention which is costing $200 - $300 p.m., and Applicant does not know how long he will be able to continue at work.

5. This case is quite remarkable for its vagueness. Respondent has not however elected to cross-examine Applicant on any of these matters, and so I must assume that I am intended by both sides to take this evidence at its face value.

6. Applicant has said that her son is working, earning $800.00 per month. Again, she does not say how much of this he contributes to the family budget, but I must assume almost all otherwise the said budget would not balance. Applicant receives rent from the Respondent as tenant of the suit premises in the sum of $460.00 p.m. This amount virtually balances the sum she herself is paying out in rent per month. She also pays rates for the suit premises of $140 per quarter or $46.60 p.m.

7. Applicant says that she purchased the suit premises for $48,000.00 in 1963, though the assignment was not drawn up until 1966. She purchased with vacant possession. How long Respondent has been her tenant is yet another matter which does not emerge from the evidence.

P.C

Applicant's express reason for making the present application is that her landlord has through his solicitors demanded possession of the flat in which Applicant is now residing. She has produced a letter to this effect addressed to her husband (Ex. A1). The tenancy was for a fixed period of 3 years, and is therefore I presume not protected by the Rent Increases (Domestic Premises) Control Ordinance or any other statute.

8. I can only presume this - the Applicant's tenancy agreement has not been the subject of any further evidence. I need hardly point out that not all 3 year tenancy agreements are excluded from the provisions of the Ordinance (vide section 3(5)(a)(i), and in this connection a solicitor's letter is a far cry from establishing that she will ultimately be obliged to vacate her present residence. There is no evidence whatever that she has been served with a Notice to Quit, and still less that her landlord intends to take legal proceedings against her.

9. There is no suggestion in Applicant's evidence that her present residence is inadequate for the needs of herself and her family. Her need for the suit premises is said to arise purely and simply from the fact that she anticipates being ordered to vacate.

10. Unless or until this event has been shown to be reasonably certain, (and also imminent), however, no need arises for her to obtain possession of the suit premises.

P.D	I certainly do not find such a state of affairs to exist at present, and by reason of this alone, I consider the present application to be premature.

11. It may be that Mr. Burnett, for Applicant, might wish to argue that unless a counter-notice puts Applicant to proof that she requires the suit premises as a dwelling for herself and family, as stated in the notice to quit, no onus lies upon Applicant to prove it.

12. I would respectfully hold, however, that whatever the contents of the counter-notice, and however the unrepresented Respondent has seen fit to conduct his case in these proceedings, the onus is always upon Applicant to establish the grounds stated in her Notice to Quit.

13. In this connection, I need do little more than quote section 7(7) of the Rent Increases (Domestic Premises) Control Ordinance: "Where he (the landlord or principal tenant, as the case may be) satisfies the Court that he is entitled to possession on the ground specified in the notice to quit, the Court may make an order for possession ...........".

14. No words could create an onus more clearly than this.

P.E	In Fong Sook Ngan v Tsui Siu Fai 1963 DCLR 289, Applicant had gone further than has Applicant in the present case, in that she had proved she had been served with a notice to quit by her own landlord.

15. Jennings D.J. held however that she had to go further, and show that she could not defeat her landlord's claim for possession.

"The applicant further contends that still greater hardship will be caused to her if two things happen: one is if she has to leave her flat, and the other is of she then cannot obtain possession of the respondent's flat. I feel she must establish that it is necessary for her to leave her present flat before she can lay the foundation of this further hardship. All she has done in this respect is to prove that she has been served with a notice to quit by her landlord in which he claims that he requires as a dwelling for himself the flat occupied by her, and that she has promised him to move out as soon as she can get the respondent out of the flat upstairs. This is not sufficient to prove that she has to leave: to prove this she has to go further and show that she could not defeat the landlord's request for possession"........

"It has not been argued that the applicant has lost her right to dispute her landlord's request. There is evidence showing that great hardship would be caused to the applicant if she had to leave her flat, but there is no evidence to show that her landlord would suffer any hardship if he did not obtain an order for possession against her. In these circumstances I cannot find that the applicant could not defeat her landlord's request for possession."

16. I respectfully agree with that construction of the Ordinance, and applying it to the present case, have reached the conclusion that Applicant has failed to discharge the onus of establishing a genuine present need for possession of the suit premises.

17. For this reason, I dismiss the application, and grant Respondent his costs if he can satisfy me that any have been incurred.

18. In open Court, this 24th February 1973.

	(D.A. Davies)
	District Judge

Representation:

Burnett (Gunston & Chow) for Applicant

Respondent in person.