So Kam Ming v. Yu Chuck Han
Read the full judgment text of DCCJ 9657/1972 on BabelCite. This District Court judgment was delivered on 16 January 1973.
1. The Plaintiff's claim was for possession of premises (No. 14, Wa Fung Street, 4th Floor, Hunghom) and for mesne profits.
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DCCJ009657/1972 HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 9657 OF 1972 -----------------
Coram: Judge Davies in Chambers. Date of Judgment: 16 January 1973 ----------------- RULING -----------------
1. The Plaintiff's claim was for possession of premises (No. 14, Wa Fung Street, 4th Floor, Hunghom) and for mesne profits. 2. The Plaintiff brought his action by writ of summons. The lease entered into between the Plaintiff and the Defendant was outside the provisions of the Rent Increases (Domestic Premises) Control Ordinance by reason of the fact that it commenced on 1st October, 1970. 3. Section 3(1) of the Ordinance applies the said Ordinance to tenancies and sub-tenancies existing at the date of commencement of the Ordinance which was 5th June, 1970; and thus the lease in the present case was not within the scope of the Ordinance. 4. The present application is made by a sub-tenant of the Defendant, who prays that the judgment entered against the Defendant on 2nd December, 1972 be set aside, and he (the Applicant) be granted leave to be joined in the action as a Defendant.
5. The Plaintiff opposes the application. 6. The Applicant's solicitor, Mr. Loong, is fully aware of the Common Law principle that termination of a head-lease involves also the termination of all sub-leases held thereunder. 7. He has submitted, however, (1) that the Applicant's position is governed by the provisions of the Rent Increases (Domestic Premises) Control Ordinance (hereinafter referred to for the sake of brevity as "the R. I. Ordinance") and (2) that the R. I. Ordinance by its terms affords protection to sub-tenants against eviction by head landlords. 8. Mr. Loong has been at pains to emphasize that the Applicant has not been guilty of laches in making or pursuing this application. So far as I am aware no-one has or was about to make any suggestion that he was. It is apparent from my record that he applied for Legal Aid with due despatch, and I think I need make no further comment on this point.
9. The basis for this accusation appears to be the affirmed contention of the Applicant that the Defendant himself had vacated the suit premises before the issue of the Plaintiff's writ. 10. On this I would comment firstly that I am not aware whether the Applicant's affirmation in this regard is agreed or disputed. Secondly, however, even if it is established that the Defendant had vacated before the writ was issued, that is a far cry from establishing collusion. 11. On this point I find Mr. Loong's argument very hard to follow. The mere fact that a tenant has moved out does not preclude a landlord from seeking a judgment or order for possession, and unless the landlord is able to lock-up the premises, (which in the present case he cannot, because of the sub-tenant's continued occupancy), he would in my opinion be well-advised as a matter of prudence to obtain a Court order for possession in case the Defendant attempted to re-enter. 12. For this reason, and with great respect, I find no substance whatever in the Applicant's allegation of collusion.
13. In connection with (1), Mr. Lee for the Plaintiff has submitted that as the action between the Plaintiff and the Defendant was not within the scope of the R. I. Ordinance, nothing can at this stage bring it within such scope; and it therefore follows that if the Ordinance does afford any protection to sub-tenants in actions brought under it, that protection is not available to the Applicant in the present case. 14. It must, I think, be conceded that had this been an action in which the Defendant had sued the Applicant for possession, the latter could have invoked the provisions of the R. I. Ordinance, put the former to proof as to the purpose for which he required possession, and himself set up "greater hardship" had the circumstances warranted it. 15. This, however, was not the case. It was a straight-forward claim made outside the provisions of the R. I. Ordinance, and against which the Defendant himself could invoke no statutory protection from any source.
16. With respect to him, in my opinion, this simply cannot be done. 17. I agree with Mr. Lee's submission that the first question is whether or not the action between the Plaintiff and the Defendant was an action within the R. I. Ordinance. It clearly was not, and this being so, no regard can be had to the provisions of the Ordinance at any stage of the proceedings in that action, including the present stage. For the purposes of this case (and the instant application is one made in this case), the R. I. Ordinance might as well not be in the statute book at all.
18. For these reasons, my ruling is that the Applicant cannot invoke any provision of the R. I. Ordinance in the present action. 19. Next, I must make reference to the case of Minet v. Johnson (1890) L.T.R. 507. 20. If I understand him correctly, Mr, Loong relies upon the decision in that case as authority to support his present application, independant completely of any consideration of the R. I. Ordinance. 21. In that case a landlord obtained judgment by default for possession of the suit premises against his tenant. 22. The applicant Hartley was in possession of the premises, and had had no notice of the action. He was evicted, and the landlord entered possession. 23. It was held by the House of Lords that the landlord Minet should pro tem give up possession, that the judgment should be set aside, and Hartley given leave to join in the action as a defendant.
24. One need not, however, look far to see the distinction between Minet v. Johnson and the present case. 25. In the present case, the Applicant is a sub-tenant of the Defendant; there is no doubt about that. 26. In Minet v. Johnson, however, the applicant Hartley was not a sub-tenant of the defendant - indeed the report does not make his status clear. It seems most likely that it was the uncertainty concerning his status which persuaded their Lordships to set the judgment aside and give him leave to defend so that his status could be established by evidence. 27. It is, however, abundantly clear that if Hartley had been a sub-tenant of Johnson, the defendant, the same considerations would not have applied. 28. Lord Esher M.R. stated (last sentence, p.507):
29. Having already ruled that no provisions of the R. I. Ordinance are relevant to the present application, it is no longer necessary for me to deal with Mr. Loong's second submission. 30. I am aware that the position of sub-tenants vis-a-vis head landlords is a matter presently sub-judice in another Court. A judgment from O'Conner, D.J., is due to be delivered on 20th January, 1973. In the light of this, I think it preferable that I should refrain from discussing the subject unnecessarily in this present application. 31. To sum up, I find no ground whatever for setting aside the judgment entered herein on 2nd December, 1972, and granting leave to the Applicant to be joined in the action. 32. The application is accordingly dismissed, with costs against the Applicant, to be taxed on Scale IV unless earlier agreed upon. 33. The Applicant's solicitor and client costs are to be taxed in accordance with the Legal Aid Regulations, on the same scale. 34. In open Court, this 16th January, 1973.
Representation: Maurice Lee for Plaintiff. A. Loong (Yu, Tsang & Loong) for Applicant Kwong Kam Wing. |