Tadpole Wong v. A.B.C. Commercial Service

HCMP000768/1946

TENANCY TRIBUNAL

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(Application No. 768 of 1946)

Coram: H.H. Mr. Justice E.H. Williams

Date of Judgment: 31 October 1947.

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DECISION OF A CASE STATED BY THE TRIBUNAL

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1. In this case stated for the opinion of the Court under section 28(5) of the Landlord & Tenant Ordinance, the question for determination is whether the Tribunal was wrong in law in dismissing the application of applicant's solicitor for discovery of the agency account and general accounts of the opponents.

2. The power of the Tribunal in dealing with such an application is contained in section 28(2) (b) of the Ordinance and is as follows:-

"Every Tribunal shall have and may exercise any of the powers rights and privileges following, namely :

to compel the discovery, inspection and production of documents."

3. The application before the Tribunal was on behalf of the applicant for the recovery of the possession of certain premises on the ground that the opponent's had sub-let without his permission. The opponents denied such sub-letting.

4. At the hearing, evidence was given by the applicant that considerable use was being made over a long period of the office desks in the premises by representatives of firms; during the hearing, solicitor for the applicant resolved to base his case on the evidence regarding two of these firms. There was other evidence also to shew that the firms were using the address for their postal purposes. There was no direct evidence of a sub-letting or of payment of any rent by the firms to the opponents.

5. The evidence of the opponents was to the effect that they were merely agents of the firms in question. At the close of the cross-examination of the main witness for opponents, application was made by applicant's solicitor to the Tribunal for an order for discovery of the agency accounts and general accounts of the opponents. Objection was taken to the application by opponents' solicitor on the grounds that these accounts were irrelevant and that the application was oppressive.

6. The Tribunal refused the application, holding that the making of the order was discretionary and that the making of the order was unnecessary in deciding the issue before it.

7. At the hearing before me, solicitor for the applicant conceded that the power of the Tribunal to order discovery was discretional but contended that the agency accounts and general accounts of opponents were relevant to the issue as to whether there had been sub-letting and the Tribunal had therefore not exercised their discretion judicially.

8. Solicitor for the opponents contended that the applicant had made out no prima facie case of sub-letting: that the application for such discovery, being not limited to the agency account between opponents and any particular firm but for all agency accounts and general accounts of opponents, was merely a "fishing" one made in the hope that some evidence might be obtained of use to the applicant: that the power to order discovery was one which should be carefully checked, and not encouraged (Re Wills Trade Marks (1892) 3 Ch. 201).

9. It being agreed on both sides that the power of the Tribunal to order discovery is discretional, ought it to have made it here? It must be remembered that a Tribunal is ordinarily composed of laymen with little knowledge of law (here the Tribunal had as Chairman a lawyer but the point is immaterial). Their function is to decide the facts and they cannot be expected to comprehend the principles which guide a Court of Chancery or other High Court when ordering discovery.

10. I am clearly of the opinion that it would be improper for me to rule that the Tenancy Tribunal should have ordered discovery in this case. The result of so doing would be that in every case where such application was refused, the Tribunal's decision on a matter of discretion is likely to be challenged even though there are no real merits in the application. It would lead to great uncertainty in the minds of members of a Tribunal and also to further delay in hearing tenancy cases - already the delay is too long.

11. Had a more limited application for discovery been made, it is possible that the Tribunal would have made an order for such discovery. It may be very difficult in such cases for a landlord to prove sub-letting of business premises without some access to the books of the tenant. Refusal on the part of the tenant to produce his books, without an order, may be a factor in considering whether there has been a sub-letting. Still, the question whether discovery should be ordered in a case is one of discretion and, here, I cannot hold that the Tribunal did not exercise it judicially. It applied its mind to the question and decided that production of the agency and general accounts was not necessary in the issue before it. The words of Lindley L.J. in Wills Trade Marks supra are relevant: they are to the effect that the tendency to extend the power of the Court to order discovery in case of a totally different character (cases unlike those where documents were in the possession of a trustee and the cestui qui trust knew nothing about the matter) ought to be very carefully checked and certainly not encouraged.

12. I find, therefore, that the Tribunal was right in law.

13. I allow the sum of $100 costs to the opponents.

Representation: