Kung Chun v. Ngai Ching-yung
Read the full judgment text of HCSA 23/1977 on BabelCite. This High Court CFI judgment.
1. The Appellant took from the Respondent a tenancy of a domestic flat for a fixed term of three years. It was a term of the agreement that the landlord would be liable for the rates. During the term the rates were increased and the landlord sought to pass on the increase to the tenant in the form of an increase of rent pursuant to s. 56 of the Landlord and Tenant (Consolidation) Ordinance. She served the prescribed notice. The tenant declined to pay the increase and the landlord lodged a claim
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HCSA000023/1977
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----------------- Coram: Huggins and Pickering, JJ.A. and McMullin, J. Date of Judgment: 6th January 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The Appellant took from the Respondent a tenancy of a domestic flat for a fixed term of three years. It was a term of the agreement that the landlord would be liable for the rates. During the term the rates were increased and the landlord sought to pass on the increase to the tenant in the form of an increase of rent pursuant to s. 56 of the Landlord and Tenant (Consolidation) Ordinance. She served the prescribed notice. The tenant declined to pay the increase and the landlord lodged a claim in the Small Claims Tribunal. The tenant failed to appear and on proof of the foregoing facts judgment was entered for the landlord. No evidence had been adduced to prove that the premises were in a building which was not a "post war building": see s. 50(3). The tenant now appeals. 2. At first sight the judgment might appear to be correct, but unfortunately the learned adjudicator was not aware of the provisions of s. 74A of the Ordinance. That section, which is in the nature of a trap for the unwary, reads in part:
Had the tenancy in this case been a periodic tenancy the decision of the tribunal would have been right. The learned adjudicator obviously took great pains in trying the case and it is unfortunate that s. 74A was not drawn to her attention. The fact remains that, as the tenancy was for a fixed term, s. 56 did not apply and there was no way in which the landlord could pass on the increase in rates otherwise than by agreement. I will understand it if the landlord has difficulty in appreciating the justice of her being unable to pass on the increase when a landlord who had, in otherwise identical circumstances, granted a tenancy from month to month or from year to year could do so, but that is what the statute says. 3. I would allow the appeal and enter judgment dismissing the claim. Pickering, J.A.: 4. I concur. McMullin, J.: 5. I concur. 6th January 1978. Representation: |