Man Kam Cheong and Another v. Ebe Cheng

DCCJ009226/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO.9226 OF 1981

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Coram: H.H. Judge D'Almada Remedios

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JUDGMENT

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1. The defendant is the monthly tenant of Flat D, 3rd floor, Lung Plan Mansion, Homuntin, at a rental of $4,000 per month payable to the plaintiffs as landlords.

2. In this action the plaintiffs claim possession for non-payment of rent and for arrears of rent and mesne profits

3. The defendant disputes the plaintiffs' claim. Her case is that the rent of the flat includes the use of a parking space where the building is located which the plaintiffs failed to make available to her. As a consequence, the defendant says that she subsequently managed to rent a car port in the parking compound of the building at a fee of $850 per month and offered payment to the plaintiffs of a sum which represented the balance of rent after deducting the fee paid by her for the parking space which she had been able to obtain. The plaintiffs' claim is, therefore, met with a counterclaim for the amount paid by the defendant arising from the plaintiffs alleged breach and for an indemnity from the plaintiffs for reasonable car parking charges as may be incurred by the defendant so long as she remains a tenant of the premises. A Reply was filed by the plaintiffs denying that the tenancy included the use of any car parking space.

4. It is common ground that the premises are domestic premises. In paragraph 6 of the Particulars of Claim, the plaintiffs relied on section 126 of part V of the Landlord and Tenant (Consolidation) Ordinance in support of their claim. As Part V has no application to the premises,  Counsel for the plaintiffs at the hearing before me applied for leave to delete paragraph 6 and upon such application being granted, Counsel for the defendant applied to strike out the plaintiffs' claim as it discloses no cause of action. I did not accept this contention. Notwithstanding the deletion of paragraph 6 it was clear to me that the plaintiffs are claiming possession for non-payment of rent. There is sufficient disclosure in the particulars of claim to show that neither Parts I, IV or V of the Ordinance applies. Although the plaintiffs have not stated that possession is claimed under section 53(2)(a) of Part II of the Ordinance, it is evident that this is so. As the material facts have been pleaded, there is no obligation on the part of the plaintiffs to plead what is the law that is applicable on which their claim is based. That is something which a court takes judicial notice of. In any event it is accepted that Part II of the Ordinance applies.

5. Before evidence was called I enquired of counsel for the plaintiffs whether any notice was lodged with or endorsed by the Commissioner of Rating and Valuation as required by section 54 of Part II. The reply was in the negative. As it appears that under section 53(2)(a) of Part II I can only make an order for possession if I am satisfied that any rent 'lawfully due' had not been paid, I asked counsel for the plaintiffs whether he wished to consider if the plaintiffs' claim for possession and arrears of rent is actionable when regard is had to section 54(3) which prior to the amendment in December 1981 stated that:

"Rent shall not be recoverable unless the Landlord is in possession of a notice endorsed by the commissioner under sub-section (2). "

and which after the amendment in December 1981 reads as follows:

"A landlord shall not be entitled to maintain an action to recover rent stated in the notice mentioned in sub-section (2) unless the notice is endorsed by the Commissioner under that sub-section."

6. I granted a short adjournment for this point to be considered. When hearing was resumed, Counsel for the plaintiffs applied for the case to be adjourned. This was strenuously opposed by counsel for the defendant. Counsel for the plaintiffs then elected to proceed with the hearing.

7. After three hearing days, this action was settled on terms, inter alia, that each party will bear an equal share of the fees to be incurred for the car parking space. Upon this settlement being reached, I was invited by counsel for both parties to express my views on whether the plaintiffs have a legally enforceable right to recover payment of rent as it is not denied that Section 54 of the Landlord and Tenant (Consolidation) Ordinance would apply to the tenancy which is the subject matter of these proceedings and generally what recourse a landlord would have if the parties (as in this case) dial not sign such notice as is required.

8. If this case had not been settled then whichever way my decision may have gone on the factual issue of whether the tenancy included a car parking space, the defendant, in the absence of an appeal, would not have any valid excuse for not now signing the requisite notice for the commissioner if called upon to do so. In a case where section 54 is applicable, it enjoins both the landlord and tenant to sign and cause the notice to be lodged with the Commissioner. It is a statutory obligation imposed on the parties. It is right that can be enforced. If a tenant neglects or declines to do so without valid reason, presumably the economical way to go about it from the point of view of time and expense would be by Originating Summons in the High Court (or in the District court if the annual or rateable value does not exceed $15,000) for an order directing the tenant to sign the notice in the specified form and far an order that upon the tenant's neglect to do so the notice be signed by a person nominated by the court for that purpose. (See Section 22 of the Supreme court Ordinance and the ancillary jurisdiction of the District comet as provided by section 48 of the District court Ordinance).  Such a Summons to which I have referred would be appropriate if there is unlikely to be any substantial dispute of fact: (Order 5 Rule 4 of the Rules of the Supreme Court). The matter can then be disposed of in chambers. I mention this as one can reasonably anticipate cases where, by oversight or ingnorance such a notice has not been signed which, unfortunately, would leave the landlord at the mercy of the tenant. I am not aware of any decision on the effect of section 54(3) of the Landlord and Tenant (consolidation) Ordinance. If I am right in my view that payment of rent is not enforceable in the absence of such notice in a case where such a notice is required, it would seem - and I say it merely by way of obiter - that a landlord cannot even distrain for rent owing. For this reason and at the request of counsel for the parties I have taken the liberty of suggesting a course which would not be time consuming or expensive for a landlord to put matters right.

9. In the case before me, I express no views on whether the plaintiffs can enforce payment of rent hereafter due without the requisite notice as it is an open question whether the parties can, by agreement or settlement, circumvent section 54 by providing otherwise.

Representation:

Mr. S. Chow instructed by Messrs. S.C. Mok & Co. for plaintiffs.

Mr. Lam of Messrs Deacons for defendant.