Leung Chun Wai t/a Hop Shing v. Lo San Kiu

LDLA001437/1985

Landlord and Tenant - Part V - Application for notice of termination not to take effect - whether a tenant after the disposal of a first application may make a second or subsequent application - Held : 1. Part V grants to certain former Part I tenants, limited relief to remain in possession beyond the period specified by a notice of termination and so for the tenant cushions the effect of having recently being excluded from the far more protective provisions of Part I; 2.  A tenant may apply only once pursuant to Section 124B for the notice of termination not to take effect. - Sections 124A, 124B Landlord and Tenant (Consolidation) Ordinance, Cap. 7.

IN THE LANDS TRIBUNAL OF HONG KONG

Application No. L. T. 1437 of 1985

TRIBUNAL: His Honour Judge Cruden, Presiding Officer.

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ORAL JUDGMENT

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1. In these proceedings I am satisfied that, on the balance of probabilities, the suit premises have partly been used for human habitation within the meaning of Section 124A(1)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, and that the species or type of human habitation is not one of the excluded types of habitation referred to in Section 124A(3)(a) (b) or (c). It was submitted by the respondent that the status of the applicant's mother was merely that of a caretaker. If that was so, the Applicant was not entitled to any protection. I am satisfied as a fact that the occupies the suit premises as a place of residence for herself personally. Her daughter-in-law resides in the suit premises from time to time. I find as a fact that, apart from human habitation, the mother also discharges other duties in assisting her son in the conduct of business. While those duties were of a minimal nature, they include not merely caretaking but also related to other functions in respect of the user of premises.

2. The second issue was whether an Applicant may apply to the Lands Tribunal twice under Section 124B. I record that the applicant had already made such an application in L. T. Application No. 591 of 1985 and was successful, pursuant to that Application, in obtaining an order on 25th July 1985 which specified that the period in which no notice should be issued, was 6 months from February 1985. If the tenant has been granted such an extension, may the same tenant make a subsequent application and be granted the same relief under the sub-section ?

3. I accept the Applicant Solicitor's submission that, in terms of Section 124B, the Notice of Termination referred to therein, in so far as a subsequent notice authorised by the Section to be served at a later time is concerned, is a separate notice and not an extension of the prior notice.

4. I have considered the whole of Section 124B. I accept that it does not expressly prohibit a second application being brought. However, when I consider the Section in the context of the whole Ordinance and the apparent legislative purpose for giving this limited relief to certain former Part I tenants who comply with Section 124A, I am satisfied that the intention of these provisions is to allow the tenant to apply for an extension only once pursuant to Section 124B. Part V merely gives certain former Part I tenants, limited relief and cushions the immediate effect of their recent exclusion from the far more protective provisions of Part I. If a tenant could make successive applications the Section would become an absurdity.

5. In reality his tenure could end up being closer to the protection of Part I, rather than the generally unprotected, except for statutory minimum notice requirements, position of part V tenants.

when I consider the express terms of Section 124B, against the background of the legislative intent, there is nothing in the Section, which would lead me to the contrary conclusion. I remind myself that the purpose of the Section is to give tenants greater protection and it is proper that the Section be interpreted in that spirit. Having done so I conclude that the tenant may only apply under Section 124B once.

6. It follows from my having held as matter of law that a tenant may only apply once that here, as a matter of fact, since there was a prior application in relation to the same premises by the same tenant, the Lands Tribunal has no jurisdiction to consider a subsequent application. As the instant application is a subsequent application. I am obliged to conclude that the Lands Tribunal has no jurisdiction to entertain the present application. Accordingly, the application is dismissed. I am obliged to the clear and helpful submissions of both Counsel. Lamentably this is again another difficulty which has arisen under this Ordinance which could have been avoided if it were drafted in clearer terms.

Dated this 17th day of January 1986.

Representation:

Mr. Geoffrey Hui of Della Chan & Geoffrey Hui solicitors for applicant

Mr. Denis Yu instructed by Wong, Hui & Souza solicitor for respondent

Cases cited by counsel but not referred to in oral judgment