Ng Kwok Hing v. Tiah Toh Ming

DCDT000970/1983

Ruled "rent" does not include "management fees" for the purpose of distress for rent under Part III of Landlord and Tenant (Consolidation) Ordinance.

"Rent" not defined in the Ordinance nor any other relevant ordinances contra English statutes.

Alliance Property Company, Limited v. Shaffer (1948) 2 K. B. 464 distinguished. Shaffer decided on the express provision under proviso (i) to section 12 (ii) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 s.12, sub-s. I(a) as amended by the Rent and Mortgage Interest Restrictions Act, 1939, s. 3, sub-s. I, and sch. I.

BONI JUDICIS EST DICERE, NON JUS DARE applied.

History of distress for rent in England considered.

LI Tze-cho v. Ching Hua 10 (H. K.) Ltd. (1961) H. K. L. R.182 at 196 distinguished. Landlord may include management fees for distress for rent if authorised by resolution by Owners Incorporation to do so - by section 24 of Multi-storey Buildings (Owners Incorporated) Ordinance, Cap. 344, distress under Part III of Cap. 7 applicable to contributions (management fees) payable by tenants or occupiers under sections 22 and 23 of Cap. 344.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

DISTRAINT NO. 970. OF 1983

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BETWEEN

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Date: 27th October, 1983

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RULING

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1. This is an ex-parte application under section 81 of Landlord and Tenant (Consolidation) Ordinance of distress for rent. Under Part III of the ordinance, such application is usually ex-parte supported by an affidavit in Form I in the Fifth Schedule to the Ordinance.

2. The affirmation in support discloses that by clause 5(b) of the Tenancy Agreement dated 1st July 1981 between the parties as Landlord and Tenant, the Defendant shall pay, inter alia, the management fees in respect of the premises under the tenancy.

3. The short issue is whether rent includes management fees for the purpose of distress for rent.

4. In Alliance Property Company, Limited v. Shaffer (1948) 2 K. B. 464, it was held that it did. However, it was decided on the effect of the express provision under proviso (i) to section 12 (ii) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 s.12, sub-s. I(a) as amended by the Rent and Mortgage Interest Restrictions Act, 1939, s. 3 sub-s. I, and sch. I.

5. Section 12, sub-s.2, proviso (i). "This Act shall not, save as otherwise expressly provided, apply to a dwelling-house bona fide let at a rent which includes payments in respect of board, attendance, or use of furniture."

6. There is no provision similar to the above proviso in Part III of Landlord and Tenant (Consolidation) Ordinance. Section 77 confers 1 jurisdiction "to issue warrants of distress in arrears of rent in all cases " but makes no provision to include management fees or similar expenses. There is no given definition for rent in the relevant Hong Kong statute. Therefore, the common law has to be looked into.

7. The subject of distress is extremely intricate. It is an archaic remedy. In essence it is the ancient feudal remedy by which a lord could coerce his tenant into rendering his services but, as such, it has already fallen into disuse - Abingdon R. D. C. v. O'Gorman (1968) 2 Q.B. 811 at 819, per Lord Denning M. R.

8. True, there is nothing to prevent rent being reserved in kind - Co. Litt - 142b, e.g. bottles of wine - Pitcher v. Tovey (1692) 4 Mod. 71, or in services like the doing of team work - Duke of Marlborough v. Osborn (1864) 5 B. & S. 67, or cleaning the parish church - Doe d. Edney v. Benham (1845) 7 Q.B. 976.

9. But in Barnes v. Barratt (1970)2 Q.B., 657, it was held that services were not part and parcel of "rent" for the purposes of the Rent Acts. The reasoning behind the Jurisdiction was that "rent" in the Rent Acts denoted rent in money only and that many of the normal incidents of a tenancy were lacking, such as fixed amount of rent and the assignable estates. The management fees i.e. contribution by individual owner or occupier to an Owner Incorporated for meeting management expenses are not estates in the sense of being an interest in the flat or the building let alone assignability. Notwithstanding that it is the contribution for the maintenance of the building (the land), it is not an interest on the land at common law.  It is for the services rendered to the individual owner or occupier or tenant for maintaining the building for the benefit of all occupiers - common good and the relationship amongst those concerned and the rights and liabilities that entail are regulated by the Multi-storey Buildings (Owners Incorporated) Ordinance, Cap. 344. Had the Legislature intended to include contributions as part of rent for distraint of rent purpose without exception, it would have expressly so legislated, and section 24 of Cap. 344 to which I shall allude would have been directly co-related to Part III of Cap. 7 on distress for rent by landlord. BONI JUDICIS EST DICERS, NON JUS DARE.

10. In the absence of express provision to include management fees in our laws and in view of Barnes, I am driven to the conclusion that in Hong Kong rent does not include management fees for the purpose of distress for rent.

11. The inclusion of management fees as the part of the rent in a lease or in a tenancy agreement, in my opinion, cannot for distress purpose be treated as rent because the matter goes to the very root of jurisdiction which the Legislature confine to distress for rent and for no more than "rent". Incidentally, LI Tze-cho v Ching Hua 10 (H. K.) Ltd. (1961) H. K. L. R. 182 at 196 has no application to this instant case of distress for rent as not only that case was decided on the repealed Landlord and Tenant Ordinance, 1947 but also in entirely a different context i.e. inter alia in the context of standard rent itself.

12. There is one exception under Cap. 344. By virtue of section 24 thereof, distress for sent under Part III of Cap. 7 applies to contributions payable under sections 22 and 23 of Cap. 344 which sections render individual owners and occupiers liable to pay contributions for the management of the building to the fund held by the management committee for the body corporate. However, the landlord or the person seeking to distress for contributions needs to be authorized by the Owners Incorporated usually by resolution so to do.

13. For the above reasons, I direct that the application and the supporting affirmation be amended to exclude management fees for this distress for rent or, in the alternative, the landlord be authorized by resolution by the Owners Incorporation concerned to pursue the matter of management fees.