Nam Wah Investment Co v. Lo Mon Hung
Read the full judgment text of DCMP 18/1947 on BabelCite. This District Court judgment was delivered on 3 September 1947.
1. This is an appeal from the decision of a Tenancy Tribunal refusing to hear an application for eviction brought under Article 5(1) (a) of the Landlord & Tenant Proclamation. The grounds given by the Tribunal for the decision are expressed as follows : -
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DCMP000018/1947 IN THE SUPREME COURT OF HONG KONG SUMMARY JURISDICTION T.T. APPEAL 18/47 -----------------
Coram: Mr Justice T.J. Gould Date of Judgment: 3 September 1947 ----------------- JUDGMENT ----------------- 1. This is an appeal from the decision of a Tenancy Tribunal refusing to hear an application for eviction brought under Article 5(1) (a) of the Landlord & Tenant Proclamation. The grounds given by the Tribunal for the decision are expressed as follows : -
2. Other applications besides the one under appeal are stated to be affected. 3. Article 5(1) (a) of the Proclamation gave power to any Tenancy Tribunal to order eviction of any person who in the opinion of the Tribunal did not bona fide claim possession under a landlord or his predecessor. The Proclamation was repealed by the Landlord and Tenant Ordinance, 1947, which does not re-enact Article 5(1) (a) of the Proclamation, leaving the landlord in such a case to his action for possession in the Courts. The application now under consideration was issued some six months before the repeal of the Proclamation but did not come on for hearing until after such repeal. 4. No specific reasons were given by the Tribunal for its decision but I was informed by counsel that it relied upon the repealing section (section 38) and upon Sect.5(1) of the Ordinance the first portion of which runs as follows: -
5. In coming to its decision the Tribunal has apparently overlooked or disregarded Sect.27(3) of the Ordinance which is in the following terms : -
6. This subsection, which deals mainly with the procedure to be followed in respect of applications pending at the date of the repeal of the Proclamation, incorporates in specific terms the provisions of Section 12 of the Interpretation Ordinance, 1911, of which it is necessary to quote only the following portion: -
7. Counsel for the appellant relied upon all three of these subsections as showing that the issue of the application during the currency of the Proclamation saved the right of the applicant to have his application heard and determined under the provisions thereof. 8. It is perhaps open to argument whether Subsection (b) standing alone would do anything more, when applied to the circumstances of this case, than show that the application as such remains good. Court has no doubt however that Subsection (c), supported as it is by Subsection (e) once the existence of the "accrued right" has been established, leaves no room for any view but that the appellant is entitled to have his application heard and determined by the Tribunal and to rely upon Article 5(1) (a) of the Proclamation. 9. Although a more right existing at the date of a repealing Statute to take advantage of the provisions of the Statute repealed is not a "right accrued" within the meaning of the usual saving clause (Abbott v. Minister of Lands (1895) A.C.425) where an action has been commenced before the repeal the right has sufficiently accrued to bring it within such a clause. The general rule is given in Maxwell on the Interpretation of Statutes (8th Edn) p.195. "In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new Statute shows a clear intention to vary such rights". This rule is subject to an exception in cases where the changes introduced are changes in procedure only. 10. The right relied upon as having accrued in the present case is the right to have the appellants' claim for possession heard and determined by a Tenancy Tribunal. The Tribunal is vested with such power by the Proclamation and once the appellant gave notice by issuing his application that he required such power to be exercised, his right to have it so exercised accrued within the meaning of Sect.12 of the Interpretation Ordinance. There is a close parallel to the facts of this case to be found in Hamilton Gell v. White 1922 2 KB 422 where by virtue of giving a certain notice a tenant acquired a right to have certain compensation assessed by arbitration. Although the relevant section of the Agricultural Holdings Act 1908 was repealed it was held that "as soon as the tenant had given notice of his intention to claim compensation under s.11 he was entitled to have that claim investigated by an arbitrator." Further authorities in support of the appellant's contention were quoted before me but I consider it unnecessary to particularise these, especially in view of the fact that the solicitor for the respondent took the view (and had previously done so before the Tribunal) that the appellant's contention was correct. 11. The decision of the Tribunal being wrong in law the application is directed to be remitted to the Tribunal to be heard and determined under Article 5(1) (a) of the Proclamation. Although the necessity for the appeal has not been occasioned by any contention of the respondent I feel that the usual rule must be followed and costs must follow the event. They are allowed to the appellant in the sum of $250.
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