Au Wing Lun v. Cheung Chun Wah t/a Welldone Laundry & Drycleaning Co

CACV 95/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 95 OF 2010

(ON APPEAL FROM DCDT 631 OF 2010)

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BETWEEN

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Before: Hon Cheung JA and Hon Chung J in Court

Date of Hearing: 16 September 2010

Date of Judgment: 21 September 2010

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J U D G M E N T

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Hon Cheung JA :

Background

1.The deceased Mr. Au Kong Tim (‘the deceased’) was the landlord of No. 171, Lai Chi Kok Road, Ground Floor, Kowloon (‘the premises’).  The defendant is the tenant of the premises.

2.The deceased died on 7 July 2009.  The plaintiff is one of the two executors of a will of the deceased dated 5 September 2008. 

3.In this action the plaintiff obtained a warrant of distress against the defendant for arrears of rent of one month at $16,000.

4.The defendant applied to discharge the warrant.  At the same time Mr. Au Yuk Lun, the other executor of the will also applied to be joined as a defendant in the present action.  Madam Choy Po Chun who is Mr. Au Yuk Lun’s wife also applied to be joined as a defendant.  She claimed to be the executor of an earlier will of the deceased dated 17 July 2002.

5.H H Judge Yung refused to discharge the warrant of distress and refused the joinder application.  Madame Choy now appeals against the judgment.  Neither the defendant nor Mr. Au Yuk Lun has appealed against the judgment.

Power to distrain

6.The starting point is that the plaintiff as one of the executors of the will of the deceased is entitled before probate to apply for distrain of rent: Hill and Redman’s Law of Landlord and Tenant,para A [2489].  Further, as one of the several joint owners he may distrain for the whole rent due without the need for express authority from the other joint owner: if the other joint owner merely decline to authorise the distress this will not prevent the distress from being legal : Hill and Redman, para A [2481].  In Hong Kong this power is also confirmed by sections 106 and 107 of the Landlord & Tenant (Consolidation) Ordinance (‘the Ordinance’) (Cap. 7) :

‘ 106. The following persons may, either personally or by their attorneys or agents, apply for warrants to distrain for arrears of rent due to the estates represented by them; that is to say—

(a)    executors or administrators of any lessor or landlord or person entitled to receive rents;

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107.    Where a right to distrain accrues to parties jointly interested or together interested in any premises, such as coparceners, joint tenants, tenants in common, executors, administrators, trustees, guardians, partners, or otherwise, proceedings under this Part may be taken by any one of such parties, in his own name and the name or names of those jointly or together interested with him, and the levying of rent so distrained for shall be a complete discharge to the tenant for the rent or for so much thereof as may be so levied; and the party so levying shall be liable to account to the parties having the interest jointly or together with him for all sums so levied:

Provided that if, in any particular case, it appears to the court or to the Registrar to be advisable to do so, the court or the Registrar may require the party so applying to produce a written authority to distrain, signed by one or more of the persons jointly or together interested with him.’

7.On the face of it, the plaintiff satisfied this requirement and he was entitled to apply for distrain.  The fact that Madame Choy is the executor of an earlier will not affect the position because whatever dispute there may be between her and the plaintiff concerning the validity of the wills it cannot be resolved in the present action which is confined to distrain of rent.

Name of the parties

8.The point taken by Mr. Hon on behalf of Madam Choy is that Mr. Au Yuk Lun was not named as one of the plaintiffs in the action contrary to section 107 of the Ordinance.

9.The omission is at the highest only an irregularity since the principle as stated in Hill and Redman is that one of the several owners may distrain without the need for express authority from the other.  In any event the reality is that Mr. Au Yuk Lun was not interested in joining in as a plaintiff because he also challenged the validity of the latest will.  In such a situation one would have thought that if the plaintiff had joined him as a co-plaintiff, he probably would have applied to strike out his name as a co-plaintiff.  The Judge may, of course, allow Mr. Au Yuk Lun to be joined as a defendant for the purpose of completing the procedural requirement on the title of the proceedings, but I really do not see how this would materially affect the case when he declined to do so.  After all, in terms of procedural requirement the Judge was aware of the stand taken by Mr. Au Yuk Lun and further the present action is not a proper venue to resolve the dispute on the wills which should be resolved in the probate action.  In fact, the parties informed this Court two actions have been commenced for such purpose (HCAP 7/2010 and HCAP 9/2010).  In the circumstances I do not see how the Judge could be faulted by refusing to let Mr. Au Yuk Lun join as a defendant when clearly there was no issue to be tried between him and the plaintiff in this action.  If the defendant and Mr. Au Yuk Lun had not challenged the refusal, I do not see how Madame Choy can gainsay it.

10.The Court has been informed that since the filing of the notice of appeal an administrator pendente lite has been appointed by the Court.  The plaintiff has indicated that he will account to the administrator for the rent and expenses in respect of the distrain together with other rent he had received from the defendant.

Conclusion

11.Accordingly the appeal is dismissed with costs to the plaintiff.

Hon Chung J :

12.I agree.

Mr Kevin Hon, instructed by Messrs Gloria Chan & Co., for the 2^nd Intended Party

Plaintiff, in person, present