Law Chee Sing v. Lau Kwong Kun

Landlord and Tenant – Part IV – Methods of service of Form CR101 – service by post – rebuttable statutory presumption of service – evidence of actual service – calculation of statutory period of not more than 7 months nor less than 6 months before the date of termination – corresponding date rule – no evidence of tenant attempting to avoid or delay service – Held :

1. Where Form CR101 sent by double registered post Tribunal may accept Post Office date stamped Advice of Delivery Card signed by tenant as evidence of actual delivery instead of determining presumed statutory date of delivery in the ordinary course of post;

2. Minimum 6 months notice is calculated by applying the corresponding date rule.  Notice served on 2^nd October 1992 so the 6 months expired on 2^nd April 1993 hence purported termination on 31^st March 1993 defective being 2 days short of 6 months statutory minimum.

3. Tribunal has no power to enlarge time for filing applications for a new tenancy;

4. Application for vacant possession dismissed as current contractual tenancy had not been duly terminated under Part IV because of short service of Form CR101 notice.

Sections 119, 120, 74 Landlord and Tenant (Consolidation) Ordinance, Cap.7; Sections 3, 8, 71 Interpretation and General Clauses Ordinance, Cap.1; Section 25 Landlord and Tenant Act 1954 (UK c.56)

IN THE LANDS TRIBUNAL OF HONG KONG

Application No. 1334 of1993

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TRIBUNAL :  His Honour Judge Cruden, Presiding Officer

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JUDGMENT

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1. The Applicant applied for vacant possession of the domestic premises situated on the 1^st Floor, No. 34 Yin Wa Street, Hong Kong. The tenancy between the parties was created on 1^st August 1986 at a rent of $1,040 per month. It was undisputed that the suit premises were subject to Part IV of the Landlord and Tenant (Consolidation) Ordinance, Cap.7. The parties acted in person. I infer from the particulars of claim, that the applicant founded his claim on the ground that the contractual tenancy had been duly terminated but the respondent had failed to apply to the Lands Tribunal, for a new tenancy within the time limited by the Ordinance. I record that certain of the applicant’s common law rights are for Part IV premises preserved by Section 117(2) of the Ordinance.

2. At the hearing I was satisfied that on 24^th September 1992, the Applicant had signed a properly completed Form CR101 in which he declared that he would not oppose an application by the respondent to the Lands Tribunal for a new tenancy.  The Applicant elected not to serve Form CR101 on the respondent personally but instead chose to use the Post Office to effect service.  I find that the Applicant attempted to effect service by Advice of Delivery Registered Post.  The Applicant produced, as Exhibit A2, the Advice of Delivery Card, issued by the Post Office.

3. On the Applicant’s evidence, including the particulars endorsed on Exhibit A2, I find that Form CR101 mailed on 24^th September 1993 was uplifted from the Post Office by the Respondent on 2^nd October 1993.  This is not an unusual interval between mailing a registered letter and it being received by the addresses.  On occasion a party calls an Inspector from the Post Office to give evidence on the period between mailing and delivery in a particular case.  In other cases Inspectors have indicated while a letter sent by ordinary post may be delivered one to three days later, the delivery of a registered letter often takes from three to twelve days.  The Applicant gave no further evidence as to service nor did he call a Post Office official or other witness.  The Respondent recalled receiving Form CR101 by post but was unable to recollect the date of receipt.  The Applicant’s evidence therefore stood uncontradicted.

3. From the Tribunal’s findings of fact, the legal issue arose, whether Form CR101 served by the Applicant had, pursuant to Section 119(2) of the Ordinance, given the Respondent not more than 7 months nor less than 6 months notice before the date of termination.  This statutory period is inflexible.  When Part IV of the Ordinance was first enacted, the Tribunal expressed its concern that its then existing powers to abridge and enlarge time, did not extend to pre-application notices – Union Carbide Asia Ltd v. The Hong Kong Land Co. Ltd (1982) HKDCLR 75.  Shortly afterwards Section 10 of the Lands Tribunal Ordinance, Cap.17 was amended to give the Tribunal power to enlarge time for pre-application notices in these terms :

“(d) for good cause, enlarge the time, whether or not that time has already expired, fixed by any Ordinance –

(i) for the giving of any notice, either before or after any proceedings have been commenced;”

4. Later the Court of Appeal in Sin Hau Trust, Savings & Commercial Bank Ltd v. Ng Yee May Civil Appeal No. 137 of 1985 and by a majority in Ram Isardas Mahtani v. Wong Kwok Tai Civil Appeal No.156 of 1989, held that the new power in Section 10(2)(d), did not enable the statutory time limits in Section 119, to be enlarged.  Accordingly, those statutory prescribed time limits are mandatory.  The Tribunal has no discretion to assist a party who has failed, for whatever reason, to comply with those time limits.

5. On the evidence, Form CR101 was received by the Respondent on 2^nd October 1992 and purported to terminate the tenancy on 31^st March 1993.  On those dates, the notice received by the Respondent was less than the statutory 6 months.  I record that when the Tribunal delivered its oral reasons, the Applicant interrupted conceding that he was one day late but asking the Tribunal to excuse that short period of only one day.  The Tribunal explained that it has no jurisdiction to excuse any party who may have failed, even by a very short period, to comply with the time limitations imposed by Section 119. The Tribunal, as a matter of law, was therefore unable to take into account any matters of excuse.

6. The calculation of time under the statutory formula used in Section 199 of “not more than 7 nor less than 6 months”, is well settled.  Section 3 of the Interpretation and General Clauses Ordinance, Cap.1 defines “month” as meaning a calendar month. Section 71 sets out the manner in which time under any Ordinance is to be computed.

7. The provisions as to time in Section 119, are in the same terms as the equivalent Section 25 of the English Landlord and Tenant Act 1954, except that the periods in England are not more than twelve nor less than six months.  Woodfalls’ Law of Landlord and Tenant (29^th Edn) paragraph 22.057, commenting on Section 25, states :

“In calculating the period of months, the corresponding date rule is applied. Under this rule, a period of one month beginning on a particular day ends on the day in the following month with the same number as the day on which the period begins, unless there is no such day, in which case the period ends on the last day of the month.  Thus a period of one month beginning on December 29, would end on January 29, but a period of one month beginning on January 30 would end on the last day of February.  So a notice given on April 2, 1984 and specifying October 2, 1984 as the date of termination was a valid notice, because April 2, was exactly six months before October 2, and consequently the notice was not given “less than” six months before the termination date.”

8. In similar circumstances, the corresponding date rule, has for long been applied in England.  The rule has been affirmed by the House of Lords in Dodds v. Walker (1981) 1 WLR 1027 and more recently in Hogg Bullimore & Co v. Co-operative Insurance Society Ltd (1984) 50 P & CR105.

9. As the date of termination in the present case was 31^st March 1993, the last day on which service could have been effected, was 30^th September 1992.  Service effected on 2^nd October 1992 would therefore have been two days late.  Section 119 does not require merely 6 months notice but allows 6 to 7 months notice.  Where an unrepresented Applicant fails to comply with this time limit, the Tribunal usually suggests that any new Form CR101 should be handed personally to the Respondent about six and one-half months before the date of termination, to avoid the risk of short or excessive notice.  If the Applicant prefers instead to continue to delegate service to the Post Office, he is invited to consider posting the Form CR101, nearly 7 months before the date of termination, so that any delays in postal delivery, do not invalidate the notice.

10. In considering the method of service, the Tribunal reminded itself that Section 120 of the Landlord and Tenant (consolidation) Ordinance, incorporates by reference, the provisions of Section 74 which relate to service of notices and other documents under Part II.  Service by post is one of four alternative possible methods by which service may be effected.  I was therefore satisfied that it was open to the Applicant to effect service by post. However, the crucial issue in this application, was not the method of service, but the date of service.  I also reminded myself that where an Applicant attempts to serve a notice by post he can rely on the presumption in Section 8 of the Interpretation and General Clauses Ordinance that, unless the contrary is proven, service of the notice shall be deemed to have been effected at the time the notice would be delivered, in the ordinary course of post.

11. Where notices are served by ordinary post that statutory presumption is often relied upon.  Unless a Respondent has made an accurate record of actual receipt, the presumption is rarely rebutted.  The same position occurs when a notice is sent by registered post.  However, where an Applicant sends a notice, by what is commonly called “double registered post” which includes an Advice of Delivery Card, he is normally able to produce the Card, with the Respondent’s signature thereon together with a Post Office date stamp, evidencing the date of actual delivery.  This is what occurred in this case.  The Tribunal did not therefore have to determine the time the notice, under the presumption, would have been delivered in the ordinary course of post.  Instead, there was direct evidence that the notice was delivered on 2^nd October 1993.

12. There was no evidence before the Tribunal that the Respondent had attempted to avoid or delay service.  The eight day period from Thursday 24^th September to Friday 2^nd October 1992 fell within the period that registered letters commonly take to be delivered.  The burden of the Applicant’s complaint when judgment was delivered, was that the Tribunal should excuse what to him appeared to be only one day’s short service.  The Respondent, while typically for an unrepresented tenant renting a room at $1,040 per month was somewhat bewildered by the complexities of Part IV, candidly admitted that he received Form CR101.  He was merely uncertain as to the date it was delivered.  I was satisfied that he was an honest and reliable witness.

13. There was no evidence from either party as to the date when the Respondent became aware that a registered letter was pending delivery or that he took any steps to delay or evade delivery.  Similarly there was no evidence of any delay on the part of the Post Office.  If there was evidence of any of the latter species of delay that would not have detrimentally affected the respondent’s position.  The Applicant, having elected to use the Post Office, any such delay would simply have been adverse to the Applicant’s position.

14. On these findings I held that notice under Form CR101 was given to the Respondent on 2^nd October 1993.  I further held that the period from 2^nd October 1992 to 31^st March 1993 was less than 6 months and that accordingly the period of notice was inadequate.  The Tribunal having no power to excuse that inadequate period of notice, we obliged to dismiss the application for vacant possession.  The contractual tenancy not having being duly terminated the Respondent was entitled to remain in possession at the current rent.

DATED this 9th day of June 1993.

Applicant in person

Respondent in person