Kwok Wai San v. Chung Kit Ching and Others

CACV000121/1983

Landlord and tenant - claim for possession - occupation sought for members of landlord's family - part of suit premises sub-let - both tenant and sub-tenant joined as defendants - claim against tenant dismissed on ground that whole of his premises not reasonably required - possession ordered against sub-tenant of part sub-let - appeal by sub-tenant - such order unenforceable by landlord because upon dismissal of claim against tenant he remained in lawful possession of entire suit premises - new trial ordered - where an order is made by virtue of s.53(4)(a) of Landlord and Tenant (Consolidation) Ordinance for possession of part of suit premises, the agreement of the defendant to continue in possession of the remainder must be recorded.

BETWEEN

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Coram: Sir Alan Huggins, V.-P ., Barker, J .A. & Kempster, J

Date: 11th Novemeber, 1983

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal from the Victoria Lands Tribunal, which made an order for possession of part of premises claimed by the Landlord. There were two applications before the Lands Tribunal. The first related to the second floor of a building and was brought against the principal tenant and two sub-tenants on the ground that the Landlord required the premises for himself and a sister over the age of 18. There was also an aunt who would live in the premises but I think she is not within the section. The third floor of the premises was required by the Applicant for his mother.

2. There is no note in the notes of proceedings to this effect, but the Notice of Appeal and the formal Judgment both indicate that an order for consolidation of those applications was made on 26th July 1983. They were in fact heard together. A number of technical points could have arisen. For example, the original Respondent has died. He is the Respondent in the case relating to the 3rd floor.  We are told that his daughter was substituted as a Respondent but that does not appear from the Notice of Application.  The judge held that the Landlord had failed to prove a reasonable requirement for all except part of the 2nd floor.  He thought it would not be manifestly unjust or inequitable to evict the two sub-tenants but he was not satisfied that the Landlord reasonably required the rest of the premises and he said that, if he had so found, he would still have thought it manifestly unjust or inequitable to make an order for possession. The important part of his judgment was that he dismissed the claim against the principal tenant.

3. The court of its own motion raised a technical objection to this appeal. It seemed to us that the judge's order contained a fundamental inconsistency: although there is power in s.53(4)(a) to make an order for possession of part of premises - always provided that the Tenant is willing to remain in possession of the remainder, there is no power to make it an order against a sub-tenant without making an order against a principal tenant. The effect of the judge's order was to leave the principal tenant still holding a tenancy of the whole floor and we took the view that it would have been impossible lawfully to execute the order against the sub-tenants.

4. In those circumstances we think that the only course open to us is to allow this appeal, set aside the order which was made and to order a re-trial. Although what I have just said related specifically to only one of the applications, there does appear to have been an order for consolidation and it is clear that this matter ought to be dealt with as a whole.  Therefore, there should be a re-trial of both of the consolidated applications.

5. We have been asked to say something about the proper construction of s.53(4)(a). We have the advantage of having counsel on only one side in this appeal. Therefore we do not feel disposed to express a full opinion on the matter. All that we are prepared to say is that we think that, where an order is made in respect of part of premises under this sub-section, the presiding officer ought to make a note to the effect, if it be true, that the tenant or sub-tenant is willing to remain in possession on the terms indicated in the sub-section. In the present case no such note appears on the record, because the claim against the Tenant was dismissed.

6. Accordingly we allow the appeal, set aside the order made and direct that there shall be a new trial of the consolidated applications at an early fixed date. We think that the costs of this appeal should be costs in the cause.