Chiu Kan-sui v. Hong Kong Polytechnic

CACV000130/1981

Landlord & Tenant - Plaintiff claiming flat for use of son over age of 18 who was living with him - reasonableness of requirement - following factors not material:

Date of hearing: 7th December 1981.

R. Wei, Q.C. and W. Lau (Deacons) for Appellant

H.L. Wong (Johnson, Stokes & Master) for Respondent

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of hearing: 7th December 1981.

Date of Judgment: 7th December 1981.

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This is an appeal against a decision of a District Judge whereby a landlord was refused an order for possession where he had claimed that he required the premises for the occupation of his son. It is common ground that the only issue is one of "reasonable requirement, and the test which is accepted is that which has been adopted generally in the United Kingdom and was laid down by Sheriff Blades, K.C. in Aitken v Shaw 1933, S.L.T. 21, where it was said that the reasonableness of a landlord's requirement was a different matter from the question whether it was reasonable to make an order: it was a matter not of necessity but something less than that: it was something more than desire.

2. The learned Judge in his judgment set out ten views, as he described them, which he said justified the conclusion that the claim of the landlord was not reasonable. In my view, of those ten views seven are matters which were totally irrelevant. The learned Judge said that, if the Plaintiff felt that a flat of the standard of the suit premises was suitable for the son's status, he and his wife could have occupied another flat which the Plaintiff's wife owned and which she had transferred to a daughter the month before, and that the son could have had the use of the premises in which the landlord was living. The landlord was living in premises which were owned by a company for which he worked, and it seems to me incredible that it should be suggested that the landlord should move out of that type of residence in order to let a son live in it. The matter goes even further when it is suggested by the learned Judge that the son could have been made a director of the company in order to legalise the situation. I say no more about that: I think this is totally irrelevant and totally absurd.

3. The second matter suggested was that the sudden transfer of the wife's flat to the daughter gives rise to a suspicion that the transaction was carried out to smooth away obstacles to the claim in the present action. For my part I cannot understand why there should be any such suspicion, but, even if there is, I cannot see that it is relevant: the wife was at liberty to deal with her property as she saw fit, and I can see no reason why she should be prevented from making a present of her flat to another child.

4. Next, it is said there was no evidence that there was any quarrel or that there were any unpleasant incidents between the Plaintiff and his wife on the one hand and the son and the daughter-in-law on the other so as to make the young couple want to quit their present accommodation in a hurry. This seems to me to be a complete misunderstanding of the evidence. The son had said that he could not live with his parents permanently for various reasons, including difference of temperament, character, hobbies, tastes in food and so on. He specifically mentioned that their liking as to entertainment was different - that the parents liked to watch T.V. and that he and his wife liked to listen to music. As I said in argument, disputes over the use of a television set are a common ground for conflict in households. That there was no immediate need for the son to move is neither here nor there. The fact of the matter is that they did not wish to live together and it seems to me perfectly reasonable that they should not wish to live together.

5. Next it was said there is no proof that the living conditions of the Plaintiff's present quarters are so bad or crammed or uncomfortable that the son and his wife have to move out at any cost. Now I can see no clearer indication that the learned Judge was applying the wrong test than that: he was suggesting that there was no absolute necessity for them to move out, which is the very test which Sheriff Blades rejected.

6. Then the learned Judge said that the son's claim that he wished to relive his parent's anxiety on his medical visits to patients after office hours, by living apart from them in the suit premises, is difficult to accept, "considering the fact that he is a grown-up professional man". I should have said that the son is a medical practitioner who is commonly summoned by telephone at night to visit patients. I think it is clear that what the doctor was saying was that the parents did not like being disturbed, that they did not like people going in and out of their premises at night. That seems to me a perfectly reasonable attitude. They were not treating this grown-up professional man as a small child who had to be sat up for: what they sat up for was to see that their premises were safely locked when he came back.

7. Next the Judge said that the Plaintiff, a millionaire, is willing and ready with his wealth to assist the son financially. That seems to me again to be totally irrelevant. The only possible reason for mentioning the financial position of the Plaintiff was that he was in a position to buy or rent other accommodation for the son - other than the premises which he owned - but I can see no reason at all why it was unreasonable for the Plaintiff to wish to let the son have a flat which he already owned and which was in all respects suitable for the son's use.

8. Finally, the Judge said the son and his wife are in receipt of a total monthly income of $15,000.00, which is by local standards sufficient to enable them to hire a fairly good flat. The fact that they were in a financial position to take other premises was totally irrelevant to the question whether or not it was reasonable for them to wish to have the suit premises. Why should they look elsewhere if they had a flat to hand? The Judge went on: In addition, they are in Hong Kong where the supply of housing is scarce in relation to demand and cannot therefore expect to enjoy the same spaciousness in accommodation as in Australia. The son and daughter-in-law had been living in Australia in a house which had almost exactly the same area as this flat, although it had in addition some land and a garage. The fact that people probably live better in Australia, or in more comfortable surroundings in Australia, than they do in Hong Kong is totally irrelevant where the Plaintiff is claiming possession of a flat which is clearly suited to the needs of the son for whom he is claiming. The fact that he might in other circumstances expect to live in a smaller flat is again neither here nor there.

9. I would be very slow in the normal case to interfere with the finding of a judge on the question of reasonableness, but where, as here, seven out of the ten reasons he gives for saying that the demand to claim is not reasonable are clearly based on irrelevant matters it seems to me that we ought to interfere. For my part I can see no possible ground for saying that the claim was unreasonable, and, it having been conceded that once there was a reasonable requirement an order for possession should be made, I would allow this appeal and make an order for possession, granting a stay for a reasonable period for the tenant to move out.

Yang, J.A. :

10. I agree. I have but one observation to make. The Plaintiff is the managing director of Francois d'Hardivilliers Ltd., a company with a paid-up capital of $1 million, of which the Plaintiff holds 85% and his wife 2-1/2%. He occupies the flat belonging to the company and for which he pays no rent. I want to refer to the learned trial judge's View 3 in his judgment. I must confess that I am absolutely horrified by the suggestion and the implication of the suggestion in View 3, which reads:

"If the plaintiff felt that a flat of the standard of the suit premises is suitable for Jimmy's status, he and his wife could have occupied the Chi Fu Garden flat, before the transfer last month, and let Jimmy have the use of his staff quarters instead. Perhaps this process could have entailed the appointment of Jimmy as the company's director, which would be an easy matter for plaintiff to manoeuvre on account of his dominant position within the company.

I only hope that this was nothing more than a temporary slip of the mind on the part of the trial judge and does not represent a carefully considered opinion.

Barker, J.A. :

11. I agree and there is nothing I can usefully add.

7th December 1981.

Representation:

R. Wei, Q.C. and W. Lau (Deacons) for Appellant

H.L. Wong (Johnson, Stokes & Master) for Respondent