Ho Siu-kau v. Wing Hong Investment Co Ltd

CACV000135/1980

Landlord and tenant - claim for possession on ground of persistent delay in paying rent, causing inconvenience to landlord - repeated letters threatening legal action to recover arrears - proviso to s.53(2) (d) of Landlord and Tenant (Consolidation) Ordinance - no sufficient "warning in writing".

-----------------

Coram: Huggins, Leonard and Cons, JJ.A.

Date of Judgment: 14 November 1980

-----------------

JUDGMENT

-----------------

Huggins, J.A.:

1. We have before us an appeal brought pursuant to the leave of the court against a judgment of His Honour Judge Daniell whereby he ordered delivery up of possession of premises let by the Plaintiff to the Defendant. The claim was brought under s.53(2)(d) of the Landlord and Tenant (Consolidation) Ordinance on the ground of the tenant's persistently delaying payment of rent and thereby causing inconvenience to the landlord.

2. Mr. Bharwaney, on behalf of the appellant tenant, conceded that there had been persistent delay in the payment of rent and he comes to this court on the sole point that there has been no warning issued pursuant to the proviso to this particular paragraph. The proviso reads:

"Provided that no order shall be made under this paragraph unless the court is satisfied that the annoyance, inconvenience or disturbance had continued after a warning in writing had been served by the landlord or principal tenant on the tenant or sub-tenant causing the same;".

The evidence before the judge was that on a number of occasions the tenant was in arrears with his rent and that the landlord then took out distraints in order to recover the arrears. That on other occasions the rent was paid more than a month late. Each time rent was in arrears a letter was sent to the tenant in this form:

"We wish to remind you that your rent for (a particular period) has not been paid yet. Kindly settle within 5 days from the date hereof or else legal action will be taken against you without further notice."

The submission on behalf of the Appellant is that the warning which is required by the proviso is something more than a warning that a particular payment of rent is outstanding - that the warning must indicate that there has been a persistent failure to pay rent causing inconvenience and giving notice of an intention to sue for possession under the statute if this conduct continues.

3. Mr. Bharwaney has referred us to a decision of His Honour Judge Leathlean in Law Hau-man v Ho Chun-chiu, an unreported case in the Kowloon District Court: Action 1980 No. 263. The facts were very similar to those in the present case and, if I may say so with respect to the learned judge, I agree with every word that he said in that judgment. In particular I adopt his conclusion where he says:

"In my judgment a warning for those purposes is insufficient unless it warns in terms that if the tenant or sub-tenant continues to cause unnecessary annoyance, inconvenience or disturbance by persistently failing to pay rent as and when it falls due or as the case may be steps will be taken to recover possession on that ground under the Ordinance."

I also think that this view is supported to some extent by the decision of Hardie, J. in a very different type of case: Ariansen v Bromfield [1957] S.R. (N.S.W.) 24. That was a case which related to the Local Government Act 1919, but the argument turned upon the meaning of the word "warning". At p.31 the learned judge said:

"I have heard a very interesting argument from counsel as to the meaning of 'warning' in this sub-section. The point appears to be one which is not in any way covered or dealt with by authority. It is, I concede, a very open and debatable one. I have come to the conclusion after a consideration of the sub-section as a whole, that the word 'warning', when used in this context, means some intimation or statement to the council member concerned of the consequences of his continuing to commit the act or acts of disorder which he has already committed or is committing. I do not think a warning merely that, if he persisted in the line of conduct regarded by the chairman as disorderly, he would be dealt with or that some action would be taken against him is sufficient."

I agree with Mr. Chan for the landlord that that was dealing with a very different subject matter. Nevertheless, I think that those words are equally applicable to the particular legislation with which we are concerned and I would adopt that passage as being a correct approach to the meaning of the word "warning" in our case. We were urged to adopt the literal interpretation and a common sense approach. I am content to do that. I think that when one considers, as did His Honour Judge Leathlean in the case cited, the purpose of this legislation it is quite clear that something more is required than a demand for rent or even a number of demands for rent with threats of action to recover that particular rent if it is not paid forthwith. I cannot accept that it is legitimate to read the four letters in this case together as being one warning. I do not think that they are in any way a sufficient warning to the tenant that inconvenience is being caused to the landlord and that the landlord will take action to recover possession if that conduct continues. As had Judge Leathlean in the case before him, I have considerable sympathy with the landlord, whose tenant has obviously behaved very badly indeed, but, in my view, the landlord has not brought himself within the provisions of the Ordinance and the learned trial judge was wrong to enter judgment for possession. I would allow the appeal and set aside that order with costs here and below.

Leonard, J.A.:

4. I agree and have nothing to add.

Cons, J.A.:

5. I agree and would only like to add this. While I agree almost entirely with everything My Lord has said, I would, for myself, reserve one very small point, that is the question whether the consequences of continuing with a nuisance must be spelled out in detail, or whether a warning that consequences may ensue would be sufficient. I do not go as far as Mr. Chan would like us and accept that a warning is constituted by an expression of disapproval. "Do not do that again" is in my view not a warning, it is an admonition. The difference, I think, can be clearly illustrated by two notices, one which says: "Thin Ice" and the other which says: "Do Not Skate". "Do Not Skate" is an admonition not to go on the ice. "Thin Ice" implicitly warns of the dangers inherent in so doing. It would, perhaps, be a stronger warning if there were added beneath "Penalty for Skating £25". It is nevertheless still a warning.

6. It may be, and I would put it no higher than this, that a letter which sets out complaint of persistent failure to pay rent and adds that if it is not remedied legal action will be taken might be a sufficient warning within the Ordinance. But having said that I think it would be a wise landlord who follows His Honour Judge Leathlean's injunction to the very end.

14th November 1980.