Wong Pak Shu v. or Chun Nam
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CACV000135/1981 Landlord & tenant - claim by landlord for possession for his own use - in deciding whether premises reasonably required judge rightly considered possibility that landlord had at an unknown date sub-let part of his existing residence - wrong to hold that landlord should have called as witnesses members of his family who were living with him and have adduced evidence of income of himself and his family - also wrong not to take into account evidence that proceedings for eviction had been instituted against plaintiff by his landlord in respect of present residence. Date of hearing: 9th December 1981. Peter Cheung (David Y.Y. Fung & Co.) for Appellant Respondent in person.
----------------- Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Date of hearing: 9th December 1981. Date of Judgment: 9th December 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.P. : 1. The Plaintiff sued for possession of a flat. The flat was purchased by him some years ago, at a time when he wished to move into it himself with his family. For reasons which we need not go into he eventually did not move out of his former residence and was left with the suit premises on his hands. He let them to the Defendant. The Defendant has remained in possession ever since. There have been increases in the rent, but the landlord now requires the premises for his own use: he has three sons who have now reached the ages of 25, 21 and 18, and he says that the premises he occupies are not sufficiently large. He has no alternative accommodation to offer to the Defendant, but he contends that he is entitled to possession. 2. The learned Judge decided that the landlord had not made out his allegation that he reasonably required the premises. In reaching that decision he considered four matters. First, he pointed out that the Plaintiff had at some stage apparently sublet part of his first flat to an employee, who lived there with his wife and four children. The Judge pointed out that there was no evidence before him as to the date on which this sub-letting took place. He rightly said that there was a possibility which he had to consider that the Plaintiff had deliberately sublet part of his premises in order to increase the chances of his obtaining an order for possession against the Defendant. The burden was on the Plaintiff to show that he reasonably required the suit premises and that he had not sublet for that purpose. I think that was a matter which he properly could take into consideration. 3. Secondly, he said that he had not heard from any of the Plaintiff's children regarding their living conditions. With respect I do not think there was any obligation on the Plaintiff to call any of his children. He had himself given evidence that he and his wife occupied a bedroom of 120 sq.ft., and that the three adult children occupied a cockloft in that bedroom. It seems to me that it was eminently reasonable that he should want more space than that, and that three adult sons should not, in effect, be sharing a room with their parents. 4. Thirdly, the Judge said he had no idea as to the income of the Plaintiff and members of his family. It would not have been irrelevant if the Plaintiff had sought to show financial hardship. He did not do that, and it seems to me that evidence of his financial position was not relevant to the issue whether he reasonably required the premises. 5. Accordingly, two of the three matters which the Judge considered were in my view wrongly taken into consideration. Then the Judge referred to the fact that the Plaintiff himself had been served with proceedings for possession on the ground that his own landlord required his premises for redevelopment. The Judge thought that this was not relevant to the present case, for he took the view that the Court had to deal with the situation as it existed at the time of the hearing. I entirely agree that he had to consider the matter as it existed at the time of the hearing, but that situation was that the Plaintiff had been served with proceedings and that there was an existing possibility that an order for possession would be made against him. That possibility in my view was a matter which ought to have been taken into consideration, and the learned Judge was in error to say that it was something with which the Court should not be concerned. 6. It follows from what I have said that I think the issue of reasonable requirement has not been properly considered. The learned Judge said that, having reached the conclusion which he had, there was no need for him to consider the Defendant's evidence or go further with the case. In those circumstances I do not think that it is possible for us to dispose finally of the matter. I would therefore allow the appeal and order a re-trial before another judge. I would direct that there be a speedy trial. 7. The Respondent has emphasized that he has nowhere else to go, but that is a premiss upon which these proceedings were launched. I have every sympathy with him, but that is neither here nor there. It remains to be seen whether at the new trial an order for possession will be made against him. Yang, J.A. : 8. I too agree that the appeal should be allowed to the extent and for the reasons indicated by my lord Mr. Justice Huggins. Barker, J.A. : 9. I agree. 9th December 1981. Representation: Peter Cheung (David Y.Y. Fung & Co.) for Appellant Respondent in person. |