Luk Chor Sang and Another v. Kwok Lui Kit
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CACV000140/1981 Landlord & tenant - claim for possession - premises reasonably required by landlord as residence for himself - whether manifestly unjust or inequitable to make order - insufficient evidence to establish that any serious financial hardship would result to tenant - no evidence that a traditional Chinese family would be broken up - fact that suit premises provide more space than landlord actually needs relevant to reasonableness of his requirement but not to manifest unreasonableness of order.
BETWEEN
---------- Coram: Huggins, V.-P., Yang & Barker, JJ.A. Dates of hearing: 22 December 1981 and 8 January 1982 ------------------------ J U D G M E N T ------------------------ Sir Alan Huggins, V.-P. : 1. The Plaintiffs are husband and wife. They own a flat which is in the possession of the Defendant. The Defendant was granted a tenancy for 3 years, which expired on 3rd February 1980. The Plaintiffs' Statement of Claim alleged that he then failed to delive deliver vacant possession. If that allegation implies that the Defendant neglected to do something which he was obliged to do, it was unjustified: by virtue of the provisions of the Landlord and Tenant (Consolidation) Ordinance the tenancy continued. The Plaintiffs claim possession for use for themselves, their two children... and an aunt. In truth the use was as a residence for themselves only and the others were to live with them. 2. The judge found that the Plaintiffs' requirement of the premises was reasonable and that decision is not challenged. He then found that an order for possession would be manifestly unjust and inequitable, and he dismissed the action. It is his conclusion on the second limb of the claim which is the subject of this appeal. 3. When the case originally came before this court the respondent Defendant appeared in person and it was not until a very late stage that he informed us that he had made an application for legal aid. Subsequently a legal aid certificate was granted and we are indebted to Mr. Yeung for the assistance which he has given to us at the resumed hearing. 4. The first objection taken by the Appellant is that the judge applied the test of "greater hardship" and not the correct test of manifestly unjust and inequitable. At page 27 of the record the judge said:
That passage is capable of the interpretation put upon it by the Appellant, but I would be slow to conclude that the judge was in error, and in the context he was, I am satisfied, applying the right test. At page 24 he correctly stated that he had to decide first the reasonableness of the Plaintiffs' requirement and secondly whether the order for possession would be thoroughly unjust. At page 26 he began to consider the evidence relating to this second question. In the passage complained of the words "this aspect of the case" clearly referred to the second question. What, then, was the matter that was evenly balanced? I believe it was whether the Defendant had discharged the burden of proving that the order for possession would be manifestly unjust or inequitable. At page 28 he concluded that it was. In my judgment the first point taken on the appeal fails. 5. The judge found great difficulty in deciding whether it would be manifestly unjust or inequitable to make an order for possession and he concluded that the Defendant had just established that it would be. It is said that he wrongly omitted to have regard to the income of a brother-in-law of the Defendant, who was one of the persons who would be evicted if an order were made. The brother-in-law and his wife do not have a fixed income but sometimes contribute $300 and sometimes more - up to $900 a month. It is common ground that the financial position of the tenant is material to the issue under discussion and that the judge made no finding as to the total earnings of the Defendant and his family. What he said was that all members put into a pool whatever they can afford and that there is no suggestion that they are being extravagant in their use of what remains after making their contributions to the family pool. He found that if the Defendant were evicted the family would have to find an additional $2,000 - $2,300 a month for rent, and his conclusion was that that, together with expenses for food and other necessities of life, would utilize "virtually the whole of their limited resources." Without detailed figures of the savings and earnings of everyone, including the brother-in-law, and of their outgoings other than contributions to the pool the conclusion reached by the judge could only be one of general impression. It was conceded that there was no evidence whether the other members of the family had any savings, but, even assuming that they had none, I think that the Defendant failed to adduce sufficient evidence to establish that any serious financial hardship would result from the making of an order. 6. I should mention that the judge referred to the facts that the Defendant himself had a limited earning capacity as a result of an industrial accident and that a brother suffered from asthma. I do not think it was suggested that these misfortunes were likely in the future to affect the earning capacity of either man more than they had in the past. 7. There was another factor taken into account by the judge which, whilst not irrelevant in cases of this kind, was said not to be supported by the evidence in the present case, namely that there was a prospect that an order for possession would result in the breaking up of a traditional Chinese family. Mr. Yeung fairly conceded that there was no evidence that such a result was probable, but he submitted that what the judge was in truth saying was that there was a possibility which could properly be inferred from the rest of the evidence. The difficulty is that the judge expressly indicated that he was attaching substantial weight to this factor, and it seems to me that there was nothing in the evidence justifying the inference that, if there was a possibility of breaking up the family, that possibility was other than nebulous, so that to regard it as a factor of substantial weight could not be right. 8. In the course of the argument it was suggested that the financial position of the Plaintiffs was also relevant to the issue whether it would be manifestly unjust or inequitable to make an order and that on the evidence they were in a position to afford suitable alternative accommodation. I do not think the judge suggested any such thing and, whilst I do not say that evidence of financial hardship to the landlord might not be relevant to counter evidence of financial hardship to the tenant, I cannot see how the financial prosperity of the landlord can ever be relevant to this issue. He may have unlimited resources but, ex hypothesi, he also has a prima facie right to possession of his own property, and as at present advised I do not see that his wealth could increase the hardship on the tenant. The court is not concerned to ascertain where lies the greater hardship. 9. Counsel for the Appellant pointed to the judge's statement that the eviction of the Defendant and his family would be solely to enable the Plaintiffs to enjoy more comfortable living conditions and suggested that that was an unfair description of the Plaintiffs' requirements, for they are admittedly living in a single room, 90 sq.ft. in area, with a daughter aged 15 and a son aged 7, while an aunt sleeps in the living room. The other two rooms in the flat are sublet and not available to the Plaintiffs. It is, however, material that the Plaintiffs object to their daughter's associating with some of the acquaintances of the sub-tenants whom they consider to have an undesirable influence on the girl. It is, counsel submits, not merely a matter of comfort that has driven the Plaintiffs to sue for possession. Mr. Yeung argued that when he used the words comfortable the judge was contemplating something more than mere physical comfort, and I would be prepared to give him the benefit of the doubt as to that. Therefore, when we come to apply our own minds to the issue of manifest injustice - as we must do unless we send the case back for retrial - we should ourselves have regard to all the reasons given by the Plaintiffs for requiring the premises.
Mr. Yeung conceded that he could not support that, and I think he was right to do so. If a landlord seeks more space than he actually needs, that is clearly something which is material to the question whether he reasonably requires the premises, but once that has been decided in his favour it cannot be held against him on the issue of manifest injustice. 10. In my view it is unnecessary to order a re-trial. It was for the tenant to adduce evidence sufficient to discharge the burden of proof which was upon him. Even having regard to factors which, in my judgment, were not relevant the judge concluded that the burden was only just discharged. Deeply as I sympathize with the tenant I am satisfied that he failed to establish that it would be manifestly unjust or inequitable to make an order for possession. I would therefore allow the appeal and enter judgment for the Plaintiffs. Yang, J.A. : 11. I too would allow the appeal and enter judgment for the Plaintiffs. However, I venture to differ from the learned Vice President on one point and one point only. With great deference and after much hesitation, I have come to the view that perhaps it is taking the case a little too far to suggest that the financial prosperity of the landlord can never be relevant to the issue as to whether the making of an order for possession is manifestly unjust and inequitable. I would prefer to leave the question open. Whilst it is true that in most cases the wealth of the landlord may well be relevant under the heading of reasonableness and not under the heading of manifest injustice, I feel unable to rule out the possibility, albeit in rare cases, that the landlord's wealth may become relevant under that second heading also. Barker, J.A. : 12. I agree with the judgment of the Vice-President. 8th January 1982. Representation: Miss M. Yuen (Iu, Lai and Li) for Appellants. W. Yeung (Alfred Lai & Co.) for Respondent. |