WONG CHOR WAN v. MADAM YUEN YAU AND ANOTHER

CACV000003/1983

IN THE COURT OF APPEAL

Civil Appeals

No. 3 of 1983

No. 12 of 1983

BETWEEN

WONG CHOR MAN Appellant
(Plaintiff)

and

MADAM YUEN YAU Respondents
CHIU SZE WU (Defendants)

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Coram: Hon. Leonard V.-P., Cons & Fuad, JJ. A.

Date: 8th February, 1983.

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JUDGMENT

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Cons, J.A.:

1. This appeal (No. 3 of 1983) is from the decision of a Presiding Officer of the Lands Tribunal who refused the Plaintiff’s applicationfor the possession of her flat on the ground that she reasonably required the premises for her own occupation, under S. 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. The suit premises are at present occupied by the 1st Defendant and her family and by the 2nd Defendant, a single man whois her sub-tenant. The Plaintiff lives next door, in a flat that is smaller than that occupied by the Defendants, being only some500 sq. ft.. It is divided into a sitting room and two bedrooms. Three adult daughters sleep in one bedroom, an adult son(who hascertain work of a documentary nature to do at home and requires privacy for that) occupies the second bedroom. The Plaintiff, whois aged 51, her husband aged 60′ and her 81 year old mother sleep on collapsible beds in the sitting room. If she obtained possessionof the suit premises they would be able to have a proper bedroom.

2. The Presiding Officer came to the conclusion that the Plaintiff had established a reasonable requirement for occupation and thatno manifest injustice would be caused to the Defendants by an order for possession. He was satisfied there was such a requirement,not only because three adults, one of whom was elderly, had to sleep on collapsible beds in the sitting room, but also because thePlaintiff’s husband wished to retire from his employment, but could not do so until he had somewhere to live. The flat in which theyare presently living belongs to his employer and runs with the job. When he retires he will have to give it up. Furthermore the sonwould like to marry but, sensibly, would first like to have somewhere where he could live with his wife.

3. A Respondent’s Notice has been lodged by the two Defendants alleging that the Presiding Officer was wrong to find that there wasa reasonable requirement. The point made by Miss Mok (who did not appear before the Tribunal) in support of that Notice is that thePlaintiff had not shown a genuine present need in that there has no fixed time arranged either for her husband’s retirement or forher son’s marriage. Miss Mok drew our attention to the comment of Stephenson L. J. in Kennealy v. Dunne(1) that “required” meant “bona fide wanted and genuinely intended to be occupied as a residence at once, or at any rate within a reasonabletime”. With every respect to her we think that point has no merit. It seems to us that as both the retirement and the marriage dependupon the Plaintiff obtaining possession, and both will take place if, and as soon as, that happens, then in law, as well as a matterof common sense, it may properly be said that there is a genuine present need.

4. Several other points are raised in the Respondent’s Notice but they have been not pursued before us.

5. Despite the findings I have referred to, the Presiding Officer refused an order for possession because he took the view that a newperiodic tenancy had arisen when the fixed term tenancy ended, – that was on the 30th April, 1982, at the conclusion of a three-yearlease, – and that in the circumstances notice to quit was now necessary before the landlord could apply under the Ordinance. ButMiss Mok has now conceded that that is a mistaken view of the law. We think that is a proper concession. With all due respect tothe learned Presiding Officer he has misconceived the present situation. when a tenancy expires by effluxion of time a periodic tenancydoes not automatically arisen by reason of S.52(1) of the Ordinance. What arises, or rather “continues”, is an indefinite tenancy, although the rent is payable monthly, and for convenienceis sometimes called a “monthly tenancy”. It is not impossible that a truly periodic tenancy could be created by the parties themselvesor inferred from their conduct, although in circumstances where Part II applies the court will not be very ready to draw that inference.And it certainly would not have done so in the present instance where the landlord had been extremely careful and had not acceptedrent after the fixed term had expired.

6. We are left then only with the second appeal (No. 12 of 1983) which is as to the costs of a most unusual and bizarre applicationmade by the 2nd Defendant on the 10th January to the Presiding Officer of the Tribunal asking him to hear an appeal against his owndecision. The application was said to be founded on S.8(4) of the Lands Tribunal Ordinance. For some reason, which is not apparent to us, the learned Presiding Officer concluded that the law on this aspect was not clearand although he dismissed the application, he made no order as to costs for that very reason. With every respect to him, we are unableto see any difficulty in the law. In our view the application was totally misconceived and therefore, although undoubtedly made ingood faith, can be regarded as being frivolous and vexatious. There was no reason why costs should not have followed the event.

(P.F.X. Leonard)

(D. Cons)

(K.T. Fuad)

Vice-President

Justice of Appeal

Justice of Appeal

(1) [1977] 1 Q.B. 837 at 849

Representation:

Mr. Benjamin Chain (M/S J. S. M.) for Appellant.

Miss Alice Mok (M/S Yung, Yu, Yuen & Co.) for Respondent.