IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
ACTION NO. 1348 OF 1970
|CHAN CHUN YING (a female)
|P. U. Melwani (male)
Coram: N.B. Hooper, D.J.
Date of Judgment: 19 June 1970
1. This is an action for the recovery of possession of the premises known as Block "A", 2nd floor, Victoria Court, Hing Fat Street. A Notice of Termination of Tenancy pursuant to Section 6(2)(a) of the Security of Tenure (Domestic Premises) Ordinance, 1970 was served on the defendant on 26th February, 1970. The defendant served a counter notice in accordance with Section 6(6) disputing the right of the plaintiff to possession on the ground that greater hardship would be caused by making an order for possession then by refusing to grant such order. The plaintiff therefore claims possession under Section 6(7) on the ground that she requires possession for use as a dwelling by herself and her husband.
2. Since the commencement of this action and before the hearing date the Security of Tenure (Domestic Premises) Ordinance has been repealed by the Rent Increases (Domestic Premises) Control Ordinance 1970 but the same provisions are incorporated therein.
3. Before an order for possession can be made the Court must have regard to the Provisos to Section 6(7) of the Security of Tenure (Domestic Premises) Ordinance (Now Section 7(2) of the new Ordinance).
4. This Proviso is in the following terms -
"Provided that no order shall be made on the ground specified in para. (a) of subsection (2) if the Court is satisfied that having regard to the circumstances, including the question whether accommodation is available for the landlord, the tenant, the principal tenant or the sub-tenant, greater hardship would be caused by granting the order than by refusing to grant it."
5. This proviso is substantially the same as the proviso to para.(h) of the 1st Schedule to the English Rent Act of 1933 where the Courts can grant possession on similar grounds, and also to the Proviso to Section 23 of our own Landlord and Tenant Ordinance Cap. 255.
6. There is an abundance of authority that the onus of proof of greater hardship lies on the tenant,
Sims v. Wilson (1946) 2 A.E.L.R. 261
Smith v. Penny (1946) 2 A.E.L.R. 672
Robinson v. Donivan (1946) 2 A.E.L.R. p.731
Kerrigan v. Nelson (1946) S.C. 388 I.H.
Kelly v. Goodwin (1947) 1 A.E.L.R. p.810
||and p. 264 Megarry on The Rent Acts 9th Ed.,
and if the Court is left in doubt where the greater hardship lies, the landlord's claim will succeed.
Gould v. Annely (1939) L.J.N. C.C.R. p.343.
Matters merely of taste or preference cannot carry the same weight as matters of necessity.
McFarlane v. Murray Lyon 1927 SLT (Sh. Ct.) p.79
7. Under the English Legislation 'Reasonableness' is an essential ingredient in the landlord's claim for possession.
Shrimpton v. Rabbits (1924) 131 L.T. 478 D.C.
8. However the Security of Tenure (Domestic Premises) Ordinance and the new ordinance contain no such statutory requirement of a general nature, nor does Section 6(2) require that the landlord shall prove that the premises are reasonably required by himself etc. as does the Act of 1933 and Section 23 of Landlord & Tenant Ordinance.
9. It would appear that the landlord has an absolute right to possession whether required reasonably or not, as long as it is required for his use or the use of a prescribed member of his family, unless his possession would result in hardship for the tenant. The scales should be weighed with this in mind.
10. In determining 'greater hardship' the Court must have regard to all the circumstances, including the question whether other accommodation is available for...