Chui Fun v Lo Wah And Another

CourtDistrict Court (Hong Kong)
Judgment Date20 June 1980
Judgement NumberDCCJ1186/1980
Subject MatterCivil Action
DCCJ001186/1980 CHUI FUN v. LO WAH AND ANOTHER

DCCJ001186/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1186 OF 1980

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BETWEEN CHUI Fun Plaintiff
and
LO Wah 1st Defendant
LEUNG Wai 2nd Defendant

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Coram: H.H. Judge Hooper

Date of Judgment: 20th June, 1980.

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JUDGMENT

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1. This is a claim by the plaintiff as landlord for possession of the premises at Flat 7, 10th floor, Luen Tak Apartment, No. 45 Smithfield Road, on the grounds of they were unlawfully sublet by the 1st defendant to the 2nd defendant.

2. It is common ground that the plaintiff is the registered owner of the suit premises and that they are situated in a new building and that the tenancy is a protected tenancy under Part II of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7. It is common ground that the suit premises were let to the 1st defendant for domestic purposes by a tanancy agreement in Chinese dated 15th May 1976 for a term of three years commencing on 15th May 1976 and terminating on 14th May 1979. The rental of $700 per calendar month was payable in advance on 15th day of each and every calendar month. It is common ground that after the expiration of the said tenancy, the said premises were let to the 1st defendant on a monthly basis at the same rental and on the same terms as the said agreement.

3. The said Chinese agreement has been admitted into evidence as document No3 of an agreed bundle Exh. P1 and it contains the following term:-

"Party B (the 1st defendant) is not allowed to sublet or re-let (the said premises) to others.........."

Paragraph 3 of the said Chinese agreement provides, inter alia, -

"... if Party B does not comply with any of the terms and conditions of the tenancy agreement, then Party A (the plaintiff) shall have the lawful right to determine this tenancy agreement and to rent (these premises) to others and also to demand and collect the arrears of rent."

4. It cannot therefore be disputed that the tenancy agreement contained a clause against subletting and provided for termination in the event of breach.

5. In paragraph 5 of his Particulars of Claim the plaintiff alleged that the 1st defendant in breach of the said term in the agreement, wrongfully sublet the whole or part of the said premises to the 2nd defendant there by committing a breach of that particular term in the tenancy agreement.

6. The basis of the plaintiff's claim is contained in paragraphs 6 & 7 of the Particulars of Claim which are set out below -

"Paragraph 6. In the premises, the said tenancy is hereby terminated and forfeited by the plaintiff. Paragraph 7. The said premises are premises to which possession is claimed pursuant to the provisions of Section 53(2)(e) of Part II of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 and the plaintiff is entitled to possession of the said premises."

7. Paragraph 8 of the Particulars of Claim merely sets out the allegation that the annual rental or rateable value of the said premises does not exceed $15,000. This is however an unnecessary pleading in view of the fact that it is common ground that Part II of the Landlord & Tenant (Consolidation) Ordinance applies and the District Court therefore has jurisdication whether the annual rental or rateable value of the said premises exceeds $15,000 or not.

8. So far as paragraph 6 of the Particulars of Claim is concerned it is my view that this is misconceived. A tenancy which is protected by Part II is not terminated by the issue of the writ. It may however be terminated under Section 53 where the plaintiff relies upon a breach of the tenancy agreement. He can sue under subsection (2)(a) of that section. In addition to this he may also sue on a statutory ground provided by subsection (2)(e).

9. These two provisions are set out below -

"(2) A court shall not make an order for possession of premises in respect of which there is a tenancy ..... to which this Part applies unless it is satisfied that -

(a) ...., where any covenant or condition of the tenancy ..... has been broken or not performed, such breach or non-performance would, but for this Part, have been a cause of forfeiture;
(e) the tenant -
(i) in the case of a tenancy to which this Part applied immediately prior to 18th December 1979, has at any time after 14th December 1973; .... without the consent in writing of the landlord sublet the whole or any part of the premises of which he is the tenant;"

10. By virtue of subsection (1)(b) of Section 53 the tenancy will not terminate until the order of the Court under subsection (2) takes effect. Therefore even though there may be breaches of the original tenancy agreement, the tenancy will continue under the provisions of Part II until the order of...

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