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Fung Chi Kwing v Lam Sik Man

Judgment Cited in Precedent Map Related
Vincent
Judgment Date08 April 1970
Year1970
Judgement NumberDCCJ71/1970
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ000071/1970 FUNG CHI KWING v. LAM SIK MAN

DCCJ000071/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 71 OF 1970

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BETWEEN
FUNG CHI KWING Plaintiff
AND
LAM SIK MAN Defendant

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ACTION NO. 72 OF 1970

BETWEEN
LOO KIT CHIU Plaintiff
AND
LAM SIK MAN Defendant

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Coram: Derek Cons, D.J. in Court.

Date of Judgment: 8 April 1970

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JUDGMENT

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1. The premises in question in these two cases, namely, 23, Argyle Street, Kowloon, comprise a ground and three upper floors. The two plaintiffs, at least up until May, 1968, were respectively principal tenants of the second and third floors. Each had sublet certain portions of his floor to which apparently no objection had been taken. The premises fell within the ambit of the Landlord and Tenant Ordinance Cap. 255.

2. Unfortunately, the premises had been allowed to fall into a bad state of repair and on the 27th May, 1968, the Building Authority served upon the owner, that is the defendant, a Demolition Notice, as that Authority has power to do Section 26(1) of the Building Ordinance (Cap. 123). That order required the defendant to demolish the whole building before the 18th July following, although he was not allowed to commence any work to that end before the 20th of June. Similar Notices were served on the owners of Nos. 19 and 21 of the same street.

3. Very shortly afterwards, that is, on the 30th May, the Director of Public Works served upon the defendant a redevelopment notice, which is a notice declaring that the property in question has become subject to the provisions of the Demolished Buildings (Redevelopment of Sites) Ordinance (Cap. 337). The effect of this is, to put it briefly, that the tenants become entitled to compensation assessed by a Tenancy Tribunal in very much the same manner as that employed in normal exemption proceedings. I believe that in order to help the tenants over their immediate problems of removal, loans against the expected compensation are made to them by the Secretary of Home Affairs. Such loans were made to each of the present plaintiffs and have since been repaid. Neither plaintiff has made application for compensation in the manner required by the Ordinance, apparently as a result of advice given on behalf of the Secretary, and naturally no compensation has yet been paid.

4. The defendant admits that he left the premises on or about the 10th of June, although it is not clear if he had previously occupied any part himself. He was followed by the plaintiffs on the 18th and 20th of June. On the latter of those days a Closure Order was made under Section 27 of the Building Ordinance and later on, on the 22nd August, the Director of Public Works followed up his redevelopment notice with a redevelopment order under Section 4 of the Demolished Buildings Ordinance. In his final submission Counsel for the defendant withdrew reliance upon these two orders as material features of the case, and I merely mention them in passing to complete the picture. Similarly, I should add that the Closure Order expired, at the proper instance of the Building Authority, on the 29th September of the following year, that is, 1969. By that time certain amendments had been made to the appropriate sections of the Building Ordinance but, again, they are not material to the present issues.

5. In the meantime, however, certain matters had taken place that are very material. In essence, the defendant, by incurring considerable expense in the way of repairs and redecoration, put the premises in such condition that by the 16th June 1969, the Building Authority was satisfied that they were no longer dangerous, and by letter to the defendant on that day the Authority withdrew both the Demolition Order and the Redevelopment Notice. It may be convenient to explain here that the Director of Public Works and the Building Authority are by definition one and the same person. The Authority was clearly of the opinion that the withdrawal had the effect of cancelling those two documents, in which case the plaintiffs claim to have been automatically reinstated in their earlier position, that is, as protected tenants of their respective floors.

6. Four arguments to rebut such claims have been put forward by the defence. Two may be very simply disposed of. The first one is based on Section 3(1) of the Landlord and Tenant Ordinance, which section excludes certain premises from the operation of the Ordinance, including under paragraph (d):

"any premises which after the 16th day of August, 1945, have remained continuously untenanted and which after the commencement of this Ordinance have been rendered habitable by extensive repairs effected at the expense of the landlord. For the purpose of this paragraph, the expression "extensive repairs" means repairs wholly necessary for rendering the premises reasonably habitable and in respect of which expense incurred amounts to not less than the equivalent to the standard rent of the premises for seven years."

7. The present premises have been continuously untenanted only since at least the 18th or the 20th of June, 1968, but I am asked to read the paragraph in the Ordinance as though the words "16th of August, 1945" were "service of a redevelopment notice". I must confess myself completely unable to understand by what authority...

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