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Ho Kui Wah v Yu Chow Say Mui

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date16 April 1982
Year1982
Judgement NumberHCMP400/1982
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP000400/1982 HO KUI WAH v. YU CHOW SAY MUI

HCMP000400/1982

Landlord & tenant - claim for possession under s.53(2)(b) of landlord & Tenant (Consolidation) Ordinance - request under O.18 r.12(3) for particulars - tenant insisting not merely on "a statement of the nature of the case on which the plaintiff relies" but on a statement of ''all facts and matters relied upon in support (of 'reasonably requires')"- request too wide.

IN THE COURT OF APPEAL 1982, No.400
(Miscellaneous Proceedings)

BETWEEN

HO KUI WAH

 Appellant
(Defendant)
AND
YU CHOW SAY MUI (a female) Respondent
(Plaintiff)

______________

Coram: Sir Alan Huggins, V.-P., Barker, J.A. and Macdougall, J.

Date of hearing: 26 March 1982

Date of handing down judgment: 16 April 1982

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P. :

1. The respondent Landlord claimed possession of a protected tenement on the ground that she required the premises as a residence for herself "and her immediate family". The Tenant sought particulars of her immediate family and also demanded that the Landlord "state all the facts and matters relied upon in support of the allegation that the suit premises are reasonably required by the plaintiff for occupation as a residence for herself and her immediate family''. The landlord, having unnecessarily referred to the immediate family in the Particulars of Claim, rightly felt compelled to give further and better particulars of that phrase but she objected to the wide terms of the other demand. The Tenant applied to the District Judge for an order for particulars, but this was refused. The Tenant appeals.

2. Mr. Bunting submits with some justification that a tenant who is sued under s.53 (2)(b) of the landlord and Tenant (Consolidation) Ordinance cannot properly prepare his defence - or even consider the desirability of a settlement - unless he knows why the landlord says he requires the premises for occupation by himself or whomsoever it may be. For example, it may be that the landlord is living in rented accommodation and that his own landlord is taking proceedings to evict him: the tenant would wish to ascertain the genuineness and strength of that claim, which he could not do effectively if the first he heard of it was curing the landlord's evidence. Mr. Yeung recognises the difficulty but argues that the order sought is far too wide and requires his client in effect to give discovery of her proofs of evidence. Mr. Bunting says that he does not go so far as that and is only seeking the reasons for the Landlord's requirement, which Mr. Yeung is willing to give, although maintaining that he is not obliged to do so as the request is in truth not a request for particulars but is in the nature of interrogatories.

3. Mr. Bunting has been able to cite no case, either in Hong Kong or in England, where particulars of "reasonably required" have been ordered. In England, by reason of the form prescribed, it was at one time even arguable that a plaintiff claiming under the First Schedule to the Rent and Mortgage Interest Restrictions (Amendment) Act 1933 need not indicate the paragraph under which the claim was made: see the article by his Honour Judge Bradley at (1923) 39 L.O.R. 441, 445 et seq. The precedents in 2 McCleary's County Court Precedents (3) 869 and 24 Atkin's Court Forms (2) 313 do not suggest that any particulars need to be given beyond such as will show which paragraph is relied upon. Indeed, it is doubtful whether what has been asked for here is particulars at all. Mr. Bunting contends that they are particulars of a condition of mind and points out that it has been held that particulars may be ordered of an intention: O.18 r.12(1)(b) and Feeney v. Rix 1968 Ch. 693. In the case referred to one issue was whether any contribution which might have been made by the plaintiff to the purchase of a house in the name of the defendant was intended as a gift to the defendant. The court ordered particulars of "the overt acts of the plaintiff and the facts relied upon to show that the contributions (if any) of the plaintiff when made ... (if at all) were made with no intention of being made as a gift to the defendant". That seems to me to be distinguishable, because "reasonably requires" is strictly not a "condition of mind". What Mr. Bunting is really saying is that the Tenant needs "a statement of the nature of the case on which [the Plaintiff] relies": see O.18 r.12(3). Such a statement would have enabled the Tenant to know what evidence he ought to be prepared with and to prepare for trial (see Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R. 329), but it is not what has been asked for. As the application stands, I think the order sought was in terms so wide as to amount to requiring the Plaintiff to reveal her evidence, and that cannot be allowed. It appears from the judge's Reasons that the Landlord, through her solicitor, indicated her willingness to meet a request in less wide terms, but the judge said that the Tenant insisted on an order in the form in the application.

4. For these reasons I thought the appeal should be dismissed.

Barker, J.A. :

5. I agree.

Macdougall, J. :

6. I regret that I find myself in disagreement with my brethren as to the outcome of this appeal.

7. The respondent who is the landlord of premises of which she seeks possession in an action under section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance states in paragraph 7 of her particulars of claim:

"The said premises are reasonably required by the plaintiff for occupation as a residence for herself and her immediate family.

8. The relevant part of section 53(2) reads as follows:

(2) The Tribunal shall not make an order for possession of premises in respect of which there is a tenancy or sub-tenancy to which this Part applies unless it is satisfied that -

(a) ................... ;

(b) the premises are reasonably required by the landlord or principal tenant for occupation as a residence for himself, his father, his mother or any son or daughter of his over the age of 18:"

9. Apart from the imprecise reference to her immediate family the respondent has thus in effect simply reproduced in her particulars of claim the relevant paragraph of sub-section (2) of section 53 under which she seeks relief as a landlord.

10. The appellant tenant of the premises sent a letter through his solicitors to the respondent's solicitors seeking further and better particulars as follows:-

"Under Paragraph 7 of the Particulars of Claim

(i) Of the words reasonably required" state all facts and matters relied upon in support thereof

(ii) Of the words "as a residence for herself and her immediate family" state all the names, ages and their relationship with the
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