Joseph Marcel Archibald John Dawson v United States Lines Incorporated

CourtDistrict Court (Hong Kong)
Judgment Date12 June 1980
Judgement NumberDCCJ1260/1980
Subject MatterCivil Action
DCCJ001260/1980 JOSEPH MARCEL ARCHIBALD JOHN DAWSON v. UNITED STATES LINES INCORPORATED

DCCJ001260/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1260 OF 1980

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BETWEEN JOSEPH MARCEL ARCHIBALD JOHN DAWSON Plaintiff
and
UNITED STATES LINES INCORPORATED Defendant

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Coram: H.H. Judge Cruden in Court

Date of Judgment: 12th June, 1980.

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JUDGMENT

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1. In this action the plaintiff sought an order for possession of residential premises known as Flat 2, 26B Shouson Hill Road, together with other relief.

2. It was established before me that Flat 2 consituted residential premises in respect of which a premit to occupy had been issued by the Building Authority on the 8th day of October 1963. Part II of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 therefore applied. The plaintiff had purchased the premises on the 26th day of October, 1963. He had personally resided in Flat 2 from 1970 to 1976. The Plaintiff had leased the premises to the defendant company for a term of 23 months commencing on the 1st day of February 1977 at a monthly rental of $8,250. The lease expired by effluxion of time on the 31st day of December 1978 since when the defendant has been holding over as a monthly tenant.

3. The plaintiff claimed possession of the premises pursuant to Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance on the ground that the premises were required "for occupation as a residence for himself and/or his two daughters over 18 years of age".

4. The defendant put the plaintiff to strict proof. The defendant also pleaded that if the plaintiff were entitled to an order for possession that possession should not be given until the 31st day of October, 1980. This was the date on which a prior notice given by the plaintiff's previous solicitors would expire. The plaintiff conceded that, if the order for possession sought was granted, then he could not require vacant possession to be given until the 31st day of October, 1980.

5. Turning to Part II of the Ordinance the relevant portion of Section 53(2)(b) now provide that:

" (2) A Court 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 the 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."

6. The defendant intimated that it considered that as it was a substantial corporation it could not, as a matter of fact, invoke the proviso to Clause (b). This is the proviso which, notwithstanding that a plaintiff landlord has established that the premises are reasonably required by him or his statutory prescribed relatives, enables a tenant to satisfy the Court that it would nevertheless manifestly not be just or equitable to make such an order in favour of the landlord.

7. So the narrow legal issue before me was whether the premises were reasonably required by the plaintiff, as landlord, for occupation as a residence. I did not have to consider the just and equitable provisions set out in the proviso. At this stage I would first advert, to what I infer from the pleadings, is a misunderstanding of the provisions of Section 53 as far as a landlord and the statutory relatives therein mentioned is concerned. The Section clearly provides disjunctively that a landlord has the statutory right to possession if the premises are reasonably required by the landlord as a residence for:-

(a) himself; or
(b) his father; or
(c) his mother; or
(d) any son over the age of 18 years; or
(e) any daughter over the age of 18 years.

8. If the premises are reasonably required by any of the relatives (b) to (e) then it is not, as a matter of law, obligatory for the landlord personally to require the premises as well for his own personal residence. The empowering provisions of the Section are therefore wider than may at first appear. Even if the landlord has quite adequate premises for his own use, if any, statutory relative has no such premises and if possession is reasonably required for that relative, then an order may make subject, of course, to any matters being raised by a tenant under the proviso.

9. In the instant case the landlord personally wishes to reside in the premises. If he does obtain possession he states that his two daughters, both over the age of 18, will reside with him. In that event the daughters would not reside at the suit premises independently but as part of the plaintiff's household. I am not therefore concerned with the separate statutory ground which enables possession to be granted for the purpose of daughters to reside at the premises. The position of the daughters, however, remains very relevant. That relevance is that in considering the adequacy of the suit premises - and any other premises owned by the plaintiff - I am entitled to take the fact that his two daughters will be living with him into account in considering his requirements. This was the position on the evidence adduced before me. Paragraph 6 of the plaintiff's statement of claim which provides:-

" -. The plaintiff requires the said premises for occupation as a residence for himself and/or his two daughters over 18 years of age."

is therefore otiose.

10. The plaintiff in fact owns three residential premises in Hong Kong. The first of these comprises the suit premises. The...

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