Robert Foster Lusher v J. L. Hillard

CourtDistrict Court (Hong Kong)
Judgment Date20 June 1980
Judgement NumberDCCJ1910/1980
Subject MatterCivil Action
DCCJ001910/1980 ROBERT FOSTER LUSHER v. J. L. HILLARD

DCCJ001910/1980

Landlord and Tenant (Consolidation) Ordinance Section 53(2)(b)(i) - landlord "reasonably requiring" premises owned by him for occupation as a dwelling for himself and specified other persons - "reasonably required" imports some objective standard of reasonableness - in deciding whether landlord 'reasonably requires' not concerned with position of tenant (e.g. hardship to the tenant) - construction of words "manifestly not be just and equitable".

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1910 OF 1980

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BETWEEN
ROBERT FOSTER LUSHER Plaintiff
and
J. L. HILLARD Defendant

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Coram: Judge de Basto, Q.C. in Court

Date of Judgment: 20th June, 1980.

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JUDGMENT

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1. The plaintiff brings this action for possession under Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance.

2. That Section was amended earlier this year. Under that Section, before its amendment, a landlord had to satisfy a Court that he "required" the premises the subject matter of an action, for occupation as a dwelling for himself, his father, his mother or any son or daughter of his over the age of 18. Now, however, by introducing the word "reasonably" in the amended Section, the legislature has interposed the protective element of objectivity. That is, and I regard this as exceedingly significant, the amended Section has introduced a concept of objectivity not previously required. If a landlord, who establishes he is acting bona fide, manages to persuade a Court that he reasonably requires possession for occupation as a residence for one of the persons specified in the Section then the landlord will be entitled to an order for possession unless the tenant satisfies the Court under Section 53(2)(b)(i), that an order for possession, in all the circumstances of the case, would "manifestly not be just and equitable".

3. How is the proviso, more particularly the words: "manifestly not be just and equitable" to be construed? In my view, the proviso means that a tenant must satisfy a Court that, having regard to all the circumstances of the case, there are clear, cogent and impelling reasons why the making of an order for possession would result in injustice. Or, to put it in another way, if an order for possession were made, one would expect a Court of Equity, apprised of all the circumstances of the case, to, so to speak, throw up its hands in dismay and exclaim: "That cannot be right!"

4. Although the Section refers to occupation by the landlord as a residence for himself, his father, his mother and any children over the age of 18, the Courts in England have given an extended interpretation to the word "landlord" which includes "all normal emanations" of the landlord. A landlord may reasonably require possession of a house for occupation as a residence for "himself" within the meaning of the Section if he requires it for the occupation of his children although he may himself be unable to live on the premises (see Smith v. Penny (1947) 1 K.B. 230). Those who are unrelated to the landlord may also be included, provided that they will occupy the premises as one household with the landlord (see Richter v. Wilson (1933) 2 Q.B. 426 CA).

5. Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance, as recently amended, reads :-

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

Provided that the court shall not make or order by reason only that the circumstances of the case fall within this paragraph if -

(i) in the case of a tenancy, the the tenant satisfies the court that in all the circumstances of the case it would manifestly not be just and equitable to do so;"

6. The onus is on a landlord to satisfy the court, by positive evidence, not only that he is acting bona fide but that he reasonably requires possession. If he fails to do that, that is an end of the matter. The case most cited on the construction of the words "reasonably required" is Aiken v. Shaw (1933) S.L.T. (Sh. Ct.) 21 at 22 where Sheriff Blades K.C. said:

"My difficulty has been to determine whether the pursuer required the house reasonably, in the sense that she had a genuine present need for the house for her own occupation or has been moved by considerations or preference and convenience merely; for I think the words "reasonably required" connote something more than desire, although at the same time something much less than absolute necessity will do"

That view was approved obiter by the English...

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