Wong King Fun And Another v Cheng Hon Tao

Court:District Court (Hong Kong)
Judgement Number:DCCJ359/1971
Judgment Date:10 Dec 1971
DCCJ000359/1971 WONG KING FUN AND ANOTHER v. CHENG HON TAO

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

RENT INCREASES APPLICATION NO. 359 OF 1971

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WONG KING FUN and WONG KING TIM Applicants
and
CHENG HON TAO Respondent

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Coram: M. Morley-John, D.J.

Date of Judgment: 10 December 1971.

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JUDGMENT

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1. In this case the Applicants are two brothers who are the joint owners of the property in question. The application is made under the provisions of Section 7 of the Rent Increases (Domestic Premises) Control Ordinance Cap.338 and specifies that both Applicants require possession of the said premises for use as a dwelling by themselves and their families.

2. During the hearing of the application it has admitted that the premises are only required for the use of the 1st Applicant and I therefore hold that the application does not come within the provisions of section 7 of the Ordinance.

3. My decision is based on the judgment of the Court of Appeal in the case of McIntyre v. Hardcastle 1948 2 K.B. 82. A similar decision has been given in the more recent case of Maxwell v. Mulhern 1968 S.L.T. (Sh. Ct.) 43. In the case of McIntyre v. Hardcastle two sisters were joint owners of a house within the Rent Acts and they sought possession of the house under paragraph (h) of section 3 of the Rent and Mortgage Interest Restrictions (Amendment) Act 1933, on the ground that the house was required as a residence for one of them. (Paragraph (h) contains similar provisions to paragraph (a) of sub-section 2 of section 7 of the Rent Increases (Domestic Premises) Control Ordinance.) The Court of Appeal adopting the dictum of Asquith L.J. in Baker v. Lewis 1947 K.B. 186 held that the case was not within the paragraph and that no order for possession could be made under it.

4. Paragraph (h) of the Rent and Mortgage Interest Restrictions (Amendment) Act provides:-

"if (h) the dwelling-house is reasonably required by the Landlord .... for occupation as a residence for - (i) himself; or (ii) any son or daughter of his over eighteen years of age; or (iii) his father or mother."

The Court held that on the true construction of paragraph (h) when applied to joint ownership the paragraph should be read as follows:

'For "himself" read "themselves";

For "any son or...

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