Application for transfer of a Housing Department Tenancy by Order of the Court. Tenancy held to be "property". Reasons why Court should exercise its discretion sparingly. Some competing policies of Housing Department reviewed. Some factors germane to Courts discretion discussed.
IN THE DISTRICT COURT OF HONG KONG
NO. 776 of 1983.
|WONG TAI HING
|WONG LAU YUK LING
Coram: H.H. Judge Caird in Court
Hearing Date of judgment: 23.8.84.
Date of Judgment: 7.9.84.
1. A decree nisi was made by His Honour Judge Leonard on the 31st August, 1983 and subsequent to that hearing His Honour Judge O'Dea, on the 3rd May, 1984, gave custody, care and control of the three children of the family to the Respondent, wife.
2. The present application is for a transfer of the tenancy of Room 809, Fu Ming House, Tai Wo Hau Estate, Tsuen Wan, from the registered tenant who is the Petitioner, to the Respondent, wife.
3. The proceedings were heard in open Court in conjunction with proceedings in suit 2457 of 1983, Lui v Lui, where the same point was in issue although the Respondent in that matter had indicated that he would vacate the premises.
4. As the matter involved interests of the Housing Department the Crown Solicitor was invited to represent that Department and present its views, accordingly Mr. K.A. Lewis, Crown Counsel, appeared. Right at the outset I must say that I am greatly indebted to he, Mr. Plowman, Counsel for the Respondent, and Mr. C.L. Smith, Counsel for the Petitioner, for the efforts taken by them and for the considerable assistant given by them to the Court.
5. The Housing Department as landlord enters into contractual tenancies with tenants and the position is analogous to that pertaining in the United Kingdom for council houses administered by Local Authorities.
6. The position in England has been considered in a number of cases and it is clear from Hale v Hale 1975 2 All E.R. p 1090 following Thompson v Thompson 1975 Family Reports p 25 that a weekly tenancy or any other tenancy was "property" within the meaning of the appropriate United Kingdom legislation. I am in no doubt that such a tenancy as I have to consider in the instant cases is "property" within the meaning of Section 6 of the Matrimonial Proceedings and Property Ordinance, Cap. 192.
7. It has been held in the United Kingdom that the Court has power in an appropriate case to order a transfer which the tenant himself could have made, and in Hale v Hale the wife's application was granted, however there is a passage appearing at p 1093 which is of considerable interest :
"If the Court made an order transferring the Council tenancy from the husband to the wife or from the wife to the husband in a way which the Council did not approve in accordance with its housing duties, there would be nothing whatever to prevent the Council from putting an end to the transfer and tenancy within a short space of time. Obviously in such circumstances the Court would at any rate hesitate for a very long time before it would make an order transferring property which the Local Authority might perfectly, properly and consistently with its duty prevent from being fruitful. "
8. The tenancy in the instant case, pursuant to what I understand to be a standard agreement, includes a clause which I assume to be in all such agreements providing that the tenancy is determinable by the Hong Kong Housing Department, as landlord, upon 46 days' notice in writing, Ex. P1.
9. In this agreement the tenant, is expressed to be the Petitioner, and authorized occupants are the wife, the three children of the Family and the Petitioner's mother.
10. Although I am in no doubt that the tenancy is "property" nevertheless the interest available to the tenant and that which is sought by the Respondent wife, constitutiong "property" is severely curtailed in that it is only a tenancy, should the Housing Department so determine, for a period of 46 days.
11. For this and for other reasons which will become...