LAI PING NAM v. WONG PING WAH

IN THE COURT OF APPEAL

1994, No.146

(Civil)

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O R D E R

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Power, V.-P.:

1. We vacate our original order which was never perfected. The appeal is dismissed and we order that the cost be the respondent's costs in the cause. We will hand down our reasons in due course. We order that the matter be returned to the Lands Tribunal for an expedited early hearing, i.e. as soon as it can be set down.

IN THE COURT OF APPEAL

1994, No.146

(Civil)

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Coram: Hon. Power, V.-P., Litton & Mortimer, JJ.A.

Dates of hearing: 24 February & 6 March 1995

Date of judgment: 6 March 1995

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

2. This is an appeal from the decision of District Judge Downey sitting as a Presiding Officer in the Lands Tribunal. The appeal is against a decision to set aside a default judgment. The applicant/appellant is owner of premises of which the respondent Wong Ping-wah is the tenant. The applicant seeks return of the premises under s.53(2)(b) of the Landlord and Tenant Ordinance on the ground that they are reasonably required for occupation by his daughter and on the alternative ground that the respondent has sublet the premises. Section 53(2)(b) provides -

"(b) the premises or any part thereof 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:

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

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

(ii) in the case of a sub-tenancy, the Tribunal is satisfied having regard to all the circumstances of the case, including the question whether other accommodation is available for the principal tenant or the sub-tenant, greater hardship would be caused by granting the order than by refusing it;"

As long ago as 28th June 1993, a Notice to Quit was served upon the respondent demanding possession of the premises on 31st July 1993. On 16th August 1993, the applicant filed a Form 13 particularizing the grounds upon which a possession was sought and on 17th August 1993 the form was sent by registered post to the respondent at the suit premises. The Form 13 also claimed arrears of rent and/or mesne profits at the rate $2,100 per month from 1st November 1992 until the date of delivery of vacant possession.

3. There was no opposition filed by the respondent and in consequence the applicant on 3rd September 1993 made an application for default judgment. This application was supported by an affirmation from the appellant in which he affirmed, inter alia, that he required possession of the premises for occupation as a residence by his daughter over the age of 18. The application for a default judgment was made under Rule 15 (formerly Rule 13A) of the Lands Tribunal Rules.

4. The Deputy Registrar did not make the order sought but asked, as he was entitled to do, under Rule 12A, for further and better particulars of the monthly rent and of the alleged subletting.

5. On 23rd November 1993 the appellant filed an affidavit acknowledging that the monthly rent of $2,100 had not been endorsed by the Commissioner of Rating and Valuation and waiving his claim for arrears in that amount and claiming only in the amount of $1,620 per month. He also stated that when he had rung the suit premises in October 1992 a female had answered telling him that the respondent had moved out and emigrated to Canada and that she was allowed to live in the premises by the respondent.

6. On 25th November the Registrar informed the appellant that he was not satisfied as to service and directed that a fresh Rule 13A application be filed. This was done and, because of the difficulty as to service, an application was made to Longley D.J., sitting as a Presiding Officer, for an order that service of the Form 13 be effected by ordinary post on the suit premises.

7. On 5th May 1994, the Form 13 was posted to the suit premises and, no opposition having been filed, on 9th June 1994 a default judgment for possession was made.

8. In the Form 13 the applicant stated:

"6. The facts relied upon by the Applicant that the said premises are reasonably required by the Applicant for occupation as a residence for his daughter Lai Pai Shan Pamela, aged 19 are as follows:

(a) The Applicant is presently residing at Flat C, 15th Floor, 68 - 80 Secord Street, Hong Kong ("the residing premises") together with his family namely: CHAN SHEUNG KWAN, wife, Lai Pai Shan Pamela, a daughter, born on 28th day of November 1974 and Lai Pai Chi, a daughter, born on 26th November l976.

(b) The residing premises has a gross floor area of about 500 sq. ft. consisting of two bedrooms and one livingroom.

(c) The said premises has a gross floor area of about 400 sq. ft. which will provide suitable accommodation for the daughter of the Applicant, Lai Pai Shan Pamela.

(d) The Applicant has no other landed property apart from the said premises and the residing premises."

9. On 2nd July 1994 the respondent, through her daughter, Miss Candy Fong, applied to have the default judgment set aside. This application was heard by Downey D.J. on 14th July 1994. Miss Candy Fong appeared for her mother. She relied upon an affidavit , sworn by her mother in Toronto, Canada, stating that she was "currently residing in Toronto for medical treatment", that she had "not received or been brought to my attention of any statement of claim for repossession of the property prior to the notice of judgment order which was attached to the entrance door of the property" which was brought to her attention by her daughter. She finally stated that she intended to defend the action. Miss Fong admitted receiving a registered letter from the applicant but contended that it did not contain any Form 13. The Presiding Officer stated that the order had been obtained "without sufficient evidence of reasonable requirement". He did not, however, go on to set aside the default judgment but ordered a stay of execution until 29th July 1994 and that the respondent file an affirmation "exhibiting documents collected from the post office on or about 18th September 1993 and giving details of all communications with the applicant's solicitors".

10. The Presiding Officer seems to have formed the view that the applicant, who had said no more as to the requirement for his daughter than is set out above, had not placed sufficient evidence before the court to resist the application to set aside the default order. He was, in effect, saying that in the face of such an application the applicant had not crossed the threshold of "reasonable requirement". Accepting that he was entitled so to hold we find it difficult to understand why the Presiding Officer required an affidavit as to the service of the first Form 13 which, the order for service by ordinary post having been made, was no longer of any relevance.

11. However that may be, prior to the resumed hearing Miss Fong filed an affidavit stating that the letter addressed to her mother from the applicant's solicitors which she picked up from the post office on about September 18th 1993 did not contain any Form 13. The Presiding Officer then held:

"Apart from uncertainty over service there are insufficient grounds for an order under section 53(2)(b)......................... I propose to set aside the order."

12. While it is not clear what was meant by the words "uncertainty over service" what is clear is that the Presiding Officer was restating the view which he had already expressed that the assertion of requirement of the flat for occupation by a 19-year-old daughter was not, without more, "sufficient evidence of reasonable requirement". He was not, we are satisfied, as was suggested in argument, wrongly concerning himself with the threshold which the respondent would eventually have to cross, i.e. to satisfy the court that it would not be just and equitable to make a possession order.

13. The Presiding Officer was entitled to rule as he did setting aside the default judgment and requiring that the matter go to trial. The appeal must be dismissed.