TSANG WING HONG v. KAN WAN HING

Landlord and tenant - relief from forfeiture for

non-payment of rent

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                Where an application for possession is made under s.53(2)(d) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 [read with s.52(2A)(b)], the Tribunal has no jurisdiction to pray in aid s.8(9) of the Lands Tribunal Ordinance, Cap. 17, to make an order relieving the tenant in terms of s.69 of the District Court Ordinance, Cap. 336, because applications under s.53(2)(d) of Cap. 7 are not proceedings "to enforce ... a right of re-entry or forfeiture for non-payment of rent"; and the fact that rent in arrears is also claimed in the application for possession does not convert the application into one to which s.69 of Cap. 336 applies.

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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Fuad, J.A.:

1. This is an appeal from a decision of the Lands Tribunal dated the 29th May this year.

2. The Appellant brought an application for possession of his flat in Quarry Bay relying on the grounds provided by section 53(2)(d) of the Landlord and Tenant (Consolidation) Ordinance. From the Reasons for Judgment supplied by the learned Presiding Officer, it is clear that at the conclusion of the hearing it was conceded on behalf of the tenant that she had persistently neglected to pay rent when it fell due. It was also conceded that at the time of the institution of the proceedings to recover possession, the tenant owed rent to the Appellant. A further concession was made - that it was open to the Tribunal to make an order for possession, but relief from forfeiture was sought.

3. It was then submitted on behalf of the Appellant that although the Tribunal had the right by statute to exercise the powers of a Judge of the District Court as to equitable relief [section 8(9) of the Lands Tribunal Ordinance, Cap. 17] that power was restricted to the relief set out in section 69 of the District Court Ordinance, (Cap. 336). Thus relief was available only where an action was brought to enforce a right of forfeiture or re-entry for the non-payment of rent. In this case, it was submitted, the action was not for the non-payment of rent but was because "the tenant ...... had caused unnecessary annoyance, inconvenience or disturbance to the landlord..." in terms of section 53(2)(d) of the Landlord and. Tenant (Consolidation) Ordinance. If the action had been for the non-payment of rent, it was contended, it would have been brought pursuant to section 53(2)(a) of the Ordinance which empowers the Tribunal to make an order for possession on that ground.

4. This is what the Presiding Officer said about these submissions:

"If this were an action where at the time of the issue of the proceedings the applicant was not in default in the payment of his rent or if in the pleadings the applicant had not relied upon the failure of the respondent to pay rent then due but had relied wholly upon the past conduct of the respondent then this action would have had no element of non-payment of rent. But that is not the case. Applying the ordinary meaning of the words used by the legislature in section 69 of the District Court Ordinance I held that it is clear that if the order sought in any way relies upon the failure of the respondent to pay rent as it fell due the Tribunal has the power to grant relief against forfeiture. In this action there was a claim that rent had not been paid the applicant relied on that claim as an integral part of his case and led evidence to that effect. The non-payment was conceded by the respondent and I found it to be a fact. I found that this is a case where the applicant is seeking to re-enter the suit premises in part for the non-payment of rent and hold that I have jurisdiction to grant relief against forfeiture on these particular facts.

 

    Having held that I had the jurisdiction to grant relief I exercised that power and granted the minimum period in respect of which the respondent was required to remedy his default. "

5. When the Appellant's application to the Tribunal is read the averment in paragraph 4 indeed makes it plain that the pleader had in mind the provisions of section 53(2)(d) of the Landlord and Tenant (Consolidation) Ordinance, which read:

These provisions are to be read with section 52(2A)(b) which is in these terms:

6. It can readily be seen, therefore, that the application is not embraced by section 69(1) of the District Court Ordinance (which contains provision regarding forfeiture for non-payment of rent) because these were not proceedings "to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non payment of rent", and the learned Presiding Officer recognised this.

7. However, with due respect, I do not see how the fact that it is pleaded that the tenant still owed rent on the date of the filing of the application for possession, and the fact that arrears of rent were claimed, converted the application into proceedings to enforce a right of re-entry or forfeiture. If the Presiding Officer were right it is difficult to see how his view of the law would work in practice. Must two sets of proceedings be instituted, or the right to recover the unpaid rent be abandoned? This cannot be so. It seems to me entirely proper to claim any arrears of rent when an application is founded on section 53(2)(d) of the Landlord and Tenant (Consolidation) Ordinance; indeed this is expressly envisaged by section 8(8) of the Lands Tribunal Ordinance. In my judgment the Tribunal had no power to make the order appealed against. I would therefore allow the appeal.

Cons, J.A.:

8. I agree and also would allow the appeal.

Kempster, J.A.:

9. I, too, agree.