XCHRX ANTHONY DAVID COLLINS v. LAM KAI MING AND OTHERS

HCMP 1375/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1375 OF 1998

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J U D G M E N T

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1. This is an appeal against the decision of Madam Registrar Carlye Chu on the 19th August 1999 when she struck out the Defence of the First Defendant and entered judgment for the Plaintiff under order 14 rule 3.

2. The Plaintiff claims, as Receiver of the property of Li Mei Yuk under an Order of the Court dated 21st February 1994, possession of premises known as Lots Nos. 977B R.P. and 977B1 in D.D.116, Yuen Long, New Territories.

3. The land concerned is to all appearances waste land with some building or buildings on it. It is agricultural land and was first sub-let to the first Defendant's late husband in 1962 on a five year lease. It was renewed for a further 5 year term in 1967.

4. The following year the lessee obtained with the lessor's consent a licence from the District Office to maintain accommodation on the land. The licence was valid for one year. This did not change the nature of the land. It remained agricultural land. The licence was not renewed thereafter. As a consequence the accommodation remained in existence without permission. That however is not my concern.

5. The third 5 year tenancy was granted in 1972 and the fourth in 1977. In 1979 there was a change of landlord when Lau Sui Kan became the registered owner.

6. The final (5th) agreement commenced in 1982 and expired at the end of January 1987. The tenant, the first Defendant's husband, held over, rent being paid until 21st April 1988 (which would have covered the period until end of July 1988).

7. In late August 1988 Madam Li Mei Yuk became the registered owner of the land. In 1994 the first Defendant's husband died intestate. As stated earlier the Plaintiff was appointed receiver on 21st February 1994. In March 1998 proceedings were commenced by Originating Summons against all occupiers of the land and in September 1998 the first Defendant was specifically identified and joined as such. She contests the Plaintiff's entitlement to possession and avers that there is no cause of action in trespass at the suit of the Plaintiff.

8. Miss Lisa Wong who appears on behalf of the first Defendant, and has argued her case with clarity and conciseness, has conceded:

1) that the first Defendant and her family are in occupation of the claimed land, or the relevant part of it for the purpose of these proceedings.

2) that she herself has no interest in the land in her own right or by way of inheritance or transfer.

3) that it is unarguably agricultural land and has not changed in character by reason of any buildings which exist lawfully or unlawfully on it.

9. On the positive side she contends that at the time of the commencement of these proceedings a tenancy existed and subsists, vested in the personal representative of her late husband's estate. The sole real question in this appeal is whether a tenancy subsisted after the death of her husband.

10. The tenancy after the death of the tenant holding over cannot vest in the widow in the case of agricultural land (whether or not there is a dwelling on it) by virtue of section 50(6) of the Landlord and Tenant (Consolidation) Ordinance (Cap.7) as Miss Wong readily concedes.

11. The argument that somehow on the death of her husband a tenancy vests in the personal representative of her husband's estate (i.e. the Official Administrator on his intestacy) fails 'in limine'. Section 50(4)(c) makes it clear that the benefit and protection afforded by the part of the Ordinance relating to the tenure of domestic premises and specifically those persons identified in subsection 4(a), are not available to a personal representative of a deceased tenant or sub-tenant, or "any other person who is not a person mention in (4)(a) as entitled to those benefits or that protection". It is clear therefore that the Official Administrator cannot come within the class of persons so identified. But this is of course in any event on the basis of section 50(4) applying whereas it is clear that section 50(6) excludes from the operation of those provisions, tenancies or sub-tenancies of agricultural land.

12. Miss Wong sought to argue that a common law entitlement existed outside the statutory framework, citing amongst other references, Wirral Borough Council v. Smith [1982] 43 P & CR 312. But that decision has no application to the circumstances in Hong Kong. The English case resolved itself on a technical point which concerned the vesting of a tenancy, on the death of a tenant intestate, in the President of the Family Division under section 9 of the Administration of Estates Act 1925. The law in Hong Kong is codified (and consolidated) in the Ordinance which has been considered in this case. There is no common law situation in existence outside and coexistent with the statutory, where there is express provision for the circumstances in the legislation.

13. The Appellant's argument therefore fails. One other issue has been raised by the Respondent and that is the non-payment of rent since April 1988 - i.e. over eleven years now (to date) and for between five and six years before the death of the tenant. That itself, it is argued by Mr. Hingorani for the Plaintiff, evinces an intention by the tenant to terminate the tenancy. The only real relevance of this issue is whether the tenancy was determined at some date earlier than the death of the tenant.

14. Miss Wong argues from the premise that the landlord failed to collect the rent and that at all times the tenant was ready and willing to pay - and therefore it is wrong to construe the state of affairs as failure by the tenant. I regret, in the circumstances of this case that I cannot agree with her.

15. The tenant was holding over. Suddenly the landlord stopped attending to collect rent. There had in fact been a change of landlord within a few weeks of collection of the last instalment. The tenant made no effort to trace the landlord to make payment. The identity of the new landlord was ascertainable. No evidence was put forward of the steady accumulation of rent due, in an account, so that on request the money was immediately available.

16. There is clear authority for the proposition that non-payment over a period puts an end to the tenancy. Holding over and continued non-payment in the circumstances of this case clearly raises the presumption of termination. If a tenancy had existed, the covenant to pay rent would have been breached. Although it does not matter in the context of this case - because I am satisfied no tenancy existed in any event after the death of the first Defendant's husband - failure to pay rent would in any event have determined the tenancy long ago.

17. The Learned Registrar's decision was correct. There is no defence to the Plaintiff's claim. The appeal is therefore dismissed with costs.