COLIN VIVIAN WILLIAMS v. KS CHAN

LDNT 10/2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

NEW TENANCY APPLICATION NO.LDNT 10 OF 2003

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J U D G M E N T

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1. This is an application from Mr. Colin Vivian Williams (the Applicant) for the granting of a new tenancy in respect of House No. C2, Ville de Jardin, 33-35 Sui Wo Road, Fotan, Sha Tin, New Territories (hereinafter referred to as "the subject premises"), under Part IV of the Landlord and Tenant (Consolidation) Ordinance (hereinafter referred to as "the Ordinance"). Mr. Williams is the tenant of the subject premises and Ms K.S. Chan (also known as Chan Kin Sang) (the Respondent), the landlord. The application was lodged on 28th January 2003. The Respondent opposed on 12th February 2003, the granting of new tenancy on the ground of own use pursuant to section 119E(1)(b) of the Ordinance.

2. The Applicant's Case

The Applicant considered the grant of new tenancy to him appropriate. He contended that the CR 101 served on him by the landlord was invalid, as the power of attorney for F. Zimmern & Co. to serve on the landlord's behalf the CR101 was not provided at the time of service of the document. Secondly, he considered that the Notice of Opposition filed on 12th February 2003 was filed out of time. In his opinion, since his Notice of Application was lodged on 28th January 2003, the Notice of Opposition should, by the latest, send out to all parties concerned on 11th February 2003. Finally, he considered the Applicant's ground of opposing the grant of new tenancy inadequate. The ground of own use as provided under section 119E(1)(b) of the Ordinance is subject to section 119E(1)(b)(i) of the same ordinance. In other words, he considered that it would manifestly be unjust and inequitable to the tenant if the Tribunal refuses to grant the new tenancy. The Respondent also cited section 35(1) to support his argument, which provides that the Tribunal should only grant the order for re-possession if the Tribunal is satisfied that greater hardship would be caused by refusing to grant the order than by granting it.

3. In support of his last view-point above, the Respondent said that he had since 13 years ago, been living at the subject premises. He has done a lot of improvement works to the subject premises ever since and his children have grown up there, too. He now works in Sha Tin. His two children study in an International School in Sha Tin, too and his wife has also managed to find a part time teaching post in the same International School. Removal out of the subject premises not only is stressful but will also result in financial hardship to his family and loss of good friends and neighbours. They would find it difficult to rent a similar property to their requirements within the same neighbourhood. The Respondent does not consider the Applicant in greater need than him, of the subject premises since she can opt to remain in her present accommodation by seeking a court order to extend her existing tenancy upon its expiry.

4. The Respondent's Case

The subject premises were previously owned by the Coleus Development Limited, of which the Respondent is one of the shareholders. On 15th April 2002, she purchased the subject premises from the said Company and has since become the landlord of the Applicant. She did notify the Applicant the change in ownership. Thereafter, there had been some communication between the Applicant and the Respondent's solicitor, F Zimmern & Co. Apparently, the Respondent's purpose of acquiring the ownership of the subject premises is to take back the subject premises for her own use when it is mature to do so. In fact, she has made no attempt to cover up her motive when cross-examined in open court. She smartly acquired the subject premises two weeks before the end of April 2002 so that when the Applicant's tenancy is to be terminated, there is no breach of the provision of section 119E(2) of the Ordinance.

5. As declared in open court and indicated in the Respondent's first affirmation, the Respondent wants a larger size residence for her own use and to cater for her siblings on and off coming back from outside Hong Kong (when coming back to Hong Kong, they get used to staying with her albeit being for a short period of time). Apart from this, she needs a larger size residence to entertain her business partners and guests. She has engaged in automobile import and re-export to China and other Asian countries for more than 20 years. She regards herself as a successful businesswoman.

6. Counsel's Rebuttal Against The Applicant

The Respondent's counsel advised the Tribunal that the CR101 served should be valid. He cited Malcome Merry's view on page 59 of her book, Domestic Tenancies (Butterworths Asia, 1977), which is as follows: -

"The notice should be signed by the landlord or his duly authorised agent. If notice is signed by an agent, evidence of his authority to sign may be essential. The notice must state the name of the landlord. If the specified form is used but the name of the landlord is omitted, a covering letter or other document sent with the form and stating the name of the landlord may be read with the form to supply the name and together to constitute a notice substantially in accordance with the prescribed form. The question is whether the notice was given in sufficient detail that the tenant is not reasonably misled as to the identity of the landlord at the date of the notice, so a slight mis-statement of the name of the landlord is excusable."

He said by the two letters dated 16th May 2002 and 5th June 2002 respectively from Messrs. F. Zimmern & Co. to the Applicant. The requirements set out in Malcome Merry's Domestic Tenancies have been met in full.

7. The counsel also disagreed with the Applicant's reckoning concerning the 14 days within which the Notice of Opposition should be filed. He cited section 8 of the Interpretation and General Clauses Ordinance (Cap.1) for the Tribunal's reference. As to the availability of similar accommodation for renting by the Applicant, the counsel provided the Tribunal with a list of such properties with particulars.

8. The counsel also advised the Tribunal that the major issue that needed to be considered in arriving the decision on the Applicant's application is whether the Respondent reasonably requires the subject premises for her own occupation as provided under section 119E(b) of the Ordinance. To assist the Tribunal in ascertaining the meaning of "REASONABLY REQUIRE", the counsel cited Ma Hon v. Andy Mahtani alias A.T. Mahtani [1981] HKLR 570 and suggested that "REASONABLY REQUIRE" connotes something more than desire, although at the same time something much less than absolute necessity is sufficient.

9. Tribunal's Views

I do not feel comfortable with the counsel's view on the validity of the CR101. His explanation that by the two letters to the Applicant on 16.5.2002 and 5.6.2002, the Applicant should be able to correlate F. Zimmern & Co. with the Respondent is unacceptable. F. Zimmern & Co. was the Respondent's legal representative in May/June 2002, might not be representing the Respondent again in 2003. Moreover, the name of landlord on the Form CR101 is apparently stated wrongly as F. Zimmern & Co., Solicitors which is not the landlord. If the particulars entered therein were to be taken as only related to the signature, then the name of landlord would then be omitted. In justifying the validity of the problematic CR101, it may be useful to apply Malcome Merry's principles but the two letters dated 16.5.2002 and 5.6.2002 definitely cannot be regarded as the covering letters referred in Page 59 of Malcome Merry's Domestic Tenancies. The validity is only there fortunately (or unfortunately in case of the Applicant) because the Applicant responded to the Respondent's CR101 by sending out to the Respondent the CR102 and subsequently sent in to the Tribunal the Form 22, i.e. the Notice of Application for a new tenancy. These two latter documents from the Applicant indicated that before the hearing, the Applicant cast no doubt on the validity of the Applicant's CR101 and relied on it as the legal basis of his Form 22.

10. I also feel puzzled concerning the citing of section 8 of the Interpretation and General Clauses Ordinance (Cap.1) to rebut the Applicant's allegation that the Notice of Opposition was filed out of time. The appropriate one perhaps, should be section 71(a) of the same Ordinance, which is as follows: -

"a period of days from the happening of any event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;"

Based on the above rule, the Notice of Opposition should be deemed to have been filed within the prescribed 14 days.

11. Based on the evidence provided by the Respondent, I disagree that there are no similar properties within a reasonable distance from the subject premises available for renting by the Applicant. On the other hand, the Respondent's need of the subject premises is there. Being a successful merchant, it is reasonable that she expects to live in a larger residence than her existing one so that she can entertain her business counterparts, guests and relatives in a decent manner (she should realize the consequence if she is later found that she has no genuine need of the subject premises).

12. As to whether the refusing to grant the order for a new tenancy would cause greater hardship to the Applicant than that to the Respondent in the case of granting the order, I tend to believe that the hardship to the Applicant is greater. The refusing to grant will expropriate from the Applicant something that the Applicant has long been accustomed to whereas in the case of granting the order, it is just the status quo to the Respondent. As the Applicant has pointed out, his family has been living at the subject premises for 13 years. He has made a lot of improvements to the subject premises. The children have grown up there and they have made friends there, too. Moving out may mean not just expending a substantial amount of money but a change in the mode of living to the whole family. However, section 35(1) pertains to Part I of the Ordinance and has been repealed. The Tribunal does not need to look at whether in not granting the order, the hardship to the Applicant is greater. In parallel, I am unable to see that it is unjust and inequitable to allow the Respondent to take back the subject premises.

Orders:

I hereby order that: -

1. the tenancy of the subject premises held by the Applicant is terminated on 30th April 2003;

2. the Applicant is allowed to give back vacant possession of the subject premises to the Respondent on 31st August 2003 (if the Applicant chooses to vacate earlier than 31st August 2003, he shall inform the Respondent in writing giving the Respondent not less than two weeks notice of his intention to do so);

3. during the period between 30th April 2003 and the date of giving back possession of the subject premises to the Respondent, the Applicant shall continue to pay rent at the same rate and save for the duration, other terms of tenancy shall remain in full force and unaffected; and

4. no order as to costs.

(The terms of new tenancy have been dealt with during the hearing. The new rent at $20,500 per month proposed by the Applicant is acceptable to the Tribunal. Other terms agreed are as follows: -

1. Two years term certain.

2. Three months notice to break may be served after the first 12 months of the two years term.

3. Rent exclusive of management fee and rates but inclusive of government rent.

4. Deposit at the rate of two months rental.

5. Other terms to remain.

6. Within two months from date of decision to execute a written tenancy agreement.

7. Refund or topping up of deposit to be effected upon execution of tenancy agreement.)