YU WING KAN v. LAU SHUK LAN

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REASONS FOR JUDGMENT

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Clough, J. A.:

1. These are our reasons for our order made on the 12th June 1990 allowing the appeal of Madam Yu Wing-kan ("the applicant") against the order of the Lands Tribunal (presiding officer His Honour Judge Leong) made on the 20th April 1989 refusing her application under rules 11 and 13A(7) of the Lands Tribunal Rules to be added as a respondent, and to set aside the default order for possession of a residential flat ("the premises") in Hong Kong made by the Tribunal in favour of the landlord of the premises (Mr. Yu Wing-kan: "the landlord") on the 28th November 1988, in proceedings brought by him under Part II of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7).

2. It was common ground that the premises were within Part II of the Ordinance. They had originally been let by the landlord to Madam Lau Shuk Lan ("the tenant") under a Chinese Tenancy Agreement ("the Agreement") made on the 1st August 1975 for a 2 year term. Upon the expiration of that term on the 31st July 1977 the tenant had held over as a monthly tenant on the terms of the Agreement. The tenant had left Hong Kong in 1984 and gone to live in the Philippines, leaving her son Mr. Lee Li Mang to manage the premises on her behalf.

3. The landlord claimed that in late March (he later said it was in April) 1988 he had discovered that the premises had been sublet by the tenant in breach of the Agreement. This resulted in the service by his solicitors of a notice dated the 2nd May 1988, addressed to the tenant at the premises pursuant to section 58 of the Conveyancing and Property Ordinance (Cap. 219), alleging that in contravention of clause 2 of the Agreement ".... you had sublet the whole of the above premises and ceased to live in any part thereat." Possession of the premises on or before the 10th May 1988 was demanded by the notice which threatened proceedings for possession in the Lands Tribunal in the event of default. The landlord collected no rent after the end of April 1988.

4. The notice not having been complied with, the landlord made an application to the Lands Tribunal on the 19th May 1988 against the tenant for possession of the premises. The application was made in reliance upon section 53(2) (e) and (h) of the Ordinance. In the particulars of claim it was pleaded that clause 2 of the Agreement had provided inter alia that the tenant:

"…. should not without the Applicant's consent assign underlet or part with possession of the said premises or any part thereof."

5. There followed the somewhat nebulous pleading in paragraph 5 of the particulars of claim that the tenant had:

"…. without the consent of the Applicant sublet, and/or part (sic) with possession of the said premises or any part thereof to parties whose identities are unknown to the Applicant and does not occupy any part of the said premises as her dwelling."

6. No application had been made under section 53(6C) to require the sub-tenants to disclose their interest in the premises.

7. In reliance on the sublettings so alleged in breach of clause 2 of the Agreement and upon the cessation of occupation of the premises by the tenant, the landlord claimed that the tenancy had been forfeited and claimed vacant possession of the premises under section 53(2) (e) and (h) and rent and mesne profits as from the 1st May 1988.

8. There followed the usual manoeuvrings that commonly occur where sub-tenants are not joined as parties to proceedings for possessions under Part II of the Ordinance. On the 4th June 1988 Mr. Lee applied for legal aid on the tenant's behalf. This application was refused on the 23rd June. Nevertheless he applied on the 18th July 1988 to be added as the second respondent in the proceedings. This application was dismissed by the Tribunal (presiding officer His Honour Judge Striven) on the 5th August 1988, but the Tribunal directed that hearing notices be sent to Mr. Lee at the premises as agent for the tenant.

9. Notices of the landlord's application having been duly served on the tenant pursuant to rule 8(b) of the Lands Tribunal Rules and no notice of opposition having been filed by the tenant under rule 53, the landlord applied on the 7th November 1988 under rule 13A for a default order for possession of the premises and arrears of rent and mesne profits. He made two affirmations in support of this application. By his affirmation filed on the 7th November 1988 he verified his particulars of claim. In particular he exhibited a copy of the Agreement together with an English translation which was not certified for the purposes of section 27 of the Evidence Ordinance (Cap. 8).

10. However, pursuant to section 10(6) of the Lands Tribunal Ordinance (Cap. 17) the Tribunal was not inhibited from  giving such weight as might be appropriate to the English translation of the Agreement, particularly in default proceedings. Clause 2 of the translation began as follows (words in square brackets added) :

"2. "B" [the tenant] shall not sub-let in whole or in part or transfer the tenancy of the premises to other person ...."

11. As to the alleged breach of clause 2 by the tenant, this was affirmed in paragraph 8 of the landlord's affirmation, in the same terms as ;paragraph 5 of the particulars of claim, by reference to unlawful subletting or parting with possession of the premises or any part thereof by the tenant to parties whose identities were unknown to the landlord. However, by his supplemental affirmation filed on the 23rd November the landlord affirmed inter alia that he had discovered "the unlawful subletting sometime in late March 1988 when I was summoned by the Respondent's son to inspect the windows of the premises for the purpose of repair."

12. On the 28th November 1988 the Tribunal, as might be expected, made a default order for possession and rent and mesne profits in favour of the landlord against the tenant. The position now was that the landlord had obtained an order for possession against the tenant which appeared to be good under section 53(2) (e) or (h), but what of the sublettings to parties alleged to be unknown to the landlord? It was at least possible that one or other of them might want to claim that their interest was protected under Part II of the Ordinance. It was therefore important, as always, that no writ for possession should be issued without due compliance with Order 45 rule 3 which applies to the Lands Tribunal by virtue of section 10(1)(g) of the Lands Tribunal Ordinance.

13. It transpired from later evidence of the landlord that he claimed that he and his wife were scared of the tenant's son Mr. Lee and the occupants of the premises. Be that as it may, no attempt seems to have been made by the landlord's solicitors to invoke section 53(6C), nor was there evidence of any attempt to identify the persons in actual occupation of the premises so that notice of the possession order could be served upon them personally or at least individually by registered post. Instead the Tribunal appears to have been satisfied to issue a combined writ of fieri facias and possession on the strength of the landlord's solicitors' clerk's affirmation evidence of the service of a notice in the usual form but addressed to:

"The below-mentioned Respondent, Lau Shuk Lan, and to all persons in actual possession of the premises...."

14. The evidence of the solicitors' clerk was that the notice in question was sent by prepaid registered post on Wednesday the 28th December 1988. He also affirmed that on the same day at about 4.30 p.m. he had posted up a copy of the notice at a conspicuous place at the main entrance to the premises. He had done the same on the following day at about 4.15 p.m. when he had gone to the premises and found the previous notice to be missing. He had repeated the process in the same circumstances when he returned to the premises at 12.05 p.m. on Friday the 30th December 1988.

15. Under the circumstances his evidence was at the very least ambiguous when he affirmed that on the 28th December 1988 he had sent "by prepaid registered post to the Respondent and to all persons being in actual possession of the said premises a Notice..... setting out the particulars of the said Order..." In fact only one notice had been posted to the premises addressed in the manner indicated above. The affirmation of the solicitors' clerk concludes with a paragraph that begins as follows:

"7.    I am informed and according to the best of my knowledge and information and verily believe that save for the Respondent and the abovementioned persons served with the said Notice, there is no other person who is in actual possession of the whole or any part of the said premises.''

16. This rigmarole seems to us to be a thoroughly unsatisfactory and inadmissible as evidence, even in the case of a Tribunal which is not bound by the rules of evidence. No means of knowledge is disclosed and it is an abuse of a form of words in the standard form of affidavit which is clearly intended to be used where the solicitors have properly ascertained who is in actual occupation of the premises and served them individually with notice of the order for possession and a warning that if they do not apply for relief a writ of possession will issue: see the Form PF94 in the Supreme Court practice Vol. 2, para 298 and Form 17 in Atkin's Court Forms, Vol. 19 (1984 Issue), at p.232.

17. In reliance on this unsatisfactory evidence the combined writ was issued on the 31st January 1989. it seems that the next relevant event was that the bailiff's officers went to the premises to levy execution on the 2nd March 1989. Finding nobody answering the bell, they posted up at the main door of the premises a notice, in what appears to be a standard stencilled form, requiring delivery of possession of the premises on or before the 9th march 1989. It is significant that the notice also enjoined any occupier who claimed a right to remain in the premises to apply to the Lands Tribunal without delay.

18. The result of this notice was that on the 6th March 1989 Madam Ho Lai wah made an application for legal aid to enable her to apply to be joined as a party to the proceedings. This application was refused on the same day. Thereafter, on the 8th March 1989, the applicant and Mr. So Man-kung applied for legal aid to enable them to apply to be added as parties and to set aside the judgment for possession. Mr. So Man-kung's application was refused on the same day, but on the 10th March the applicant was granted legal aid and Mr. Simon Cheung was assigned to act as her solicitor, although it seems that his firm was not actually instructed by the Director of Legal Aid until the 13th March.

19. On the 6th April 1989 the applicant applied to be added as a respondent to the proceedings and to set aside the judgment for possession. In her supporting affirmation she claimed that the tenant had orally granted her a sub-tenancy of a cubicle in the premises in 1977. She produced a rental receipt dated the 31st October 1977 purporting to be sighed by the tenant. She described the layout of the flat, indicating that another cubicle nah been occupied by a Mr. Wong who had moved out in January 1988. She clamed that the remainder of the premises had been occupied by the tenant and her family until 1984 when the tenant had gone to live in the Philippines, leaving her son, Mr. Lee, to manage the premises.

20. The applicant claimed that the landlord had known about her sub-tenancy. According to her evidence the landlord had come to the premises every month between 1977 and 1986 to collect the rent from the tenant or Mr. Lee. She alleged that the landlord usually came after 6 p.m. and was acquainted with her and with Mr. Wong. She said that he knew of the sublettings of their respective cubicles. On one occasion, she affirmed, she had let the landlord in when he came for the rent and she had replied in the affirmative when he asked her if she was a sub-tenant. She contended inter alia that the landlord had waived his rights under clause 2 of the Agreement.

21. She affirmed that she worked as a factory worker in Quarry Bay, leaving the premises at around 7.30 a.m. and returning at about 6.30 p.m. She claimed to have been unaware of these proceedings until the 2nd March 1989 when she had seen the bailiff's notice posted up at the main door of the premises.

22. In his affirmation filed on the 17th April 1989 the landlord denied all knowledge of the applicant or her alleged sub-tenancy. He admitted knowledge of the tenant's visits to the Philippines but denied knowing that she had gone to live there in 1984. He affirmed that his wife had collected the rent from the premises before 1983. According to him the rent, usually overdue, was handed to his wife in cash by Mr. Lee outside the door of the premises.

23. The landlord's evidence was that the tenant had represented that the people living in the premises were her relatives. He and his wife had, he said, made no further enquiries about the identity of the occupiers because of the unfriendly treatment they received when they went to collect rent. He said that in or about 1983 he had taken over the collection of rent because his wife had been rather scared of Mr. Lee. The landlord claimed to have received similar treatment, which caused him to ask the tenant in about May 1984 to pay the rent into his bank account. Because payment was often late, he said, he had asked his bank in or about August 1987 to collect rent on his behalf.

24. Whereas the landlord had previously affirmed that sublettings had been made to persons unknown, he disclosed for the first time in this affirmation that in April 1988 he had been informed by Madam Ho Lai Wah that she was the sub-tenant of the premises.

25. The evidence in support of the applicant's application did not challenge the uncertified translation of clause 2 of the Agreement which had been exhibited to the landlords affirmation filed on the 7th November 1988. However it appears from the affidavit of Mr. Simon Cheung, which was admitted unopposed on the hearing of this appeal, that when preparing for the hearing of the application and reading for the first time the original Chinese version of the Agreement, he formed the view that clause 2 was expressed to prohibit subletting of the premises but not subletting of part of the premises. There being insufficient time to obtain a certified translation of the Agreement, he nevertheless submitted to the Tribunal at the hearing of the application on the 20th April 1989 that the exhibited translation of the Agreement was incorrect and that clause 2 did not prohibit subletting of part of the premises. On this basis he contend that the subletting to the applicant was lawful and her interest would have been saved by section 53(2)(6) and (6A) subject to the invocation of the proviso to sub-section (6A) by the landlord.

26. Mr. Cheung also informed the Tribunal at the hearing that the applicant was illiterate and only spoke the Fukenese dialect.

27. The presiding officer dismissed the application on the 20th April 1989 and, on the 27th April, dismissed the applicant's application pursuant to section 11A of the Lands Tribunal Ordinance to review his decision against the applicant. Notice of appeal against the latter decision was filed on the applicant's behalf on the 10th May 1989 and on the 23rd May the Tribunal ordered a stay of execution of the combine writ pending appeal.

28. When entertaining the applicant's application the Tribunal had to exercise the discretion conferred by rules 11 and 13A(7) respectively whether to let in the applicant as a party to the proceedings and whether to set aside his possession order made against the tenant, to the extent only that such order affected the applicant. There is a reasonably close analogy here to Order 15 rule 10 (adding party in possession to action for possession of land) and Order 19 rule 9 (setting aside judgment obtained in default of defence, with particular reference to a default judgment under rule 5 where the claim is for possession of land).

29. The leading case relating to what is now Order 15 rule 10 is Minet v. Johnson (1890)6 T.L. R. 417 (C.A.). For reasons which remain unexplained neither counsel saw fit to cite this case. In Minet v. Johnson individuals in possession of the land in question, who were not joined as defendants in the action, claimed the right to possession of the land independently of the original defendant in the action. They were let in to defend after judgment had been obtained regularly against the original defendant in default of appearance, and after their ejectment under a writ of possession. The appeal was concerned with the appellants' (the ejected parties) claim to be entitled set aside the entire judgment including that part of the judgment affecting the original defendant, but the rights of the appellants were described in the following passage in the judgment of Lord Esher M.R. at p.418:

"The defendant allowed judgment to go by default. The judgment was to the effect that the Sheriff should give possession of the premises to the plaintiff. Up to that time the plaintiff has supposed that the defendant was in possession by himself, his tenants, or his servants. But on the writ of possession being executed the appellants, who were in actual possession, said that they ought not to be ejected without being heard. Of course, if they were tenants of the defendants it was the defendant's possession, and out they must go. But supposing that they showed a right to possession not derived from the defendant, then what was their remedy? It was not to set aside the judgment obtained against the defendant, but to come in themselves and defend the action. They had a right to do this, because there had been, on their showing, a miscarriage of justice. If their application was made before judgment signet then they were to be treated at though they were defendants in the action. But if after judgment had gone by default the persons in actual possession, not knowing of the former proceedings, made their application, then they must be let in to defend, and so much of the judgment as affected them crust be set aside."

30. In their concurring judgments Lindley and Bower L.JJ. made observations of a similar tenor. At p.418 Lindley L.J. said:

"No doubt a person ought not to succeed in recovering possession of land without bringing before the Court the persons in actual possession. In most cases the defendant to the action would be the person in actual possession, but if any mistakes did occur, Order XII., R. 25, provided a way in which they might be rectified."

On the same page Bowen L.J. observed:

"The person in actual possession, although not mentioned in the writ, might at any time, even after execution, cane in to defend, and so much of the judgment and execution as affected him must be set aside. The order directed the plaintiff to give up possession, and it would be disobedience to the order for him to give up possession to any person other than the appellants. Therefore the order gave the appellants all that they were entitled to claim."

31. Minet v. Jonnson is authority for the proposition that any person in actual possession of lama who is not made a party to an action for possession of that land by a plaintiff against a defendant is entitled to be added under Order 15 rule 10 as a defendant before or after judgment, provided he has a bona fide independent claim to be in possession. However, as Lora Esher pointed out in the passage cited above, if the applicant has no independent claim because his rights are wholly dependent upon those of the defendant in the action, out he must go. If the application is made after judgment, Minet v. Jonnson confirms that if there are grounds for the application the judgment must be set aside so far as it affects the application but not as against the original defendant.

32. In his written reasons for his order the presiding officer cited Honour Finance Co. Ltd. v. Chiu Mei-mei [1989]2 HKLR 146 (C.A.) (where a defendant did not receive postal service of a writ until after judgment had been obtained in default of notice of intention to defend, but failed to have the judgment set aside under Order 13 rule 9 because it was meld to have been regularly obtained and the defendant could show no merit) in support of the proposition that the discretion to set aside a default judgment "is an unfettered discretion to be exercised along well established principles". We agree with Mr. Merry that Honour Finance is not really in point in the present case, but we accept that it goes without saying that the powers conferred by rules 11 and 13A(7) are discretionary.

33. The Tribunal approached the application in the light of the decision of the Court of Appeal in Yuen Ka-Kwok v. Ho Nai-sun [1980] HKLR 646. In that case an order for possession of premises had been made on the 12th May 1980 by Barker J. against a tenant in favour of the landlord on the ground of non-payment of rent by the tenant since April 1977. After the landlord had recovered possession the applicant, who had given evidence at the trial, applied unsuccessfully under Order 15 rule 10 to be joined as a defendant in the action and for a stay of execution for six months.

34. Minet v. Johnson was the only authority cited to the court but it was not referred to in the judgment of the court delivered by Roberts C.J. The Chief Justice described the power conferred under 0.15 rule 10 as a discretionary power and one which the courts should be slow to exercise at such a stage in the history of the action. He indicated that to succeed the applicant had to show (1) that his absence was not due to wilful default on his part and (2) that He had a defence on the merits. The court took the view on the facts that the proper time for the applicant to have intervened would have been before the hearing of the action in which he had given evidence. It also concluded that he had little merit, the Chief Justice observing at p.648:

"We see little prospect of Mr. Yuen succeeding in the action, if he were permitted to be joined as a defendant. We therefore refuse to join him as a defendant under Order 15 rule 10."

35. We observe that in this case there appears to have been no actual application to set aside the judgment for possession, only an application for a stay of executions c.f. the practice notes (on applications under Order 15 rule 10 after judgment) in the Supreme Court practice 1988, Vol. I, p.204.

36. We accept that it may well be that in exercising its unfettered discretion whether to let in a party in proceedings and to set aside a judgment in so far as it affects that party, the circumstances may be such as to render wilful default of that party material (as in Yuen Ka-kwok's case) in addition to the question of merit but we are bound ultimately by the views expressed in Evans v. Bartlam [1937]AC 473 (H.L.) to the effect that whilst the courts have laid down rules to guide themselves in the normal exercise of their discretion whether to set aside a default judgment, the court has no jurisdiction to lay down rigid rules which deprive it of jurisdiction. Even the rules of guidance may be departed from in rare out appropriate cases: see the dicta of Lord Atkin in Evans v. Bartlam at p.480 and the other citations from that authority and from The "Saudi Eagle" [1986] 2 Lloyd's Rep. 221 (C.A.) which were recently applied by another division of this court in Bank of America National Trust and Savings Association v. Graham Harry Fountain (Civil Appeal No. 156 of 1989 (unreported)) where a default judgment under Order 14 was set aside on the merits of the defence notwithstanding the absence of a reasonable excuse for the default.

37. However, the presiding officer did apply the approach adopted by the Court of Appeal in Yuen Ka-kwok and found against the applicant both as regards "wilful default" and "merit", albeit in wholly different circumstances. He gave his reasons for not believing the applicant's evidence that she had not became aware of the proceedings until the 2nd March 1989 when the bailiff's officers posted their notice at the premises and concluded that she had failed to snow that her absence from the action was due to her wilful default.

38. In taking upon himself the burden of determining the credibility of the applicant, a 69 year old illiterate Fukenese speaking woman, without seeing and hearing her give oral evidence or be cross-examined we consider that the Tribunal went too far in the circumstances of this case. Any member of the judiciary who has sat in the District Court or the Lands Tribunal dealing with possession cases under Part II of the Ordinance is well aware that spurious defences are often raised by parties claiming to be lawful sub-tenants of premises, or cubicles or cocklofts in such premises . However, scrupulous care is required to avoid injustice to such parties whom the ordinance is intended to protect. In the present case this court is in as good a position as the Tribunal to decide whether the applicant's evidence was so inherently incredible, in the light of all the circumstances, that it ought to be rejected without being tested by cross-examination. Furthermore the question arises whether in all the circumstances the applicant was acting wholly unreasonably by deferring her intervention until immediately prior to execution.

39. What are the reasons given by the presiding officer for total disbelief of the applicant's evidence without hearing her evidence on affirmation tested by cross-examination? He was wholly convinced that the applicant was aware of the proceedings because notice of the application had been posted at the entrance of the premises on the 23rd May 1988 and notices of the order for possession had been posted on the 28th, 29th and 30th December 1988. There was no evidence to indicate when the notice of the application was posted on the 23rd May 1988. As regards the three postings of notice of the possession order between the 28th and 30th December 1988 the evidence of the plaintiff's solicitors' clerk was that they had been posted up at 4.30 p.m., 4.15 p.m. and 12.05 p.m. on working days, whereas the applicant's evidence was that she was out at work at those times. It therefore seemed to us to be elementary justice to give the applicant the opportunity to explain, if required, in oral evidence, why it was that that she became aware of the contents of the bailiff's notice posted on the 2nd March 1988 and not of the earlier notices. We do not accept that her evidence was inherently incredible on this point; it could reasonably have been true.

40. The Tribunal also relied on the fact that Mr. Lee had applied on the 18th July 1988 to be added as a respondent in the proceedings. However, as Mr. Merry emphasised on appeal, the applicant was not a member of his family and it does not necessarily follow that he would have told her of the application. There was no evidence of the degree of communication and association between Mr. Lee and the other occupants of the premises other than his mother, the tenant. It is by no means unknown for occupants of premises sharing over-crowded residential premises with common cooking and ablution facilities not to be on speaking terms as a result of the friction which such conditions can produce.

41. Then it was said by the presiding officer that the delay by the applicant from the 2nd to the 8th March 1989 before applying for legal aid (on the day before the bailiff's officers would have taken possession) was obviously a deliberate act on the part of the applicant to delay recovery of the premises by the landlord. Even if the truth of the matter were to prove to be that the applicant had knowledge of the proceedings and of the application for legal aid prior to the 2nd March, and her delay between 2nd and 8th march (which period included a week-end) was deliberate, we do not consider that her conduct was necessarily wholly unreasonable or to be categorised as "wilful default".

42. Bearing in mind that the applicant is illiterate, of advanced years and obviously of very limited means, is she to be faulted for holding back from the hazards and complexities of litigation in a field of Hong Kong law which is bewildering to both lawyers and judges, and leaving Mr. Lee to apply to be joined in July 1988? Is she also to be faulted for holding back when Madam Ho Lai wah (who claimed to be the sub-tenant of the entire premises) applied for legal aid? It seems to us that she deserves sympathy rather than censure for retraining from getting involved in litigation unless compelled to do so. That sympathy inevitably increases in the case of a sub-tenant who has merit on her side. We do not accept that "wilful default" (even if it can be said to be significantly material on the facts of this case) can be properly found against the applicant. We are fortified in this view by the reaction of Lord Evershed M.R. in Barclays bank Ltd. v. Roberts [1954]1 W.L.R. 1212 (C.A.) to the conduct of a statutorily protected sub-tenant (Roberts) who held back from taking proceedings in not dissimilar circumstances until he had been evicted under the landlord bank's writ of possession. At p.1217-18 Lord Evershed said:

"         The bank's counsel also contended that Roberts could at any time after his receipt of the letter of January 22, and should, have applied for 'relief' in the Winnearls action. But my sympathies are with Roberts, who, no doubt, shared the reluctance common to most men towards embarking in litigation unless compelled so to do."

43. When it comes to merit, it is clear to us that the applicant by her solicitor was showing obvious merit on the hearing of the application when, having had insufficient time to obtain a certified translation of the Agreement, he informed the Tribunal that he proposed to challenge the translation of clause 2 and to contend that, properly translated, that clause did not prohibit subletting by the tenant of only part of the premises. At the hearing of the appeal counsel for the landlord indicated that if the applicant were let in to the proceedings the landlord reserve the right to seek to maintain his translation of clause 2. However it was conceded for the purposes of this appeal that clause 2 of the certified copy of the Agreement (which was admitted in evidence at the hearing of the appeal) only prohibited subletting of the whole of the premises. Accordingly the applicant would have a strong case in law for establishing her entitlement to protection under section 53(6) and (6A) of the Ordinance: see Church v. Brown (1808)15 Ves 258 per Lord Eldon at p.265 applied in Grove v. Portal [1902]1 Ch. 727 and followed in Cook v. Shoesmith [1951]1 KB 752 (C.A.) and Esdaile v. Lewis [1956]1 W.L.R. 709 (C.A.).

44. The presiding officer brushed aside all this by saying that if the order for possession was founded on  section 53(2) (h) of the Ordinance (which contemplates a situation where the tenant has sublet the whole or part of the premises and does not occupy any part as his dwelling) the applicant became the tenant of the landlord under section 53(6A) subject to the rights of the landlord under the proviso to sup-section (6A). He concluded:

"         The order for possession against the respondent would not affect the intended co-respondent."

45. The implication can only be that even if the applicant were in a position to show that her sub-tenancy was lawful, she did not need to be added as a respondent in the proceedings because section 53(6) and (6A) gave her protection at law, so that the order for possession against the tenant would not affect the applicant. This gives rise to technical issues which have been clarified by the English courts, but upon which counsel cited no authority on the hearing of this appeal.

46. The court file shows that the order for possession (which appears not to have been perfected) was made in terms of the application by the landlord which extended to the whole of the premises. Likewise the combined writ was in the usual form and directed the bailiff to enter "the said premises and cause the Applicant to have possession of it." If no stay of execution had occurred by reason of the application made by the applicant for legal aid on the 8th March 1989, and if the bailiff's officers had ejected the applicant on the 9th March before any application by her to the Tribunal, they would have done so validly in exercise of thee authority of the Tribunal vested in the bailiff by the combined writ: see Barclays bank Ltd. v. Roberts.

47. This would have been the position notwithstanding that, as Lord Evershed pointed out in the Roberts Case at p.1218, (citing the dictum of Scrutton L.J. in Haskins v. Lewis [1931]2 K.B. 1 at p.15):

"a writ of possession obtained at the suit of a landlord in an action in which the head tenant only has been joined as a defendant does not entitle the bailiff to evict a subtenant protected by the Acts."

48. As Jenkins L.J. succinctly put it at p.1219 when referring to the eviction of Roberts:

"         It is no doubt true treat the eviction of Roberts was wrongful in the sense that the judgment could not affect his rights as a lawful subtenant entitled to the protection of the rent Restriction Acts; but it was regular in the sense that it was authorized by the terms of the judgment and writ of possession. The wrong done to Roberts was thus, in my view, attributable to a defect in the practice of the court for which neither the sheriff or his officers, nor the plaintiffs can be held liable. The court appears to have acted correctly in accordance with the Rules of the Supreme Court. Ord. 47, r.1, and the injustice which has resulted suggests that a revision of this rule to meet cases where there are protected sub-tenants might well be considered."

49. In the present case we have the gravest doubts about the purported compliance with the requirements of Order 45 rule (3) before the issue of the combined write, bearing in mind that at the very least Madam Ho Lai Wah was known by the landlord to be the purported sub-tenant of the premises before the proceedings began. Be that as it may, it is abundantly clear that the only way in which the applicant could avoid eviction was by asserting her rights and intervening in the proceedings: see Halsbury's Laws of England, 4th edition, Vol. 17 paragraph 501 and R.E. Megarry on the Rent Acts, 10th edition, Vol. 1 pp. 457-8. This is recognised by the terms of the notice left by the bailiff's officers at the premises on the 2nd March 1989. In paragraph 2, the notice enjoins any occupier who claims a right to remain in the premises to apply to the Lands Tribunal without delay.

50. The presiding officer's view that the applicant should not be let in to the proceedings because she was in wilful default and that even if she had a lawful sub-tenancy she did not need to intervene, was therefore erroneous. Moreover we consider that the merit shown by the applicant's solicitor, Mr. Cheung, (re-inforced on appeal by the certified translation of clause 2 of the Agreement) at the hearing of the applications was so obvious that it provided an overwhelming reason for letting the applicant into the proceedings.

51. We mention that Mr. K.B. Ng, counsel for the landlord, at one stage advanced but did not press an argument in reliance on section 53(2) (e) and (5) of the Ordinance. He contended that the subletting to Madam Ho Lai Wah of the whole of the premises must (on any translation of clause 2 of the Agreement) have been unlawful and gave the landlord the right to forfeit the tenancy and recover possession of the premises under section 53(2) (e) and (5) as against the tenant and the applicant.

52. This argument involves interpreting "the sub-tenant" in section 53(2) (5) as including a lawful sub-tenant whose interest arises prior to and independently of the unlawful sub-tenancy of the premises which a tenant purports to create in breach of the contractual tenancy. Such a construction is not in our opinion justified by the terms of section 53(2) (5) which is clearly intended to be confined only to the sub-tenancy created by the unlawful subletting. In our view a prior lawful subletting is expressly covered by and protected by section 53(2).(6).

53. These reasons are in themselves sufficient to allow the appeal and we can see no practical purpose in dealing in detail with the second limb of the presiding officer's reasons rejecting the affirmation evidence of the applicant in support of her contention that, if her sub-tenancy was unlawful, then the landlord had waived the breach of clause 2 of the Agreement. We content ourselves with the general observation that we do not consider that the Tribunal was justified in rejecting the evidence of the applicant and accepting the evidence of the landlord without seeing and hearing them giving evidence and being cross-examined.

54. Before parting with this matter we find it necessary to express concern about the manner in which the Tribunal gave its reasons in this case. The "REASONS FOR ORDER" before us bears no date, only certification of the copy as a true one by a typist dated the 17th May 1989. The application had been dismissed on the 20th April 1989. An application for review was dismissed on the 27th April 1989. There is nothing in the appeal bundle or the court file to indicate whether any oral or written reasons were given prior to the review hearing or whether reasons were deferred until after the application for review or after the filing of notice of appeal on the 10th May 1989. This is all very unsatisfactory and we emphasise the need on appeal for a clear indication from the presiding officer whether the reasons for his decision or order have been initially given orally or in writing pursuant to rule 26(1) of the Lands Tribunal Rules. In the present case it is impossible to ascertain if the presiding officer in fact complied with that rule.

55. We add that it is to be hoped that the rule making authority will give consideration to amending rule 26(2) to take account of the fact that appeals under Part II of the Landlord and Tenant (Consolidation) Ordinance are brought under section 68A of that Ordinance and not under the case stated procedure (under section 11 of the Lands Tribunal Ordinance) contemplated by rule 26(2).