AHN, EUNSUN v. WO KWOK WAI AND ANOTHER

AHN, EUNSUN v. WO KWOK WAI AND ANOTHER

Applicant failed to serve a valid notice under section 58(1) CPO specifying the particular breach and requiring remedy; even if a valid notice had been served the breach alleged was capable of remedy and the Tribunal would, in the exercise of its discretion under section 58(2), have granted relief from forfeiture; accordingly no cause of action for forfeiture had accrued and the application for recovery of possession is dismissed.

Citation
[2024] HKLdT 25
Parties
Applicant (landlord): AHN, EUNSUN; 1st Respondent (tenant): WO KWOK WAI; 2nd Respondent (tenant): TO KIT CHI
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
11 March 2024
Case Number
LDPD152/2024
Procedural Posture
Lands Tribunal Application for Recovery of Possession (landlord and Tenant) / Judgment
Outcome
Application dismissed; no cause of action for forfeiture accrued
Legal Topics
Breach of User Clause, Forfeiture of Tenancy, Relief From Forfeiture, Section 58 Conveyancing and Property Ordinance, Residential Vs Boarding/boarding House Use, Evidentiary Onus
Source Language
EN
Landlord and Tenant Law Property Law Contract Law Civil Procedure Breach of User Clause Forfeiture of Tenancy Relief From Forfeiture Section 58 Conveyancing and Property Ordinance +2 more

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Parties

AHN, EUNSUN

Applicant (landlord)

WO KWOK WAI

1st Respondent (tenant)

TO KIT CHI

2nd Respondent (tenant)

Procedural Posture

Lands Tribunal Application for Recovery of Possession (landlord and Tenant) / Judgment

Legal Issues

  1. 1 Whether the respondents used the premises for non-residential/business purposes in breach of the user clause
  2. 2 Whether the applicant served a valid notice under section 58(1) CPO prior to seeking forfeiture
  3. 3 Whether the alleged breach was capable of remedy and whether relief from forfeiture should be granted

Ratio Decidendi

Applicant failed to serve a valid notice under section 58(1) CPO specifying the particular breach and requiring remedy; even if a valid notice had been served the breach alleged was capable of remedy and the Tribunal would, in the exercise of its discretion under section 58(2), have granted relief from forfeiture; accordingly no cause of action for forfeiture had accrued and the application for recovery of possession is dismissed.

Court Disposition

Application dismissed; no cause of action for forfeiture accrued

Orders

  • Costs order nisi that there be no order as to costs; costs order nisi to be made absolute after 14 days unless varied by summons