KWOK ON INVESTMENT CO LTD v. SZE YEUNG TAK

bjbj DCCJ009342/1981 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 9342 OF 1981 _______________________ BETWEEN KWOK ON INVESTMENT COMPANY LIMITED Plaintiff and SZE YEUNG TAX alias ALAN ZIE YONGEER Defendant ____________________ Coram: H.H. Judge Li ___________ JUDGMENT ___________ At the outset of the hearing, Mr. Chain for the Plaintiff invited me to rule on the point of who should begin. His argument ran thus: (1) In his Particulars of Claim he alleges a monthly tenancy. This was admitted in paragraph 1 of the Defence; the reservation that this was subject to the production of the title deeds is neither here nor there. (2) Section 121(1) of the Landlord and Tenant Ordinance Cap. 7 applies to any tenancy and therefore applies to this monthly tenancy. (3) In his Particulars of Claim (paragraph 2) he alleges that a valid notice to quit has been served under Part V. He submits that this has in effect been admitted in paragraph 2 of the Defence. (4) The Plaintiff has therefore on the pleadings a complete case for an order for possession. (5) To defeat this cause of action the Defendant alleges in his Defence that one of the exceptions to Part V set out in 121(2) applies namely that it is a domestic tenancy and Part II therefore applies. (6) As it is the Defendant who so alleges the burden is on him to establish this and he should begin. (7) He relies on the reasoning in the Court of Appeal decisions in Orlean Estates Ltd v. Jordan (1981) HKLR 331 and Chan Kwok Kwan v. Chan Cheong Wai (1980) HKLR 450 to support his argument that the burden is on the tenant to bring himself within Part II by establishing a domestic tenancy. (8) He adds that the plea in paragraph 5 of the particulars of Claim that the suit premises were let and used for business purposes wherefore Part II does not apply is not an essential allegation for his claim. It could as well be put in a Reply and should be disregarded for present purposes. As Mr. Chain fairly accepts the two Court of Appeal decisions cited do not directly assist. In the Orlean Estates case it was common ground that the letting was for a composite purpose and in the Chan Kwok Kwan case the letting was for a non-domestic purpose. The statements in those cases that the burden is on the tenant to bring himself within Part II must be read with those circumstances in mind. But as a matter of principle the argument that once a monthly tenancy and a valid Part V notice to quit are admitted, the burden is on the tenant to bring himself within Part II by establishing a domestic tenancy is in my judgment a sound one. Section 121(1) applies to every tenancy. If on the pleadings a tenancy is admitted and a valid Part V to quit is admitted the plaintiff has a complete case. It is up to the tenant to establish one of the exceptions in 121(2). The burden is upon him. Mr. Chow submits that 121(1) and 121(2) should be read together. So they should. But read together Part V applies to every tenancy except the categories in 121(2) and the burden is on the person who alleges that the case is within one of the excepted categories so to establish. I agree with Mr. Chain that the insertion of paragraph 5 in particulars of Claim does not matter. The plaintiff should not be taken to assume a burden which in fact does not rest on him. The remaining question is therefore whether on the pleadings here the Defendant has admitted a tenancy and a valid Part V Notice to quit. In my judgment he has not. I read paragraph 2 of the Defence to contain two limbs: (a) Admitting that a notice dated 21/5/81 was served on the Defendant but putting the Plaintiff to strict proof of its contents and effect and that it was a valid Part V notice to quit and (b) asserting positively that in any event any notice to quit under Part V would be imoperative because the tenancy is within Part II. The Defendant thus puts the plaintiff to strict proof of a valid Part V notice to quit. I cannot accept Mr. Chain s argument that paragraph 2 of the Defence should be read as admitting paragraph 2 of the particular of Claim and as contending only that the notice to quit is inoperative because of Part II applies. Reading it fairly, I cannot read paragraph 2 of the Defence in this way. As Mr. Chain quite properly accepts, if the Defence cannot be read to admit a valid Part V Notice to quit, he does not have a complete case on the pleadings for an order of possession and should begin. If the plaintiff establishes a valid Part V notice to quit, the burden at the end of the day would be upon the tenant to bring himself within Part II by establishing a domestic tenancy. Representation: Mr. B. Chang instructed by Messrs. David Y.Y. Fung & Co. for Plaintiff. Mr. T. Chow of Messrs. Robert W.H. Wang & Co. for defendant. 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