LEE LUNG ON v. CHAN WAI CHOY t/a BUN WAH STORE AND OTHERS

LEE LUNG ON v. CHAN WAI CHOY t/a BUN WAH STORE AND OTHERS

Subtenants can only acquire protection against the head landlord under Part II by proving both that the primary user of the whole premises was domestic and that the landlord agreed to or acquiesced in that domestic use under s51(2); no evidence of landlord agreement or acquiescence existed, so Part II protection did not apply and the plaintiff was entitled to possession and mesne profits.

Citation
LEE LUNG ON v. CHAN WAI CHOY t/a BUN WAH STORE AND OTHERS
Parties
Plaintiff: LEE LUNG ON; 1st Defendant: CHAN WAI CHOY trading as BUN WAH STORE; 2nd Defendant: CHENG TAK MAN; 3rd Defendant: CHOW CHUN LAN; 4th Defendant: CHENG HO LUNG; 5th Defendant: CHEUNG ON LUN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 July 1981
Case Number
HCA5319/1980
Procedural Posture
Landlord and Tenant Possession Proceeding / Final Judgment (high Court)
Outcome
Judgment for plaintiff; possession granted against 2nd to 5th defendants; mesne profits and costs awarded to plaintiff
Legal Topics
Subtenancy, Protected Tenancy, Primary User as Dwelling, Acquiescence by Landlord, Termination of Tenancy, Landlord and Tenant Ordinance Part II
Source Language
EN
Landlord and Tenant Law Property Law Housing Law Subtenancy Protected Tenancy Primary User as Dwelling Acquiescence by Landlord Termination of Tenancy +1 more

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Parties

LEE LUNG ON

Plaintiff

CHAN WAI CHOY trading as BUN WAH STORE

1st Defendant

CHENG TAK MAN

2nd Defendant

CHOW CHUN LAN

3rd Defendant

CHENG HO LUNG

4th Defendant

CHEUNG ON LUN

5th Defendant

Procedural Posture

Landlord and Tenant Possession Proceeding / Final Judgment (high Court)

Legal Issues

  1. 1 Whether subtenants are protected under Part II of the Landlord and Tenant Ordinance despite head tenancy being for business
  2. 2 Whether the primary user of the premises was domestic
  3. 3 Whether the landlord agreed to or acquiesced in domestic use contrary to lease terms

Ratio Decidendi

Subtenants can only acquire protection against the head landlord under Part II by proving both that the primary user of the whole premises was domestic and that the landlord agreed to or acquiesced in that domestic use under s51(2); no evidence of landlord agreement or acquiescence existed, so Part II protection did not apply and the plaintiff was entitled to possession and mesne profits.

Court Disposition

Judgment for plaintiff; possession granted against 2nd to 5th defendants; mesne profits and costs awarded to plaintiff

Orders

  • Possession to plaintiff against 2nd to 5th defendants
  • Mesne profits at the rate of $3,200 per month from 1 September 1980