Summary
The High Court wrongly dismissed a landlord’s release application on a new maintainability objection never pleaded or examined before the prescribed or appellate authority. Whether the tenancy was residential, commercial or composite required pleading and evidence, not selective reading of pleadings for the first time in supervisory proceedings. The concurrent findings of bona fide commercial need were restored, with three months to vacate subject to an undertaking and payment conditions.
Issues
- Whether the High Court could entertain a new fact-dependent maintainability objection to the release application in supervisory proceedings.
Held
- A mixed question of law and fact without a pleaded foundation, issue or finding below could not first be introduced in the third court. The purpose of the tenancy was a factual question requiring evidence, rather than a pure jurisdictional issue. (¶ 18–24)
- For a composite residential and commercial tenancy, the landlord could seek eviction for residential or commercial need as appropriate. The High Court had not examined the legality of the concurrent merits findings and exceeded its supervisory jurisdiction in overturning them on the new ground. (¶ 25–28)
- The prescribed and appellate authorities’ orders were restored. The tenant received three months to vacate upon the usual undertaking, payment of up-to-date rent arrears and advance payment of three months’ use-and-occupation charges at the applicable rate. (¶ 29–30)
Result
Appeals allowed; High Court orders set aside and release orders restored, with conditional three-month time to vacate.