Yong J:

The plaintiff a tenant sues the defendant, his landlord for the recovery of the sum of $8,833 being the accumulated excess payments of rent from 15 November 1957 to 31 January 1966.

When the monthly rental was increased from $130 to $143, the plaintiff applied to the Rent Assessment Board to fix the "maximum recoverable rent" payable by him in respect of the premises. On 15 February 1966 the board made an order fixing the monthly rental at $50. On 18 May 1966 the plaintiff filed his claim in Court. At the trial neither party called any evidence.

The plaintiff's claim is based on s. 3(4) of the then relevant Control of Rent Ordinance, 1956, which reads:

A tenant who has paid his landlord a sum in excess of the rent which may lawfully be received under the provisions of this section may recover such sum from the landlord.

The defence admitted that $8,833 was overpaid but contended that the plaintiff's claim was barred by the Limitation Ordinance 1953, s. 6(1)(d) of which provides:

6(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(d)actions to recover any sum recoverable by virtue of any written law ...

The defence maintained that the period of limitation ran from the date when each excess payment was made and the plaintiff contended that it ran from the date of the order of the board fixing the "maximum recoverable rent".

The question which this Court has therefore to decide is: In an action for the recovery of the excess payments of rent where an order fixing the rent has been made by the Rent Assessment Board, whether the period of limitation commences to run from the date when each excess payment was made or from the date of the order of the board.

From the wording of s. 6(1)(d) of the Limitation Ordinance 1953, it is clear that the period of six years will begin to run from the date when the cause of action accrues.

A cause of action normally accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. (See Halsbury's Laws of England, 3rd Edn. pp. 193 and 194).

In Cooke v. Gill [1873] LR 8 CP 107, 116. Brett J defined "a cause of action" to mean "every fact which is material to be proved to entitle the plaintiff to succeed." This definition was approved by the Court of Appeal in Read v. Brown [1888], 22 QBD 128, 131 in which Lord Esher MR in his grounds of judgment said that it included "every fact which it would be necessary for plaintiff to prove if traversed, in order to support his right to the judgment of the Court."

After reviewing these and other authorities including Barton v. North Staffordshire Rly Co. [1888] 38 Ch D 458 and Welch v. Bank of England & Ors. [1955] Ch. 508, 544. I have come to the conclusion that the period of limitation does not begin to run until there is a complete cause of action, and a cause of action is not complete when all the facts have not happened which are material to be proved to entitle the plaintiff to succeed. In the instant case, the plaintiff's cause of action is not complete until an order is obtained from the Rent Assessment Board fixing the amount of the rent legally recoverable under the Control of Rent Ordinance. I therefore hold that the period of limitation commenced to run only from the date of the order of the board.

Counsel for defence further contended that immediately upon such an order being made by the Rent Assessment Board, it has retrospective effect, that is, the order would operate from the date when each excess payment was made. He was however not able to cite any authority in support of his proposition.

I have always understood that it is a fundamental principle of law that no statute, penal or civil, shall be construed to have a retrospective operation unless such a construct