NG YUE HONG AND OTHERS v. SINGH KULDIP BEGHAL AND ANOTHER

LDPD 764/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 764 of 2016

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DECISION
(APPLICATION FOR LEAVE TO APPEAL OUT OF TIME)

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1.  This is an interlocutory application taken out by the intended respondent on 1 August 2016 seeking leave to appeal out of time against my decision dated 8 July 2016 (“the Decision”) which refused him to join as an additional respondent. His application to stay the execution of the writ of possession on the ground that he had a contract with the respondent to stay at the premises in question for one year more was also refused.

2.  Having heard the submissions of both parties, I dismissed the interlocutory application and said I would provide the reasons for my decisions in due course. Here are the reasons.

Background

3.  The applicants are the owners of 2/F, 230 Des Voeux Road West, Hong Kong. By a tenancy agreement dated 15 June 2015 (“the Tenancy”), the applicants let part of the premises ie Room B (hereinafter referred to as “the Room B”)to the respondent for a term of two years until 17 June 2017. The rental reserved was $4,800 per month plus electricity charge at $1.5 per degree and water charge at $10/degree of consumption.

4.  The applicants filed an application to the Lands Tribunal on 12April 2016 for recovery of possession of theRoom B on the ground that the respondent had failed to pay rent since 18January 2016.

5.  No Notice of Opposition was filed by the respondent and pursuant to Rule 15 of the Lands Tribunal Rules, the Tribunal made a judgment on 20 May 2016 requiring the respondent to pay the applicants the rental in arrears and the costs of the application on or before 3 June 2016 failing which the respondent had to deliver vacant possession of the Room B to the applicants.

6.  On 2 July 2016, the intended respondent filed an interlocutory application applying for leave to join as an additional respondent on the ground that he had a contract with the respondent with 1 year unexpired.

Hearing on 8 July 2016

7.  Hearing of this interlocutory applicationtook place on 8 July 2016 and it was the evidence of the intended respondent that he had a contract with the respondent for staying at the Room B. For some time, he had been paying rental/electricity charges/water charges under the Tenancy on behalf of the respondent but since 18January 2016, he had not done so because the respondent told him to pay the rental etc to the respondent himself as the latter was the one who let the premises to the intended respondent. Thus when the applicants’ rent collection agent, Madam Cheung Yuen Ling (“Madam Cheung”) of Golden Stars Property chased for the rental, the intended respondent referred Madam Cheung to look for the respondent, for instance, at his workplace.

8.  The intended respondent also suggested that he would pay back all the arrears of rent on behalf of the respondent but by stages up to six months. Madam Cheung refused.

9.  In view of the intended respondent’s evidence as stated at §7 above, I found there was no landlord and tenant relationship between the applicants and intended respondent. I dismissed the interlocutory application by the intended respondent.

Leave to Appeal Out of Time

10.  The intended respondent filed another interlocutory application on 1 August 2016 seeking:

(i) leave to join as an additional respondent;

(ii) leave to appeal out of time of my decision dated 8 July 2016; and

(iii) stay of the execution of the writ of possession of the premises.

11.  When the hearing took place on 3 August 2016, the intended respondent produced further evidence that he had made payment in the sum of $7,279 to Madam Cheung on account dated 20 April 2016, ie should the respondent pay up all the arrears, this sum would be returned to the intended respondent.

12.  The intended respondent also disclosed that his wife is pregnant and would be going to give birth to his child around 15 September 2016. For this reason, he request to stay at the Room B for another month and he would come up with one month’s rental by 12 August 2016 although by his contract with the respondent the rental due date would be the 16^th of each month.

13.  Section 11(2) of the Lands Tribunal Ordinance provides that:

“Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law”

14.  In that regard, the intended respondent could not put up any point of law that may support his application for leave to appeal out of time.

15.  Section 11AA (6) of the Lands Tribunal Ordinance provides that:

“Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

16.  In this hearing, the intended respondent mainly repeated his case in the first interlocutory application to join which I have dismissed in the Decision. I decided that the intended respondent’s appeal had no reasonable prospect of success, and the intended respondent failed to satisfy me that there was some other reason “in the interests of justice” why the appeal should be heard. 

Stay of Execution of the Writ of Possession

17.  In spite of my intended dismissal of the application for leave to appeal by the intended respondent, I had referred his request to stay the execution of the writ of possession to Madam Cheung for further consideration. Madam Cheung declined to agree the stay stating that she had reminded the intended respondent more than 6 months ago of the consequence of the respondent failing to pay up the arrears of rental. But in spite of that, the intended respondent chose to pay rent to the respondent and only asked Madam Cheung to look for the respondent herself. The intended respondent’s difficulty to move, if any, had been forewarned.

18.  Having reviewed the submissions by both parties, I opined that if the intended respondent had difficulty to move when his wife is pregnant, he would be in no better position to move when he had a new born baby to look after. I also agreed with Madam Cheung that the intended respondent’s difficult or sad situation had himself to blame when he had been forewarned. There is no obligation from Madam Cheung or the applicants to chase the arrears in rental from the respondent in order to save the trouble of the intended respondent.

Conclusion

19.  The interlocutory application filed by the intended respondent on 1 August 2016 to seek leave to appeal out of time and stay the execution of the writ of possession all be dismissed and there being no order as to costs.