HK ROMAN MATTRESS FACTORY LTD. v. LING PYUN YUN BONG

LDPD2701 of 2002

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No. 2701 of 2002

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JUDGMENT

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Background

1. The Applicant was the registered owner of the suit premises known as Flat D on 22nd Floor, Tower 1 and Car Parking Space No. 29 on the First Basement, Belvedere Garden, Nos. 530-590 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong ("the Premises"). The Applicant pleaded that in or about 1996, the Applicant had given permission for Mr. Ling Kwok Yiu ("Mr. Ling"), a director of the Applicant, to occupy the Premises as a licensee free of charge as from 1996. The Applicant claimed that following the death of Mr. Ling, his personal license to occupy the Premises was revoked as from the date of his death. Since the death of Mr. Ling, the Respondent had without the permission of the Applicant wrongfully occupied the Premises. The Applicant said that despite repeated demands and requests, the Respondent had failed and/or refused to deliver vacant possession of the Premises to the Applicant. The Applicants therefore filed an application against the Respondent to the Tribunal on 2 October 2002 applying for (1) possession of the Premises; (2) damages; (3) interests; (4) further and/or other reliefs; and (5) costs.

2. The Respondent filed a notice of opposition on 19 November 2002 opposing the application. The Respondent averred and said that "this tribunal has no jurisdiction by virtue of Section 8(8) of the Lands Tribunal Ordinance (Cap. 17) over the subject matter of the claim or the relief or remedy sought in this application, and that this application be dismissed and that the Applicant do pay the Respondent the costs of this application." Further or alternatively, the Respondent averred and said that "all further proceedings in this application be stayed with liberty to the Applicant to commence proceedings for the same or similar claims in the District Court or the High Court and that the Applicant pay to the Respondent the costs of this application."

3. The Applicant applied on 19 December 2002 to list the application for hearing. The application was fixed for hearing on 9 January 2003.

The Respondent's striking out application

4. The Respondent filed an interlocutory application on 24 December 2002. It was fixed for hearing on the same date of 9 January 2003 and time as the original application by the Applicant. The interlocutory application was for an order to be made that "this court has no jurisdiction over the Respondent in respect of the subject matter of the claim or the relief or remedy sought in the action, and that the action be dismissed and that the Applicant do pay the Respondent the costs of this action, including the costs of this application."

The parties' arguments and their analysis

5. The Respondent submitted that the Applicant's case was that there was a license granted free of charge to Mr. Ling and that there was no landlord and tenant relationship between the Applicant and the Respondent. The Respondent disputed that the relationship between the Applicant and Mr. Ling was as simple as that. Also, the Respondent said that the Respondent and her children had been residing in the Premises as a matrimonial home. However, the Respondent submitted that Section 8(8) of the Lands Tribunal Ordinance (Cap. 17) clearly stated that "the Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise,...to make orders for the payment of rent, mesne profits, and for the payment of any other money which is due under the tenancy or sub-tenancy". Therefore, submitted the Respondent, notwithstanding the difference in the parties' opinion of the status of the Respondent or the Respondent's deceased husband, the Applicant's application, by its own admission, shows that the application is outside the ambit of the jurisdiction of the Tribunal under Section 8(8) of the Lands Tribunal Ordinance.

6. The Respondent also submitted that since the Landlord and Tenant (Consolidation) Ordinance was a consolidated Ordinance relating to "landlord or tenant, protection and determination of tenancies, and control and recovery of rent" (extracted from the title of the Ordinance) and as there was no landlord and tenant relationship between the Applicant and the Respondent, as admitted by the Applicant's own pleadings, it must be that the Applicant's application could not fall within any of the sections of the Landlord and Tenant (Consolidation) Ordinance.

7. For the above reasons, the Respondent concluded that the Applicant's application should be dismissed and that the Applicant should pay the Respondent the costs of this proceeding.

8. The Applicant stated in the notice of application (Form 22) that whilst the Applicant was the owner, the Respondent was "the occupier". In the pleadings, the Applicant admitted that although a personal license had been granted by the Applicant to Mr. Ling, the late husband of the Respondent, to occupy the Premises since about 1996, the said license had been revoked from the date of death of the said Mr. Ling. Therefore, according to the Applicant, the Respondent was a wrongful occupier without license.

9. Although the Applicant submitted that the Lands Tribunal has jurisdiction of the application by virtue of Section 8(8) or the other parts of Section 8 of the Lands Tribunal Ordinance, the Applicant did not actually state the reason in both their skeleton written submission or oral submission. For example, the Applicant wrote that "the said section (i.e. the said Section 8(8)), inter alias, empowered the Tribunal in any application for possession or for ejection, under the Landlord and Tenant Ordinance (Cap. 7) or otherwise, whether or not it grants any such application, to make order for rent and mesne profits." However, this does not assist the Applicant at all. If, even on the basis that the Respondent's deceased husband was an occupier without a license, as admitted by the Applicant; then, did the relationship of the Respondent and the Applicant fall within the provisions of the said section? The answer is obviously no.

10. On the other hand, the Tribunal accepts the Respondent's submission that Section 8 of the Lands Tribunal Ordinance clearly stipulates that the Lands Tribunal, in an application for possession, whether under the Landlord & Tenant (Consolidation) Ordinance or otherwise, only have jurisdiction when there is a landlord and tenant relationship. To illustrate the key words in question, the relevant sub-sections of Section 8 are set out below:

"8. Jurisdiction the Tribunal

(1) ......

(2) ......

(3) ......

(4) ......

(5) ......

(6) The Tribunal shall have jurisdiction to make for possession under the Landlord and Tenant (Consolidation) Ordinance (Cap.7), including an order for possession to take effect on termination of the current tenancy where it does not make an order for the grant of a new tenancy under section 119G of that Ordinance. (Added 49 of 1982 s. 8. Amended 30 of 1983 s.2).

(7) The Tribunal shall have jurisdiction to make orders for possession or for ejectment in relation to premises to which Part I, or tenancies or sub-tenancies to which Part II, Part IV of Part V of the Landlord and Tenant (Consolidation) Ordinance (Cap.7) applies where the contractual period of a tenancy or sub-tenancy has been terminated by forfeiture, by surrender, by notice of termination within the meaning of Part IV or Part V of that Ordinance or by notice to quit given by the landlord to the tenant, the tenant to the landlord, the principal tenant to the sub-tenant or the sub-tenant to the principal tenant. (added 30 of 1983 s.2. Amended 32 of 1985 s. 27; 102 of 1995 s.2)

(8) The Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise, and in any application for a new tenancy under Part IV of that Ordinance, whether or not it grants any such application, to make orders of the payment of rent, mesne profits, including interim payments of rent and mesne profits, and for the payment of any other money which is due under the tenancy of sub-tenancy. (added 30 of 1983 s.2)

(8A) ......

(9) ......"

(underlines added)

11. The Applicant further submitted that the words "or otherwise" in Section 8(8) of the Lands Tribunal Ordinance suggested that although there was no landlord and tenant relationship between the Applicant and the Respondent, the provisions of the Ordinance might apply to the Applicant's application. However, the Applicant did not elaborate further. On the other hand, the Respondent submitted that no judicial interpretation of the words "or otherwise" could be found. In the circumstances, the Respondent submitted that since, as admitted by the Applicant but disputed by the Respondent, there was only a license between the Applicant and the Respondent's deceased husband who occupied the Premises as a licensee, the Applicant's application should have commenced in the District Court or the High Court, but not the Tribunal.

12. It is the Tribunal's opinion that the words "or otherwise" in the said Section 8(8) only refers to those tenancies or sub-tenancies which may not be subject to the provisions of the Landlord & Tenant (Consolidation) Ordinance. These words cannot be intended to mean that the Lands Tribunal has jurisdiction over cases where there are no landlord & tenant relationship.

13. The Applicant also submitted that under the Lands Tribunal Ordinance, there were no rules for striking out an application. However, the Applicant acknowledged that under Section 10(1) of the Lands Tribunal Ordinance, the Tribunal in the exercise of its civil jurisdiction shall have the powers which are vested in the Court of First Instance, so far as it thinks fit. Therefore, the Applicant agreed that it would be appropriate to follow, in this case, the provisions of Order 18, Rule 19 of the Rules of High Court, High Court Ordinance (Cap. 4). Nevertheless, submitted the Applicant, although the said Order 18, Rule 19 set out the grounds for striking out, the Respondent had not set out in the interlocutory application any of these grounds, so the Respondent's application failed. Therefore, in the word of the Applicant, " by reference to O.18 r.19 of the Rules of High Court, lack of jurisdiction over the subject matter of the claim or relief sought is not a valid ground for making an application for striking out the Applicant's application and therefore the Respondent's application should be dismissed."

14. Order 18, Rule 19 of the Rules of High Court actually provides:

"The Rules of High Court - Order 18

Striking out pleadings and indorsements (O.18 r.19)

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that -

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1)(a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading."

(underline added)

15. Although the words "lack of jurisdiction" are not found in the Order 18, Rule 19, it is very obvious that this reason must fall within the ground (a) (i.e. "it discloses no reasonable cause of action or defence, as the case may be") of section (1) of the said Rule 19. As a matter of common sense, if the Applicant were right and "lack of jurisdiction" should not be covered by the said Rule as one of the grounds for a party to seek an order from the Court to strike out an application by the other party, it would mean that the former would have to prepare to defend a case even if the Court must dismiss the case at the end on the ground of lack of jurisdiction. This appears to be very absurd to the Tribunal. Therefore, the Tribunal finds that the Respondent was wrong in this regard.

16. The Respondent further submitted that alternatively, even if the Tribunal considers that the Tribunal has no jurisdiction over the Applicant's application, "the Tribunal may by virtue of Section 8A of the Lands Tribunal Ordinance transfer this application to the District Court or the High Court or by its inherent jurisdiction stay any further proceedings in this application with liberty to the Applicant to commence proceedings for claim of the same or similar subject matter in the District Court or the High Court." When the Applicant was asked by the Tribunal that whether the Tribunal should transfer the original application on its own motion, the Applicant submitted that in the event that the Tribunal disagrees with them in the judgment on the Respondent's interlocutory application, the Tribunal should grant leave to the Applicant to apply to transfer the original application to the District Court or the High Court.

17. The Tribunal agrees with the Applicant that Section 8(A) does give the Tribunal the power to transfer a case to the District Court or the High Court. However, the Tribunal finds that the Tribunal should consider whether to invoke such a section only on application by a party. In the present case, there was no such application. Also, the Tribunal does not agree with the Applicant that after the Tribunal decides to agree with the Respondent that the Applicant's application be struck out for the lacking of jurisdiction in the Lands Tribunal, the Tribunal should then grant leave to the Applicant to apply for transfer to the District Court or the High Court. The Tribunal finds that there is nothing to be gained in such a transfer. The Applicant can, if necessary, commence proceedings in either the District Court or the High Court. Therefore, in the present case, the Tribunal does not consider it appropriate to exercise its discretion to transfer the case to another court or to grant leave to the Applicant to make an application for transfer.

Costs

18. It is noted that the Respondent stated in the Notice of Opposition that the Tribunal had no jurisdiction over the subject matter of the Applicant's application. Yet, the Applicant proceeded to apply to list the Application for hearing. Only after the date of notice of hearing of the Applicant's application did the Respondent file the interlocutory summons application to strike out the Applicant's application. Hence, the Respondent should be entitled the costs of the Applicant's application, including the costs of the Respondent's interlocutory application.

Orders

1. The Applicant's application be struck out;

2. The Applicant shall pay the Respondent the costs of the action including the costs of the Respondent's interlocutory application, at District Court Scale, to be taxed if not agreed;