RAM ISARDAS MAHTANI v. WONG KWOK TAI

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J U D G M E N T

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Cons, V.-P.:

1. This is an appeal from the decision of the Lands Tribunal which, on the 10th November last year, ordered the Landlord of 50A MacDonnell to grant a new tenancy to the sitting tenant for 2 years at a rent of $16,000 per month exclusive of rates. At that time the premises were held on a monthly tenancy at a rent of $9,750 inclusive of rates. They fell within Part IV of the Landlord and Tenant (Consolidation) Ordinance Cap. 7 by reason of a certificate issued by the Commissioner of Rating and Valuation, under Section 51B of the Ordinance, on the 18th January this year.

2. On the 23rd of the same month, the Landlord served notice to terminate the tenancy under Section 119(1), using the prescribed form CR101 and stating as the date of termination the 31st July. The notice contained the necessary requirement for the Tenant to notify the Landlord within 2 months whether or not he was willing to give up possession at the date of termination (subsection (4)) and stated that the Landlord would not oppose an application for a new tenancy under Part IV (subsection (5)). The Tenant responded on the prescribed form CR102 that he was not willing to give up possession. The form itself is not dated, but the covering letter bears the date of the 8th February and there is no suggestion that that document was served out of time.

3. There followed a period of considerable correspondence between the solicitors on either side. Then, on the 15th March, the Landlord served on the Tenant a notice in the form CR105 (Section (Section 119D(3) (a) (ii)) requiring him to make application to the Lands Tribunal for a new tenancy within 2 months thereafter in serving the notice when he did the Landlord acted prematurely. He should have waited until 2 months after serving his original notice (subsection (3) (a) (i)). However he rectified the error by serving a second CR105 on the 29th March.

4. The Tenant unfertunately did not comply with the requirement until the 24th June, i.e. he allowed almost 3 months to elapse. Furthermore, his application was based on a misunderstanding that the correspondence between the solicitors had resulted in an agreement binding on the Landlord either to renew the existing tenancy at an increased rent of $16,000 per month exclusive of rates or to grant a new tenancy, the terms of which were undecided in all respects. With that in mind the Tenant's solicitors wrote in due course to suggest that expert witnesses would not be necessary at the hearing and that they proposed to call none. The Landlord's solicitors replied that they took the same view and they too would not be calling such evidence. At the hearing, the Presiding Officer swiftly and quite rightly disposed of the misunderstanding. Nevertheless no application was made by either side for an adjournment to call further evidence. It is therefore difficult to sustain counsel's present complaint that the Presiding Officer did the best he could on what there was before him. It is pertinent to observe that in the circumstances Section 119D(i) required him to make some order in favour of the Tenant.

5. The Tenant's application to the Lands Tribunal was expressed in the heading to be pursuant to Section 119 of the Ordinance, and in the "prayer" to make application only under Section 119I, 119J, and 119K. These references were clearly in error, for none of the Sections makes provision for application to the Tribunal, which should have been by way of Section 117(1). This was recognised and acknowledged by the Landlord in his amended Notice of Opposition. Nevertheless the errors enabled counsel for the Landlord to contend before the Tribunal, and again before us, that, the Tenant having failed to justify the "agreements" pleaded there was no sufficiently viable application left to support the jurisdiction of the Tribunal. With respect I am unable to agree. The application was indeed ineptly drafted, but it seems to me that even so it was, and could not be taken for anything other than, an application within the Ordinance. The only point of substance I see in the appeal is whether the time for making it was properly extended.

6. Section 119D(3)(a) provides as follows:-

"(3) (a) No application under section 117(1) shall be entertained if it is made -

(i) less than 2 months after, either, the giving of the landlord's notice under section 119 or, as the case may be, the making of the tenant's request for a new tenancy under section 119A; or

(ii) more than 2 months after the giving of a notice in the specified form by the landlord to the tenant requiring the tenant to make such an application; or

(iii) after the current tenancy has terminated in accordance with this Part.''

7. As I mentioned earlier the tenant did not comply with sub-paragraph (ii). His application was more than two months after the requirement had been made. The Presiding Officer purported to extend the time by virtue of Section 10(2)(d) of the Lands Tribunal Ordinance Cap. 17-

" (2) Without prejudice to the file generality of the powers vested in it under subsection (1), the Tribunal nay -

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(d) for good cause, enlarge the time, whether or not that time has already expired, fixed by any Ordinance -

(i) for the giving of any notices either before or after any proceedings have commenced;

(ii) for the taking of any step in any proceedings; or

(iii) for the filing or lodging of any document in any document in any proceedings."

8. The effect of this provision upon Section 119D(3)(a)(iii) was considered by this Court in Sin Hula Trust, Savings & Commercial Bank Limited v. Ng Yee May 15th November 1985 Civil Appeal 137 of 85 unreported. While expressly reserving his opinion as to its effect upon sub-paragraphs (i) or (ii) of that subsection Sir Alan Huggins took the view that it could provide no assistance to a tenant who had allowed the date of termination to pass before he made his application to the Tribunal, for by that time he had ceased to be a tenant and had no locus standi to ask for a renewal. The other two members of the Court, i.e. Fuad J.A. and myself agreed. I added that -

"Section 10(2)(d) of the Land Tribunal Ordinance to my mind does not apply, because the application to the Tribunal is not a step in any proceedings nor is it the filing or lodging of any document in any proceedings."

9. I cannot now recall if any particular argument was advanced on that occasion or whether I simply thought that by the natural use of language a "step in proceedings" means a step in proceedings which are already in existence and does not include the act which initiates the proceedings themselves. Indeed, by its common use in that sense for so long the phrase may well now have acquired the mantle of a term of art. Counsel were unable to assist in this respect and for myself I have been unable to find any instance where the phrase has been accorded a wider meaning.

10. For this reason I am satisfied that in the present instance the Presiding Officer ought not to have entertained the application of the Tenant. I would therefore, for my part, allow the appeal and set aside the order made below.

Kempster J.A.:

11. I would do likewise for the reasons given by the Vice-President.

Power, J.A.:

12. I have had the advantage of reading the decision of the Vice-President and rely upon the recital of facts set out therein. I find myself respectfully unable to agree, however, with the conclusion reached.

13. The term "step in the proceedings" is usually, it is true, used as it is in s.6 of the Arbitration ordinance, to describe a step taken in the course of proceedings. However, the context in which it is used in an ordinance such as the Arbitration Ordinance clearly indicates that this is so. There is, in my view, no such indication in s.10(2)(d) of the Lands Tribunal Ordinance except insofar as it might be said to spring from the use of the word "in". It can, of course, be suggested that the use of that word indicates that the step to which reference is made must be a step, within those proceedings and that the step which initiates the proceedings cannot be properly so described. Was this the intention of the legislature?

14. One must, I am satisfied, seek that intention by reading these words in the context of the Ordinance in which they appear and one is not assisted by reference to similar words in other legislation where different considerations apply.

15. Section 10 when applied to Part IV of the Landlord and Tenant Ordinance was clearly intended to give the court extensive powers. It can enlarge time for notices required to be given prior to the commencement of proceedings, enlarge time for any steps in the proceedings and enlarge time for the filing or lodging of any documents in the proceedings. Were these powers meant to have application to everything except the initiating step in the proceedings? If a restrictive interpretation is given to s.10(2)(d) anomalous consequences which in my view cannot have been intended by the legislature would be produced. The court would, for instance, prior to the commencment of the proceedings, be empowered to enlarge the time for the giving of a notice by the landlord terminating a tenancy under s.119(2) whereas, should the tenant make application to enlarge the time for his application to the Lands Tribunal, which he is required to make in consequence of the landlord's notice, the court would have no power to deal with his application. The intention of the legislature seems to me clearly to require that a liberal interpretation be given to the words and that the initiating step, once it has brought the proceeding into being, can be properly described at a step therein, i.e. as "a step in the proceedings".

16. For my part I would have dismissed the appeal.

Cons, V.-P.:

17. The appeal is therefore allowed and the order made below is set aside; there shall be an Order Nisi that the appellant have his costs of the appeal.