LIP FAI HOI v. SOUTHEAST FOODS LTD

LDPE 1007/2025

[2025] HKLdT 58

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPE 1007 OF 2025

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DECISION

(Application for Leave to Appeal)

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1.  This is an interlocutory application taken out by the respondent on 11 September 2025 seeking (i) leave to appeal against my Judgment made on 5 September 2025 (“the Judgment”) and (ii) writ of possession of the Premises be set aside.

Background

2.  Pursuant to a Tenancy Agreement dated 31 March 2022 (“the Tenancy Agreement”), the applicant let Unit 14, 16/F, Block A, Gold Way Industrial Centre, 16-20 Wing Kin Road, Kwai Chung, New Territories (“the Premises”) to the respondent for a term of 9 years from 8 April 2022 to 7 April 2031. The initial monthly rent reserved in the Tenancy Agreement from 8 April 2022 to 7 April 2025 was $6,600 inclusive of management fee, rates and Government rent. Thereafter, the monthly rental has become $7,128.

3.  In a Notice of Application filed to the Lands Tribunal (hereinafter referred to as “the Tribunal”) on 28 July 2025, the applicant applied for recovery of possession of the Premises and rent on the ground that the respondent had failed to pay rent from 8 July 2025 onwards. In the Notice of Application, the applicant also disclosed that there were two similar applications to the Tribunal on the basis of the respondent’s failure to pay the monthly rental on time, these applications being LDPE 1171/2023 and LDPE 1433/2023 respectively.

4.  By a Notice of Opposition dated 6 August 2025, a Mr Mak Wai Kwan Antonio (“Mr Mak”) on behalf of the respondent stated that all rental in arrears had already been settled.

Hearing on 5 September 2025

5.  The hearing of this application was heard before me on 5 September 2025.

6.  The applicant explained that when he made the application of LDPE 1171/2023, the respondent paid back one month rental immediately but with rental for the period from 8 September 2023 remaining in arrears. On 4 October 2023 when the hearing of that application before me took place, I allowed a relief against forfeiture for the respondent to pay back the arrears under section 21F of the High Court Ordinance, Cap 4.

7.  Section 21F of the High Court Ordinance provides as follows:

“(1) Subject to subsection (1A), this section has effect where a lessor is proceeding by action in the Court of First Instance to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non-payment of rent.

(1A) Where during the term of a lease the application of this section has prevented a lessor from enforcing against a lessee a right mentioned in subsection (1), then during that term this section shall not be applicable again to prevent the lessor from exercising that right against the lessee unless the Court is satisfied that there is good cause why this section should apply in favour of the lessee.

(2) If, within the time prescribed by rules of court for acknowledging service of the writ by which the action was commenced, the lessee pays into court all the rent in arrear and the costs of the action, the action shall cease, and the lessee shall hold the land according to the lease without any new lease.

(3) If—

(a) the action does not cease under subsection (2); and

(b) the Court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture,

the Court shall order possession of the land to be given to the lessor at the expiration of such period, but not being less than 7 days from the date of the order, as the Court thinks fit, unless within that period the lessee pays into court all the rent in arrear and such sum as the Court shall direct on account of the costs of the action.” (underline added)

8.  While the respondent was able to pay back the rental in arrears within the relief period, it failed again to pay rent for the month commencing on 8 October 2023. This forced the applicant to make the second application of LDPE 1433/2023 on 6 November 2023.

9.  Immediately prior to the hearing of this second application on 30 November 2023, the respondent paid on 29 November 2023 two months’ rental so that when this second hearing took place before me, there was no longer any rental in arrears. I granted the respondent another relief against forfeiture subject to costs in the sum of $365. Regrettably, this $365 has not been paid yet.

10.  Then came the captioned application on 28 July 2025. The respondent immediately paid back all the arrears in the evening but when the payment for the rental for the period commencing from 8 August 2025 became due, the respondent did not pay again.

11.  Once again, the respondent made that payment one day prior to the hearing of the present application on 5 September 2025, ie in the evening of 4 September 2025.

12.  The applicant said he had been tired of dealing with the respondent. Indeed, the respondent took out a Small Claim Application SCTC 45310/2023 against the applicant. For reason unknown, the respondent did not attend the hearing of the Small Claims Tribunal on 12 February 2025 and this SCTC 45310/2023 was dismissed with costs to the applicant. But subsequently on 20 February 2025, Mr Mak on behalf of the respondent applied for a re-hearing on the excuse that he got a flu and was unable to attend the hearing in the Small Claims Tribunal.

13.  Regrettably, when the Small Claims Tribunal re-heard the case on 18 March 2025, the respondent failed to attend again.

14.  In answer to my query on why rentals for the Premises were not paid punctually, Ms Cheung Wai Man Daisy replied that water seepage was found inside the Premises in July 2023. It was not repaired by the applicant until October 2023 but during this period, that is the period covered by LDPE 1171/2023 and LDPE 1433/2023, the respondent still paid rent.

15.  However, I found this defence which was not even raised in the Notice of Opposition was unwarranted. By reference to Clause 2 of the Additional Terms attached to the Tenancy Agreement, the applicant accepted no liability for the water seepage:

「租約期內因租客加建地台引致漏水問題，必須由租客負責及維修，與業主無關。」

16.  More particularly, in Worldwide Flight Services Holdings S A Royal Caribbean Cruises Limited & Another v Kai Tak Cruise Plaza Limited [2019] 4 HKLRD 56, the Court of Appeal affirmed at §21 the decision of the trial judge that:

“it is trite law that a tenant’s covenant to pay rent is regarded as independent of all other covenants or obligations under a lease. A tenant’s obligation to pay rent therefore does not depend on the landlord’s compliance with its obligations under the lease.”

17.  In addition, in Ramadour Industries Limited v Bullen Christian Anthony, CACV 19/2016 (unreported，dated 15 May 2017), the Court of Appeal agreed at §18.2 that when the court exercises its discretion under section 21F(1A), it can take into account the fact that that was a second (or subsequent) default in payment of rent within the same term of tenancy, which has led the lessor to exercise his right of forfeiture. The Court of Appeal added:

“It is clear from s.21F(1A) that the mischief it was enacted to deal with was abuse of relief against forfeiture by subsequent (or even serial) defaulters of rent.”

18.  Therefore, I delivered the Judgment as follows:

(1)  The respondent do deliver vacant possession of the Premises to the applicant；

(2)  The respondent do pay the applicant arrears of rent/mesne profits for the period from 8 September 2025 onwards until delivery up of vacant possession of the Premises, at the rate of $7,128 per month; and

(3)  The respondent do pay the applicant the costs incurred in the present applicant, which is summarily assessed at $450.

Respondent’s Interlocutory Application

19.  In the respondent’s interlocutory application filed on 11 September 2025, Mr Mak attached an affirmation stating as follows:

“Our company has fully paid the rent right before the call over and we are not asking for any delay repayment/instalment and/or relief period.

Since there is no outstanding of rent, we reacon (sic) the Order of Possession should be set aside.”

Leave to Appeal

20.  Under section 11(2) of the Lands Tribunal Ordinance,

“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.”

21.  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.”

22.  After considering what the respondent presented in his affirmation supporting his interlocutory application, and after hearing what the respondent supplemented in his oral evidence and submission, I decide that the respondent’s appeal has no reasonable prospect of success, and the respondent failed to satisfy that there is some other reason “in the interests of justice” why the appeal should be heard.

23.  In the hearing on 8 October 2025, Ms Cheung Wai Man Daisy on behalf of the respondent also explained that the respondent paid late because its sub-tenant paid late. Regrettably, this cannot be an excuse by the respondent not to honour its own tenancy agreement which was a contract with the applicant.

24.  This is a simple application for recovery of possession and payment of outstanding rent/mesne profit and costs. Since I do not allow the respondent the leave to appeal, the consequential application by the respondent for setting aside the writ of possession dated 15 September 2025 of the Premises is therefore refused.

Conclusion

25.  The interlocutory application by the respondent to seek leave to appeal the Judgment made on 5 September 2025 and set aside the writ of possession dated 15 September 2025 are both dismissed.

Costs

26.  The general rule is that costs should follow the event and the applicant seeks costs. Accordingly, I order that the respondent should pay the applicant the costs of this Application which is summarily assessed at $200.