LAU KAM PING JACQUELINE v. BALJIT SINGH

LDPD 1447/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1447 OF 2016

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DECISION
(LEAVE TO APPEAL OUT OF TIME)

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1.  This is an interlocutory application taken out by the respondent on 1 December 2016 (“December Application”) seeking leave to appeal out of time against a default judgment made by the Tribunal on 28 July 2016 (“the Default Judgment”). 

Background

2.  This appeal concerns an application by the applicant on 13 July 2016 for recovery of possession of the premises situated at Rooms D & E, Flat D, 8/F, Hill Main Mansion, 41 Ha Heung Road, Kowloon (“Room D & E”) on the ground that the respondent had failed to pay rent for occupying Rooms D & E after expiry of a prior tenancy on 9 February 2016.

3.  Whereas no Notice of Opposition was filed by the respondent, the Default Judgment was made by the Tribunal pursuant to Rule 15 of the Lands Tribunal Rules.  It required the respondent to pay the applicant the arrears of rent/mesne profits and costs on or before 11 August 2016, failing which the respondent had to deliver vacant possession of Rooms D & E to the applicant.

4.  On 11 August 2016, the respondent filed an Interlocutory Application (“August Application”) purporting to set aside the Default Judgment and stay execution of the Default Judgment. The ground in support of this August Application included:

(1)  International Social Service (“ISS-HK”)[1] assisted him to pay the rent for Room D; and

(2)  he had resided at the premises in which Rooms D & E were situated for some 6½ years since 2010 by 3 consecutive tenancy agreements with 10% rental increase upon each renewal and an officer of ISS-HK had requested for a further tenancy renewal.

5.  Hearing of this August Application took place before me on 19 August 2016.  I found then that:

(1)  ISS-HK would only pay for Room D but not Room E[2];

(2)  the respondent had failed to pay rental for Room E since November 2015.

6.  I dismissed this August Application and leave to issue Writ of Possession was granted on 24 August 2016. Subsequently the applicant had recovered possession of Rooms D & E on 21 November 2016[3].

December Application

7.  In support of this December Application, the respondent stated mainly in his affidavit on 1 December 2016 that he had his time occupied by LDPD 1449/2016, a similar application against his wife by the same applicant/landlord in respect of the adjoining unit, ie Room B of the same address.

8.  In this morning when this interlocutory application was heard, I reminded the respondent that I could not see how these grounds put forward by him in this December Application could be taken as issues in the “point of law”.  Apart from repeating what he said in the hearing on 19 August 2016, the respondent still could not point out “point of law” involved in the Tribunal’s order of 28 July 2016 or 19 August 2016 even after I read out in open court the relevant section, section 11(2) of Cap. 17, Lands Tribunal Ordinance (“the Ordinance”), regarding this point:

“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.”

Leave to Appeal out of time

9.  Section 11AA (6) of the 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.”

Delay

10.  According to Order 59, rule 4(1)(c) of the Rules of the High Court, Cap 4A Laws of Hong Kong, if the respondent intended to appeal against the Default Judgment, the leave to appeal had to be lodged within 28 days from the date of the handing down of the judgment (ie on or before 25 August 2016).

11.  Even if the respondent intended to appeal against my judgment of 19 August 2016, he should have done so by 17 September 2016.

12.  It was not until 1 December 2016 that the respondent made this application but it is a case of inordinate delay.  And I stated earlier in §6 above, the applicant had recovered possession of Rooms D & E on 21 November 2016.

13.  A fortiori, the reason for the delay is inexplicable.

Merits

14.  Even if the delay is not insubstantial, the party seeking leave to appeal out of time must show that the intended appeal has a real prospect of success: see Secretary for Justice v Hong Kong and Yaumati Ferry Co Ltd & Another [2001] 1 HKC 125, 127D-128D, 132F and Yifung Properties Limited and Others v Manchester Securities Corp and Others, HCMP 461/2015 (unreported, dated 3 June 2015), paragraph 47.

15.   However, there is no “point of law” in support of the respondent’s intended appeal. I have no hesitation in concluding that the respondent failed to demonstrate a real prospect of success on the merits. Even if (contrary to my view) the delay where held to be excusable, the respondent has failed to show an arguable appeal.[4]

Conclusion

16.  The interlocutory application by the respondent to seek leave to appeal out of time is dismissed.  There be no order as to costs.

[1] International Social Service (ISS) claims to be an international non-governmental organization that seeks, among others, to provide assistance in kind to asylum seekers and torture claimants as referred from the Social Welfare Department. For instance, an allowance is provided for each asylum seeker or torture claimant who prefers to look for his/her own accommodation instead of the one provided by ISS.

[2] The respondent used to occupy Room D but when his wife arrived around early 2014, he took up Room E as well. But since May 2015, his wife had taken up another room, ie Room B which was the subject of another application LDPD 1449/2016.

[3] According to the evidence heard on 8 December 2016, the respondent has broken into Room D again and resided there till now.

[4] The Tribunal received A Memorandum of Notification of an Application for Legal Aid by the respondent dated 5 December 2016.  By section 15(4) of the Legal Aid Ordinance, all proceedings in the action or in the appeal or in both the action and the appeal shall be stayed for a period of not less than 14 days.  Even however if this Memorandum did not come so late, I would have ordered that this statutory stay be lifted in view of the fact of this case.  There is simply no basis at all as to how the legal aid application could assist the respondent.