NGAI NGOK PANG AND ANOTHER v. LEE SYN YUK, MICHELLE

LDPD3030/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 3030 OF 2012

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DECISION ON REVIEW

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1.  By an interlocutory application dated 27 March 2013, the respondent applied:

(a)  to “counterclaim the damages for distress, inconvenience and loss of enjoyment of the premises against the plaintiffs same as my husband’s counterclaims lodged in DCCJ 563/2010”; and

(b)  for “leave to withhold payment of rent to the plaintiffs from 1^st May, 2013 unless the plaintiffs will complete all necessary work in those repairs and maintenance being informed to them by my written notice since 19^th January 2013”.

2.  On 12 April 2013, I dismissed her application (see my decision handed down on that date).

3.  This is the respondent’s application to review my above decision.  The grounds of review set out in an affirmation of the respondent’s mother (Yuen Oi Yee Lisa) filed on 2 May 2013 (“Ms Yuen’s 3^rd affirmation”) are:

“In DCCJ 563/2010, the plaintiff claimed the rental in arrear from my husband. My husband decided for his counterclaims. If the plaintiff claimed her rental in arrear in the Lands Tribunal but not District Court, should my husband make his counterclaims in the Lands Tribunal or District Court despite the plaintiff lodged her claim in the Lands Tribunal as a start?

If my claims for the repairs and maintenance is out of jurisdiction in Lands Tribunal, can the plaintiffs’ claim be passed to the District Court by Lands Tribunal since I will have my counterclaims related to and concerned with the rental in arrear?

I strongly believe my claims for the repairs and maintenance should be within the jurisdiction of Lands Tribunal since the plaintiffs are now claiming their rental in arrear or even mense profits while their application for leave to appeal in HCMP 451/2013 is still pending in the Court of Appeal.

It will be irrational for the Lands Tribunal to trial the plaintiffs’ claim without the defendant’s counterclaims to be made when the counterclaims for repairs are under clauses 14 and 21 of the tenancy agreement.”

4.  The applicants have not filed any submission in response to the review application in accordance with the President’s Direction dated 21 May 2009 [LTPD: Review No 1/2009]. 

Decision on the review application

5.  Previously when I dealt with the respondent’s interlocutory application dated 27 March 2013, I was under the impression that it was supported by the affirmation of Ms Yuen attached to the application (“Ms Yuen’s 1^st affirmation”) only.  

6.  In dealing with this review application, I have the opportunity to revisit the documents filed by the parties and it came to light that I had overlooked the affirmation of Ms Yuen filed on 2 April 2013 (“Ms Yuen’s 2^nd affirmation”) which was expressed to be: “這誓章支持我在2013年3月27日的申請，尤其我方把應付租金$13,800交法庭指示。”

7.  Since I omitted one of the two supporting affirmations in coming to my previous decision, I decide to review myself in all fairness to the respondent by setting aside my previous order.

8.  Section 11A of the Lands Tribunal Ordinance (Cap 17) provides that:

“The Tribunal may, in any review, hear and receive any evidence it thinks fit for the purpose of determining the issue between the parties.”

9.  So, I shall reconsider the interlocutory application afresh taking into account all 3 affirmations.

Decision on the interlocutory application dated 27 March 2013

10.  What I said in paragraphs 3 to 9 of my previous decision in terms of background is still valid.

11.  I have recounted the gist of Ms Yuen’s 1^st affirmation in paragraph 2 of my previous decision.

12.  Ms Yuen’s 2^nd affirmation consists of 2 parts. 

(a)  The second part (entitled “Exhibit 2” by Ms Yuen) comprises a draft summons and some correspondences in HCMP 2829/2012. 

(b)  In the first part, Ms Yuen exhibited the original of a cheque drawn by the respondent to the 1^st applicant in the sum of $13,800 and deposed that:

“Exhibit 1 – After digesting the contents of letter issued to my daughter, husband and myself by [the 1^st applicant] representing the plaintiffs for this proceedings dated 29^th August, 2011 with the heading of “Unauthorized and unlawful repair” (our tenancy was only commenced on 1^st July, 2011) and the following abnormality and craziness of [the 1^st applicant] contained in my below letters addressed to the Clerk to Madam Queeny Au Yeung (written in English) and [the 1^st applicant] (written in Chinese) dated 25^th March, 2013 (please refer to point 3 and 4 below), I strongly believe that [the 1^st applicant] will not do the repairs and maintenance before 30^th June, 2013 which had been informed to him by my written notice since 19^th January, 2013. Therefore, instead of withholding the rental payment from 1^st May to 30^th June, 2013 (expiry date in the tenancy agreement) which is purely our rental deposit for two months only, we decide to deposit the cheque for rental from 1^st April to 30^th April, 2013 of HK$13,800 to your court until the hearing/trial of this proceedings to be held one day perhaps after we may move out by 30^th June, 31^st July or August 2013 when we may pay the mense profits only after 30^th June, 2013, if to be ordered and if any suitable to be paid. Please refer to “Exhibit 1” for the cheque of HK$13,800.00 issued by my daughter when I decide to let your court to withhold it. Please note that this cheque is still valid for 12 months from 1^st April, 2013 to 31^st March, 2014.

…

In view of all above, please keep the cheque as per “Exhibit 1” until the hearing/trial for this proceedings and my counterclaims for distress, inconvenience and loss of enjoyment of the premises against the plaintiffs will be held one day, perhaps after we will move out by end of June, July or August 2013 or so on…”

13.  In my view, Ms Yuen’s 2^nd affirmation is irrelevant.  The proceedings in HCMP 2829/2012 will be dealt with by the Court of First Instance.  If the respondent wants to make payment to the applicants in the meantime, she should do so directly.  If she wants to make a sanctioned payment or sanctioned offer, she should follow the procedure set out in Order 22 of the Rules of the High Court, Cap 4A.  No purpose is served by asking the court to keep the cheque for her until trial.

14.  I remain of the view that the respondent’s interlocutory application should be dismissed for the reasons set out in paragraph 11 of my previous decision.  The respondent is seeking to introduce into this case part of the counterclaim filed by Ms Yuen’s husband in DCCJ 563/2010.  But each case is different, and the respondent may not simply adopt the counterclaim in DCCJ 563/2010 when the parties, the suit premises, the issues and the evidence there are all different. 

15.  The Lands Tribunal may only, in an application for possession or ejectment, make an order for the payment of damages in respect of breach of a condition of the tenancy (see section 8(8) of the Lands Tribunal Ordinance, Cap 17).  A counterclaim is generally treated as an independent action (see Hong Kong Civil Procedure 2013, paragraph 15/2/4).  Since the respondent is not also counterclaiming for possession or ejection, the Lands Tribunal does not have jurisdiction to entertain her claim for damages.

16.  In Ms Yuen’s 3^rd affirmation, the respondent seems to suggest that she is presently counterclaiming for “repairs and maintenance”.  That is not correct.  She had previously tried to introduce such a counterclaim into this case by her interlocutory applications dated 30 January 2013 (see paragraph 2 thereof), 7 February 2013 (see paragraph 3 thereof) and 14 February 2013 (see paragraph 2 thereof), but those applications have been dismissed for want of prosecution (see paragraphs 7 and 8 of my previous decision).  The respondent’s present application is in respect of “damages for distress, inconvenience and loss of enjoyment of the premises”.

17.  The respondent also suggests in the last paragraph of Ms Yuen’s 3^rd affirmation that “it would be irrational for the Lands Tribunal to [try] the plaintiffs’ claim without the defendant’s counterclaims”.  But that is exactly what happened in the authority cited by the respondent (ie DCCJ 563/2010).  In that case, the landlord claimed against Ms Yuen’s husband as tenant for possession of the suit premises, arrears of rent and mesne profits, and Ms Yuen’s husband filed a counterclaim for unliquidated damages arising out of the undulated floor at the suit premises including damages for inconvenience and loss of enjoyment.  The Master granted summary judgment in favour of the landlord whilst the counterclaim was still pending.  The subsequent appeal of Ms Yuen’s husband against that decision was dismissed, as the Judge found that the counterclaim could not amount to any legal or equitable set-off (see paragraphs 19 to 36 of the judgment dated 25 June 2010).  The counterclaim was eventually tried some 2 years later wherein the court found in favour of Ms Yuen’s husband and awarded him damages including $40,000 for distress, inconvenience and loss of enjoyment of the suit premises (see the judgment dated 10 October 2012).  Thus, the claim and the counterclaim in DCCJ 563/2010 were not tried at the same time.

18.  For the above reasons, I dismiss the respondent’s interlocutory application dated 27 March 2013 with no order as to costs. 

19.  I reiterate my comment in paragraph 12 of my previous decision.  The parties should really focus on the application to the Court of Appeal for leave to appeal against the decisions in LDPD 2002/2012 at this stage.  Unless and until the applicants have elected to proceed with this case, there is no point for anyone to file any submission, evidence or further interlocutory application (such as any application to add a counterclaim).  I therefore substitute paragraphs 1, 2, 3 and 5 of my directions dated 27 February 2013 by the following orders:

(1)  The applicants do inform the Tribunal of the result of their application to the Court of Appeal for leave to appeal against the decisions in LDPD 2002/2012 within 14 days of the result becoming available, and the Tribunal will give further direction in Chambers in writing;

(2)  In the meantime, all proceedings herein be stayed and no party may file any submission, evidence or interlocutory application without leave; and

(3)  All applications for leave to uplift the stay or to file any submission, evidence or interlocutory application be made ex parte in writing to me or, in the event of my unavailability, any President Officer and such applications will be dealt with on the papers unless otherwise directed.

20.  This review is disposed of on the papers. Although I have decided to review myself, the result is still not favourable to the respondent.  The applicants have not filed any response. In those circumstances, I make no order as to costs of the review application.