TOWERICH LTD v. COMMISSIONER OF RATING AND VALUATION

CACV 177/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 177 OF 2009

(ON APPEAL FROM LDMP NO. 3 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Rogers Acting CJHC:

1.  This is an appeal from a decision of His Honour Judge Wong, who was the Presiding Officer of the Lands Tribunal, given on 15 June 2009.

2.  The decision was a short one. The effect of it was that the time fixed for the Applicant to serve the proposal for alteration of the valuation list and the Government Rent Roll against the entries of Horizon Suite Hotel, No. 29 On Chun Street, Ma On Shan, New Territories, Hong Kong in the Valuation List and Government Rent Roll for the Year of Assessment 2008/2009 under section 37 of the Rating Ordinance, Cap. 116, be enlarged for 14 days from the date of the order.

3.  The essential facts behind the case are that the Applicant is the owner of the Horizon Suite Hotel. It was completed in 2002 and the yearly assessments had been made of the rateable value of the property; corresponding entries had been made in the Valuation List and the Government Rent Roll. The Applicant has made objections, under section 40 of the Rating Ordinance to each year of assessment from 2002/2003 to 2004/2005. The basis of those objections was that it disputed the valuation basis that had been adopted.

4.  Under the Rating Ordinance if a party wishes to object to a valuation Part IX of the Ordinance applies, which is headed, “Proposals, Objections and Appeals.” Under section 37, the first thing that must happen is that a person who feels aggrieved by any valuation must submit a proposal. There are specific times, which are set out in the Ordinance; the proposal has to be made within two months i.e. within the months of April and May following the service of the valuation. Once the proposal has been lodged, the parties can either agree it or not agree it; section 40 provides for objections to the proposal. However, if the parties cannot come to any agreement and the party who will be required to make the payments still feels aggrieved, he may appeal and the appeal is brought under section 42 to the Lands Tribunal.

5.  In this case, although the proposals had been properly filed in respect of the years mentioned, when it came to the year of assessment 2008/2009, that proposal was not made within time; it was probably overlooked. The deadline, of course, was 31 May 2008 and it was not until some 10 months later that application was made to the Lands Tribunal by summons for extension of the time.

6.  The essence of the decision by the Lands Tribunal was that it had power to extend time for the submission of the proposal under section 10(2)(d)(i) of the Lands Tribunal Ordinance, Cap. 17. That subsection reads as follows:

“(2)  Without prejudice to the generality of the powers vested in it under subsection (1), the Tribunal may –

…

(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 notice (and whether or not the notice relates to any proceedings).”

7.  It was under that sub-section that the presiding officer considered that there was jurisdiction in the Tribunal to extend the time.

8.  On this appeal, Mr Man has argued that the Tribunal, although it had jurisdiction in respect of appeals, it did not have jurisdiction in respect of extending time for proposals. First of all, he relies upon the provision in section 42(4) of the Rating Ordinance, which reads:

“For the purposes of an appeal under this section, and only for those purposes, the Lands Tribunal Ordinance (Cap.17), shall apply in relation to any such appeal as it applies to an appeal made to the Lands Tribunal under that Ordinance.”

9.  He says that that, therefore, gives jurisdiction to the Lands Tribunal but only in respect of an appeal and not in respect of section 37 proposals. He then combines that with reference to section 8 of the Lands Tribunal Ordinance, subsection (1), which reads:

“The Tribunal shall have jurisdiction to determine the amount of compensation (if any) payable by the Government in respect of any claim submitted to it under any Ordinance specified in the Schedule.”

10.  In my view, Mr Man’s arguments on behalf of the Commissioner are sound so far as they go, but they simply do not override the clear provisions of section 10(2)(d)(i), which, in my view, must relate to something in the nature of a section 37 proposal or something like it. The subsection is, in my view, clear in its meaning. It gives the Lands Tribunal power to extend time. Of course, it is only in relation to relevant matters for the Lands Tribunal and one of the relevant matters is its jurisdiction in relation to appeals under the Rating Ordinance. The reference in the brackets to whether or not it relates to any proceedings, in my view, makes it abundantly clear that an appeal does not actually have to have been lodged before the Lands Tribunal can exercise its jurisdiction.

11.  A reference was also made to the effect that, because the extension of time was 10 months after the due date, the difficulties might arise in relation to the timing, under section 7A of the Rating Ordinance. That may be so but that is merely a matter, in my view, of discretion as to whether the Lands Tribunal should have exercised its jurisdiction or not. Mr Man has made it quite clear that, on this appeal, he is not challenging the exercise of discretion by the Lands Tribunal.

12.  In my view, this appeal should be dismissed.

Hon Kwan JA:

13.  I agree.

Hon Stone J:

14.  I entirely agree with the judgment of the Vice President. Mr Bernard Man, for the Appellant, has done his best with a difficult brief. However, I respectfully venture the view that it is unclear why it should have been thought appropriate to expend not insignificant amounts of time and money in debating what, in my judgment, is a demonstrably arid jurisdictional point. I, too, would dismiss this appeal.