MAN FONG HANG v. CHOY KWONG

LDPD 996/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 996 OF 2012

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DECISION ON REVIEW

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1.  On 15 October 2013, I handed down the written judgment in this case.

2.  I found as a fact the existence of a periodic tenancy between the applicant and the respondent in respect of the subject premises by reference to payment of an annual rent.  I dismissed the claim for vacant possession, as the transitional termination notice (“TTN”) was ineffective in terminating the tenancy.  However, I found that the respondent had failed to pay the agreed rent of $700 per annum since 2010 and ordered the respondent to pay the applicant the sum of $2,800 being the rent in arrears.  I further ordered the respondent to pay costs to the applicant.

3.  The respondent now applies to review my judgment pursuant to section 11A of the Lands Tribunal Ordinance (“the Ordinance”).  The grounds of review, set out in the 2^nd affirmation of the respondent, are summarised under 3 headings:

(a)  “The Tribunal has acted in excess of its jurisdiction.” (Ground 1)

(b)  “The Tribunal has misunderstood the effect of the evidence in that it mistakenly treated the Modification of Tenancy signed by “莫坤” as a modification which covered my structures.” (Ground 2)

(c)  “The Tribunal proceeded on the mistaken basis that there was no challenge as to the certainty of terms of the alleged tenancy.” (Ground 3)

4.  The applicant has filed written submissions dated 13 November 2013 (settled by counsel) to oppose the review application. 

5.  In pursuance of President Direction dated 21 May 2009 (LTPD: Review No 1/2009), I shall deal with this application on the papers.  Having considered the grounds put forward by the respondent and the submissions of the respondent, I have decided to dismiss the application.

6.  On Ground 1, the respondent challenges my jurisdiction to order him to pay the outstanding rent when I did not order possession against him.  The respondent says that: “that jurisdiction is parasitic or ancillary to the principal jurisdiction of ordering possession of premises under tenancy.” 

7.  As I have mentioned in the judgment, the applicant proceeded with his application as pleaded at trial.  There were both a claim for possession and a monetary claim.  Ms Chow (counsel for the applicant) has rightly pointed out in her submissions in opposition that section 8(8)(a) of the Ordinance empowers the tribunal to make an order for the payment of rent whether or not the tribunal also grants the application for possession.

8.  The respondent argues that: “on a true interpretation of that section, the Tribunal can only grant such relief without at the same time the order of possession or ejectment if it is only until the end of the day that it is clear that the order of possession or ejectment cannot be made.  Where, as here, it is quite clear that the purported landlord’s application for possession would fail in limine, it would be wrong and ultra vires for the Tribunal to continue hearing the application by the purported landlord nevertheless.”  I do not agree.  There is nothing in the wording of the section to enable the respondent to put such a gloss on its interpretation.

9.  The purpose of the applicant’s counsel in communicating in her opening submissions at the trial that the TTN might not be effective in terminating the tenancy was to save time and costs.  The fact remains that the respondent resisted any amendment to the pleadings and the applicant proceeded with his application in full.  So, the claim for possession remained alive throughout the course of the trial.  Both counsel submitted on the issue in their respective closing submission and I disposed of it in my judgment (see §§12(2) and 44-46).  Given the claim for possession, the Small Claims Tribunal does not have the jurisdiction to deal with this case.

10.  I have dealt with Ground 2 in §§23-30 of the judgment.  Insofar as the respondent is now putting forward a positive case as to the whereabouts of his brick houses, this is too late.  As I have pointed out in §§40-43 of the judgment, it is not clear from the evidence which part of Lot 27 was occupied by the respondent and for how long.  The respondent can blame no one but himself for the deficiency in evidence as he bore the burden of proving his claim based on adverse possession.

11.  In view of the allegations in Ground 3, I have revisited the respondent’s counsel’s closing submission.  No point was taken on certainty of the terms of the tenancy.  The starting date of the tenancy can be gleaned from page 1 of the tables prepared by Mr Chung (see page 42 of the trial bundle, which was quoted on page 11 of my judgment).

12.  There is no merit in the review and I dismiss the application.  I order the respondent to pay the applicant the costs of this review to be taxed on District Court scale if not agreed with certificate for counsel.