Tam Yee Ni v. Christian Anthony Bullen

1997, LTP No. 1160

-----------------

HEADNOTE

-----------------

Tennacy law - Failure to pay rent - Relief against forfeiture - Order for possession - Supreme Court Ordinance, Cap. 4, s. 21F - Lands Tribunal Ordinance, Cap. 17, s. 10(5)

Applicant landlord applied for order for possession for failure to pay rent punctually. At the trial, Respondent tenant admitted owing three months' rent and that he had been sued several times previously for failure to pay rent punctually. Order for immediate possession made on such admissions. The Respondent then applied to set aside order on the ground that the order did not allow for four weeks' relief against forfeiture in accordance with section 21F of the Supreme Court Ordinance, Cap. 4. Section 21F(1) provides that that section 'has effect where a lessor is proceeding by action in the High Court to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non-payment of rent.' Section 10(1)(i) of the Lands Tribunal Ordinance, provides that the Tribunal 'may follow the practice and procedure of the High Court in the exercise of its civil jurisdiction.'

Held: (1) On the true construction of s. 21F of the Supreme Court Ordinance, relief against forfeiture under that section applies to action in the High Court only; that section does not to apply to Lands Tribunal proceedings. (2) On the true construction of s. 10(1)(i) of the Lands Tribunal Ordinance, the Lands Tribunal is not bound to follow the practice and procedure of the High Court. (3) The duty of the Lands Tribunal, according to section 10 of the Lands Tribunal Ordinance, is to attain justice with as much informality as possible. (4) On the facts as admitted by the Respondent, justice required immediate order for possession. (5) Application for review dismissed with no stay of execution.

(Translation approved by trial judge)

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LTP NO. 1160 OF 1997

___________________

J U D G M E N T

___________________

The Applicant herein is the landlord of the premises situated at 2nd floor, Lot 482, Mot Tat Wan, Lamma Island ( the suit premises ). The Respondent is the tenant of the suit premises. The Applicant seeks an order from the Tribunal to recover possession of the premises and rent in arrear on the ground that the Respondent failed to pay rent and had no intention to pay. According to the Notice of Opposition filed by the Respondent on 25th November, 1997, the Respondent admitted that although at that time he was still three months in arrears with his rent, it was excusable. However, the Respondent did not state in the Notice of Opposition why it was excusable. He only indicated in court that he was in financial difficulties and that his relative in Canada might remit money to help him.

2. At the hearing on 10th December, 1997, the Respondent, having admitted that he was still three months in arrears with his rent, immediately applied for transfer of the case to a court other than the Tribunal. He made the application on the ground that he had attended the Tribunal on four occasions, on three of which in the capacity of a respondent. The Respondent took the view that the Tribunal might have prejudice against him and it was therefore inappropriate for the Tribunal to deal with his case. According to record, that day was the first time the Respondent attended the Tribunal for the hearing of the present case. The past attendances to which he had referred were occasions where either his landlord sought to recover rent arrears from him or the Respondent himself applied for a new tenancy.

3. At that time it was my view that the case did not involve any of law point or dispute of fact and any court would have given the same decision as the Tribunal had subsequently given having considered the facts of the case and applied the relevant established law. Accordingly, I rejected the application for transfer of the case to another court and ordered immediate possession of the suit premises be given to the landlord.

4. On 5th January, 1998, the Tribunal heard the Respondent's application to review the Tribunal's decision. In the Respondent's Application for Review and his written submission handed on the day of hearing, it was stated that the Tribunal should set aside the order for immediate possession made on 10th December, 1997 because the Tribunal had not allowed the Respondent a grace period of not less that 4 weeks pursuant to Section 21F (3)(b) of the Supreme Court Ordinance, Cap 4, Laws of Hong Kong.

5. In my view, the arguments advanced by the Respondent hinge on Section 10 of the Lands Tribunal Ordinance, Cap 17, Laws of Hong Kong and Section 21F of the Supreme Court Ordinance, Cap 4, Laws of Hong Kong. I quote the two sections respectively as follows:

10. '(1) The Tribunal shall have the powers which are vested in the High Court in the exercise of its civil jurisdiction in respect of the following matters -

(a) the attendance, examination and payment of witnesses;

(b) the hearing of any matter with the assistance of an assessor or assessors;

(c) the consolidation or hearing of any matters;

(d) the punishment of persons guilty of contempt;

(e) the ordering of inspection of any premises or place;

(f) the entering and viewing of any premises or place;

(g) the enforcement of decisions, judgments and orders;

(h) the making of orders as to interim payments;

(i) the making of orders in default of any action by a party, and, so far as it thinks fit, may follow the practice and procedure of the High Court in the exercise of its civil jurisdiction.

(5)(a) The proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice and, for this purpose, the President may give directions as to matter and form in which the proceedings shall be conducted.

(b) Directions by the President under paragraph (a) may be given in such manner as he thinks fit and need not be published in the Gazette.'

21F '(1) This section has effect where a lessor is proceeding by action in the High Court to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non-payment of rent.

(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 4 weeks from the date of 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.'

6. Obviously, Section 10 (1) of the Lands Tribunal Ordinance does not provide that the Tribunal must follow the practice and procedure of the High Court. The Tribunal may, in its discretion, adopt the practice and procedures of the High Court only when it thinks fit. On the other hand, the Tribunal has a duty under Section 10(5)(a) to ensure justice with informality. Section 21F of the Supreme Court Ordinance sets out at the outset in clear terms that the section is only applicable to action in the High Court.

7. I was satisfied that the landlord's application to the Tribunal to recover possession of the premises was not an action in the High Court. For that reason, Section 21F of the Supreme Court Ordinance was not applicable to the present case. Nevertheless, the Tribunal has often made reference to the legislative spirit behind the enactment of this section and granted respondent tenants in many similar cases a grace period of not less than 4 weeks. This is an exercise of discretion by the Tribunal in line with the principle of Section 10 (5) (a) of the Lands Tribunal Ordinance in order to attain justice. However, in some appropriate cases where, for example, the respondent obviously showed no intention to keep up with rent payment or had defaulted on payment on more than one occasion, the Tribunal would insist on not granting the respondent tenant any grace period and order that the possession of the premises be recovered forthwith. In actual fact, there have been quite a number of lessors complaining to the Tribunal that tenants were abusing the grace period. They often defaulted on payment and would pay up all the rent in arrears to avoid eviction only when the Tribunal had made an order for possession. Subsequently, they lapsed into default and the same went round and round again, causing great annoyance and injustice to the lessors. On the argument of the Respondent, he could be allowed to constantly default on rent payments during the term of tenancy. In fact, he had been sued for rent arrears on more than one occasions previously. In my view, the Tribunal must not condone the Respondent's repeated disregard of his duty to pay rent when it fell due, unless the law strictly provides in explicit terms that the Tribunal must do so.

8. On the date of review, the Respondent was still three months in arrears with his rent, and he failed to convince the Tribunal that there was indeed a real possibility for him to pay up all the rent arrears. The Tribunal believed what the Respondent did was no more than an attempt to stall. Accordingly, in my view, there was no reason to vary the decision made on 10th December, 1997 and to grant the Respondent any grace period or a stay of execution of the order for possession. The Respondent's application for review was dismissed.

Dated 19th February, 1998.