張加慶 v. 何端洲

LDPD 81/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 81 OF 2014

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D E C I S I O N

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1.  The respondent seeks leave to appeal against my decision dated 3 April 2014 (“the Decision”) out of time.

Background

2.  The applicant is the signatory to a tenancy agreement he entered with the respondent on 1 January 2011 whereby the applicant agreed to let the respondent occupy a premises situated at D.D.119 Lot 1332 (“the suit premises”) on terms set out therein (“the Tenancy Agreement”).

3.  On 8 January 2014 the applicant took out an application in the Tribunal for possession of the suit premises on the ground that the Tenancy Agreement had expired.  The applicant also asked for mense profit pending the respondent’s delivery of vacant possession (“the Application”).

4.  The respondent took out an interlocutory application to strike out the Application.  The parties appeared before Member Ng who found that the interlocutory application involved a law point which should be determined by a presiding officer.

5.  At the hearing of the interlocutory application, the respondent contended that the applicant being the manager of Cheung Kwan Tai Ui (“the Ui”) had no authority to take out the Application in his own name and had no authority to validly authorize another person to proceed with the Application.

6.  After hearing submissions and reading authorities put forward I refused the contention of the respondent and gave directions that the Application be set down for trial before Member Ng.

The application for leave to appeal

7.  The law applicable to the leave application has been summarized by HHJ Ko in The Incorporated Owners Of Kadoorie Avenue Mansion v.  Rising Dragon International Limited LDBM 201/2013:

8. In his intended grounds of appeal, Mr Karl Wong, counsel for the respondent submits that I had erred in applying the doctrine of Tenancy by Estoppel and therefore came to a wrong decision.  He says that the respondent has never challenged the landlord’s title.  He further pointed out that “as pointed out in the Affirmation of Hoo Twuan Tjiu, it was all along accepted that the landlord was and is the Ui”.  Mr Hoo has in paragraph 6 of his affirmation clearly said that “張加慶先生….並不是我的業主”.

9. I am afraid both Mr Wong and Mr Hoo had misconceived the meaning of “landlord” in the context of the Application.  There is definition of “landlord” in the Landlord and Tenant (Consolidation) Ordinance (“Cap 7”).  The definition is perhaps quite different from the usual understanding that a “landlord” should be the title holder of a piece of land.  The Chinese translation “業主” could have added to the confusion in a sense.  Be that as it may, under section 2, it says this:

10.   As far as the Application is concerned, as could be proved by the Tenancy Agreement, the landlord is the applicant and not the Ui.  It could be seen from the Tenancy Agreement that the applicant signed in his own personal capacity “Cheung Ka Hing” and nothing more.  As the landlord under Cap 7 and the contracting party to the Tenancy Agreement, the applicant must be the person who took out the Application.  Such act, as I have pointed out in the Decision, was not inconsistent with section 15 of the New Territories Ordinance.  The Ui might be the true owner of the suit premises, but it was not party to the Tenancy Agreement.  I do not see how and why it should be named in the Application, be it as the applicant or to state that the manager applicant sues on its behalf.

11.   At the present hearing, Mr Wong submits that the applicant could not be regarded as the “landlord” under Cap 7.  He says that it is because he has never been “entitled to receive rent’, he has only received the rent as authorized by the Ui. I cannot agree with such interpretation. Section 2 of Cap 7 does not say that the one who receive the rent must be entitled to the interest in the rent received. Further paragraph 2 of the Tenancy Agreement did not say such rent was received by the applicant for any person other than himself. There was “出租人” and “立租約人” stated in the Tenancy Agreement. The name of the applicant was put against both titles. I am of the view that, the applicant is the “landlord” in the instance of the Tenancy Agreement under section 2 of Cap 7.  Having signed the Tenancy Agreement with the applicant knowing that he was signing it in his personal capacity, the respondent cannot now challenge the status of the applicant.  This is where the doctrine of Tenancy by Estoppel comes into operation.  I have already dealt with the doctrine in paragraphs 9 to 13 in the Decision.  

12.   As to the validity of authorisation, the respondent made out his case on the same premise that the applicant was a representative of the Ui only and was merely dealing with the Tenancy Agreement on its behalf, in the circumstances, consent of the Ui must be sought when granting an authorization if it was not signed in the presence of the Secretary for Home affairs.  Again, I am afraid this contention was made on wrong premise.  The applicant, who signed the Tenancy Agreement in his own name, is entitled to sue in his own name and is also entitled to authorize his representative.  If the Ui, who has not asked to be joined in the Application, is of the view for any reason that the applicant is in breach of any agreement or has acted beyond his authority, there is certainly other forum for such “wrong” to be rectified.  However, as far as the Tenancy Agreement is concerned, the applicant being the sole signatory in his own capacity as the landlord is the only one entitled to sue and is therefore entitled to authorise his representative in these proceedings.

13.   For reasons set out above, I am not satisfied that the intended appeal has a reasonable prospect of success; nor is there any other reason in the interests of justice why the appeal should be heard.  I dismiss the respondent’s application for leave to appeal out of time.

Costs

14.   Costs should follow the event.  I order that the respondent do pay costs of the applicant in the sum of $500.  This is an order nisi to be made absolute if no application is taken out within 14 days from today to vary the same.