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LDCS 11014 /2006
IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
LAND COMPULSORY SALE>APPLICATION NO.11014 OF 2006
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| BETWEEN |
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Lai Wai Man |
Applicant
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And |
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Intelligent House Limited |
Respondent
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Buena Elvira Gamos |
Intended Applicant
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Coram: H.H. Judge Thomas Au, Presiding Officer, Lands Tribunal, in chambers (open to public), sitting at District Court
Date of Hearing: 28 February, 2008
Date of Handing Down of Decision: 4 March, 2008
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REASONS FOR DECISION
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Introduction
1. On 23 January 2008, I handed down decision to refuse Ms Buena’s application to be joined in this connected application (LDCS 11014/2006), originally issued by Mr Lai Wai Man. I also ordered costs against Ms Buena and granted leave to Mr Lai to withdraw this connected application.
2. On 5 February 2008, Ms Buena applies for a review of my previous decision, including the decision on costs. She also at the same times asks to substitute Mr Lai as the Applicant in this connected application. At the time of her present application, the order for withdrawal of the connected application had not been drawn up or perfected.
3. Although strictly speaking the application to substitute Mr Lai as the Applicant cannot be regarded as part of the review application, Mr Shum for Intelligent House has not objected to this also being heard at the same time. In order to save time and costs, I find it appropriate to hear the substitution application together with the review application.
4. The background and reasons for my previous decision have been set out in the reasons for decision dated 23 January 2008, and I do not propose to repeat them here. Suffice for me to summarize my previous reasons below for the convenience of this decision:
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(1) |
Ms Buena says she is a subtenant of Room 01, Unit 11, 4th Floor of Kam Kwok Building. Mr Lai has been her head tenant. |
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(2) |
In light of Intelligent House’s application for a compulsory order for sale under Cap 545, she wants to join in Mr Lai’s connected application to claim compensation from Intelligent House in case of an order for sale being made. |
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(3) |
I refused her application for joiner as I was satisfied that Intelligent House properly terminated the principal tenancy of Unit 11 by 31 October 2007, by way of a valid and properly served Transition Termination Notice (“TTN”) as required under section 5(2) of the Landlord and Tenant (Consolidation)(Amendment) Ordinance 2004 (“LTAO”). |
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(4) |
As such, all sub-tenancies (including Ms Buena’s sub-tenancy) created under the principal tenancy have also been validly terminated as a matter of law under s 6(5) of LATO. |
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(5) |
In the premises, Ms Buena has no locus or interest to bring any claim against Intelligent House under ss 4(6) and 8(1)(b) of Cap 545, even if an order for sale is made eventually. She therefore has failed to show any locus, interest or title to be joined in Mr Lai’s connected application. |
The review application
5. Ms Buena’s grounds of review are in gist as follows:
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(1) |
In her affirmation dated 5 February 2008, Ms Buena points out that according to the List of Tenants filed by Intelligent House in the main application, the principal tenant of Unit 11 was one Mr Lee Hak Yeung, but not Mr Lai. |
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(2) |
Under such circumstances, the TTN served by Intelligent House may not be valid. This is so as the TTN was served on Mr Lee, while in Ms Lui’s 2nd Affirmation filed in opposition to Ms Buena’s joinder application, Intelligent House regarded Mr Lai (but not Mr Lee) as the principal tenant. |
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On that basis, it is at least arguable that the principal tenancy and thus the sub-tenancies of Unit 11 have not validly been terminated by way of the TTN. |
6. In response to Ms Buena’s above allegations, by way of the 3rd Affirmation of Lui Wing Yan dated 18 February 2008, Intelligent House exhibited the following to show that Mr Lee was the principal tenant of Unit 11 since the time Intelligent House purchased the property and even after the service of the TTN on 18 October 2006:
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A letter from Intelligent House’s predecessor’s solicitors dated 30 September 2006, attaching therewith a tenancy confirmation record, confirming that Mr Lee was the tenant of Unit 11 since 1 April 2003. |
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Various rental receipts from Intelligent House’s leasing agent, acknowledging the receipts of rental from Mr Lee for Unit 11 for the period between 1 October 2006 and 31 August 2007. |
7. Mr Shum for Intelligent House submits that the above evidence shows clearly that Mr Lee was at the time of the service of the TTN, and had at all material times been, the principal tenant of Unit 11. In the circumstances, the service of TTN was unquestionably valid and proper, and the principal tenancy was properly terminated on 31 October 2007, even if (which is not accepted by Intelligent House) Mr Lai had somehow taken over from Mr Lee as a tenant after August 2007.
8. Further, Ms Lui in her 3rd Affirmation explains that although she had said in her 2nd Affirmation to the effect that Mr Lai was the principal tenant, this was made purely for the convenience of argument, and she did not intend to concede in any way that Mr Lai had become Intelligent House’s principal tenant of Unit 11 in place of Mr Lee. She further relies on the position (denying that Mr Lai was the principal tenant) stated in Intelligent House’s Notice of Opposition filed against Mr Lai’s present connected application, and the evidence set out in paragraph 6 above.
9. Ms Buena has not filed or raised anything to rebut or challenge Intelligent House’s above evidence.
10. I accept Intelligent House’s evidence and find that it has shown to my satisfaction (and has confirmed my previous decision) that the TTN was effective in terminating the principal tenancy of Unit 11 on 31 October 2007. As such, as also concluded in my previous decision, Ms Buena’s sub-tenancy was similarly terminated as a matter of law.
11. At the hearing today, Ms Buena raises orally for the first time that the unit she has been staying, namely Room 01, Unit 11, may not be part of Unit 11, since it is called Room 01 of Unit 11. As such, Mr Buena says Intelligent House’s evidence on Mr Lee as a principal tenant is neither here nor there.
12. I reject Ms Buena’s this latest argument on her review application:
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(1) |
Purely for the sake of argument but not otherwise, if Ms Buena were right that her unit was not part of Unit 11, she clearly has failed to show any locus or interest to be joined in Mr Lai’s present connected application or to mount a claim under Cap 545 against Intelligent House for compensation because (a) Mr Lai’s application concerns with Unit 11 alone, and thus there is no basis for her to be joined or to replace Mr Lai as the Applicant, and (b) she has not shown by any evidence that Intelligent House is the owner or principal landlord of this Room 01 if it is not part of Unit 11. |
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In any event, on the evidence before me, in particular as Ms Buena’s unit is described as Room 01, Unit 11, of Kam Kwok Building, I am satisfied that her unit is more likely than not to be a subdivided unit (and thus part) of Unit 11. |
13. For these reasons, I reject Ms Buena’s review application and confirm hereby my rulings in my previous decision.
Application to substitute Mr Lai
14. For the same reasons above, I also reject Ms Buena’s application to substitute Mr Lai as the Applicant under LDCS 11014/2006. She has failed to show any interest or locus to do so.
Orders
15. I make the following orders:
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(1) |
Ms Buena’s review application be dismissed. |
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Ms Buena’s application to substitute Mr Lai as the Applicant in LDCS 11014/2006 is also dismissed. |
16. As Ms Buena fails in the applications, costs should usually follow the event. Ms Buena contends that she should not be asked to bear the costs of these applications if they fail, as she would not be able to pay the same. This is not a valid reason for not granting costs against her. I therefore further order that costs of these applications be to Intelligent House, to be taxed if not agreed.
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H.H. Judge Thomas Au
Presiding Officer
Lands Tribunal |
Ms Buena, acting in person, present.
Mr. SHUM Cheuk Pan of Messrs Woo, Kwan Lee & Lo for the Respondent.
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