STEPHANIE DOWNS YUEN v. WHARF PROPER TIES LTD.

IN THE COURT OF APPEAL

1994, No. 91
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. These are consolidated appeals. They arise from orders made by the Lands Tribunal on 11 May 1994 refusing applications by two tenants for renewals of their tenancies pursuant to s117(1) of the Landlord and Tenant (Consolidation) Ordinance Cap 7.

2. The premises in question are flats within Harbour City, Canton Road, owned by Wharf Properties Ltd., the respondent to the appeals. The flat concerned in Civil Appeal No 91 of 1994 is Apartment 17D Barton Court, Harbour City, and that in Civil Appeal No 93 of 1994 is Apartment 15B Craigie Court, Harbour City.

3. The ground on which the Tribunal refused the applications is that the respondent had established to its satisfaction that it intended to redevelop the premises, pursuant to sl19E(1)(c), had the financial capacity so to do, and that the rebuilding would result in an increase in accommodation.

4. Under s119Q an appeal only lies if the Tribunal's determination is erroneous in point of law.

5. What we now have before us are motions to strike out the Notices of Appeal on the ground that they do not disclose arguable points of law and are an abuse of the process of this court.

6. As the grounds set out in the Notices of Appeal are identical, I will only need to refer to one of those notices.

7. In essence, three points said to be questions of law have been raised.

8. First, that the expression "accommodation other than for domestic use" in s119F does not include office or retail accommodation. Whilst this is indeed a question of law, turning as it does upon the proper construction of a statute, it is, in my judgment, a hopeless proposition. It flies in the face of the manifest intent of s119F. The expression "accommodation other than for domestic use" is as wide as it can be. There is no reason for a court to cut it down by implication, as being limited to accommodation for some domestic purpose such as a boarding house. In my judgment, this point of law is incontestably bad.

9. The second point arises in this way. The tenancy in CA No 93/94 commenced on 18 March 1992 but the notice to quit served on the tenant expired on 28 February 1994. Clause 9 of the tenancy agreement enabled the respondent to give six clear calendar months' notice in writing expiring at the end of any calendar month during the tenancy. The appellant argues that by implication no notice to terminate the tenancy on a day other than the 17th day of the month can in law be valid.

10. In my judgment the point is hopelessly bad. "Calendar month" means just that. Clause 2 of the agreement made provisions for payment of rent in advance on the 1st day of each calendar month, and allowed for apportioning the rent for the first and last payments. In the context of this agreement there can be no doubt in my judgment that a notice expiring at the end of February 1994 is a lawful notice.

11. I turn now to the third point. It is formulated in the Notice of Appeal in this way:

"(3) whether or not there are any or any sufficient evidence before the Tribunal for the learned Presiding Officer to hold that the Respondent has obtained all the necessary approval or authority in respect of the proposed rebuilding;

(4) if the answer to (3) above is in the negative, whether or not the learned Presiding Officer ought to grant the Applicant a new tenancy or postpone the hearing of the application under s119F(1)(ii) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7."

12. In my judgment no points of law as such have been raised in these grounds of appeal at all. Section 119F(1) is concerned with rebuilding resulting in an increase of accommodation; approval of plans by, say, the Building Authority is one way of satisfying the Tribunal that the landlord intends to rebuild and that there will be an increase of accommodation. Here the Tribunal found as a fact (i) that the site was suitable for office and retail use and (ii) that the approval of the Building Authority as to the rebuilding had been obtained in November 1992. There can be no doubt upon the evidence before the Tribunal that the increase in accommodation will be very substantial. These are findings of fact by the Tribunal and are unassailable in this court.

13. Points (3) and (4) in the Grounds of Appeal do not, as presently formulated, raise as I have said any point of law; but I would go further. I am satisfied that no amount of amendment is capable of erecting a point of law for the consideration of this court, based on the question of "necessary approvals" in the two cases before us.

14. The approvals envisaged in s119F(1) deal with practical matters, aimed at achieving the result envisaged in subsection (a): that is, a rebuilding that would increase the available accommodation. For practical purposes this was clearly achieved in the present cases. The Tribunal's finding in this regard is not open to challenge under the guise of a question of law.

15. The jurisdiction inherent in this court to order that a Notice of Appeal be struck out is calculated to prevent abuse and as such is seldom exercised. In my judgment, having reached the point as I have done that there are no arguable grounds of appeal which can be put forward, the Notices of Appeal constitute an abuse of process. I would accordingly accede to the respondent's motion and order that the two Notices of Appeal be struck out and in consequence order that the appeals be dismissed.

Nazareth, J.A.:

16. I agree with my Lord and for the reasons he has given I would also order that the two Notices of Appeal be struck out and that the appeals be dismissed.

Bokhary, J.A.:

17. Not surprisingly, having regard to who argued it on each side, this matter has been most ably argued on both sides. The proposition that the expression "accommodation other than for domestic use" in s119F(1)(a) of the Landlord and Tenant (Consolidation) Ordinance, Cap 7, does not include offices or shops, is, in my judgment, one of law. But, in my judgment, it is also an incontestably bad one. An office is "accommodation"; and it is for non- domestic use. The same applies to a shop. The contrary is not arguable. Its inclusion in the Notices of Appeal is frivolous, vexatious and an abuse of process. So much for the first ground contained in the Notices of Appeal.

18. Turning to the second and third grounds of appeal, which grounds go together, I would proceed on the assumption that the argument that the expression "calendar month" in the tenancy agreement does not mean the period from the first day to the last day of each month is one of law. But the point, whether of law or anything else, is, in my judgment, an incontestably bad one. When the word "month" is governed by the word "calendar", then in the absence of anything special - and there is nothing special here - what is meant is the period from the first day to the last day of the month. The contrary is not arguable. Its inclusion in the Notices of Appeal is frivolous, vexatious and an abuse of process. That deals with the second and third grounds contained in the Notices of Appeal.

19. Finally, I come to the fourth and fifth grounds of appeal. They also go together. Whether there is any evidence on which the Lands Tribunal could hold that the landlord had obtained all the necessary approvals in respect of the rebuilding is, in my judgment, a question of law. I would proceed on the assumption that the question is effectively raised by the fourth and fifth grounds of appeal. Nevertheless, the contention that there was no such evidence is, in my judgment, plainly, obviously and fatally flawed in the present circumstances.

20. Here, only one real challenge in regard to approval was made. It lies in the fact that while building plans have been approved, approval has not yet been obtained for certain amendments to those plans. But there is no reason for believing that any of those amendments would result in a diminution of the increase in accommodation required by s119F(1)(a) of the Ordinance and shown on the approved plans. Indeed, the Lands Tribunal's order expressly and clearly precludes any such diminution. Approval of those amendments is not "required in respect of the rebuilding" within the meaning of that expression as it appears in s119(F)(1). The point taken under the fourth and fifth grounds is incontestably bad. Its inclusion in the Notices of Appeal is frivolous, vexatious and an abuse of process. That disposes of the fourth and fifth grounds contained in the Notices of Appeal.

21. I, too, would strike out the Notices of Appeal. That leaves nothing actual or potential in the appeals. Accordingly, as a consequence of the striking out, I, too, would dismiss the appeals.