THE INCORPORATED OWNERS OF SUMMIT COURT v. FULL SURPLUS INVESTMENT LTD. AND ANOTHER

HCA 2280/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2280 OF 2001

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D E C I S I O N

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1. The 1st and 2nd defendants issued a summons on 30 January 2002 to strike out this action on the ground that the action falls within the exclusive jurisdiction of the Lands Tribunal. At the hearing of the application, I inquired with Mr. Brian Wong, who appeared on behalf on the defendants, which provision or provisions in the Rules of the High Court he intended to rely on to bring this application, as a number of provisions were stated in the summons, including Order 33 rule 3. Mr. Wong informed me that he wished to ask the court to decide as a preliminary issue in the action, under Order 33 rule 3, whether the action should be struck out on the ground that it falls within the exclusive jurisdiction of the Lands Tribunal. There being no objection from Mr. C.Y. Li, who appeared for the plaintiff, and as I was satisfied it would be appropriate for the issue on jurisdiction to be decided as a preliminary issue, I allowed the application to proceed on that basis.

2. The background matters of this litigation, insofar as they are relevant to the preliminary issue, may be set out as follows.

Background matters

3. The incorporated owners of Summit Court in Tin Hau Temple Road, Hong Kong ("the building") sued as the plaintiff in this action in relation to the alleged common parts and facilities of the building. 20 water meters for the individual units of Block D1 were installed by the plaintiff at Portion D1 of the Main Roof as well as separate pipes for the supply of water. The 1st defendant, Full Surplus Investment Limited, became the registered owner of Portion D1 of the Main Roof of the building by an assignment dated 22 March 2000 made by the 2nd defendant Madam Chan Wing Mui Cordelia, and her sister Mrs. Simone Ng as assignors. The 2nd defendant and her sister had resigned as the directors of the 1st defendant within one month of the assignment. The plaintiff's case is that notwithstanding the assignment and the resignation, the 2nd defendant still owns and controls the 1st defendant. It is alleged that since March 2001, the 1st and 2nd defendants have wrongfully interfered with the water supply system to units of Block D1 of the building by disconnecting the water supply to certain units or have threatened to interfere with the water supply system.

4. It is the plaintiff's contention that the aforesaid water supply system are the common parts or facilities of the building by reason of the provisions of the Deed of Mutual Covenant dated 17 August 1966 ("the DMC") and the Building Management Ordinance, Cap. 344. Hence, the plaintiff should have the right of way over the Main Roof including Portion D1 for inspection, installation, repair and maintenance of the water supply system. It is further alleged that the defendants have acted in breach of the DMC and/or Cap. 344 by interfering with the common parts and facilities, trespassed on the common parts and facilities, and caused nuisance and annoyance to the owners of units in the building.

5. The plaintiff seeks declarations against the defendants that the water supply system are the common parts or facilities and that it has a right of way over Portion D1 for the purpose of discharging its duties in relation to the water supply system; injunctions to restrain the defendants from disconnecting or interfering with the water supply system and from obstructing or interfering with the plaintiff's access to the water supply system; and damages for breach of the DMC, Cap. 344 and/or trespass.

6. The defendants' case is that the area in Portion D1 of the Main Roof to which the water meters were installed is not a common area of the building and that the 1st defendant is entitled to revoke the consent or licence given to the plaintiff to install the meters as the consent of the predecessor of the 1st defendant was obtained by misrepresentation of the plaintiff that the area to which the meters were to be installed was a common area. The defendants counterclaim, inter alia, for a declaration that the 1st defendant does have exclusive possession of Portion D1 on the Main Roof.

7. It is not in dispute that the claims of the plaintiff and the aforesaid counterclaim bring the proceedings within the 10th Schedule of Cap. 344 so that these proceedings would come under the jurisdiction of the Lands Tribunal, by virtue of section 45(1) of Cap. 344 and section 8(5) of the Lands Tribunal Ordinance, Cap. 17. The question for determination is whether these proceedings would come within the exclusive jurisdiction of the Lands Tribunal or whether the High Court would have concurrent jurisdiction.

8. For completeness sake, I should mention that the plaintiff obtained an interlocutory injunction in the High Court on 23 May 2001 to restrain the defendants from turning off the water mains at Portion D1 on the Main Roof or otherwise interfering with the water supply system. The writ herein was issued in the High Court on 24 May 2001. On 1 June 2001, the interlocutory injunction was discharged upon the defendants' undertaking not to turn off or in any way interfere with the water supply system and to allow the plaintiff access to inspect and maintain the system. After the close of pleadings, on 29 November 2001 a Master made an order on the summons for directions for further and better particulars to be served by the defendants, for discovery and inspection of documents and exchange of witness statements. It was not until 25 January 2002 that the defendants sought leave to amend their Defence to raise for the first time that the High Court would have no jurisdiction to hear this action. After the defendants issued a summons to strike out this action for want of jurisdiction, the plaintiff took out a summons on 26 March 2002 to file and serve its Amended Reply out of time as it had not done so within the time ordered by the Master when the defendants were given leave to amend the Defence. That summons is also before me.

9. I turn to consider the question of jurisdiction. The relevant provisions in Cap. 344 and 17 do not contain any express provision that the Lands Tribunal is to have exclusive jurisdiction over the proceedings specified in the 10th Schedule to Cap. 344. What is in issue is whether, by necessary implication, the Lands Tribunal is to have such exclusive jurisdiction. There are a number of conflicting decisions in the Court of First Instance and the District Court on this issue, none of which are binding on me. In a recent decision of the Court of Appeal in The Incorporated Owners of Finance Building v. Bright Hill Management Consultants Company Limited, CACV No. 386 of 2000, 29 November 2001, Cheung J.A. noted six conflicting decisions of the Court of First Instance on the question of exclusive jurisdiction of the Lands Tribunal and stated that this conflict must await adjudication in an appropriate case in future (pages 6 and 7 of the judgment).

The conflicting decisions

10. It would be convenient to set out first what are the conflicting decisions, which have been cited to me exhaustively by Mr. Wong. In chronological order of the date of decision, they are as follows:

(1) Winbase Industrial Ltd. & Ors. v. Mightyton Property Management Ltd. & Anr., HCA No. 10232 of 1994, 25 October 1994, Mayo J.;

(2) Ngan Chor Ying & Anr. v. Year Trend Development Ltd. & Anr. [1995] 1 HKC 605, 13 January 1995, Findlay J.;

(3) Mass Transit Railway Corporation v. Lam Kai Fai & Ors., HCA No. 1796 of 1994, 21 July 1995, Yam J.;

(4) Incorporated Owners of Yuen Sun Mansion v. Luk Ngai Ling Irene & Anr. [1999] 1 HKC 410, 17 November 1998, Suffiad J.;

(5) Broadway-Nassau Investments Ltd. v. Lo Yiu Ho & Ors. [1999] HKCU 110, 18 January 1999, Recorder E. Chan, SC;

(6) Colliers Jardine Management Ltd. v. Chow Yuk Lan, HCA No. 16082 of 1998, 21 April 1999, Dep. J. Z.E. Li;

(7) The Incorporated Owners of Carado Garden v. Glory Home Development Ltd., HCA No. 13957 of 1996, 11 February 2000, Dep. J. Z.E. Li;

(8) The Incorporated Owners of Pokfulam Gardens & Anr. v. Metrogain Development Ltd., HCA No. 4075 of 1998, 9 March 2000, Burrell J.;

(9) Incorporated Owners of Million Fortune Industrial Centre v. Jikan Development Ltd. & Anr., HCA No. 14915 of 1998, 24 March 2000, Waung J; and

(10) Wong Hing Cheong & Anr. v. Wah E Investment Ltd. & Anr., DCCJ No. 13999 of 2000, 19 April 2001, Z.E. Li D.J.

11. In addition, Mr. Wong informed me that he knew of two other decisions in the District Court of Z.E. Li D.J. in which the view was taken that the Lands Tribunal would have exclusive jurisdiction. He also referred me to the decision of the Court of Appeal in Incorporated Owners of Man Hong Apartments v. Kwong Yuk Ching & Ors. [2001] 3 HKC 116 in which Mayo VP mentioned without comment at 118G that the District Court had dismissed proceedings originally commenced there as it was held by the court that it did not have jurisdiction and proceedings were later commenced in the Lands Tribunal.

12. In summary, the decisions in (1), (3), (6), (7) and (10) held that the Lands Tribunal would have exclusive jurisdiction in proceedings within the 10th Schedule of Cap. 344. The decisions in (2), (4), (5), (8) and (9) were to the contrary.

The statutory provisions

13. I start with the provisions of Cap. 344 and Cap. 17. I set out the relevant provisions for ease of reference.

Building Management Ordinance, Cap. 344

14. The long title of this Ordinance reads: "To facilitate the incorporation of owners of flats in buildings or groups of buildings, to provide for the management of buildings or groups of buildings and for matters incidental thereto or connected therewith." Part VIII is headed "Jurisdiction vested in Lands Tribunal". Section 45 is the only provision in this part and it is as follows:

"45. Jurisdiction of tribunal in relation to building management

(1) The tribunal [defined in section 2 to mean the Lands Tribunal] shall have jurisdiction to hear and determine any proceedings specified in the Tenth Schedule.

(2) No person other than a person to whom this section applies shall be competent to commence any proceedings referred to in subsection (1).

(3) Subject to the provisions of this Ordinance, nothing in this section or the Tenth Schedule shall be construed to vest in the tribunal any jurisdiction other than civil jurisdiction or any jurisdiction to make any order which would, if made, have the effect of rendering void, negativing or substantially varying in whole or in part any contractual or proprietory right enjoyed by any owner or occupier or otherwise referred to in the terms and provisions of an instrument which is registered in the Land Registry including a deed of mutual covenant (if any).

(4) This section applies to the following persons, namely -

(a) an owner;

(aa) the Authority [i.e. the Secretary for Home Affairs];

(b) a person referred to in section 3(1)(a) or (b) [i.e. a person managing the building in accordance with the DMC or a person authorized to convene a meeting of owners by the DMC];

(c) a management committee;

(d) a corporation;

(e) a manager within the meaning of Part VIA;

(f) an owners' committee within the meaning of that Part;

(g) a registered mortgagee;

(h) an administrator;

(i) with leave of the tribunal, the tenants' representative; or

(j) with leave of the tribunal, any other person specified in an instrument which is registered in the Land Registry including a deed of mutual covenant (if any).

(5) In this section and the Tenth Schedule, 'proprietory right' includes any such right express or implied whether specified in an easement, licence, permission or otherwise."

15. The 10th Schedule is headed "Hearing and determination of specified proceedings by tribunal" and it provides as follows:

"1. Proceedings relating to the interpretation and enforcement of the provisions of this Ordinance.

2. Proceedings relating to the interpretation and enforcement of the terms and provisions of a deed of mutual covenant, including such terms or provisions impliedly incorporated into a deed of mutual covenant under Part VIA.

3. Proceedings relating to the use, occupation, enjoyment, possession or ownership of the common parts or any other part of a building in which the owners have a common interest.

4. Proceedings relating to the calculation or apportionment of -

(a) any sums payable or purported to be payable under a deed of mutual covenant (if any);

(b) the funds and contributions referred to in section 20 and 21;

(c) any management expenses or charges (howsoever named);

(d) any other outgoings, payments, debts or liabilities due or liable under this Ordinance or in accordance with the terms and provisions of an instrument which is registered in the Land Registry including a deed of mutual covenant (if any).

5. Proceedings relating to any question of law concerning the powers and duties of -

(a) a corporation;

(b) a management committee, and of the chairman, secretary and treasurer thereof;

(c) a manager within the meaning of section 34D(1);

(d) an owners' committee within the meaning of that section;

(e) the tenants' representative,

including such powers and duties (if any) of a financial, pecuniary or fiduciary nature.

6. Proceedings relating to any question of law concerning ownership, occupation or possession of the whole or any part of the building, including ownership of an undivided share in a building or in land on which there is a building.

7. Without prejudice to paragraph 6 and subject to section 45(3), proceedings relating to any question of law concerning the extent and applicability or otherwise of any contractual or proprietary right enjoyed by owners and occupiers or otherwise referred to in the terms and provisions of an instrument which is registered in the Land Registry including a deed of mutual covenant (if any).

8. Proceedings relating to any question of law concerning any breach or alleged breach of any covenant, term or condition specified in an instrument which is registered in the Land Registry including a deed of mutual covenant (if any).

9. Proceedings relating to the enforcement of any contractual or proprietory right referred to in paragraph 7 or any covenant, term or condition referred to in paragraph 8, as the case may be, whether by way of specific performance, injunction, declaration, damages or otherwise."

16. The proceedings I am presently concerned with would come under the jurisdiction of the Lands Tribunal by virtue of any of the paragraphs in 1, 2, 3, 6, 7, 8 and 9 of the 10th Schedule. I should mention that section 2 and the 1st Schedule provide for a definition of "common parts"; section 16 provides that the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by, and the liabilities of the owners in relation thereto, shall be enforceable against, the corporation to the exclusion of the owners; section 34I provides that no person may convert any part of the common parts to his own use unless such conversion is approved by a resolution of the owners' committee and no person may use the common parts in a manner as unreasonably to interfere with the use and enjoyment of the common parts by any other owner or occupier or to cause a nuisance or hazard to any person lawfully in the building.

Lands Tribunal Ordinance, Cap. 17

17. The relevant provisions may be set out as follows:

"8. Jurisdiction of the Tribunal

(5) The Tribunal shall have such other jurisdiction as may be vested in it under any Ordinance including any Ordinance specified in the Schedule [Cap. 344 is one of the ordinances specified in the Schedule].

(9) In the exercise of its jurisdiction, the Tribunal shall have the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance."

"8A. Transfer of proceedings to the Court of First Instance or the District Court

(1) The Tribunal may transfer to the Court of First Instance or the District Court any proceedings instituted before the Tribunal which are within the jurisdiction of the Court of First Instance or the District Court, but which -

(a) are not within the jurisdiction of the Tribunal; or

(b) the Tribunal considers should in the interests of justice be so transferred."

"11. Decisions of Tribunal final

(1) Subject to subsection (2) and section 11A, the decision of the Tribunal in determining -

(a) the amount of compensation payable by the Government in the case of any claim submitted to it under section 8(1) or (2); or

(b) any appeal submitted to it under section 8(4),

shall be the final determination thereof.

(2) Subject to the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a determination or order of the Tribunal on the ground that such determination or order is erroneous in point of law."

"11A. Review of decision

(1) The Tribunal may, within 1 month from the date of any decision by it, decide to review that decision and, on such grounds as it may think sufficient, may set aside, reverse, vary or confirm it."

"12. Costs

(1) Subject to the provisions of the Ordinance giving the Tribunal jurisdiction in any matter, the Tribunal may award costs to and against any party to any proceedings and may order that those costs be taxed on the basis of any one of the Scales of Costs set out in the First Schedule to the District Court Civil Procedure (Costs) Rules (Cap. 336 sub. leg.) and the Schedules to Order 62 of the Rules of the High Court (Cap. 4 sub. leg.)."

Presumption regarding jurisdiction

18. In construing the statutory provisions, I take as the primary starting point the presumption against ousting established jurisdictions, because that would be the effect of holding that exclusive jurisdiction in all of the proceedings specified in the 10th Schedule of Cap. 344 should be vested in the Lands Tribunal. I reject Mr. Wong's submission there is no ouster of jurisdiction of the High Court, I cannot regard this as merely a division of labour of the courts and the more efficient allocation of resources, as contended by Mr. Wong.

19. The presumption and the rationale for it are stated in Maxwell on the Interpretation of Statutes, 12th ed., page 153 as follows:

"A strong leaning exists against a statute so as to oust or restrict the jurisdiction of the superior courts... 'the well-known rule that a statute should not be construed as taking away the jurisdiction of the courts in the absence of clear and unambiguous language to that effect' (Commissioners of Customs and Excise v. Cure & Deeley, Ltd. [1962] 1 Q.B. 340 per Sachs J. at 357) now rests on a reluctance to disturb the established state of the law or to deny to the subject access to the seat of justice."

20. This presumption was adopted as the starting point by Findlay J. in Ngan Chor Ying, supra. at 607G to H and 608H; apparently by Burrell J. in Incorporated Owners of Pokfulam Gardens, supra. at page 3 of the judgment; and by Waung J. in Incorporated Owners of Million Fortune Industrial Centre, supra. at page 2 of the judgment. In my reading of the decisions that went the other way, none of the judges had stated that the presumption was inapplicable. It would appear to be the case that notwithstanding the presumption against the ouster of jurisdiction of a superior court, the court was satisfied in those decisions that there was clear legislative intent that exclusive jurisdiction should be vested in the Lands Tribunal (see for instance, Winbase Industrial Ltd., supra. at pages 6 and 7).

21. I turn to examine those matters that could be regarded as clear indication of such a legislative intent. It would be appropriate to begin with Winbase Industrial Ltd., the first decision on this issue after the statutory provisions came into effect on 1 June 1994.

The decision of Winbase Industrial Ltd.

22. In coming to the view that the proceedings specified in the 10th Schedule should be vested exclusively in the Lands Tribunal, the reasoning of Mayo J. (as he then was) was twofold. Firstly, he rejected the submission of the plaintiffs that the range of proceedings referred to in the 10th Schedule was so wide that it must be the case that the jurisdiction of the Lands Tribunal should be concurrent with the High Court. I will deal with this ground in the subsequent part of my decision. Secondly, he held that the fact that Cap. 344 does not contain an express exclusive jurisdiction provision, unlike for instance the Labour Tribunal Ordinance, Cap. 25, was not significant and in this connection he would adopt the reasoning of Trainor J. in Kong Hoa (Hong Kong) Ltd. v. Lau Hung Kwan [1976] HKLR 62.

23. When one looks at the reasoning of Trainor J., he would appear to have regarded two matters as significant in interpreting the legislative intent. The first matter was section 68(6) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, which provides that the District Court shall have the jurisdiction conferred upon it by Part II of Cap. 7, notwithstanding anything in the District Court Ordinance, Cap. 336. Of greater importance would appear to be the second matter, being section 68(7) of Cap. 7, which, at that time provided as follows: "Any determination or order of the Court [District Court] under this Part [Part II] shall be final and no appeal shall lie therefrom". Trainor J. held that as the legislature had declared in section 68(7) that a decision of the District Court in proceedings of this kind should be final and no appeal would lie from it, then the legislative intent became clear and there was meant to be a court of first and final jurisdiction. He reasoned that if the Supreme Court were to have concurrent jurisdiction, this would result in an anomaly, namely, the existence of one court with first and final jurisdiction in cases within Part II, and another court with a right to appeal up to the Privy Council (at pages 65 to 66).

24. I should mention that section 68(7) of Cap. 7 has since been amended and it was amended by the time Winbase Industrial Ltd. was decided. The section as amended reads as follows: "Subject to section 68A, any determination or order, other than a conviction, of the court [District Court] or the Tribunal [Lands Tribunal] under this Part shall be final." Section 68A provides for an appeal to the Court of Appeal on the ground that the determination or order is erroneous in point of law, similar to section 11 of Cap. 17 that I have set out earlier.

25. In the case of the Mass Transit Railway Corporation, supra. at page 4, Yam J. stated that it was the reasoning of both Trainor J. and Mayo J. that if the High Court had concurrent jurisdiction, this would result in "the existence of one court with right of appeal restricted to erroneous point of law and another with a general right of appeal." This does not appear to be the reasoning of Trainor J. as he was concerned with section 68(7) of Cap. 7 before it was amended. And in adopting the reasoning of Trainor J., Mayo J. made no mention of the fact that the statutory provisions do not provide for a court with first and final jurisdiction in the Lands Tribunal in respect of proceedings within the 10th Schedule of Cap. 344 but rather provide for a restricted right of appeal to the Court of Appeal on an erroneous point of law.

26. In my respectful opinion, the reasoning of Trainor J. as adopted in Winbase Industrial Ltd. that there was clear legislative intent in ousting the jurisdiction of the High Court loses its force when the Lands Tribunal is not established as a court of first and final jurisdiction in those kinds of proceedings. For my part, I see no difficulty with providing for different rights of appeal to the Court of Appeal from different tribunals. After all, this is what happens if proceedings commenced in the Lands Tribunal are transferred to the Court of First Instance or the District Court in the interests of justice pursuant to section 8A(1)(b) of Cap. 17. In this instance, there would be a general right of appeal to the Court of Appeal. Besides, the Lands Tribunal has power to review its decision under section 11A of Cap. 17, and neither the High Court nor the District Court has power to review its decision.

27. For the above reason, I would respectfully differ from the opinion in Winbase Industrial Ltd. In my view, the provision of a restricted right of appeal from the Lands Tribunal is insufficiently clear for the jurisdiction of the High Court to be ousted.

The apparent width of the 10th Schedule

28. In the cases of Winbase Industrial Ltd. and the Mass Transit Railway Corporation, the court was concerned with the apparent width of the 10th Schedule of Cap. 344 and attempted to narrow its scope in holding that the proceedings in that schedule would fall within the exclusive jurisdiction of the Lands Tribunal. In Winbase Industrial Ltd., it was held that the proceedings in that schedule should be "limited to matters coming within the ambit of the Building Management Ordinance" (page 6). In the latter case, it was held that section 45 and the 10th Schedule have vested "exclusive jurisdiction in the Lands Tribunal in respect of, inter alia, the interpretation and enforcement of a registered instrument and exclusive jurisdiction in the High Court in respect of rectification and validity of a registered instrument" (page 4).

29. For my part, I would have difficulty in narrowing certain paragraphs of the 10th Schedule to "matters within the ambit of the Building Management Ordinance", having regard to the language of the provisions. Section 45(4) provides for proceedings in the 10th Schedule to be commenced, inter alia, by an owner of an undivided share in the land. Paragraph 6 of the schedule provides for proceedings "relating to any question of law concerning ownership, occupation or possession of the whole or any part of the building, including ownership of an undivided share in a building or in land on which there is a building". Likewise, paragraphs 7, 8 and 9 of the schedule are couched in very wide terms.

30. Even if the jurisdiction conferred in the schedule in respect of registered instruments is to be narrowed to the interpretation and enforcement of such instruments as held in the Mass Transit Railway Corporation case, the jurisdiction conferred is still very wide. Besides, this would have no bearing on paragraph 6 of the schedule, which is not in relation to any registered instrument. As stated in Ngan Chor Ying, supra. at 609D, the schedule is very widely drafted and it "includes matters that concern rights and obligations that arise quite independently of [Cap. 344], matters that frequently come before the High Court for determination".

31. This is not a case in which a right or remedy does not exist at common law and is created for the first time in a statute which also lays down a method of pursuing such right in a particular tribunal. If all of the proceedings specified in the 10th Schedule could rightly be regarded as proceedings in respect of rights and remedies created by Cap. 344, one would have no quarrel with the view that exclusive jurisdiction in such proceedings should be vested in the Lands Tribunal, as there would not have been any ouster of jurisdiction of the High Court (see Ngan Chor Ying, supra. at 608F to H). This, however, is not the case.

32. I would respectfully agree with the views of Findlay J. in Ngan Chor Ying that the width of the 10th Schedule points to the conclusion that the Lands Tribunal is not meant to have exclusive jurisdiction of the proceedings in the schedule. Other pointers against conferring exclusive jurisdiction are mentioned in Ngan Chor Ying, supra. at 609F to 610D, I also agree with the views there.

Other indications of legislative intent

33. Mr. Wong submitted for the defendants there are other indications pointing to a legislative intent that the Lands Tribunal should have exclusive jurisdiction. He referred to section 8(9) of Cap. 17, which provides that in the exercise of its jurisdiction, the Lands Tribunal is to have the same jurisdiction to grant remedies and reliefs as the Court of First Instance. This enlargement of powers of the Tribunal should be regarded as a significant indication of exclusive jurisdiction, as appeared from the reasoning of Trainor J. in Kong Hoa (Hong Kong) Ltd., supra. at 66. I am unable to accept this. It does not follow that the jurisdiction of the High Court is to be abrogated merely because the legislature confers on the Lands Tribunal power to grant remedies and reliefs as in the High Court.

34. Next, Mr. Wong referred to the power of the Lands Tribunal to transfer proceedings in appropriate cases to the High Court or the District Court, under section 8A of Cap. 17. He submitted that as there is no parallel provision in the High Court Ordinance, Cap. 4, the High Court would have no power to transfer proceedings to the Lands Tribunal but to dismiss proceedings wrongly brought in the High Court and this is another indication that the Lands Tribunal should have exclusive jurisdiction.

35. In Liu Ying-wah & Ors. v. Great Mace Trading Co. Ltd. & Anr. [1980] HKLR 881, it was argued before Mr. Commissioner Litton, QC (as he then was) that the Registrar of the High Court had no jurisdiction to order an action which was within Part II of Cap. 7 to be transferred to the District Court and that the only order he could have made was to rule that the action be dismissed for want of jurisdiction, relying on Kong Hoa (Hong Kong) Ltd. Whilst the Commissioner held that the High Court would have no jurisdiction to hear the action, he rejected the argument that the order of transfer was not within the jurisdiction of the Registrar. This was because "the High Court is a court of unlimited jurisdiction, to the extent that it has an inherent jurisdiction to regulate its own procedures, and it is a strong thing to say that a statute has had the effect of depriving it of jurisdiction in a particular matter". Although Cap. 7 has made it clear that the High Court has no jurisdiction to hear the case, "it does not thereby follow that it lacks jurisdiction in every other respect" (at 883). He also made reference to the provision then in section 40 of the District Court Ordinance, Cap. 336 (this has been amended and the new provision is in section 43 of Cap. 336), which provided that where an action commenced in the Supreme Court was within the jurisdiction of the District Court, the Supreme Court may order the transfer of such action to the District Court.

36. Mr. Wong has sought to distinguish the above decision on the basis that there is no provision equivalent to section 43 of Cap. 336 or Order 25 rule 3 of the Rules of the High Court, to provide for the transfer of proceedings from the High Court to the Lands Tribunal. I do not accept this as a valid distinguishing factor as it was held by the Commissioner in the earlier part of his judgment that there is inherent jurisdiction in the High Court to make an order of transfer to regulate its own procedures. I reject the submission that the High Court would have no jurisdiction to transfer proceedings to the Lands Tribunal in an appropriate case and the contention that the lack of jurisdiction of the High Court to do so would be a factor indicating exclusive jurisdiction should be vested in the Lands Tribunal.

37. Mr. Wong has also relied on the "alternative approach" of Dep. J. Z.E. Li in paragraphs 16 to 18 of his judgment in Colliers Jardine Management Ltd., supra. in which it was held that assuming the Court of First Instance would have concurrent jurisdiction with the Lands Tribunal, it would be an abuse of process to bring proceedings in the High Court because the legislature has set up the Tribunal as a specialised tribunal to provide for a cheaper mode of litigation and a more efficient tribunal to determine certain kinds of proceedings. The judge held that in this situation, it would be within the inherent jurisdiction of the High Court to stay the proceedings in the High Court for abuse of process. With respect to the judge, I am unable to agree that it would be an abuse of process to bring proceedings in the High Court where such proceedings are within the jurisdiction of the court.

38. Lastly, Mr. Wong referred me to the decision of the Court of Appeal in The Incorporated Owners of Finance Building, supra. at pages 13 to 14 in support of his contention that the judgment of Cheung J.A. has cast doubt on the reasoning in Ngan Chor Ying, supra. at 609F to H that the Lands Tribunal "does not have comprehensive jurisdiction over all persons and to make all lawful orders", in view of section 45(3) of Cap. 344. I am unable to read the judgment of Cheung J.A. in that light. The Court of Appeal was only concerned with whether section 45(3) should be interpreted in a manner to give jurisdiction to the Court of First Instance or the Lands Tribunal to vacate a charge wrongly registered against an owner's property. It was held that an application to vacate a charging order would come within paragraphs 1 and 2 in the 10th Schedule, that the Lands Tribunal was not precluded from granting the relief sought by section 45(3) of Cap. 344, nor was this outside the jurisdiction of the Tribunal by virtue of section 8(9) of Cap. 17 (see also pages 16 and 24 of the judgment). It does not appear on a fair reading that that part of the judgment relied on by Mr. Wong is meant to have a wider implication and Cheung J.A. has indicated at the outset that the Court of Appeal was not concerned with the issue if the Lands Tribunal was to have exclusive jurisdiction.

Conclusion and orders

39. For the above reasons, I have come to the view that there is lack of clear and unambiguous language in the statutory provisions to abrogate the jurisdiction of the High Court and I decide the preliminary issue in favour of the plaintiff. I hold that the Lands Tribunal does not have exclusive jurisdiction in these proceedings. I make an order nisi that the plaintiff is to have the costs of that application in any event, to be taxed if not agreed.

40. On the plaintiff's summons for time to file and serve an Amended Reply and Defence to Counterclaim, I grant leave to the plaintiff to do so within 7 days of the handing down of my decision and make an order nisi that the costs of that application be to the defendants in any event.