CHEUNG CHUN MAN AND ANOTHER v. MAK JACQUELINE

LDPD2450/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 2450 OF 2016

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DECISION
(APPLICATION FOR LEAVE TO APPEAL)

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1.  This is an interlocutory application taken out by the respondent on 29December 2016 seeking leave to appeal against my judgment made on 28December 2016 (“theJudgment”). The respondent also seeks to (1) stay the execution of delivering vacant possession of the suit premises until the outcome of the leave to appeal, (2) extend the relief period in theJudgment and (3) join Shu Chak Chan as the 2^nd respondent.

Background

2.  By a tenancy agreement dated 12 December 2015 (“the Tenancy Agreement”), the 1^st and 2^nd applicants, hereinafter referred to collectively as landlord or the applicants, let the suit premises to the respondent, as tenant, for a term of 2 years from 26December 2015 to 25 December 2017 at a monthly rent of $26,500 (inclusive of government rent, rates, and management fee).  There is also a break clause (“the Break Clause”) whereby after the expiry of 11 months from 26December 2015, the landlord may exercise the option to terminate the Tenancy Agreement by serving 1 month’s written notice to that effect on the tenant.

3.  According to a Notice of Application filed by the applicants on 29 November 2016, however, the respondent had failed to pay rent since 26 September 2016 and there was rental in arrears in the sum of $6,500 for the period between 26 August 2016 and 25 September 2016. The applicants applied for recovery of possession of the suit premises and for order for mesne profits.

4.  On 6 December 2016, the respondent filed a Notice of Opposition stating that she was in the course of a divorce proceeding and would therefore need a grace period to settle her children and to move.

5.  Then after hearing the submissions of the parties on 28 December 2016, this Tribunal made the Judgment as follows:

(1) Subject to paragraph (3) below, the respondent do deliver vacant possession of the Suit Premises to the applicant;

(2) The respondent do pay the applicant arrears of rent/mesne profits as follows:

(a) Balance of arrears of rent from 26 August 2016 to 25 December 2016 in the sum of $32,000;

(b) Arrears of rent/mesne profits at the rate of $26,500 per month from 26 December 2016 until delivery up of vacant possession;

(3) If the respondent should on or before 11 January 2017 (“Relief Expiration Date”) pay into the Tribunal all the arrears of rent/mesne profits as stated in paragraph 2 above (including all arrears of rent/mesne profits due on or before the date of payment), the respondent be relieved from the forfeiture incurred herein, and the Tenancy Agreement be reinstated;

(4) There be no order as to costs.

Interlocutory Application dated 29 December 2016

6.  According to the Affirmation attached to the interlocutory application filed by the respondent on 29 December 2016, she is going through a divorce and custody proceeding whereby interim rent and maintenance has been ordered by the Court of First Instance in HCMP 1857/2016 to be paid by her husband, Mr Shu Chak Chan (“Mr Chan”), who fails however to abide by the order made by Madam Justice Au-Yeung dated 5 September 2016[1]. This also explains the reason why the respondent seeks to add Mr Chan as a second respondent.

7.  In this Affirmation, the respondent also repeats what Madam Justice Au-Yeung said in HCMP 1857/2016 that the responsibility to provide an accommodation for her and the children is on the husband. The respondent submits therefore in order for her to pay/settle the rentals in arrears, to continue pay rent and to move, she needs her husband’s collaboration and the 14 days relief period (i.e. from 28 December 2016 to 11 January 2017) is not sufficient.

8.  The respondent also submits that her children are presently Wards of Court and Madam Justice Au-Yeung reminded her that any change as regards the children has to obtain the High Court’s permission.

Leave to Appeal

9.  Section 11(2) of Cap. 17, Lands Tribunal Ordinance (“the Ordinance”) provides that:

“Subject to section 11AA and 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 judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.”

10.  And section 11AA (6) of the Ordinance provides that:

“Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that:-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

11.  When hearing of this interlocutory application took place this morning, the respondent basically repeated what she had submitted in the hearing on 28 December 2016 and in the Affirmation afore-mentioned.  Indeed, on 28 December 2016, the 2^nd applicant responded that the landlord could not suffer continuously from the lack of rental income or they may also face financial difficulty.

12.  I cannot see how these grounds in this interlocutory application could be taken as issues in the “point of law”. I cannot see how the respondent should be given the leave to appeal.

13.  I am also not persuaded that Mr Chan should be joined as the 2^nd respondent as only the respondent’s name appears on the Tenancy Agreement and she was the only person signing on the Tenancy Agreement as tenant.  That Mr Chan is involved in the divorce proceeding with the respondent or has failed to abide by Madam Justice Au-Yeung’s order should not be a good reason for Mr Chan to be joined in the present case. In any event, various post-dated cheques dated since 5 October 2016 issued by Mr Chan but ordered by court to be payable to the applicant were only in the amount of $18,000 per month instead of the full rental of $26,500 per month (ie there had been a short fall in rental of $8,500 per month since due date of 26 September 2016).

14.  The present case indeed involves a simple application for recovery of possession and payment of outstanding rent/mesne profit and costs. Since I do not allow the respondent the leave to appeal, the consequential application by the respondent for stay of execution of possession of the premises pending appeal is therefore refused.

15.  The application for extending the Relief Expiration Date is also refused as the respondent is unable to provide a definite date when she would be able to pay back all the rental in arrears.  In any event, the landlord may exercise the option to terminate the Tenancy Agreement by serving 1 month’s written notice to that effect on the tenant under the Break Clause.

Costs

16.  Since both parties are not legally represented, I decide not to make any costs order for this application.

Conclusion

17.  The interlocutory application by the respondent to seek leave to appeal and stay of execution of the order for possession be dismissed.  The application by the respondent for leave to join Shu Chak Chan as the 2^nd respondent is also refused. There be no order as to costs.

[1] A copy of the Order was produced by the respondent as Exhibit 1 in the hearing on 28 December 2016.