JOHN ROBERT GORDON CHENEY v. COLLECTIVE (NOMINEES) LTD

LDNT 70/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDNT No. 70 of 2001

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Decision

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1. The Applicant objected to proceeding with any "review" pursuant to the "Amended Summons" taken out by the Respondent until substantive legal issues have been ruled upon by the Tribunal. The "issues" set out by him are as follows: -

1. The form of the summons and the sufficiency of the originating document;

2. The criteria to be applied in the Tribunal's exercise of its discretion to permit a review and how those criteria apply in the circumstances of this case;

3. In the event any review is permitted what should be the permitted scope of the review;

4. In the event any review is permitted the Tribunal must separately exercise its discretion to determine the evidence that it will permit and must therefore review the principles that apply to the exercise of its discretion in the admission of evidence.

The first and second "issues"

2. The first 2 "issues" should be considered together. In respect of the form of the summons, the Applicant submitted that the originating summons filed by the Respondent on 18th July, 2002 is insufficient to support any decision by the Tribunal to grant a review under section 11A of the Lands Tribunal Ordinance. He stated, inter alias, that the Respondent has no right to a review and must provide the Tribunal with grounds or "evidence" upon which the Tribunal can exercise its discretion. But the Respondent failed to do so, and therefore there was no basis upon which the Tribunal could exercise any discretion to grant a review. The Respondent's request for a review must be denied.

3. He submitted that if the originating summons was wholly deficient, then it was not capable of being "amended" beyond the 30 days' period as any right to request a review had by then expired. Accordingly the Tribunal's decision to permit the amendment of the summons was incorrect at law.

4. He submitted that the Tribunal must conclude that the matters set out in the Amended Summons do not constitute matters that justify exercising the Tribunal's discretion to be provided with a review.

5. On 18 July 2002, the Respondent took out a summons application seeking the following:

"the hearing of an application on the part of the Respondent for an order that there be a review of the decision of the Member Mr. W.K. Lo ..... given on the 25th day of June 2002, ordering the rental of the premises ..... be assessed at HK$22,900.00 monthly for the period from 1st July 2002 to 30th June 2004 and to re-consider the prevailing market rent."

6. The review was fixed to be heard on 30th Sept. 2002, but subsequently adjourned to 2nd Oct. 2002. On 2nd Oct. 2002, the parties appeared for the scheduled hearing of the review. Mr. Wong, Counsel for the Respondent sought leave of the Tribunal to hear or receive evidence for the review under Section 11A(4) of the Ordinance. The Applicant opposed the application on the ground that the summons he received was a bare summons, containing no ground at all, and he did not know the reason of the Respondent's applying for review in the first place. After Mr. Wong had made a response, the Applicant objected to continue to hear the review. He made an oral application to the Tribunal seeking a ruling that the Tribunal should not deal with the Respondent's summons application of 18th July 2002 any further on the ground that the summons had not actually spelt out any ground for the review, and that the decision made on 18th July 2002 was wrong. Therefore the Tribunal proceeded to deal with the preliminary oral application by the Applicant in the hearing scheduled on 2nd Oct 2002 for the purpose of hearing the review of the case.

7. To support the preliminary oral application the Applicant submitted a number of grounds. He concluded by stating that this Tribunal erred when exercising its discretion to have made a decision to review the case. He asked the Tribunal to make a ruling not to proceed with the Review, not to grant leave to the Respondent to amend the summons and not to allow the Respondent to adduce evidence, including the production of the new surveyor's report.

8. After hearing arguments from the both parties, the Tribunal gave its ruling on 22nd Nov. 2002, dismissing the Applicant's oral applications.

9. The review hearing was re-scheduled to be heard on 15 January 2003. During the hearing that day, the Applicant raised the objection that the Tribunal should not proceed until substantive legal issues were ruled upon by the Tribunal.

10. The 2nd issue relates to the time when the Tribunal decided to review the decision made on 25th June 2002. The Applicant submitted that the Tribunal erred in deciding to permit a review and this decision must be quashed.

11. In effect the Applicant was asking the Tribunal again not to proceed with the review. This is plainly the purpose as set out in his written submission. Some of the grounds raised by him had been put forward by him on 2nd October 2002. The Tribunal has already made a ruling on 22nd Nov. 2002. This is plainly an abuse of the judicial process.

The third issue

12. The Applicant submitted that because of the context of S.11A, before embarking on any review, it is incumbent upon the Tribunal to define the scope of the review. It is incumbent upon the Respondent applying for a review to define for the Tribunal exactly how far their review proposes to go. The Respondent must justify the scope of the proposed review based on reasonable principles of law and justice. He asked the Tribunal to disallow the two grounds set out in the Amended Summons. But on 22nd Nov. 2002, the Tribunal has already granted leave to the Respondent to amend the summons for the review, and under Section 11A, there is no statutory requirement that the scope of the review has to be defined in the way as suggested by the Applicant.

13. The grounds of the Amended Summons in effect set out the scope of the review. It is pre-mature to determine at this stage (before the commencement of the review hearing) whether the grounds set out in the Amended Summons are justified or not. This is a finding to be made by the Tribunal after hearing submission by the parties during the review hearing. The submission made by the Applicant touched on the substantive matters which are the subject matters of the review. They should be dealt with during the review hearing, and not before it.

The fourth issue

14. The Applicant submitted that the Tribunal must apply proper and appropriate criteria in exercising its discretion to permit evidence; it must not permit the introduction of evidence in circumstance where such introduction of evidence would constitute an abuse of process; the Respondent does not have any right to introduce a surveyor's report in the review process. The introduction of such a report is subject to the discretion of the Tribunal, and the evidence must be fit for the purpose of determining the specific issue of the proposed review.

15. Under Section 11A(4) of the Ordinance, the time at which the Tribunal may hear and receive any evidence is the time when the review is in progress. It is only when the review is in progress then the Respondent may at that stage seek to rely on section 11A(4) to introduce evidence for the Tribunal to consider. The Applicant can raise his objection, if he so wishes. But the Respondent cannot do so before the commencement of the review. It is not known at this stage whether the Respondent will introduce any new evidence in the review, because the review has not yet commenced. It is inappropriate and impossible for the Tribunal to make any decision regarding the fourth issue because there is no application at this stage by the Respondent to introduce evidence and accordingly there is no basis upon which the Tribunal can make any decision regarding the admissibility of evidence. The issue raised by the Applicant is simply pre-mature.

16. In conclusion the Tribunal made a ruling on 22nd Nov. 2002 thereby rendering the application regarding the first and second issues unnecessary. As for the third and the fourth issues they should be raised during the review. Above all, there is no statutory provision, or legal basis which empowers the Applicant to make this so-called preliminary application.

17. For these reasons, the Tribunal dismiss the Applicant's preliminary application.