PACIFIC BASE HOLDINGS LTD AND OTHERS v. LEE HOP BIU AND OTHERS

LDCS 14000/2017

[2020] HKLdT 18

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO 14000 OF 2017

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BETWEEN

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D E C I S I O N

(Leave to Appeal)

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1.  Pursuant to the oral decision delivered by the Tribunal on 7 August 2019[1], it was ordered that the Intended Intervener’s Summons dated 1 August 2019 be dismissed with costs to the applicants, the 1^st to 3^rd respondents on a party and party basis on the High Court scale to be summarily assessed (“the said Order”).

2.  By a summons dated 21 August 2019, the Intended Intervener applied for leave to appeal against the said Order on the grounds as set out in the draft Notice of Appeal attached therein.

3.  Section 11AA(6) of the Land Tribunal Ordinance (“LTO”) provides that :

“(6) 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.”

Grounds of Appeal

4.  Regarding Ground 1, Mr Ho SC leading Ms Chow for the Intended Intervener submitted that there is no and/or adequate remedial proposal in the Application to ensure the structural safety and stability of the remaining structure on the No 75 Granville Road upon the demolition of the No 73 Granville Road portion of the building for redevelopment.  The Intended Intervener’s proprietary rights as the registered owner of 2^nd Floor, No 75 Granville Road, is directly affected.

5.  With respect, we disagree.  As the demolition of the No 73 Granville Road portion of the building will have to be approved by the Building Authority (“BA”), we consider that if the structural safety and stability of the remaining structure on the No 75 Granville Road cannot be ensured by the successful purchaser of the sale lots, no approval would be granted by BA.  Indeed, the burden to redevelop is on the purchaser but not the applicants under the Land (Compulsory Sale for Redevelopment) Ordinance. This ground has no merit.

6.  Regarding Ground 2, Mr Ho SC submitted that the Tribunal erred to hold that the same purpose could be achieved through the 4^th respondent (“R4”) as she is the same person as the Intended Intervener.

7.  The Tribunal accepts that the Intended Intervener’s interests are independent of her rights as a minority owner under the present Application. Hence, we allowed the Amendment Application by R4 by adding, inter alia, the following in her Notice of Opposition:

“The inclusion of No 73 Granville Road (ie Kowloon Inland Lot No 9549) also fails to meet the statutory requirement in section 3(1)(b) of the Ordinance in that approval from the Building Authority would unlikely be granted for demolishing only the part of the Existing Building on No 73 Granville Road through dissecting it into two portions when no or no adequate remedial measures have been included in the present application to address the structural stability and safety of the part of the Existing Building to remain on No 75 Granville Road (Kowloon Inland Lot No 10162).”

8.  The Tribunal considers that the amendments cover the main concern of the Intended Intervener and we will deal with the issue raised by R4 in the judgment after trial.  Accordingly, Ground 2 has no merit.

9.  Regarding Ground 3, Mr Ho SC submitted that the Tribunal has to take into account the structural safety at the stage of making an order for sale rather than leaving it to BA at the stage of application for demolition permit.  After allowing the Amendment Application, the issue of safety will be dealt with in the judgment by the Tribunal.  This ground has no merit.

10.  Ground 4 concerns the reason for delay in taking out the Intended Intervener’s Summons.  From the 1^st affirmation of R4 filed on 17 April 2019, R4’s expert team conducted a site inspection on 12 February 2019. R4 should be alerted and advised for the possible structural instability of the remaining structure on No 75 Granville Road if the structure on No 73 Granville Road is to be demolished.  We consider that this ground has no merit.  

Conclusion

11.  We are of the view that this application for leave to appeal shall be dismissed as it has no reasonable prospect of success nor any other reason in the interests of justice why the appeal should be heard.

12.  As costs shall follow event, we order that the Intended Intervener do pay the applicants, the 1^st respondent, the 2^nd respondent and 3^rd respondent the costs of the application including all costs reserved, if any, on a party to party basis with certificate for one counsel on the High Court scale to be taxed if not agreed.