林見陽祖 (司理人: 林春樹，林盛謙) v. 林裕邦

LDPE 1700/2024

[2025] HKLdT 65

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPE 1700 OF 2024

__________________________

BETWEEN

__________________________

________________

REASONS FOR DECISION

________________

1.  This is the Respondent’s application dated 18 September 2025 to set aside my judgment dated 15 September 2025 (“the Judgment”) which was decided in the absence of the Respondent. The Applicant is represented by Mr Fung Lim Kai of Messrs Benny Kong & Tsai LLP, Solicitors. The Respondent is represented by Ms Julia Au who is instructed by Messrs K M Lai & Li.

2.  At the end of the hearing on 6 October 2025, I dismissed the Respondent’s application with reasons to be followed. Here are the reasons.

History

3.  Lot Nos 380 & 540 in DD 124 (“the Lots”) are registered in the ownership of Lam Kin Yeung Tso (林見陽祖) (“the Tso”) with managers, Mr Lam Chen Shu (林春樹) and Mr Lam Shing Him (林盛謙) (hereinafter referred to as “the Managers”).

4.  Pursuant to a Tenancy Agreement in Chinese (“the Tenancy Agreement”) proffered by the Applicant, the Managers, acting on behalf of the Tso, let the Lots to the respondent (which was named as 林羽邦the pronunciation of which is the same as 林裕邦) for a term of three years from 15 January 2021 to 14 January 2024 at a yearly rent of $10,000 exclusive of rates, Government rent or any license fee, payable in advance (Clause 2).

5.  By Clause 3 of the Tenancy Agreement, the respondent could not sub-let and assign to others without the prior approval by the managers.

6.  On 29 October 2024, the Applicant commenced an application of recovery of vacant possession of the Lots (“the Application”) on the ground that the respondent (who again was named in the Notice of Application of even date as 林羽邦the pronunciation of which is the same as 林裕邦) had failed to pay rent for the period since 15 January 2021. More particularly, in the Notice of Application, the Applicant stated that when the tenancy agreement expired, the Respondent held over and did not pay any rent. The Applicant asked for damages as a result thereof.

7.  Notwithstanding the discrepancy of the Respondent’s name in Chinese, the Respondent was able to file his Notice of Opposition on 6 November 2024. The Respondent alleged that:

(1) The Tenancy Agreement was never in writing;

(2) He received a letter from the Applicant’s solicitors, Messrs T K Tsui & Co, Solicitors, dated 29 April 2024 demanding for payment of rent for the 3 years from 15 January 2021. He paid $30,000 as demanded within 7 days. Attached to the Notice of Opposition was also a copy of cheque dated 13 May 2024 in payment of $30,000 to Messrs T K Tsui & Co, Solicitors.

(3) The Application was made by the Managers without consulting a third Manager (who had deceased) and certain members of the Tso.

8.  In a supplement to the Notice of Opposition (補充資料), the Respondent stated the Tenancy Agreement was supposed to be renewable every 3 years subject to an increase in rent not exceeding 20%. However, when the Tenancy Agreement expired, the Applicant asked for a 5 times increase. For that reason, the Respondent had proposed to convene a meeting with the Managers and other members of the Tso to settle the matter but to no avail. Then on 24 February 2024, the Respondent was able to meet the bookkeeper of the Tso, Mr Lam Kam Wong (林金旺) and agree with him that there would be a new tenancy at a yearly rent of $10,000. However, Mr Lam Kam Wong counter-proposed that he could succeed his late father as a Manager of the Tso. While the Respondent could not accede to Mr Lam Kam Wong’s counter-proposal, the latter had not arranged the new tenancy to be signed.

9.  Realising the discrepancy of the Respondent’s name in Chinese, the Applicant applied for the correction on 3 December 2024 which was allowed by Member Ng of the Lands Tribunal (“the Tribunal”) in the presence of both parties including the Respondent in person.

10.  In addition, Member Ng directed that the Applicant should provide to the Tribunal further and better particulars of its case on 13 March 2025 with a copy sent to the Respondent. Then the Respondent should reply to the particulars within 21 days thereafter.

11.  On 25 April 2025, the Applicant, then represented by Messrs Benny Kong & Tsai LLP, Solicitors, issued a Summons applying for further amendment of the Notice of Application so that only Lot 380 in DD 124 is issue (“Lot 380”). Hearing of this Summon was originally scheduled on 29 May 2025. Meanwhile on 19 May 2025, the Respondent made an application to postpone the hearing, complaining that he had not received the notice of hearing.

12.  On 27 May 2025, the two applications above were heard before me in the presence of both parties including the Respondent in person. I allowed the further amendment of the Notice of Application and ordered that the hearing on 29 May 2025 be vacated as it had become no longer necessary.

13.  The Application as amended on 30 May 2025 contained the following particulars:

(a) Mr Lam Chen Shu has been appointed as Manager of the Tso since 8 September 1997 under the New Territories Ordinance;

(b) Mr Lam Shing Him has been appointed as Manager of the Tso since 14 December 2015 under the New Territories Ordinance;

(c) The Managers, acting on behalf of the Tso, had let Lot 380 to the respondent from 15 January 2018 to 14 January 2024.

(d) The tenancy expired on 14 January 2024 but the Respondent had not delivered vacant possession of the Premises to the Applicant.

(e) As a result of the above, the Applicant claims mense profits from the Respondent at $12,000 per month.

(f) The Respondent had erected an unauthorized structure with former squatter control number YL/SP/2421 on Lot 380 as a result of which the Lands Department of the Hong Kong SAR had issued a notice dated 12 June 2020 requiring its demolition; otherwise, the Lands Department would resume the Premises under the Government Rights (Re-entry and Vesting Remedies) Ordinance, Cap 126.

(g) The Respondent was obliged to pay the mesne profits and demolish the unauthorized structure immediately.

(h) The Applicant denied having granted any further tenancy to the Respondent after expiry of the Tenancy Agreement.

14.  As regards the assessment of mesne profits at $12,000 per month, the Applicant relied heavily on a tenancy agreement in respect of Lot Nos 770, 783, 785, 787, 789 & 791 in DD 124 dated 13 February 2023 which was for a term of 3 years commencing from 1 November 2022 to 31 October 2025 at a monthly rent of $41,000. On the basis of 13,000 sq ft, the monthly rental could be deduced at $3.15 per sq ft. Whereas Lot 380 has a registered area of 0.09 acre, which is equivalent to 3,920 sq ft, the Applicant submitted that the market rent in the sum of $12,000 per month should be reasonable.

15.  On 8 August 2025, Messrs Benny Kong & Tsai LLP, Solicitors, applied for hearing of the Application. On 12 August 2025, the Tribunal informed the parties that the hearing would be held on 15 September 2025 (with a half-day reserved), pursuant to which both parties had to submit and exchange their witness statements within 21 days.

16.  When the hearing of the Application took place on 15 September 2025 as scheduled, the Respondent failed to appear. On the basis of the submission of Mr Fung Lim Kai of Messrs Benny Kong & Tsai LLP, Solicitors, which included citing of my judgment in Wong Sai Lee and Wong Kwok On Edward KWOK as manager of Wong Kwok Hing Tso v Wong Kam Ki & Another, LDPE 165/2022 (unreported, dated 2 June 2022), I made the following order:

(1) The Respondent do deliver vacant possession of Lot 380 to the Applicant;

(2) The Respondent do pay the Applicant the rental in arrears/ mesne profits at the rate of HK$12,000.00 per month from 15 January 2024 until delivery up of vacant possession of Lot 380;

(3) The Respondent do pay the Applicant the costs of the Application which are summarily assessed at HK$70,000.

Respondent’s bases to set aside the Judgment

17.  On 18 September 2025, the Respondent sought to set aside the Judgment on the ground that the Respondent did not have notice of the hearing on 15 September 2025. The Respondent sought the Tribunal to give him another chance to defend the Application.

18.  It was only on 6 October 2025 that the Respondent filed his “2^nd Affirmation” in support of his application to set aside the Judgment.

19.  The Respondent suggested he had been a hairdresser working at the material times at “Pip For Hair Salon” at No 64, Electric Road, North Point, Hong Kong. To facilitate his commuting to work, the Respondent stated (only for the first time throughout the proceedings) that he had resided at Unit B2, 10/F, Block AB, Haven Court, 128 Leighton Road since 16 December 2023[1] instead of his address at G/F, 19 Shek Po Tsuen, Hung Shui Kiu, New Territories. The Respondent would only go back to his address at 19 Shek Po Tsuen occasionally during holidays.

20.  The Respondent conceded (again for the first time throughout the proceedings) that he appreciated copies of letters from the Tribunal regarding the proceedings would also be addressed to Lot 380. However, Lot 380 is an agricultural lot and therefore he could not receive such copies from the Tribunal.

21.  While the Respondent acknowledged that he had resided at G/F, 19 Shek Po Tsuen, Hung Shui Kiu, New Territories, the letter box had been marked 19D (instead of 19) Shek Po Tsuen. The Respondent suggested this explained why he had not been able to receive any letter from the Applicant’s solicitors or the Tribunal.

22.  Notwithstanding the above, the Respondent acknowledged that he had received the following letters[2] served on him by the Applicant’s solicitors in person:

(1) The letter dated 30 May 2025 (in Chinese), ie the Application as amended;

(2) The letter dated 11 September 2025 (in Chinese) which contained a list of documents to be adopted in the hearing, including inter alia:

(a) Land Search Record of Lot 380 dated 29 August 2025;

(b) Approval of Appointment of Manager of Lam Kin Yeung Tso dated 8 September 1997 vide memorial YL 778262;

(c) Approval of Appointment of Manager of Lam Kin Yeung Tso dated 14 December 2015 vide memorial 15122300320021;

(d) Tenancy Agreement for Lot 2023 in DD 124 dated 13 February 2023;

(e) Block Crown Lease for DD 124 dated 24 January 1990;

(f) Letter of warning against unauthorized structure on Lot 380 issued by Lands Department dated 12 June 2020;

(g) Notice dated 25 January 2025 for convening meeting of the Tso members at ancestral hall on 2 February 2025.

(h) Letter from Messrs Benny Kong & Tsai LLP, Solicitors dated 24 February 2025 demanding mesne profits from the Respondent.

(3) The letter dated 12 September 2025 (in Chinese) which was supposed to include the Applicant’s Skeleton Opening and copies of documents included in Trial Bundle A[3] for use in the hearing on 15 September 2025. The Bundle A included therein, inter alai, the the witness statements of Mr Lam Chen Shu (林春樹) and Mr Lam Shing Him (林盛謙), ie the Managers, both dated 29 August 2025. This letter stated:

「親身送達

新界元朗洪水橋石埗村19號地下

林裕邦

敬啟者：

有關：香港特別行政區土地審裁處

           案件編號 LDPE 2024年第1700號

現向閣下送達

申請人開案陳詞大綱和供2025年9月15日上午10時30分在第3庭彭浩泉成員出席前聆訊之用文件冊的副本

請確認收妥文件，

此致，

江炳滔律師事務所有限法律責任合夥

謹啟」

23.  The Respondent complained that the letter dated 11 September 2025 was served on him too late to assist him in preparing his witness statement on 2 September 2025[4]:

「…… 奇怪地這份文件是申請人提交了證人陳述書後才存檔土地審裁處的， 沒有這份文件清單要我在2025年9月2日準備好我的證人陳述書與申請人代表律師交換並存檔土地審裁處是對我不公平的。」[5]

24.  More particularly, the Respondent averred that he did not return to his address at G/F, 19 Shek Po Tsuen during the period from 11 September 2025 to 16 September 2025 and therefore he could not be aware of the hearing scheduled on 15 September 2025 until he was called up by the clerk from the Tribunal on that morning. However, he was busy at work and so replied foolishly that he could not attend unless the hearing be refixed on another day[6]:

「…… 我只在聆訊當天收到土地審裁處書記來電我才得知，當時我說我並不知道要出席，但當時我有工作在身，心想不想得失我的客人，所以愚蠢地說不能馬上到庭，只口頭說希望土地審裁處另訂日子聆訊 ……」(underline added)

25.  In addition, the Respondent complained that according to page 41 of Trial Bundle A, the Applicant’s solicitors sent him a letter dated 28 August 2025 only reminding him to exchange his witness statement on 2 September 2025 as per the Order of the Tribunal dated 12 August 2025. The Respondent alleged that this letter dated 28 August 2025 should have taken at least 2 days for posting before he could receive. By that time, 2 September 2025 should have passed.

26.  The Respondent stated also that the Tso comprises 3 descent divisions (房), to which his father and the other two Managers belong. According to him, the Tso’s land could only be rented to its members who would only pay nominal rent though it would be reviewed every 3 years with an increase not exceeding 20%. The Respondent succeeded his father’s occupation of Lot 380 in 2000 when the annual rent payable was $1,500.

27.  The Respondent also denied that Lot 380 was leased to him under a tenancy for 6 years from 2018. Instead, it was only a 3-year tenancy. However, when the tenancy expired in 2021, the renewal rental has still been under negotiation to no avail. This notwithstanding, when the Respondent received the letter from Messrs Benny Kong & Tsai LLP dated 29 April 2024, he was willing to pay $30,000 as demanded so as to avoid the accusation by the Applicant that he failed to pay rent.

Respondent’s Submission

28.  On the other hand, the Tribunal received the Respondent’s Submission dated 3 October 2025 prepared by Ms Julia Au (“Ms Au”), counsel for the Respondent:

“1. This is the hearing of the Respondent’s Form 1 Summons dated 18 September 2025 (“Summons”) applying to set aside of the Lands Tribunal’s order dated 15 September 2025 (“Order”), on the basis that:

(1) The orders made and the pleadings herein indicate that the Applicant failed to apprise the Tribunal as to certain material facts that would substantively affect the Order made.

(2) To date, the Applicant has not provided the Respondent with, and the Respondent has not had sight of:[7]

(a) The witness statements filed by the Applicant;

(b) The order dated 15 September 2025, whether in draft form or sealed;

(c) Hearing bundle B; and

(d) The annexure to the Applicant’s Opening Submission dated 12 September 2025 (“AO”) referred to in AO§6 (appears to be a lease agreement of the comparable relied upon in calculation of the mesne profit (sic). No lot number was provided)

(3) This justifies a setting aside of the Tribunal’s order under s11AA of the Lands Tribunal Ordinance (Cap 17) and the reopening of evidence.

2. The Respondent was previously acting in person and he has only received an incomplete selection of documents in these proceedings. Although he attended the Tribunal Registry in July 2025 to ask for updates on the case, he did not receive the letter from the Tribunal informing him of the hearing on 15 September 2025[8] and did not know of it until the learned clerk contacted him after the Order was made [9]…

…

5. First, the Applicant’s Amended Form 22 (“F22”) does not present a truthful picture:

(1) The first page of F22 is filled out to say that the duration of tenancy was 15 January 2018 to 14 January 2024, and that the existing rent is $10,000 per month.

(2) On the second page, F22 at §6 alleges there was an agreement in 2018 as to a tenancy agreement from 15 January 2018 to 14 January 2024.

6. This is wholly misleading. In fact, there were two separate tenancy agreements covering this time period:

(1) From 15 January 2018 to 14 January 2021, there was a written tenancy agreement for three years providing that rent shall be $3,000 per year;

(2) From 15 January 2021 to 14 January 2024, there was an oral agreement for a further term of three years:

(a) A single payment of $30,000 has already been made (for settlement of rent for three years).

…

(c) This acceptance of rent is an affirmation by the Applicant of the tenancy agreement for a fixed 3-year term from 2021 to 2024.

(3) For completeness, there were multiple tenancy agreements in the decades preceding 14 January 2018 between the Tso and the Respondent, and his father before him…

(4) …

(5) Sub-paragraphs 5(1) to (3) above also demonstrates that the Respondent holds over from 15 January 2024 as either a periodic tenant (period of 1 year) or a tenant on a fixed term of 3 years.

(6) The tenancy implied by law should be based on an inference on the facts as to whether the rent was fixed by reference to a year or three years based on the preceding written and oral agreements.

…

7. Second, the Respondent says that the Applicant acted without authority in seeking the Order:

(1) The Respondent says that the managers acted contrary to the applicable Chinese customary law in (a) terminating his tenancy without approval and consensus of the descendants of the Tso; and (b) refusing to attend a general meeting of the Tso called by the Respondent to consider his objections to the termination of his lease.

(2) It is also his case that the managers are bound or estopped by consensus of the Tso from demanding an increase in rent beyond 20% every three years.

(3) Expert evidence may be required on this challenge …

8. Third, on proper application of the law, mense profit should not have been assessed at (1) a monthly rate; (2) market value due to the peculiarities of this case:

(1) The Respondent is a tenant of the subject lot in his capacity as a member of the Tso. His father Lam Ping Mui before him was a tenant of the same property according the Tso bookkeeping records dated since at least 1980. The subject lot is not a property leased on the open market. Indeed the managers of the Tso are not free to lease it to outsiders.

(2) All the Tso lands of the Applicant are leased at a yearly rental. The land use is restricted by history and consensus of the Tso.

(3) Accordingly, open market valuation relying on comparables outside of Tso land, with rent received on monthly basis, cannot be applicable in any assessment of mesne profit (sic) that may be required.

(4) The Respondent has not had sight of the valuation report relied upon by the Applicant, but notes that … a comparable at a level of monthly rental that indicate Melhado or other use far more valuable than the subject lot – agricultural lot under decades of cultivation with a domestic temporary structure – and prima facie is not an appropriate comparable. …

(5) …

9. By reason of the above, the judgment obtained is irregularly obtained and should be set aside…

Principles for Setting Aside

29.  Rule 15(7) of the Lands Tribunal Rules (“LTR”) provides that “The Tribunal may on such terms as it thinks fit set aside or vary any order made under this rule”.

30.  In considering a setting aside application under rule 15(7) of the LTR, the Tribunal would apply the legal principles on setting aside a default judgment in the context of Order 13 of the Rules of the High Court, Cap. 4A (“RHC”): Alwaysfull Industries Ltd v Leung Lai Bing Peggy (unreported, LDPD 286/2014, 4 July 2014) at §§16-18. Those principles are as follows:

(1) If the judgment is irregular, the Hong Kong position is that such judgment is to be set aside as of right.

(2) If the judgment is regular, the merit of the defense needs to be examined and the defaulting party has to show that his case and evidence adduced in support is potentially credible and carries some degree of conviction.

(3) The burden was on the defaulting party to prove that the judgment was irregular. Whether such burden of proof is discharged was a matter of evidence.

(4) When a defendant deposes that he has not received the writ through the post, the court has little option but to believe this save when there is sufficient material to cast doubt upon the defendant’s credibility to enable the court to disbelieve him.

(5) This does not mean that the court must accept a defendant’s assertion no matter how improbable. A defendant is still required to provide convincing evidence, but how much evidence is required must depend on the circumstances.

31.  In the present case, when the Applicant filed the Notice of Application on 29 October 2024, a copy of the Notice of Application was served to the Respondent’s address at G/F, 19 Shek Po Tsuen as well as Lot 380 though the Respondent was named as 林羽邦 instead of 林裕邦 as later corrected on 3 December 2024. Notwithstanding the latter, the Respondent filed his Notice of Opposition in response on 6 November 2024, stating, inter alia, his address at G/F, 19 Shek Po Tsuen. Thus the service of originating process must be effective when the proceedings are brought to the notice of the Respondent instead of mere delivery of the Notice of Application to the address as stated in the procedural rules.

32.  It was only when the Applicant, then represented by Messrs Benny Kong & Tsai LLP, Solicitors, issued a Summons applying for further amendment of the Notice of Application so that only Lot 380 in DD 124 is in issue on 25 April 2025, the Respondent alleged for the first time that he did not receive the Summons. This notwithstanding, the Respondent, in his Interlocutory Application dated 19 May 2025 to postpone the hearing, did not disclose anything wrong with his address at G/F, 19 Shek Po Tsuen.

33.  Even on 27 May 2025 when the two applications above were heard before me in the presence of both parties including the Respondent in person, the Respondent did not disclose that he might have a second address at Haven Court in Causeway Bay, Hong Kong.

34.  Perhaps the Respondent was aware of his duty to follow up with the progress of the proceedings when he attended the Tribunal Registry in July 2025 to ask for updates on the case. Regrettably, even at that moment he did not bother to inform the Tribunal as regards his address at Haven Court in Causeway Bay, Hong Kong.

35.  Then the Respondent complained not receiving the letter from the Tribunal dated on 12 August 2025 informing him of the hearing on 15 September 2025 and requirement for exchanging the witness statements within 21 days. With respect, there should be no complaint about not receiving the list of documents to be adopted in the hearing as contained in the letter from Messrs Benny Kong & Tsai LLP, Solicitors dated 11 September 2025 when these documents should not have affected the Respondent’s ability to prepare his own witness statement, if he wished. In gist, the Respondent’s only defense was that the Applicant acted without authority to terminate the Tenancy Agreement under the Chinese customary law.

36.  For the same reasons discussed above, whether the Respondent had received the Applicant’s Skeleton Opening Submission and the Trial Bundle in time was neither here nor there. In any event, the Respondent failed to exchange the witness statements as ordered by the Tribunal by his own fault of not informing either the Tribunal or the Applicant his address at Haven Court, Causeway Bay, Hong Kong.

37.  Coming onto 15 September 2025, the Respondent admitted that he was reminded by the Tribunal to attend the hearing as scheduled (though he may arrive late). He further admitted that he declined to attend the hearing of his own volition.

38.  The Judgment, therefore, must be regular.

Merit of the Defense

39.  Notwithstanding the submission by Ms Au that there might be a discrepancy between the Tenancy Agreement asserted by the Applicant and that asserted by the Respondent on the term of the tenancy, either version of them referred to a fixed term tenancy that had expired on 14 January 2021. See §6 of Ms Au’s Submission dated 3 October 2025 at §28 above.

40.  In Chow Kin Ying v Hussain, Shouket, HCMP 1535/2016 (unreported, dated 11 July 2016), the Court of Appeal affirmed at §8 that:

“… the tenancy would have come to an end when the fixed term expired. The fact that the parties were in negotiation of a new tenancy agreement did not have the effect of prolonging the tenancy.”

41.  Then, similar to that of the respondents in Wong Sai Lee & Wong Kwok On Edward as Manager of Wong Kwok Hing Tso v Wong Kam Ki & Another, LDPE 165/2022 (unreported, dated 2 June 2022) on which Mr Fung of Messrs Benny Kong & Tsai LLP, Solicitors, relied in his Skeleton Opening Submission, the Respondent’s only defense was that the Applicant did not have the authority to terminate the Tenancy Agreement owing to Chinese customary law.

42.  In the above judgment, I had referred to the decision of Tang Kam Wah & Others v Tang Ming Yat & Another, HCA 10141/1998 (unreported, dated 26 November 2002) where Chu J (as she then was) ruled at §72 as follows:

“Under Section 15, the power of dealing with Tso land, including the granting of a lease, is vested in the manager. Accordingly in exercising the power to let, the manager being trustees are required to act unanimously : Lewin on Trust (17th edn) p.737 ... It also follows that the unanimous decision of managers cannot be overridden by the decision of the members of Tso because under Section 15, the power to deal with Tso property is conferred solely on the managers and no one else : per Litton JA (as he then was) in Light Ocean Investments Ltd, at p.40. This being the case, even if the defendants were to succeed in proving the existence of the Pleaded Custom, the Lease remains invalid and unenforceable by reason by Section 15.”

43.  In fact, my judgment in Wong Sai Lee & Wong Kwok On Edward as Manager of Wong Kwok Hing Tso was affirmed by the Court of Appeal[10]. In this latter decision, the Court of Appeal ruled at §22 that when the manager of a Tso tried to recover possession of land after expiry of a tenancy, the Chinese customary law is not applicable:

“(1) 本訴訟是關於業主在相關租約期滿後，向租客收回出租物業的空置管有權及中間收益，並不涉及一個「祖」的司理與其受益人之間的權責問題。故此，雖然申請人是該祖的司理而答辯人是該祖其中的一名受益人，適用的法例是香港一般法例，而不是中國習俗或傳統權益 (見Leung Kuen Fai v Tang Kwong Yu (or U) Tong [2002] 2 HKLRD 705，第63段；Tang Man Kit and Foo Tak Ching (suing as managers of Wah Yan Mo Fan Heung) v Hip Hing Timber Company Limited，CACV 137/2002 (13.5.2005)，第48至50段；Tang Kun Nin, Tony suing as manager of Hung Shing Temple v Cheng Wai Fong & Others，HCA 87/2011 (12.3.2014)，第93至95段)。

(2) 至於答辯人所依賴的案例，即Mak Lai Chuen, suing as sole manager of Mak Tsok Sui Tso v Lau Kar Yau，DCCJ 2609/2006 (29.8.2008)，誠如高等法院原訟法庭暫委法官吳美玲 (當時官階) 在Tang Kun Nin一案其判案書第85及94段中指出，區域法院法官陳美蘭 (當時官階) 的判決是建基於陳法官認為案件涉及「祖」其中一名受益人的家庭成員享用「祖」的物業的權利，以及在陳法官席前相關的專家證供。故此，陳法官的判決並不適用於本案的案情，本庭也不需要考慮陳法官的判決是否正確。

(3) 申請人在提出本訴訟時，是該祖僅餘的兩位在生註冊司理，具有興訴資格向答辯人提出本申請 (見《受託人條例》(第29章)第20(1)條)。” (underline added)

44.  Thus, I find no merit in the Respondent’s defense.

Mesne Profits

45.  It is trite that where a tenant remains in possession of the premises after a fixed term tenancy agreement has expired without the landlord’s consent, he is a trespasser liable for mesne profits until he relinquishes possession[11]. The Respondent failed to deliver vacant possession even up to date.

46.  In the present case, it is not in dispute that the Respondent did not deliver vacant possession of Lot 380 as at the relevant dates. At least, the unauthorized structure on Lot 380 as erected by the Respondent remained thereon.

47.  Instead, Ms Au had tried to argue that even though the Tenancy Agreement expired, the Respondent could be a periodic tenant (period of 1 year) or a tenant on a fixed term of 3 years. But she could provide no basis in support of her suggestion.

48.  On the other hand, by reference to the Respondent’s version of tenancy agreement as attached to his 2^nd Affirmation as LYP-5, it clearly stated that the tenancy agreement would have no effect when it expired:

“…… 双方同意合約條文如下：

(一) 該地租約期以叁年為限期， 即由二O壹捌年壹月十五日起至二O弍一年壹月十四日止為有效期， 逾期此批約無效。

……

(六) 期滿双方沒有續約， 該地段業主收回管理， 該地要復原農地， 業主任何損失全部費用由承租人支付。” (underline added)

49.  Certainly, by reference to the Tenancy Agreement asserted by the Applicant, it commenced from 15 January 2018 to 14 January 2024 instead.

50.  As regards the quantum of the mesne profits, I had enquired Ms Au if the Judgment were set aside, whether the Respondent would be prepared to submit any valuation evidence to challenge the determination of $12,000 per month. Ms Au confirmed the negative.

51.  Instead, Ms Au submitted that it was the Respondent’s case that the rental should be a nominal rent as before or in any event, a rental based on a restriction for agricultural use only rather than on a Melhado basis. The latter basis is derived from the judgment of the Court of Appeal in Attorney General v Melhado Investment Ltd. [1983] HKLR 327 where it was held to the effect that the agricultural land as described in the Block Crown lease can be used for open storage purposes without breaching of the covenant of the lease.

52.  Since that decision of the Court of Appeal, much of the land in the New Territories covered by a Block Government Lease has long ceased to be farmed and has instead been utilized as open storage (including container storage) or open car park space. Such alternative uses of New Territories agricultural land have come to be known as Melhado uses.

53.  In the review decision of Delight World Limited v Secretary for Transport, LDMR 2/2002 (unreported, 21 May 2004), the applicant’s land was at the material times vacant and had not been used either for car parking or open storage. When it was resumed by the Government, the applicant successfully claimed compensation on the basis of open storage use. In dismissing the appeal by the Secretary for Transport, the Court of Appeal[12] stated at §§13-14 as follows:

“13. … There was no requirement in (section 4(1)(a) and (c)-(i) of the Town Planning Ordinance), however, that the use to which the land could legitimately be put in accordance with the lease under which it was held, referred to as the “Melhado” use, had to have commenced. That, it seems to me, is the crux of this case. It is the applicant’s case that if the owner of land holds that land under terms of a lease under the terms of which it could legitimately be used for a particular purpose, the owner is entitled to compensation notwithstanding that it has not commenced such use.

14. In short, I consider that the applicant’s case on the construction of the statute must be correct ...” (underline added)

54.  While the Respondent alleged that Lot 380 had been used mainly for agricultural purposes, I cannot find any evidence that Lot 380 is restricted to agricultural use only rather than the Melhado use.

55.  To the contrary, by reference to §14⑥ of the Grounds of Opposition (答辯理據) attached to the Amended Notice of Opposition dated filed on 11 June 2025, the Respondent accused the Managers of renting out the Tso’s land for carparking purposes.

Disposition

56.  The Judgment is a regular judgement. The Respondent has failed to discharge the burden of showing an arguable defense. The Summons dated 15 September 2025 was therefore dismissed.

Costs

57.  Costs shall follow the event. Having reviewed the Statement of Costs produced by the Applicant at the end of the hearing and having heard the submissions of both parties on this issue, I summarily assess the costs in the sum of $30,000 payable by the Respondent.