WONG CHI LEUNG v. JUBAULT BERTRAND ANTOINE

LDPE 106/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPE 106 OF 2016

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DECISION
(APPLICATION FOR LEAVE TO APPEAL OUT OF TIME)

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Background

1.  This is an interlocutory application taken out by the respondent on 11 April 2016 seeking leave to appeal against my decision handed down on 15 March 2016 (“the Decision”) refusing to set aside a default judgment against the respondent dated 26 February 2016 (“the Judgment), ordering him, inter alia, to deliver vacant possession of the premises known as Ground Floor, Rear Portion of No 48 Peng Chau Wing On Street, Peng Chau, Hong Kong (“the Premises”).

2.  In the interlocutory application for leave to appeal, the respondent also seeks stay of execution pending the result of the appeal.

3.  Whereas the background to the underlying proceedings and the reasons for the Judgment have already been set out inthe Decision, I do not want to repeat save to mention that this is indeed the 3rd application of the applicant within a period of 1 year in respect of the same tenancy granted by the applicant to the respondent though on this occasion, the applicant has served a notice of termination to the respondent determining the tenancy.

Grounds of Appeal Out of Time

4.  In support of the interlocutory application for leave to appeal, the respondent set out in his affidavit of 11 April 2016 his grounds of appeal which can be summarized as follows:

(1) The default judgment of 26 February 2016 was without any “reason for judgment mentioned” and would be devoid of any legal basis and null;

(2) The Decision was made without fixing another hearing to further examine the authorities cited in §22-23 thereof which support the Tribunal reasoning that it has no jurisdiction to entertain the counter-claim by the respondent;

(3) The Tribunal erred in stating that it has no jurisdiction to entertain the counter-claim by the respondent;

(4) If the tenancy in question was created under the principle of tenancy by estoppels, it follows that it has created rights and obligations on both sides and the Tribunal should have jurisdiction to entertain the counter-claim by the respondent;

(5) The Lands Department is about to file a case against the applicant for breach of the short term tenancy granted by the Government.

Leave to Appeal

5.  Section 11AA (6) of the Lands Tribunal 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.”

6.  As regards ground (1) above, contrary to the respondent’s allegation, I did explain in the hearing on the 26 February 2016 that I accepted the submission of the applicant and based on the evidence submitted, I ordered, inter alia, that the respondent should deliver vacant possession of the premises.  According to Lands Tribunal Rule 28, the reasons for any judgment, decision or order of the Tribunal may be delivered orally instead of in writing.

7.  Here, Ms Christine Yu (“Ms Yu”), counsel for the applicant, submits that according to the respondent’s interlocutory application, the latter does not seek to appeal against the default judgment dated 26 February 2016.  I do not agree as the respondent stated in his supporting affidavit that “the judgment of the 26 February 2016 and decision of 15 March 2013 are one and only one decision in two parts.”

8.  As for grounds (2) and (3) which touch on the jurisdiction of the Tribunal, section 8(8) of the Lands Tribunal Ordinance sets out as follows:

“The Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) Ordinance (Cap 7) or otherwise, and in any application for a new tenancy under Part IV of that Ordinance, whether or not it grants any such application, to make one or more of the following orders-

(a) an order for the payment of rent and mesne profits (including interim payments of rent and mesne profits);

(b) an order for the payment of any other money which is due under the tenancy or sub-tenancy;

(c) an order for the disposal of any property left in the premises concerned by the tenant or sub-tenant; and

(d) an order for the payment of damages in respect of any breach of a condition of the tenancy or sub-tenancy. “

9.  The authorities I cited in §22-23 of the Decision introduced no new law but elucidated the provision.  They have been relied on by the Tribunal day-to-day and cited in many precedents to explain that it has no jurisdiction to entertain counter-claims by the respondents.  As ignorance of law is of no excuse, I do not consider there is any necessity to fix another hearing to further examine them especially when Tang Chi Ho v Leung Woon-ling [1996] 2 HKLR 58 and陳燕群對黃金海, CACV 223/2007 (reported as [2008] 1 HKCLRT 27) were decisions of the Court of Appeal which are binding on the Tribunal.

10.  To the extent that the Tribunal has no jurisdiction to entertain the counter-claim by the respondent, ground (4) above is out of the question.

11.  Here, Ms Yu also submits that in §§6 and 9 of the judgment in LDPE 285/2015, Deputy Judge Tracy Chan already held that the respondent could not complain that the applicant had no title to the Premises and was therefore not entitled to receive rent.

12.  In LDPE 861/2015, Member Ng of the Tribunal agreed with the decision of the Deputy Judge and similarly held at §15 that:

“15. I agree that it is because of the basic principle of tenancy by estoppel, the applicant had the right to file the application. In any event, since this issue had already been decided by the tribunal, this issue should not be decided again in the present proceedings.”

13.  Thus, this is the 3rd time that the respondent seeks to argue that his tenancy with the applicant is “forbidden”.  This should be issued barred when the respondent had not appealed against these former judgments.

14.  As a result of the above, whether the Lands Department is about to file a case against the applicant for breach of the short term tenancy (ie ground (5)) is irrelevant.

Conclusion

15.  After considering what the respondent presented in his affirmation supporting his interlocutory application, and after hearing what the respondent supplemented in his oral evidence and submissions, I consider those arguments by the respondent had been dealt with in the Decision. I decide that the respondent’s appeal has no reasonable prospect of success, and the respondent failed to satisfy that there is some other reason “in the interests of justice” why the appeal should be heard.

16.  This is a simple application for recovery of possession when the tenancy was determined by a notice of termination. 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.

Costs

17.  The general rule is that costs should follow the event.  Ms. Yu asks for $12,800 which includes the costs of her brief in the sum of $5,000.  However, considering the simple nature of this case, I determine the costs to the applicant in the sum of $8,000.