Wong Wan Leung and Others v. Director of Lands

LDMR 10/1996

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDMR 10 of 1996

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Decision

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1. This is a decision on the award of costs, following the application by the Applicants to the Lands Tribunal for leave to re-re-amend their notice of application for determination of compensations for the termination of the Block Crown Lease under the Block Crown Lease (Cheung Chau) Ordinance, Cap. 488 ("the BCL Ordinance").

2. On 11.12.1999 the Applicants took out a summons returnable on 20.12.1999 for the hearing of the re-re-amendment application, which involved a number of lots of land, including the inclusion of Lot 241 in the notice of application.

3. On 20.12.1999, the Tribunal was informed that the Respondent would oppose the re-re-amendment application on two grounds, namely, abuse of process and addition of new causes of action out of time. With the consent of the parties the hearing was adjourned sine dine, with liberty to restore.

4. The hearing was restored on 25.2.2000. At the commencement of the hearing on that day, Respondent conceded that it would not oppose the re-re-amendment application, save that relating to the inclusion of Lot 241. During the hearing the Applicants presented a substantial part of their submissions. However, the hearing could not be concluded on that day and so it was adjourned to 17.3.2000.

5. On 17.3.2000, at the commencement of the hearing, the Tribunal was informed that the Respondent would not oppose to the re-re-amendment in respect of the inclusion of Lot 241, but it would apply for an award of costs occasioned by the re-re-amendment application on the ground that it was an abuse of process for the Applicants to make the re-re-amendment application resulting in 2 separate actions proceeding on the same subject matter when they adopted conflicting stances in the 2 cases.

Abuse of process

6. On 22.10.1998 the Applicant Wong Wai Tsak Tong instituted an application in the Lands Tribunal for compensation pursuant to S.29(7) of the Roads (Works, Use and Compensation) Ordinance, Cap. 370, under case LDMR 33 of 1998. This case was heard on 26.8.1999. On 17.9.1999 judgment was handed down. On 5.10.1999 the Applicant appealed against the decision. Judgment was delivered on 7.3.2000. In dismissing the appeal the Court of Appeal held that the Block Crown Lease of Wong Wai Tsak Tong (the Applicant) covering Lot 241 was duly terminated under section 3 of the BCL Ordinance on 8 September 1995, and therefore the Tong had no interest in that property in respect of which it was entitled to compensation under the Roads (Works) Use and Compensation Ordinance, Cap. 370.

7. On the allegation of abuse of process, the Applicants argued that there is nothing wrong for the applicants to protect its position by making an alternative claim.

8. The Respondent submitted that in LDMR 33 of 1998 the Applicants' stances were, as referred to in the Lands Tribunal's judgment, as follows :-

"The Tong contended that Cap. 488 did not apply to the lot. Even if it did so apply, it should not prevent the Tong from claiming the compensation under Cap. 370." (Underline provided)

"The Lot does not fall within Sections 4(1) and 5(1) [Cap. 488], as there were no sub-lessee as defined in Section 2(1)1 of Cap. 488 to receive the sub-lease." (Underline provided)

9. The Respondent submitted that all along the Applicants' stances are that they are the absolute owner of Lot 241 and their right should not be affected by the operation of the BCL Ordinance. That is absolutely in contradiction with the re-re-amendment application where they claim that the sub-leases of Lot 241 was determined as a result for the commencement of the BCL Ord. on 8.9.1995. The Respondent submitted that it is a classic example of abuse of process if the Applicants were allowed to proceed with 2 parellet proceedings relating to the same matter with 2 different stances. In support of its arguments the Respondent quoted a passage from the case of Berthier Godown Ltd. v. C Wah Realty Ltd. as Anor [1986] HKC 8:

"Save in the most exceptional circumstances a party must take all the points he wished to raise on any issue in the same proceedings. It was quite clear that separate proceedings on the same issue could not be maintained. Multiplicity of proceedings might give rise to conflicting judgments. Hoystead v Commissioner of Taxation [1926] AV 155 and Yat Tung Investment Co. v Dao Heng Bank [1975] AC 581 followed."

"If the party sought to raise new matters in separate proceedings or sought to reverse a previous assumption that had been the basis of the earlier proceedings in the new proceedings, that amounted to an abuse of process and he was estopped from doing so. A fortiori this must be so if the earlier proceedings were still in existence and party could raise those matters in those proceedings in which orders had already been made. He must pursue all the remedies available to him and raise all the arguments that were available to him in the earlier proceedings."

Finding

10. One of the grounds of appeal in LDMR of 1998 was that in holding that the Tong (the Applicant) was no longer the owner of Lot 241 by reason of the operation of the BCL Ordinance, the Presiding Officer and the Member erred in law by construing the BCL Ordinance as to apply to the lease of which the lessee was non-existent at the commencement date of the BCL Ordinance. By this ground of appeal the Applicant still maintained its stand that the BCL Ordinance did not apply to Lot 241.

11. On the re-re-amended notice of application, it is stated that the Applicants require the Lands Tribunal "to determine the amount of compensation to be paid under section 10 of the BCL Ord. in respect of land or undivided shares in land as more particularly set out in Schedule A, in respect of which sections 4(1) and 5(1) of the said Ordinance have effect and in respect of which the Block Crown Lease as defined in the said Ordinance was determined by section 3 of the said Ordinance." (Underlines provided) Lot 241 is a lot under Schedule A.

12. The stances of the Applicants in LDMR 10 of 1996 in respect of the re-re-amendment application relating to Lot 241 are in direct conflict with that which they adopted in LDMR 33 of 1998 in which they advanced the argument, which formed the crux of the whole case, that Lot 241 did not fall within Sections 4(1) and 5(1) of the BCL Ordinance. The conflicting stances in the 2 cases in so far as Lot 241 is concerned constitute an abuse of process. The point on the abuse of process was validly made by the Respondent.

13. On 25.2.2000 the Respondent also submitted that the re-re-amendment application was pre-maturely made. It should have waited for the outcome of the appeal in LDMR 33 of 1998. By virtue of the point on the abuse of process, this submission made on 25.2.2000 was also validly made.

14. It was correct and sensible for Respondent not to pursue on the point of abuse of process on 17.3.2000 and not to oppose the re-re-amendment application relating to Lot 241, in light of the Court of Appeal decision. By that time the Court of Appeal decision had already been handed down and the issue as to whether the BCL Ordinance applied to Lot 241 had been clarified.

15. The Respondent was entitled to refer to the point of abuse of process in the arguments on the award of costs.

16. The Applicant conceded that it should pay costs to the Respondent for the re-re-amendment application up to and including 20.12.1999. That is correct.

17. As regarding the costs for the preparation of the argument of re-re-amendment application for the hearing on 25.2.2000 (save and except Lot 241), the Respondent conceded to the re-re-amendment application (save and except Lot 241) on 25.2.2000. Before that day no agreement in this respect had been reached between the parties, and the Respondent was aware that the Applicants would proceed to make the application. Thus the preparation in this regard by the Applicants was wasted.

18. Regarding the hearing on 17.3.2000, it was adjourned on 25.2.2000 for continuation of the arguments on the re-re-amendment application itself. The Applicants had completed a substantial part of their submissions. The court's time was spent on the arguments in respect of the award of costs relating to Lot 241. The Respondent succeeded in its arguments. Therefore the costs of this date and 17.3.2000 should be awarded to the Respondent.

19. I make the following order on costs :-

(1) Costs up to and including 20.12.1999 be borne by the Applicants in favour of the Respondent.

(2) Costs on the preparation of the re-re-amendment application (save and except that relating to Lot 241) after 20.12.1999, but up to 25.2.2000 be borne by the Respondent in favour of the Applicants.

(3) Costs of the hearing on 25.2.2000 and 17.3.2000 be borne by the Applicants in favour of the Respondent.

(4) The above costs to be taxed, if not agreed.