John Willimott v. South Harbour Properties Ltd.

LDNT 81/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

New Tenancy Application No. LDNT 81 of 2001

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D E C I S I O N

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1. On 2.3.2001, the Applicant filed in the Lands Tribunal, a notice of application, the Grounds and Particulars of which are as follows : -

1. The Applicant applies to the Lands Tribunal for a Declaration against the Respondent that the Notice of Termination in Form CR101 and dated 28 August 2000 is invalid and that the existing tenancy dated 17 March 1999 shall continue.

2. Alternatively, subject to the Tribunal's ruling on the matter pleaded in paragraph 1 above, the Applicant applies to the Lands Tribunal for the grant of a new tenancy.

2. According to the notice of application, the Applicant is the tenant of Unit D, 10th Floor and Car Parking Space No. 407 of Fairlane Tower, 2B Bowen Road, Hong Kong, whereas the Respondent is the landlord of the said premises.

3. On 30.3.2001, the Applicant took out a summons under Rule 18 of the Lands Tribunal Rules, Cap. 17 and applied for the following order : -

"..........an Order that the following question or issue raised by the Grounds and Particulars in the Notice of Application dated 2 March 2001 in Form 22 (the "Original Application") be tried as a preliminary issue before the hearing of the application for the grant of a new tenancy in the Original Application and that until the determination of the preliminary issue all further proceedings in the Original Application be stayed.

The above-mentioned question or issue is the following : -

The Respondent (the landlord) has not indicated to the Applicant (the tenant) whether it would oppose to an application to the Lands Tribunal for the grant of a new tenancy in its Notice of Termination in form CR101 dated 28 August 2000 (the "Form CR101"). The Applicant is entitled to a Declaration that the Form CR101, which was served by the Respondent to the Applicant, is invalid."

4. The summons was supported by the affidavit of Miss Lee Shuk Wan, the Applicant's Solicitor, in which she exhibited a copy of the above-mentioned Form CR101 and a copy of the tenancy agreement of the premises.

5. The summons was heard on 26.4.2001. In the file of this case, there is a Notice of Opposition filed on 25.4.2001, without leave of the Tribunal. The Applicant objected to the filing of the Notice of Opposition.

6. The first thing I have to decide is whether Rule 18 of the Lands Tribunal Rule is applicable in this case. This rule provides : -

"(1) The President on a presiding officer may, on the application of any party, order any point of law which it is within the jurisdiction of the President or a presiding officer to decide and which appears to be in issue in proceedings to be disposed of at a preliminary hearing before the President or a presiding officer.

(2) If the decision on the point of law substantially disposes of the proceedings, the President or a presiding officer may order that the argument shall be treated as the hearing of the case or may make such other order as he thinks fit."

7. The purpose of Rule 18 is to enable the Tribunal at a preliminary hearing to dispose a point of law which appears to be in issue in the proceedings. Accordingly the Applicant has to identify the point of law which appears to be in issue in the proceedings. When the summons was taken out, the Respondent had not filed in any Notice of Opposition. Although on 25.4.2001 the Respondent filed in a Notice of Opposition, it was filed out of time. Unless and until the Notice of Opposition is properly filed, with leave of the Tribunal, it should not be taken into consideration for the purpose of this application. Thus the Tribunal cannot ascertain what point of law is within the jurisdiction of the Tribunal to decide and which appears to be in issue in these proceedings.

8. In the summons the Applicant only referred to "the following question or issue raised by the Grounds and Particulars in the Notice of Application". There is no reference to the term "point of law". The Applicant has not even set out in the summons or in the affidavit of Miss Lee Shuk Wan the point of law to be disposed of.

9. What the Applicant has asked the Tribunal to do by way of this summons is to try, based on the affidavit of Miss Lee Shuk Wan, paragraph 1 of the Grounds and Particulars of the originating application, and make a declaration that Form CR101 is invalid. That would be a trial in advance by way of affidavit on the substantive merits of an issue of the originating application. That has nothing to do with the disposal of a point of law.

10. For these reasons, this Tribunal ruled that Rule 18 is inapplicable in this summons and I dismiss it accordingly, with costs to the Respondents, to be taxed, if not agreed.