LAI WAI MAN v. INTELLIGENT HOUSE LTD

LDCS 11014 /2006

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE APPLICATION NO. 11014 OF 2006

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DECISION

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Introduction

1.  Intelligent House has by way of LDCS 11000/2006 applied for a compulsory sale order of, inter alia, Kam Kwok Building under the Lands (Compulsory Sale for Redevelopment) Ordinance (Cap 545) (“the Ordinance”).

2.  In LDCS 11014/2006, Mr Lai Wai Man as tenant of various units (including the present subject matter unit) claims against Intelligent House for compensation under the Ordinance.

3.  Before me now is the application of Madam Buena seeking leave to be joined as an applicant in Mr Lai’s application under LDCS 11014/2006.  It is her case that she has been the sub-tenant of Mr Lai at Room 1, Unit 11, 14/F of Kam Kwok Building.

4.  Intelligent House opposes the application for joinder on the basis that Madam Buena no longer has any locus to claim compensation, since Intelligent House has validly terminated the head tenancy with Mr Lai by way of a transitional termination notice dated 18 October 2006.  The notice was issued and served in accordance with section 5(2) of the Landlord and Tenant (Consolidation)(Amendment) Ordinance 2004 (“LTAO”).  As such, Intelligent House submits that the sub-tenancy relied on by Madam Buena shall similarly be terminated and she does not have any locus to bring any compensation claim against Intelligent House.

Discussion

5.  Under section 5(2) of the LTAO, a landlord can lawfully terminate any tenancy created before 9 July 2004, the commencement date of that ordinance, by way of transitional termination notice issued and served not less than 12 months before the termination of the tenancy.  Such notice should be served on the tenant in the ways in accordance with section 119Y(1) of the Landlord and Tenant (Consolidation) Ordinance (Cap 7).

6.  I am satisfied with the evidence before me that such transitional notice has been properly served on Mr Lai between 18 and 20 October 2006 by Intelligent House in relation to the subject matter unit.  The expiry date of the notice is 31 October 2007.

7.  As such, I am satisfied that the relevant head tenancy between Mr Lai and Intelligent House was lawfully and validly terminated on 31 October 2007.  Mr Lai also accepts that his tenancy with Intelligent House was terminated on that date by reason of the notice.

8.  What about the subtenancy then?  Section 6(5) of LTAO, provides as follows

“	(5)	Where a transitional termination notice is served on a tenant, if:
		(a)	the notice is both in Chinese and English; and
		(b)	the notice is posted on 3 successive dates upon the main door or entrance of the premises affected,
		the notice shall take effect terminating also any sub-tenancies created out of the tenancy to which it relates.”

9.  I am also satisfied with the evidence before me (by way of the 2^nd Affirmation of Lui Wing Yan dated 15 January 2008) that the requirements under section 6(5)(a) and (b) of the LTAO are satisfied in relation to Intelligent House’s transitional termination notice.  In the circumstances, the subtenancy between Madam Buena and Mr Lai, which was created out of Mr Lai’s head tenancy with Intelligent House, must also come to an end as a matter of law on 31 October 2007.

10.  Since under sections 4(6) and 8(1)(b) of the Ordinance, a tenant (or for the present purpose a subtenant) is only entitled to compensation if his tenancy is terminated by reason of the making of the order for sale, Mr Shum for Intelligent House submits that Madam Buena therefore clearly has no entitlement to claim any compensation from Intelligent House as her subtenancy was terminated not by reason of any order for sale.  As such, she has failed to show any locus to be joined in the application seeking compensation from Intelligent House. 

11.  I accept Mr Shum’s submissions.

12.  In the premises, I refuse Madam Buena’s application for joinder.

Other matters

13.  At the end of the hearing, Mr Lai confirms with the Court and makes an application to withdraw the present proceedings (i.e., LDCS 11014/2006).   Mr Shum for Intelligent House does not oppose the same, and seeks no costs against Mr Lai in relation to the action or his application

14.  In the premises, I also allow Mr Lai’s application.

Orders

15.  For the reasons given above, I make the following orders:

(1)	The application made by Mr Tamang to be joined as an applicant in LDCS 11014/2006 be dismissed, with costs to Intelligent House to be taxed if not agreed.
(2)	Leave to Mr Lai to withdraw the application under LDCS 11014/2006, with no order as to costs as to the action and the leave application.