RAMADOUR INDUSTRIES LTD v. BULLEN CHRISTIAN ANTHONY

LDPD 2025/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 2025 OF 2016

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DECISION ON REVIEW

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1.  I handed down my judgment dated 22 November 2016 in which I ordered the respondent to deliver vacant possession of the Premises to the applicant and pay the applicant the arrears of rent/mesne profits as well as the Government rent and rates until delivery up of vacant possession plus cost (“the Judgment”).

2.  The respondent then on 29 November 2016 applied for a review of the Judgment pursuant to section 11A of the Lands Tribunal. His grounds in support of his application for review as stated in his affidavit of even date include the following:

“1) The Learned Member erred in not conducting a call over hearing and informing the parties that the following hearing would be for substantial arguments and essentially a trial of the matter.

2) The Learned Member erred in concluding that the present case was an “appropriate” case within the meaning of HCMP 1951/2012.

3) The Learned Member erred in deciding that LDPD 1912/2015 and LDPD 2025/2016 were substantially different causes of action.

4) The Learned Member erred in deciding or not properly considering that the Applicant had pleaded the Lease was over (forfeited) in LDPD 1912/2015 and that for the Applicant to now plead that the lease had expired in a subsequent pleading (the present 2025 case) did not amount to an abuse of process.

5) The Learned Member erred in concluding that the Lease expiry (paragraph 20 pg 8 of Judgment 22/11/16) was a new ground since; 1) it was pleaded in LDPD 1912/2015, 2) the applicant is stopped from raising it now as they had pleaded (not as an alternative) that the lease was already forfeited in LDPD 1912/2015 and that the Tribunal had ruled that the lease was forfeited.

6) The Learned Member erred in not properly concluding that LDPD 1912/2015 was finally decided.

7) The Learned Member erred in not properly considering that LDPD 1912/2015 and and LDPD/2025/2016 had substantially the same pleadings and sought the same relief.

8) The Learned Member erred in not properly considering the fact that the Court of Appeal could make the same orders (and grant relief that the Applicant sought) in CACV 19/2016 that the Tribunal would have been able to order in the 2025 had there not been an appeal.

9) The Learned Member erred in not properly considering (or at all) that the same matters that required adjudication were now being dealt with in the Court of Appeal and that the Tribunal would not have jurisdiction in the matter.

10) The Learned Member erred in regarding the stay ordered by the Court of Appeal as not binding on the Tribunal.

11) The Learned Member erred that the Lease expiry date was a material factor in the present case since the Tribunal had already ruled that the lease was forfeited.

12) The Learned Member erred that in not staying or adjoining the proceedings pending the outcome of the Appeal in CACV 19/2016. The Learned Member further erred in not properly considering the costs implications in not adjourning or staying the proceedings.

13) The Learned Member erred in not properly considering the difference between a legal set-off and an equitable one as raised by the Respondent and further erred in concluding or apparently concluding that set off was not available as a defence to a claim by the Applicant for mesne profit.

14) The Learned Member erred in not properly investigating or allowing evidence to be filed in support of the set-off claims.

15) The Learned Member erred in not properly considering the nature of the set off repairs or when they were done.

16) The Learned Member erred that if he was of the view that he had no jurisdiction to deal with set-off claims that he should have invited parties to put forward arguments on whether or not the case should be transferred to a Court that did.

17) The Learned Member erred in not at all considering (by way of an adjournment pending conclusion of the appeal) (or dealing with) the Respondent’s possible set off claims for legal costs in LDPD 1912/2015, HCMP 98/2016 and CACV 19/2016.

18) The Learned Member erred in not properly considering (or at all) the evidence from the Respondent that he has spent a large amount of time on preparation in LDPD 1912/2015, HCMP 98/2016 and CACV and that was time taken away from the Respondent could have used preparing and installing utilities in his own house.

19) The Learned Member erred in not allowing the Respondent to address the Tribunal on the Applicant’s bill of costs.”

3.  I shall deal with the above grounds for review in the following paragraphs.

Grounds 1) & 2)

4.  As stated in the Judgment at §34, in 永華電子實業有限公司 對 陳樹雄經營三雄行, HCMP 1951/2012 (unreported, dated 16 November 2016), the Court of Appeal held that in appropriate case, the Tribunal may enter judgment even at the first hearing. The present case is indeed very similar to HCMP 1951/2012 in that it is an application by the applicant for recovery of vacant possession on the ground of lease expiry.  This substantial issue is neither complicated nor involving any difficult arguments. I consider it is appropriate to follow this HCMP 1951/2012 which stated at §16 that:

「綜觀雙方在案件提出的爭議點及相關的證據，也不是十分複雜。審裁處成員在當天進行審訊是合理及合法的處理，本庭看不到該審訊有任何不公平的地方。」

Grounds 3), 4), 5), 6), 7), 8), 9), 10) & 11)

5.  I stated in the Judgment at §18 that I agreed with Mr Cheng Yuk Hey Kenfor the applicant that LDPD 1912/2015, HCMP 98/2016 and CACV 19/2016 are related to the applicant’s earlier claim for recovery of possession of the Premises on a different ground, namely the respondent had defaulted in paying rent and the respondent sought a 2^nd relief against forfeiture.

6.  Further at §19, I stated I failed to see any grounds raised by the respondent could prevent the Tenancy Agreement from coming to its end on 31 August 2016.  LDPD 1912/2015 or even CACV 19/2016 is unrelated to the present claim by the applicant on a different ground of lease expiry.

7.  Indeed, the Court of Appeal came to the same view in HCMP 1951/2012, supra,  at§16:

「至於申請人聲稱另一位法官判他勝訴，實在是曲解法庭判決的說法。在LDPE 728/2010一案當中，黃法官的判決是業主可以收回處所的空置權，但他同時給予租客濟助，若他在指定日期前交回欠租，則可獲寬免。這項濟助在租約期滿後收回處所的申請並不適用。本案的關鍵是:審裁處判決租約經已屆滿，而申請人聲稱的延展租約協議並不成立。因此，較早前另一案件的判決與本案無關。」 (emphasisadded)

Ground 12)

8.  In the Judgment at §§22-23, I cited陳燕群對黃金海, CACV 223/2007 (which is reported as [2008] 1 HKCLRT 27), a case which had dragged on for a few years when the respondent in that case had continued to use the property thereof without making any payment to the landlord before the Court of Appeal’s final determination.  The Court of Appeal ruled that once the tenant had failed to raise a defence recognized by the law, the Lands Tribunal should have proceeded with the trial of the landlord’s application as scheduled.

Ground 13)

9.  I have already dealt with the arguments by the respondent on legal or equitable set-off in the Judgment at §§26-32.  I consider I have nothing to add and I do not have any good ground for review.

Grounds 14) & 15)

10.  As opposed to the respondent’s allegation, I have considered the respondent’s submission at the hearing on 21 November 2016 and his affidavit dated 18 November 2016 regarding particulars of the breach of the implied/express term of the Tenancy Agreement.  During the hearing, I have on not less than 2 occasions asked the respondent if he had anything to add and he said no.

Ground 16)

11.  By reference to section 8A of the Lands Tribunal Ordinance, the decision of the Tribunal to transfer proceedings to the Court of First Instance or the District Court as the case may be is only discretionary.  By reference to HCMP 1951/2012 and CACV 223/2007, supra, I do not consider it is appropriate to transfer the present application as “the Lands Tribunal should have proceeded with the trial of the landlord’s application as scheduled”.

Grounds 17) & 18)

12.  As elucidated above as well as in the Judgment itself, LDPD 1912/2015 or even CACV 19/2016 is unrelated to the present claim by the applicant on a different ground of lease expiry.  These grounds raised by the respondent are irrelevant and not applicable.

Ground 19)

13.  Section 12(1) of the Lands Tribunal Ordinance (Cap. 17) confers on the Tribunal the jurisdiction to award costs at its discretion:

‘(1) The costs of and incidental to all proceedings in the Tribunal are in the discretion of the Tribunal, and the Tribunal has full power to determine by whom and to what extent the costs are to be paid.’

14.  Also, following In re Elgindata Ltd (No. 2) [1992] 1 WLR 1207,

“(i)Costs are in the discretion of the court.

(ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made.”

15.  In the present case, there is no reason to depart on the rules above and as I stated at §35 of the Judgment, I have considered the Statement of Costs for Summary Assessment submitted by the applicant. I considered the sum of $19,862 reasonable and ordered therefore summarily and accordingly.

Conclusion

16.  Having considered all the above, I dismiss the respondent’s application for review.

Costs

17.  As this decision is made on papers without a hearing pursuant to the Practice Directions issued by the President of the Tribunal: Review No 1/2009, I shall make no order as to the costs.