Ease Gold Development Ltd. v. Secretary for Transport

LDMR 13/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDMR 13 of 1999

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D E C I S I O N

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1. This case was scheduled for trial on 14.12.1999. On 7.9.1999, both parties made a joint application to the Tribunal for an order by consent that a preliminary hearing be conducted by the Tribunal pursuant to Rule 18 of the Lands Tribunal Rules for the purpose of determining whether or not the Applicant was entitled to compensation in these proceedings. On 4.1.2000, I decided in favour of the Applicant.

2. On 30.11.2000, the resumed hearing of this case was fixed to be heard on 6th, 7th and 8th March, 2001.

3. On 6.3.2001, both parties invited me to determine on two preliminary issues. The first issue is whether the present claim was statute-barred, and if so, whether the Tribunal should extend the time in favour of the Applicant. The second issue is whether the Applicant is bound by the previous claim submitted by Vigers Hong Kong on behalf of its predecessors-in-title on 15.11.1996, which was effectively accepted by the Respondent in October, 1997. During the hearing, the Counsel for the Respondent dropped the second issue.

4. For the purpose of the preliminary determination, the parties agreed on the following facts : -

"1. (a) The Lands forms part and parcel of the Remaining Portion of Lot No. 214 and the Remaining Portion of Lot No. 215 both in Demarcation District No. 103, Yuen Long, New Territories ("the Properties").

(b) Since 1981, Lin Chen Pao Yeh, Lin Chang Su-O, Chien Lyu Min Yue and Lee Pi Yin have been the co-owners of the Properties under a Conveyance on Sale registered by Memorial No. 247216 ("the Co-Owners").

2. (a) Pursuant to the power delegated from the then Governor, the Principal Government Land Agent has made an order under section 15(1) of the Ordinance directing that a right of temporary occupation for a period of 36 months over the Land ("the said right").

(b) It was prescribed in Government Notice 3197 gazetted on 17 August 1995 ("the Notice") that the said right should be created in favour of the Government upon expiry of the Notice for a period of three months.

(c) It was further prescribed that any person having any compensatable interest under the Ordinance might serve a written claim upon the Respondent before the expiration of one year from the date on which the said right was created.

(d) The Notice had expired on 16 November 1995 and the said right was created on 17 November 1995.

(e) On 15 November 1996, the Co-Owners through Vigers Hong Kong Ltd. submitted a written claim for the sum of HK$101,300.

3. (a) By an Agreement for Sale and Purchase dated 4 September 1997, the Co-Owners agreed to sell and the Applicant agreed to purchase the Properties subject to and with the benefit of the said right.

(b) The sale and purchase of the Properties was completed on 6 September 1997 by way of an Assignment registered by Memorial No. 786196.

4. (a) The Co-Owners' written claim was acceptable to the Respondent and the sum of HK$101,300 plus interest was offered to the Co-Owners subject to the terms as more particularly described in a 'without prejudice' letter dated 3 October 1997 from the District Lands Office, Yuen Long. The Co-Owners did not pursue their claim further after the assignment and did not accept the offer.

(b) By a letter dated 28 October 1997,Vincent T. K. Cheung, Yap & Co. represented the Applicant to request an extension for 28 days to consider such offer.

(c) By a letter dated 28 December 1997, Vincent T. K. Cheung, Yap & Co. purported to reject the offer.

5. (a) The Applicant appointed Fotton Surveyors Ltd. to act on their behalf and by a letter dated 2 November 1998, Fotton Surveyors Ltd. purported to claim a sum of HK$14,300,000 plus interest and professional fee.

(b) The receipt of the purported claim was acknowledged by a letter dated 13 November 1998 from the District Lands Office, Yuen Long."

6. All documents in Bundle 2 are agreed Documents.

7. P. 217 & P. 259 in Bundle 1 are agreed documents."

5. According to the agreed facts, the right to temporary occupation by the Government of the said Properties was created on 17.11.1995. This is the commencement date of the one-year period within which the former co-owners of the Properties could start to serve their claim on the Respondent, as stipulated under section 27 of the Roads (Works, Use and Compensation) Ordinance, Cap. 370 ("the Ordinance"). The one-year period expired on 16.11.1996.

6. It is beyond doubt that the claim of $14,300,000.00 made on 2.11.1998, was an amendment to the original claim for $101,300.00 which was made on 15.11.1996, because the amounts claimed are different but the facts giving rise to the claims are the same. In his written submission, Mr. Lam, Counsel for the Applicant, admitted that "the difference in qualification can be taken as an amendment of the original claim ......". The issue is whether the claim of $14,300,000.00 was barred under section 28(1) of the Ordinance, which provides : -

"(1) Subject to subsections (2) and (6), if a claim or an amendment thereto is not served on the Secretary before the expiration of the period specified in the fourth column of Part II of the Schedule in respect of that matter, the right to claim compensation therefore shall be barred.

(2) The period referred to in subsection (1) may, upon application made to the Lands Tribunal either before or after the expiry of that period, be extended in accordance with this section."

(Underlines provided)

7. Subsection (6) is not relevant to this case. Subject to what will be said hereinafter, the Applicant has not made any application under subsection (2).

8. The amendment to the original claim was served on the Respondent almost 2 years after the statutory one-year period. As no application has been made under section 28(2) of the Ordinance, the right to claim compensation in respect of the amendment to the original claim is barred, according to section 28(1) of the Ordinance.

Estoppel

9. Mr. Lam submitted that the Respondent is estopped from relying on the issue of time bar. He argued that all along (up to the amendments of the Notice of Opposition) the matter has been proceeded on the basis that the claim was the same. There is no averment in the Notice of Opposition that the claims were two separate and different claims. To the contrary, paragraphs 4(a),(b) and (c) of the Notice of Opposition suggested that they were so.

10. It is wrong for Mr. Lam to say that the matter has been proceeded on the basis that the claim was the same. One amount claimed was $101,300.00, whereas another amount subsequently claimed was $14,300,000.00, which was 140 times of the amount of $101,300.00. There was a very substantial difference in the amounts claimed. On this basis alone the claim could not be the same.

11. Paragraphs 4(a), (b) and (c) of the Notice of Opposition are set out as follows : -

"(4)(a) The Co-Owners' written claim was acceptable to the Respondent and the sum of HK$101,300 plus interest was offered to the Co-Owners subject to the terms as more particularly described in a letter dated 3 October 1997 from the District Lands Office, Yuen Long.

(b) By a letter dated 28 October 1997, Vincent T K Cheung, Yap & Co. represented the Applicant to request an extension for 28 days to consider such offer.

(c) By a letter dated 28 December 1997, Vincent T K Cheung, Yap & Co. purported to reject the offer."

12. The above paragraphs do not contain or imply any suggestion that the claims were the same.

13. Paragraphs 5(a) and (b) of the Notice of Opposition are the same as paragraphs 5(a) and (b) of the agreed facts. In paragraphs 2(e) and 4(a) of the Notice of Opposition, the Respondent referred to the claim of $101,300.00 as "written claim" whereas in paragraphs 5(b) and (c), he referred to the claim of $14,300,000.00 as the "purported claim". The difference in these references relating to the amounts claimed shows that the Respondent does not treat the amounts claimed as belonging to the same claim. This is consistent with the facts set out in the Notice of Opposition which clearly show that 2 claims were served on the Respondent.

14. Mr. Lam further contended that "if the claim of the Applicant was regarded as a different one, why would it be necessary to submit the previous preliminary issue to the Tribunal for adjudication? By so doing, the Respondent must have been proceeding on the basis that the claim was the same, hence necessitating the consideration of the Tribunal as to whether the right has been assigned." In the previous preliminary hearing, the parties invited me to decide whether or not the Applicant had a compensatable interest in these proceedings, and the issue I had to decide is whether the Co-Owners of the Properties had assigned their right to compensation in respect of the Properties to the Applicant. I decided that they had. I cannot see how the submission of the previous preliminary issue to the Tribunal for adjudication would give rise to an inference that the Respondent must have been proceeding on the basis that the claim was the same.

15. I reject all the submissions advanced by Mr. Lam. There is simply no basis upon which the alleged estoppel can be founded.

Extension of time

16. Mr. Lam submitted that if the Applicant was wrong on its arguments, the Tribunal has the power to extend time under section 28(4) of the Ordinance. Section 28(4) provides : -

"The Lands Tribunal may extend the period within which a claim must be served upon the Secretary if it considers that the delay in serving the claim was occasioned by mistake of fact or mistake of any matter of law (other than the relevant provision in the fourth column of Part II of the Schedules) or by any other reasonable cause or that the Crown is not materially prejudiced in the conduct of its case or otherwise by the delay."

17. During the hearing of the preliminary hearing, I ascertained from Mr. Lam whether there was any application for extension of time under section 28(4) on the part of the Applicant to serve on the Respondent the amendment to the claim. Mr. Lam did not say that there was such an application. He merely said that if the Tribunal ruled that the amendment to the claim was time-barred, the Tribunal had the power to grant an extension of time on the basis of the affidavit of Mr. Kelvin Chan filed on 16.2.2001.

18. I was invited by the parties to make a ruling on the said preliminary point. If not for this preliminary hearing, the adjourned case would have been fully tried as scheduled. The Applicant's "application" for an extension of time under section 28(4), if any, does not come within the issue I have to determine. I was only asked to determine whether the Tribunal should extend the time in favour of the applicant. I was not asked to determine on any issue of application of this nature. Therefore it would be inappropriate for the Applicant to make an application (if any) during the proceedings of the preliminary hearing. If the Applicant intends to make an application for an extension of time, it must be properly made. No qualification should be attached to the application. It either makes an application or it does not. It cannot say that if the Tribunal finds that the amendment to the claim is time-barred, then it would ask the Tribunal for an extension of time.

19. An application would necessarily imply an admission on the part of the Applicant that their right to claim compensation in respect of the amendment to the original claims has been barred. Mr. Lam submitted that there is no question of time bar under section 28(1). Thus it follows that there is no need for the Applicant to apply for an extension of time. He did not apply for an extension of time. Section 28(2) of the Ordinance requires that application for extension of time has to be made to the Tribunal. Since there is no application made to me at any time, the issue of whether to extend the time does not arise. Even if it could be regarded that an application has been made to me by virtue of the affidavit of Mr. Kelvin Chan made on 15.2.2001, it was a premature application. It should not have been made until I have made a ruling on the preliminary hearing. In any event, such an application (if any) would be inconsistent with the stance of the Applicant.

Determination

20. I determine that the claim for the sum of $14,300,000.00 is an amendment to the claim for the sum of $101,300.00. The submission of this claim of $14,300,000.00 was not served on the Respondent before the expiry of the one-year period which ended on 16.11.1996. According to section 28(1) of the Ordinance, the Applicant's right to claim compensation in respect of this amendment is barred.

21. I impose the following orders : -

1. The costs of this preliminary hearing be reserved.

2. The parties are at liberty to make application for the future conduct of these proceedings.