FORDTIME INDUSTRIAL LTD v. YIP SHING LAM t/a TRADITIOAL CHINESE NOODLE

LDPE 757/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPE 757 OF 2012

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J U D G M E N T

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Undisputed or IndisputableBackground

1.  By the New Grant No. 4931 (page 572-589 Bundle), Tsuen Wan Town Lot No. 195 was granted to Ping Hing Hong Limited (“PHH”) on 19 April 1971.  A building was being erected on the lot known as Tsuen On Building at No. 20-24 Lo Tak Court, Tsuen Wan (“the Building”).

2.  According to the Approved Building Plan dated 17 March 1971 (page 640-643 Bundle) and confirmed by the joint expert (“Mr. Tse”), the Building is of 6 storeys served by a common staircase opening onto a side lane and with no opening from the Building onto the main road.  There are 2 units on the Ground Floor level and 3 units on each of the upper floors.  From the Ground Floor Plan and Upper Part of Ground Floor Plan, there is no mezzanine floor or cockloft above the Ground Floor which has a floor-to-floor height of 16 feet 6 inches from floor to the underside of the floor slab of 1^st Floor.  Enquiries made by Mr. Tse with the Buildings Department showed that there was never any approved alteration and addition works requested in the Building (page 45 Bundle). 

3.  The Occupation Permit (“OP”) dated 24 May 1972 (page 134 Bundle) showed that there should be 2 shops for non-domestic use on the Ground Floor and 3 flats per floor on 1^st to 5^th floor for domestic use. 

4.  A Deed of Mutual Covenant (“DMC”) was made on 21 August 1973 (page 135-145 Bundle) vesting 1 undivided share of the Building to one Au Young Mo Ching (“AY”) for “Flat B on the 4^th Floor” of the Building and 21 undivided shares assigned to PHH for “All portions of the said building including the Roof and external walls (except Flat B on the 4^th Floor)”, making a total of 22 undivided shares.  The DMC is silent as to the breakdown of the undivided shares assigned to PHH.

5.  According to the land search record and/or assignment produced by the parties in this case, the Upper Part of Ground Floor had been assigned to different owners all these years.

Date	Description of Property as appeared on Land Search Record and/or Assignment	Page Reference
1 March 1978	Shop A & B & Mezzanine Floor A (also known as Shop 1) (2 shares)	94-101 & 602-609
31 March 1979	Shop C on G/F(including Cocklofts B, C & D); the External Walls (5 shares)	146-154
21 April 1981	Portion of Upper Part of G/F (Designated “Cockloft B”)(1 share)	66-76 &155-161
17 August 1990	Portion of Upper Part of G/F (Designated “Cockloft D”)(1 share)	77-87
4 April 2005	Shop C on G/F & Cockloft C on Upper Part of G/F (2 shares)	171-180 & 529-533
29 June 2009	Shop C & Cockloft C (2 shares)	433-440

6.  From the plans attached to the respective assignments, it can be seen that one of the 2 Ground Floor Shop had been divided into 2 parts, Shop A in the front portion and Shop B in the back portion.  Shop A and B together are known as Shop 1 whilst the other Ground Floor Shop is named Shop C.  1 Undivided share was being assigned to Shop 1 and Shop C respectively.  As far as the cocklofts are concerned, the Upper Part of the Ground Floor had been divided into 4 portions forming Cockloft A to D, each having 1 undivided share.  Cockloft B and D are on the upper part of Shop C, Cockloft A covered half of the Upper Part of Shop A and Cockloft C covered the entirety of Shop B and part of Shop A (page 161 Bundle).

7.  Apart from the entrance opened onto the side lane, the Building now stands had an additional opening between Shop 1 and Shop C from the main road with a flight of staircase leading up to the common landing of Cockloft A to D.  Each cockloft has its own doorway from the common landing (photo no. 7-13 of the Supplemental Expert Report Exhibit A2 and pages 48-50 and 57-59 Bundle).  Cockloft B is being occupied by a trading company whilst Cockloft D is being occupied by a beauty parlour.  Shop 1 is occupied by the respondent and Shop C was being rented out for the business of an electronic game centre.

8.  Shop 1 was assigned to Wide Famous Holdings Limited (“Wide Famous”) on 29 May 2002 and the respondent is one of the directors of Wide Famous.  Upon acquisition, Shop 1 was being used by the respondent for the business of a noodle shop and the layout of the shop had never been altered.  There was false ceiling on the front portion of Shop 1 which is being used as the dining area where customers were being served.  The kitchen is located at the back portion of Shop 1 with no false ceiling and with a ceiling height of over 16 feet (photograph 1- 6 Exhibit A2).

9.  In April 2005, a Mr. Cheng claimed to be representing Venture King, the owner of Cockloft C, came to Shop 1 with the Assignment and Floor Plan asking to inspect the space above the false ceiling inside Shop 1.  Upon inspection, Mr. Cheng said that the cockloft was no longer there and asked if the respondent had demolished the same.  The respondent denied and insisted that the premises was in that condition without any cockloft on his purchase.  Mr. Cheng offered to lease out Cockloft C to the respondent.  Since the respondent was well aware that he would not be able to obtain the food licence for the business with the cockloft built above the kitchen area, he agreed to the suggestion of a tenancy.  Hence, a tenancy agreement was signed by the wife of the respondent and Venture King on 20 April 2005 (“T/A”) (page 108 Bundle). 

10.  The T/A covered the period from 1 May 2005 to 30 April 2011.  The remarks of the T/A reads as follows :

“雙方知悉閣樓部份地面已被拆去, 租客同意終止租約時, 負責起回閣樓地面, 恢復原狀” (“the Remarks”)

which means both parties were aware of the fact that part of the floor slab of the cockloft had been demolished.  The tenant agreed, on termination of tenancy, to be responsible to rebuild the same and resinstate the floor slab of the cockloft to its original state.

11.  It is the case of the respondent that the Remarks was not on the T/A when his wife signed on it and it was only after the respondent received a copy of the signed T/A then he discovered that the Remarks was being added onto it.  In any event, it is the respondent’s evidence that upon enquiry with Mr. Cheng, the respondent accepted the terms of the Remarks, though not without reluctance.

12.  The applicant becomes the registered owner of Shop C and Cockloft C of the Building on 29 June 2009.  The acquisition is subject to the T/A.  The respondent had arranged for the rent to be paid to the applicant upon notified of the change of ownership.

13.  In February 2011, discussion about renewal of the T/A turned out to be unsuccessful.  The respondent failed to pay rent since 1 May 2011, i.e. upon expiry of the T/A.  And despite repeated demand from the applicant, the respondent remained in occupation till present.

14.  By a Notice of Application dated 7 August 2012, the applicant claims against the respondent for :

(a) an order that the respondent do deliver up vacant possession of the suit premises;

(b) arrears of mesne profits from 1 May 2011 until delivery up of vacant possession;

(c) an order for the respondent to reinstate the floor slab of the suit premises within 1 month, failing which the applicant shall be allowed to perform the same with costs/expenses to be reimbursed by the respondent;

(d) damages to be assessed; and

(e) costs of this application.

15.  The respondent, in its Amended Notice of Opposition filed on 11 September 2012, contended that the T/A was being signed under the misrepresentation by the representative of Venture King that Cockloft C did exist and was owned by it.  In fact, Cockloft C was never in existence since no cockloft ever appeared on the Building Plan, the OP as well as the DMC which rendered the T/A void and of no legal effect.

16.  At trial, the following issues are raised by the respondent :

(a) Cockloft C was never in existence, be it in the Building Plan, the OP, the DMC or in actual fact; and

(b) Cockloft C does not constitute “premises” for the purpose of Section 127A of the Landlord and Tenant (Consolidation) Ordinance (“LTCO”), hence this Tribunal does not have the jurisdiction to adjudicate this claim.

Existence of Cockloft C

17.  At this hearing, it is the contention of the respondent that Cockloft C had never been in existence.  I found this contention cannot stand in view of the circumstantial evidence in this case.

18.  Even though the Building Plan did not show a physical floor slab separating the cocklofts on the Upper Part of Ground Floor from the Ground Floor, the Building Plan did show the ground floor being divided into Ground Floor and Upper Part of Ground Floor.  There may not be a floor slab shown on the Building Plan, but one cannot deny the existence of the Upper Part of Ground Floor which is where the 4 cocklofts located. 

19.  It is clear from the land registration document that PHH had first assigned its interests in the Upper Part of Ground Floor which turned out to be the 4 cocklofts to different entities in 1978 and 1979.  No issue had been taken about PHH’s entitlement to assign its interests in the undivided shares to others.  According to the case of Hinex Universal Design Consultants C Ltd v Chan Lai Hing [1998] 1 HKC 317,

“a subsequent owner has the same unfettered right as the developer in the allocation of undivided shares vested in him subject to any prior prohibition which exists in the DMC or some other document” (at page 322).

It is silent in the DMC as to the allocation of undivided shares in respect of all the units held by PHH.  There is nothing in the DMC or any other document which prohibits PHH to assign its undivided shares in the Building.  And by way of assignment, PHH had assigned 1undivided share to each of the 4 cocklofts.  If the 4 cocklofts did not exist, why would there be such an assignment of undivided shares? 

20.  For the purposes of division of land, it was never the common law that any physical barrier was necessary to separate the divided lots of land.  But the 4 cocklofts were subject of a number of transfer after their first assignment by PHH, Cockloft A having 7 subsequent sales, Cockloft B having 5 subsequent sales, Cockloft C having 3 subsequent sales and Cockloft D having 4 subsequent sales.  It would be beyond belief that all those purchasers in these sale transactions would be prepared to spend a fortune in acquiring just a void in the Upper Part of Ground Floor.

21.  If the 4 cocklofts are only a void above the ground floor shop, why was there a need for another entrance and staircase to be built for access from street level to the cocklofts, and only to the cocklofts.  According to Mr. Tse, the entrance and the staircase are also unauthorised work since these were not found on the Building Plan.  There is also no dispute that there are partition wall built for Cocklofts B, C and D, each having its own doorway and with common staircase and landing erected on the Ground Floor and Upper Part Ground Floor level of the Building.  It would be absurd for all these structures to be built without a floor slab for the cocklofts separating them from the ground floor shops.  The only reasonable inference to be drawn must be that the 4 cocklofts are not void but each having partition and floor slab and its own doorway built to make it a separate unit with separate entrance and staircase distinct from the ground floor shops. 

22.  And Cockloft B and D did have a floor slab separating it from the Ground Floor shop. It would be absurd for the floor slab to be built just for Cockloft B and D but not for Cockloft A and C.  From the description of Mr. Tse about what he saw on the site visit, one will have no difficulty in coming to the conclusion that the 4 cocklofts are there to form another level of the Building.  It is more likely than not that there was a floor slab for each of the 4 cocklofts.

23.  And if there was never a floor slab for Cockloft C, why did Mr. Cheng of Venture King asked to see above the false ceiling on first visit and upon inspection, accused the respondent of removing the floor slab.  This must mean that there was originally a floor slab there to explain the conduct of Mr. Cheng.  And this also explained why the Remarks was being inserted into the T/A.

24.  All these circumstantial evidence points to the conclusion that, it is more likely than not that Cockloft C should have a floor slab but such had been removed.

25.  The creation of the 4 cocklofts on the Upper Part of Ground Floor may not be in line with the Building Plan or the OP.  Building plans merely tell how a building should be built and the OP just tells the purpose of use of the building.  Whilst the OP and the Building Plan are concerned with building regulation, there is nothing in the Building Plan or the OP to suggest that breach of the OP or contravention of the Building Plan would invalidate the creation of a tenancy agreement of these cocklofts. 

26.  As for the DMC, it is the respondent’s case that for the applicant to claim to be the rightful legal owner of Cockloft C and entitled to its vacant possession, the applicant must demonstrate to this court that it had obtained the proprietary interests in the Building and is entitled to the exclusive possession of Cockloft C.  Whether the owner is entitled to the exclusive possession of any part of a building is dependent upon the terms of the DMC (Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd (2008) 11 HKCFAR 403 at 421B).  It would be a prerequisite to the applicant’s claim for it to show that not only is it the owner of the undivided shares in the Building, it also acquired the exclusive possession to Cockloft C by way of the DMC.  The conferment of exclusive possession by the assignment is subject to the terms of the DMC.  The DMC of the Building could never intended to allocate any right to exclusive possession of Cockloft C to anyone since it did not physically exist at the time and nowhere in the First Schedule of the DMC mentioned anything about cocklofts. Had exclusive possession of the cocklofts been assigned to Cockloft C, this should have been specifically spelt out in the DMC.  What’s more, Clause 3(b) of the DMC (page 137-138 Bundle) had listed out other specific part of the Building but there is no reference to cockloft.  So it must be that the cocklofts were never in existence.

27.  I found such a contention by the respondent unfounded.  Mr. Nip for the respondent is relying heavily on the fact that Cockloft C had never been named or mentioned in the DMC.  The 1^st Schedule of the DMC is the provision which provided for the particulars of owners and the portion of the Building each owner is entitled to have exclusive use, occupation and enjoyment.  In the 1^st Schedule, PHH was assigned the exclusive possession of “all portions of the Building including the Roof and external walls” except the unit assigned to AY.  Although there is no detail as to what are the “all portions” of the Building, when one referred to the Building Plan, it must mean all the other parts referred to in the Building Plan.  The Upper Part of Ground Floor is specifically named in the Building Plan.  It must form “portion” of the Building.  So, even though the word “cockloft” is not being used in the DMC, it is clear from the DMC that the Upper Part of Ground Floor where the cocklofts were situated, was indeed included as part of the portion of the Building which PHH had the exclusive right of use, possession and enjoyment.

28.  As for Clause 3(b) relied upon by Mr. Nip, I do not agree that such a clause is defining the other “portion of the Building” referred to in the 1^st Schedule.  Clause 3(b) reads as follows :

“3. Each of the parties hereto shall pay his due proportion of :-

(a) …

 (b)  the cost of keeping in good and tenantable repair and condition the foundation, the side walks, main walls, supports, beams gutters, fences, chimneys and all external parts of the said building all the drains, well, electric pumps, pipes, conduits and all plumbing apparatus (if any) intended for the general service of the said building … and the common entrance-halls, staircases, landings and passages and the roof thereof. Provided that each of the parties hereto who has the sole and exclusive right to the use occupation and enjoyment of a particular portion of the roof of the said building shall be wholly responsible for paying the costs of keeping his particular portion of the roof in repair.”

29.  From the wordings of Clause 3(b), it is clear that it stipulated the obligation of each owner to contribute to the expenses of upkeeping certain part of the building. From the fact that each owner is required to contribute to the expenses named in the clause, the different parts of the building mentioned must be common facilities or common parts of the Building and is never intended to mean any part of the building which an owner has an exclusive right.  The proviso in Clause 3(b) to require the owner who had exclusive right to a particular part of the roof to be responsible for that particular part on his own supports the conclusion that the parts of the Building mentioned in Clause 3(b) are common parts instead of parts which an owner has exclusive possession.

30.  Moreover, Clause 6 of the DMC (page 139 Bundle) specifically provided for the obligation of each owner in paying for the expenses of upkeeping and maintenance of the part of the Building to which the owner had exclusive use occupation and enjoyment.  So Clause 3(b) cannot be referring to the other “portion” an owner had exclusive possession.

31.  In any event, it cannot be said that since no cockloft had been mentioned in clause 3(b), this means no cockloft had been in existence.  It is beyond argument that the Upper Part of Ground Floor was in fact in existence as shown on the Building Plan and Cockloft C forms part of the Upper Part of Ground Floor. 

32.  I found as a fact that Cockloft C did exist with a floor slab which had been removed at some stage.  The T/A between the applicant and the respondent is a valid one.

Estoppel

33.  In any event, I found the respondent should be estopped from denying the right of the applicant in granting a valid T/A.

34.  The doctrine of estoppel is clearly set out in the case of Tang Man Kit & Foo Tak Ching & Hip Hing Timber Company Limited (CACV 137/02 13 May 2005).  In that case, the Court of Appeal stated :-

“52. As pointed out by the editors of Hill and Redman’s Law of Landlord and Tenant (17^th Ed.) Para 88, this estoppel has two aspects –

(1) A tenant is prevented or estopped from denying the right of his landlord to grant the lease and, conversely, a landlord is prevented or estopped from denying the title of his tenant under the lease.

(2) A person who has no legal estate in the land may nevertheless purport to grant a lease of that land; in that event, there is created between him and his purported tenant a tenancy by estoppels which binds them and their respective successors in title just as if the landlord had a sufficient interest to grant the lease.

53. The position is best stated by Lord Denning MR in Industrial Properties (Barton Hill) Ltd and Others v Associated Electrical Industries Ltd [1977] 1 QB 580:

‘If a landlord lets a tenant into possession under a lease, then, so long as the tenant remains in possession undisturbed by any adverse claim – then the tenant cannot dispute the landlord’s title. Suppose the tenant (not having been disturbed) goes out of possession and the landlord sues the tenant on the covenant for rent or for breach of covenant to repair or to yield up in repair. The tenant cannot say to the landlord: “You are not the true owner of the property.” Likewise, if the landlord, on the tenant’s holding over, sues him for possession or for use and occupation or mesne profits, the tenant cannot defend himself by saying: “The property does not belong to you, but to another.’ ”

35.  Mr. Nip for the respondent submitted that the doctrine of estoppel is only applicable if the applicant had mistakenly believed that it was the owner or that the property belonged to a third party.  As can be seen from the passage quoted above, the principle of estoppel prevents a tenant from denying the landlord’s entitlement to the property.  It is applicable, not only in cases where there is a third party claim but also in circumstances where the landlord’s title is put in issue.  Under this principle, the right of the applicant as landlord and as person entitled to possession to recover the land can hardly be challenged.

36.  The respondent is alleging that since Cockloft C had never been in existence, the applicant had no title to it and not entitled to enter into a valid tenancy agreement.  In such circumstances, the doctrine of estoppel is clearly applicable to stop the respondent from denying the existence or validity of the T/A on these grounds.

37.  The respondent had entered into the T/A with Venture King since 2005 and had been performing the terms of the T/A all these years.  His use had never been disturbed by any adverse claim.  The respondent should be estopped from denying the existence of Cockloft C and/or a valid T/A now that the applicant exercised its right as the landlord for possession of Cockloft C.

Jurisdiction under the LTCO

38.  The respondent submitted that since this claim by the applicant is one brought pursuant to Section 127A of the LTCO, the Tribunal would only have jurisdiction to adjudicate this claim if Cockloft C constitutes “premises” which for the purpose of Section 127A required a physical part of a building.

39.  The following terms in Section 2 of the LTCO are relied upon by the respondent to support the contention that “premises” necessarily connotes a physical part of a building, such as a room or a cubicle :

 “premises” – “means the subject matter of any tenancy”

“domestic premises” – “means premises the subject of a separate letting (including any bed-space, cubicle, room, floor or portion of a floor or building) which are used wholly or primarily for human habitation : Provided that the following shall not be deemed to be domestic premises within the meaning of this definition-

(a) any building or portion of a building which is used for habitation only by caretakers or watchmen not exceeding 2 in number;

(b) any building or portion of a building which is used for habitation only by office attendants or their families;

(c) any particular portion of an hotel or boarding-house which is let by the keeper of such hotel or boarding-house to a guest of such hotel or boarding-house;”

“business premises” – “means premises which are not domestic premises”

40.  In view of my findings above that Cockloft C did exist and had a floor slab which had been removed, the respondent’s contention that Cockloft C is not physically in existence and cannot be “premises” under the LTCO must fail.

41.  Even if I am wrong in my findings above, I do not agree that the definition of “premises” under the LTCO must connote a physical part of a building, as submitted by the respondent.  The definition of “premises” under LTCO just referred to the “subject matter of any tenancy” and there is nothing touching upon any requirement as to the physical state of the premises.  And the definition of “domestic premises” includes “bed space” which apparently does not involve any physical part of a building.  I found the contention by the respondent not supported by these definitions.

42.  Cockloft C, being the subject matter of the T/A between the applicant and the respondent, must fall within “premises” under the LTCO, i.e. being the subject matter of the T/A.

43.  Mr. Nip also relied upon the judgment of Gonwah Properties Ltd v Nam Ah Restaurant [1987] 3 HKC 371 to say that the Tribunal in that case had also found that “premises” under LTCO required a physical building.  I beg to differ.  The case of Gonway involved an application for authorization to sell a piece of land after all tenants agreed to surrender their various premises in consideration for compensation payable by the landlord in that case.  The law stated that in such circumstances, the landlord is deemed to have obtained orders for possession under the LTCO and became subject to the restrictions against assigning the premises within 24 months.  The old building on the land was demolished subsequently with a new building erected.  In order to sell the land as well as the building under construction without contravention of the restriction, an order from the court is required.  Downey DJ drawing an analogy from the definition of “premises” in LTCO, found that the restriction was only to prohibit any dealing with the premises of the order for possession and not with the land or the new building erected, and concluded that the restriction is not applicable and no authorization is required.  It is also observed by Downey DJ that since the building had been demolished, the premises ceased to exist both in fact and in law.

44.  Downey DJ had not made any findings that the “premises” under LTCO must involve a physical part of a building.  Rather, it is only found that “the premises can only refer to the premises which form the subject matter of the order for possession or the order refusing to grant a new tenancy” (at page 374).  The observation about the existence of the premises is to justify the conclusion that since the subject matter of the order for possession is no longer in existence, the tribunal is given no jurisdiction to authorize any dealing in such premises.  In no way can this be understood to mean that “premises” under LTCO required a physical building.

45.  In any event, even if I am wrong in my findings concerning LTCO, the wordings of Section 8(6) of the Lands Tribunal Ordinance (“LTO”) reads :

“The Tribunal shall have jurisdiction to make an order for the recovery of possession of any premises or for the ejectment of a tenant from those premises, whether under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise.” (emphasis added)

This conferred on this Tribunal the jurisdiction to deal with any application for recovery for possession, not only under the LTCO but also under common law. This is confirmed in the recent judgment of The IO of Mountain View Mansion v Lam lap Kei and another CACV 235/2011 (at paragraph 27-28).

46.  I found the respondent’s contention on jurisdiction must fail.

Conclusion

47.  Having considered all the arguments raised by the respondent, I found the relationship between the parties in this case are that of landlord and tenant governed by the T/A.  Upon expiration of the terms of the tenancy, the applicant is entitled to have vacant possession of Cockloft C.  Since the respondent had been holding over upon expiry of the T/A without any payment, the applicant is entitled to claim for mesne profits from the respondent.

Jurisdiction to grant an order for specific performance

48.  The applicant is asking for an order for the respondent to reinstate the floor slab of Cockloft C.  The respondent submitted that this Tribunal has no jurisdiction to grant an order for specific performance.  It is not in dispute that Section 8 (8) of the Lands Tribunal Ordinance (“the Ordinance”) is relevant in the determination of this argument on jurisdiction.

49.  Section 8 (8) of the Ordinance reads :

“The Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise, … whether or not it grants any such application, to make one or more of the following orders –

(a) an order for the payment of rent and mesne profits (including interim payments of rent and mesne profits);

(b) an order for the payment of any other money which is due under the tenancy or sub-tenancy;

(c) an order for the disposal of any property left in the premises concerned by the tenant or sub-tenant; and

(d)   an order for the payment of damages in respect of any breach of a condition of the tenancy or sub-tenancy.”

50.  The applicant relied on Section 8(9) of the Ordinance in support of the contention that this Tribunal does have the jurisdiction to grant a specific performance order.

51.  Section 8(9) of the Ordinance reads :

“In the exercise of its jurisdiction, the Tribunal shall have the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance.”

52.  I found the applicant’s contention misconceived. 

53.  Section 8(8) of the Ordinance confers on the Tribunal the jurisdiction to make those orders specified in Section 8 (8)(a)-(d) when the Tribunal is dealing with an application for possession.  Section 8(8) is the provision defining the Tribunal’s power to grant reliefs in its exercise of the jurisdiction in dealing with application for possession.  Section 8(8)(a)-(d) are the only reliefs that can be granted.  The provision of Section 8(9) empowering the Tribunal the same jurisdiction to grant remedies and reliefs as the Court of First Instance in the exercise of its jurisdiction.  So Section 8(9) does not confer any additional jurisdiction on the Tribunal to exercise jurisdiction of the Court of First Instance in an application for possession since all remedies and reliefs that can be granted had already been specified in Section 8(8).  To accept Mr. Siu’s submission that since the Tribunal has the jurisdiction to grant the remedies and reliefs as the Court of First Instance, the Tribunal must also have the jurisdiction to grant a specific performance order in an application for possession, is in total ignorance of the provision of Section 8(8) and treating Section 8(9) as conferring additional jurisdiction on this Tribunal.

54.  I found this Tribunal has no jurisdiction to grant the relief of specific performance in an application for possession.

Order

55.  It is ordered that :

(a)   the respondent should deliver vacant possession of Cockloft C to the applicant;

(b)   the respondent should pay the applicant mesne profits from 1 May 2011 till delivery up of vacant possession;

(c)   application for specific performance be dismissed;

(d)   costs order nisi that costs of this application be to the applicant, to be taxed at District Court scale if not agreed, with certificate for counsel. Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.

56.  As for the assessment of mesne profits, it is directed that :

(a)   parties to file a valuation report prepared by a jointly appointed expert within 4 weeks from this order;

(b)   assessment of mesne profits be set down for a call over hearing on a date not before 6 weeks from this order;

(c)   liberty to apply.