JOHN ROBERT GORDON CHENEY v. COLLECTIVE (NOMINEES) LTD

LDNT 70/2002

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No. LDNT 70 of 2002

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Decision

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1. This is the decision of the Tribunal on the award of costs relating to the review proceedings in this case.

2. The Applicant applied to this Tribunal for a new tenancy in respect of the suit premises known as Flat 2A on the second floor and parking space No. 3 on the ground floor, Palm Court, 55 Robinson Road, Hong Kong. On 25th June, 2002, this Tribunal granted a new tenancy for 2 years to the Applicant at a rental of $22,900. ("the decision") On 18th July, 2002, pursuant to section 11 A of the Lands Tribunal Ordinance, the Respondent took out a summons application seeking a review of the decision. On 2nd Oct., 2002 when the summons application was heard, the Applicant asked the Tribunal to make a ruling not to proceed with the review, not to grant leave to the Respondent to amend the summons and not to allow the Respondent to adduce new evidence. On 22nd Nov., 2002, the Tribunal dismissed this application and granted leave to the Respondent to amend the summons for the review within 21 days from the order, and the review application was adjourned to a date to be fixed by the Assistant Registrar.

3. On 15th Jan., 2003, when the adjourned review application resumed, the Applicant objected to the Tribunal to proceed with any "review" pursuant to the "Amended Summons" taken out by the Respondent until the following substantive legal issues had been decided upon by the Tribunal: -

1.	The form of the summons and the sufficiency of the originating document;
2.	The criteria to be applied in the Tribunal's exercise of its discretion to permit a review and how those criteria apply in the circumstances of this case;
3.	In the event any review is permitted what should be the permitted scope of the review;
4.	In the event any review is permitted the principles that apply to the exercise of its discretion in the admission of new evidence.

4. In the afternoon of 2nd and 3rd of July 2003, the parties presented their arguments. On 22nd July, 2003, the Tribunal dismissed the Applicant's application, and the Respondent was not allowed to adduce new evidence.

5. On 4th December, 2003 the parties presented their arguments on costs.

6. The Applicant's applications made on 2nd Oct., 2002 and 15th Jan., 2003 failed. The reasons for dismissing the applications were fully set out in the decisions dismissing the applications. The Respondent submitted that the application made on 15th Jan., 2003 was especially vexatious and costs on an indemnity basis should be awarded; in this application the Tribunal ruled that the application relating to the first and second issues was plainly an abuse of the judicial process. In this application the Tribunal had to rule on four issues. The Applicant only abused the judicial process on two of the issues. Therefore this Tribunal did not find that the Applicant abused the judicial process to a substantial extent.

The Law

7. The law relating to costs is set out in section 12 of the Lands Tribunal Ordinance. It reads:-

"

(1)

Subject to the provisions of the Ordinance giving the Tribunal jurisdiction in any matter, the Tribunal may award costs to and against any party to any proceedings and may order that those costs be taxed on the basis of any one of the Scale of Costs set out in the Schedules to Order 62 .............."

8. The Tribunal has jurisdiction to entertain the application of the Applicant by virtue of section 8(5) of the Lands Tribunal Ordinance, which provides that the Tribunal shall have such other jurisdiction as may be vested in it under any Ordinance including any Ordinance specified in the Schedule, and the Landlord and Tenant (Consolidated) Ordinance ("the Ordinance") is included in the Schedule. The Applicant's application was instituted under Part IV of the Ordinance, and section 119R (under Part IV) of this Ordinance provides:-

"In any proceedings under this Part, the Tribunal shall not make any order as to costs against a party unless that party has conducted his case in a frivolous or vexatious manner."

9. The issue which the Tribunal has to decide is whether section 119R applies to the review proceedings taken out by the Respondent pursuant to section 11A of the Lands Tribunal Ordinance. Section 11A reads:-

"	(1)	The Tribunal may, within 1 month from the date of any decision by it, decide to review that decision and, on such grounds as it may think sufficient, may set aside, reverse, vary or confirm it.
	(2)	......................
	(3)	......................
	(4)	The Tribunal may, in any review, hear and receive any evidence it thinks fit for the purpose of determining the issue between the parties.
	(5)	.......................
	(6)	........................"

10. On 2nd Oct., 2002, when the parties appeared for the resumed hearing, the Respondent was represented by Counsel, Mr. Peter Wong. Mr Wong informed Member Lo that the only issue before the Tribunal was that the Respondent wished to review Order No. (2) of the Orders dated 25 June 2002. This is the order which set out the amount of the PMR of the subject premises. He sought leave of the Tribunal to exercise its discretion to receive new evidence. The Applicant opposed the application and Mr. Wong made a reply, and then "the Applicant objected to continue to hear the review" (Paragraph 8 of the Ruling dated 22 November, 2002.)

11. It is beyond doubt that the review had actually started on 2nd Oct., 2002 before the Applicant made his application asking the Tribunal not to proceed with the review.

12. Section 11A provides the legal basis for a party to a proceedings to apply for a review of the Tribunal's decision. The decision in this case was a decision made under the provisions of Part IV of the Ordinance. Therefore a review of this decision is a review of the decision under the provisions of Part IV. During the review proceedings parties are entitled to raise applications, but still the applications are made within the review proceedings. In the present case, on 18th July, 2002, Member Lo of this Tribunal made the following order:-

" I decide to review my decision/order made on 25 June 2002 and will exercise my power of review on 30 September 2002".

13. With consent of the parties the hearing was adjourned to 2nd Oct., 2002. On 2nd Oct., 2002 when the parties appeared for the scheduled hearing, the review proceedings continued until its conclusion. In the premises the entire review application came within Part IV of the Ordinance, and section 119 R applies.

14. The Tribunal takes the view that the parties did not conduct their case frivolously or vexatiously during the course of the review proceedings. Accordingly, subject to the cost order made on 24th Sept., 2003, this Tribunal will not make any order for costs against any party in respect of the review proceedings.