WESTPAC (HK) LTD v. GO AURORA B.

HCMP 1210/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1210 OF 2011

(ON AN INTENDED APPEAL FROM LDPD NO. 520 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Tang Acting CJHC:

1.  I agree with the judgment of Fok JA.

Hon Fok JA:

2.  By a summons dated 28 June 2011, the applicant seeks leave to appeal out of time against a judgment of the Lands Tribunal dated 19 April 2011.  The application is opposed by the respondent, whose manager, Mr Ting Lai Tung, made an affirmation on its behalf.  At the hearing we granted leave for that affirmation to be filed.

3.  The judgment arose out of an action for possession brought by the respondent against the applicant.  That action was tried before Deputy Judge Lui, Presiding Officer of the Lands Tribunal, who entered judgment for the respondent against the applicant on 19 April 2011.

4.  By the judgment, vacant possession of the suit premises was granted to the respondent and the applicant was ordered to pay arrears of rent or mesne profits at the rate of HK$2,000 per month from 12 November 2010 until delivery up of vacant possession.  There was a provision for the applicant to be relieved from forfeiture on condition of the payment of the rental arrears from 12 November 2010 to 12 May 2011.

5.  On 26 April 2011, the applicant applied, pursuant to s. 11A of the Lands Tribunal Ordinance (Cap. 17), for a review of the Land Tribunal’s judgment dated 19 April 2011.  The application for review was dismissed on 17 May 2011 and the applicant then applied for leave to appeal against that dismissal by summons in the Lands Tribunal dated 20 May 2011.  Leave to appeal was refused on 2 June 2011.

6.  An application for leave to appeal against a judgment, order or decision of the Lands Tribunal should be made in the first instance to the Lands Tribunal: see Lands Tribunal Rules (Cap. 17A) s. 30B(1).  In the case of a final judgment, that application should be made within 28 days and, in the case of an interlocutory judgment, within 14 days: see ibid. s. 30B(2)(a) and (b).  If that application is refused, a further application for leave to appeal can be made to this court within 14 days from the date of refusal: see ibid. s. 30B(4).

7.  Insofar as the applicant’s summons seeks leave to appeal against the judgment of the Lands Tribunal dated 19 April 2011, an application for leave to appeal should have been made by 17 May 2011.  If the application for leave is against the Presiding Officer’s refusal of leave to appeal on 2 June 2011, it should have been made by 16 June 2011.  In either event, the application for leave to appeal is out of time.

8.  In her summons seeking leave to appeal, the applicant explains that the reason her application is out of time is because staff of the Lands Tribunal told her to apply in the Lands Tribunal before coming to this court.  Hence, she says, she was not aware of the period of appeal from the Lands Tribunal.

9.  As will be apparent, the advice that the applicant says she was given by staff of the Lands Tribunal was correct, namely to apply to the Lands Tribunal first before applying to this court.  The applicant did apply for a review of the judgment and then for leave to appeal against the dismissal of the application for a review, as she was entitled to do and indeed as she was advised to do by staff of the Lands Tribunal.  The applicant appears to have had no difficulty in pursuing her applications for a review and leave to appeal in the Lands Tribunal on her own behalf and there is no explanation why, if she were told to apply for leave to appeal from the Lands Tribunal first before coming to this court, the applicant should not have proceeded to issue her present summons after the dismissal of her application to the Lands Tribunal for leave to appeal on 2 June 2011.  There is no evidence as to whether she asked staff of the Lands Tribunal about the time limit for applying to this court for leave to appeal once an application for such leave was refused by the Lands Tribunal.  Had she asked, there is no reason to think she would not have been given accurate advice.

10.  In the circumstances, we are not persuaded that the proffered explanation for the applicant’s failure to apply for leave to appeal within time provides a good reason for us to exercise our discretion (under s. 30D of the Lands Tribunal Rules) to extend time for that application.

11.  In any event, we would only accede to an application to extend time for the application to apply for leave to appeal if we were of the view that the proposed appeal enjoys a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.  That is because, pursuant to s. 11AA(6) of the Lands Tribunal Ordinance, this is the threshold for the grant of leave to appeal.

12.  Under s. 11(2) of the Lands Tribunal Ordinance, an appeal to this court against a judgment, order or decision of the Lands Tribunal lies “on the ground that such determination order is erroneous in point of law”.

13.  However, no point of law has been identified in the applicant’s summons seeking leave to appeal, nor was any such point of law been advanced to us by the applicant at the hearing of the application.

14.  The proceedings in the Lands Tribunal related to a tenancy agreement for the suit premises dated 8 July 2010 whereunder the applicant was obliged to pay rent of HK$2,000 on the 12^th day of every month during the term of the tenancy agreement and under clause 6 of which the applicant was obliged to keep the premises in good and tenantable repair and condition.

15.  The respondent’s action for possession was based on the fact that the applicant was in arrears with the payment of rent since November 2010 and had also failed to keep the premises in good and tenantable repair and condition as required by clause 6.

16.  There is nothing before us to indicate that the Lands Tribunal made any error of law in making the order of 19 April 2011.  Although the applicant has paid the respondent’s solicitors a sum of HK$14,000 in respect of arrears of rent for the period between 12 November 2010 and 11 May 2011, the rent for the period from 12 May 2011 to 11 July 2011 remains outstanding.  There is also evidence in Mr Ting’s affirmation that the applicant remains in breach of clause 6.

17.  Although the applicant stated during the hearing that she understood the duration of the tenancy agreement to be for a period of two years, the tenancy agreement shows clearly on its face that it was entered into for a period of one year only and expired on 11 July 2011.  The respondent has indicated through its counsel that it has no intention of entering into another tenancy agreement with the applicant. In the circumstances, there is no basis for the court to grant any relief against forfeiture.

18.  For all these reasons, we are not satisfied that the intended appeal has a reasonable prospect of success or that there is any other reason in the interests of justice why the appeal should be heard.

19.  We therefore dismiss the applicant’s summons dated 28 June 2011 with costs to the respondent, to be taxed if not agreed.