TSE KWAI SAU v. COSTELLOE, HELEN MARIA

LDPD 2131/2017

[2018] HKLdT 28

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 2131 OF 2017

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DECISION
(LEAVE TO APPEAL)

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1.  This is an interlocutory application taken out by the respondent on 17 April 2018 (“Present Interlocutory Application”) seeking leave to appeal against my decision dated 13 April 2018 by the Tribunal dismissing an earlier interlocutory application taken out by the respondent on 3 April 2017 (“the 2^ndInterlocutory Application”). The respondent also applied for time to pay the arrears of rent and cost and a Stay of Execution of the Writ of Possession.

Background

2.  This appeal is originated from an application by the applicant on 30 October 2017 for recovery of possession of the premises situated at No 26A, 1/F, Kap Bin Long, Sha Kok Mei, Sai Kung, New Territories (“the Premises”) on the ground that the respondent has failed to pay rent from 15August 2017 under a tenancy for a term of 2 years commencing from 15 July 2016 to 14 July 2018.

3.  In her Notice of Opposition dated 1 November 2017, the respondent stated that she was only “one month behind on rent, excluding the deposit” (ie after deducting the deposit). She said she was “in the process of a few Labour Tribunal Hearings and High Court Appeal in relation to a group of people who have been spreading rumours about (her) and intimidating (her). This has made finding new work quite difficult. (She) expect one of the cases to be settled quite soon – approx mid-Nov. Then (she) should be able to settle the rent and pay 3 months in advance.”

4.  The respondent also alleged that the landlord had allowed agents, friends to enter the Premises using a spare set of keys.

5.  In the hearing on 20 November 2017, Ms Tsang Ming Fung (“Ms Tsang”) who attended on behalf of the applicant, replied that the rental in arrears were 3 months instead of 1 month as the respondent had no right to deduct the deposit under the subject tenancy. Ms Tsang also submitted that the purported Labour Tribunal and High Court proceedings involving the respondent were of no relevance to the applicant and should not be an excuse by the respondent for failure to pay rent. Ms Tsang further denied that access was given to the applicant’s agent into the Premises as alleged – access was only provided to the applicant’s agent into the common area corridor leading to the front door of the Premises on 30 October 2017, 31 October 2017 and 1 November 2017 so that the applicant’s agent could post the Notice of the Application for Order of Possession (Form 22) on a conspicuous place at or on the entrance to the Premises.

6.  While insisting that she owed the applicant only 1 month’s rent after deducting the deposit, the respondent said she had been under persecution by the police, the Hospital Authority, the Security Bureau or others which had prevented her from finding an employment. If she could find new employment and the result from the Labour Tribunal hearing be positive, she would be able to settle everything.

7.  I reminded the respondent that under section 8 of the Lands Tribunal Ordinance, I had no jurisdiction to investigate the allegations by her. Then, after hearing submissions by the parties, I made the order as follows:

(1)   Subject to paragraph (4) below, the respondent do deliver vacant possession of the suit premises to the applicant;

(2)   The respondent do pay the applicant arrears of rent/mesne profits at the rate of $11,000 per month from 15 August 2017 until delivery up of vacant possession;

(3)   The respondent do pay the applicant the costs of this application which is summarily assessed at $365;

(4)   If the respondent should on or before 5 December 2017 (“Relief Expiration Date”) pay into the Tribunal all the arrears of rent/mesne profits as stated in paragraphs 2 above (including all arrears of rent/mesne profits due on or before the date of payment), together with the cost referred to in paragraph 3 above, the respondent be relieved from the forfeiture incurred herein, and the lease of the suit premises be reinstated;

(5)   Unless otherwise ordered, all sums order to be paid under this judgment shall be paid into the Tribunal in cash, by cashier orders issued by banks in Hong Kong or by cheques drawn by firms of solicitors in Hong Kong, and such sums received by the Tribunal shall be released to the applicant.

1^st Interlocutory Application

8.  On 30 November 2017, the respondent made an Interlocutory Application (“1^stInterlocutory Application”) seeking extension of time to arrange payment in light of Labour Tribunal hearings on 8 and 14 December 2017 and she looking for employment as a result of which payment could only be possible in the beginning of January 2018.

9.  In the hearing on 18 December 2017, I agreed to defer the decision until 15 January 2018 but the respondent had to pay another month’s rent to the applicant with costs on or before 10 January 2018.

10.  Then in the hearing on 15 January 2018, being satisfied that the respondent had successfully made part settlement of rental, I agreed to extend the Relief Expiration Date stated in the Order dated 20 November 2017 as follows:

“The “Relief Expiration Date” as stated in paragraph 4 of the Orders of the Lands Tribunal dated 20 November 2017 be extended to:

(a)  7 February 2018, the respondent do pay the applicant on or before 7 February 2018 three months of arrears of rent / mesne profits from 15 October 2017 to 14 January 2018 in the sum of $33,000. And the respondent do pay the applicant the costs of this Application which is summarily assessed at $200;

(b)  7 March 2018, the respondent do pay the applicant on or before 7 March 2018 two months of arrears of rent / mesne profits from 15 January 2018 to 14 March 2018 in the sum of $22,000;

(c)  7 April 2018, the respondent do pay the applicant on or before 7 April 2018 one and a half months of arrears of rent / mesne profits from 15 March 2018 to 30 April 2018 in the sum of $16,500;

(d)  7 May 2018, the respondent do pay the applicant on or before 7 May 2018 one and a half months of arrears of rent / mesne profits from 1 May 2018 to 14 June 2018 in the sum of $16,500 but there be no change to the other terms in the Order.”

Writ of Possession

11.  Writ of Possession was granted by the Tribunal on 16 March 2018.

2^ndInterlocutory Application

12.  On 3 April 2018, the respondent made a further Interlocutory Application (2^nd Interlocutory Application) for stay of execution of the Writ of Possession.

13.  In her Affidavit of even date, the respondent stated she had “experienced a long period of interference with the employment” and she had more job interviews forthcoming. She would have Labour Tribunal hearing in July 2018.

14.  In the hearing on 13 April 2018, the parties did not dispute that the respondent only made payment of $22,000 on 15 February 2018 and a further $5,000 on 15 March 2018, ie failure to comply with the Order as amended on 15 January 2018. The respondent lost her job again and she complaint of further persecution by the Hospital Authority, the Government or others.

15.  After hearing the submissions by the parties, I dismissed the 2^nd Interlocutory Application.

Present Interlocutory Application

16.  In support of this Present Interlocutory Application, the respondent stated she had been trying to arrange / secure new employment but suffering from triad/police/government intimidation. She would like to address this case in the High Court.

17.  In this morning when this interlocutory application was heard, I reminded the respondent that I could not see how these grounds put forward by her in this Present Interlocutory Application could be taken as issues in the “erroneous in point of law”. Section 11(2) of Cap. 17, Lands Tribunal Ordinance (“the Ordinance”) provides that:

“Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.”

Leave to Appeal

18.  Section 11AA (6) of the Ordinance provides that:

“Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

19.  I do not consider the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

Conclusion

20.  This is a simple application for recovery of possession and payment of outstanding rent/mesne profit and costs.  Since I do not allow the respondent the leave to appeal, the consequential application by the respondent for stay of execution of possession of the Premises pending appeal is therefore refused.

21.  There be no order as to costs.