CIRCUS CAPITAL (ASIA) LTD v. PANORAMIC PROPERTIES LTD

LDMP 3 OF 2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS APPLICATION NO. 3 OF 2003

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D E C I S I O N

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1. By this originating summons, the Applicant applies under section 8(9) of the Lands Tribunal Ordinance and its inherent jurisdiction to the Lands Tribunal ("the Tribunal") for the following orders: -

1. The purported Form CR101 dated 13th November 2002 served by the Respondent through its solicitors on the Applicant be declared invalid;

2. In the alternative, if, which is denied by the Applicant, the aforesaid purported Form CR101 is valid, the Applicant do have leave to serve a Form CR102 in response out of time.

2. In his affidavit the Applicant's director Mr. Paul H. Robinson states that on or about 19th October 2001 the Applicant rented, for a term of two years and nine months, from the Respondent No. 12 Tai Tam Village, Stanley, Hong Kong ("the premises") as his residential quarters. By a Form CR101 (notice of termination of tenancy by landlord) served on the Applicant on 13th November 2002, the Respondent purported to terminate the tenancy on 14th May 2003. Mr. Robinson contends that the Form CR101 is invalid. The Respondent opposes the application and it asks the Tribunal to declare, inter alias, that the said Form CR101 is valid and was validly served. Having heard the submissions of both parties, I invited them to address me on the following issue: does the Tribunal have jurisdiction to entertain the applications in the originating summons. Both parties replied in the positive, and referred me to the case of Right Glory Investment Ltd. v. Trucidator Services (H. K.) Ltd. [1995] HKDCLR 19. In that case the Applicant was the landlord of a domestic tenancy which was subject to the provision of Part IV of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7). It took out an originating summons against the Respondent tenant for an order, inter alias, that the Applicant's form CR101 was valid. At the hearing of the originating summons the Respondent argued that the Tribunal did not have jurisdiction to deal with the matters in the summons. Holding that the Tribunal did have jurisdiction to deal with the application, the learned Presiding officer stated: -

".................... In any event, under s.8(9), the Tribunal clearly had the power to make declarations. This enables the Tribunal to declare whether a Form CR101, which purports to have been duly completed and issued under Part IV, is valid."

3. Section 9 of the Lands Tribunal Ordinance provides: -

"(9) 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."

The difficulty with the decision of the learned Presiding Officer is the failure to address the issue as to whether the Tribunal in that case was "in the exercise of its jurisdiction" within the meaning of section 8(9). For reasons hereinafter mentioned, this Tribunal held that his decision was wrongly made and should not be followed.

4. What is the meaning of "in the exercise of its jurisdiction"? Is this "jurisdiction" different from the jurisdiction to grant remedies and reliefs? It cannot be the same, because this jurisdiction is unspecified; it is not related to the granting of remedies and reliefs. Apart from subsection (9), all the other subsections of section 8 do not refer to the jurisdiction to grant remedies and reliefs. Furthermore, subsection (9) stipulates that the jurisdiction to grant remedies and reliefs is the same remedy which the Court of First Instance has, whereas the "unspecified" jurisdiction makes no reference to the jurisdiction of the Court of First Instance. For these reasons, I rule that the "unspecified" jurisdiction is not the jurisdiction to grant remedies and reliefs. This ruling is fortified by the view of the learned Presiding Officer in the case of Right Glory Investment Ltd., when he said: -

'Section 8(5) grants jurisdiction under the Landlord and Tenant (Consolidation) Ordinance. In addition where the Tribunal has jurisdiction, s.8(9) gives the Tribunal, these significant further powers:

"(9) In the exercise of its jurisdiction, the Tribunal shall have the same jurisdiction to grant remedies and reliefs, equitable or legal, as the High Court." '

5. Then what is the jurisdiction to be exercised by the Tribunal? The clue is to be found in the other subsections of section 8: -

"(1) The Tribunal shall have jurisdiction to determine the amount of compensation (if any) payable by the Government in respect of any claim submitted to it under any Ordinances specified in the schedule.

(2) The Tribunal shall have jurisdiction to determine the amount of compensation (if any) payable by the Government in respect of any claim submitted to it under an Ordinance other than an Ordinance specified in the schedule......................

(3) Subsection (2) shall apply notwithstanding any other provision made in any such Ordinance for the determination of any such claim.

(4) The Tribunal shall have jurisdiction to determine any appeal submitted to it for determination under any Ordinance specified in the Schedule.

(5) The Tribunal shall have such other jurisdiction as may be vested in it under any Ordinance including any Ordinance specified in the Schedule.

(6) The Tribunal shall have jurisdiction to make orders for possession under the Landlord and Tenant (Consolidation) Ordinance..........................

(7) The Tribunal shall have jurisdiction to make orders for possession or for ejectment in relation to premises to which Part I ........ of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) applies..........................

(8) The Tribunal shall have jurisdiction, in any application for possession or for ejectment under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise to makes orders for the payment of rent, mesne profits ................

(8A) The Tribunal shall have jurisdiction to determine any claim or set-off and counterclaim transferred to it under section 7 or 10 of the Small Claims Tribunal Ordinance (Cap. 338)."

The jurisdiction conferred upon the Tribunal by each of the above subsections (save and except subsection (3)) does not contain any reference to the jurisdiction to grant remedies and reliefs. Therefore such jurisdiction is the jurisdiction other than the jurisdiction to grant remedies and reliefs. No doubt such jurisdiction is the jurisdiction referred to in the phrase "in the exercise of its jurisdiction".

6. Section 8(9) can only be invoked when the Tribunal is "in the exercise of its jurisdiction". In the instant case, the Tribunal is not in the exercise of its jurisdiction, and therefore the Applicant cannot rely upon section 8(9) to institute the originating summons. The Tribunal is a court of record created by statute. It has no inherent jurisdiction to substantiate the Applicant's applications. For these reasons, both parties' applications must be dismissed and I do so accordingly.

7. Regarding costs of the originating summons, I make an order nisi, to be made absolute in 14 days' time, that each party is to bear its own costs of this originating summons.