ELITE BRIGHTER LTD v. NEBOH CHINEDU KINGSLEY

LDPD 1307/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1307 OF 2014

__________________________

________________

REASONS FOR DECISION

________________

Background

1.  This is an interlocutory application taken out by the Respondent on 10 September 2014 seeking leave to appeal the Judgment/Order/Decision made on 5 September 2014. After hearing the parties on this application on 17 September 2014, I refused to give leave to the Respondent to appeal the Tribunal’s order dated 5 September 2014. I now give my reasons.

2.  The applicant, as landlord, and the respondent, as tenant, entered into a tenancy agreement dated 25 January 2014 by which the applicant let to the respondent the premises at Room B, 4/F, No.8 Apliu Street, Kowloon (“the Premises”) for a term of 2 years from 1 February 2014 to 31 January 2016 at a monthly rent of HK$5,000 inclusive of management fee and rates, etc subject to a break clause whereby either party shall be entitled to terminate the tenancy earlier by serving not less than 1 month written notice or by paying 1 month’s rent in lieu to the other party provided that the written notice shall not be served before the expiration of the 12 months of the term of tenancy. (ie the tenant shall rent the Premises for at least 13 months.) There was a rent free period of 7 days from 25 January 2014 to 31 January 2014.

3.  By virtue of the tenancy agreement, the respondent was also responsible to pay the water and electricity charges in respect of the Premises.

4.  In a Notice of Application filed to the Tribunal on 16 June 2014, the applicant applied for recovery of possession of the Premises and rent as the respondent has failed to pay rent from 1 March 2014, and applied for order for mesne profits to the date of delivery of vacant possession of the premises and costs (“the Application”).  The applicant also applied for an order for the respondent to pay the outstanding water and electricity charges.

5.  The respondent filed a Notice of Opposition on 26 June 2014. In gist, the respondent suggested that he needed more time to pay back the rental in arrears though the ISS[1] that supported him could only allow $1,500.

6.  The respondent failed to appear on the hearing date of 16 July 2014. After hearing the evidence from a Mr Cheung Pak Yin (hereinafter referred to as “Mr Cheung”) on behalf of the applicant, I entered judgment against the respondent.

7.  The respondent took out an Interlocutory application on 24 July 2014. Hearing took place on 1 August 2014 after which I set aside my order of 16 July 2014 and replaced it with a new one as follows:

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

(2) The respondent do pay the applicant arrears of rent/mesne profits as follows :

(i) Balance of arrears of rent from 1^st May 2014 to 31^st July 2014 in the sum of $9,500; 

(ii) Arrears of rent/mesne profits at the rate of $5,000 per month from 1^st August 2014 until delivery up of vacant possession; 

(3) The respondent do pay the applicant the following sums due under the tenancy:

(i) Water charges from 1^st February 2014 to 31^st July 2014 in the sum of $448;

(ii) Electricity charges from 1^st February 2014 to 31^st July 2014 in the sum of $2,531;

(4) The respondent do pay the applicant the costs of this Application which is summarily assessed at $500;

(5) If the respondent should on or before 31^st August 2014 (“Relief Expiration Date”) pay into the Tribunal all the arrears of rent/mesne profits as stated in paragraph (2) above (including all arrears of rent/mesne profits due on or before the date of payment) together with the costs referred to in paragraph 3 above, the respondent be relieved from the forfeiture incurred herein, and the lease of the suit premises be reinstated …

8.  The respondent took out another Interlocutory Application on 30 August 2014 seeking to extend the Relief Expiration Date to the end of September 2014 and stay the execution of my order of 1 August 2014. 

9.  Hearing took place on 5 September 2014 where the respondent suggested that money for the payment would be expected from his friends or family from his originating country by the end of September 2014. The respondent however failed to offer any proof and Mr Cheung on behalf of the applicant repeated his disbelief by reason of his previous experience in dealing with the respondent. I had no ground to believe in the respondent either and therefore I dismissed his Interlocutory Application.

10.  The respondent took out a new Interlocutory Application on 10 September 2014 seeking leave to appeal against my decision of 5 September 2014 and stay the execution of the order of possession, repeating that money for the payment would be expected by the end of September 2014. In his affirmation, the respondent also suggested that he did not have anywhere to stay or live in Hong Kong.

11.  When hearing took place on 17 September 2014, I reminded the respondent that I could not see how these grounds put forward by him in this interlocutory application could be taken as issues in the “point of law”.  Section 11(2) of Cap. 17, Lands Tribunal Ordinance states:

“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. “ (Amended 3 of 2008 s.39)

12.  The respondent conceded that he did not have any “point of law” in support of his appeal but he reiterated that money for the payment would be expected from his friends or family from his originating country by the end of September 2014. Mr Cheung, on the other hand, remarked that all actions proposed by the respondent were delaying tactics that I should not believe.

Discussion

13.  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.”

14.  Summing up, since the ground stated by the respondent as the grounds of appeal were not issues in the “point of law”, I cannot see how the respondent should be given the leave to appeal.  

15.  This is originally a simple application for recovery of possession and payment of outstanding rent/mesne profit and costs.  Under the order granted by me on 1 August 2014, the respondent had a relief period for payment of outstanding rent and costs by 31^st August 2014 (as extended from the original order of 16 July 2014 that I had set aside), failing which the applicant has the right to obtain vacant possession of the premises.  Since the respondent failed to pay the outstanding rent and costs in full by the Relief Expiration Date, the applicant may proceed to apply for writ of possession of the premises.

16.  Since both parties are not legally represented, I decide not to make any costs order for this application.

Conclusion

17.  The interlocutory application by the respondent to seek leave to appeal is dismissed and there be no order as to costs.

[1]International Social Service (ISS) claims to be an international non-governmental organization that seeks, among others, to provide assistance in kind to asylum seekers and torture claimants as referred from the Social Welfare Department. For instance, an allowance is provided for each asylum seeker or torture claimant who prefers to look for his/her own accommodation instead of the one provided by ISS.