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LDLR 1 - 3/2012 (Heard Together)
[2020] HKLdT 12
LDLR 1/2012
IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
LANDS RESUMPTION APPLICATION NO 1 OF 2012
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| BETWEEN |
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CHAN SHIU CHONG |
Applicant |
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and |
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DIRECTOR OF LANDS |
Respondent |
___________________
LDLR 2/2012
IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
LANDS RESUMPTION APPLICATION NO 2 OF 2012
___________________
| BETWEEN |
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CHAN SHIU CHONG |
Applicant |
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and |
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DIRECTOR OF LANDS |
Respondent |
___________________
LDLR 3/2012
IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
LANDS RESUMPTION APPLICATION NO 3 OF 2012
___________________
| BETWEEN |
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TSE SUI LUN |
Applicant |
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and |
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DIRECTOR OF LANDS |
Respondent |
___________________
| Before: |
His Honour Judge S Lo, Presiding Officer of the Lands Tribunal, and Mr Lawrence Pang, Member of the Lands Tribunal |
| Date of the Applicant’s Written Submissions: |
31 October, 21 November 2019 and 14 February 2020 |
| Date of the Respondent’s Written Submissions: |
30 October, 21 November 2019 and 3 April 2020 |
| Date of Decision: |
14 April 2020 |
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D E C I S I O N ON COSTS
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A. BACKGROUND
1. These proceedings concern the determination of the compensable amounts for the compulsory resumption of the Applicants’ respective properties by the Respondent under the Development Scheme on the Resumption Date namely at midnight of 19 February 2011.
2. After a 5-day trial, this Tribunal handed down the Judgment on 19 November 2018 (“Judgment”) and determined the amount of compensation in respect of the Subject Properties[1] and ordered corresponding payments thereof to the Applicants respectively, namely:-
Subject Property |
Amount of Compensation Awarded |
Property 1 |
$8,710,000 in LDLR 1 of 2012 |
Property 2 |
$8,080,000 in LDLR 2 of 2012 |
Property 3 |
$10,070,000 in LDLR 3 of 2012 |
3. It was further ordered at para 66 of the Judgment that the matters of, amongst others, professional fees, interest and costs be adjourned.
4. On 14 December 2018, the 1st Applicant in LDLR 1 of 2012 (together with the 2nd Applicant in LDLR 2 of 2012 and the 3rd Applicant in LDLR 3 of 2012) applied to this Tribunal for leave to appeal against the Judgment.
5. By a Decision dated 18 March 2019, the Tribunal refused the 1st to 3rd Applicants’ leave to appeal applications with costs to the Respondent.
6. On 1 April 2019, the 1st to 3rd Applicants applied to the Court of Appeal (“CA”) in CAMP 54 to 56 of 2019 for leave to appeal against the Judgment. By the CA’s judgment dated 11 July 2019, the 1st to 3rd Applicants’ leave applications were dismissed with costs to the Respondent assessed at $96,000.
7. Pursuant to consent application filed on 3 October 2019, this Tribunal had ordered that the matters of interest, costs and professional fees be disposed of by the Tribunal on paper. As directed, parties have lodged and served their respective written submissions and replies.
B. APPLICABLE LEGAL PRINCIPLES
8. To begin with, under the respective section 16A(1A) and section 17(3B) of the Lands Resumption Ordinance, Cap 124 (“LRO”), which are almost identical, the rate of interest for both provisional payment and the balance of compensation is set at the lowest of the interest rates paid on deposit at 24 hours’ call. The stated rate is the minimum rate of interest the claimant is entitled to.
9. Under section 17(3A) of the LRO, subject to the said minimum rate of interest, the Tribunal is to have a very wide but not unfettered discretion to fix the interest rate for compensation. See also Happy Dragon Restaurant Ltd v Director of Lands, CACV 115/2012, unreported, 31 January 2013 at paras 25, 27 and 48; Tsan Luk Yuk Yin & Ors v The Secretary for the Environment, Transport and Works, LDMR 3/2005, unreported, 4 September 2014.
10. Further under section 12(1) of the Lands Tribunal Ordinance, Cap. 17 (“LTO”), the costs of and incidental to all proceedings in the Tribunal are in the discretion of the Tribunal, and the Tribunal has full power to determine by whom and to what extent the costs are to be paid.
11. In Good Faith Properties Ltd v Cibean Development Co Ltd [2014] 5 HKLRD 534 at para 27, the Court of Appeal re-affirmed the legal principles for the question of costs and professional remuneration in resumption cases and compulsory sale cases, namely the “compensation approach” applies and the starting point is that costs should not be dealt with in the same manner as ordinary hostile litigation and that such costs should be paid by the acquiring authority unless special reasons to depart from the usual order for costs exist.
12. However, the Tribunal still has to take into account the Calderbank offers made by the acquiring authority. In this regard, the Privy Council has provided the following guidance on costs in Director of Buildings and Lands v Shun Fung Ironworks Ltd 2 AC [1995] 111 at p 141A-C:
“Their Lordships recognise this is a strict, even a literal, interpretation of the rules. However, viewing the matter more broadly, it is difficult to see why the Calderbank letters should not have consequences as to costs in this case. Parties are to be encouraged to settle their disputes and assisted in their attempts to do so. By accepting the first offer the claimant would have received a significantly larger sum than it was awarded by the tribunal at the end of an enormously protracted and expensive hearing. Interest would have followed automatically, and there is no reason to doubt the tribunal would have made a costs order in favour of the claimant. Had the Crown made a payment into court, assuming this is possible, the claimant’s position would have been much the same, neither better nor worse. It is not as though a payment of money into court would have given the claimant some advantage over and above an offer by the Crown to settle for a like amount.”
C. UNDISPUTED FACTS
13. In respect of LDLR 1 of 2012:
(i) On 18 December 2012, the 1st Applicant received from the Respondent an amount of $8,471,000 being provisional payment (“PP for the Property 1”) pending determination of compensation in respect of the Property 1.
(ii) The 1st Applicant also received from the Respondent an amount of $154.81 being interest on PP for the Property 1 from 20 February 2011 (ie the date immediately after the Resumption Date) to 18 December 2012 (ie the date of PP for the Property 1) calculated at the then 24-hour call interest rate.
(iii) By a Calderbank letter from the Department of Justice (“DoJ”), Solicitors for the Respondent, to Messrs Cheung, Chan & Chung[2] (“CCC”), Solicitors for the 1st Applicant, dated 7 November 2013, the Respondent offered to settle all of the 1st Applicant’s claim in LDLR 1 of 2012 at a compensation in the sum of $8,843,000 (less payment or allowance already released) with interest thereon payable pursuant to section 17 of LRO at a rate to be agreed or failing which, to be fixed by the Tribunal, together with payment of professional remuneration reasonably incurred by the 1st Applicant and payment of the 1st Applicant’s costs to be taxed on High Court Scale, if not agreed. A copy of the letter was lodged with the Tribunal in a sealed envelope (“Sealed Offer for the Property 1”).
(iv) By a letter from CCC to DoJ dated 20 November 2013, the 1st Applicant rejected the Sealed Offer for the Property 1.
(v) By another Calderbank letter from the DoJ to CCC dated 8 March 2018, the Respondent offered to settle all of the 1st Applicant’s claim in LDLR 1 of 2012 at a compensation in the sum of $9,055,000 (less payment or allowance already released) with interest thereon payable pursuant to section 17 of LRO at a rate to be agreed or failing which, to be fixed by the Tribunal together with payment of professional remuneration reasonably incurred by the 1st Applicant and payment of the 1st Applicant’s costs to be taxed on High Court Scale, if not agreed. A copy of the letter was lodged with the Tribunal in a sealed envelope (“Enhanced Sealed Offer for the Property 1”).
(vi) The 1st Applicant did not reply to the Respondent in respect of the Enhanced Sealed Offer for the Property 1.
(vii) On 19 November 2018, this Tribunal handed down the Judgment and awarded the compensation to the 1st Applicant in respect of the Property 1 in the sum of $8,710,000 (“Compensation for the Property 1”).
(viii) By a letter from DoJ to CCC dated 20 November 2018, the Respondent requested the 1st Applicant to provide sealed copy order so as to arrange for payment of balance of compensation (ie $239,000 being $8,710,000 - $8,471,000) (“Balance of Compensation for the Property 1”). The Respondent also requested the 1st Applicant for the proposed terms regarding interest, costs and professional remuneration.
(ix) By a letter dated from CCC to DoJ dated 26 November 2018, the 1st Applicant asked the Respondent to pay for his costs of the 1st Application, to be taxed on High Court Scale, if not agreed, and to pay for reasonable remuneration of the 1st Applicant’s expert. The 1st Applicant asked the Respondent to pay for interest on the PP for the Property 1 from 20 February 2011 (ie the date immediately after the Resumption Date) to 17 December 2012 (ie the date immediately before the date of PP for the Property 1) at 6% per annum less the sum of $154.81 being interest already received. The 1st Applicant also asked the Respondent to pay for interest on the Balance of Compensation for the Property 1 from 20 February 2011 (ie the date immediately after the Resumption Date) to 19 November 2018 (ie the date of Judgment) at 6% per annum, and thereafter at 8% per annum until final payment.
(x) By a letter from DoJ to CCC dated 14 December 2018, the Respondent tendered to the 1st Applicant a cheque in the sum of $239,000 in full and final settlement of the Balance of Compensation for the Property 1. By a letter from CCC to DoJ dated 19 December 2018, the 1st Applicant declined to accept the Respondent’s cheque and returned the same to the Respondent.
(xi) After the dismissal of the leave to appeal applications of all the Applicants by the CA and by a letter from DoJ to CCC dated 12 July 2019, the Respondent asked the 1st Applicant to confirm within the next 5 days if he was prepared to accept the sum of $239,000 being the Balance of Compensation for the Property 1.
(xii) By a letter from CCC to DoJ dated 15 July 2019, the 1st Applicant insisted his position as to costs, professional remuneration, interest on the PP for the Property 1 and interest on the Balance of Compensation for the Property 1 as per CCC’s letter of 26 November 2018.
(xiii) There were further letters sent by DoJ to CCC, dated 17 July 2019, 22 July 2019 (enclosing therein another cheque in the sum of $239,000 in full and final settlement of the Balance of Compensation for the Property 1) and 23 July 2019 (setting out the Respondent’s proposed terms on costs, professional remuneration and interest).
(xiv) By a letter from CCC to DoJ dated 6 September 2019, the 1st Applicant rejected the Respondent’s proposed terms on costs, professional remuneration and interest. Again, the 1st Applicant insisted on the position as stated in CCC’s letter of 26 November 2018.
14. In respect of LDLR 2 of 2012:
(i) On 27 February 2013, the 2nd Applicant received from the Respondent an amount of $8,155,000 being provisional payment pending determination of compensation in respect of the Property 2 (“PP for the Property 2”).
(ii) The 2nd Applicant also received from the Respondent interest[3] on PP for the Property 2 from 20 February 2011 (ie the date immediately after the Resumption Date) to 27 February 2013 (ie the date of PP for the Property 2) calculated at the then 24-hour call interest rate.
(iii) By a Calderbank letter from the DoJ to CCC dated 7 November 2013, the Respondent offered to settle all of the 2nd Applicant’s claim in LDLR 2 of 2012 at a compensation in the sum of $8,493,000 (less payment or allowance already released) with interest thereon payable pursuant to section 17 of LRO at a rate to be agreed or failing which, to be fixed by the Tribunal, together with payment of professional remuneration reasonably incurred by the 2nd Applicant and payment of the 2nd Applicant’s costs to be taxed on High Court Scale, if not agreed. A copy of the letter was lodged with the Tribunal in a sealed envelope (“Sealed Offer for the Property 2”).
(iv) By a letter from CCC to DoJ dated 20 November 2013, the 2nd Applicant rejected the Sealed Offer for the Property 2.
(v) By another Calderbank letter from the DoJ to CCC dated 8 March 2018, the Respondent offered to settle all of the 2nd Applicant’s claim in LDLR 2 of 2012 at a compensation in the sum of $8,500,000 (less payment or allowance already released) with interest together with payment of professional remuneration reasonably incurred by the 2nd Applicant and payment of the 2nd Applicant’s costs to be taxed on High Court Scale, if not agreed. A copy of the letter was lodged with the Tribunal in a sealed envelope (“Enhanced Sealed Offer for the Property 2”).
(vi) The 2nd Applicant did not reply to the Respondent in respect of the Enhanced Sealed Offer for the Property 2.
(vii) On 19 November 2018, this Tribunal handed down the Judgment and awarded the compensation to the 2nd Applicant in respect of the Property 2 in the sum of $8,080,000 (“Compensation for the Property 2”).
(viii) By a letter dated from CCC to DoJ dated 26 November 2018, the 2nd Applicant asked the Respondent to pay for his costs of LDLR 2 of 2012, to be taxed on High Court Scale, if not agreed, and to pay for reasonable remuneration of the 2nd Applicant’s expert. The 2nd Applicant asked the Respondent to pay for interest on the PP for the Property 2 from 20 February 2011 (ie the date immediately after the Resumption Date) to 25 February 2013[4] (ie the date immediately before the date of the PP for the Property 2) at 6% per annum less interest already received.
(ix) By a letter from DoJ to CCC dated 13 December 2018, the Respondent demanded from the 2nd Applicant a refund in the sum of $75,001.52 being the excess of compensation in the sum of $75,000 plus interest repayable (calculated at the 24-hour call interest rate).
(x) After the dismissal of the leave to appeal applications of all the Applicants by the CA and by a letter from CCC to DoJ dated 16 July 2019, the 2nd Applicant insisted his same position as to interest on the PP for the Property 2, costs and professional remuneration.
(xi) There were two further letters, namely a letter from DoJ to CCC dated 17 July 2019, and a letter from CCC to DoJ dated 6 September 2019 (maintaining the same position as per CCC’s letter of 26 November 2018).
15. In respect of LDLR 3 of 2012:
(i) On 6 December 2012, the 3rd Applicant received from the Respondent an amount of $9,834,000 being provisional payment pending determination of compensation in respect of the Property 3 (“PP for the Property 3”).
(ii) The 3rd Applicant also received from the Respondent an amount of $176.49 being interest on PP for the Property 3 calculated at the then 24-hour call interest rate.
(iii) By a Calderbank letter from DoJ to CCC dated 7 November 2013, the Respondent offered to settle all of the 3rd Applicant’s claim in LDLR 3 of 2012 at a compensation in the sum of $10,283,000 (less payment or allowance already released) with interest thereon payable pursuant to section 17 of LRO at a rate to be agreed or failing which, to be fixed by the Tribunal, together with payment of professional remuneration reasonably incurred by the 3rd Applicant and payment of the 3rd Applicant’s costs to be taxed on High Court Scale, if not agreed. A copy of the letter was lodged with the Tribunal in a sealed envelope (“Sealed Offer for the Property 3”). By a letter from CCC to DoJ dated 20 November 2013, the 3rd Applicant rejected the Sealed Offer for the Property 3.
(iv) By another Calderbank letter from the DoJ to CCC dated 8 March 2018, the Respondent offered to settle all of the 3rd Applicant’s claim in LDLR 3 of 2012 at a compensation in the sum of $10,466,000 (less payment or allowance already released) with interest together with payment of professional remuneration reasonably incurred by the 3rd Applicant and payment of the 3rd Applicant’s costs to be taxed on High Court Scale, if not agreed. A copy of the letter was lodged with the Tribunal in a sealed envelope (“Enhanced Sealed Offer for the Property 3”).
(v) The 3rd Applicant did not reply to the Respondent in respect of the Enhanced Sealed Offer for the Property 3.
(vi) On 19 November 2018, this Tribunal handed down the Judgment and awarded the compensation to the 3rd Applicant in respect of the Property 3 in the sum of $10,070,000 (“Compensation for the Property 3”).
(vii) By a letter from DoJ to CCC dated 20 November 2018, the Respondent requested the 3rd Applicant for the sealed copy order so as to arrange for the payment of balance of compensation (ie $236,000 being $10,070,000 - $9,834,000) (“Balance of Compensation for the Property 3”).
(viii) By a letter dated from CCC to DoJ dated 26 November 2018, the 3rd Applicant asked the Respondent to pay for his costs of LDLR 3 of 2012, to be taxed on High Court Scale, if not agreed, and to pay for reasonable remuneration of the 3rd Applicant’s expert. The 3rd Applicant asked the Respondent to pay for interest on PP for the Property 3 from 20 February 2011 (ie the date immediately after the Resumption Date) to 5 December 2012 at 6% per annum less the sum of $176.49 being interest already received. The 3rd Applicant also asked the Respondent to pay for interest on the Balance of Compensation for the Property 3 from 20 February 2011 (ie the date immediately after the Resumption Date) to 19 November 2018 (ie the date of Judgment) at 6% per annum, and thereafter at 8% per annum until final payment.
(ix) By a letter from DoJ to CCC dated 14 December 2018, the respondent tendered to the 3rd Applicant a cheque in the sum of $236,000 in full and final settlement of the Balance of Compensation for the Property 3.
(x) After the dismissal of the leave to appeal applications of all the Applicants by the CA and by a letter from DoJ to CCC dated 12 July 2019, the Respondent asked the 3rd Applicant to confirm within the next 5 days if he was prepared to accept the sum of $236,000 being the Balance of Compensation for the Property 3.
(xi) By a letter from CCC to DoJ dated 15 July 2019, the 3rd Applicant insisted his position as to costs, professional remuneration, interest on the PP for the Property 3 and interest on the Balance of Compensation for the Property 3 as per CCC’s letter of 26 November 2018.
(xii) There were further letters sent by DoJ to CCC, dated 17 July 2019, 22 July 2019 (enclosing therein another cheque in the sum of $236,000 in full and final settlement of the Balance of Compensation for the Property 3) and 23 July 2019 (setting out the Respondent’s proposed terms on costs, professional remuneration and interest).
(xiii) By a letter from CCC to DoJ dated 6 September 2019, the 3rd Applicant rejected the Respondent’s proposed terms on costs, professional remuneration and interest. Again, the 3rd Applicant insisted on their position as stated in CCC’s letter of 26 November 2018.
D. DISCUSSION
D.1 Issue of interest
16. In reliance on the Court of Appeal case Waddington Ltd v Chan Chun Hoo Thomas & Ors, CACV10/2014 (20 May 2016) at paras 172-186 and recently applied in Snowland Limited v Director of Lands, LDLR2/2014 (31 March 2017) at para 12, Mr Chow for the Applicants submitted that for the issue of interest, the default position that should apply in the land resumption proceedings is that (i) the pre-judgment interest rate should be the norm of 1% above the HSBC’s prevailing best lending rate (6%[5]); and (ii) the post-judgment rate be the prevailing judgment rate.
17. With respect, we do not entirely agree with Mr Chow’s description of “default position” as the Tribunal shall maintain a very wide though not unfettered discretion on the question of interest.
18. Nonetheless, Mr Ng for the Respondent submitted[6] that in respect of LDLR 1 of 2012 and LDLR 3 of 2012, the Respondent is prepared to pay interest on both the provisional payments and the balances of compensation at the rate of Prime + 1% from 20 February 2011 (ie the date immediately after the Resumption Date) up to 7 November 2013 (ie the date of Sealed Offers for the Properties 1 and 3). If that is the present stance of the Respondent, we consider that the same stance for all the 3 proceedings shall also be taken by the Respondent at the time of making the Sealed Offers (ie 7 November 2013) and Enhanced Sealed Offers (ie 8 March 2018) for the Subject Properties. Based on Mr Ng’s submission or indeed concession, we exercise the discretion to fix the interest at the rate of 6% per annum (almost the same as Prime + 1%) from 20 February 2011 onward pursuant to section 17(3A) of the LRO.
19. Indeed, the most important argument of Mr Chow for the Applicants is that all the Calderbank offers were made on the condition that the Applicants shall forgo the interest on the respective provisional payments for the Subject Properties from the Resumption Date up to the respective dates of the provisional payments save the interest already received.
20. According to the respective Calderbank letters from DoJ, the Respondent only offered to pay the respective compensations (less payment or allowance already released) with interest thereon payable pursuant to section 17 of the LRO at a rate to be agreed or failing which, to be fixed by the Tribunal, together with professional remuneration, costs etc. The interpretation of the Tribunal is that the Respondent just offered to pay interest on the respective balances of the compensation under section 17 of the LRO but failed to or did not offer to pay the interest on the respective provisional payments for the Subject Properties save the lowest of the interest rates paid on deposit at 24 hours’ call[7] as required by section 16A(1A) of the LRO. In our view, the Respondent fails to take into account and the Applicants are not obliged to forgo such interest on the respective provisional payments.
21. Alternatively, we consider that the Respondent may simply offer in the respective Calderbank letters to pay the interest on both the respective provisional payments and the respective Balances of the Compensation (but not just the respective Balances of the Compensation) to be agreed by the parties, failing which to be fixed by the Tribunal pursuant to section 17 of the LRO.
22. To conclude, we decide that the Respondent is liable to pay interest at the rate of 6% per annum on the respective provisional payments from 20 February 2011 to the date immediately prior to the respective dates of the provisional payments for the Subject Properties to the 1st to 3rd Applicants. For the interest thereafter, it will be discussed in the latter part of the Decision.
D.2 Whether the Sealed Offers and Enhanced Sealed Offers beat the respective awards of the Judgment?
23. As Mr Ng for the Respondent mainly argued that the Applicants are unreasonable in not accepting the respective Sealed Offers and Enhanced Sealed Offers, it is very important to determine the above question. In order to determine this question, the actual amounts of interest accrued as at the respective dates of the Sealed Offers and Enhanced Sealed Offers have to be calculated. Mr Chow for the Applicants was very helpful to do the relevant and tedious calculations of interest as per para 18 of his written submission dated 31 October 2019. We simply accept the calculations made by Mr Chow for the Applicants in his written submission as it is not contested by Mr Ng in his reply submission dated 21 November 2019 and supplemental submission dated 3 April 2020. The total amounts (ie the Compensations plus the interest calculated) payable to the Applicants are higher than the amounts in the Sealed Offers and the Enhanced Sealed Offers. We therefore find that the Sealed Offers and the Enhanced Sealed Offers made by the Respondent fail to beat the respective awards of the Judgment after taking into account the interest as aforesaid.
24. The Tribunal thus rejects the main submission of Mr Ng for the Respondent that the Applicants are unreasonable in not accepting these offers. It follows that the Respondent shall also be liable to the interest of 6% per annum on the respective Balances of the Compensation (ie $239,000 and $236,000) from the Resumption Date to the date immediately prior to the date of Judgment (ie from 20 February 2011 to 18 November 2018) to the 1st and 3rd Applicants. For the interest after Judgment, we agree that the Respondent shall pay the interest at judgment rate until full payments of the respective Balance of the Compensations made on 14 December 2018.
D.3 Issue of costs
25. Based on the compensation approach as agreed by the parties, we consider that in general, the Respondent shall pay costs to the Applicants subject to whether there is any “special reason” to depart from the general rule which may only exist “where wasted or unnecessary costs have been incurred for procedural reasons as a result of the conduct of the claimant (eg abandoned issues, unnecessary adjournments, or failure to comply with directions of the Tribunal)” or “where the Tribunal can readily identify a situation in which the claimant’s conduct of, or in relation to, the proceedings has led to an obvious and substantial escalation in the costs over and above those costs which it was reasonable for the claimant to incur in vindication of his right to compensation”[8].
26. Mr Ng for the Respondent contended that the main issue raised by all the Applicants was whether the Subject Properties had redevelopment potential and that this issue took up most of the length and costs, if not all, of the proceedings. It was improper and unreasonable for the Applicants to pursue this issue, and to engage their expert in preparing rounds of expert reports mainly on this issue, which necessitated the unnecessary preparation of rounds of reports by the Respondent’s expert, and the unnecessary preparation of a joint expert statement, and unduly prolonged the length and increased the costs of the trial.
27. With respect, we disagree with Mr Ng’s submission. We consider that the disparity between the Applicants’ claim and the final award alone bears little significance and that the great disparity in the present case only reflects the importance of the issue of redevelopment potential. The Applicants are justified to raise all legitimate arguments to advance their cases though ultimately not accepted by the Tribunal and by the CA upon appeal.
28. Most importantly, the Tribunal had not made any findings in the Judgment that the Applicants’ claims were ‘frivolous’ or ‘unreasonable’. The Tribunal did not rule or opine beyond finding against the Applicants’ claims for redevelopment potential reached on the normal civil standard[9].
29. Mr Ng for the Respondent also argued that as such redevelopment potential issue had been rejected in two previous judgments of Happy Enough and Cheermark, the Applicants should not have insisted on pursuing compensation on redevelopment potential and that the market value be assessed on RDV basis. We accept that we did make reference to these two judgments in the Judgment but we consider that the findings of the Tribunal in different cases with different applicants are, strictly speaking, not binding on this Tribunal especially when the said Tribunals consist of different judges and members. Hence, we are not of the view that any wasted or unnecessary costs have been incurred for procedural reasons as a result of the conduct of the Applicants and do not find any special reason to justify departure from the general rule.
E. CONCLUSION
30. In the circumstances, we conclude that the Respondent shall be liable for the costs of the proceedings including the professional remuneration and now make the order as follows:
(i) The Respondent shall pay the Applicants the professional remuneration reasonably incurred, namely that of Mr Lee, expert for the Applicants with the amount to be determined by the Tribunal if not agreed;
(ii) The Respondent shall pay the 1st Applicant interest on the provisional payment ($8,471,000) from the date of resumption to the date immediately prior to the said payment (ie from 20 February 2011 to 17 December 2012) and the balance of the compensation ($239,000) from the date of resumption to the date immediately prior to the date of Judgment (ie from 20 February 2011 to 18 November 2018) at the rate of 6% per annum and giving credit to previous payments of interest received;
(iii) The Respondent shall pay the 2nd Applicant interest on the amount of the compensation awarded ($8,080,000[10]) from the date of resumption to the date immediately prior to the provisional payment (ie from 20 February 2011 to 26 February 2013) at the rate of 6% per annum and giving credit to previous payments of interest received;
(iv) The Respondent shall pay the 3rd Applicant interest on the provisional payment ($9,834,000) from the date of resumption to the date immediately prior to the said payment (ie from 20 February 2011 to 5 December 2012) and the balance of the compensation ($236,000) from the date of resumption to the date immediately prior to the date of Judgment (ie from 20 February 2011 to 18 November 2018) at the rate of 6% per annum and giving credit to previous payments of interest received;
(v) The Respondent shall pay to the 1st Applicant post-judgment interest on the balance of the compensation ($239,000) at the judgment rate from the date of Judgment to the date of payment of the said balance (ie from 19 November 2018 up to 14 December 2018);
(vi) The Respondent shall pay to the 3rd Applicant post-judgment interest on the balance of the compensation ($236,000) at the judgment rate from the date of Judgment to the date of payment of the said balance (ie from 19 November 2018 up to 14 December 2018);
(vii) The Respondent shall pay the Applicants’ costs of these proceedings (including all costs reserved together with this paper disposal application) with Certificate for Counsel, to be taxed on High Court scale on party and party basis if not agreed.
31. Lastly, the Tribunal thanks Counsel for their assistance.
| His Honour Judge S Lo |
Lawrence Pang |
| Presiding Officer |
Member |
| Lands Tribunal |
Lands Tribunal |
| Mr Tony H H Chow, instructed by Cheung, Chan & Chung, for the applicants |
| Mr Stanley Ng, instructed by the Department of Justice, for the respondent |
[1] the abbreviations used in the Judgment will be adopted in this Decision if appropriate
[2] Messrs Cheung, Chan & Chung act for all the Applicants in these proceedings LDLR 1-3/2012
[3] The Respondent did not provide the exact amount of interest in the submissions of Mr Ng for the Respondent but Mr Chow for the Applicants submitted “not more than say $200” in footnote 9 of his submission dated 31 October 2019.
[4] the date immediately before the date of the PP for the Property 2 shall be 26 February 2013 if the date of the PP for the Property 2 is 27 February 2013 as submitted by the Respondent.
[5] HSBC’s best lending rate had increased by 12.5 basis points to 5.125% on 28 September 2018 (ie, almost 2 months prior to the Judgment), but for the ease of calculation, the Applicants are content to adopt the lower figure for the whole of the period, ie 6% per annum.
[6] see para 14 and para 19(1)(a) and (3)(a) of the Respondent’s written submission dated 30 October 2019 and para 7 of the Respondent’s supplemental submission dated 3 April 2020
[7] In LDLR 1-3/2012, the respective amounts of interest paid to the Applicants are $154.81, not more than $200 and $176.49 respectively
[8] Para 29 of Purfleet Farms Ltd v Secretary of State for Transport, Local Government and the Regions [2003] 1 P & CR 20 as approved by the Court of Appeal in the Good Faith’s case
[9] See para 20 of the Judgment where the Tribunal found “[i]n such circumstances it could not be said on the balance of probabilities that the hypothetical development on any of the 3 hypothetical sites would be forthcoming within a reasonably foreseeable time scale”
[10] calculated only in respect of $8,080,000 out of the provisional payment ($8,155,000), as the 2nd Applicant shall not be entitled to interest on the excess, which is conceded by Mr Chow in his written submission.
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