DONALD DEAN BOZARTH v. AVROM GOLDBERG

LDPD 2439 OF 2009

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No. LDPD 2439 of 2009

________________________________

BETWEEN

________________________________

________________

J U D G M E N T

________________

Background

1.  The premises at “No. 8 Wong Keng Tsai Village, DD228, Lot S1158, Sai Kung, Hong Kong (including car park)” (“the Property”) wasfirst let to the Respondent by the Applicant since 1 August 2001, by a tenancy agreement dated 30 July 2001. The Applicant contended that the last tenancy agreement was for a period of 2 years from 1 August 2007 to 31 July 2009, at a monthly rent of $45,000 per month, and thereafter from 1 August 2009, the tenancy became a monthly tenancy at a rent of $45,000 per month. The Property is a 2-storey house structure with its adjoining garden, ground and a swimming pool erected over Government land held under a Government Land License under the name of “Wong Chun Kwok.”

2.  The Applicant applied to the Lands Tribunal on 19 October 2009 for recovery of possession of the Property on the ground that the Respondent had failed to pay rent/mesne profits. In the Notice of Application as amended on 9 December 2009, the Applicant claimed for the following:

(1) outstanding rent/mesne profits for the period from 1 April 2009, at the rate of $45,000 per month;

(2) outstanding rent/mesne profits for the period from 1 August 2007 to 31 March 2009 at the rate of $4,000 per month (being shortage of rents for the said period of 20 months);

(3) outstanding rent/mesne profits for the months of May 2007 and September 2007 in the total sum of $28,500 (being the value of works claimed to have been done by the Respondent for which the Applicant agreed to set off against the rent payable but the Applicant alleged that the Respondent actually had not done such works);

(4) the sum of $1,950 (being the portion of stamp duty of the tenancy agreement entered into by the parties in 2005 that was borne by the Respondent to the Applicant);

(5) the costs of the application.

3.  In summary, the Applicant applied for recovery of possession and claimed a total sum of $513,500 in outstanding rent/mesne profits for the period up to 31 December 2009, and rent/mesne profits at the rate of $45,000 per month from 1 January 2010 up to the date of recovery of possession of the Property. In addition, the Applicant claimed for the Respondent’s share of stamp duty in the sum of $1,950, and the costs of the application.

4.  The Respondent filed the Notice of Opposition on 27 October 2009, which was amended on 16 December 2009. By leave of the Tribunal at the beginning of the hearing on 22 January 2010, the re-amended Notice of Opposition was further re-amended on 26 January 2010. The Respondent raised the following grounds of opposition:

“(1) The Respondent disputes the Applicant’s title to the Property and/or the Applicant’s title to lease the Property.

(2) In or around July 2001, the Applicant represented to the Respondent that the Applicant he was the owner and/or license holder of the Property and that he had sufficient title to offer the Respondent a lease of the Property.

(3) Further, in or around 2007, the Applicant offered to sell the Property to the Respondent for around HK$3,500,000.

(4) However, during the period of time that the Respondent has been in possession of the Property, the Respondent has been disturbed by an adverse claimant. The Respondent is at risk of a claim from a person who has true or better title in relation to the Property.”

5.  In the re-amended Grounds and Particulars of Opposition filed by the Respondent, the Respondent counter-claimed for loss and damages, in the total sum of $723,409.70, as follows:

(1) The sum of $26,909.70 that has been paid by the Respondent on behalf of the Applicant, for settlement of a water bill of the Property received by the Respondent from the Hong Kong Water Authority, the reason being that the workers engaged by the Applicant had caused huge wastage of fresh water in the third quarter of 2008 resulting in the said bill;

(2) The sum of $96,500 being the reimbursement of the costs for the repair of the roof of the Property that has been spent by the Respondent; and

(3) The sum of $600,000 being the reimbursement of the costs for fixing the garden and/or the grounds of the Property that has been spent by the Respondent.

Issues

6.  The issues before the Tribunal are:

(1) what is the Applicant’s title to the Property;

(2) whether the Respondent is estopped from denying the Applicant’s title;

(3) whether there is an adverse claim from someone who has a paramount title than the Applicant;

(4) whether the Respondent owned the Applicant any rent/mesne profits, and if yes, what are the outstanding amounts and the remedies;

(5) whether the Respondent could discharge the burden of proof for the counter-claims raised by the Respondent; and

(6) the jurisdiction of the Tribunal on 2 issues: whether the Tribunal has the jurisdiction if the Applicant only holds an interest equal to or lesser than a licensee’s interest in the land over which the Property is erected; and whether the Tribunal has the jurisdiction over the counter-claims of the Respondent?

The evidence before the Tribunal

7.  The Applicant appeared for himself and has called for the evidence of two witnesses:(1) Mr. Andrew Colin SAMS, a friend of the Applicant who has known him for about 19 years; and (2) Mr. Richard Ethan LATKER, a neighbor who has assisted the Applicant to liaise with the tenant and the repairing and renovation workman regarding the repairs of the Property while the Applicant was away. This part of evidence may be more relevant when the counter-claims of the Respondent are considered. In the present case, however, their evidence is of not much use.

8.  The Applicant then gave evidence himself and produced a large bundle of documents supporting his case. The Applicant told how he came about finding the present Property some years ago when he wanted to find a quiet place to recover from a serious traffic accident in 1992 as a result of which he was paralyzed. He met the occupier of the Property, a Mr. Boucher. Mr. Boucher told the Applicant that he had obtained the right to occupy the Property from a Mr. Woo Chun Kwok (“Mr. Woo”), the license holder holding the license of the Government Land License of land of the Property from the Government because Mr. Woo had owned him some money. The occupation arrangement was therefore a settlement between Mr. Woo and Mr. Boucher. At that time, the Property was a complete mess. He agreed with Mr. Boucher to lease the Property from him with an option to buy.

9.  After his occupation in the Property for some years, the Applicant then disputed with Mr. Boucher over the Property as a result of which the Applicant took out a High Court action against Mr. Boucher. They had a settlement in November 1997 as Mr. Boucher agreed to assign his interest in the Property to the Applicant. In page 65 of the trial bundle, the Applicant produced a copy of the said Assignment, which said that “the parties (i.e. Trevor Ernest Boucher and Donald Dean Bozarth) hereto have come to settlement in the Action (i.e. High Court Action No. A8974 and 1995) and by Order of Master Chung dated 20^th August, 1997 (hereinafter called the Order) the Assignor (i.e. Trevor Ernest Boucher) was ordered to assign or transfer whatever title rights interest in the Premises to the Assignee (i.e. Donald Dean Bozarth)”. In this Assignment (trial bundle, pages 65-69), the Property was described as “Lot 1158 in Demarcation District No. 228 off Fei Ngo Shan Road, Wong Keng Tsai, Sai Kung, Hong Kong.

10.  On the other hand, I find that in the rates demand note (trial bundle, pages 70-74 & 77) issued by the Rating & Valuation Department, the Property was described as “DD 228 GLL S11587 & S11871, Off Fei Ngo Shan Rd., Wong Keng Tsai” whereas in the GLL (Government Land License) Fee demand notes (trial bundle, pages 76, 78 & 79) issued by the HKSAR Government, it has a departmental reference of “RAGLL S 11871”. So, although the Property is described in the applicant’s Application (Form 22) as bearing a lot number of “DD 228, Lot S1158”, I do not know really know whether that should be more properly described as “DD228, GLL S11587”, following the description of Rating & Valuation Department’s description.

11.  The Applicant said that he knew Mr. Woo Chun Kwok (“Mr. Woo”), the license holder of the Government land over which the Property was erected. He informed Mr. Woo of the assignment of interests between Mr. Boucher and the Applicant. Both agreed that Mr. Woo would still “own” the license whilst the Applicant would “own” the Property and had to pay the Government rent, tax and rates on the Property. After assignment of the interest from Mr. Boucher and obtaining the oral assurance from Mr. Woo, the Applicant said that he then spent over a million in Hong Kong dollars in renovating the Property. He has since also been paying the Government rent, and the rates of the Property.

12.  The Applicant said that he had since the Assignment been occupying the Property for some more years. Since he moved out of Hong Kong, he then let out the Property to the Respondent. The background was given to the Respondent before the parties entered into tenancy agreements, the first one of which was dated 31 July 2001. There were several tenancy agreements between the parties:

(1) tenancy agreement dated 30 July 2001, signed by both parties and stamped – for a term of 2 years from 1 August 2001 to 31 July 2003 at a monthly rent of $45,000;

(2) tenancy agreement dated 22 July 2005, signed by both parties and stamped – for a term of 2 years from 1 August 2005 to 31 July 2007 at a monthly rent of $41,000; and

(3) tenancy agreement dated 3 July 2007, not yet signed by both parties – for a term of 2 years from 1 August 2007 to 31 July 2009 at a monthly rent of $45,000

13.  The Applicant submitted that the terms of the third tenancy had been agreed by the parties. Therefore, whether the Respondent signed the agreement or not, he should be bound by that agreement. The Respondent could not choose to continue residing in the Property but just paid the lesser rent of $41,000 despite of the parties’ Agreement to have the rent increased to $45,000 from 1 August 2007.

14.  In responding to the Respondent’s Notice of Opposition, the Applicant said that although he stated himself as “the landlord” of the property while the Respondent as “the tenant”, he made known to the fact that he was personally not the holder of the license to the Property, or more precisely, he was not the license holder of the land over which the structure of the Property was erected, the adjoining garden and ground, as well as the land over which the swimming pool was erected (collectively referred to as “the Land”). For this reason, he put a provision in the Tenancy Agreements of 2001, 2005 and 2007, a Clause 4(h) which stated,

“In the event that the Tenant is evicted by the Government during the term of the Tenancy, the Landlord would compensate the Tenant a sum equal to the amount of two months rental, provided that the notice to vacate be two months or less. In the event that the notice given is more than two months, then the Landlord will compensate the Tenant a sum equal to one month’s rental. In either case, the Tenant would also receive the refund of the two months security deposit (as is standard) subject to the other terms and conditions of the agreement.”

15.  In response to the ground that an “adverse claimant”, a Mr. Woo, has disturbed the Respondent the Applicant gave as evidence as follows:

(1) The Respondent did notify the Applicant in March 2003 that a letter was placed into the letterbox of the Property from a Mr. Woo.

(2) The Applicant said that after being notified of this incident, the Applicant met with Mr. Woo twice in Australia to sort out any problem, which may arise. Mr. Woo had told him that he placed the “To whom it may concern” letter in the letterbox of the Property because he thought that squatters might have occupied the Property. During the second meeting with Mr. Woo, the Applicant produced the Assignment Agreement between the Applicant and Mr. Boucher during which Mr. Woo was satisfied that everything was in order. The Applicant also said that Mr. Woo had agreed that the Applicant could continue to receive the rent from the Property.

(3) The Applicant notified the Respondent of these meetings with Mr. Woo in Australia, and until receiving the Notice of Opposition in October 2009, the incident of receiving a letter in March 2003 was not brought up by the Respondent again during these six and a half years.

(4) The Applicant pointed out that the Respondent never received any more communication or interference from Mr. Woo or from anyone else purporting to have a better title to the Property or the Land than the Applicant.

16.  In response to the grounds raised in the Notice of Opposition that the Applicant had failed to provide a satisfactory main water supply to the Property, the Applicant denied the allegation. The Applicant replied that there was no verbal assurance or provision in the Tenancy Agreement of 2001 that there would be connection to the Government’s water mains. The Applicant had applied for such service, but until such time that the Government decided to extend the service, there was nothing the Applicant could do.

17.  Further, the Applicant alleged that either the Respondent had failed to give him written notice of the complaints that the Respondent stated in the Notice of Opposition, or the Applicant had already taken all necessary steps to maintain the Property. The Applicant said that he had last inspected the Property in October 2007. He further said in his submitted statement (page 15 of the trial bundle),

“Mr. Lambert went with the Applicant throughout the house, and said the leaks had long since been repaired and there had been no more leaks during heavy storms or typhoons. He then showed the Applicant where the couple of leaks had been.”

18.  The Applicant contended that the Respondent’s failure to pay the proper rent in the Tenancy Agreement had led to enormous loss and damage to Applicant and his family as this Tenancy Agreement was the Applicant’s sole source of income. Because of the loss of rental income, the Applicant was forced to relocate to the Philippines.

19.  The Respondent is legally represented. He gave evidence himself. In particular, he claimed that in March 2003, he had received a hand-written letter from a C.K. Woo as “an adverse claimant”, enquiring about his occupation and threatening to take action to vacate the property. The whole letter reads as follows,

“To whom it may concern

Dear Sir/Madam,

I am the permit holder of this property, and I had asked Mr. T. Boucher to look after it for me. However, Mr. Boucher now is not living in that property. Therefore, please contact me and let me know the situation. Or, I shall take action to vacate the property. Thanks very much for your kind attention.

Yours,

CK. Woo

21/03/03

My correspondence:

Woo Chun Kwok,

273 River Hills Road, Eagleby,

Queensland, Australia, 4207

Tel. & Fax No. 617-32873268

The Applicant’s title to the Property

20.  I find the Applicant to be a trustworthy witness. He plainly gave a full account of the history of the Property since he went about searching for a quiet property after his tragic accident in the early 1990’s. He gave all the evidence that he had gathered from Mr. Boucher, who first rented the Property to him and then assigned all the interests to him as a condition of a settlement of a High Court Action between him and Mr. Boucher.

21.  There is no doubt that a Mr. Woo Chun Kwok holds the Government Land License of the Land. Since Mr. Boucher cannot hold a larger interest in the Land than Mr. Woo, so does the Applicant. In the circumstances, I find that the Applicant is a sub-licensee of the portion of Government Land over which the Property is erected.

22.  Under the grounds Nos. 1 and 2 of the amended Notice of Opposition (see paragraph 2 of this Judgment), the Respondent basically alleged either that the Applicant’s title was bad or that the Respondent had no sufficient title to grant the Respondent a lease of the Property.

23.  However, it is trite law that the Respondent as “the tenant” cannot challenge the title of the Applicant as “the landlord”. In Hill and Redman’s Law of Landlord and Tenant, an authority submitted by the counsel for the Respondent, it read,

“The application of estoppels to the law of landlord and tenant may be subsumed under two related heads. First, a tenant is prevented or stopped from denying the right of his landlord to grant the lease, and conversely, a landlord is prevented or stopped from denying the title of his tenancy under the lease. Second, a person who has no legal estate in the land may nevertheless purport to grant a lease of that land; in that event, there is created between them and their respective successors in title just as if the landlord had a sufficient interest to grant the lease. It does not bind strangers to the transactions. The effect of the two principles is that a tenant cannot generally avoid his liability on the covenants in the lease, such as the liability to pay rent or to keep the premises in proper repair, by asserting that the landlord had no title to grant lease. However, the tenant can claim that he is not liable on the ground that he has been disturbed by someone who has a better title than his landlord on the ground that his landlord’s title has ended.”

24.  I find from the evidence, on the balance of probabilities, that it is more likely than not that the Applicant had disclosed the fact that he got the consent from the license holder of the land, Mr. Woo, to lease the Property to the Respondent before they entered the first tenancy agreement starting from 1 August 2001.

25.  I hold in the present case that the Respondent is estopped from denying the right of the Applicant as “the landlord”, who is entitled to receive the rent and to enforce the covenants of “the tenancy”, including forfeiture. Therefore, I dismiss the grounds Nos. 1 and 2 of the Respondent.

Whether there is an adverse claim from someone who has abetter title

26.  Apart from disputing the Applicant’s title to the Property, the Respondent claims that an adverse claimant has disturbed him. That is, the Respondent is at risk of a claim from a person who has true or better title relation to the Property.

27.  The Respondent submitted that following receipt of the said letter from Mr. Woo, “the Respondent has made numerous attempts to find out more about the basis for the Applicant’s claims to be the owner and/or license holder of the Property and that he had sufficient title to lease the Property to the Applicant.” However, the Respondent alleged that neither the Applicant nor anyone else has been able to provide further information.

28.  On the other hand, the Applicant gave evidence that after the Applicant met Mr. Woo twice in Australia to explain to him the position of assignment of interest between Mr. Boucher and the Applicant, and the acceptance by Mr. Woo of the assignment, the Applicant had notified the situation to the Respondent.

29.  I find that the Respondent had actually signed the second tenancy agreement on 22 July 2005 for a term of 2 years from 1 August 2005. So, it is unreasonable that if the Respondent had not received any assurance from the Applicant that the “adverse claimant” was satisfied of the situation, the Respondent would not have renewed the tenancy again in July 2005. Further, the Respondent could not adduce any other evidence that the said Mr. Woo, or any person who purported to have a better title to the Land and the Property than the Applicant, had contacted the Respondent again. To be fair to the Respondent, it has never been his case that he himself had a better title than the Applicant. Hence, the precedent that the tenant was not estopped from asserting that he himself had the better title does not assist him. This distinguishes the present case from Tai Fat Development (Holding) Co. Ltd. v Incorporated Owners of Gold King Industrial Building [2007] 4 HKLRD 400. Therefore, I do not find the Respondent successful in this limb of his opposition.

Jurisdiction of the Tribunal under Cap. 17

30.  The jurisdiction of this Tribunal is laid down under section 8 of the Lands Tribunal Ordinance, Cap. 17, an extract of which are as follows:

“(6) The Tribunal shall have jurisdiction to make an order for the recovery of possession of any premises or for ejectment of a tenant from those premises, whether under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise.

(7) (Repealed 3 of 2008 s. 36)

(8) The Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) ordinance (Cap. &) or otherwise, and in any application for a new tenancy under Part IV of that Ordinance, whether or not it grants any such application, to make one or more of the following orders-

(a) an order for the payment of rent and mesne profits (including interim payments of rent and mesne profits);

(b) an order for the payment of any other money which is due under the tenancy or sub-tenancy;

(c) an order for the disposal of any property left in the premises concerned by the tenant or sub-tenant; and

(d) an order for the payment of damages in respect of any breach of a condition of the tenancy or sub-tenancy.”

31.  In all instances of the provisions of the Ordinance (as shown above), the jurisdiction only relate to (i) the application for the recovery of possession of any premises that has been held by the Respondent (as a tenant) from the Applicant (as a landlord) under a tenancy, “whether under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise”, or (ii) for the ejectment of a tenant from those premises. Therefore, under the above provisions, the Tribunal does not have any jurisdiction to deal with recovery of possession of any premises from a licensee or, for instance, ejectment of a trespasser. It is also trite law that a licensee is not a tenant.

32.  I have decided above that I have accepted the Applicant’s evidence that by an assignment of interest, he has got the interest of Mr. Boucher, who in turn sub-licensed the Land (and hence the Property) from Mr. Woo. Hence, the Applicant holds a sub-licensee’s interest in the Land (and hence the Property). It is clear from the above that this Tribunal does not have the jurisdiction to deal with the Applicant’s application if the Applicant only has a sub-licensee’s interest in the land over which the structure of the Property is erected, and hence a sub-licensee’s interest in the Property. Although the parties termed themselves “the landlord” and “the tenant” in the tenancy agreements they entered into, the fact is clear that the Applicant does not hold any leasehold interest in the Land, he could not be treated as the tenant of the Land (and hence the tenant of the Property), in the legal sense of the word. Therefore, there is no jurisdiction of this Tribunal to determine the subject case, including the claim for recovery of possession of the Property, the claim for outstanding rent/mesne profits and other sums.

Claims by the Applicant

33.  I have set out in paragraph 2 above the claims for the outstanding rent/mesne profits and other sums. Since I was not aware of the full facts of the case until the hearing was over, I have heard all the evidence adduced by both parties regarding the claims by the Applicant.

34.  The Applicant gave evidence himself in respect of the payment of rent by the Respondent. The following few points are crucial:

(1) It is common ground that the parties have started the “landlord” and “tenant” relationship since 2001;

(2) It is also common ground that the Respondent has only paid rent/mesne profits to the Applicant’s bank account;

(3) The Respondent did not deny that he had not paid any rent to the Applicant for the period from 1 April 2009;

(4) The Respondent did not deny that he had paid his portion of the stamp duty for the tenancy agreement in 2005.

35.  In fact, the Respondent only raised disputes on two of the sums. Firstly, the Respondent said that (1) the rent from 1 August 2007 remained at $41,000 since he had not agreed or signed the new tenancy; (2) the Applicant agreed the set off amount of $28,500 and hence, the Respondent should not be asked to bear this sum as outstanding rent.

36.  I find that apart from the issues arising from the title dispute of the Property, the jurisdiction of this Tribunal on the application and the counter-claims by the Respondent, all of which I have dealt with elsewhere in this Judgment under different sections, there is in fact no other justification raised by the Respondent for not paying the outstanding rent/mesne profits other than the two reasons cited in the last paragraph.

37.  I decide against the Applicant in respect of the amount of monthly rent since 1 August 2007. I agree with the Respondent that since the Respondent had not signed the draft Tenancy Agreement and had never paid the said rent of $45,000 per month from 1 August 2007, the Applicant could not claim for the sum of $45,000 as rent. Although there is written evidence (the parties’ email) that the Respondent did receive the draft Tenancy Agreement, the Respondent only confirmed that he would be considering the Agreement. Since there are conflicting evidence from both sides as to whether the terms of the new tenancy from 1 August 2007 has been agreed, I decide in favour of the Respondent as the Applicant requires more evidence than his mere assertion. However, even if there was no agreement for the rent after 1 August 2007, the Applicant is still entitled to receive the previous rent as the Respondent is assumed, by his conduct of staying in the Property after the expiration of the previous tenancy on 31 July 2007, to have agreed to continue renting the Property on a monthly basis, at the previous rent of $41,000 per month.

38.  For the set off sum of $28,500, I agree with the Applicant that although there was initial agreement, the Respondent has not discharged his obligation to substantiate the expenditure and the completion of the works for the Applicant. The Respondent is required to pay back the said sum to the Applicant.

39.  Hence, if not because of the problem of jurisdiction that I have discussed and decided above, I find that the Respondent owe the Applicant the following:-

(1) outstanding rent and mesne profits at the rate of $41,000 per month from 1 April 20009 to 31 December 2009 and the same rate of $41,000 per month from 1 January 2010 to the date of delivery of vacant possession to the Applicant;

(2) the set off amount of $28,500; and

(3) the portion of stamp duty of $1,950 that should be borne by the Respondent.

Grounds of opposition raised by the Respondent

40.  The Respondent stated 4 grounds in the re-amended notice of opposition. However, the counsel for the Respondent failed to explain how an offer by the Applicant to sell the Property to the Respondent, even if it can be substantiated as a matter of fact, could be a ground for opposing the application. Of the 3 remaining grounds, I have already found that the Respondent as the tenant cannot dispute the title of the Applicant as the landlord for reasons stated above in this Judgment; and that an adverse claimant as has not disturbed the Respondent alleged. Therefore, if not because there is no jurisdiction to determine the application by the Applicant, all the grounds of opposition would fail.

Counter-claim by the Respondent

41.  The Respondent realized that the Tribunal does not have any jurisdiction to deal with counter-claim by a tenant, for example, in a possession application case. Therefore, the Respondent applied for an interlocutory application before the trial of this case commenced and sought to have this case transferred to the District Court mainly on the ground that after amending the Notice of Opposition, the Respondent discovered that he did not have the jurisdiction to claim such counter-claims in this case. The Applicant objected to this interlocutory application. After hearing both parties, I decided not to transfer the case to the District Court. I have already given orally my reasons for the decision for which I shall not repeat here.

42.  Therefore, although the Respondent raised a number of counter-claims in the re-amended Notice of Opposition, I am not going to deal with this any further in this Judgment as there is also no jurisdiction of this Tribunal to determine these counter-claims.

43.  It has also been held that although a property may be in disrepairs, and even if the tenant considered that it is the obligation of the landlord to carry out the repairs, in law, the tenant cannot use this as a sufficient ground for withholding the payment of rent forthwith. The court has held that the landlord could still apply for recovery of possession on the ground that the tenancy is forfeited for non-payment of rent by the tenant. So, in the present case, regardless of whether the Respondent will succeed in his counter-claims, this cannot be a sufficient ground on its own for opposing the application for possession by the Applicant.

Costs of the proceedings

44.  I have decided against the Applicant only on the ground that there is no jurisdiction to determine his application in this Tribunal. Basically, because of the rather unique nature of the Applicant’s title to the land and hence the Property and the jurisdiction of the Tribunal as laid down under the Lands Tribunal Ordinance. However, I find against the Respondent for all the grounds he cited as valid grounds for opposing the applicant’s Application.

45.  Therefore, I decide that it is so unusual in the present case that costs should not, as usual, follow the `events. In the circumstances, I shall make a costs order nisi that there be no order as to costs; and the costs order shall become absolute if neither party applies to vary the order within 14 days.

Orders

46.  I therefore make the followings orders: -

(1) The Applicant’s application dated 19 October 2009 as amended on 9 December 2009 be dismissed;

(2) The Respondent’s counter-claim as set out in the Respondent’s Notice of Opposition dated 27 October 2009 as amended on 16 December 2009 and re-amended on 26 January 2010 be dismissed;

(3) Costs order nisi: there be no order as to costs; if no application is made within 14 days from today, the costs order shall become absolute.