PACIFIC CROWN ENTERPRISES LTD v. MAN YU ON AND OTHERS

HCMP 2846/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2846 OF 2012

(ON AN INTENDED APPEAL FROM LDCS NO. 32000 OF 2011)

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BETWEEN

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.  This is an application for leave to appeal from a decision of the Lands Tribunal (Judge Ko, Presiding Officer) refusing leave to a tenant to join as a party to proceedings under the Land (Compulsory Sale for Redevelopment) Ordinance Cap. 545 (“the Ordinance”). I shall refer to the tenant as the “Intended Party”.

2.  The Presiding Officer’s decision was given on 20 November 2012.  He refused an application for review on 30 November 2012 and an application for leave to appeal on 13 December 2012.  Detailed written judgments were given for all three decisions. 

3.  The Intended Party issued a summons for leave from this court on 19 December 2012. A statement in support was filed on the same day. 

4.  A statement in opposition was filed by the Applicant under the Ordinance (whom I shall refer to as “the Majority Owner”) on 2 January 2013.

5.  On 9 January 2013 the Intended Party asked for leave to file a statement to reply to points in the statement in opposition (in particular paras. 10 and 13), alternatively for a direction that there be an oral hearing.

6.  In our view, for the reasons set out briefly below, even without considering the points raised in paras. 10 and 13, it is clear that there is no merit in this application for leave to appeal.  Accordingly we decline to give leave to file a statement in reply, or to direct an oral hearing.

7.  Essentially the Intended Party is arguing that it should be allowed to be joined as a party in proceedings between the majority owner and minority owners for compulsory sale under the Ordinance, at the stage when the Tribunal is being asked to determine whether to make an order for compulsory sale. 

8.  In our view it is clear beyond peradventure that the Ordinance does not contemplate a tenant being involved at this stage of the proceedings.  References to “disputes” (s.4(1)) and “objections” (s.4(2)) relate to the minority owners only.  In determining an application for an order to sell, the Tribunal is prohibited from even taking into account any statutory provisions relating to the rights of any tenants whose tenancies are terminated or are sought to be terminated (s.4(3)).

9.  In our view, it is clear that it is only when the Tribunal makes an order for sale that the statutory provisions regarding tenants come into play (s.4(6)).  It was therefore premature for the Intended Party to apply to be joined at this stage of the proceedings. 

10.  As for the Intended Party’s arguments that proceedings under the Ordinance may be used as a “device” for a landlord to get rid of a tenant before the expiration of his term, this is a hypothetical argument.  In all proceedings, the Tribunal may be expected to be vigilant in ensuring that its processes are not abused by collusive actions.  No evidence has been adduced to show that there is collusion in the present case.  The Intended Party’s suggestion that there may be such evidence if it is allowed to join as a party and cross-examine the Majority Owner is clearly indicative of “fishing”.

11.  For the above reasons we consider there are no reasonable prospects of success in the intended appeal.  We refuse leave to appeal. 

(1)  Pursuant to Order 59 rule 2A(8) RHC, it is ordered that no party may request this determination to be reconsidered at an oral hearing inter partes. 

(2)  We make an order nisi that the Intended Party should pay the costs of this application to the Majority Owner. 

(3)  If there is no application to vary the costs order nisi within 14 days after the date appearing on this Judgment, the following directions shall apply:

(3.1)  the parties should seek to agree the quantum of costs;

(3.2)  if the parties are unable to agree the quantum of costs within 28 days after the date appearing on this Judgment,

(a)  the Majority Owner may lodge within 14 days thereafter a skeleton bill of costs for the purpose of a summary assessment of costs;

(b)  the Intended Party may within 14 days thereafter lodge written submissions in opposition to the skeleton bill;

(c)  the court will then make a summary assessment of costs.