Tai Tung Industrial Equipment Limited v. Director of Lands

IN THE LANDS TRIBUNAL OF HONG KONG

Miscellaneous Reference Case No. 31 of 1995

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REASONS FOR DECISION

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1. This is an application for an order to enlarge time under section 10(2)(d) of the Lands Tribunal Ordinance, Cap. 17 to serve notice of claim under section 12 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127.

2. The facts in this case are not disputed. The applicant is the Crown Lessee and Grantee of Tsing Yi Town Lot No. 68 under a New Grant No. 5428 which includes provision for marine access. Sometime in 1991, it became apparent that the applicant's said marine access was to be lost as a result of some proposed public work. Thereafter, during negotiations with the respondent for various lease modifications, consultants for the applicant mentioned from time to time that the level of premium for the lease modifications should be off-set against the compensation that would otherwise have to be paid for the loss of marine access or else the right to compensation is reserved.

3. On 20th November 1992, pursuant to section 9 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127 the respondent published in the Gazette a notice specifying that claim for injurious affection on account of the said proposed public work must be delivered to the respondent within one year thereafter. No claim was delivered by the applicant during that one year period. During the following two years, the parties were locked in dispute before the High Court and the Court of Appeal over whether the applicant had made a claim within the meaning of section 12 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127. As it turned out, the Court of Appeal decided against the applicant. Hence the applicant seeks to invoke section 10(2)(d) of the Lands Tribunal Ordinance, Cap. 17 for leave to deliver a claim out of time.

4. The gist of the applicant's case put by Miss Eu Q.C. is that the applicant and its advisers were at the material time under the misapprehension that a claim within the meaning of section 12 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127 had been delivered, that the respondent were aware of the applicant's intention to seek compensation for loss of the marine access, that failure to deliver a claim within the meaning of section 12 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127 in time would not prejudice the respondent, and that therefore time should be enlarged to enable the applicant to cure its omission.

5. Mr. Cooney for the respondent concedes that the applicant is qualified as a claimant under section 12 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127 but for the failure to deliver a valid written claim within the time specified in the said Gazette notice. Before the Tribunal can enlarge the time for delivering claim, the applicant must satisfy the Tribunal that there is good cause for such an order. Mr. Cooney says that the applicant has not demonstrated good cause.

6. Section 10(2)(d) of the Lands Tribunal Ordinance, Cap. 17 states as follows:-

"The Tribunal may -

(d) for good cause, enlarge the time, whether or not that time has already expired, fixed by any Ordinance:

(i) for the giving of any notice, either before or after any proceedings have commenced...."

7. The meaning and effect of this provision has been considered in depth by H.H. Judge Cruden in Chan Sik Cheung v. Director of Lands (1995) 3 HKC 199. I do not think there is anything more useful that I can add to the analysis by the learned judge except to point out, as I did to Miss Eu, that the word "fixed" in the provision may be detrimental to the applicant's case. Miss Eu says that time was still fixed by the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127 even though discretion was given to the Director of Lands to specify the time within which to deliver a claim. Mr. Cooney, quite fairly, confirmed that no point would be taken on questions of jurisdiction or power of the Tribunal to grant extension of time. The only issue taken by the respondent is that the applicant has not shown good cause for enlargement of time. In the premises, I proceeded on the basis that the Tribunal does have power to enlarge time in this particular case, subject to the requirement of good cause.

8. Miss Eu referred me to a number of authorities touching upon delay, extension of time or the expression "good cause". These cases do not elicit the test for good cause. At the end of the day, Miss Eu says, each case of this nature must be considered and decided on its own merits.

9. In the absence of clear guidance from higher authorities, I think the safest course is to adopt the plain literal approach. The wording of section 10(2)(d) of the Lands Tribunal Ordinance, Cap. 17 requires "good cause" to be shown. It is clear that "cause" refers to the applicant's. This, without more, does not require the Tribunal to consider other factors such as prejudice to any other party. The circumstances of or connected with the respondent are irrelevant. However, "good cause" may carry two contexts. One is "good cause" for the delay. The other is "good cause" for the applicant in general. One would have thought that if an applicant was under some physical or legal disability at the material time that would be "good cause" for delay justifying extension of time.

10. "Good cause" in general may mean that if the applicant's cause of action is sound, then the claim should not be denied on a technicality. To complete the argument, in view of section 10(2)(d) of the Lands Tribunal Ordinance, Cap. 17, the time specified for delivering claim under section 12 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127 must be regarded as a technicality.

11. I am inclined to hold that "good cause" should be taken in the general sense. In this respect, there is little doubt that the applicant's claim for injurious affection is a sound one. Should the claim become contested, the applicant will almost certainly succeed before the Tribunal on the question of liability. This being so, there is good cause for the Tribunal to extend time for the applicant to deliver the claim.

12. If the narrow interpretation of "good cause" is to be taken, I must ascertain the cause for the delay. There is no doubt that the question of compensation for loss of the said marine access was in the mind of the applicant and broached with the respondent. This was raised as early as January 1992 in a letter dated 2nd January 1992 by consultants for the applicant to the District Lands Office. The penultimate paragraph of that letter reads:

"We would anticipate that there may be other issues which flow from this application, but we believe that if Government was able to see its way to meeting our Clients requirements in regard to the four main heads outlined above and the level of premium took due cognizance of the compensation that would otherwise have to be paid for the loss of marine rights there is every chance of reaching a negotiated settlement acceptable to both sides."

There is nothing to indicate that the consultants for the applicant in their dealings with the District Lands Office departed from the stance advocated in the above quoted paragraph. It is unfortunate that a valid written claim was not delivered within the time specified for doing so when the consultants were having charge of the matter for the applicant.

13. By early 1994 when the District Lands Office pointed out to the consultants that time for delivering claim had just expired, the applicant could have approached the Tribunal for enlargement of time as it does now. However, obviously again relying on professional advice, applicant took the matter to the High Court and beyond on another lead which is now a dead end. This resulted in a two year delay.

14. The question boils down to whether the applicant should be penalized for relying on professional agents. In PT Bank Pembangunan Indonesia (Persero) v. Tan Eddy Tansil, Civil Appeals No. 171 & 190 of 1995, the Court of Appeal, applying established English and Hong Kong authorities, unanimously held that a client should not suffer for the mistake of his counsel or solicitor if no injustice would result to the other side. Here, I cannot see why a distinction should be drawn between one category of professional from another.

15. As to injustice to the respondent, the reclamation proposal had been authorized before notice was gazetted under section 9 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127. The reclamation can proceed irrespective of whether a claim is delivered in response to the section 9 gazette notice. According to section 13 of the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127, the delivery of a written claim triggers off a negotiation process. Receipt of the claim does not enable the respondent to make any binding decision affecting the liability or the budget of the government. If the applicant does not come to an agreed settlement with the respondent, the claim has to be referred to the Tribunal for determination of compensation. Therefore, I am yet to be convinced that the two year delay results in injustice to the respondent.

16. In all the circumstances, I am satisfied that there is "good cause" even in the narrower sense.

17. In the premises, I make an order in terms of the application. Time is enlarged so as to enable the applicant to deliver a written claim to the respondent within 7 days from the date of the order. Costs to the respondent in any event.

18. Dated this 27th day of November, 1995.