LEUNG CHEUK YING v. FISHMAN JEFFREY

LDPD 1833/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1833 OF 2013

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REASONS FOR DECISION

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1. This is an interlocutory application taken out by the Respondent on 4 September 2013 asking for (i) leave to appeal the Judgment/Order/Decision made on 20 August 2013 and (ii) stay of execution of possession of premises.  After hearing the parties on this application on 11 September 2011, I refused to give leave to the Respondent to appeal the Tribunal’s order dated 20 August 2013, with reasons to be handed down in writing.  I now do so.

2. By a tenancy agreement dated 10 July 2012, the Applicant as the landlord let to the Respondent as the tenant the premises at 8/F Man Fai Building, 47 Man Yuen Street, Kowloon for a fixed term of 1 year from 6 September 2012 to 5 September 2013 at a monthly rent of $22,000.  In the Notice of Application filed to the Tribunal on 25 July 2013, the Applicant applied for recovery of possession of the premises and rent as the Respondent has failed to pay rent from 5 May 2013, and applied for order for mesne profits to the date of delivery of vacant possession of the premises and costs.  The Respondent filed a Notice of Opposition on 26 July 2013 giving the following grounds: (i) false claim for unpaid rent of June 2013, (ii) exceptional harassment by applicant and wife, (iii) disruption of his privacy, (iv) unnecessary posting of notices of application throughout entry to leased premises after hand delivering notice to him, and (v) unlawful interruption of water supply.  The Application was fixed for hearing on 20 August 2013.

3. During the hearing on 20 August 2013, both parties agreed that the rent for the leased premises was outstanding from 6 June 2013 at $22,000 per month and that the Respondent was still in possession of the premises.  In the end, both parties agreed that the Tribunal should grant the following consented orders : 

   雙方同意下述命令:

1.    答辯人須把涉案處所的空置管有權交還申請人；

2.    答辯人須繳付予申請人租金/中間收益, 每月22,000元, 由2013年6月6日起計, 直至收回處所的空置管有權為止；

3.    不頒訟費命令；

4.    暫緩執行收樓令至2013年9月15日, 條件為:-

答辯人須於2013年8月30日或以前繳付予申請人租金/中間收益22,000元；

5.    若答辯人不履行上述命令(4)的繳款條件, 則暫緩執行收樓令即時提前予以取消, 申請人可強制執行已取得的命令；

6.    當答辯人繳存上述款額於本審裁處後，申請人可從本處提取該款。

(根據本命令而繳付的款額，須以現金、易辦事、香港的銀行發出的本票或香港的律師行發出的支票繳付，本處不接受其它的付款方式。)

4. The English translation of the Orders is as follows : 

    Both parties consented as follow:

(1)   The Respondent do deliver vacant possession of the suit premises known as “8/F, Man Fai Building, 47 Man Yuen Street, Kowloon” to the Applicant;

(2)   The Respondent do pay the Applicant arrears of rent/mesne profits at the rate of $22,000 per month from the 6th day of June 2013 until delivery up of vacant possession;

(3)   There be no order as to costs;

(4)   Stay of execution to the 15th day of September 2013 on condition that the Respondent do pay the Applicant arrears of rent/mesne profits in the sum of $22,000 on or before the 30th August 2013;

(5)   Should the Respondent fail to comply with the payment condition in paragraph 4 above, the stay of execution will be uplifted and the Applicant can enforce the possession order;

(6)   Payment out of the sum to the Applicant after payment of the same into the Tribunal by the Respondent.

(Payments pursuant to this order should be made in cash, by EPS, by cashier orders issued by banks in Hong Kong or by cheques drawn by firms of solicitors in Hong Kong. This Tribunal does not accept any other mode of payment pursuant to this order.)

5. Before I granted the orders, I have explained clearly to both parties the different consequences if the Respondent could or could not pay up the outstanding rent within the agreed relief period.

Respondent’s interlocutory application

6. In the Respondent’s interlocutory application of 4 September 2013, he attached an affirmation of 4 pages and supporting documents of 18 pages.  During the hearing, he said that there were extenuating circumstances that made him unable to leave Hong Kong for US as originally planned as a result of which he could not improve his financial situation and therefore could not comply with the payment condition, when he consented to have it ordered by the Tribunal on 20 August 2013.

7. The Respondent elaborated what he had presented in the affirmation which contained the following reasons for him to seek leave from this Tribunal to appeal to the Court of Appeal: (i) Force Majeure - the recent sudden hospitalization of the Respondent’s lady partner / fiancée, due to her medical condition; (ii) harassments - including (i) tampering of the locks to the main door of the premises, (2) cutting of electricity power supply to the premises and (3) cutting of water supply to the premises by the Applicant.  I have summarized these as the grounds of his application, which was agreed to be the case by the Respondent. 

8. On being asked whether he was given a copy of the Lands Tribunal’s document for the general public (including the parties in this type of applications) titled “Notes on review and appeal for parties’ attention”, the Respondent answered in the affirmative and confirmed that he understood the rules and conditions for granting leave to appeal.  I reminded the Respondent that I could not see how these 2 grounds put forward by him in this interlocutory application could be taken as issues in the “point of law”.  However, the Respondent still could not point out the “point of law” involved in the Tribunal’s order of 20 August 2013 even after I read out in open court the relevant section, section 11(2) of Cap. 17, Lands Tribunal Ordinance (“the Ordinance”), regarding this point:

“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)

9. On the ground of Force Majeure, the Respondent explained that his lady partner / fiancée was admitted to Queen Elizabeth Hospital from 23 to 29 August 2013.  She has since been discharged from the hospital but will have obstetrics and antenatal clinic appointments on 27 September 2013 and 30 September 2013 respectively (details given in the Respondent’s affirmation filed with his application).  He therefore could not leave Hong Kong for US as originally planned to handle the urgent problem of changing his business’ bank account to his name following the abrupt withdrawal of his US partner in his business, which was disclosed to the Applicant and the Tribunal on 20 August 2013.  Therefore, he would need more time to go to US so that he would then have the money to pay the rent and run his business.

10. On the other ground of harassment, the Respondent gave oral evidence that he had difficulty of gaining access to the premises because the lock was tampered with by someone, alleged to be the Applicant or an unknown person acting on the Applicant’s instruction.  As a result, he had to bring along with him the tools like screwdriver when he was away from home.  He actually took out the tools from his bag in the middle of his evidence in order to prove his point.  Similarly, he said that he had his water supply and electricity power supply disconnected.  Even after he reported to the Police, it took a considerable amount of time before the building’s security guard assisted him to identify the pipes that had been tampered with.  He alleged that it was most probably the Applicant who was behind all these mischievous acts or criminal offences.  

11. As an alternative to lodge the appeal to the Court of Appeal, the Respondent asked the Applicant if he could agree to give the Respondent an unconditional stay of execution of the possession order (granted by the Tribunal on 20 August 2013) for a period of 30 days, starting counting from 11 September 2013.  However, the Applicant refused the Respondent’s alternative suggestion outright, and said that there was no need for the Tribunal to stand down to allow the parties to negotiate further on this.

Response by the Applicant

12. According to the Applicant, he has not made any of the harassments alleged by the Respondent.  On the contrary, the Applicant alleged that the Respondent might simply make up the harassments stories himself.  He said that since the Respondent failed to comply with the payment deadline within the relief period stated in the consent order of 20 August 2013, he knew that he could be able to follow the proper legal procedure in enforcing the vacant possession order, and therefore, there was no need for him to act otherwise. 

Leave to Appeal

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.”

Discussion

14. According to the Hong Kong English-Chinese Legal Dictionary, 2005 published by LexisNexis Butterworths, the word “Force majeure” has the following meaning:

“Old French – a coercion which cannot be resisted; a superior force. A circumstance beyond the control of a party to a contract, which enables that party to escape liability for failing to perform the contract as a result of the circumstance: Matsoukis v Priestman & Co [1915] 1 KB 681 First used in the Napoleonic Code, it has a more extensive meaning than the common law ‘act of God’ or vis major. It may include human acts (such as war, strikes, machinery breakdown) as well as natural acts (such as storms, earthquakes) : Matsoukis v Priestman & Co., supra.…It relieves the party in default from damages, penalties, and any other contractual sanctions; postpones the time for performance for a reasonable period; and prevents the other party from unilaterally terminating the contract.”

15. Therefore, it is obvious that the latest medical condition of an individual party, no matter how unexpected it is, is not within the meaning of “Force majeure”. This also applies to the medical condition of the party’s lady partner / fiancée in this case.

16. The Tribunal’s order was given with the consent of the parties on 20 August 2013. The consent also extended to the period of relief within which the Respondent has to pay the outstanding rent.  Therefore, there was then not any need for the Tribunal to even make any finding of facts (in case that there were disputes between the parties on issues of facts), lest any finding of law.  I have pointed out this to the parties at the beginning of the hearing of 11 September 2013.

17. However, when the hearing ends and before I made the order, the Respondent still failed to show what was the “point of law” the subject of my judgment/order of 20 August 2013 that he required the leave of the Tribunal to appeal.  He simply repeated the 2 grounds he set out in his affirmation. 

18. Firstly, he submitted that his lady partner / fiancée’s recent medical condition was “Force Majeure”, which formed the first ground of his planned appeal.  However, as I said above, I cannot see how the medical condition of a party’s lady partner / fiancée falls within the dictionary meaning of Force Majeure, and is an issue in the point of law.  Therefore, the Respondent’s first ground cannot be right.

19. On his second ground that he has been subject to continuing harassment (in terms of personal access to the premises, access to electricity and power supply to the premises), I have the following observation and finding.  Firstly, I find there was no determination or ruling on any factual dispute from this Tribunal in the trial of 20 August 2013, and the parties were happy to have the consented order (as detailed above in para. 4).  Secondly, I find that it is not necessary or appropriate for me to make any  finding on any factual dispute (which occurred after 20 August 2013) in the hearing of 11 September 2013, including whether the Applicant was responsible for any of the three types of harassments as alleged by the Respondent.  The hearing of 11 September 2013 is simply an interlocutory application made by the Respondent for leave to appeal the Tribunal’s earlier judgment/order of 20 August 2013.  To be fair to the Respondent, even he himself confirmed that when he had complained to the Police the various harassments he had come across, he had no concrete evidence that the harassments were made by the Applicant.  Further, he confirmed that the Police was still in the course of investigation and there was no criminal charge against anyone.  In addition, the Respondent said that he understood that he would have to take civil action in the District Court or High Court for damages, injunction etc. against the party responsible for the harassments. These actions are all not within the jurisdiction of the Lands Tribunal. Therefore, the Respondent’s second ground cannot be right.

20. Summing up, since both grounds stated by the Respondent as the grounds of appeals were not the “findings of facts” forming the basis of the Tribunal’s order of 20 August 2013, and more importantly, were not issues in the “point of law”, I cannot see how the Respondent should be given the leave to appeal. 

21. In addition, after considering what the Respondent presented in his affirmation supporting his interlocutory application, and after hearing what the Respondent supplemented in his oral evidence and submission, I decide that the Respondent’s appeal has no reasonable prospect of success, and the Respondent failed to satisfy that there is some other reason “in the interests of justice” why the appeal should be heard. 

22. This is originally a simple application for recovery of possession and payment of outstanding rent/mesne profit and costs.  Under the consent order agreed by both parties on 20 August 2013, the Respondent has a relief period for payment of outstanding rent, failing which the Applicant has the right to obtain vacant possession of the premises.  Since I do not allow the Respondent the leave to appeal, the consequential application by the Respondent for stay of execution of possession of the premises to the date of hearing the appeal by the Court of Appeal is therefore refused.

23. Alternatively, I have also considered whether stay of execution of possession of the premises should be given to the Respondent notwithstanding my dismissal of his application for leave to appeal.  The Applicant submitted that he was also in deep financial trouble since the Respondent failed to pay the rent from 6 June 2013.  He was already being chased by his mortgagee bank for payment of mortgage on the property.  Therefore, if he could not obtain possession of the premises sooner, he could lose his property as the bank might take foreclosure action against him any time.  Having considered the parties’ submission, I decide not to exercise my discretion to extend the relief period stated in the Tribunal’s order of 20 August 2013.

24. Therefore, the Respondent’s application for stay of execution of the possession order granted in the Tribunal’s order of 20 August 2013 is dismissed.

25. Since both parties are not represented, I decide not to make any cost order for this application.

Conclusion

26. The interlocutory application by the Respondent to seek leave to appeal and stay of execution of the order of possession are both dismissed. Cost order nisi that there be no order as to costs.  The cost order shall become absolute if no party applies to vary the order.