Zhu Yu v. China Data Enterprises Ltd

LDPD2465/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 2465 OF 2016

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BETWEEN

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DECISION

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1.This is an interlocutory application taken out by the third party on 2February 2017 seeking leave to set aside the judgment of the Tribunal dated 22 December 2016 (“the Judgment”) which ordered, inter alia, the respondent to pay to the applicant arrears of rent/mesne profits at the rate of $54,000 per month from 1 November 2016 by 7 January 2017 failing which the respondent had to deliver vacant possession of the suit premisesto the applicant. The third party also applies to stay the execution of the writ of possession issued by the Tribunal on 19 January 2017.

Background

2.By a tenancy agreement dated 14 June 2016 (“the Tenancy Agreement”), the applicant, as landlord, let the suit premises to the respondent, as tenant, for a term of 2 years from 1July 2016 to 30 June 2018 at a monthly rent of $54,000 (inclusive of rates, and management fees & government rent)[1].  

3.According to a Notice of Application filed by the applicant on 1 December 2016, however, the respondent had failed to pay rent since 1 November 2016.  The applicant applied for recovery of possession of the suit premises and for order for mesne profits.

4.No Notice of Opposition was filed by the respondent but the third party filed an interlocutory application dated 12 December 2016 seeking leave to join the proceedings as another respondent.  The third party claimed his right to be heard was derivable from an employment contract whereby the suit premises were rented by the respondent for his occupation and enjoyment.  Also his dispute with the respondent on his employment was being processed by the Labour Tribunal and until this dispute with the respondent was resolved, the third party claimed that he had the right to occupy the suit premises.

5.Meanwhile on 13 December 2016, the applicant applied for an order in default against the respondent pursuant to Rule 15 of the Lands Tribunal Rules.

6.These two applications were heard before me on 22 December 2016.  After hearing the submissions of the parties (save for the respondent who was absent), I firstly dismissed the interlocutory application by the third party as I found the third party had no separate and independent right to be heard in the proceedings; the third party was not a party to the Tenancy Agreement and neither could he identify any term in the Tenancy Agreement purporting to confer a benefit on him[2]. That he had a dispute with the respondent on his employment was neither here nor there.

7.Then I granted also the Judgment.

Interlocutory Application dated 2 February 2017

8.The Affirmation attached to the interlocutory application filed by the third party on 2 February 2017 is nearly the same as that attached to the interlocutory application dated 12 December 2016.  See §4 above.

9.Apart from repeating what he said in the Affirmation, the third party could not produce any new evidence that may support he had a separate and independent right to be heard in the proceedings.  He submits that by his employment contract with the respondent, he has the right to stay and occupy the suit premises until 20 April 2017; he argues that the respondent is obliged to pay the rental for his occuption.

10.For the same reasons that I state in §6 above, I dismiss this new interlocutory application filed by the third party on 2 February 2017.  As a result, the consequential application by the third party for stay of execution of possession of the suit premises is therefore refused.

Costs

11.Since both the applicant and the third party are not legally represented, I decide not to make any costs order for this interlocutory application.

Conclusion

12.The interlocutory application by the third party to set aside the Judgment and stay of execution of the order for possession be dismissed.  There be no order as to costs.

The applicant, appeared in person

The respondent, absent

The third party, appeared in person

[1] There was also a break clause whereby the landlord and the tenant had the right to terminate the Tenancy Agreement after first twelve months by giving to the other party 2 months’ written notice to that effect.

[2] See sections 4 & 15 of the Contracts (Rights of Third Parties) Ordinance.