Gee Lok Enterprises Ltd v. Linus Wong

CACV000025/1983

Landlord & Tenant - order for possession under s.53(2)(a) of Landlord & Tenant (Consolidation) ordinance - Tenant claiming "relief from forfeiture" in Lends Tribunal - Tribunal had no jurisdiction to grant relief in any form.

Date of hearing: 25th March, 1983

Reasons for judgment delivered: 12th April, 1983

Bharwaney (John Ku & Co.) for Applicant/Appellant.

Miss J. Fong (Liu, Chan & Lam) for respondent.

BETWEEN

Coram: Sir Alan Huggins, V.-P., Leonard, V.-P. and Fuad, J. A.

Date of Judgment: 12th April, 1983

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P. :

1. On 15th September 1982 the plaintiff Landlord took out a writ in the District Court claiming possession of a demised flat on the ground that the Tenant was in arrears with the rent. The claim was brought under s.53(2)(a) of the Landlord and Tenant (Consolidation) ordinance, the original contractual tenancy having expired by effluxion of time. On 1st October 1982 the Lands Tribunal assumed the jurisdiction of the District Court to make orders for possession under s.53. The claim did not come on for hearing until 2nd December 1982 and, prior to judgment, the Tenant took no step in the proceedings other than to make a payment into court. The notes of the proceedings on 2nd December are entitled "In the District Court of Hong Kong", but it is common ground that that is wrong, although the Presiding officer was in fact a District Judge:  as the transitional provisions of s.59(1) of the Landlord and Tenant (Consolidation) (Amendment) (No.2) Ordinance did not govern the case, after 1st October 1982 all documents should have been entitled "In the Lands Tribunal of Hong Kong", as were the Judgment and the Order against which the appeal was brought. Judgment was given for possession against the Tenant after the Landlord had proved his case in the Tenant's absence. On 5th January 1983 the Tenant took out a summons in the lands Tribunal for relief from forfeiture. The application came on for hearing on 14th January 1983 and once again the notes of the proceedings are entitled "In the District Court of Hong Kong", but it has been agreed that the Deputy District Judge who resided was in truth sitting as a Presiding officer of the Lands Tribunal. Although part of the Presiding officer's notes is ambiguous, it seems clear that the solicitor for the Landlord contended that, as the application was made in the Lands Tribunal and as the Lands Tribunal had no express power to grant relief from forfeiture, the application must be dismissed. The solicitor for the Tenant is recorded as having argued that the Lands Tribunal had "inherit jurisdiction". Whether that meant that he inherited jurisdiction from the District Court or the note should read "inherent" jurisdiction we can only guess. The judge then merely records his order granting relief from forfeiture on specified conditions, without giving any reasons for his implicit decision that he had jurisdiction to grant relief.

2. On the appeal the Landlord sought to argue two points: (1) that the Lands Tribunal did not have jurisdiction to make the particular order which it did make, and (2) that no court or tribunal has jurisdiction to make an order for relief which would be effective to defeat an order for possession under s.53(2)(a) of the Landlord and Tenant (Consolidation) ordinance. We decided to hear argument on the first of these points only.

3. Mr. Bharwaney contended that the granting of relief was a matter of substantive law and that there was no provision in the Lands Tribunal ordinance or in the Landlord and Tenant (Consolidation) ordinance which conferred power on the Tribunal to grant relief, whether as a specific statutory remedy or in the exercise of an equitable jurisdiction.  He contrasted the position of the District Court, where express power to grant relief was available under s.48 of the District Court ordinance.

4. Miss Fong asserted that the Tribunal did have equitable jurisdiction to grant relief and invited us to infer from the fact that the Tribunal assumed the jurisdiction previously conferred on the District Court to make orders for possession that it also assumed the jurisdiction of the District Court to grant relief. We rejected that argument as obviously unsound. We were then asked to hold that, when the Presiding officer made his order for relief, what in fact he was doing was reviewing the decision of the judge had made the order for possession and setting aside that order. This ingenious argument was defeated in limine by the fact that the summons for relief was not taken out until after the period during which the power of review could be exercised had expired. Once again we de not explore the question whether and, if so, in what circumstances a judge has power to review a decision of a brother judge of equal jurisdiction. Even if the application had been made within the one month prescribed and there was power for one judge to review the decision of another, it was abundantly clear that Deputy Judge McClelland never purported to review the decision of His Honour Judge Rattigan: he proceeded throughout on the basis that the order for possession had been correctly made. An attempt was made to argue before us that the conditions for the making of an order for possession had not been fulfilled, but the present appeal was not brought against that order: the only order challenged by the Notice of Appeal was the order granting relief.

5. The Lands Tribunal is an inferior tribunal created by statute and its jurisdiction is limited by the terms of the relevant legislation. Its inherent jurisdiction does not extend to granting orders for relief against forfeiture. In our view the tribunal had no power to grant the Tenant relief in any form and we allowed the appeal.

12th April, 1983.

Representation:

Bharwaney (John Ku & Co.) for Applicant/Appellant.

Miss J. Fong (Liu, Chan & Lam) for respondent.