Balani Chandru and Another v. Chung Ka Kit and Another
Read the full judgment text of LDPD 1124/2018 on BabelCite. This Lands Tribunal judgment was delivered on 31 July 2018.
1. This is an interlocutory application taken out by the 1 st and 2 nd Applicants (hereinafter referred together as “the Applicants” unless otherwise stated), filed by a Ms Chan Ching Yi ( Ms Chan) on their behalf on 17 July 2018 (“the Interlocutory Application”) seeking leave to appeal against my decision dated 13 July 2018. In that decision, I dismissed an application taken out by Ms Chan on behalf of the Applicants on 20 June 2018 which sought recovery of possession of the subject premises be
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LDPD 1124/2018 [2018] HKLdT 59 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION APPLICATION NO. LDPD 1124 OF 2018 _________________
_________________ Before: Mr Lawrence PANG, Member of the Lands Tribunal Date of Hearing: 31 July 2018 Date of Decision: 31 July 2018 _________________ DECISION (LEAVE TO APPEAL)
1.This is an interlocutory application taken out by the 1st and 2nd Applicants (hereinafter referred together as “the Applicants” unless otherwise stated), filed by a Ms Chan Ching Yi ( Ms Chan) on their behalf on 17 July 2018 (“the Interlocutory Application”) seeking leave to appeal against my decision dated 13 July 2018. In that decision, I dismissed an application taken out by Ms Chan on behalf of the Applicants on 20 June 2018 which sought recovery of possession of the subject premises being known as Apartment Unit 01 on 19/F (including the Balcony thereof) of Tower 6B, Century Link, No 6 Ying Hong Street, Tung Chung, New Territories (“the Premises”). Background 2.By a “Tenancy Agreement” dated 13March 2017 (“the T/A”) between the Applicants and the 1st and 2nd respondents (hereinafter referred together as “the Respondents” unless otherwise stated), the Applicants let the Premises to the Respondents for residential purpose for a period of 2 years from 20March 2017 to 19 March 2019 at a monthly rent of $12,000 (inclusive of management fee, Government rates and Government rent). 3.In Schedule II to the T/A, there exists however a break clause whereby the Respondents and the Applicants shall have the right to terminate the T/A by giving to the other party 1 month’s written notice provided that both parties must complete the first 12 months of the T/A. 4.On 20 June 2018, the Applicants applied to the Tribunal for recovery of possession of the Premises on the ground that the Applicants had issued a termination notice to the Respondents as per the break clause but the Respondents have not moved out. 5.In its Notice of Opposition dated 26 June 2018, the Respondents replied, inter alia, the following:
6.All the above conversations as recorded in WhatsApp are attached to the Notice of Opposition:
7.Then, on 4 April 2018, the 2nd Respondent received a letter via WhatsApp signed by the 1st applicant as follows:
8.The 2nd Respondent refused via WhatsApp: Not possible. Hearing on 13 July 2018 9.Ms Chan attended the hearing on behalf of the Applicants. She did not dispute the WhatsApp conversation as produced by the Respondents. She explained however throughout the process she had only consulted the 2nd Applicant who is the father of the 1st Applicant, the latter being not in Hong Kong. In the event, the 1st Applicant considered the agreed rental of $12,300 to be too low. 10.It is trite that a contract of tenancy may be created by writing or orally by any words which express the intention of entering into legal relations for a fixed or periodic term.[1] 11.Having reviewed the submission by Ms Chan and the WhatsApp conversation as produced by the Respondents, I ruled that Ms Chan had the ostensible authority[2] to bind the Applicants and the contract for renewal was made between the Applicants and the Respondents on 1 February 2018 at $12,300 per month from 20 March 2018 to 19 March 2019 when the 2nd Respondent replied “OK” in the WhatsApp; the Applicants could not exercise the break clause under the T/A any more. 12.Therefore, I dismissed the Applicants’ application with no order as to costs. Leave to Appeal 13.In the Interlocutory Application, Ms Chan submitted, inter alia:
14.The 1st Applicant attended this hearing on 31 July 2018 but had nothing to add as regards the grounds of the intended appeal. 15.Section 11(2) of Cap. 17, Lands Tribunal Ordinance (“the Ordinance”) provides that:
16.However, section 11AA (6) of the Ordinance provides that:
17.With respect to the 1st Applicant, a contract or a tenancy agreement needs not be in writing; a contract or a tenancy agreement can be formed by conduct of the parties or by oral agreement. 18.Section 3(1) of the Conveyancing and Property Ordinance, Cap 219 provides that:
19.That section 6(2) states that even leases created by parol taking effect in possession for a term not exceeding 3 years at the best rent that can be reasonably obtained without a premium would not be affected by the formal requirements under section 3 afore-mentioned or subsection (1). 20.More particularly, it is not the Respondents who brought the present application for recovery possession. The Applicants are estopped from denying there being a contract for renewal of the tenancy on 1 February 2018 by their agent, Ms Chan. 21.Once a binding contract or tenancy agreement is formed, whether it is stamped under the Stamp Duty Ordinance, Cap 117 is irrelevant. Section 15(1) of the Stamp Duty Ordinance only provides that:
It does not state that a tenancy agreement which has not been stamped is invalid or unenforceable. This is particularly the case when section 9 of the Ordinance permits late stamping subject only to penalty. 22.And in Poon Lone Leo v Lei Iok Chan, HCSA 49/2015 (unreported, dated 28 January 2016), notwithstanding a tenancy agreement was not stamped, the court relied on the written submission and evidence given in court as evidence of the tenancy agreement. 23.I do not consider the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. Conclusion 24.Having considered all the above, the application for leave to appeal by the Applicants is refused. There be no order as to costs.
1st and 2nd Applicants, represented bythe 1st Applicant, appearing in person 1st and 2nd Respondents, appearing in person [1] See Halsbury’s Laws of Hong Kong, Volume 36 (2014), [235.002]. [2] See Bowstead and Reynolds on Agency, 21st Edition, para 8-010: “Where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of that other persons with respect to anyone dealing with him as an agent on the faith of any such representation, in the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority.” |
Cases cited in this judgment