Case Document

100%Judiciary

HCMP 171/2017

[2018] HKCA 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 171 OF 2017

(ON AN INTENDED APPEAL FROM LDPD 2025 OF 2016)

____________

BETWEEN
	RAMADOUR INDUSTRIES LIMITED	Applicant
and
	BULLEN CHRISTIAN ANTHONY	Respondent

____________

Before: Hon Lam VP and Yuen JA in Court

Date of Applicant’s submissions: 23 June 2017

Date of Respondent’s submissions: 9 June 2017

Date of Judgment: 16 November 2018

______________________

J U D G M E N T

______________________

Hon Yuen JA (giving the Judgment of the Court):

1.1.This is an application by Mr Christian Anthony Bullen (for convenience, referred to as “the Tenant”) made on 23 January 2017 for leave to appeal against the following decisions made by Mr Lawrence Pang, member of the Lands Tribunal:

(1) an order made on 22 November 2016 (“the Original Order”)

(2) an order made on review on 7 December 2016, which date was mistakenly referred to in the Tenant’s summons as 29 November 2016¹ (“the Review Decision”) and

(3) a decision made on 13 January 2017 refusing the Tenant’s application for leave to appeal out of time and for a stay (“the Leave to Appeal and Stay Decision”).

1.2.Pursuant to directions given by the court, this application is dealt with on the papers without an oral hearing.

Background

2.By way of a brief background, the Tenant had for some time rented a house in Lamma Island (“the premises”) from Ramadour Industries Ltd (for convenience, referred to as “the Landlord”).

LDPD1047/2015

3.In 2015, the Tenant was in arrears and the Landlord applied to the Tribunal for possession in LDPD1047/2015. The Tribunal granted relief against forfeiture by an order made on 25 June 2015.

LDPD1912/2015

4.1.Within the same term of tenancy, the Tenant was in arrears again soon after the June order.

4.2.On 5 September 2015, the Landlord made another application to the Tribunal for possession, this time in LDPD1912/2015. The Tenant filed a notice of opposition indicating, among other things, that he would be applying for relief against forfeiture again.

4.3.On 15 October 2015, Mr Alex Ng, member of the Tribunal, ordered the Tenant to deliver up vacant possession and made other relevant orders. The Tenant applied for a review, which on 21 December 2015 affirmed the original decision (“the 2015 Order”).

CACV19/2016

5.1.The Tenant then applied for leave to appeal from the 2015 Order, first from the Tribunal itself and then from the Court of Appeal.

5.2.On 29 January 2016, in HCMP98/2016, a single judge of the Court of Appeal gave leave to appeal and stayed execution of the 2015 Order pending the determination of the appeal. No conditions were attached to the stay.

5.3.Unfortunately the appeal proceedings took some time. The hearing of this appeal was held a year after leave was given, on 22 February 2017. Judgment was given on 15 May 2017. Essentially, this court held that the effect of s.21F High Court Ordinance Cap.4 was that “where during a term of tenancy, a tenant fails to pay rent, he would be entitled as of right to relief once; if he fails to pay rent again during that term, then he must satisfy the court that there is good cause for it to grant him relief again”².

5.4.The Court of Appeal accordingly dismissed the appeal.

LDPD 2025/2016

6.1.While the appeal proceedings were taking its course, the term of the tenancy expired on 31 August 2016. However during this period the Tenant had again failed to pay rent/mesne profits, and government rent and rates. As noted earlier, in January 2016 a single judge of the Court of Appeal had granted a stay of the 2015 Order until determination of the appeal. No conditions had been attached to the order for stay.

6.2.On 3 October 2016, the Landlord issued new proceedings in LDPD2025/2016 for delivery up of vacant possession and payment of the claimed sums.

6.3.The Tenant argued that

- LDPD2025/2016 was vexatious and an abuse of process since CACV19/2016 had not yet been determined;

- he “may be entitled to equitable setoff and further equitable intervention with respect to the alleged contract termination date”;

- he was entitled to set off expenses for various repair works he did in relation to the Premises.

Original Order

7.1.In the Judgment dated 22 November 2016, the Tribunal held³ that in light of the term of the tenancy, whichever way the Court of Appeal decided CACV19/2016, the Landlord would be entitled to recover vacant possession.

7.2.As for the claim of set-off, the Tenancy Agreement stipulated that the Premises would be taken on an “as is” basis, and that the Landlord would not be responsible for any repairs and maintenance including fair wear and tear. The Tribunal also observed that most of the Tenant’s complaints related to a few years before this tenancy agreement, and that in any event there was no evidence that the Tenant had paid for repairs or suffered any damage. The Tribunal accordingly found⁴ that there was no defence of set-off to the claim.

7.3.The Tribunal ordered the Tenant to deliver up vacant possession and to pay the Landlord the sums claimed until delivery up of vacant possession and costs.

The Review Decision

8.1.On 29 November 2016, the Tenant applied for a review of the Original Order on 19 grounds which can be seen in §2 of the Tribunal’s Decision on Review given on 7 December 2016.

8.2.The Tribunal came to the same conclusions as in the Original Order. The only new ground was that the Tenant had complained that the Tribunal had dealt with the matter at the first hearing instead of simply conducting a call-over. In respect of this, the Tribunal held that as confirmed by the Court of Appeal in Wing Wah Electronics Industry Co Ltd v Chan Shu Hung trading as Sam Hung Hong (translation)⁵, the Tribunal had power to do so and this was an appropriate case to exercise such power.

Application to the Tribunal for leave to appeal out of time and for a stay

9.1.On 4 January 2017, the Tenant filed an application for leave to appeal out of time against the Original Order and the Review Decision. He also applied for a stay pending the determination of CACV19/2016. The grounds can be seen in §4 of the Leave to Appeal and Stay Decision.

9.2.The Tribunal dismissed the applications for reasons which can be seen in the Decision.

Application to the Court of Appeal

10.1.On 23 January 2017 the Tenant filed a Summons to this court for leave to appeal and for a temporary stay of the order for vacant possession, alternatively a stay pending the conclusion of CACV19/2016. In his supporting affidavit, he set out 20 grounds which will not be reproduced here.

10.2.On 3 March 2017, the Tenant wrote to the court indicating that it might be appropriate for him to apply for leave to submit as an additional intended ground that the Landlord “did not allow for” his security deposit. This was not a matter raised before the Tribunal and accordingly should not be included in this application for leave to appeal.

10.3.Subsequently on 22 March 2017, the Tenant wrote again to the court to state that he was no longer occupying the Premises, so it was not necessary to pursue the application for stay of the possession order, but he wished to pursue the stay for monetary orders and costs in the lower court pending appeal.

11.The Landlord filed an affirmation in opposition on 26 April 2017 and the Tenant filed an affidavit in reply on 15 May 2017.

12.As mentioned above, directions were given by the Court for submissions to be provided in writing for a determination on the papers. The time taken to deliver this Judgment is regretted.

Discussion

13.As s.11 of the Lands Tribunal Ordinance provides that only errors in point of law may be the subject of an appeal from the Tribunal, we will not discuss those grounds (eg relating to repairs) which cannot even remotely be said to involve a point of law.

14.Further, in light of this court’s Judgment in CACV19/2016, some of the grounds (based on the possibility that the Tenant would succeed in that appeal) have become academic.

15.What the Tenant’s arguments boil down to is that since the Landlord had pleaded in LDPD 1912/2015 that the lease had been forfeited in 2015 by reason of his failure to pay rent, it was an abuse for it to seek vacant possession in LDPD2025/2016 on the basis that the lease had expired in 2016 by effluxion of time.

16.1.We take the view that even assuming this can amount to an argument of law, it has no prospects of success and there is no reason in the interests of justice why an appeal should be heard. The point is that the 2015 Order terminating the tenancy had been stayed by order of the single judge of the Court of Appeal in January 2016. To comply with this order for stay, the parties were required by law to suspend the effect of the termination, and had to treat the tenancy as if it were still continuing (until it expired by effluxion of time in August 2016, which was before the hearing of the appeal).

16.2.Upon the effluxion of time, the Tenant had no right to occupy the Premises whatever the result in CACV19/2016. The issue of LDPD2025/2016 was not an abuse because it was based on the termination of the Tenancy Agreement by reason of effluxion of time, which event occurred after LDPD1912/2015 was commenced and the stay. Although the position would have been clear beyond doubt if the Form 22 Notice of Application issued by the Landlord in LDPD2025/2016 had referred to the above, the effect of the order for stay is a matter of law, not of fact, and as such does not need to be pleaded. By reason of the above, there were also no grounds for ordering a stay of any monetary orders or costs.

Order

17.1.The Tenant’s Summons filed on 23 January 2017 is therefore dismissed with an order that he pays the costs of the Landlord. The statement of costs provided by the Landlord’s solicitors totalling $17,695 is a modest one, and we will allow it in its entirety.

17.2.Further, as this application is totally without merit, we order pursuant to Order 59 Rule 2A(8) that no party may request this determination to be reconsidered at an oral hearing inter partes.