Wong Pui Cheung v. Director of Lands

LDLR 2/2020

[2021] HKLdT 60

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LANDS RESUMPTION APPLICATION NO 2 OF 2020

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BETWEEN

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Before: His Honour Judge M WONG, Presiding Officer of the Lands Tribunal

Date of Hearing: 8 June 2021

Date of Handing Down of Decision: 27 August 2021

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DECISION

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Background

1.This is my decision on the preliminary issue raised by the parties concerning whether the Lands Tribunal has jurisdiction to determine the applicant’s claim for interest under sections 8(2) and 17 of the Lands Resumption Ordinance, Cap 124, (“the Ordinance”) when the parties had executed the Agreement as to Compensation and Indemnity dated 8 April 2020 (“the ACI”), whereby it was agreed that interest payable on the statutory compensation shall be determined by the Director of Lands (“the Director”).

2.The applicant was the sole registered owner of the property known as ALL THAT piece or parcel of ground registered in the Land Registry as 1/16^th share of Kun Tong Inland Lot No 107 And of and in the messuages and erections and buildings thereon together with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT Rear Portion on the Ground Floor of No 4 Hong Ning Road, and No 2 Yue Man Square, Kowloon, Hong Kong (“the Property”).

3.By virtue of Gazette Notice No 3239 dated 23 April 2019, the Property was resumed by the Government under the Ordinance for the implementation of the Second Phase of the Kwun Tong Town Centre – Main Site Development Scheme by the Urban Renewal Authority.

4.The Property reverted to the Government at mid-night on 17 August 2019 pursuant to section 5 of the Ordinance.

5.In pursuance of section 6(1)(a) of the Ordinance and by a without prejudice letter dated 5 September 2019 (“the WP Letter”), the Government expressly offered compensation to the applicant in the total sum of $73,522,600 made up of $73,219,000 being the value of the Property and $303,600 being a solatium payment.

6.It was mentioned in paragraph 2 of the WP Letter that the aforesaid offered sum shall be:-

“together with interest thereon (which will be calculated from the date of reversion of the land to the date of payment of the said sum to you at such rate as shall be determined by the Director of Lands (“the Director”) having regard to the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24 hours’ call deposits) as compensation in full and final settlement of all or any claims, costs and demands which you may have against the Government arising out of the provisions of the Ordinance or otherwise arising out of the resumption of the land and your interest therein.”

7.Paragraph 5 of the WP Letter mentioned that if the applicant wishes to accept the offer, he:-

“will be required to sign a formal Agreement and any other documentation that the Government may require upon payment of the compensation”.

8.Paragraph 7 of the WP Letter provided that:-

“Notwithstanding any application which may be made to the Lands Tribunal, the Government is prepared to pay to you a sum of HK$73,219,000, being a provisional payment under Section 16A of the Ordinance in respect of the value of the Premises resumed assessed in accordance with the Ordinance together with interest on this amount to be assessed from the date of reversion of the land to the date of payment of the said sum to you at such rate as shall be determined by the Director having regard to the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24 hours’ call deposits”.

9.Paragraph 10 of the WP Letter stipulated that:-

“Acceptance of either of the said sums mentioned in paragraphs 2 and 7 hereof by you would be entirely without prejudice to your right to claim under Section 10(2)(d) and (e) of the Ordinance.”

10.By letter dated 3 October 2019, Wayne Lee & Associates Ltd, acting on behalf of the applicant, submitted the Acceptance Letter “A” in Chinese language and signed by the applicant to the Government which confirmed that the applicant accepted the Government’s offer of compensation in the sum of $73,522,600 subject to the conditions contained in the WP Letter. 

11.Thereafter, the Government’s solicitors, Messrs Fairbairn Catley Low & Kong, liaised with the applicant’s solicitors, Messrs Cheung, Chan & Chung, regarding the ACI.

12.By letter dated 11 February 2020, the applicant’s solicitors raised the question of interest and stated that the applicant is entitled to receive interest at 1% over prime rate from the date of resumption up to the date of payment of the agreed compensation, and if the Government does not agree to pay interest at such rate and for such period, the applicant may refer this question to the Lands Tribunal for determination at a later stage.

13.By letter dated 19 March 2020, the Government’s solicitors sent a cheque of $73,522,600 and the ACI to the applicant’s solicitors for the applicant’s execution.  The Government’s solicitors made it clear that the Government was only prepared to execute the ACI in the original form as provided and the applicant’s proposed amendments to the ACI were not accepted.

14.Although the Government’s solicitors stated in this letter that the sum of $73,522,600 was for the agreed compensation, solatium payment and interest accrued thereon, they clarified in their letter dated 25 March 2020 that the sum of $73,522,600 was only made up of the statutory compensation and the solatium payment, whereas interest shall be further payable as per Clause 2 of the ACI.

15.The ACI contains the following material clauses:-

(a) Clause (c) of the Preamble stipulates that:-

“the Director and the Former Owner have agreed to the payment of - (i) the sum specified in Part 4 of the First Schedule hereto as compensation (hereinafter referred to as “the Statutory Compensation”) in the manner described below; and (ii) a solatium payment in the sum specified in Part 5 of the First Schedule hereto (hereinafter referred to as “the Solatium Payment”) in the manner described below.”

(b) Clause 1 provides that:-

“(i) The Director hereby pays and the Former Owner hereby accepts -

(a) the Statutory Compensation; and

(b) the Solatium Payment

the receipt of which the Former Owner hereby acknowledges;

(ii) The Former Owner hereby agrees that payment of the Statutory Compensation and the Solatium Payment by the Director in the manner provided above shall be in full and final satisfaction of all claims which the Former Owner may have against the Government and its officer under the Ordinance or otherwise in respect of the resumption of the undivided share except for costs or remuneration mentioned in Section 10(2)(e)(ii) of the Ordinance.”

(c) Clause 2 provides that:-

“Interest shall be payable on the Statutory Compensation and the Solatium Payment from the date of resumption of the undivided share to the date of payment of the Statutory Compensation and the Solatium Payment to the Former Owner at such rate as shall be determined by the Director having regard to the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24 hours’ call deposits. For the purpose of this clause, payment will be deemed to be effected on the date on which the cheque for payment is handed to the Former Owner or is sent by ordinary post addressed to the last known or nominated address of the Former Owner.”

(d) Clause 4 provides that:-

“The Director and the Former Owner agree that no application for claim or claims will be made to the Lands Tribunal for the determination of the amount of compensation to be paid in respect of the resumption of the undivided share.”

(e) Part 4 of the First Schedule provides that the Statutory Compensation is to be $73,219,000 and Part 5 of the First Schedule provides that the Solatium Payment is to be HK$303,600.

16.By letter dated 20 April 2020, the applicant’s solicitors returned the ACI, which was duly signed by the applicant and attested by a Notary Public, to the Government’s solicitors.

17.By letter dated 21 April 2020, the Government’s solicitors confirmed that the cheque for the payment of statutory compensation and solatium can be released to the applicant.

18.By letter dated 22 April 2020 from the applicant’s solicitors to the Government’s solicitors, the applicant claimed interest on the agreed statutory compensation of $73,219,000 in the sum of $2,575,704, which was based on the proposed interest rate of 6% and for the period from the resumption date to the date immediately prior to the date of payment, ie from 18 August 2019 to 18 March 2020.

19.In the said letter of 22 April 2020, the applicant’s solicitors stipulated that if payment of the said interest is not made within 14 days from the date of the letter, the applicant reserved his rights to challenge the necessity of signing the ACI and will claim against the Government for interest on the agreed statutory compensation at the said rate from the date of resumption up to the date of actual payment.

20.As the Government did not agree to pay interest at the requested rate, the applicant commenced the present application against the respondent to claim interest on $73,219,000 at 6% per annum (ie prime rate plus 1%) from the date of resumption to 21 April 2020, as well as costs of and incidental to the resumption including costs or remuneration referred to on Section 10(2)(e)(ii) of the Ordinance.

21.In the Notice of Opposition dated 19 June 2020, the respondent denied the applicant’s claim on interest and averred that:-

(a) interest is payable on the agreed compensation at the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24-hours’ call deposits, which is the rate determined by the respondent according to Clause 2 of the ACI;

(b) interest is payable from the date of reversion to 8 April 2020, being the date on which the applicant acknowledged receipt of the agreed compensation in the ACI; and

(c) pursuant to Clauses 1(ii), 2 and 4 of the ACI, the applicant shall be debarred from making the claim for interest on the statutory compensation at 6% per annum, and as such, the Lands Tribunal shall have no jurisdiction to determine the claim on interest in the present application.

22.Although not stated in the Notice of Opposition, the respondent also averred in the Affirmation of Heung Pui Hang filed on 5 November 2020 (which is the respondent’s evidence in opposition to the application) that market interest rates have been low in recent years and the respondent would like to adduce expert opinion on the appropriate approach to determine the starting point for the interest rate in the context of compensation for land resumption under the Ordinance. In other words, the respondent would like to adduce evidence to change the usual practice of awarding pre-judgment interest at the rate of 1% above prime.

23.Thus, by summons dated 11 December 2020, the respondent applied for leave to adduce expert evidence from a financial expert, namely Mr Kenneth Yeo, to give opinion on:-

(a) the general interest environment in Hong Kong;

(b) the appropriate rate(s) which can be used as a proxy in assessing the average cost of borrowing for an individual;

(c) the level(s) of risk undertaken by an individual for making investment; and

(d) the appropriate measure to reflect “an amount that could compensate the applicant fairly and fully for being kept out of the money”.

24.At the hearing of the said summons on 1 March 2021, the parties agreed that the following preliminary issue should be decided first:-

“Whether the applicant is entitled to make a claim for interest under sections 8(2) and 17 of the Lands Resumption Ordinance, Cap 124 notwithstanding the parties had executed the Agreement as to Compensation and Indemnity dated 8 April 2020 containing, in particular, Clause 2 which provides that: “Interest shall be payable on the Statutory Compensation and the Solatium Payment from the date of resumption of the undivided share to the date of payment of the Statutory Compensation and the Solatium Payment to the Former Owner at such rate as shall be determined by the Director having regard to the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24 hours’ call deposits”; and Clause 4 which provides that “The Director and the Former Owner agree that no application for claim or claims will be made to the Lands Tribunal for the determination of the amount of compensation to be paid in respect of the resumption of the undivided share.”

25.The said summons was therefore adjourned to a date to be fixed after the determination of the said preliminary issue.

26.It is necessary to have the preliminary issue determined first because by the Notice of Opposition the respondent contends that the applicant is debarred from making the claim for interest on the statutory compensation pursuant to the contractual terms of the ACI and hence the Lands Tribunal shall have no jurisdiction to determine the claim on interest. It follows that the expert directions sought by the respondent may be wholly redundant if the respondent succeeds on this primary issue.

27.The parties presented their respective arguments regarding the preliminary issue on 8 June 2021, and I shall discuss them as mentioned below.

Discussions

28.To begin with, the applicant submits that one must not lose sight of the applicant’s entitlement to interest under section 17(3) of the Ordinance, which reads as follows:-

“(3) Subject to section 16A(3), any sum of money payable as compensation by virtue of a determination of the Lands Tribunal or an agreement under this Ordinance shall bear interest from the date of resumption of the land until the expiration of the time specified in the notice referred to in subsection (2). No interest shall be payable on any costs or remuneration.” (emphasis added)

29.Thus, the applicant argues that even when he had entered into an agreement for compensation (as opposed to a determination of the Lands Tribunal), it does not affect his entitlement to interest or to seek determination of the rate and amount pursuant to section 17 of the Ordinance.  Something more is needed for the respondent to make out a case to the contrary effect.

30.I do not agree with the applicant in this regard. No doubt, the applicant is entitled to the compensation sum by agreement and interest is payable thereon, but it does not mean that interest on the compensation sum must be determined by the Lands Tribunal. Such interest can also be agreed by the parties.

31.This was indeed what happened here. Clause 2 of the ACI shows clearly that the parties had agreed that interest shall be payable on the statutory compensation (as well as on the solatium payment), and the rate shall be determined by the Director. The mere fact that the Director has to consider the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24 hours’ call deposits, which is similar to the wordings in section 17(3B) of the Ordinance, does not make such interest payable under section 17(3) and not by agreement.

32.The applicant criticizes the respondent for placing heavy emphasis on Clauses 2 and 4 of the ACI to contend that the Lands Tribunal has been contracted out by the parties of any jurisdiction to deal with the issue of interest. I see nothing wrong for the respondent to rely on these 2 clauses. Clause 2, as aforesaid, has clearly showed that the parties had agreed on the interest payable and how it is to be determined, and hence there is no place for the Lands Tribunal to replace this agreement with its determination. Clause 4 may not have stated expressly that the applicant cannot make a claim for interest to the Lands Tribunal, but when no claim for the determination of the amount of compensation can be made to the Lands Tribunal, there should not be any interest claim arising from the determination of the compensation by the Tribunal.  Thus, section 17(3) of the Ordinance does not help the applicant at all.

33.The applicant places emphasis on the WP Letter which preceded the ACI and provided interest shall be paid on the same terms, namely “at such rate as shall be determined by the Director of Lands (“the Director”) having regard to the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24 hours’ call deposits”.  Such a term of interest was also repeated in respect of provisional payment.

34.According to the applicant, this is important because such a clause is merely repeating the methodology as provided by section 17(3B) of the Ordinance.  Section 17(3B) of the Ordinance stipulates as follows:-

“(3B) The rate of interest fixed under subsection (3A)—

(a) in respect of a working day must not be lower than the lowest of the interest rates paid on deposits at 24 hours’ call by note-issuing banks at the close of business on that day; and

(b) in respect of a non-working day must not be lower than the lowest of the interest rates paid on deposits at 24 hours’ call by note-issuing banks at the close of business on the last working day before that day.”

35.However, I do not see how the applicant can rely on the terms in respect of the WP Letter and the provisional payment to advance his case. The parties had agreed everything in the ACI and only the terms in the ACI are material. The fact that the terms of the WP Letter and provisional payment are similar to the wordings in section 17(3B) is just neither here nor there. As aforesaid, even when the term of the ACI regarding interest is similar to the wordings in section 17(3B), it would not change the fact that interest should be payable pursuant to the agreement and not under section 17.

36.The applicant refers me to the case of Eltron Development Limited v Director of Lands, LDLR 4/2013 (decision dated 28 January 2016) where the Tribunal was dealing with an agreement for provisional payment, and submits that Member Pang seized jurisdiction to determine interest notwithstanding the existence of an identically worded clause.  Paragraph 27 of his decision states that:-

“27. The respondent emphasizes that by virtue of the Agreement the respondent accepted the provisional payment “under section 16A of the Ordinance in respect of the value of the undivided share resumed and assessed in accordance with the Ordinance (bearing interest at such rate as shall be determined by the Director having regard to the lowest rate offered from time to time by the three note-issuing banks in Hong Kong on their 24 hours’ call deposits for the period from the date of resumption …)” The respondent concedes that the latter wordings in the parenthesis is equivalent to the rate of interest under section 17(3B)of the Ordinance.” (emphasis added)

37.The applicant alleges that Member Pang equated such a clause with section 17(3B) of the Ordinance, and recorded in the above paragraph the Director’s concession and its implicit acknowledgement that such concession must be the correct interpretation of its construction in relation to a similar agreement for provisional payment.

38.The applicant submits that the applicant’s acceptance of a term to this effect is not inconsistent to anything which is already provided for under the Ordinance in the normal course, and the Tribunal has never interpreted this term to bar its jurisdiction.  Thus, nothing possibly turns on Clause 2.

39.However, the case of Eltron Development Limited concerns with provisional payment made under section 16A of the Ordinance on a without prejudice basis, which is not the case here. The fact that Member Pang awarded interest in that case has no bearing on our present case at all.

40.The applicant submits that Clause 4 is even further removed from the question of interest, as it concerns the barring of a “claim or claims” to the Tribunal.  The “claim or claims” in question as expressly stated in Clause 4 is limited to “the determination of the amount of compensation to be paid in respect of the resumption of the undivided share”. Thus, it refers only to section 8 of the Ordinance but does not otherwise concern interest or application pursuant to section 17 of the Ordinance.  At the least, it does not expressly say so.

41.The applicant contends that the aforesaid must be a fair reading of Clause 4, the effect of which means that the applicant’s present claim for interest has not been barred.

42.However, as aforesaid, when the applicant is barred from making a claim or claims for compensation, there should not be any interest claim arising from the determination of the compensation by the Tribunal. The amount of compensation was agreed by the parties in the ACI and the way of how the interest should be determined was also agreed by the parties in the ACI. Section 17 of the Ordinance should not come into play at all.

43.The applicant further submits that he can and shall rely on the contra proferentem rule to hold the alleged ‘ambiguity’ in the ACI (ie no express bar to claim on assessment of interest) against the respondent (as the drafter) given the uneven bargaining power in modifying the terms as evidenced by the correspondence exchanged between the parties whereby the Government’s solicitors repeatedly insisted that the ACI must be signed as is (see also Eltron Development Limited, supra, at paragraph 35).

44.The applicant contends that the underlying nature of the ACI should be considered in its proper context. The ACI, allegedly being a condition imposed under the WP Letter as propounded by the respondent, must essentially represent an extension of the “statutory offer” made pursuant to section 6 of the Ordinance which is confined purely to compensation for value of the resumed land, and which operates separately from the entitlement to interest provided for under section 17 of the Ordinance.

45.Accordingly, the applicant submits that his entitlement to interest by section 17 of the Ordinance subsists regardless of the wording of the terms of the agreement made pursuant to section 6.

46.However, I do not see any ‘ambiguity’ in the ACI. Clause 2 is very clear on how the interest is to be determined. Clause 4 is also clear that the applicant cannot make any claim to the Tribunal for determination of the amount of compensation. As aforesaid, no interest should be determined by the Tribunal because no amount of compensation requires determination by the Tribunal and the parties had already agreed on how the interest should be determined.

47.The applicant submits that his contention is in fact similar to the argument made by Ms Gladys Li SC in Capacious Investments Limited v Secretary for Justice, [2001] 1 HKC 219, which was a case concerning land resumption under the Roads (Works, Use and Compensation) Ordinance, Cap 370 (“the RWUCO”). In that case, Ms Li, SC, argued that, as a matter of law, compensation for the resumption of land is compensation purely for the value of the land itself, exclusive of any consideration of interest.

48.The applicant submits that Deputy Judge Whaley rejected her argument only by reason of the finding that the subject offer made under the RWUCO was ex gratia rather than statutory.  It is however to be noted that implicit from the decision was the acceptance of the learned judge as to the soundness of the argument which would otherwise have applied had the offer been made under section 6 of the Ordinance.  The a fortiori argument applies and should thus succeed here because the ACI must be statutory.

49.However, I do not see anything implicit in Deputy Judge Whaley’s judgment that he accepted the argument of Ms Li, SC. In any event, that case was concerning ex gratia payment, not statutory payment. It has no bearing on the present case at all.

50.The applicant also draws analogy from the decision in Tai Ping Restaurant Ltd v Director of Lands, LDLR 1/2013 (decision dated 24 June 2016) where the Tribunal was tasked to adjudicate on the question of awarding interest as to provisional payment made which had been accepted by the applicant at agreed interest rates by contract. Adopting Eltron Development Ltd and finding that the acceptance of an offer for provisional payment by the applicant was without prejudice to any claim the applicant might have under the Ordinance, the Tribunal therein ultimately seized jurisdiction to determine and award interest pursuant to section 17 of the Ordinance.  Thus, the applicant submits that there is no reason why the ACI here should not be construed and given effect in such like manner.

51.However, just like the case of Eltron Development Ltd, this Tai Ping Restaurant Ltd case is not relevant to our present case as it was concerning provisional payment.

52.It is the applicant’s contentions that the ACI as a statutory section 6 offer cannot be extended to deal with or confine a section 17 claim regardless of its construction, and that the Lands Tribunal has jurisdiction to hear the applicant’s claim for interest.

53.However, for reasons aforesaid, I totally reject the applicant’s contentions.  I am not convinced at all that the applicant has a claim for interest under section 17 of the Ordinance when he has executed the ACI.

54.Furthermore, as submitted by the respondent, the applicant cannot be regarded as “such person” within or for the purpose of section 8(2) of the Ordinance. Sections 8(1) and (2) of the Ordinance read as follows:-

“(1) Any person claiming compensation by reason of the resumption of any land under this Ordinance, and being a person who has not been offered in writing compensation under section 6(1)(a), or has not been served with a notice under section 6(1)(b), may submit a claim in writing to the Authority stating the nature of his estate or interest in the land and the amount which he seeks to recover.

(2) If any such person and the Authority do not agree as to the amount of compensation (if any) to be paid either party may submit the claim to the Lands Tribunal for determination of the amount of compensation (if any) to be paid.”

55.The provisions of the Ordinance envisage that only the following persons may make a claim to the Lands Tribunal:-

(a) a person to whom an offer has been made under section 6(1)(a) of the Ordinance and he does not accept the offer within 28 days from the date of the offer (see section 6(3)(a) of the Ordinance);

(b) a person on whom a notice has been served under section 6(1)(b) of the Ordinance and he does not make a claim to the Director within the time stipulated in such notice (see section 6(3)(b)(i) of the Ordinance);

(c) a person on whom a notice has been served under section 6(1)(b) of the Ordinance and he has submitted a claim to the Director within the stipulated time but does not agree with the Director as to the amount of compensation (see section 6(3)(b)(ii) of the Ordinance); and

(d) any other person not falling within section 6(1)(a) nor section 6(1)(b) of the Ordinance who has submitted a claim for compensation by reason of the land resumption of the premises to the Director under section 8(1) of the Ordinance, but does not agree with the Director as to the amount of compensation (see sections 8(1) and (2) of the Ordinance). 

56.It is clear that the applicant does not fall within any of the above categories. In particular, section 8(2) is not applicable to the applicant when he is not a person who has not been offered in writing compensation under section 6(1)(a), or has not been served with a notice under section 6(1)(b).

57.By the WP Letter, the applicant had been offered in writing a compensation package under section 6(1)(a) of the Ordinance, which was accepted by the applicant. The applicant had in fact agreed with the Director as to the amount of compensation. Thus, section 8(2) of the Ordinance is completely inapplicable to the applicant’s claim for compensation.

58.It is also misconceived for the applicant to claim interest under section 8(2) as it is not a provision for claiming interest. Even the applicant himself, in referring to the case of Capacious Investments Ltd, supra, suggests that an offer for compensation is exclusive of interest. Thus, it is just not right for the applicant to claim interest alone under section 8(2) of the Ordinance.

59.The applicant’s claim for compensation as well as for interest had already been fully settled by the parties as recorded in the ACI. The applicant is entitled to interest at the “contractual” rate to be determined by the Director pursuant to Clause 2 of the ACI.    

60.It is clear to me that the applicant is bound by the settlement terms in the ACI and has no separate cause of action to make a fresh claim for interest. The Government’s offer, which included the solatium payment (an ex gratia payment), was in fact an all-inclusive compensation offer in full and final settlement of any claims the applicant has or may have against the respondent in the resumption of the Property. The applicant’s acceptance of the offer (including the ex gratia solatium payment) means that the applicant will have no further claim of any nature whatever (including interest) against the Government in respect of the resumption of the Property (see Capacious Investments Ltd v Secretary for Justice, supra). 

61.Any proposition that there was no agreement on the interest payable is indeed factually wrong. The ACI was in fact signed, sealed and delivered by the applicant before a notary public in Sydney on 8 April 2020. The ACI is final and binding between the parties. The applicant cannot turn around and argue that he has not agreed on interest or that he still has a remaining statutory claim for interest now.

62.Moreover, as the ACI was signed, sealed and delivered by the applicant like a deed, which is of a higher nature than a simple contract, the applicant is estopped in a court of law from saying that the facts stated in the deed are not truly stated (see Chitty on Contracts, 33^rd ed, volume 1, paragraphs 1-147 & 1-148).

63.Thus, it is my finding that the Lands Tribunal has no jurisdiction to determine the question of interest in the circumstances of this case.  

Conclusion

64.By reasons aforesaid, the preliminary issue must be decided in favour of the respondent.

65.My decision on the preliminary issue is therefore as follows:-

“The applicant is not entitled to make a claim for interest under sections 8(2) and 17 of the Lands Resumption Ordinance, Cap 124 when the parties had executed the Agreement as to Compensation and Indemnity dated 8 April 2020.”

66.I also make an order nisi that the applicant do pay the respondent costs of the proceedings in relation to the determination of the preliminary issue to be taxed on High Court Scale if not agreed, and the order nisi shall become absolute when there is no further application on costs in relation to the preliminary issue within the next 14 days.

67.As the preliminary issue has been decided, it may have consequential effect on the further conduct of the proceedings herein. The parties are reminded to take out appropriate application to dispose of the case as soon as possible.

Mr Tony CHOW, instructed by Cheung, Chan & Chung, for the applicant

Ms Jess CHAN, instructed by Department of Justice, for the respondent