Ching Chun-kau v. Director of Lands and Survey
Read the full judgment text of CACV 52/1977 on BabelCite. This Court of Appeal judgment.
1. The compensation falls to be determined under s. 10 of the Crown Lands Resumption Ordinance and that section makes it clear that the compensation is for loss or damage. It appears to be common ground that what the Claimant has lost is the unexpired term of twenty-two years of a renewed Crown lease for twenty-four years less three days, although we have not been shown the document or documents effecting the renewal. The view which commended itself to the Tribunal was that the value of that une
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CACV000052/1977
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 27th June 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The compensation falls to be determined under s. 10 of the Crown Lands Resumption Ordinance and that section makes it clear that the compensation is for loss or damage. It appears to be common ground that what the Claimant has lost is the unexpired term of twenty-two years of a renewed Crown lease for twenty-four years less three days, although we have not been shown the document or documents effecting the renewal. The view which commended itself to the Tribunal was that the value of that unexpired term was no more than the value of an unexpired term of six months, because, without an annual licence issued under the Dairies Regulations made under the Public Health (Animals and Birds) Ordinance, the land could not lawfully be used for the only purpose permitted under the terms of the lease: the existing licence had only six months to run and the grant of a new licence lay within the discretion of the Director of Agriculture and Fisheries. That view was based upon s. 12(c):
The short answer appears to me to be that the Claimant is not seeking compensation in respect of any expectancy or probability of the grant of a licence but in respect of the unexpired term of the Crown lease. Lynch v The Corporation of the City of Glasgow (1903) 5 F. 1175 is thus distinguishable, because there the tenant claimed in respect of the chance of a renewal of her lease. 2. However, the Tribunal went on to say that, although the Claimant had an unexpired term of twenty-two years, any part of that term which was not covered by an existing licence under the Dairies Regulations was valueless, and it was on that point that Lord Rawlinson has addressed us at length. Again, I think, with respect, that the Tribunal allowed its view to be clouded by s. 12(c), for the assumption that the unexpired term could have no value apart from the expectancy or probability of the grant of a dairy licence was clearly based upon their interpretation of that paragraph. They reasoned that unless a dairy licence were issued the land could not be used as a dairy and that, as the lease permitted no other use, the land would have to remain unused for the remainder of the Crown lease. Land which could not be lawfully used, the Tribunal concluded, could have no value. This view has a superficial attraction but I am persuaded that it is not sound. It was a view which was taken by the Tribunal on its own motion and was not suggested by either of the parties, and the Crown has not sought to support it before us. 3. For the moment I will assume that the Director of Agriculture and Fisheries would decline to issue a new dairy licence. The object of such a licence is to ensure proper standards of health. If the tenant were refused a licence because he failed to comply with the reasonable requirements of the Director, it does not follow that no licence would be issued to someone who was willing to comply with those requirements. If the licence were refused unreasonably, the tenant could apply to the court for an order requiring the Director to consider the application according to law. In both those instances the land would clearly have a value throughout the unexpired term of twenty-two years. The possibility which impressed the Tribunal was that the Director might reasonably refuse a licence on the ground that the use of the land as a dairy would be a danger to public health even if the highest conceivable standards were maintained. What they had in contemplation was the possibility that, by reason of the encroachment of the urban area upon surrounding land, continued dairy farming on the land in question would necessarily be a danger to health. Should that situation arise the Director could lawfully refuse a licence and the tenant would, the Tribunal thought, have no method of compelling him to issue one. The situation envisaged could no doubt arise, although there is no evidence that it is likely to arise within the foreseeable future. If it did arise, however, the Claimant would not be without redress, for he could either institute proceedings against the Crown (as lessor) to prevent a derogation from the grant to him or he could allow the encroachment to continue and then treat the covenant restricting the use of the land as no longer binding upon him when a licence was refused on the ground of such encroachment. So long as the Claimant cannot be left without redress it cannot be said that the land has no value. 4. The Tribunal felt constrained to limit the compensation to the period of six months, a period entirely unconnected with the unexpired term in respect of which the claim was made and dependant solely upon the relationship between the date of resumption and the date of the expiry of the current dairy licence. It was, no doubt, a pure matter of chance that the resumption order was not made either on the day on which that licence was granted or on the day on which it expired. Had it been the latter day the Tribunal would presumably have awarded no compensation at all. Such an extraordinary result is not one which I could endorse unless driven by the clearest possible language. It was the force of the words of s. 12(c) which so impressed the Tribunal that they thought they were driven to that result. As I have said, I think that that paragraph has no relevance to the case before us. 5. We are asked by the Crown on allowing the appeal to vary the award to one of $1,850,000, which was the figure which the Tribunal said it would have awarded had it come to a different conclusion as to the effect of the need for a dairy licence. It is contended that the matter was fully argued before the Tribunal and that if they had made an award of $1,850,000 no appeal would have lain to this court save on a point of law: therefore it would save time and costs if we ourselves varied the award accordingly. I can see the force of this contention, for in a sense the Appellant would have - if not a second bite - then a second nibble at the cherry, but there are other considerations. If an award of $1,850,000 had been made the Claimant would have contended that the award erred in point of law: so much appears from the Notice of Appeal on which the case has come before us. The appeal would have come before this court. If we make a like award, any attack upon it would have to be by way of appeal to Her Majesty in Council. It is not denied that we have jurisdiction to remit the case to the Tribunal, but I think the suggestion is that they ought inevitably to come back with the figure they previously had in mind. They may do so, but I am not persuaded that they will inevitably do so. I understand that the Claimant may wish to adduce further evidence and he certainly wishes to address further argument to the Tribunal. It would be for the Tribunal to decide, in the judicial exercise of its discretion, whether to allow further evidence. Whether or not they would allow further evidence, they might be persuaded that their provisional view was wrong and, as the decision of the Tribunal is in some respects final, I see no great harm in allowing the Appellant a second nibble if he wishes to have one: the Tribunal has a discretion in the matter of costs. I am aware of the view expressed by Tucker, L.J. in Harrison v National Coal Board 1950 1 K.B. 466, 477 as regards the desirability in an action for damages of making a provisional assessment and I do not question the precaution taken by the Tribunal in making a provisional assessment of the compensation here. However, I know of no authority which compels an appellate court to adopt a provisional assessment. Whether it should do so must depend upon the circumstances of the case. Normally, I have no doubt, it will do so and the parties will be happy to avoid the expense which would otherwise be incurred. Nevertheless, where there is a possibility that the matter has not been fully investigated, I think it may be right to remit the case for further consideration. 6. I also would allow the appeal and remit the matter to the Tribunal to assess the compensation in the light of our decision. 27th June 1978. Representation:
----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 27th June, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 7. At the nub of this appeal, as argued before us, lay the interpretation of section 12 sub-section (c) of the Crown Lands Resumption Ordinance (Cap. 124). That sub-section reads:-
8. It is somewhat ironic that at the hearing before the Crown Lands Tribunal the Crown did not strive for an interpretation of the word 'licence' in the sub-section otherwise than in the context of an interest in land. The construction of that word as including a permit to operate a dairy farm came spontaneously from the Tribunal itself and at the hearing before us the Crown allied itself with the Appellant's argument that the word 'licence' connoted an interest in land. 9. A Court of Appeal cannot however, as it were, allow an appeal by consent of the parties; thus it fell to Lord Rawlinson, leading counsel for the Appellant, to persuade us of the accuracy of the view shared by both parties. That he did - though whether section 12 subsection (c) of the Ordinance is truly relevant may be doubted for the reasons expressed by my brother Huggins. In either event the award made ignored the existence of a 22-year unexpired interest in the land and was palpably inadequate. 10. It was for this reason that we set aside the award and remitted the matter to the Tribunal for the assessment of a fresh award. The Tribunal having carefully calculated the award which they would have made had their interpretation of section 12 sub-section (c) been otherwise, Mr. Major, for the Crown, invited us not to remit the matter to the Tribunal but simply to substitute for the award of $108,000 an award of $1,850,000 being the alternative figure arrived at by the Tribunal. This we felt unable to do for that alternative figure is also under attack in the grounds of appeal and, assuming our jurisdiction to hear an appeal against an award not actually made, which jurisdiction I would hold to exist, it would be undesirable for this Court to calculate an award itself leaving any dissatisfied party with no avenue of redress except to Her Majesty's Privy Council. 11. I agree that costs in this Court should be those of the Appellant and that costs of the two hearings in the Tribunal should be at the discretion of the Tribunal. Representation: Lord Rawlinson, Q.C. and R. Tang (H.H. Lau & Co.) for Appellant. A.H. Major for Crown/Respondent. |
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