林見陽祖 (司理人: 林春樹，林盛謙) v. 林裕邦
Read the full judgment text of LDPE 1700/2024 on BabelCite. This LDPE judgment was delivered on 27 October 2025.
1. This is the Respondent’s application dated 18 September 2025 to set aside my judgment dated 15 September 2025 (“the Judgment”) which was decided in the absence of the Respondent. The Applicant is represented by Mr Fung Lim Kai of Messrs Benny Kong & Tsai LLP, Solicitors. The Respondent is represented by Ms Julia Au who is instructed by Messrs K M Lai & Li.
Cited by 1 case · Cites 13 cases
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LDPE 1700/2024 [2025] HKLdT 65 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION APPLICATION NO LDPE 1700 OF 2024 __________________________ BETWEEN
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________________ REASONS FOR DECISION ________________ 1.This is the Respondent’s application dated 18 September 2025 to set aside my judgment dated 15 September 2025 (“the Judgment”) which was decided in the absence of the Respondent. The Applicant is represented by Mr Fung Lim Kai of Messrs Benny Kong & Tsai LLP, Solicitors. The Respondent is represented by Ms Julia Au who is instructed by Messrs K M Lai & Li. 2.At the end of the hearing on 6 October 2025, I dismissed the Respondent’s application with reasons to be followed. Here are the reasons. History 3.Lot Nos 380 & 540 in DD 124 (“the Lots”) are registered in the ownership of Lam Kin Yeung Tso (林見陽祖) (“the Tso”) with managers, Mr Lam Chen Shu (林春樹) and Mr Lam Shing Him (林盛謙) (hereinafter referred to as “the Managers”). 4.Pursuant to a Tenancy Agreement in Chinese (“the Tenancy Agreement”) proffered by the Applicant, the Managers, acting on behalf of the Tso, let the Lots to the respondent (which was named as 林羽邦the pronunciation of which is the same as 林裕邦) for a term of three years from 15 January 2021 to 14 January 2024 at a yearly rent of $10,000 exclusive of rates, Government rent or any license fee, payable in advance (Clause 2). 5.By Clause 3 of the Tenancy Agreement, the respondent could not sub-let and assign to others without the prior approval by the managers. 6.On 29 October 2024, the Applicant commenced an application of recovery of vacant possession of the Lots (“the Application”) on the ground that the respondent (who again was named in the Notice of Application of even date as 林羽邦the pronunciation of which is the same as 林裕邦) had failed to pay rent for the period since 15 January 2021. More particularly, in the Notice of Application, the Applicant stated that when the tenancy agreement expired, the Respondent held over and did not pay any rent. The Applicant asked for damages as a result thereof. 7.Notwithstanding the discrepancy of the Respondent’s name in Chinese, the Respondent was able to file his Notice of Opposition on 6 November 2024. The Respondent alleged that:
8.In a supplement to the Notice of Opposition (補充資料), the Respondent stated the Tenancy Agreement was supposed to be renewable every 3 years subject to an increase in rent not exceeding 20%. However, when the Tenancy Agreement expired, the Applicant asked for a 5 times increase. For that reason, the Respondent had proposed to convene a meeting with the Managers and other members of the Tso to settle the matter but to no avail. Then on 24 February 2024, the Respondent was able to meet the bookkeeper of the Tso, Mr Lam Kam Wong (林金旺) and agree with him that there would be a new tenancy at a yearly rent of $10,000. However, Mr Lam Kam Wong counter-proposed that he could succeed his late father as a Manager of the Tso. While the Respondent could not accede to Mr Lam Kam Wong’s counter-proposal, the latter had not arranged the new tenancy to be signed. 9.Realising the discrepancy of the Respondent’s name in Chinese, the Applicant applied for the correction on 3 December 2024 which was allowed by Member Ng of the Lands Tribunal (“the Tribunal”) in the presence of both parties including the Respondent in person. 10.In addition, Member Ng directed that the Applicant should provide to the Tribunal further and better particulars of its case on 13 March 2025 with a copy sent to the Respondent. Then the Respondent should reply to the particulars within 21 days thereafter. 11.On 25 April 2025, the Applicant, then represented by Messrs Benny Kong & Tsai LLP, Solicitors, issued a Summons applying for further amendment of the Notice of Application so that only Lot 380 in DD 124 is issue (“Lot 380”). Hearing of this Summon was originally scheduled on 29 May 2025. Meanwhile on 19 May 2025, the Respondent made an application to postpone the hearing, complaining that he had not received the notice of hearing. 12.On 27 May 2025, the two applications above were heard before me in the presence of both parties including the Respondent in person. I allowed the further amendment of the Notice of Application and ordered that the hearing on 29 May 2025 be vacated as it had become no longer necessary. 13.The Application as amended on 30 May 2025 contained the following particulars:
14.As regards the assessment of mesne profits at $12,000 per month, the Applicant relied heavily on a tenancy agreement in respect of Lot Nos 770, 783, 785, 787, 789 & 791 in DD 124 dated 13 February 2023 which was for a term of 3 years commencing from 1 November 2022 to 31 October 2025 at a monthly rent of $41,000. On the basis of 13,000 sq ft, the monthly rental could be deduced at $3.15 per sq ft. Whereas Lot 380 has a registered area of 0.09 acre, which is equivalent to 3,920 sq ft, the Applicant submitted that the market rent in the sum of $12,000 per month should be reasonable. 15.On 8 August 2025, Messrs Benny Kong & Tsai LLP, Solicitors, applied for hearing of the Application. On 12 August 2025, the Tribunal informed the parties that the hearing would be held on 15 September 2025 (with a half-day reserved), pursuant to which both parties had to submit and exchange their witness statements within 21 days. 16.When the hearing of the Application took place on 15 September 2025 as scheduled, the Respondent failed to appear. On the basis of the submission of Mr Fung Lim Kai of Messrs Benny Kong & Tsai LLP, Solicitors, which included citing of my judgment in Wong Sai Lee and Wong Kwok On Edward KWOK as manager of Wong Kwok Hing Tso v Wong Kam Ki & Another, LDPE 165/2022 (unreported, dated 2 June 2022), I made the following order:
Respondent’s bases to set aside the Judgment 17.On 18 September 2025, the Respondent sought to set aside the Judgment on the ground that the Respondent did not have notice of the hearing on 15 September 2025. The Respondent sought the Tribunal to give him another chance to defend the Application. 18.It was only on 6 October 2025 that the Respondent filed his “2nd Affirmation” in support of his application to set aside the Judgment. 19.The Respondent suggested he had been a hairdresser working at the material times at “Pip For Hair Salon” at No 64, Electric Road, North Point, Hong Kong. To facilitate his commuting to work, the Respondent stated (only for the first time throughout the proceedings) that he had resided at Unit B2, 10/F, Block AB, Haven Court, 128 Leighton Road since 16 December 2023[1] instead of his address at G/F, 19 Shek Po Tsuen, Hung Shui Kiu, New Territories. The Respondent would only go back to his address at 19 Shek Po Tsuen occasionally during holidays. 20.The Respondent conceded (again for the first time throughout the proceedings) that he appreciated copies of letters from the Tribunal regarding the proceedings would also be addressed to Lot 380. However, Lot 380 is an agricultural lot and therefore he could not receive such copies from the Tribunal. 21.While the Respondent acknowledged that he had resided at G/F, 19 Shek Po Tsuen, Hung Shui Kiu, New Territories, the letter box had been marked 19D (instead of 19) Shek Po Tsuen. The Respondent suggested this explained why he had not been able to receive any letter from the Applicant’s solicitors or the Tribunal. 22.Notwithstanding the above, the Respondent acknowledged that he had received the following letters[2] served on him by the Applicant’s solicitors in person:
23.The Respondent complained that the letter dated 11 September 2025 was served on him too late to assist him in preparing his witness statement on 2 September 2025[4]:
24.More particularly, the Respondent averred that he did not return to his address at G/F, 19 Shek Po Tsuen during the period from 11 September 2025 to 16 September 2025 and therefore he could not be aware of the hearing scheduled on 15 September 2025 until he was called up by the clerk from the Tribunal on that morning. However, he was busy at work and so replied foolishly that he could not attend unless the hearing be refixed on another day[6]:
25.In addition, the Respondent complained that according to page 41 of Trial Bundle A, the Applicant’s solicitors sent him a letter dated 28 August 2025 only reminding him to exchange his witness statement on 2 September 2025 as per the Order of the Tribunal dated 12 August 2025. The Respondent alleged that this letter dated 28 August 2025 should have taken at least 2 days for posting before he could receive. By that time, 2 September 2025 should have passed. 26.The Respondent stated also that the Tso comprises 3 descent divisions (房), to which his father and the other two Managers belong. According to him, the Tso’s land could only be rented to its members who would only pay nominal rent though it would be reviewed every 3 years with an increase not exceeding 20%. The Respondent succeeded his father’s occupation of Lot 380 in 2000 when the annual rent payable was $1,500. 27.The Respondent also denied that Lot 380 was leased to him under a tenancy for 6 years from 2018. Instead, it was only a 3-year tenancy. However, when the tenancy expired in 2021, the renewal rental has still been under negotiation to no avail. This notwithstanding, when the Respondent received the letter from Messrs Benny Kong & Tsai LLP dated 29 April 2024, he was willing to pay $30,000 as demanded so as to avoid the accusation by the Applicant that he failed to pay rent. Respondent’s Submission 28.On the other hand, the Tribunal received the Respondent’s Submission dated 3 October 2025 prepared by Ms Julia Au (“Ms Au”), counsel for the Respondent:
Principles for Setting Aside 29.Rule 15(7) of the Lands Tribunal Rules (“LTR”) provides that “The Tribunal may on such terms as it thinks fit set aside or vary any order made under this rule”. 30.In considering a setting aside application under rule 15(7) of the LTR, the Tribunal would apply the legal principles on setting aside a default judgment in the context of Order 13 of the Rules of the High Court, Cap. 4A (“RHC”): Alwaysfull Industries Ltd v Leung Lai Bing Peggy (unreported, LDPD 286/2014, 4 July 2014) at §§16-18. Those principles are as follows:
31.In the present case, when the Applicant filed the Notice of Application on 29 October 2024, a copy of the Notice of Application was served to the Respondent’s address at G/F, 19 Shek Po Tsuen as well as Lot 380 though the Respondent was named as 林羽邦 instead of 林裕邦 as later corrected on 3 December 2024. Notwithstanding the latter, the Respondent filed his Notice of Opposition in response on 6 November 2024, stating, inter alia, his address at G/F, 19 Shek Po Tsuen. Thus the service of originating process must be effective when the proceedings are brought to the notice of the Respondent instead of mere delivery of the Notice of Application to the address as stated in the procedural rules. 32.It was only when the Applicant, then represented by Messrs Benny Kong & Tsai LLP, Solicitors, issued a Summons applying for further amendment of the Notice of Application so that only Lot 380 in DD 124 is in issue on 25 April 2025, the Respondent alleged for the first time that he did not receive the Summons. This notwithstanding, the Respondent, in his Interlocutory Application dated 19 May 2025 to postpone the hearing, did not disclose anything wrong with his address at G/F, 19 Shek Po Tsuen. 33.Even on 27 May 2025 when the two applications above were heard before me in the presence of both parties including the Respondent in person, the Respondent did not disclose that he might have a second address at Haven Court in Causeway Bay, Hong Kong. 34.Perhaps the Respondent was aware of his duty to follow up with the progress of the proceedings when he attended the Tribunal Registry in July 2025 to ask for updates on the case. Regrettably, even at that moment he did not bother to inform the Tribunal as regards his address at Haven Court in Causeway Bay, Hong Kong. 35.Then the Respondent complained not receiving the letter from the Tribunal dated on 12 August 2025 informing him of the hearing on 15 September 2025 and requirement for exchanging the witness statements within 21 days. With respect, there should be no complaint about not receiving the list of documents to be adopted in the hearing as contained in the letter from Messrs Benny Kong & Tsai LLP, Solicitors dated 11 September 2025 when these documents should not have affected the Respondent’s ability to prepare his own witness statement, if he wished. In gist, the Respondent’s only defense was that the Applicant acted without authority to terminate the Tenancy Agreement under the Chinese customary law. 36.For the same reasons discussed above, whether the Respondent had received the Applicant’s Skeleton Opening Submission and the Trial Bundle in time was neither here nor there. In any event, the Respondent failed to exchange the witness statements as ordered by the Tribunal by his own fault of not informing either the Tribunal or the Applicant his address at Haven Court, Causeway Bay, Hong Kong. 37.Coming onto 15 September 2025, the Respondent admitted that he was reminded by the Tribunal to attend the hearing as scheduled (though he may arrive late). He further admitted that he declined to attend the hearing of his own volition. 38.The Judgment, therefore, must be regular. Merit of the Defense 39.Notwithstanding the submission by Ms Au that there might be a discrepancy between the Tenancy Agreement asserted by the Applicant and that asserted by the Respondent on the term of the tenancy, either version of them referred to a fixed term tenancy that had expired on 14 January 2021. See §6 of Ms Au’s Submission dated 3 October 2025 at §28 above. 40.In Chow Kin Ying v Hussain, Shouket, HCMP 1535/2016 (unreported, dated 11 July 2016), the Court of Appeal affirmed at §8 that:
41.Then, similar to that of the respondents in Wong Sai Lee & Wong Kwok On Edward as Manager of Wong Kwok Hing Tso v Wong Kam Ki & Another, LDPE 165/2022 (unreported, dated 2 June 2022) on which Mr Fung of Messrs Benny Kong & Tsai LLP, Solicitors, relied in his Skeleton Opening Submission, the Respondent’s only defense was that the Applicant did not have the authority to terminate the Tenancy Agreement owing to Chinese customary law. 42.In the above judgment, I had referred to the decision of Tang Kam Wah & Others v Tang Ming Yat & Another, HCA 10141/1998 (unreported, dated 26 November 2002) where Chu J (as she then was) ruled at §72 as follows:
43.In fact, my judgment in Wong Sai Lee & Wong Kwok On Edward as Manager of Wong Kwok Hing Tso was affirmed by the Court of Appeal[10]. In this latter decision, the Court of Appeal ruled at §22 that when the manager of a Tso tried to recover possession of land after expiry of a tenancy, the Chinese customary law is not applicable:
44.Thus, I find no merit in the Respondent’s defense. Mesne Profits 45.It is trite that where a tenant remains in possession of the premises after a fixed term tenancy agreement has expired without the landlord’s consent, he is a trespasser liable for mesne profits until he relinquishes possession[11]. The Respondent failed to deliver vacant possession even up to date. 46.In the present case, it is not in dispute that the Respondent did not deliver vacant possession of Lot 380 as at the relevant dates. At least, the unauthorized structure on Lot 380 as erected by the Respondent remained thereon. 47.Instead, Ms Au had tried to argue that even though the Tenancy Agreement expired, the Respondent could be a periodic tenant (period of 1 year) or a tenant on a fixed term of 3 years. But she could provide no basis in support of her suggestion. 48.On the other hand, by reference to the Respondent’s version of tenancy agreement as attached to his 2nd Affirmation as LYP-5, it clearly stated that the tenancy agreement would have no effect when it expired:
49.Certainly, by reference to the Tenancy Agreement asserted by the Applicant, it commenced from 15 January 2018 to 14 January 2024 instead. 50.As regards the quantum of the mesne profits, I had enquired Ms Au if the Judgment were set aside, whether the Respondent would be prepared to submit any valuation evidence to challenge the determination of $12,000 per month. Ms Au confirmed the negative. 51.Instead, Ms Au submitted that it was the Respondent’s case that the rental should be a nominal rent as before or in any event, a rental based on a restriction for agricultural use only rather than on a Melhado basis. The latter basis is derived from the judgment of the Court of Appeal in Attorney General v Melhado Investment Ltd. [1983] HKLR 327 where it was held to the effect that the agricultural land as described in the Block Crown lease can be used for open storage purposes without breaching of the covenant of the lease. 52.Since that decision of the Court of Appeal, much of the land in the New Territories covered by a Block Government Lease has long ceased to be farmed and has instead been utilized as open storage (including container storage) or open car park space. Such alternative uses of New Territories agricultural land have come to be known as Melhado uses. 53.In the review decision of Delight World Limited v Secretary for Transport, LDMR 2/2002 (unreported, 21 May 2004), the applicant’s land was at the material times vacant and had not been used either for car parking or open storage. When it was resumed by the Government, the applicant successfully claimed compensation on the basis of open storage use. In dismissing the appeal by the Secretary for Transport, the Court of Appeal[12] stated at §§13-14 as follows:
54.While the Respondent alleged that Lot 380 had been used mainly for agricultural purposes, I cannot find any evidence that Lot 380 is restricted to agricultural use only rather than the Melhado use. 55.To the contrary, by reference to §14⑥ of the Grounds of Opposition (答辯理據) attached to the Amended Notice of Opposition dated filed on 11 June 2025, the Respondent accused the Managers of renting out the Tso’s land for carparking purposes. Disposition 56.The Judgment is a regular judgement. The Respondent has failed to discharge the burden of showing an arguable defense. The Summons dated 15 September 2025 was therefore dismissed. Costs 57.Costs shall follow the event. Having reviewed the Statement of Costs produced by the Applicant at the end of the hearing and having heard the submissions of both parties on this issue, I summarily assess the costs in the sum of $30,000 payable by the Respondent.
Mr Fung Lim Kai of Messrs Benny Kong & Tsai LLP., for the applicant Ms Julia Au, instructed by Messrs K M Lai & Li., for the respondent [1] A tenancy agreement for renting Unit B2, 10/F, Block AB, Haven Court for a term of 1 year since 16 December 2023 was attached to the “2nd Affirmation” as LYP-1. While no evidence for stamping the tenancy agreement had been tendered, the Respondent suggested that he has continued to rent that unit on monthly basis. [2] Copies of these letters were was attached to the “2nd Affirmation” as LYP-3. [3] This was also evidenced by a photo shown by the Applicant during the hearing on 6 October 2025. [4] That is 21 days from 12 August 2025 as per the letter from Tribunal requiring the parties to exchange their witness statements. [5] See the Respondent’s 2nd Affirmation at §4. [6] See the Respondent’s 2nd Affirmation at §5. [7] By the time of the hearing on 6 October 2025, the Respondent had got hold of this document. [8] With respect, the hearing date was only fixed on 12 August 2025 and therefore it was no surprised that if and when the Respondent attended the Tribunal in July 2025, he could not be informed of the hearing date. [9] This contradicted the Respondent’s own admission in his 2nd Affirmation at §5 that he was phoned up by the Tribunal’s clerk in the morning of 15 September 2025 reminding him of the hearing. [10] See CAMP 295/2022 (unreported, 5 December 2025). [11] See Kam Wing Property Investments Limited v Koncord Limited, HCA 1543/2003 (unreported, 21 November 2003) at §12. [12] CACV 167/2004 (unreported, dated 12 May 2005). |
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