Leung Yoke Sim v. Lam Kuen and Others

LDPD002768/1999

LDPD2768/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDPD No. 2768 of 1999

Coram: Member W K LO

Date of judgment: 14 September 2000

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JUDGMENT

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Background

1. The applicant is the landlord and the 1st respondent the principal tenant of the subject premises known as Flat A, 4th Floor, Hing Wong Mansion, 73A Tai Kook Tsui Road, Kowloon, Hong Kong ("the subject premises"). On 6 December 1999, the applicant filed an application by Form 22 against the 1st respondent on the ground that the latter failed to pay rent since 1st July 1999. The applicant sought orders for possession of the subject premises and payment of rent.

2. The 1st respondent did not file any notice of opposition. The application was fixed for hearing on 27 January 2000. The 1st respondent was absent in the hearing at the end of which an oral judgment was delivered in favor of the applicant. The following orders were made:

1. Vacant possession to Applicant conditional upon the Respondent falling within 4 weeks in terms of s.21F of the High Court Ordinance, Cap.4 to pay the sums provided for in paragraphs 2 and 3 herein;

2. The Respondent shall pay the Applicant arrears of rent/mesne profits from 1st day of July 1999 at the rate of $5,600 per month until delivery up of vacant possession;

3. The Respondent shall pay the Applicant's costs which is fixed at $1,000;

4. Payment out to the Applicant upon payment in.

3. The applicant subsequently applied for a writ of possession. This was granted on 29 February 2000. The applicant then applied to the bailiff's office to enforce the Court's writ of possession.

4. On 21 March 2000, the 2nd to 5th respondents instructed Messrs. Raymond T.L Tse & Co. to act as their solicitors and took out an inter parties summons. They claimed that they were the sub-tenants of the 1st respondent and they applied among other things to join in as the co-respondents of this possession case. The summons was heard on 24 March 2000 and the following orders were made:

1. Leave granted to add 4 co-respondents: Tam Ho Ching as the 2nd Respondent ; Wong Pau Kok as the 3rd Respondent; Chan Lee Wah & Ng Yee Yan as the 4th Respondent; and Tam Pak Lun & Kwok Ching Sun as the 5th Respondent;

2. Stay of execution of the Writ of Vacant Possession against the 2nd, 3rd, 4th & 5th Respondents until further order;

3. The hearing be adjourned to a date to be fixed by the Assistant Registrar;

4. Payment of the following interim rent/mesne profits into the Tribunal by : 2nd Respondent - $5,400; 3rd Respondent - $3,750; 4th Respondent - $10,500 and 5th Respondent - $8,000.

5. The hearing was adjourned and later fixed on 20 April 2000. The Tribunal ordered among other things that the name of the 4th respondent be amended further to "Chan Lee Wah" only and the name of "Ng Yee Yam" be deleted. Leave was granted to the 2nd to 5th respondents to file the Notice of Opposition within 14 days.

6. Subsequent to the hearing on 20 April 2000, the applicant appointed Messrs. Yu, Chan & Yeung as their solicitors. The applicant did not apply to amend the original application filed by the applicant on 6 December 1999. The applicant opposed the 2nd to 5th respondents' join in application and submitted that the 2nd to 5th respondents should not be entitled to the relief claimed or any relief. The hearing of the join in proceedings continued on 9 June 2000 and 14 August 2000. The hearing was adjourned to 24 August 2000 for the parties to give their final submission.

7. On 24 August 2000, the parties filed a consent application. So far as the applicant and the 2nd to 5th respondents were concerned, they agreed that "this Consent Application is made by the Applicant and the 2nd 3rd, 4th and 5th Respondents in full and final settlement of these proceedings and the 2nd , 3rd, 4th and 5th Respondents shall have no further claim against the Applicant arising out of these proceedings." They further agreed that "each party bears his own costs." However, the 2nd to 5th respondents applied against the 1st respondent for costs of the proceedings on solicitor-own client basis or at least on indemnity basis.

8. The Tribunal grants the following orders on 24 August 2000:

1. Order in terms of the consent application;

2. Adjourned to 14 September 20000 for delivery of judgment regarding application by 2nd to 5th Respondents for costs against 1st Respondent.

9. This judgment is therefore solely restricted to the application by the 2nd to 5th respondent for costs against the 1st respondent.

10. The authority for the Tribunal to award costs is provided by s.12 of the Lands Tribunal Ordinance (Cap. 17), as follows:

" (1) Subject to the provisions of the Ordinance giving the Tribunal jurisdiction in any matter, the Tribunal may award costs to and against any party to any proceedings and may order that those costs be taxed on the basis of any one of the Scales of Costs set out in the First Schedule to the District Court Civil Procedure (Costs) Rules (Cap. 336 sub. leg.) and the Schedules to Order 62 of the Rules of the High Court (Cap. 4 sub. leg.).

(2) Subject to any rules made by the Chief Justice and section 10(3), Order 62 of the Rules of the High Court (Cap. 4 sub. Leg.) shall apply to the award, taxation and recovery of costs in the Tribunal."

11. The 1st respondent was a party to the original proceeding in this possession case. In the hearing held on 27 January 2000, the Tribunal granted the orders for possession, payment of arrears of rent/mesne profits and costs against the 1st respondent. There has been no other order affecting the 1st respondent since then. Although the 2nd to 5th respondents and the applicant continued in the join in proceedings that followed, the 1st respondent was not a party to those proceedings.

12. Since the 1st respondent was not a party to the proceedings after 27 January 2000, the Tribunal has no jurisdiction to award costs to the 2nd to 5th respondent against the 1st respondent. The 2nd to 5th respondent's costs application against the 1st respondent is dismissed. There be no order as to costs.

Representation:

Mr. Chan, Wing Bor of Messrs. Yu, Chan & Yeung for the applicant 1st respondent

Mr. Raymond Tse of Messrs. Raymond T.L. Tse & Co., for the 2nd to 5th respondents