The Incorporated Owners of Matauwei Apartments v. Ng Shung Cho

LDBM000387B/2000

LDBM 387 OF 2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 387 OF 2000

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Coram: H. H. Judge Chow, Presiding Officer of the Lands Tribunal

Date of Decision: 7 October 2002

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DECISION ON REVIEW

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1.On 16.7.2002, the Respondent took out a summons and one of the orders it applied for is as follows: -

"1. That this application No. LDBM 387 of 2000 ("the Application") be for want of prosecution dismissed with costs (including the costs of and occasioned by this application by this Summons) to be taxed and paid by the Applicant to the Respondent.

(a) under the inherent jurisdiction of the Lands Tribunal pursuant to Section 8(9) of the Lands Tribunal Ordinance;

(b) ................................

(c) ................................

(d) ................................

(e) under the inherent jurisdiction of the Lands Tribunal and the Court of Fist Instance as applied in the Lands Tribunal, the Applicant being in abuse of the process of the Law in allowing to remain on file the Application but without taking any steps after the cause of action under the Application was extinguished by the Applicant accepting payment in respect thereof."

2.On 21.8.2002, I dismissed item 1 of the summons. In doing so I held that all the issues as pleaded are still live issues in this case and that the Respondent had not shown to the Tribunal that the prejudice he suffered by reason of the Applicant's delay in pursuing the Application could give rise to a risk of a substantial likelihood that a fair trial was no longer possible by virtue of a delay of 151/2 months on the part of the Applicant.

3.By virtue of the power conferred upon this Tribunal pursuant to rule 14(2) of the Lands Tribunal Rules, I restored the application to list for hearing (which was adjourned sine dine on 19.3.2001) on 3.9.2002. On 3.9.2002, I fix the trial of this case on 21.10.2002.

4.On 10.9.2002, the Respondent took out a notice of application to review my decision in dismissing item 1 of the summons. Its main ground is that the Applicant's cause of action for a debt in the liquidated sum of HK$30,079.00 was settled and extinguished upon the payment of that sum on 18.12.2000, and such payment was admitted by the Applicant's solicitors, Messrs. Y. T. Szeto & Co. in: -

(a) letter of Y. T. Szeto & Co. dated 19.12.2000;

(b) Paragraph 4 of 2nd affirmation of Szeto Yuk Ting filed on 7.8.2002;

(c) Bank statement issued by Wing Hang Bank Ltd. dated 13.12.2000.

5.The Respondent submitted that when the Applicant cashed the said debt it accepted the offer made by the Respondent to settle the said debt, thereby forming a contract and the Applicant was bound by it and estopped from pursuing the said debt and the Lands Tribunal has no jurisdiction on the said contract. The Respondent further submitted that all the facts pleaded by the Applicant in the Application were related to the said debt only and upon payment of it, such pleaded facts were no longer triable issues.

6.The Respondent submitted that the Applicant's cause of action for the debt in the sum of HK$30,079 was extinguished on 18.12.2000. In paragraph 4 of the Notice of Opposition the Respondent pleaded the payment of the said sum. But whether there was in fact such a payment and whether the Applicant had cashed the cheque are matters of evidence for the trial judge. The question is: should such matters of evidence be received, considered and determined prior to the trial? By way of the summons dated 16.7.2002, the Respondent sought to adduce such pieces of evidence. It is therefore crucial to consider the legal basis upon which the summons was taken out.

7.Ground (a) of item 1 of the summons is based on section 8(9) of the Lands Tribunal Ordinance, which provides: -

"(9) In the exercise of its jurisdiction, the Tribunal shall have the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance."

The Respondent's application has nothing to do with the granting of remedies and reliefs by the Tribunal. Therefore this ground is inapplicable to the summons.

8.Grounds (b), (c) and (d) of item 1 of the summons are not relevant for the purpose of this review application. Only Ground (e) is material for the Tribunal's consideration. Under section 10(1) of the Lands Tribunal Ordinance, the Tribunal may follow the practice and procedure of the Court of First Instance, in so far as it thinks fit. But this section does not confer upon the Tribunal the so called "inherent jurisdiction" as referred to in Ground (e).

9.Ground (e) involves the following findings of fact: -

1. whether the Respondent did tender payment of the sum claimed ;

2. whether the Applicant did accept payment thereof.

Such findings of fact can only be made after all the relevant evidence has been adduced during a trial, and whether the cause of action was extinguished as alleged by the Respondent is a matter for the trial judge to decide at the conclusion of the trial. By way of Ground (e) the Respondent is asking the Tribunal to make such findings of facts and to make the said determination prior to the trial. But there is no provision which empowers the Tribunal to do so. There is no legal basis upon which Ground (e) can be made. Therefore all the issues pleaded are still live issues.

10.For the reasons given above, I dismiss this review application, with costs to the Applicant, to be taxed, if not agreed.

Representation:

The Applicant : Absent.

The Respondent : represented by M/S Yu, Tsang & Loong, Solicitors.