Abdoolally Ebrahim & Co., (H.K.) Ltd. v. Formalex Ltd.

LDNT000043A/2000

LDNT 43/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDNT 43 of 2000

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Coram: H.H. Judge Chow, Presiding Officer

Date of Decision: 20 October 2000

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Decision

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1. The Applicant is the tenant of the premises known as Flat E, 41/F., Block 3 and Car Parking Space No. 233 on 2/F., Estoril Court, 55 Garden Road, Hong Kong which were under a tenancy for 2 years, running from 16.4.1998 to 15.4.2000. The Respondent is the landlord of the premises.

2. On 16.2.2000, the Applicant applied to the Lands Tribunal for the grant of a new tenancy. The Respondent opposed the application.

3. After hearing the evidence relating to the preliminary issue as to whether a new tenancy of the premises should be granted, this Tribunal adjudged on 4.8.2000 that the Respondent had failed to establish any ground to oppose the Applicant's application; it further granted the parties the liberty to fix a date for the determination of the terms of the new tenancy.

4. On 5.10.2000, the Respondent took out the present summons, by which it applied to the Lands Tribunal for the following order :-

(1) the hearing date fixed on 3 November be vacated;

(2) all proceedings herein before the Lands Tribunal be stayed until the Respondent's appeal therefrom (of which the Respondent has filed Notice of Appeal on 18th August 2000 under Civil Appeal No. 378 of 2000) is finally disposed of;

(3) the costs of and occasioned by this application be to the Respondent in any event."

5. By letter dated 7.8.2000, the Respondent's solicitors requested the Applicant's solicitors to send a clerk to the Lands Tribunal on 11.8.2000, for the purpose of fixing a date for the determination of the terms of the new tenancy.

6. By letter dated 9.8.2000, the Respondent's solicitors replied that the Respondent was waiting for Counsel's opinion on the Tribunal's decision handed down on 4.8.2000 with a view to appeal/review, and the time limit for appeal/review was 30 days from 4.8.2000. 11.8.2000 was too early for fixing a date for the hearing, and they suggested another date be arranged to attend before the Register of the Lands Tribunal.

7. On 11.8.2000, the Applicant's solicitors fixed a hearing on 3.11.2000.

8. On 12.8.2000, the Respondent's solicitors wrote to the Applicant's solicitors.

9. On 18.8.2000, the Respondent's solicitors filed a Notice of Appeal.

10. On 25.8.2000, the Respondent's solicitors wrote to the Applicant's solicitors, stating:-

"Your consent is sought (as ordered by H.H. Judge Chow) to vacate the date of 3 Nov. 2000. Please write separately to the Lands Tribunal without delay, with copy to us."

11. The Applicant's solicitors replied by letter date 28.8.2000 that they "await by the date given by the High Court on your civil appeal before we consider vacating the application before the Lands Tribunal on 3 November 2000."

12. On 19.9.2000, the Registrar of Civil Appeal fixed the hearing of the appeal on 16.11.2000.

13. By letter dated 19.9.2000, the Respondent's solicitors requested the Applicant's solicitors to vacate the hearing on 3.11.2000 as soon as possible, and by that letter they consented to the Applicant's application to vacate the said date.

14. By letter dated 20.9.2000, the Applicant's solicitors wrote back, stating that 3.11.2000 should be used for the hearing of an application for the interim rent.

15. On 22.9.2000 the Respondent's solicitors wrote back, stating that the Tribunal had no jurisdiction to determine the interim rent, and they requested the Applicant's solicitors to vacate the hearing date on 3.11.2000 forthwith.

16. On 28.9.2000 the Respondent's solicitors wrote to the Applicant's solicitors. In the letter it stated :-

'In the circumstances, the correct order to be sought from the Lands Tribunal is as follows :-

By agreement the parties seek an order for :-

(a) leave to vacate the hearing date fixed on 3 November 2000; and

(b) stay of proceedings in the above action until the Respondent's appeal under Civil Appeal No. 378 of 2000 has been finally disposed of."

Please re-type the joint application letter to the Registrar of Lands Tribunal and send it to us to endorse our consent thereon.'

17. On 28.9.2000, in reply to the Respondent's solicitors' letter dated 27.9.2000, the Applicant's solicitors stated :-

"We note that your client has not made an application to stay the Lands Tribunal proceedings. The order of H.H. Judge Chow and Member W.K. Lo of the Tribunal dated 4 August 2000 gives our client leave to proceed. However, we are instructed by our client that it is prepared to vacate the hearing date fixed at the Lands Tribunal further 3 November 2000 with a view to reducing the areas of dispute and costs."

18. On 29.9.2000, the Applicant's solicitors replied and suggested the following :-

"The parties do have leave to vacate the hearing date on 3 November 2000 with leave for either party to fix a date at any time after 16 December 2000."

19. By letter dated 29.9.2000, the Respondent's solicitors re-iterated that the proper consent order to be made are set out in terms of the last paragraph of their letter dated 28.9.2000 to the Applicant's solicitors. They repeated their request that the Applicant's solicitors sent them a joint application letter to vacate and stay by 30.9.2000, failing which they should take appropriate steps without further notice.

20. On 3.10.2000 the Respondent's solicitors wrote to Applicant's solicitors, and sought the latter's consent to vacate the said hearing date consenting to an order in the following terms :-

"By agreement the parties seek an order for leave to vacate the hearing date on 3 November 2000 and there be stay of proceeding until 16 December 2000 with leave for both parties to apply jointly to fix a date at any time after 16 December 2000."

21. On 3.10.2000 the Applicant's solicitors suggested the following order to be made :-

"The parties do have leave to vacate the hearing date on 3 November 2000 with leave for either party to fix a date at anytime after 16 December 2000, upon 7 clear days prior notification to the other party in writing."

22. On 5.10.2000 the Respondent's solicitors took out the present application.

23. When fixing a date for the determination of the terms of the new tenancy, the Applicant's solicitors was simply complying with the Tribunal's order made on 4.8.2000. It was under no legal obligation to wait and see if the Respondent would eventually lodge an appeal against the decision. In conclusion it was not at fault in fixing a date for the determination of the terms of the new tenancy.

24. Initially, the Respondent's solicitors simply asked the Applicant's solicitors to vacate the hearing date on 3.11.2000. The Applicant's solicitors eventually agreed on 28.9.2000 to vacate the same. Had the Respondent's solicitors agreed to it, that would have put on end to the matter. But the Respondent's solicitors would also ask for a stay of the proceedings until 16 December 2000 with leave for both parties to apply jointly to fix a date at any time after 16 December 2000.

25. The Civil appeal against the decision was fixed to be heard on 16.11.2000. The issue to be decided by the Court of Appeal was a simple issue. It may be disposed of on that very same day. 16 December 2000 may be too long a time for the stay of the proceedings, if the stay was really justified. This time limit imposes inflexibility to the legal proceedings. In view of the correspondence between the parties, it would simply be impracticable for the Tribunal to impose an order that both parties were to apply jointly to fix a date to any time after December. Again it imposes an element of inflexibility to the legal proceedings, particularly in view of the relationship between the parties. It would be sufficient for the Tribunal to give leave to the parties to apply for a new hearing date without the need for joint application.

26. By reason of the terms of para. (2) of the summons, these elements which cause inflexibility no longer exist. That is to say, the material part of the letter dated 3.10.2000 on which the Respondents obviously relies to support its application in the summons does not fully support Para. (2) of the summons.

27. I cannot see any necessity to order a stay of the proceedings. If the Applicant comes back to the Tribunal for a determination of the new tenancy before the decision of the appeal is disposed of, most probably the application may be dismissed with costs. In any event the possibility of such an application is remote in view of the fact that the civil appeal will be heard in less than 1 month's time.

28. Without the order of stay as applied for, parties would have more flexibility in handling their own case. In case of urgency, either party could come to court to make whatever application they see fit to do so. I therefore dismissed item (2) of the summons. The hearing date on 3 November 2000 was vacated, and leave was granted to the parties to apply to fix a new hearing date (if so required) in respect of the terms of the new tenancy after the final disposal of the appeal.

29. The Respondent should have consented to the applicant's proposal of the consent order as per Applicant's letters date 28.9.2000 and 3.10.2000. That would have obviated the necessity of coming to court.

30. The only issue for me to decide now is whether to award costs to the Respondent, on the application of its Counsel. By virtue of the matters aforesaid, the simple answer is "No".

31. In this case, being at no fault at all, the Applicant fixed a hearing date on 3.11.2000. It is due to the subsequent lodging of appeal against the decision that renders it inappropriate to hear the terms of the new tenancy on 3.11.2000, because the outcome of the appeal may render it unnecessary. It is simply more appropriate to postpone the hearing of the terms of the new tenancy after the disposal of appeal.

32. But parties would not agree to the terms of the order to be made in vacating the hearing date on 3.11.2000. The matter is triggered off because the date of the appeal was fixed by the High Court. This is beyond the control of both parties. Had it been fixed before 3.11.2000, the Respondent would not have to take out this summons.

33. In the circumstances, I order that in respect of this summons each party is to bear its own costs.

Representation:

Applicant : Represented by M/S AB Nasir & Co.

Respondent : Represented by M/S Therese P.F. Chow & Co.