Solar Max Ltd. v. Homex Investments Ltd.
Read the full judgment text of LDPD 368/1997 on BabelCite. This Lands Tribunal judgment was delivered on 28 November 1997.
1. The applicant is a Part IV tenant. On 16 May 1997 this Tribunal granted a new tenancy for two years and determined the prevailing market rent. On 12 June 1997, the respondent landlord took out an inter partes summons for a hearing of an application for review of the Tribunal's determination of the prevailing market rent. The return date of the summons is 24 July 1997 and which date is not within one month of the date of the order sought to be reviewed. On 22 July, two days before the schedule
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LDPD000368/1997 Headnote Practice and procedure--Lands Tribunal Ordinance, Cap 17--Whether or not the fixing of a date by the Registrar for hearing of review application is or can be taken as the Tribunal's decision to review--Whether or not the Tribunal's decision to review amounts to "the taking of any step in any proceedings" within the meaning of Section 10(2)(d) so that the Tribunal can enlarge the time for itself to make the decision to review. Held: 1. The Registrar is not the Tribunal or a constituent member of it within the meaning of the provisions of the Lands Tribunal Ordinance; 2. Fixing a return date for the review application by the Registrar is not a decision by the Registrar to have the order reviewed. Even if it was one, it was not one made by the Tribunal within the meaning of Section 11A; 3. The meaning of "the taking of any step in any proceedings" in Section 10(2)(d)(ii) is restricted to those steps taken by parties to the proceedings. The Tribunal has no power to enlarge the time limit for making a decision to review; 4. Application for review dismissed with no order as to costs. 1997, NO. LT 368 IN THE LANDS TRIBUNAL OF HONG KONG ________________
________________ Coram: Deputy Judge Yung (Presiding Officer) and N T Poon Esq.(Member) Date of Judgment: 28 November 1997 __________________________ Reasons For Judgment __________________________ Background 1. The applicant is a Part IV tenant. On 16 May 1997 this Tribunal granted a new tenancy for two years and determined the prevailing market rent. On 12 June 1997, the respondent landlord took out an inter partes summons for a hearing of an application for review of the Tribunal's determination of the prevailing market rent. The return date of the summons is 24 July 1997 and which date is not within one month of the date of the order sought to be reviewed. On 22 July, two days before the scheduled hearing, the solicitors for the applicant wrote in raising the point that it was not within the jurisdiction of this Tribunal to review its decision unless it had decided to review it within the one month period. The fact is that the President had not, nor had any Member or Presiding Officer, yet decided to review the order before the date was fixed for the hearing. At the hearing on 24 July, Mr. Cook for the tenant maintained his contention on the lack of jurisdiction point and the hearing was subsequently adjourned to be heard before a Presiding officer and a Member sitting together. 2. The jurisdiction of the Tribunal to review its own decision is governed by Section 11A of the Lands Tribunal Ordinance Cap 17 (" the Ordinance"). Subsection (1) provides that:
and subsection (2) provides that:
3. Subsection (3) provides that:
4. Mr. Ng, for the landlord, argued that when the date of hearing of the summons was fixed, the Tribunal must have decided to review its order. In fact when the date was fixed by the Registrar or his delegate, no Member or Presiding officer, nor the President had decided to review the order. When the date was fixed, we presume, both the Registrar and the solicitors for the respondent were under the impression that as long as the date of application was within a month of the date of the order, the Tribunal could exercise its jurisdiction of review outside the one month period. Indeed the point raised by Mr. Cook is a difficult one and to our knowledge has not been raised before. We do not think the solicitors for the respondent or the Registrar should be blamed for overlooking the interpretation now advanced by Mr. Cook. On the special facts of the case, Mr. Ng can only succeed if (1) the Registrar when fixing a date had himself made a decision to have the order reviewed and (2) the Registrar's decision to review is or can be taken to be the decision of the Tribunal within the meaning of Section 11A. Fixing Date by the Registrar 5. We doubt very much the Registrar or his subordinate ever made any decision to have the order reviewed. Mr. Ng's argument, to our best understanding, is that the decision process is as automatic as fixing a date and the Tribunal should always decide to review irrespective of the merit of the application. Therefore, he argued, when the hearing date of the summons was fixed, the Registrar had made or must be taken to have made the decision on behalf of the Tribunal to review. Section 11A provides clearly that the Tribunal must make the decision "on notice". This must mean prior notice. That is why the date of hearing was fixed for the application for review. The purpose is clearly to give the other party an opportunity to make representations. Furthermore we certainly disagree that the Tribunal must invariably decide to review regardless of the merit of the application. The provision in Section 11A(3) is to enable the full review hearing if there is one to be concluded outside the one month period and not, as Mr. Ng argued, to imply that the Tribunal is obliged to decide to review and grant a full hearing of review on a party's application. For these reasons we cannot hold that the Registrar has made or is taken to have made a decision to review the order within the meaning of Section 11A(1). Registrar's Decision to Review/Status of Registrar 6. Even if there has been a Registrar's decision to review, that decision is not a Tribunal's decision within the provision of Section 11A. The Registrar is not the "Tribunal" or a constituent member of it within the meaning of the provisions of the Lands Tribunal Ordinance. 7. The constitution of Tribunal is defined in section 4 of the Ordinance. In effect the Tribunal consists of the President, Presiding officers and Members. The office of the Registrar is not included in section 4 but its establishment is provided for in section 7A of the Ordinance:
8. Section 7B provides for the immunity of Registrar. The part relevant to the present case reads:
9. Section 7C provides:
10. From these sections it can be seen clearly, that the Registrar is not the Tribunal. In fact they are different offices with respective duties and jurisdiction clearly defined in the ordinance. 11. The Tribunal's deciding to review its order, being a judicial function, cannot normally be delegated. No such delegation, general or in this particular case, was made by any one of the members constituting the Tribunal. Tribunal's Decision To Review 12. To conclude, fixing a return date for the application by the Registrar in the present case is not a decision by the Registrar to have the order reviewed. If it was one, it was not one made by the Tribunal within the meaning of Section 11A. 13. Mr. Ng alternatively argued that the Tribunal can and should extend the time to review under Section 10 of the Ordinance. Section (10)(2) provides:
14. Mr. Ng contended that the Tribunal's reviewing its order is a step in the proceedings and therefore it could under Section 10 extend the time for its doing so. Mr. Ng cited a number of cases to support his argument. Despite his great effort, we fail to see any significant assistance in them. It is a pure question of construction of the words " taking of any step in any proceedings" in subsection(2)(d). There are lots of cases about the correct interpretation of the words "a step in the proceedings". Those reported cases are not helpful. They all decide on what act or conduct of a party to proceedings amounts to a step in the proceedings. We cannot find a case on point, namely whether a court's or tribunal's act or conduct can amount to a step in the proceedings. 15. We agree that purposive approach should be adopted to interpret section (10)(2). The Ordinance should be interpreted in a way enabling the Lands Tribunal to deal with simple cases as expediently as circumstances permit. This is one of the reasons why the practice and procedure are not as complex and rigid as those in the High Court. However we cannot agree that the purpose of legislature would be defeated or it would lead to an absurd or impractical result if the Tribunal cannot enlarge the time to review itself. Mr. Ng argued that late applications would put unbearable pressure on the Tribunal. Some pressure would be put on the Tribunal but it would be far from unbearable. This tribunal very often has to deal with urgent applications for interim stay of execution for possession. Decision have to be made in those cases within a short time and invariably on the same day of application. Cases in which it is necessary for a party to make its application for review on the last day of the one month period would be rare. Even if it is necessary through no fault of its own, it can certainly make an ex parte application on notice to other parties. Cases in which a party cannot do so and it cannot obtain similar relief on appeal or by initiating a separate action to set aside the order must be rare. 16. One must not lose sight of the intent of the legislature. Section 10(2) must be looked at in its proper context, particularly, together with section 11A. Section 10 is for the purpose of giving the Tribunal express power and means to control its proceedings. Subsection (1) accords the Tribunal general powers similar to the High Court in dealing with matters specified in the paragraphs. Subsection (2) spells out the specific powers. Paragraph (d) empower the Tribunal to enlarge time fixed by any Ordinance for doing certain things. Subparagraph (ii) is sandwiched between subparagraphs (i) and (iii) in one complex sentence and the former is to be looked at in the light of the latter two. The principle of noscitur asociis applies. Bennion's Statutory Interpretation (Second Edition) at page 854 has the following comment on this principle:
17. Subparagraph (i) deals with the giving of notices and subparagraph (iii) with the filing and lodging of documents. Clearly it is the act of the parties these subparagraphs refer to. They empower the Tribunal to extend time for good cause when the parties are out of time. The meaning of "the taking of any step in any proceedings" in subparagraph (ii) must be restricted to those steps taken by the parties. 18. Furthermore under section 10(2)(d) the Tribunal can only extend time for good cause. If the Tribunal is itself out of time and wants to extend the time to review itself, it would have to be a judge in his own cause. The principle that a judge should not be in his own cause, nemo debet esse judex in propria causa, by implication must be imported to an enactment unless the contrary intention appears: See Bennion P.794. No such intention can be found in the Ordinance. 19. In fact Section 11A(3) is expressed in the form of hypothetical syllogism, "If F then L" (the effect of which, see Bennion, P.820) ,i.e. " If the Tribunal shall have decided, within 1 month--, to exercise its power of review--, such power may be exercised at any time thereafter--" Mr. Cook is right in contending that even if the Tribunal has decided to review itself outside the one month period, it has no jurisdiction to exercise its power to review. Of course, it can if words " or within any time so enlarged under section 10(2)(d)(ii)" can be read into the section after the words "within 1 month". No justification can we see so to do. Nor could it have been the intent of the legislature. By reading those words into the section would mean the Tribunal can review itself at any time for good cause. In that case the section can be expressed in a much simpler way than it is now. The legislature clearly wants to set a strict time limit for review. Review hearing is quite different from appeal. It would defeat its purpose, if the Tribunal has not retained a clear and good recollection of the evidence of the hearing. Memory of the case fades as time goes by especially when one has no reason to retain it. If the Tribunal has decided to review within a short time after hearing, it would certainly make an effort to retain its memory of the case to the time of the full review hearing. A line has to be drawn as to when the decision to review has to be made and the legislature has chosen it to be within 1 month. For these reasons the alternative argument of Mr. Ng's also fails. Conclusion 20. With sympathy to the respondent we dismissed its application for review for want of jurisdiction.
Representation: Mr. C Cook of Deacons Graham & James for the applicant Mr. Ng, Tat Fai Tony instructed by Wai & Co. for the respondent |