Rosie Gaby v. Cheng Mei Lan

LDPD001544/2000

LDPD1544/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDPD No. 1544 of 2000

Coram: Member W K LO

Date of original hearing and judgment: 26 August 2000

Date of interim stay hearing and judgment: 24 October 2000

Date of interlocutory hearing and judgment: 20 November 2000

Date of reasons for decision: 6 December 2000

_______________________________

REASONS FOR DECISION

_______________________________

1. The applicant is the landlord and the respondent the tenant of the subject premises known as Flat A9 , 17/F., Pearl City Mansion, 22-36 Paterson Street, Causeway Bay, Hong Kong ("the subject premises"). The subject premises was let at a rent of $11,500 per month commencing from 5th February 2000. On 11th July 2000, the applicant filed an application by Form 22 against the respondent on the ground that no rent had been paid by the applicant since 5th March 2000. The applicant sought orders for possession of the subject premises and payment of rents in arrears. The applicant stated in the application that the applicant had failed to pay any rent after paying the first month's rent for the period from 5th February 2000 to 4th March 2000. The respondent did not file any notice of opposition to the application.

2. On the date of hearing held on 21st August 2000, the respondent was absent. The applicant's representative gave evidence regarding the details of the tenancy and the non-payment of rent by the respondent. At the end, 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 for the period from 5th day of March 2000 at the rate of $11,500 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 by the Respondent.

3. Notices were posted up by the applicant outside the premises for three consecutive dates, on 21st, 22nd and 23rd day of August 2000 notifying the applicant the details of the above orders. The applicant subsequently applied for a writ of possession. This was granted on 22 September 2000.

4. On 24th October 2000 the respondent filed an ex-parte summons requesting for an interim stay of execution of the possession order and the writ until the respondent's interlocutory application made on the same date and fixed for hearing on 20th November 2000 was decided by the Tribunal. The respondent explained that she and her husband were recently tied up in a court case in Beijing, which was also one of the reasons for being absent on 21st August 2000. She further claimed that she had a verbal agreement with the applicant that after paying back two months' rent, the applicant would cancel the proceedings in this Tribunal. She agreed to pay into the Tribunal a sum of $11,500 as interim rent as a condition for granting the interim stay up to the date fixed for hearing of her interlocutory application. In the circumstances, the following orders were made on 24th October 2000:

1. Interim stay up to 20th November 2000 granted conditional upon the Respondent paying into Court a sum of $11,500 as interim rent on or before 31st October 2000;

2. Interlocutory application by the Respondent fixed for hearing on 20th November 2000 at 9:30a.m.

5. On 20th November 2000, both parties were present, the applicant appearing in person but the respondent was represented by Mr. R. Fung of Messrs. W. I. Cheung & Co., Solicitors.

6. The respondent affirmed that the particulars of her application were set out in her affirmation attached to her interlocutory application. She confirmed that she was seeking to set aside the orders made by the Tribunal on 21st August 2000. She gave evidence that she had at the commencement of the tenancy paid three months' rent. She could not get a copy of the tenancy agreement from the estate agent because the latter left employment from the estate agency firm that she used. She admitted that at the time of application by the applicant on 11th July 2000, she owed rent to the applicant. She explained that she could not attend the court hearing on 21st August 2000 as she was tied up in Beijing. She admitted paying one month's rent on each of the following dates: 7th, 9th and 16th September 2000.

7. Ms. Evelyne Yim, the authorised representative filed an affirmation in which she confirmed that the respondent had paid three months' rent in September 2000. She denied that there was any agreement between the applicant and the respondent to allow to the latter to make payment by installments either as alleged by the respondent or at all.

8. The applicant objected the granting of further relief for payment of rents in arrears. The respondent herself chose not to attend the hearing on 21st August 2000 even though she had been duly notified of the hearing by the Assistant Registrar. In any event, even if she had attended the hearing, judgment would still be given since she had no defence to the claim by the applicant. Following the hearing on 21st August 2000, the respondent had already been given 4 weeks grace period for settling all arrears of rent and the costs. Yet she has failed to do so.

9. There was no dispute between the parties on the facts relating to the payments made by the respondent. The respondent has not provided any sufficient reason for the Tribunal to set aside the orders made on 21st August 2000. In the circumstances, the respondent's application was dismissed and the following orders were granted:

1. Application by the Respondent be dismissed;

2. The interim rent of $11,500 paid into the Tribunal by the Respondent be released to the Applicant forthwith;

3. Costs of this Application to the Applicant, to be taxed if not agreed.

On 5th December 2000, the respondent made a further ex-parte summons to the Tribunal seeking a further interim stay of execution of the possession order and the writ pending her appeal. In her summons, she claimed that despite of her previous agreement with the landlord (the applicant) that she could continue paying the rent to the landlord on a monthly basis and that she had paid into the Tribunal one month's rent, the Tribunal still refused her application at the hearing held on 20th November 2000. There was nothing new in her summons that merit a re-consideration of the decision made by this Tribunal on 20th November 2000. It was obvious to the Tribunal that the respondent was continuing to use delaying tactics to resist lawful recovery of possession by the applicant landlord. Therefore, the ex-parte summons application by the respondent was dismissed by Member Lo in his chambers.

Representation:

Rosie Gaby, the applicant, represented by Mr. R. Fung of Messrs. W. I. Cheung & Co., Solicitors

Cheng Mei Lan, the respondent in person

Respondent's application for a stay of execution of the order for possession dismissed by Court of Appeal. Please refer to CACV1005/2000 dated 6 December 2000