Tsang Wai v. Ng Hei Fong t/a Wing Wo Hei Kee

LDLA000409/1984

Property law - jurisdiction of Lands Tribunal - Part V business premises - application for order for possession arising from dispute other than those provided for in Section 127A Cap. 7 - whether jurisdiction vested in either Lands Tribunal or the courts - limited extension of Lands Tribunal jurisdiction in landlord and tenant matters in 1982 and 1983 - Held: 1. Orders for possession under Part V other than under s.127A may only be made by Lands Tribunal where ground for possession is forfeiture, surrender or expiration of notice to quit given by tenant. 2. Where possession sought on expiration of notice to quit by landlord and dispute not within s.127A the Lands Tribunal has no jurisdiction. 3. Such proceedings for possession must be brought in either the High Court or District Court. 4. Lands Tribunal has no power to transfer proceedings to High Court or District Court. Section 8(6)(7)(8)(9) Lands Tribunal Ordinance, Cap. 17; Sections 33, 53(2), 119G, 122, 127A Landlord and Tenant (Consolidation) Ordinance, Cap. 7.

IN THE LANDS TRIBUNAL OF HONG KONG

Application No. L.T. 409 of 1984

TRIBUNAL: His Honour Judge Cruden, Presiding Officer.

------------------------

JUDGMENT

------------------------

1. In this application the applicant landlord issued proceedings pursuant to Section 8(7) of the Lands Tribunal Ordinance, Cap. 17 and Section 122(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 for recovery of possession of business premises from the respondent tenant. The applicant claims the premises are subject to Part V of the latter Ordinance. The suit premises were let under a written tenancy agreement for a period of 5 years which commenced on the 1st day of August 1968. After the expiration of that 5 years duration, the respondent has remained in possession on a monthly tenancy.

2. The ground for claiming possession is that the applicant on the 9th day of December 1983 duly served on the respondent a notice to quit pursuant to Section 122(b) and the 6 months notice thereunder has expired but the respondent has remained in possession.

3. I have today heard an interlocutory application by the respondent for an order that the originating application for possession under Part V, be dismissed on the ground that the Lands Tribunal has no jurisdiction to make an order for possession against the respondent under Section 8(7) of the Lands Tribunal Ordinance. Subsequently the applicant filed its own interlocutory application for the application to be transferred to Victoria District Court. Both interlocutory applications were set down for hearing today. I accept that the parties submissions relate to both interlocutory applications.

4. Dealing first with the respondent's interlocutory application, Counsel for the respondent submitted that Section 8(7) of the Lands Tribunal Ordinance only grants jurisdiction to the Tribunal to make orders for possession for Part V tenancies in the limited circumstances set out in that sub-section, namely:-

"... where the contractual period of a tenancy or sub-tenancy has been terminated by forfeiture, by surrender or by notice to quit given by the tenant to the landlord or by the sub-tenant to the principal tenant. "

5. The historical background to this provision is that when in 1982 the former jurisdiction of the District Court under the Landlord and Tenant (Consolidation) Ordinance was transferred to the Lands Tribunal, the transfer was limited to the statutory provisions of that Ordinance. At that stage the Lands Tribunal was not invested with any of the common law and equity jurisdiction given to the District Court under Part IV of the District Court Ordinance, Cap. 336. For a period the confusing position existed that if a party sought possession under the Landlord and Tenant (Consolidation) Ordinance he had to file an application in the Lands Tribunal. If in respect of the same premises he wished to exercise any common law rights or any contractual rights not governed by the latter Ordinance, he had to bring an action in the District Court. It was to remedy that fragmented and confusing jurisdictional position, that a year later in 1983, Sub-section (7) was enacted. At the same time Sub-section (8) was enacted to increase the power to make orders for rent, mesne profits and other money even where no order for possession was made.

6. Clearly the present substantive application is not founded on forfeiture during the contractual period for the applicant pleads that the contractual period has been terminated by notice. No question of forfeiture arises. Further the notice to quit has been given by the landlord and not, as Sub-section (7) would require, by the tenant. Nor does any question of surrender arise.

7. When this submission was completed Counsel for the applicant immediately conceded that Sub-section (7) was inappropriate and orally applied to amend the reference to Sub-section (7) by deleting that sub-section and substituting Sub-section (6) in lieu thereof. The respondent did not object to that amendment. The Tribunal thereupon granted the application to amend dispensing with re-service.

8. Counsel for the respondent continued her submissions on the basis that the amendment did not affect the success of her interlocutory application. For, in her submission, Sub-section (6) also failed, in the instant circumstances, to give the Tribunal jurisdiction. In passing it may be noted that in Sub-section (7) there is express reference to Part V but that in Sub-section (6) there is no express reference to Part V. However, that distinction was not material for Counsel for the respondent advanced her submissions on a different basis, simply that there is no jurisdiction under Part V to grant an order for possession. To appreciate fully her submission it may be helpful to set out the provisions of Sub-section (6) in full:-

9. Counsel for the respondent submitted that the jurisdiction of the Tribunal under Sub-section (6) did not extend to orders for possession generally but only those made under the Landlord and Tenant (Consolidation) Ordinance. Unlike Sub-section (7) which gives wide jurisdiction for cases of common law forfeiture and surrender, Sub-section (6) is limited to cases where statutory orders for possession are made under Chapter 7.

10. Counsel for the respondent then pointed out that under Part I, jurisdiction to make orders for possession is given by Section 33; in Part II by Section 53(2); while the rather different and negative position which may arise under Part IV is specifically covered by the express reference in Section 8(6) to orders for possession which may be made, where a landlord recovers possession by successfully opposing an application for a new tenancy.

11. Part V, it was submitted, is far more different to Parts I and II, than Part IV yet there is no express provision in Sub-section (6) to provide for the different provisions of Part V. Counsel for the respondent reminded the Tribunal that Part V is principally concerned with the minimum notice to quit that has to be given in respect of business premises. Indeed, until 1979 Part V was solely concerned with that issue. Counsel for the respondent drew my attention to the fact that there is no general provision in Part V similar to those in Sections 33 or 53(2) whereby application may be made for an order for possession under Part V or for orders for possession to be made.

12. I recognise that a rather different position arises under Part IV where no originating application may be made for an order for possession. The only originating application which may be made under Part IV is by a tenant for a new tenancy. Only where the tenant's application is unsuccessful may an order be made giving possession to the respondent in terms of Section 119G. The limited jurisdiction under Sub-section (6) is emphasised by the fact that the Legislature has made express provision for the different position which arises under Part IV.

13. Counsel for the applicant submits that so far as the Landlord and Tenant (Consolidation) Ordinance is concerned the suit premises fall within Part V. The respondent has put the applicant to strict proof of the facts which would result in the suit premises being within Part V. However, at this stage I am obliged on the jurisdictional issue to accept the allegations contained in the substantive application. I therefore assume, without deciding, that the suit premises fall within Part V.

14. Counsel for the applicant further points out that the substantive application was also expressly brought pursuant to Section 122(b) which is, of course, a provision within Part V. I record that reference to Section 122(b) was made in the original unamended substantive application and that it has survived the amendment.

15. Both Counsel also made observations on Section 8(9) of the Lands Tribunal Ordinance which was a further empowering provision enacted in 1983 to remedy deficiencies which appeared in the Tribunal's jurisdiction, after the 1982 transfer of jurisdiction from the District Court. Sub-section (9) provides:

Counsel for the respondent submitted that those extensive legal and equitable powers only arose once the Tribunal had jurisdiction; they did not give the Tribunal the same original civil jurisdiction as that enjoyed by the District Court. Counsel for the applicant did not strongly dispute that view but it is necessary for consideration to be given to this sub-section.

16. The preliminary words "In the exercise of its jurisdiction" were clearly necessary if the amendment was to make it clear that the Lands Tribunal was not being given a general civil jurisdiction co-extensive with the District Court. All that was intended was that in respect of the Tribunal's generally more limited jurisdiction - an exception being the Tribunal's unlimited jurisdiction as to quantum - it would, when it came to granting remedies and reliefs, have the "same jurisdiction" as the District Court. I recognise that the sub-section may at first glance seem to be misleading to the extent that when the word "jurisdiction" is first used, it refers to the Tribunal's original jurisdiction while when the same word is used the second time it is used in a different and more limited sense, to refer only to the extent of the remedies and reliefs that may be granted by the Tribunal in the exercise of that original jurisdiction. The words "same jurisdiction" are not concerned with the important substantive issue of original jurisdiction but only with the subsequent procedural issue of remedies and reliefs. I uphold the respondent's submission that Sub-section (9) is only concerned with remedies and reliefs and does not give the Tribunal any general or wide original jurisdiction identical or similar to that of the District Court.

17. The apparent logic of Counsel for the respondent's submissions gain strength from her analysis of the scheme of the Landlord and Tenant (Consolidation) Ordinance as well as of the progressively amended provisions of Section 8 of the Lands Tribunal Ordinance. I have also paused to consider the remaining provisions of Part V which I have taken into account although they were not referred to in argument. Fortunately a former judicial practice, which could be unjust and result in bad law, of not considering matters not raised by Counsel, is now tolerably well buried. In particular I have considered Section 127A, which was one of the new sections added in 1979, but in the event its contents do not alter the conclusions I would otherwise have reached on Part V. I do not therefore consider I need hear further submissions on the point. Section 127A provides:-

18. Counsel for the respondent is therefore wrong when she submits that orders for possession cannot be made under Part V. For orders for possession may be made in relation to those disputes referred to in Section 127A. However, she is right to the extent that, unlike Parts I and II, there is no power to make an order for possession under Part V other than in relation to Section 127A disputes. For the power to make an order for possession under Section 127A is limited to disputes under Sections 124A, 124B and 124C. It does not extend to proceedings for recovery of possession subsequent to notice to quit being given in compliance with Section 122(b) which the applicant here has invoked.

19. The present dispute between the applicant claiming possession of these Part V premises and the respondent refusing to give up possession is not one of the disputes falling within Section 127A. This limited power to make orders for possession under Part V does not therefore assist the applicant on the present facts.

20. I am satisfied that elsewhere in Part V there is no other provision which empowers the Tribunal to make an order for possession. I therefore have no jurisdiction. Accordingly the respondent is entitled to an order in terms of its interlocutory application dismissing the application for possession.

21. Whether in view of this conclusion the limited types of dispute referred to in Section 127A should be widened to include any disputes in respect of Part V tenancies or whether Part V should otherwise be amended to achieve that object, is not a matter upon which this Tribunal should comment. All that can be recorded is that when the District Court had exclusive jurisdiction under the Landlord and Tenant (Consolidation) Ordinance this problem did not arise. For the District Court could, under its own jurisdictional powers, hear an application for possession of Part V premises where the dispute was not covered by Section 127A. To this extent and largely because of the piecemeal amendments to Part V and also to Section 8 of the Lands Tribunal Ordinance, there is a gap in the Lands Tribunal's jurisdiction which causes procedural confusion as well as inconvenience to the parties.

22. I note that the respondent has already pleaded to the originating application by filing a notice of opposition. However, that notice of opposition expressly pleads that the Tribunal has no jurisdiction. In any event I am not here concerned with a mere procedural irregularity. This is not a case where the respondent could waive any lack of jurisdiction and in any event even if it were there would here be no waiver. Filing notice of opposition is immaterial.

23. The remaining question is whether I should, in terms of the applicant's subsequent interlocutory application, now transfer this application to the Victoria District Court. This raises the preliminary question whether where the Tribunal has no jurisdiction to hear the substantive application does it have any inherent or residual power to transfer the proceedings to the District Court. For unlike the statutory powers given to some tribunals, there is no express statutory power enabling proceedings in the Lands Tribunal, for which it lacks jurisdiction, to be transferred to the District Court or elsewhere. By comparison there is such power in Section 10 of the Labour Tribunal Ordinance Cap. 25 which empowers that tribunal, where it declines jurisdiction, to transfer proceedings to the High Court or to the District Court. Although the position is a little different for a matter may be transferred even if within that tribunal's jurisdiction, if for any reason the Tribunal elects in its discretion to decline jurisdiction. However the Full Court in Dataprep (H.K.) Ltd. v. Kuo Chi-yung, Peter (1974) H.K.L.R. 383 held that even where a case is outside the Tribunal's jurisdiction and not merely one in which for other reasons it declines jurisdiction, it has the power under Section 10 to transfer proceedings from the Tribunal to a court. But it does so under an express statutory power.

24. Similarly, the District Court has express statutory power under Section 39 of the District Court Ordinance to transfer to the High Court any action commenced in the District Court which is beyond the jurisdiction of the District Court. The Lands Tribunal has no such power. The original jurisdiction of the Lands Tribunal was both exclusive and unlimited so did not require any such power. Complications similar to the present only arose upon jurisdiction under the Landlord and Tenant (Consolidation) Ordinance being transferred to the Tribunal under the 1982 amendments. Whether the Lands Tribunal now requires a power to transfer may be an open question in view of the different pleadings and practice of the tribunal compared with the courts.

25. I appreciate that if the question were approached broadly as a procedural irregularity the Lands Tribunal might consider that it had power to transfer such proceedings to the District Court. If the Tribunal had such power various difficulties would arise from the different nature of the pleadings. The present proceedings are by way of application, based on the simpler and more informal notices of application and opposition. In the District Court proceedings are by way of action, commenced by writ and a defendant files a more formalised statement of defence. There are also differences in filing fees and other matters.

26. However, I do not have to consider these differences further for I am satisfied that the Lands Tribunal has no inherent or residual power to transfer proceedings for which it has no jurisdiction to the District Court or elsewhere. The applicant's interlocutory application for transfer must therefore be dismissed. The proper course for the applicant, if it wishes to pursue proceedings to recover possession, is to commence an action in the District Court if the suit premises are within its jurisdiction or otherwise in the High Court.

27. The substantive hearing of this application had been set down for 5th October 1984. That fixture will be preserved but limited to hearing an application for costs, if any is pursued, for which I do retain residual jurisdiction.

DATED this 25th day of September 1984.

Representation:

Miss R Chow of Joseph C.T. Lee & Co. for the applicant.

Miss M. Ho of Robert W.H. Wang & Co. for the respondent.