Li Shau Chun v. Chan Siu Ming

LDLA000626/1991

HEADNOTES

Order for particulars - Failure to comply - default judgment in Lands Tribunal.

The applicant obtained an Order for particulars, Respondent failed to comply with the order. Applicant sought an unless Order.

Held:   1) The request for particulars should not have been made in the first instance;

2) A judge, for that matter a Presiding Officer, has no duty or obligation to implement an order which he felt should not have been given

3) Under the Lands Tribunal Rules default judgment can only be made in writing to the Registrar supported by affidavit. (Rule 13A(2) of the Lands Tribunal Rules).

IN THE LANDS TRIBUNAL OF HONG KONG

LANDS TRIBUNAL APPLICATION

NO. 626 OF 1991

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BETWEEN

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Date: 28 May 1991

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JUDGMENT

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1. The applicant came before me do a summons asking for an unless order by reason of the Respondent having failed to supply the particulars. The Respondent has been ordered to supply particulars by another Presiding Officer I dismissed the summons and I now give my reasons.

2. The applicant is the landlord and he claims possession of the suit premises on 2 limbs, namely:

1) Forfeiture for non payment of rent; and

2) Persistent failure to pay rent.

3. The opposition (Defence) in Form 14 consists of the following words "I wish to continue my rental of the said premises on monthly basis".

4. Out of these 13 words the applicant's solicitors have made out 3 pages of requests for particulars which are as follows;-

Request for further and better particulars of other grounds and particulars of "I wish to continue my rental of the said premises on monthly basis".

Request

1. (a) State whether it was alleged that the Respondent has settled the rent of the suit premises for the months of November and December 1990 and January 1991

(b) if yes, state when and how the rentals were settled.

2. (a) State whether it was alleged that notwithstanding that the rent for November and December ,1990 and January 1991 is outstanding from the Respondent, the Applicant is not entitled to an order for possession against the Respondent.

(b) If yes, state the facts relied upon by the Respondent in support of such allegation.

3. (a) State whether it was alleged that the Respondent did not fail to pay rent as when it fell due.

(b) If yes, state whether it was alleged that:-

i. cheque no. 259865 was not drawn in purported payment of rent for about June 1988 or that it was not dishonoured for the reason "refer to drawer" or at all.

ii. chequen no. 952977 was not drawn in purported payment of rent for about May 1990 and outgoings or that it was not dishonoured for the reason "payment countermanded" or at all

iii. cheque no, 964599 was not drawn in purported payment of rent for about November 1990 or that it was not dishonoured for the reason "refer to drawer" or at all.

iv. cheque no. 975263 was not drawn in purported payment of rent for about December 1990 or that it was not dishonoured for the reason "refer to drawer" or at all.

v.the Respondent did pay rent for the period from 1st May 1990 to 30th June 1990 as when it fell due and if so state when and how the rent from 1st May 1990 to 30th June 1990 was paid to the Applicant.

vi. the Respondent did pay rent for the month of October 1990 as when it fell due and if so, state when and how such rent was paid to the Applicant.

vii. the Respondent did pay rent for the period for. 1st November 1990 to 31st January 1991 as when it fell due, and if so, state when and how such rent was paid to the Applicant.

4. (a) State whether it was alleged that notwithstanding that the Respondent persistently fails to pay rent as and when it falls due; the Respondent has not caused unnecessary annoyance, inconvenience or disturbance to the Applicant

(b) if yes, state the facts relied upon by the Respondent in support of such allegation.

5. (a) State whether it was alleged that notwithstanding that the Respondent persistently fails to pay rent as and then it falls due thereby causing unnecessary annoyance, inconvenience or disturbance to the Applicant, the Applicant is not entitled to an order for possession against the Respondent.

(b) if yes, state the facts relied upon by the Respondent in support of such allegation.

5. In my judgment the taking out of the summons requesting for particulars is wholly misconceived. The whole purpose for having particulars is to ensure that the issues are clearly before the Tribunal so as to prevent surprises at the trial and to enable the other side to prepare its case.

6. In the defence filed, there was no ambiguity. All the Defendant said was that he wished to continue to pay rent. There was no traverse. There was no denial that rents were in arrears nor was there any denial that he had consistently failed to pay rent.

7. The request should not have been made to start with and the order, with respect, should not have been given.

8. Solicitor for the applicant argued that the answer (Defence) was equivocal. do not agree. He went on to argued that the order for particulars have already be made.

9. With utmost respect I cannot and should not implement an order which, to me, should not have been given in the first instance. There is no obligation on my part to give effect to such an order.

10. The order the applicant sought was in the following terms;

1) Unless the Defendant do within 7 days from the date of an order to be made hereon serve on the Applicant the further and better particulars of the other grounds and particulars specified in the documents served herewith as ordered by Presiding Officer Mr. Registrar Jennings the notice of the opposition filed on 8th March 1991 be struck out and judgment entered for the Applicant with costs; and

2) The costs of this application be to the Applicant in any event.

11. This summons is tantamount to a default judgment. R.13A(2) of the Lands Tribunal Rules states:

"13A (2) An application for an order to be made in default of opposition pursuant to paragraph (1) shall be made in writing to the Registrar and shall be supported by an affidavit:-

(a) verifying the facts relied upon by the applicant and exhibiting the original of any document evidencing the claim or accounting for the loss of any such document; and

(b) declaring that the rent is not in excess of the amount recoverable by law."

12. Even if I am wrong in saying that the order should not have been given. I cannot in any event give a default judgment as R.13A(2) has not been complied with. The rule clearly states that it shall be made in writing to the Registrar and shall be supported by an affidavit. At best I can only order the defence be struck out.

13. Since the order was given by another Presiding Officer, I have no jurisdiction to set it aside, I can only dismiss the summons that is before me, I dismissed the summons accordingly.

14. Dated this 28th day of May, 1991.

Representation:

Mr. Fee of Fairbairn Catley Low & Kong for applicant.

Respondent absent.