Li Yau v. Hong Lok Co Ltd

LDLA001267/1985

Lands Tribunal - procedure - wider powers given to Lands Tribunal than to a Court - direction to conduct proceedings with as much informality as is consistent with attaining justice - adjournments - exercise of discretion where adjournment granted suitable terms may be imposed to protect other party - Section 10(5) Lands Tribunal Ordinance, Cap. 17.

IN THE LANDS TRIBUNAL OF HONG KONG

TRIBUNAL: His Honour Judge Cruden, Presiding Officer.

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JUDGMENT

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1. This application was brought by the tenant of Ground Floor, 149 Thomson Road, Hong Kong pursuant to Section 124B of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. Section 124B is within part V of the Ordinance and enables limited relief to be granted in relation to tenure to certain tenants who were formerly subject to part I. Where a notice of termination has been served by a landlord, the Lands Tribunal, on a tenant's application, may order that the notice of termination shall not take effect. On making such an order, the Tribunal must also order the time, not exceeding 1 year, within which a further notice of termination may not be served.

2. The notice of termination in relation to which the applicant founded the instant application was served on 25th July 1986. Prima facie, the application was one to which Section 124B applied. At the hearing both parties were represented by Counsel and a number of preliminary points were raised. The first followed from the particulars set for in the application., These were curiously expressed in the alternative. First, the applicant pleaded that the primary user was domestic, However, if the primary use was domestic the premises would probably have fallen into either Part II or Part IV but not Part V . In that event an application under Part V's Section 124B would have been inappropriate. Secondly, if the primary user was business, then on the pleadings an order in favour of the tenant, declaring the notice of termination of no effect, was sought.

3. Counsel for the applicant first informed the Tribunal that although an application for a Certificate of Primary User had been made to the Commissioner of Rating and Valucation on 14th October 1985 it was still not forthcoming and sought an adjournment on that ground. The application for adjournment was opposed. Where user is in dispute it is not mandatory for a Certificate of Primary User to be obtained although that is often a convenient and economical course for a party to follow. The issue may, of course, be determined by the Tribunal without the aid of a Certificate - Orleans Estates Ltd v. Robert Jordan (1981) HKLR 331. Where a Certificate is produced it is prima facie evidence of user - Wong Yip v. Commissioner of Bating and. Valuation Civil Appeal No. 90/85 explaining the apparently even lesser importance given to a Certificate by another Court of Appeal in Chan Kwok Kwan v. Chan Cheong Wai (1980) HKLR 450.

4. I considered that while it was unfortunate that a Certificate was not available, as the same issue could be resolved by other evidence I should, particularly as the application was opposed, not grant the adjournment sought. However, the applicant was still faced with other procedural difficulties. The conflict in the particulars pleaded in the notice of application remained. If the premises were domestic, no-order under Section 124B could be made-nor would the applicant require the protection of such an order. For in that event, the tenure protection under either parts II or IV would far exceed the minimal assistance which can be granted to certain former Part I tenants under part V.

5. Counsel for the respondent was well aware of these difficulties and used them as a basis of his opposition to an adjournment and to the Lands Tribunal having jurisdiction even if the application proceeded. If the primary user of the premises was business, I was referred to the fact that an order had already been made in favour of the applicant in prior Section 124B proceedings, being LT Application No. 614/85. It was submitted that in those proceedings not only did the applicant represent that the primary user was business but was granted an order under Section 124B. Counsel for the respondent went on to submit that the status of the premises had therefore been determined. Further, it was submitted Part V only permits one application to be made under Section 124B. Accordingly, as a matter of law the Tribunal, it was submitted, did not have jurisdiction to entertain a second application.

6. In my view at least the latter submission was strongly arguable. Indeed, subsequently a few days later in Leung Chun Wai v. Lo Sun Kui LT No. 1437/85, now subject to appeal, I orally held that a tenant may only once be granted an order under Section 124B.

7. Amidst the difficulties the applicant was under I was also conscious that I was not sitting in a Court but in a Tribunal. I was aware of the statutory direction given under Section 10(5)(a) and the President's written directions given to Presiding Officers under Section 10(5)(b). As a matter of  law it was open to the applicant to apply to amend the application merely to obtain a determination of primary user under Section 51(8) in relation to part II or alternatively under Part IV by reference to the same Section 51 by virtue of the incorporation by reference provisions of Section 115(2). Alternatively, if the applicant abandoned the user issue and proceeded not only formally but substantively under Section 124B, I would at least require argument before ruling on whether a tenant may apply twice under Section 124B as that issue had then not yet been judicially determined. I was also reminded by Counsel for the applicant, that Section 124B (1) required application under that section, to be made not later than 3 months before the notice of termination takes effect. So it had been necessary for the applicant to proceed promptly in case later primary user was held to be business.

8. When I took all these matters into account against the background that the Ordinance's basic purpose is to afford protection for tenants beyond their common law and contractual rights, I was satisfied that a short period should be given to the applicant, to consider her position. At the same time I was concerned with the damage the respondent might suffer due to any delay. I was aware that I was obliged to exercise my discretion whether to adjourn judicially. In the light of all these and other relevant factors, it seemed to me that the respondent's position could be reasonably protected, if I granted an adjournment sine die but with liberty for either party to restore the application on 14 days notice. This formula would, I considered, enable the respondent to have the application promptly reinstated and finally determined if there were undue delay or for any other relevant reason.

9. I then exercised my judicial discretion by granting an adjournment in those terms. Although both parties were represented I explained to them the two-fold basis of my final adjournment order and emphasised the power given to the respondent to have the application promptly reinstated.

DATED this 31st day of January 1986.

Representation:

Miss Carlyle Chu instructed my Shea & Co for the applicant

Mr. Peter Cheung instructed by T.S. Tong & Co for the respondent.