Sin Hua Trust, Savings and Commercial Bank Ltd v. Ng Yee May

CACV000137/1985

Landlord and tenant - tenancy within Part IV of Landlord and Tenant (Consolidation) Ordinance - after due notice to quit had expired, former tenant sought to apply for new tenancy under s.117(1) - by virtue of s.119D(3) no application may be entertained after termination of the "current" tenancy - application under s.10(2)(d) of Lands Tribunal Ordinance to extend time for applying for new tenancy - that application misconceived and no new tenancy could be granted.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ.A.

Date of Hearing: 15th November 1985

Date of Judgment: 15th November 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against a decision of His Honour Judge Leonard, sitting as residing Officer of the Lands Tribunal, whereby he dismissed an application for an extension of time for the purpose of applying to the Tribunal for a new tenancy under s.117(1) of the Landlord and Tenant (Consolidation) Ordinance. Section 117 is in Part IV of that Ordinance. It provides for the continuation and renewal of tenancies:

"A tenancy shall not come to an end unless terminated in accordance with this part and a tenant may apply to the Lands Tribunal for a new tenancy -

In this case the appellant Tenant made a request to the Landlord for a new tenancy. However, the application to the Tribunal was not made at the proper time under s.119D(3) of the Landlord and Tenant (Consolidation) Ordinance which provides, so far as material, that:

"No application under s.117(1) shall be entertained if it is made-..... (3) after the current tenancy has terminated in accordance with this Part."

2. The tenancy did in fact terminate because of a notice which was served by the Landlord in accordance with the provisions of s. 119.  That section required that there shall be a notice given not more than seven nor less than six months before the due date of termination.

3. The tenancy having expired, the Tenant now comes and seeks to have an extension of time, and he relies upon s.10(2)(d) of the Lands Tribunal Ordinance, which provides that for good cause the Tribunal may

"enlarge the time, whether or not that time has already expired, fixed by any Ordinance - ... (2) for the taking of any step in any proceedings; or (3) for the filing or lodging of any document in any proceedings."

It is suggested that s.10(2)(d) of this Ordinance permits the extension of the time within which notice of application may be given to the Tribunal under s.119D of the Landlord and Tenant (Consolidation) Ordinance.

4. As I see it this argument cannot be sustained. To start with, the section of the Landlord and Tenant (Consolidation) Ordinance does not prescribe a period of time: it merely states that after a certain thing has happened the right to apply to the Tribunal shall no longer exist. The effect of the termination of the notice is that the tenant ceases to be a tenant and therefore he has no locus standi to come forward to ask for a renewal of the tenancy. In my view this section of the Lands Tribunal Ordinance has no relevance to s.119D(2)(3)(iii). Whether or not it relates to the earlier two paragraphs of sub-s.(3) it is not necessary for us to say, but I am satisfied that this application was misconceived and that the judge was right to dismiss it. I would therefore dismiss this appeal.

Cons, J.A.:

5. I agree with my Lord. Section 10(2)(d) of the Lands Tribunal Ordinance to my mind does not apply, because the application to the Tribunal is not a step in any proceedings nor is it the filing or lodging of any document in any proceedings. Furthermore the time in respect of which application is now made is not a time which is fixed by any ordinance, it is a time which is fixed by the Landlord. It is fixed in accordance with the Ordinance, but not by the Ordinance.

6. One of the chief arguments below, as I read the proceedings, was based on comments made by His Honour Judge Cruden in Union Carbide Asia Ltd. v. The Hong Kong Land Co. Ltd. ⁽¹⁾, where he pointed out what he thought were unduly severe provisions in Part IV which could work to the prejudice of a tenant. It was after his comments had been reported that s.10(2)(d) was brought into the Lands Tribunal Ordinance, which may suggest that its purpose was to remedy the defects that he had pointed out. Even so it does not necessarily follow that the legislature intended to remedy all the defects which appeared to the judge, and where, as here, the words of a new section are quite clear, it would be quite wrong for us to try and extend them. I too would dismiss the appeal.

Fuad, J.A.:

7. I agree with both my Lords that the section upon which the Appellant relies has no application to the proceedings he sought to institute in the Labour Tribunal, and I agree that the appeal should be dismissed.

15th November 1985

(1)    [1982] 6 D.C.L.R. 75

Representation:

Peter Cheung for Appellant

Y.C. Mok for Respondent