Tan Chun Gam and Others v. Chung Yuk Mui and Others

LDLA001672/1982

HEADNOTE

When an application under Section 53 (7A) of the Landlord and Tenant (Consolidation) Ordinance should be heard ex parte; when inter parte.

Criteria for making an order to authorize the landlord (during the 2 years' period of restriction for own use or development by the landlord only) to assign, tranfer, let or part with possession of the property already re-possessed by an earlier order.

IN THE VICTORIA LANDS TRIBUNAL

HONG KONG

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Application Nos. : 1668-1670 of 1982

Application Nos. : 1671-1673 of 1982

Application Nos. : 3341-3343 of 1981

(Consolidated)

(Formerly known as V.C.J. Action Nos. : 1668-1673 of 1982 and 3341-3343 of 1981)

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Coram : Presiding Officer, Judge Eric Li in Chambers

Date of Judgment: 24th February, 1984.

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DECISION- EX TEMPORE

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1. These are 9 consolidated ex parte applications under Section 53(7A) of the Landlord and Tenant (Consolidation) Ordinance for authorisation to assign transfer or mortgage concerning some of those premises in respect of which an earlier order for possession was granted for re-development.

Preliminary Point

2. Section 53(7A) of the Landlord and Tenant (Consolidation) Ordinance which empowers the Tribunal to grant leave to assign or transfer or otherwise dispose of property that was the subject matter of an earlier order for possession does not expressly say whether the Tribunal should proceed ex parte or inter parte in such an application. In my opinion the Tribunal has a discretion to proceed either way.

3. When a tenant or sub-tenant was dispossessed of his tenure can be readily located and served with notice of an application of this nature, it is only fair and just for the application to be heard inter parte. Otherwise the person dispossessed may feel aggrieved that he is not given a chance to challenge the application and the Tribunal has not fully discharged its duties to ensure that there is a genuine need for granting the application in a fair-play manner. After all, the applicant was granted possession at his expense as the dispossessed through no fault of his own. I feel that the dispossessed is entitled to know why an order is made under Section 53(7A).

4. If, however, it is either impossible or infeasible to locate the person or persons dispossessed am serve him with notice, or it will be not in the public interest to do so in view of the difficulties involved and the time element in all circumstances prevailing, the Tribunal then should exercise its discretion to go ex parte.

5. In these applications the tenants and sub-tenants had vacated the premises almost 2 years ago and the premises had in fact been demolished. As learned leading Counsel has rightly pointed out, really they had scattered to the four winds and virtually it was impossible to locate them all. There is also the public interest aspect. This project is a joint venture between the developers, be it the original ones or the subrogating ones, and the MTR. As again rightly pointed out by learned leading Counsel, the collapse or delay of this project will adversely affect the progress and completion of the MTR project. Without the super-structure, there would be nothing over the concourse and no access to the trains.

6. For these reasons I am quite satisfied that it is infeasible to proceed inter parte and it is in the public interest in this case to proceed ex parte.

Criteria for Order

7. It is my humble view that the criteria for granting an application of this nature are these. Firstly, the Tribunal has to consider whether a party who is to take over or to salvage a project is in a financial position to do so. The Tribunal has a watch dog role to ensure that the project will be completed with the making of the order. Secondly, the Tribunal will have to consider whether it will be in the public interest to make the order. If it is, it will be a Tribunal's duty to do so. Then there is a third reason for it. When the circumstances particularly the financial circumstances of an applicant has so changed, that it will be financially not viable for him not to ask for authorisation to assign or let, then it will be only fair and just for the Tribunal to make an order. One example is where an applicant has re-possessed for own use of a flat financed by installmental payments and suddenly he has become unemployed or has encountered with dire financial difficulties through failure of business. In such a situation he will not have sufficient means to continue financing his flat and the only solution is to sell it and to find some smaller place to live in. The above suggested criteria are not meant to be exhaustive as it is beyond human ingenuity to be.

The Project

8. The project for re-development includes 10 houses out of which 3 form the subject matter of this morning's application. It was a joint venture between the MTR and the developers including the applicants with the party who is now to take over very much in the picture right from the inception of the project. Due to sluggishness in the property market in the past 2 years or so, the applicants went into financial difficulties and were quite unable to carry out their parts. Fortunately Mr. LIU Lit-man a locally very well-known banker has undertaken to salvage the project. With backing from the banking circle and support from the MTR Mr. LIU had personally executed a guarantee to the extent of 15 millions and I am quite sure if further money or further guarantee are needed he will see his way out to provide for them. I do not see the slightest danger of this project falling through for financial reasons if this application is granted.

9. There is also dire urgency for an order so that the "salvage agreements" could be finalized and immediately put into effect without any delay to the MTR project. But for this urgency, there would be no need to make this application as the two years, period during which the applicant is not allowed to assign would expire in about a month's time.

10. I am entirely satisfied that it will be in the public interest to make an order and that the new associates of the joint venture with MTR, headed by Mr. LIU Lit-man, are in strong financial position to salvage and complete the project Accordingly all applicants in these applications are respectively authorised to assign, transfer or mortgage all the premises as referred to in the respective Applications. This order is made under Section 53(7A) of Cap. 7, Landlord and Tenant (Consolidation) Ordinance. I am indeed indebted to learned leading Counsel Mr. Swaine for his valuable assistance.

Representation:

Mr. John Swaine, Q.C.

Mr. Patrick Chan instructed by Chu & Lau for the Applicants