Kwan Chow Po Wan Phyllis v. Fok Ming and Others

LDLA000255/1984

IN THE LANDS TRIBUNAL OF HONG KONG

LANDS TRIBUNAL APPLICATION NO. L.T. 255/84

BETWEEN:

Coram: Sir Denys Roberts, President, M.W. Phillips, Esq., Member

Date of Judgment: 3rd August  1984

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DECISION

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Sir Denys Roberts:

1. The applicant, who is the landlord of Flat 2, 26th Floor, Block T, Aberdeen Centre, Hong Kong, instituted proceedings against four respondents for possession of the premises, arrears of rent and mesne profits.

2. On 7th July, 1984, the Deputy Registrar of the Lands Tribunal made an order, under Rule 13A of the Lands Tribunal Rules, for possession of the premises and for arrears of rent against the first, third and fourth respondents, in default of any opposition by them.

3. However, the second respondent did file a notice of opposition, on 4th July, 1984. On 9th July, the applicant took but a summons seeking summary judgment against the second respondent.

4. The applicant's solicitors, conceding that Rule 13A is not applicable where a notice of opposition is filed, argued that High Court practice governing the obtaining of summary judgment under Order 14 applied to proceedings before the Lands Tribunal, by virtue of section 10(1) of the Lands Tribunal Ordinance.

5. This section provides that the Tribunal shall have the powers which are vested in the High Court in relation to certain matters, which are listed, and "so far as it thinks fit, may follow the practice and procedure of the High Court in the exercise of its civil jurisdiction."

6. We regard this as a general provision which should be used sparingly and is designed only to be employed where there is a gap in the Lands Tribunal procedure, as set out in the Ordinance or rules, which must be filled for practical reasons.

7. The general approach which this Tribunal should adopt is stated in section 10(5)(a) of the Ordinance, which requires the proceedings of the Tribunal to be conducted "with as much informality as is consistent with attaining justice".

8. So far as possible, Lands Tribunal proceedings should not be beset by procedural stages and devices such as those which so often add to the time and expense of actions in higher courts.

9. Only where the simpler rules which are prescribed under Cap. 17 are clearly insufficient, should there be resort to the residuary procedures of the High Court allowed for by section 10 of the Ordinance. In this instance the rules deal adequately with the procedure to be followed.

10. Rule 13A provides for a default order, a form of summary judgment, to be entered, where no notice of opposition has been filed, in the case of an application for possession.

11. By Rule 13, where a notice of opposition has been filed, any party to the application, on giving notice to all parties, may apply to the Registrar in Form 16, to list the application for hearing.

12. By Rule 21, at the hearing, if no party appears at the hearing, the proceedings may be struck out for want of appearance. If only one party appears, the Tribunal may hear his evidence and submissions and strike out the proceedings or adjourn them.

13. There is thus no need for any additional procedure on the lines of Order 14 in the High Court and we regard the summons of the applicant as misconceived. His correct course, since notice of opposition has been entered by the second respondent, is to apply to the Registrar to list the application for hearing.

Representation:

Mr. H. Ho (H.H. Lau & Co.) for Applicant

2nd Respondent FOK Ming - absent.