Lam Hung Fei Michael v. Yau Yun Nam

HCMP 3326/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3326 OF 2004

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BETWEEN

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Before: Hon Tang JA in Chambers

Date of Hearing: 3 February 2005

Date of Decision: 21 February 2005

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D E C I S I O N

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1.The applicant is the owner of 5^th Floor, 25 Wing Kwong Street, Kowloon.  By an application, which was wrongly dated as “13 day of 2004” but was in fact filed on 13 October 2004, the applicant by his authorised representative, Madam Lam Hung Bick (“Madam Lam”), applied for possession of the suit premises and claimed against the respondent as follows :

“	(1)	Arrears for rent from :
		01/04/2003 to 31/07/2003 @$3,978.70 x 4	=	$15,914.80
		01/08/2003 to 31/10/2004 @$3,300.00 x 15	=	$49,500.00
		04/12/2003 received cheque dated 26/11/03		$11,256.00
		Total Arrears		HK$54,158.80
	(2)	The tenant has rented the premises to three third parties without the prior consent of the owner. (Please refer to the Chinese letter) written by the tenant and the points laid down on the Rental Receipt.)
	(3)	Costs and Bank overdraft interest (Best lending rate + 2.5%).
	(4)	Building Works as required by the Building Authority: amount unknown.  Please refer to the part marked with * on the attached letter (Order No. : CFS/FA/006029/03/K).”

2.No defence was filed and on 17 November 2004, Mr Lo Wai Kwong, a member of the Lands Tribunal made the following orders :

“	1.	答辯人須於2004年11月24日(下稱“繳款限期”)之後，交回案中處所位於‘5th Floor, 25 Wing Kwong Street, Tokwawan, Kowloon’ (即‘涉案物業’) 的空置管有權予申請人；
	2.	答辯人須繳付予申請人欠租/中間收益(或稱租值補償金)，包括：
		(i)	計算至2003年7月31日的欠租4,658元及
		(ii)	每月3,300元，由2003年8月1日起計，直至交回處所的空置管有權為止；
	3.	答辯人亦須付予申請人這申請的訟費，即時評估為1,000元；
	4.	若答辯人在繳款限期或之前，繳清予本審裁處所有上述第2段所列的欠租/中間收益(包括在繳款當日或之前已到期的欠租/中間收益)及上述第3段所列的款額，則答辯人無須與申請人訂立任何新的租契，而可按原有的租契繼續持有該涉案物業，上述第1段的交回處所的空置管有權命令，亦告失效；
		（惟本處可根據高等法院條例第21F條(下稱‘該條例’)將繳款限期延展。）
		（倘若答辯人未能在繳款限期(或延展的限期)內根據第4段繳清第2至3段所列的款額，申請人可強制執行本命令的第1至第3段，而只要本命令尚未被推翻，該條例亦不容許答辯人去取得任何濟助。）
	5.	當答辯人繳存上述款額於本審裁處後，申請人可從本處提取該款。
		（根據本命令而繳付的款額，須以現金、香港的銀行發出的本票或香港的律師事務所發出的支票繳付，本處不接受其他的付款方式。）”

The actual order, however, was wrongly dated 24 September 2004.  It was, in fact, made on 17 November 2004 at the hearing that morning.

3.On 24 November 2004, the respondent paid the sum of $58,458 into court.  That sum was paid out to Madam Lam on 16 December 2004.     

4.The applicant was aware of the nature of the order of 17 November 2004.  Indeed, Madam Lam signed a notice to the tenant regarding the requirement for payment on or before 24 November 2004 and the effect of the payment, namely, that the tenancy would continue and possession of the suit premises would not need to be delivered up.

5.The applicant now seeks leave to appeal against the order of 17 November 2004.  This application is supported by an affirmation of the applicant dated 30 December 2004 in which the applicant has explained the reason for the delay.  First, that was because of an application on 22 November by a Madam 楊春景 to be joined as respondent in the proceedings.  That application was refused on 7 December 2004.  Then, on 10 December 2004, the applicant applied for a writ of possession.  He was notified on 13 December 2004 that it had been approved.  But on 28 December 2004, he was told that because the arrears and rent had been paid the claim had come to an end and no writ of possession could be issued.  On 30 December 2004, he applied for leave to appeal.

6.In all the circumstances, I believe the applicant has a reasonable explanation for the delay in his application for leave to appeal.

7.However, I have to consider whether leave to appeal should be granted, treating the application as if it had been made in time.  Under section 11(2) of the Lands Tribunal Ordinance, Cap. 17, the applicant may appeal to the Court of Appeal “against a determination or order of the Tribunal on the ground that such determination or order is erroneous in point of law.”

8.The applicant’s complaint is that the Lands Tribunal had failed to deal with his claim for possession for reasons other than non-payment of rent, in particular, for unlawful subletting.  I believe it is arguable that this involves a point of law.  Accordingly, leave to appeal out of time is granted.  I make no order as to costs. 

Applicant, in person, present

Respondent, in person, absent