Modern Market Management Ltd v. Ma Wai Piu

DCCJ 1441/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1441 OF 2006

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BETWEEN

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Coram : Deputy District Judge A. Yuen in Court

Date of Hearing : 6^th August 2007

Date of Delivery of Decision : 6^th August 2007

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DECISION

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1.Defendant applies to strike out Plaintiff’s claim pursuant to s.41 (2) of the District Court Ord. (DCO) on the ground that Plaintiff’s claim is outside the jurisdiction of this Court.

Background:

2.On 6 Sept. 05, Plaintiff and Defendant entered into a licence agreement whereby the Defendant was licensed to use a stall, namely, Stall No. 3, in this Chung Fu Shopping Centre at Tin Shui Wai of NT.  (The Agreement)  The agreed licence fee was at a monthly rate of HK$30,000.

3.The Agreement expired on 15 Feb. 06.  Notice to quit was served on the Defendant prior to the expiry of the Agreement.  Up to the present moment, no new licence agreement has been entered between parties and Defendant is still in possession of the stall.  The Plaintiff is now asking for, amongst other things, the vacant possession of the stall.

Defendant’s submission:

Plaintiff’s submission:

5.In the present case, Plaintiff is the licensor and Defendant is the licensee.  Defendant was granted a licence to use a stall in this shopping centre for a period of time at an agreed fee.  Under this licence, Defendant has no interest in the land at all.  Therefore the present action is merely a contractual dispute arising out of a licence agreement which does not touch upon any interest in land.  Therefore, s.35 has no application and the present action falls squarely within the jurisdiction of the Court pursuant to s.32 of DCO.

Does s.35 of DCO apply?

6.S.35 applies to “any action for the recovery of land”

“Land” is defined in s.2 of DCO as meaning:
“	land of whatever description, any part of section thereof, and tenements and buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way)”

7.In the present case, Defendant is licensed to use a stall in a shopping centre.  Now, Plaintiff is asking for the vacant possession of the stall.  The stall is clearly a part of a building which falls within the meaning of “land” under s.2 of the Ord.  Therefore, Plaintiff is asking for the vacant possession of a piece of “land”.

8.There is no pre-requisite that Defendant has to have an “interest in land” before s.35 applies.  All it says is any action for the “recovery of land”.  I therefore find that s.35 is applicable in this case.

Does this Court have jurisdiction?

9.Mr. Yee for the Defence submitted that although there is no rateable value determined in accordance with the Rating Ordinance in respect of the stall in question, the fact that Defendant is contributing a sum of  $1,500 per month to the overall rate of the shopping centre suggests that the rateable value of the stall exceeds $240,000.  In any event, the agreed licence fee was $30,000 per month, i.e. the annual value of the stall should be $360,000, which again exceeds the jurisdiction of this Court.

10.I agreed with Mr. Yee’s submission.

11.I therefore find that the present case is an action for the recovery of land and it’s annual value or rateable value has, prima facie, exceeded the jurisdiction of this Court.

Transfer to Court of First Instance?

12.Defendant urges this Court to exercise its power under s.41 (2) to strike out Plaintiff’s action on the ground that Plaintiff knew or ought to have known that the Court has no jurisdiction.

13.Plaintiff commenced its action by filing a statement of claim on 22.Mar.06.  Defendant filed his defence on 14.Nov. 06.  Before today, the matter has been in front of different judges on different occasions.  Defendant has all along been represented by lawyer yet he never raised this jurisdictional point until this very first day of the trial.

14.Mr. Leung, who represents the Plaintiff, argues that this is merely a contractual dispute involving no interest in land and therefore s.35 has no application at all.  I would not dismiss Mr. Leung’s argument as having no substance at all. Quite the contrary, I found his argument very persuasive though I disagreed after a careful consideration of the matter.

15.I do not agree that the Plaintiff knew or ought to have known that this Court has no jurisdiction and I will not strike out the action. 

16.I’ll order for this case be transferred to the Court of First Instance.

Costs

17.I’ll order that costs of the hearing of this application be costs in the cause.

Mr. Richard Leung instructed by Messrs S. H. Chou & Co. for the Plaintiff.

Mr. Kent Yee instructed by Messrs Yuen & Partners for the Defendant.