Yung Tsing Nancy v. Barrowgate Ltd

CACV000110/1988

IN THE COURT OF APPEAL

1988, No. 110

(Civil)

BETWEEN

________________

Coram: Fuad, V.-P. & Hunter, J.A.

Date of Hearing: 21st October 1988

Date of Judgment: 21st October 1988

_______________

J U D G M E N T

_______________

Fuad, V-P :

1. This is an appeal by Madam Yung Tsing ("the Appellant") against an interlocutory order made on 7 September 1987 by Judge Wesley Wong sitting as a Presiding Officer in the Lands Tribunal.

2. The matter arose in this way. On 30 June 1988 the Appellant filed an application for the grant by her landlord Barrowgate Limited ("the Respondent") of a new tenancy of the flat she has been occupying in Causeway Bay since 1975. The application to the Lands Tribunal was made under s.177(1) of the Landlord and Tenant (Consolidation) Ordinance, Cap.17.

3. On 27 January 1988 the Respondent had served a notice of termination of the tenancy upon the Appellant under s.119 of the Ordinance, indicating, pursuant to subsection (5) of that section, that they would oppose an application to the Tribunal for the grant of a new tenancy on the ground that they intended to rebuildthe premises, one of the permitted grounds in s.119F (paragraph (c) of subsection (1) of that section).

4. The Respondent duly served a notice of opposition and filed it with the Tribunal on 13 July 1988.

5. By letter of 18 August 1988 the Appellant requested the Respondent for further and better particulars of the notice of opposition. The Respondent responded on 2 September. The Appellant was not satisfied with the answers and applied to the Tribunal for an order requiring further and better particulars under rule 12A of the Lands Tribunal Rules.

6. The Presiding Officer dismissed the application and ordered the parties to file their respective lists of documents within 60 days, inspection to take place 14 days thereafter. He gave both parties liberty to apply. It is against this order that Madam Yung appeals.

7. For the purposes of this appeal, the material parts of the Respondent's notice of opposition were in these terms:

"4.    The Respondent intends to rebuild the said premises and is capable of so doing.

5.    The rebuilding will result in an increase in the accommodation for commercial use and the site of the said premises is suitable for the intended commercial use and/or that the rebuilding is in the public interest."

8. I will attempt to summarise the further and better particulars that were sought (there were no less than 17 in all) omitting those which were supplied:

Under paragraph 4

(a)     The Respondent was asked to, identify all  memoranda, minutes, resolutions and other documents by which they had resolved to rebuild the premises.

The answer given was that they would produce such of the documents mentioned as were necessary to prove their intention to rebuild at the hearing. The particulars requested were matters of evidence.

(b)     Madam Yung's flat is in Caroline Mansion, Yan ping Road. In earlier answers, the Respondent had stated that they intended to rebuild the whole of Caroline Mansion and the next door properties known as Nos. 16-26, 28-38 Yan Ping Road (even numbers only). The Respondent was asked in respect of each of these properties to state whether there were any existing or future leases, tenancies, subtenancies or licences and if so, to identify each with particulars as to the dates on which the leases etc. were entered into; the dates upon which each lease etc. commenced; the duration of each lease etc. and the parties to each lease etc. They were also asked what arrangements, if any, had been made for the delivery of vacant possession of the respective premises before the scheduled date of the start of the rebuilding works. The answer was that the particulars requested were matters of evidence. Their stand was that they would prove at the hearing all the matters they had pleaded in paragraphs 4 and 5 of their notice of opposition.

(c)     The Respondent was asked to state the date upon which they intended to start rebuilding; the date when the work was expected to be completed; and whether they had obtained any valuation, or surveyor's reports, architects plans, projection, schemes; and any permission, approval or authority from relevant Government departments for the demolition and rebuilding. They were asked, too, to identify each report etc. "with sufficient particularity".

The response I have summarised in (b) was repeated in answer to all the above.

(d)     The Respondent was asked, in relation to their averment they were capable of rebuilding the premises, to state all facts etc. which supported their allegation of capability; the estimated cost of demolishing and rebuilding, including premiums payable to the Government, fees to surveyors, valuers, architects and consultants; in addition they were asked whether they had obtained any credit/banking facilities from any bank, money-lender, person or entity, with details of dates, amounts and parties.

The response summarised in (b) was repeated in answer to all the above.

Under paragraph 5

(e)     The Respondent was asked in relation to the averment that the rebuilding would result in an increase in the accommodation for commercial use and that the site was suitable for such use, to state the (a) domestic, (b) commercial, (c) domestic or commercial areas usable in the existing premises and which would be usable in the new building. They were also asked to state specifically what use they meant by saying "intended commercial use", and to give all facts and matters in support of the assertion that the site was suitable for such use. They were further asked to state specifically what aspect of the public interest would be advanced by the rebuilding, and the reasons for the same.

The response summarised in (b) was repeated in answer to all the above.

9. The learned Presiding Officer said in his "ruling" that the impression he had formed of the Appellant's requests for further and better particulars was that the majority of them were "fishing for evidence" and that the rest were either irrelevant and/or impossible then to answer. He referred to three of the requests as examples. As to the request about the date when the Respondent first formed the intention to rebuild (this had in fact been answered) he said this was irrelevant. About the date when the rebuilding would start, he said that this would depend on factors such as the date available from the hearing of the applications and whether the Respondent would have to levy execution after the hearing. He remarked that it was a matter of common sense that if the rebuilding resulted in more tenements and greater usable floor area that would be in the public interest

10. The Presiding Officer went on to say that none of the particulars sought came within the principles reviewed in paragraph 18/12/2 of the White Book. He noted that he had a wide discretion as to when to order discovery and to save further applications, and in the interests of justice, he had made an order for mutual discovery and inspection which would enable Madam Yung to know the evidence the Respondent relied upon. Further requests for particulars, he felt, would be unnecessary once the documents discovered had been inspected for he was confident that they would be self -explanatory and would answer Madam Yung's premature queries.

11. The Presiding Officer concluded by observing that he had been informed by counsel that the Respondent's plans were being amended and would be re-submitted for approval and so it was difficult to estimate when they would be ready. To avoid unnecessary applications to extend time, he had allowed 60 days for the filing of the list of documents he had ordered.

12. The Appellant by her grounds of appeal complains that the Presiding Officer erred:

(i)     in holding that all the particulars sought could be gleaned on discovery and that, therefore, her application had been unnecessary;

(ii)     in not appreciating the distinction between the Respondent's duty to state and clearly define their case with full particulars, and their duty on discovery;

(iii)    in refusing to hear her counsel's submissions on the individual items;

(iv)     in making the order for mutual discovery when no such order had been asked for; and

(v)     in allowing 60 days for the filing of lists of documents - this would unnecessarily delay the hearing and was unfair to her.

13. I feel bound to say that I am somewhat surprised that some of these matters have been elevated into points of law - unders s.11(2) of the Lands Tribunal Ordinance, Cap. 17, an appeal lies to this Court only if the Tribunal's determination or order "is erroneous in point of law."

14. Mr. Horace Wong for the Applicant drew our attention to rule 56 of the Lands Tribunal Rules which say:

"56. (1) The application shall, in his notice of application, state the facts relied upon by him in sufficient detail to enable the respondent to know the case he has to meet.

(2) The respondent shall, in his notice of opposition, state the facts relied upon by him in sufficient detail to enable the applicant to know the case he has to meet."

15. I think it is necessary, too, to notice another provision in the Ordinance which is sometimes lost sight of: s.10(5)(a) is in the following terms:

"The proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice and, for this purpose, the President may give directions as to the manner and form in which proceedings shall be conducted."

16. In respect of the ground of appeal I have summarised in (iii) above, the position was clarified by an exchange of letters between the solicitors for the parties after the notice of appeal had been filed. Madam Yung's solicitors, in their letter of 18 October, said this in reply to the query about that ground raised on behalf of the Respondent:

"In respect of item 1 in your letter, whilst the learned Presiding Officer did not expressly say that he refused to hear our Counsel submission on the individual items of the subject Request, when our Counsel set out to make submission on the individual items, the Presiding Officer stated that he had formed the view that our client's application was premature and proceeded to make the order for discovery. In the circumstances, though the Presiding Officer did not expressly refuse to hear Counsel's submission on the individual items, he did effectively refuse to do so."

17. I must point out that Mr. Wong did not put this ground of appeal quite in the same way when he made his submissions to us. He contended that it was clear that the Presiding Officer had not considered each item and had therefore not decided which of them were legitimate, and which were illegitimate, in reaching his conclusions.

18. As to that ground of appeal as originally formulated all I need to say that it is not surprising that the Presiding Officer had formed a preliminary view as to what seemed best after reading the papers. Had counsel appearing for Madam Yung made it clear that he wished to be heard on each item I have not the smallest doubt that the Presiding Officer would not have shut him out.

19. As regards ground (iv) in response to another query the same letter acknowledges "that our Counsel did say that an order for prompt discovery would be welcome. This remark is, however, of course without prejudice to our client's right to apply for the subject particulars."

20. Although the grounds of appeal do not seem to recognise the fact, we are being asked to interfere with the discretion of the Presiding Officer seised with the application for the grant of a new tenancy, who thought that the proceedings would best be advanced, and the interests of justice better served, by the orders he made. An appellate court does not, of course, interfere with the exercise of a discretion except upon well-known principles, none of which apply in the instant case.

21. I would observe, in passing, that it really does appear that some of the requests were attempts to serve interrogatories under the guise of seeking particulars, and this the Court will not countenance.

22. Despite Mr. Horace Wong's helpful and forceful submissions (and it must be said that he held a difficult brief) I find that there are no grounds whatever for interfering with the discretion exercised by the Presiding Officer. The orders he made were sensible as well as practical

23. I would, therefore, dismiss this appeal.

Hunter, J.A.:

24. I agree. There are no grounds here for interfering with the judge's discretion. I accept that when dealing with matters of intent and capability, the dividing line between evidence and particulars is sometimes difficult to draw. But I do not think it is possible to read this request without concluding that that line was crossed, and considerably crossed, by the form of the requests in many cases. The document looks much more like a request for interrogatories than particulars.

25. It does not follow that a more modestly phrased document might not have achieved a different fate. When faced with that request, the judge took a line which seems to me to be both sensible and indeed beneficial to this Applicant. An applicant who is faced with an expressed intention by a landlord to demolish and rebuild always has a difficult task. All she can do is to probe the bona fides and the realities of that intention, the landlord's capacity, the details of the plans to see how this accommodation, by the proposed fresh accommodation will, in fact, he increased, and how far otherwise the public interest might or might not be served by the proposed development.

26. It is very much a matter of probing the landlord's case. In those circumstances the sooner she is able to get discovery of the landlord's documents and see precisely what the details of the intentions are, how they have been expressed in minutes, how they have been expressed in plans, how they have obtained approval by way of planning permission, the better. This was the view that the judge took: Let us have discovery first, a lot of these questions will then be answered, or should be answered, on discovery. That seems to me to be a thoroughly sensible approach to take in this sort of case. But as he emphasized, this was not on his part a shut out derision. He used words like "premature". It seems to me that once this tenant had seen the documents and if there are questions which arise on the documents which she cannot answer from the documents herself, then her next step should be to request answers to those questions in writing from the Respondent. If those questions are not satisfactorily answered then a further request for particulars and/or an application for interrogatories might suffer a different fate. What the Presiding Officer has laid down is, with respect to the draftsman's original request, more sensible, and likely to be a more productive timetable, than that which was originally proposed. I believe that it will in fact assist towards the sensible determination of this application.

27. I therefore agree this appeal fails and should be dismissed.

Representation:

Mr. Horace Y.L. Wong (Baker & Mckenzie) for the Appellant.

Mr. Y.C. Mok (Wilkinson & Grist) for the Respondent.