Ngai Ngok Pang and Another v. Lee Syn Yuk, Michelle

LDPD3030/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 3030 OF 2012

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BETWEEN

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DECISION

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1.By an interlocutory application dated 27 March 2013, the respondent applies:

(a)   “to counterclaim the damages for distress, inconvenience and loss of enjoyment of the premises against the plaintiffs same as my husband’s counterclaims lodged in DCCJ 563/2010”; and

(b)  for “leave to withhold payment of rent to the plaintiffs from 1^st May, 2013 unless the plaintiffs will complete all necessary work in those repairs and maintenance being informed to them by my written notice since 19^th January 2013”.

2.The application is supported by an affirmation of the respondent’s mother (Yuen Oi Yee Lisa) in which Ms Yuen drew attention to 2 letters of the applicants and 2 judgments in DCCJ 563/2010.  She complained about the “mentality and craziness” of the applicants and said: “After you have digested and understood the mental sickness of [the 1^st applicant], what could I do in order to urge him to do the repairs and maintenance leading to our damages, inconvenience and loss of enjoyment of the Premises?”

Background

3.The applicants are the owners of the premises known as Flat LC, 47/F, Tower 1, Le Prestige, Lohas Park, 1 Lohas Park Road, Tseung Kwan O, New Territories, and the respondent is their tenant.

4.This is not the first time the parties are embroiled in legal battle concerning the lease premises.  Previously in LDPD 2002/2012, the applicants applied to recover vacant possession of the premises from the respondent.  That application was dismissed by the Temporary Member after trial (see the judgment dated 15 November 2012).  The applicants’ subsequent applications for review and for leave to appeal were dismissed by the Temporary Member (see the judgments dated 21 January 2013 and 22 February 2013).  The applicants are, as I was told, applying to the Court of Appeal for leave to appeal.

5.In the meantime, the applicants commenced this application on 14 December 2012 to seek vacant possession from the respondent again.  The application is also opposed.  The new case is said to build upon the findings of LDPD 2002/2012.

6.The respondent was absent at the first call-over hearing of this case held on 21 January 2013. I adjourned the hearing to 27 February 2013 for the parties to consider whether to appeal against the judgment in LDPD 2002/2012 as the two cases are obviously intertwined.  In view of the fact that the Tribunal had been bombarded with unnecessary paperwork prematurely, I forbade parties to submit further on this case during the adjournment and directed that any interlocutory application should be formally made.

7.During the adjournment, the respondent took out 3 interlocutory applications trying essentially to introduce a counterclaim into this case.

8.The respondent was again absent on 27 February 2013, and her 3 applications were dismissed for want of prosecution.  The applicants confirmed at that hearing that they would appeal and that, depending on their success, they may not need to proceed with this case.  I therefore adjourned this case sine die with liberty to restore and directed the applicants to notify the Tribunal of the result of their leave application to the Court of Appeal so that further directions can be given on paper.  I again forbade parties to submit unnecessarily in the meantime and directed all interlocutory applications to be made formally.

9.It is in those circumstances that the present application was made.

Disposition

10.The applicants are absent at today’s hearing, but have written in to voice their objection (see their letter dated 5 April 2013, which was copied to the respondent). They said that the present application was made in breach of the Tribunal’s directions and accused the respondent of being unreasonable in making repeating applications both to the Lands Tribunal and in the High Court (e.g. HCMP 2829/2012) which led to the imposition of a restricted application order.

11.In my view, the respondent’s application must be dismissed.  The Lands Tribunal has only such jurisdiction as has been conferred upon it by legislation.  Unlike the District Court (which adjudicated on DCCJ 563/2010 relied on by the respondent), the Tribunal does not have jurisdiction to entertain any counterclaim for damages for distress, inconvenience and loss of enjoyment.  Also, this Tribunal may not rewrite a tenancy agreement to suspend the payment of rent by a tenant for failure of his landlord to effect proper repair and maintenance.

12.It appears from the papers that both parties have been trying to out-maneuver each other by unnecessary actions in the Lands Tribunal or otherwise.  In my view, these tactical maneuvering are unhelpful and would only serve to complicate matters.  The parties should instead focus on the matter at hand, namely, the intended appeal.

13.The respondent’s application is therefore dismissed.  No one has applied for costs and I make no order on the costs of the application.  I reiterate my directions dated 27 February 2013 (see the sealed order of that date). 

The 1^st applicant, absent

The 2^nd applicant, absent

The respondent, represented by Ms. YUEN Oi Yee Lisa appeared in person