Eversound Investments Ltd v. Au-yeung Ngan Siu and Others

LDCS 34000 / 2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE APPLICATION NO. 34000 OF 2012

__________________

___________________

_________________

DECISION

_________________

Background

1.This is an application by Mr. Ho Chi Kit and Mr. Cheung Chi Yu (“the Trustees”) pursuant to s.4(9) of the Land (Compulsory Sale for Redevelopment) Ordinance, (Cap. 545) (“the Ordinance”) seeking the following orders / directions from the Tribunal:-

(1)   That the 2nd Respondent (“R2”) do deliver vacant possession of the property known as Flat A, 5^th Floor, No. 24 Wan Shun Street, Hung Hom, Kowloon (“the Flat”) to the Trustees within 28 days from the date hereof;

(2)   Such other / further order that this Tribunal may deem fit; and

(3)   Costs.

2.The Trustees were appointed pursuant to the Tribunal’s order dated 23 April 2013 (“the Order”) to discharge the duties imposed on trustees under the Ordinance in respect of all the undivided shares of the Remaining Portion of Kowloon Marine Lot No. 52 (‘the Lot”). There is also liberty for the Trustees to apply for further directions as may be required under the Ordinance.

3.The background facts leading to the present application are found in the Affirmation of Cheung Chi Yu dated 8 November 2013. They are summarised by the Counsel for the Trustees in the skeleton submission. I set out these facts below.

4.The existing building (“the Building”) on the Lot is a block of 8-storey residential building. There are altogether 24 units (i.e. 8 storeys x 3 units per floor). They have the street address description of No. 23 Wan King Street, No. 24 Wan Shun Street and No. 26 Wan Shun Street.

5.Auction of the Lot took place on 11 June 2013, within 3 months immediately following the date of the Order. The Lot was successfully sold on the day by the Trustees as Vendors to the Applicant (“A”) at the reserve price of HK$44,800,000.00.

6.Completion took place on 16 July 2013. After completion, Messrs. Tony Kan & Co. A’s solicitors (“TK&Co”) wrote to the Trustees on 26 July 2013 and complained that vacant possession of various portions of the Lot (“the Undelivered Portions”) had not been delivered to A. TK&Co demanded vacant possession of the Undelivered Portions to A as soon as possible.

7.Attempts have been made to cause the vacant possession of the Undelivered Portions to be delivered to the Applicant. The Trustees have successfully obtained vacant possession of most of the Undelivered Portions. However, to date, vacant possession of the Flat could not be delivered to A.

8.The Flat was, at all material times prior to completion, registered under the name of the R2. The R2 was absent throughout the compulsory sale application proceedings. By an order of the Tribunal dated 3 October 2012, service on the R2 was dispensed with.

9.By a letter dated 26 August 2013 in Chinese, the Trustees gave notice by post to the R2 to deliver vacant possession of the Flat to the Trustees within 14 days. No reply was received from R2.

10.The Trustees have been provided with a telephone number of a female relative of the R2, and attempt was made to call her on 26 August 2013. The following information were gathered:-

(a) The female relative is called 黃雪英 (English transliteration: Wong Suet Ying)(“Madam Wong”).

(b) Madam Wong said she was the elder half-sister of the R2.

(c) The R2 has no other relative except Madam Wong herself. However they do not live together and in fact, they are not very close.

(d) Madam Wong is herself 69 years old.

(e) The R2 has consulted psychiatrist(s) at Kowloon Hospital before.

(f) The R2 does not have a telephone number.

11.Enquiry was made with Kowloon Hospital to find out whether or not there was any social worker following up with the R2’s case. The Trustees were told that:-

(a) The R2’s case was closed and the social worker would not further follow up.

(b) The R2’s case would only be re-opened after the R2 should consult doctors again at Kowloon Hospital.

(c) The social worker would in any event not disclose the case of the R2 to the Trustees on privacy ground.

12.Pursuant to the A’s request, a sum of HK$711,737.60 being the R2’s share of sale proceeds (before deduction of his share of costs and expenses) is being held by the Trustees pending delivery of vacant possession of the Flat to the A and pending conclusion of the present application.

The Trustees’ Application

13.The Trustees submit that they have already done what is reasonable in the circumstances to obtain vacant possession of the Flat and to locate the R2, but their efforts are in vain. They are hindered from discharging their duties imposed under the Order by completing the sale of the Lot (which duties include the delivery of vacant possession to the purchaser).

14.Whilst there is provision requiring a tenant to deliver vacant possession of the premises (under section 8(1)(b)(ii)), there is no provision under the Ordinance specifically dealing with delivery of vacant possession by the minority owners. However, sections 4(6)(c) and 4(9) of the Ordinance provides that:-

“(6) Where the Tribunal makes an order for sale … it may also give such directions as it thinks fit –

…..

(c) which are not inconsistent with the other provisions of this Ordinance"

“(9) In case of doubt or difficulty or in any matter not provided for under this Ordinance, the trustees under an order for sale … may apply to the Tribunal for directions.” (emphasis added)

15.Besides, it is beyond doubt that the Tribunal has jurisdiction to make an order for vacant possession: see section 8(6) of the Lands Tribunal Ordinance (Cap. 17), which provides that:-

“The Tribunal shall have jurisdiction to make an order for the recovery of possession of any premises or for the ejectment of a tenant from those premises, whether under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise.” (emphasis added)

16.The Trustees submit that the Tribunal has the requisite jurisdiction and is plainly entitled under the wide ambit of sections 4(6)(c) and/or 4(9) of the Ordinance to make an order requiring the R2 to deliver vacant possession of the Flat.

17.Counsel for the Trustees admits that he has no authority to support his submission that “the directions” to be given under the Ordinance include the vacant possession order against the former owner / occupant of the Flat (including the R2) that the Trustees are seeking under the present application.

Discussion

18.I do not agree that “the directions” as stated in sections 4(6)(c) and 4(9) of the Ordinance give the Tribunal’s power to grant the vacant possession order against the R2 as the former owner /occupant of the Flat without going through the formalities of taking out an application for possession under the Lands Tribunal Ordinance.

19.I certainly agree with the Trustees that by virtue of section 8(6) of the Lands Tribunal Ordinance, the Tribunal has jurisdiction to make an order for vacant possession, whether under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise. However, in the absence of the proper procedure initiated by an applicant as the landlord, I fail to see how the Tribunal could grant an order for possession against the R2 in favour of the Trustees, in the present application.

20.I therefore dismiss the present application with no order as to costs.

Mr Desmond LEUNG, instructed by M/S Katherine Y.W. Or & Co., Solicitors, for the Trustees

The 2^nd Respondent, absent