Good Faith Properties Ltd and Others v. Cibean Development Company Ltd

LDCS 42000/2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION

NO. 42000 OF 2011

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Date of Hearing: 29 January 2014

Date of Decision: 29 January 2014

Date of Reasons for Decision: 20 February 2014

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REASONS FOR DECISION

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1.In the course of dealing with the respondent’s application for leave to appeal against a costs order made on 11 November 2013 (“the Costs Order”), Mr. Mok for the applicants raised the issue that the application is out of time.  On 29 January 2014, after hearing submissions, we ruled against Mr. Mok and found that the application for leave to appeal by the respondent is not out of time.  These are the reasons for our decision.

2.Mr. Mok’s contention is that a costs order should be regarded as an interlocutory appeal for the purposes of computation of the time limit to apply for leave to appeal.  The basis of this argument premised on Section 12(3) of the Lands Tribunal Ordinance (“LTO”) and Rule 30B and 30E of the Lands Tribunal Rules (“LTR”).

3.Section 12(1) and (3) of the LTO reads :

“(1) The costs of and incidental to all proceedings in the Tribunal are in the discretion of the Tribunal, and the Tribunal has full power to determine by whom and to what extent the costs are to be paid.

(3) In any proceedings before it, the Tribunal may by order disallow, or order the legal representative concerned to meet, the whole or any part of any wasted costs.”

4.Rule 30B and 30E of the LTR reads :

“30B. Application for leave to appeal

(2) The application to the Tribunal must be made within –

(a) in the case of an appeal against a judgment, order or decision other than an interlocutory judgment, order or decision, 28 days from the date of the judgment, order or decision;

(b) in the case of an appeal against an interlocutory judgment, order or decision, 14 days from the date of the interlocutory judgment, order or decision.

30E. Non-interlocutory judgments and orders

(1) For the purposes of rule 30B(2), the following judgments and orders are not interlocutory -

(a) a judgment or order determining in a summary way the substantive rights of a party to an action;

(b) an order made under section 12(3) of the Ordinance disallowing, or requiring a legal representative to meet, the whole or any part of any wasted costs;

(c) an order prohibiting a debtor from leaving Hong Kong;

(d) an order for imprisonment of a judgment debtor; and

(e) an order of committal for contempt of court.”

5.It is submitted by the applicants that the combined effect of the statutory provisions quoted above is that the Costs Order should be regarded as an interlocutory order.  This is because Section 12 provided for the power of the Tribunal to make order for costs and only wasted costs order against the legal representatives is specifically provided in Rule 30E as not to be an interlocutory order.  This must mean that all other costs orders made under Section 12 are interlocutory orders except for the one made under Section 12(3).  In any event, this application for leave to appeal is only confined to the Costs Order and not the final judgment as well as the costs order.  For an appeal against a costs order only, it must be an interlocutory order.  With the Costs Order being an interlocutory order, any application for leave to appeal should be made within 14 days from 11 November 2013.  But the respondent’s summons for leave to appeal was only filed out of time on 9 December 2013, 14 days after the expiration of the time limit.

6.Mr. Mok’s contention is effectively saying that only those orders named in Rule 30E are final orders.  This cannot be right.  We agree with Mr. Chan for the respondent that the list in Rule 30E are not exhaustive and one cannot say that only those orders and judgments stipulated in Rule 30E are final judgments or orders.  Taking Rule 30E (1)(a) as an example, only summary judgment or order is mentioned and judgment or order determining the substantive rights of a party to an action made after trial is nowhere to be found.  To accept Mr. Mok’s submission, the latter can never be a final order and this is utterly absurd.

7.The Costs Order is one made at the final determination of this case after a full trial.  With the final disposal of the action itself, we failed to see how the Costs Order made at the end of it can remain an interlocutory order.

8.A wasted costs order is one against the legal representative of the parties.  The legal representative is not a party to the proceedings, unlike any person who is not a party to the relevant proceedings must be added as a party in the proceedings before a costs order can be made against him/her under Section 12(2) of the LTO.  This distinguished a wasted costs order from other costs order made by the Tribunal under Section 12 and this explains why a wasted costs order is specifically named in Rule 30E.   Since the legal representative is not a party to the proceedings, the order made must be final without anything to do with the case itself albeit the legal representative remained on the case.

9.We found that the Costs Order is a final order and any application for leave to appeal should be made within 28 days of the order, hence the respondent’s application is not out of time.

Mr Y C Mok, instructed by Mayer Brown JSM, for the applicants

Mr Julian Chan, instructed by Clayton Wong & Co., for the respondent