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PENNY\'S BAY INVESTMENT CO LTD v. DIRECTOR OF LANDS

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PENNY’S BAY INVESTMENT CO LTD v. DIRECTOR OF LANDS

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LDMR23/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS REFERENCE APPLICATION NO 23 OF 1999

_________________

BETWEEN
	Penny’s Bay Investment Company Limited	Applicant
	and
	Director of Lands	Respondent

_________________

LDMR 1/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS REFERENCE APPLICATION NO 1 OF 2005

_________________

BETWEEN
	Penny’s Bay Investment Company Limited	Applicant
	and
	Director of Lands	Respondent

__________________

Before: Deputy Judge KOT, Presiding Officer, Lands Tribunal and Mr K K CHIU, Temporary Member of the Lands Tribunal

Dates of Hearing: 17 March 2016

Date of Decision: 17 March 2016

Date of Reasons for Decision: 18 March 2016

_________________

REASONS FOR DECISION
_________________

Background

1. On 15 October 2014, this Tribunal had handed down our judgment on the determination of the compensation to be paid to the applicant under the Foreshore and Seabed (Reclamations) Ordinance Cap 127 (“the Order”). In our judgment, we have also made an order for all consequential and ancillary matters, including professional fees, interest and costs, be adjourned to a date to be fixed by the listing officer at the request of the parties.

2. Upon the respective application by the parties, leave to appeal against the Order was granted by this Tribunal on 16 January 2015 and also by the Court of Appeal (“CA”) on 15 May 2015. The appeal is set down to be heard on 19 April 2016 with 4 days reserved.

3. On 12 August 2015, parties had approached the Listing Officer of the Lands Tribunal for a date to be fixed for the parties to argue on the question of professional fees, interest and costs. The case is then set down to be heard on 17 March 2016 (“the Hearing”).

4. Parties had filed and exchanged written submissions for the purpose of the Hearing. Mr Barnes QC for the respondent had raised in his submissions that it would be appropriate for the Tribunal to defer any decision on rates of interest and on costs until the decision of the CA has been given on the forthcoming appeals.

5. We invite parties to address us on the issue as to whether we should proceed to hear the argument on the question of interest and costs at the start of the Hearing. Upon hearing from the parties, this Tribunal decided that it would be inappropriate to deal with the question of interest and costs given the impending CA hearing and made an order that the question of interest and costs be adjourned sine die with liberty to restore after the CA’s decision of the appeal is known. We have indicated reasons for our decision will be handed down in due course. This we now do.

Applicant’sContention

6. Mr Chang SC for the applicant submitted that the decision on interest and costs should be one based on the findings made by this Tribunal. One cannot assume that there will not be further appeal after the CA decision and one would wonder till when the question of interest and costs should be dealt with. By not dealing with the argument at this Hearing, it is wrong in principle and in effect, a de facto stay of execution of the order. Furthermore, the CA may touch upon the question of costs in dealing with the appeal and with a decision from this Tribunal on costs, the CA will know what order it can make. If the question of interest and costs are only to be dealt with after any likely appeal to the Court of Final Appeal (“CFA”), there will be another round of appeal on the question of costs and interest. In any event, no authority had been cited by the respondent in support of its contention.

Respondent’sContention

7. Mr Barnes QC submitted that this court has a discretion as to when to hear the question of interest and costs. The appeal before the CA involved 3 main issues, ie whether there should be any compensation, if yes how much should it be and the legal argument on the interpretation of the documents involved in this case. The possible result of the appeal can be the CA is with either party and overturned the Tribunal’s decision or with the Tribunal and uphold the decision. The question of interest and costs is dependent on the result of the appeal in the sense that if the CA found no compensation is payable, no interest is payable and the respondent should have costs of the proceedings and if the amount of compensation is found by the CA to be more than the Order, the rate of interest and costs will be affected. Given the fact that the appeal hearing is just 4 weeks from now, it is inappropriate and not in the interest of the parties or public interest for the question of costs and interest to be dealt with at this Hearing. Another month’s delay of the matter is acceptable and the applicant’s right to interest will not be lessened if the Hearing is adjourned. And it would be a procedural tragedy, if the decision of the Tribunal is overturned on appeal, for the whole matter on question of interest and costs to be dealt with again.

Discussion

8. We agree with the respondent’s submissions.

9. As can be seen from the written submissions filed by the parties for the Hearing, the question on interest and costs did turn on the reasonableness of the parties’ stance taken at trial and the correctness of the Tribunal’s findings on the expert evidence. These are also the subject matter of the appeal hearing. If the question of interest and costs are to be dealt with at the Hearing based on the findings of this Tribunal which turns out to be overturned by the CA on appeal, whatever ruling made at this Hearing will likely be subject to appeal and be overturned as well since the decision is made on a wrong premise. All the time and effort spent on the question of interest and costs at this Hearing will turn out to be a waste.

10. As for the argument of a de facto stay of execution raised by the applicant, we do not accept that by not dealing with the question of interest and costs at this Hearing, the applicant had been deprived of the fruits of his litigation or locking up funds to which prima facie he is entitled since the liability on interest and costs had not been finalised. Given our findings above and the impending hearing of the appeal in 4 weeks’ time, even if it may amount to a de facto stay of further proceedings in respect of interest and costs, this is more than justified. In any event, we cannot see how the applicant will be prejudiced or will suffer any loss if there is such a stay of execution.

11. Mr Chang had also suggested that the CA may deal with the matter of costs as well at the appeal and will know what order it can make if this Tribunal deals with costs at this Hearing. Since the grounds of appeal to be dealt with by the CA did not touch upon the question of costs, we fail to see why the CA will deal with the question of costs of this case whilst the costs of the appeal had nothing to do with the question of costs before us. We found no urgency for this Tribunal to deal with the question of interest or costs before the appeal hearing.

12. As for the concern of having another round of appeal against the question of interest and costs, this is inevitable if the parties so wish. We fail to see how can this be avoided if the question of interest and costs is to be dealt with at this Hearing given the fact that such a question is not within the ambit of the appeal to be heard next month. And as stated above, if the question of interest and costs is to be dealt with at this Hearing but the findings of this Tribunal is overturned on appeal, an appeal against our decision on question of interest and costs is also inevitable.

13. We must emphasise that the decision to adjourn the question of interest and costs till after the CA has delivered its decision on the appeal is based on the special circumstances that the appeal is to be heard in 4 weeks’ time. This does not mean that should there be further appeal after the CA to the CFA, it will necessarily mean that the question of interest and costs must be adjourned till final decision. The situation must be considered again in the context of the progress of the case then.

Deputy Judge KOT	Mr K K CHIU
Presiding Officer	Temporary Member
Lands Tribunal	Lands Tribunal

Mr Denis Chang SC, Mr Johnny Ma and Mr Jeremy Chan, instructed by Wilkinson & Grist, for the applicant

Mr Michael Barnes QC and Mr Valentine Yim, instructed by the Department of Justice, for the respondent

LDMR 23/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS REFERENCE APPLICATION NO. 23 OF 1999

_________________

BETWEEN
	Penny’s Bay Investment Company Limited	Applicant
	and
	Director of Lands	Respondent

_________________

LDMR 1/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS REFERENCE APPLICATION NO. 1 OF 2005

_________________

BETWEEN
	Penny’s Bay Investment Company Limited	Applicant
	and
	Director of Lands	Respondent

__________________

Before:

Deputy Judge KOT, Presiding Officer, Lands Tribunaland Mr K K CHIU, Temporary Member of the Lands Tribunal

Date of Hearing:	19 December 2014
Date of Decision:	16 January 2015

_________________

D E C I S I O N

_________________

Background

1. This is the cross application for leave to appeal by the parties in this case against the judgment handed down by this Tribunal on 15 October 2014 (“Main Judgment”). We shall adopt the same abbreviations used in the Main Judgment.

2. In the Main Judgment, we have found that Lot 22 can be used for shipbuilding and mid-stream operation before the extinguishment of its marine rights (“Before Value”). The Before Value is enhanced by the prospect of the Container Terminal Scheme going ahead. It is also our finding that after the marine rights being extinguished with more certainty that the Container Terminal Scheme would go ahead, Lot 22 can be used for industrial purpose, which is the highest and best use when compared to the mid-stream use (“After Value”).

3. It is our conclusion that since the Before Value is in excess of the After Value, the applicant is entitled to receive compensation for the extinguishment of its marine rights in the sum of $10,952,500.

Leave to Appeal

4. Section 11(2) of the Lands Tribunal Ordinance (“LTO”) provides that :

“Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.”

5. Section 11AA(6) of the LTO provides that :

“(6) Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that –
(a) the appeal has a reasonable prospect of success; or
(b) there is some other reason in the interests of justice why the appeal should be heard.”

6. Reasonable prospect of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 at §17). And if a finding of facts “is perverse or irrational; or there was no evidence to support it, or it was made by reference to irrelevant factors or without regard to relevant factors”, the decision may be quashed (Edwards v Bairstow [1956] AC 14).

7. Bearing in mind these legal principles, we shall deal with each ground of appeal raised by the parties in seriatim.

Applicant’s Application

Ground 1

8. This Tribunal erred in adopting inconsistent approach in reflecting the uncertainty as to whether the Container Terminal Scheme might proceed in the Before and After Value. Whilst the Tribunal accepted that there is a risk factor in the Before Value to reflect the uncertainty inherent in the factual expectation as to whether the Container Terminal Scheme might proceed at all, it had failed to do the same in the After Value when the Tribunal also acknowledged that there was still remained a degree of uncertainty for the scheme not proceeding at all.

9. The Tribunal erred in law in holding that artificial assumption about marine rights had any impact, or even significant impact upon the factual expectation as to whether the Container Terminal Scheme might proceed at all.

10. It is beyond argument that this Tribunal had not applied the same formula to reflect the uncertainty inherent in the factual expectation as to whether the Container Terminal Scheme would proceed in the Before and After Value. This Tribunal has given 50% discount to the hope value in the Before Value to reflect the uncertainty whilst there is none awarded in the After Value. This is because as one can see from Section F.(7) and H.(4) to H.(6) of the Main Judgment, it is the finding of this Tribunal that since the marine access had already extinguished, the only uncertainty in the After Value is the delay involved, hence there is no hope value to be reflected in the After Value and the formula adopted in the Before Value is not applicable.

11. Having said so, we do agree that Ground 1 raised by the applicant did involve a legal issue as to whether the artificial legal assumption about marine rights had any impact upon the factual expectation which cannot be said to be without any reasonable prospect of success. Leave to appeal should be granted under this ground.

Ground 2

12. The Tribunal’s findings that the Container Terminal Scheme and its associated roadworks were expected to proceed is perverse. The Tribunal failed to take into account the industry view back in 1995 which is not in dispute but instead based on the pure speculation that all the factors relied upon by the applicant should have been considered by the Government before the proposal was first published in 1994 and that the Government and the Governor in Council should have already approved in principle to proceed with the Container Terminal Scheme.

13. The industry view had been considered by this Tribunal in §112-118 of the Main Judgment and the findings at §114 are not speculation but are reasonable inferences to be drawn from the fact that the proposal was being published and authorized. We do not agree that such a finding of fact is in any way perverse and amounts to an error in law.

14. We found the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 3 and 4

15. The Tribunal failed to give full and proper recognition to the intent and effect of the Before-assumption about marine rights in the Before Value and adopted the value of Industrial Development which wholly dependent upon the existence of road access, ie a Before Value for the Godown/Industrial Area based on a new use without marine access, contrary to its own findings in §26 of the Main Judgment.

16. The Tribunal has not considered or discussed at all or in any details the applicant’s case on its Scenario 3 which assessed the Godown/Industrial Area with marine access and reflect the enhancement value arising from the anticipated road access brought by the expectation of road access without detracting from the Before-assumption about marine rights.

17. The Tribunal has already considered the new use of Lot 22 with marine access (i.e. mid-stream use value) but the Tribunal has also considered the expectation which the prospective purchaser would have in mind to reflect the enhancement value if the OZP and the Container Terminal Scheme were to proceed.

18. In the formula P=[(H-L)xR]+L adopted at §408 of the Main Judgment, L is the value of the subject property for mid-stream use with marine access whilst the value of the subject property with the expectation of the Container Terminal Scheme going ahead is H. The difference between L and H reflects the enhancement value resulted from the anticipated road access brought by the Container Terminal Scheme.

19. Having said so, we do agree that Ground 3-4 raised by the applicant did involve a legal issue as to the interpretation of the CFA Judgment in assessing the enhancement value which cannot be said to be without any reasonable prospect of success. Leave to appeal should be granted under this ground.

Ground 5

20. The Tribunal erred in its adjustment made to the NKML Comparables in relation to the Lease Term Adjustment by first performing a time adjustment and then applying the 1995 Yield. This has in effect applied statistical data which were indices for capital values to the leases.

21. Yield reflects the investment return in the market. A 1993 Yield does not reflect the situation in 1995 so a time adjustment must be performed before applying the 1995 Yield. We found the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 6

22. The Tribunal failed to consider the rental value suggested by the applicant’s industry expert Kong.

23. It is not a must that this Tribunal has to accept the rental value suggested by Kong when such evidence is not being challenged by the respondent. This Tribunal has adopted the unit rate derived from the STT Comparables which are transaction prices that the Tribunal found to be more reliable.

24. We found the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 7

25. The Tribunal erred in making a -35% adjustment on account of Height Restriction when the evidence showed that the operation contemplated on Lot 22 would be on the basis of ‘3 tiers’ and the Tribunal wrongly assumed or speculated that having a higher height restriction would be of substantial benefit.

26. This attacks our findings at §243-245 of the Main Judgment. As found at §244, AW also admitted that 8 layers of containers are possible for the storage of empty containers. With the height restriction, Lot 22 must be disadvantaged in the storage of, at least, empty containers. With a higher height restrictions allowed, it allows more flexibility for the operators and can be considered a benefit.

27. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 8

28. The Tribunal erred in making a -20% adjustment on account of Quay Length based on the wrong assumption or speculation that having a more than optimal quay length would be of substantial benefit. The fact that the quay length can be split into 3 should not be a disadvantage which warranted a downward adjustment.

29. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 9

30. The Tribunal erred in making a -41% adjustment on account of Location and an additional -15% adjustment on account of Remoteness which is wrong in principle and against the evidence.

31. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 10 and 11

32. The Tribunal erred in finding that the KCTL Comparables are appropriate comparables ignoring all matters and contentions raised by the applicant. And the Tribunal proceeded on the erroneous basis that the only difference between Lot 22 and the KCTL Comparables was location, lack of road access and time. The Tribunal also speculated that the KCTL Comparables were conducted on the basis that the bidder would consider that marine rights would continue undisturbed for the entire 50 year lease.

33. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 12

34. The Tribunal erred in rejecting the evidence of Kong on a false premise and speculated there were hidden reasons rendering Lot 22 unattractive and wrongly assumed that the owners of Lot 22 were keen to lease out the lot.

35. As stated in §331 of the Main Judgment, this Tribunal came to the conclusion that there were hidden reason because “the owner was willing to accept a rental substantially below the rental of $8/sq ft which Kong believed to be the market rental”. This is a reasonable inference to be drawn from the evidence. And the fact that there were the China Merchants’ offer to lease the Lot and upon the falling through of it, another tenancy agreement with the CLP, this Tribunal is entitled to come to the conclusion that the owners were keen to lease out the Lot.

36. We found the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 13

37. The Tribunal erred in not valuing the Non-Shipbuilding Area at a rate at least no less than the properly adjusted rate for the Shipbuilding Area since the Non-Shipbuilding Area is found to be capable for use for ship repairing purpose.

38. By the Non-Shipbuilding Area, this is termed as the Industrial/Godown Area of Lot 22 in the Main Judgment. It is never the parties’ case that the Industrial/Godown Area can be used for ship-repairing purpose and should be valued as such. The applicant and the respondent have contended that the optimum use of the Industrial/Godown Area should be for mid-stream and industrial developments respectively. In any event, it is the finding of this Tribunal that the optimal use of the Industrial/Godown Area is mid-stream use.

39. Furthermore, it is our findings at §176 of the Main Judgment that most of the comparables were less than 64,583.4 sq ft and it is unlikely and unreasonable that the entire remaining lot of over 1,725,000 sq ft at Lot 22 will be used for ship repairing purpose. Taking into account the marketability and the unreasonably large in area for ship repairing use, it is not reasonable to apply the rate for the Shipbuilding Area on the remaining portion of Lot 22.

40. We found the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 14

41. The Tribunal erred in failing to take into account the set up costs for covered or warehoused storage based on the wrong assumption that there was no evidence adduced.

42. It is not the finding of this Tribunal that the set up costs need not be taken into account because there was no evidence in this regard. Instead it is the finding of this Tribunal at §228 of the Main Judgment that the mid-stream use is for open storage so no covered or warehouse storage is involved, hence no set up costs is required to be considered.

43. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Respondent’s Application

Ground 1

44. This Tribunal erred in failing to make allowance for a period of demolition of unauthorized structures on Lot 22 based on the finding that such demolition could take place whilst construction work commenced on the unbuilt areas of Lot 22. However, this is inconsistent with the findings of the Tribunal that the construction of industrial structure on the unbuilt area was not expected to commence for some years after the valuation date. Under such circumstances, it does not make sense to say that there should be no period allowed for the demolition.

45. Since it is the finding by this Tribunal that there should be a deferment of 6 years in the construction work to commence, no additional period of demolition is required.

46. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 2

47. The Tribunal erred in adopting a wrong figure in the assessment of demolition costs. Whilst the Tribunal accepted the estimate of demolition costs of $11,091,798 suggested by Mok (the respondent’s expert), the Tribunal had adopted a figure of $8,049,200 without any apparent addition for professional fees or development profit.

48. The Tribunal admitted that we made a mistake for not accounting for professional fees of 6% and development profit of 30% in §345 and leave to appeal should be granted.

49. If professional fee and development profit is taken into account, the value of Lot 22 for mid-stream use will be as follow:

(a) Shipyard Value
285,000 sq ft @751.6/sq ft $214,206,000
(b) Mid-stream Use
1,725,000 sq ft @200/sq ft $345,000,000
$559,206,000
Less Demolition Costs (excluding canteen as only illegal structures would be demolished) $11,091,798

$8,049,200

Fee @6% x1.06
Development Profit @30% x1.3
$548,114,202
Say $548,114,000

50. For the benefit of the appeal hearing, the following figures in the respective paragraphs of the Main Judgment stated below would also be affected:

§408 So, applying the assessed figures to the formula:
P = [(H-L) x R] + L
P = [($841,828,000 - $548,114,000) x 0.5] + $548,114,000
P = $293,714,000 x 0.5 + $548,114,000
P = $694,971,000
The Before Value of Lot 22 is $694,971,000.
§480 The amount of compensation is the amount of Before Valuation in excess of After Valuation.
Before Valuation $694,971,000
After Valuation $685,540,000
Amount of Compensation $9,431,000

Ground 3

51. The Tribunal erred in making no downward adjustment for the limited use within the shipyard area based on the incorrect factual premise that ship repairing use as well as godown use can occur at the same time at the remaining portion of Lot 22.

52. Ship repairing and godown uses are permitted uses under the lease condition. Taking into account the huge size of the remaining portion of Lot 22, the Tribunal cannot exclude the possibility that both uses can practically occur at the same time. As the optimum use of the site was found to be mid-stream uses for open storage , it is possible that the occupier can use part of the remaining portion which is adjacent to shipbuilding area with marine frontage for ship repairing, if necessary. With this flexibility for using portion of the remaining lot for ship repairing use, whenever necessary, we do not think there is a need to make any adjustment for the limited use within the Shipyard Area.

53. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 4

54. The Tribunal erred in finding that the stacking of containers in the open air as part of their transit was a godown use in line with Special Condition 3(a).

55. We accept this ground involved the interpretation of the terms of the Special Condition which is a point of law and leave to appeal should be given for the same to be considered by the Court of Appeal.

Ground 5

56. The Tribunal erred in adopting a unit rate of $1,200/sq ft for open storage use whilst it is found by AW (applicant’s expert) and accepted by the Tribunal that the godown use is for open storage use and the unit rate for such use should be $1,000 only.

57. As we have found in §227-229 of the Main Judgment, we should consider the optimum use and this explains why we pick the higher figure of $1,200/sq ft in the assessment.

58. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 6

59. The Tribunal erred in failing to make a downward adjustment of 20% on the length of quay for the KCTL Comparables which, like Lot 22, had quay lengths which were satisfactory by reference to the optimum standard.

60. The Tribunal agreed that adjustment should be made on the length of quay for the KCTL comparables to reflect the optimum standard. As the valuers of both parties have not touched on the quay length of KCTL comparables, the Tribunal has not clearly stated in the judgment that a downward adjustment should be made on KCTL479 and an upward adjustment should be made on KCTL481 to reflect the optimum standard of quay length. Actually, on the Layout Plan (page 2145-2147 of Bundle E1), the quay length of KCTL479 is better than that of Lot 22, so a downward adjustment is needed. However, the shape and quay length of KCTL481 is poorer than that of Lot 22, an upward adjustment is needed.

61. To be clear, the adjustment table on §305 of the MainJudgment should be as follows:

Lot No Adjusted Unit Rate Adjustment Revised unit rate
KCTL481 159 +30% 207
KCTL479 240 -20% 192

62. The average unit rate was about $199.5/sq ft.

63. The Tribunal agreed that the judgment on this section is unclear, however this does not affect the resultant figure of unit rate adopted for assessment of the KCTL Comparables.

64. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 7

65. The Tribunal erred in failing to make equivalent deferment of 2 years to the KCTL Comparables for the time needed to prepare the ground at Lot 22 for godown use as it had done for the STT Comparables.

66. This Tribunal agreed that there should be no deferment for the STT Comparables as well as for the KCTL Comparables. The Tribunal has clearly stated in §229 of the Main Judgment that the STT comparables are for open storage purpose and AW has also not reflected any superstructure to be erected. As no superstructure is erected and no deferment is necessary for STTs, the Tribunal, as stated in §229, took the highest value as the optimum development (i.e. $1,200/sq ft).

67. Since the KCTL Comparables are being found to be the appropriate comparables, the fact that no deferment made cannot be considered an error and would not affect the end figure found by this Tribunal.

68. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 8

69. The Tribunal erred in finding that there will be a compensation for the resumption of land for the construction of a road to link Penny’s Bay area and the proposed North Lantau highway. Such a finding is inconsistent with the declaration made by the CFA that in the Before Value, it is based on the assumption that Lot 22 enjoyed access to the sea as it had done up to the valuation date. With the marine rights remained, no container port would or could have been built and no road would have been constructed.

70. We agree that this is plainly a point of law depending on the construction and application of the CFA Judgment and we cannot say that there is no reasonable prospect of success in the appeal. So leave should be granted in this regard.

Ground 9

71. The Tribunal erred in adopting the higher value between a combined shipyard and godown value on the assumption that the Container Terminal Scheme did go ahead and on the assumption that it did not go ahead. Given the uncertainty between the 2 different scenarios, the finding that the purchaser would pitch his bid on the higher value is erroneous without basis.

72. The term, Market Value, as defined by the International Valuation Standard and followed by the Hong Kong Institute of Surveyors is “the estimated amount for which an asset or liability should exchange on the valuation date between a willing buyer and a willing seller in an arm’s-length transaction after proper marketing where the parties had each acted knowledgeably, prudently and without compulsion.” Whether the prospective purchaser would pitch his bid on the higher value or on the lower value depends on whether it is a buyer market or a seller market. As at 1995, the market was going up and the vendor had a larger bargaining power and it is unlikely that the owner would accept a lower value between 2 different scenarios. That is why the Tribunal has decided to take the higher value between a combined shipyard and godown value.

73. We found this is just a matter of opinion and the applicant had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is therefore refused.

Ground 10

74. The Tribunal erred in failing to reflect the existence of the sub-tenancy of Cheoy Lee Shipyards Limited in the valuation of the mid-stream use on the assumption that the Container Terminal Scheme would go ahead whilst such factor had been taken into account in the assessment of the mid-stream use value on the assumption that the Container Terminal Scheme would not go ahead.

75. The Tribunal stated clearly at §343 of the Main Judgment that assuming the Container Terminal Scheme goes ahead, the area would be developed in accordance with the OZP. Therefore, in our assessment, we have taken account of the area to be resumed for road purpose, the area zoned for GI/C etc. The most important thing is the marine frontage should be resumed for Container Terminal Scheme and the sub-tenancy should be terminated and a 3-month notice is required.

76. However, if the Container Terminal Scheme does not go ahead as stated in §345 of the Main Judgment, the sub-tenant can continue to operate its shipbuilding use on the shipyard area and the remaining portion will be used for mid-stream purpose. Therefore, no deferment is required. This explains why there had been a different treatment as suggested by the respondent.

77. We found the respondent had failed to establish any reasonable prospect of success or there is any reason in the interests of justice that this ground should be heard. Leave to appeal under this ground is refused.

Ground 11

78. The Respondent contended that for the reasons submitted above, the value of Lot 22 for mid-stream use found at §345 of the Main Judgment is faulted.

79. This is just a catch all ground and the reasons behind this had already been dealt with above under respective grounds.

Ground 12

80. The Tribunal erred in its finding of the ultimate Before Value based on a radical misconception of law and was fundamentally contrary to the declaration stated by the CFA, namely the Before Value found is based primarily on the prospect of an industrial development of the non-shipyard area of Lot 22 with a 50% discount for the uncertainty.

81. The reason for our findings is based on the requirement stated in the CFA Judgment that prospect of new uses of the land would have entered into the valuation both with and without access to the sea.

82. Having said so, we agree that this point involved a point of law which cannot be said that there is no reasonable prospect of success on appeal, so leave should be granted.

Ground 13

83. The Tribunal erred in finding that in the After Value, the reclamation work and the Container Terminal Scheme or the construction of the linked road had not even commenced. This is inconsistent with the CFA Judgment which declared that the reclamation must be taken to have been completed by the valuation date. The Tribunal also erred in speculating as to the timing and the uncertainty of the Container Terminal Scheme which is specifically disallowed in the CFA Judgment (at §41).

84. We agree that this involved a point of law concerning the interpretation of the CFA Judgment and one which may arguably have a reasonable prospect of success, hence leave should be granted.

Conclusion

85. According to Section 11AA(5) of the LTO, “leave to appeal may be granted in respect of a particular issue arising out of the judgment, order or decision”. Hence, we made the following orders :

(a) Leave to appeal is granted to the applicant on Ground 1, 3 and 4 stated in the Grounds of Appeal whilst leave to appeal on all other grounds are dismissed.
(b) Leave to appeal is granted to the respondent on Ground 2, 4, 8, 12 and 13 stated in the Grounds of Appeal whilst leave to appeal on all other grounds are dismissed.
(c) Costs of this application for leave to appeal be costs in the cause of the appeal.

Deputy Judge KOT	Mr K K CHIU
Presiding Officer	Temporary Member
Lands Tribunal	Lands Tribunal

Mr Denis Chang SC, Mr Johnny Ma and Mr Jeremy Chan, instructed by Wilkinson & Grist, for the applicant

Mr Valentine Yim, instructed by the Department of Justice, for the respondent

LDMR 23/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION UNDER FORESHORE

AND SEA-BED (RECLAMATIONS) ORDINANCE

APPLICATION NO. LDMR 23 OF 1999

______________________

BETWEEN

	PENNY’S BAY INVESTMENT COMPANY LIMITED	Applicant
	and
	DIRECTOR OF LANDS	Respondent

______________________

AND

LDMR 1/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION UNDER FORESHORE

AND SEA-BED (RECLAMATIONS) ORDINANCE

APPLICATION NO. LDMR 1 OF 2005

______________________

BETWEEN

	PENNY’S BAY INVESTMENT COMPANY LIMITED	Applicant
	and
	DIRECTOR OF LANDS	Respondent

______________________

(Heard together)

Before : Hon Lam J, the President of the Lands Tribunal in Chambers

Date of Hearing : 22 October 2007

Date of Decision on Costs : 7 November 2007

__________________________

DECISION ON COSTS

__________________________

1. On 25 May 2007, I handed down my determination on preliminary issues. Since then, parties made submissions on future conduct of the proceedings and the question of costs at the hearings on 2 August and 22 October 2007. Directions were given for the filing of amended pleadings. The outstanding question is costs.

2. There are three sets of costs:

(a) Costs of the hearings on the preliminary issues, including the application for such issues to be determined as preliminary issues;
(b) Costs of the amended pleadings and other directions for the future conduct of the proceedings;
(c) Costs of the arguments on the question of costs.

Section 12(3) of the Foreshores and Sea-bed (Reclamations) Ordinance

3. The arguments on costs brought up an important point on principle in respect of costs in compensation cases. The issue is whether costs of the proceedings in the Tribunal fall within the scope of Section 12(3) of the Foreshores and Sea-bed (Reclamations) Ordinance. That section provides:

“ Where any costs or remuneration are reasonably incurred or paid by a claimant in employing persons to act in a professional capacity in connection with the claim under subsection (1), such claim may include a claim for such costs or remuneration.”

4. Similar provision can be found in Section 8(4) of the Lands Resumption Ordinance. However, Section 10(2)(e)(ii) of the Lands Resumption Ordinance expressly provides that the Tribunal shall determine the compensation on the basis of, inter alias, the amount of any costs or remuneration referred to in those above-mentioned section. This has led the Tribunal in some previous cases to the conclusion that compensation includes such costs as a matter of law and the Tribunal proceeded to assess the costs and remuneration by reference to the test of reasonableness, see Li Po Chun Estates Ltd v Director of Lands CLR No.5 of 1996, 28 August 1997; Chan Kwong Man v The Secretary for Transport LDMR 36 of 2000, 15 August 2003; Chan Lok Tsun Tso v The Secretary for the Environment, Transport and Works LDMR 2 of 2004, 27 August 2004.

5. The approach for assessing compensation under the Lands Resumption Ordinance is applicable to compensation cases in other context: see Section 27 and Item 1 of Part II of the schedule to the Roads (Works, Use and Compensation) Ordinance, Section 32 and Item 1 of Part II of the schedule to the Railways Ordinance and Section 18 and Item 1 of Part I of the First Schedule to the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance. However, in those statutes, there are express provisions suggesting that the costs of the proceedings in the Tribunal are to be dealt with by the way of an order on costs rather than an item for compensation. Thus, Section 30(3) of the Roads (Works, Use and Compensation) Ordinance provides that unless there is special reason making it proper not to do so, the Tribunal shall order the claimant to bear his own costs and to pay the costs of the Secretary in so far as the costs are incurred after the making of an offer by the Secretary if the offer was not accepted and exceeds the amount of compensation later assessed by the Tribunal. It follows that a claimant cannot assert that he is immune from costs liability because the combined effect of Sections 8(4) and 10(2)(e)(ii) of the Lands Resumption Ordinance is to give him costs of the proceedings as an item of compensation. Similar provisions can be found at Section 35(3) of the Railways Ordinance and Section 23(3) of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance.

6. Further, in Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111, though there was no reference to Sections 8(4) and 10(2)(e)(ii), the Privy Council plainly proceeded on the basis that costs of the proceedings in the Tribunal is subject to the general discretion of the Tribunal. The claimant in that case was ordered to pay the costs of the government incurred after a Calderbank offer on common fund basis.

7. There is no provision similar to Section 10(2)(e)(ii) under the Foreshores and Sea-bed (Reclamations) Ordinance. Thus, a decision on this issue may or may not have impact in other cases as well. The Claimant contends that legal costs of the proceedings in the Tribunal in compensation cases are covered by Section 12(3). The Respondent submits otherwise.

8. Though the phrase “costs or remuneration … incurred or paid by a claimant in employing persons to act in a professional capacity in connection with the claim” is wide enough to encompass legal costs incurred in pursuit of proceedings in the Tribunal, I am of the view that the legislature did not intend to curtail the general discretion of the Tribunal over costs for proceedings under the Foreshores and Sea-bed (Reclamations) Ordinance by virtue of Section 12(3).

9. Section 12(3) should not be construed on its own. It refers to the costs and remuneration in connection with a claim under Section 12(1). That is a claim to be delivered to the Director of Lands. It provides that the claim may include such costs and remuneration.

10. The claim will then be considered by the Director who can admit or reject the whole claim or admit a specified part and reject the remainder, see Section 13(1). If the claim delivered to the Director includes a claim for reasonable costs and remuneration in connection with the claim, the Director can consider and admit that part of the claim as well. However, a claimant must comply with Section 12(1) before he can expect the Director to give proper consideration to this part of his claim. Hence, a claimant must state the sum of money which he is willing to accept and give such particulars to substantiate the claim for costs and remuneration instead of a general unspecified claim for costs and remuneration.

11. It follows that the cost and remuneration that could be included in the claim must be the cost and remuneration incurred prior to the consideration of the claim to the Director, not the costs incurred thereafter.

12. It is only when the Director rejects the claim in whole or in part or when the parties do not agree as to the amount of compensation, the matter can be referred to the Lands Tribunal for determination. Section 13(4)(b) provides that the Lands Tribunal shall determine “the amount of compensation payable by the Government to the claimant in respect of any interest, right or easement of the claimant in or over any foreshore or sea-bed injuriously affected by the reclamation in full and final settlement of claim”. That sub-section does not provide for the costs of the proceedings in the Tribunal.

13. Instead, costs of the proceedings in the Tribunal are governed by Section 12 of the Lands Tribunal Ordinance. That section empowers the Tribunal to award costs to and against any party to any proceedings. Further, Section 12(2) provides that Order 62 of the Rules of the High Court shall apply to the award, taxation and recovery of costs in the Tribunal. The procedure for taxation of costs under Order 62 is quite different from the procedure for assessment of compensation by the Tribunal. Costs is taxed by the Registrar whilst compensation is assessed by a presiding officer with a member. The procedural steps that have to be taken prior to the hearing are also different.

14. Section 13 of the Lands Tribunal Ordinance is also relevant. It is quite plain from this section that costs of the proceedings (dealt with under sub-section (d) of the section) are treated separately from the compensation determined by the Tribunal (under sub-section (a) of that section).

15. Though Section 12(1) of the Lands Tribunal Ordinance explicitly provides that it is subject to the provisions of the ordinance giving the Tribunal jurisdiction in any matter, I do not read Section 12(3) of the Foreshores and Sea-bed (Reclamations) Ordinance as dictating how the Tribunal should exercise its general discretion as to costs of the proceedings. As analysed above, that section only gives the power to the Director to award reasonable costs and remuneration when a claim is delivered to him for his consideration.

16. In my view, on proper construction of Section 12(3), the costs and remuneration referred therein should be confined to cost and remuneration incurred prior to the delivery of a claim to the Direction and should not be extended to costs incurred in the proceedings before the Tribunal.

17. In any event, as discussed below, Section 12(3) is broadly in line with the general approach of the Tribunal as to costs in compensation cases.

The approach of the Tribunal on costs in compensation cases

18. There is not much disagreement between the parties as regards the approach under the common law. Mr Yim fairly accepted that costs in respect of compensation cases should not be dealt with in the same manner as ordinary hostile litigation. The special context in which such claim arises has to be borne in mind.

19. In Emslie & Simpson Ltd v Aberdeen District Council (No. 2) [1995] RVR 159, Lord Hope made the following observations regarding costs in compulsory acquisition cases:

“ It seems to me that the underlying principle in these cases is that the acquiring authority is liable to pay compensation to the owner or occupier of the lands taken. The expenses of determining the amount of disputed compensation may be seen to be part of the reasonably and necessary expense which is attributable to the taking of the lands compulsorily by the acquiring authority. The principle which applied to litigation … is that the costs of litigation should fall on him who caused it. The cost of determining the amount of the disputed compensation would seem, according to this principle, to fall on the acquiring authority without those resort to the use of compulsory powers there would have been no need for the owner or occupier to be compensated. That seems to me to be the proper starting point for an examination of the question of expenses in these cases.”

20. In the same case, Lord Morison said at para. 25:

“ In most cases … it is perfectly reasonable that … a claimant should put forward his claim on the maximum basis which he can reasonably support and should be entitled to the expenses of doing so if he is successful in the general assertion of his right.”

21. Along the same line, Potter LJ said the following in Purfleet Farms Ltd v Secretary of State for Transport [2003] 1 P& CR 20 at para. 29:

“ …the proper approach of the Tribunal for the costs of a successful claimant (i.e. a claimant who is awarded more than the amount of an unconditional offer by the respondent) should be that he is entitled to his costs incurred in the proceedings in the absence of some ‘special reason’ to the contrary. Whether such special reason exists in any given case is a matter for the judgment of the Lands Tribunal. Plainly it may exist where wasted or unnecessary costs have been incurred for procedural reasons as a result of the conduct of the claimant (e.g. abandoned issues, unnecessary adjournments, or failure to comply with directions of the Tribunal). However, so far as the nature and substance of the case advanced by the claimant is concerned, special reasons should only be regarded as established where the Tribunal considers that an item of costs incurred or an issue raised was such that it could not on any sensible basis be regarded as part of the reasonable and necessary expenses of determining the amount of the disputed compensation. This would apply not only to a claim advanced without any statutory basis but to other examples of manifestly unreasonable conduct which may give rise to unnecessary expense in the course of the proceedings. It means, in my view, that, following the hearing of a compensation reference in the Lands Tribunal in which the claimant has been successful, a special reason for departing from the usual order for costs should only be found to exist in circumstances where the Tribunal can readily identify a situation in which the claimant’s conduct of, or in relation to, the proceedings has led to an obvious and substantial escalation in the costs over and above those costs which it was reasonable for the claimant to incur in vindication of his right to compensation.”

22. It is also of interest to note how Potter LJ dealt with exaggeration of claim in the overall costs position at Para. 36:

“ …in considering the question of whether or not special reason exists to depart from the usual order, it may usefully “have regard” to … whether or not the claimant has exaggerated his claim. In considering that last question, however, exaggeration alone is not enough in the event of a large disparity between the sum claimed and the sum awarded. The matters to which the Tribunal should have regard are (a) the reasons for that disparity, and (b) their effect upon the conduct of the claim. As to (a), if the reasons are defensible, in the sense that there was a legitimate, albeit unsuccessful, argument put forward in support of the figure concerned, there can be no good reason to regard the claim as exaggerated in the pejorative sense necessary to justify a sanction in costs. As to (b), if, in any event, the effect on the proceedings in terms of the time spent and the costs incurred in disposing of the issue or argument concerned is relatively insignificant, then again an adverse order is unlikely to be appropriate.”

23. His Lordship’s comments at paras. 38 and 37 on adverse costs order when an exaggerated claim is based on expert evidence are also pertinent. At para. 37, the general rule was explained: because valuation is an inexact science and where there is legitimate room for argument and difference of opinion, even if the Tribunal concluded that the comparable relied on is inapt, that should not ordinarily invite a penalty in costs. The exception was then set out at para. 38:

“ …disallowance of a proportion of the claimant’s costs will usually only be justified where the Tribunal is satisfied that (a) no competent valuer could reasonably have regarded the comparable as of real relevance or assistance in the valuation exercise; (b) as a result of its introduction and discussion, a significant amount of the Tribunal’s time has been wasted and the proceedings unduly prolonged; (c) no equivalent or near equivalent proportion of the proceedings has been spent dealing with issues unreasonably and unsuccessfully raised by the respondent; (d) the amount or proportion of the costs disallowed is proportionate to the time wasted.”

24. The principle of equivalence was identified as the underlying rationale of this approach, see Purfleet Farms paras. 22 and 42. Chadwick LJ put it concisely at para. 42:

“ …where there has been no offer or where the amount of the award exceeds the amount of the offer, then (again, prima facie) “the expenses of determining the amount of disputed compensation may be seen to be part of the reasonable and necessary expense which is attributable to the taking of the lands compulsorily by the acquiring authority” In such a case the refusal to allow the claimant some part of his costs of the reference must be justified by a finding that the costs to be disallowed have not been incurred as part of the reasonable and necessary expense of pursuing the reference. As Potter LJ has put it, the Tribunal must be able to identify circumstances ‘in which the claimant’s conduct of, or in relation to, the proceedings has led to an obvious and substantial escalation in the costs over and above those costs which it was reasonable for the claimant to incur in vindication of his right to compensation’. Costs attributable to conduct that nature can form no part of “the losses fairly attributed to the taking of his land’ in respect of which the claimant is entitled to compensation.”

25. With respect, bearing in mind the applicability of the principle of equivalence in Hong Kong, I am of the view that the English approach on costs in compulsory acquisition cases is equally applicable in the present context.

Should there be an adverse costs order against Applicant for the determination of the preliminary issues?

26. Whilst I have determined the preliminary issues in favour of the Respondent and rejected the Applicant’s submissions on those issues, it does not follow automatically that the Applicant should be ordered to pay the costs of the hearings on the preliminary issues. In accordance with the approach set out above, it is necessary to consider whether the costs pertaining to the determination of the preliminary issues can be regarded as outside the scope of the reasonable and necessary expense of pursuing the compensation claim arising from the reclamation scheme.

27. At this stage, it is not known whether the Tribunal would award compensation to the Applicant. The Respondent’s primary position is that there should not be any further compensation. The Applicant disagreed.

28. The Applicant no doubt acted on the advice of its legal advisers in arguing for the notional contract approach and infringement of Article 105. Experienced leading counsel argued the case for the Applicant had advanced respectable arguments to support his contention. Though I come to different conclusions in my judgment, I do not regard the running of those arguments as unreasonable.

29. An analogy can be adopted with Potter LJ’s observations regarding expert evidence. Like valuation, the law is not an exact science and there is scope for reasonable disagreement. Given my view on the reasonableness of the arguments advanced on behalf of the Applicant on the preliminary issues, I do not think it is appropriate to penalize the Applicant on costs solely on account of my rejection of such arguments.

30. Mr Yim relied on the fact that the Respondent repeatedly explained to the Applicant as regards the correct approach for assessment of compensation for injurious affection. I do not think that renders the Applicant’s stance on the preliminary issues unreasonable. The legal arguments are complex and as I said, there was reasonable scope for disagreement. This is not a case where the Applicant’s contentions are plainly unmeritorious.

31. Counsel’s reliance on Roadchef Motorways Ltd v Secretary of State [2006] EW Lands ACQ/45/2005, 13 July 2006 is completely misplaced. The English Lands Tribunal decided in that case that the proper order for costs on preliminary issues in the special circumstances of that case should be no order as to costs. I do not need to go into the details of the special circumstances that were alluded to in paragraphs 18 to 19 of that judgment. Apparently there were changes of position on the part of the claimant in that case. The President found that in the light of the way in which the claim had been advanced and the disagreements between the parties have arisen, it was impossible to say that the Secretary of State was the cause of the costs of the preliminary issues being incurred. Suffice to say I am dealing with a completely different scenario and at this stage, I cannot say that the costs of the preliminary issues had been unreasonably incurred.

32. Thus, I am not prepared to make an adverse costs order regarding the costs of the preliminary issues against the Applicant at this stage.

Costs in the cause or costs reserved?

33. Parties have put forward two different proposed orders as to costs in the event I decline to make any adverse costs order against the Applicant. Mr Yim urged this Tribunal to order costs reserved. Counsel is concerned that an order of costs in the cause would somehow pre-empt the Tribunal from revisiting the costs of the preliminary issues separately from the costs of the proceedings as a whole.

34. Though Mr Chang had suggested costs in the cause, I understand that he was not seriously contesting that costs of the preliminary issued be reserved.

35. At this stage, I think it would be better to keep all options open and the Tribunal may, after all the dusts have been settled, wish to consider making a special order on the costs of the preliminary issues in the light of developments between now and the final disposal of the matter.

36. I will therefore order costs of the preliminary issues be reserved.

Costs of the amended pleadings and direction hearing

37. I think the usual rule as regards amendment of pleadings should apply and the Applicant should bear the costs of the amendment of the pleadings.

38. As regards the costs pertaining to directions on future conduct, I again see no reason to depart from the usual practice that the costs should be costs in the cause.

Costs on argument as to costs

39. The Respondent is unsuccessful in the application for an adverse costs order against the Applicant for the costs on preliminary issues. But I have reserved costs rather than ordering costs in the cause as advocated by Mr Chang.

40. Regarding the argument on costs, I will order the costs thereof be Applicant’s costs in the cause.

(M H Lam)
Judge of the Court of First Instance
High Court
the President of the Lands Tribunal

Mr Denis Chang, SC and Mr Johannes Chan, SC, instructed by Messrs Wilkinson & Grist, for the Applicant

Mr Valentine Yim, instructed by Department of Justice, for the Respondent

(a)	Shipyard Value 285,000 sq ft @751.6/sq ft	$214,206,000
(b)	Mid-stream Use 1,725,000 sq ft @200/sq ft	$345,000,000
		$559,206,000
Less	Demolition Costs (excluding canteen as only illegal structures would be demolished)	$11,091,798
	$8,049,200
	Fee @6% x1.06
	Development Profit @30% x1.3
		$548,114,202
		Say $548,114,000

Before Valuation	$694,971,000
After Valuation	$685,540,000
Amount of Compensation	$9,431,000

Lot No	Adjusted Unit Rate	Adjustment	Revised unit rate
KCTL481	159	+30%	207
KCTL479	240	-20%	192

(a)	Costs of the hearings on the preliminary issues, including the application for such issues to be determined as preliminary issues;
(b)	Costs of the amended pleadings and other directions for the future conduct of the proceedings;
(c)	Costs of the arguments on the question of costs.

	PENNY'S BAY INVESTMENT COMPANY LIMITED	Applicant
	and
	DIRECTOR OF LANDS	Respondent