Case Detail

LDCS 11014 /2006

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE>APPLICATION NO.11014 OF 2006

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BETWEEN
	Lai Wai Man	Applicant
	And
	Intelligent House Limited	Respondent
	Buena Elvira Gamos	Intended Applicant

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Coram: H.H. Judge Thomas Au, Presiding Officer, Lands Tribunal, in chambers (open to public), sitting at District Court

Date of Hearing: 28 February, 2008

Date of Handing Down of Decision: 4 March, 2008

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REASONS FOR DECISION

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Introduction

1. On 23 January 2008, I handed down decision to refuse Ms Buena’s application to be joined in this connected application (LDCS 11014/2006), originally issued by Mr Lai Wai Man. I also ordered costs against Ms Buena and granted leave to Mr Lai to withdraw this connected application.

2. On 5 February 2008, Ms Buena applies for a review of my previous decision, including the decision on costs. She also at the same times asks to substitute Mr Lai as the Applicant in this connected application. At the time of her present application, the order for withdrawal of the connected application had not been drawn up or perfected.

3. Although strictly speaking the application to substitute Mr Lai as the Applicant cannot be regarded as part of the review application, Mr Shum for Intelligent House has not objected to this also being heard at the same time. In order to save time and costs, I find it appropriate to hear the substitution application together with the review application.

4. The background and reasons for my previous decision have been set out in the reasons for decision dated 23 January 2008, and I do not propose to repeat them here. Suffice for me to summarize my previous reasons below for the convenience of this decision:

	(1)	Ms Buena says she is a subtenant of Room 01, Unit 11, 4^th Floor of Kam Kwok Building. Mr Lai has been her head tenant.
	(2)	In light of Intelligent House’s application for a compulsory order for sale under Cap 545, she wants to join in Mr Lai’s connected application to claim compensation from Intelligent House in case of an order for sale being made.
	(3)	I refused her application for joiner as I was satisfied that Intelligent House properly terminated the principal tenancy of Unit 11 by 31 October 2007, by way of a valid and properly served Transition Termination Notice (“TTN”) as required under section 5(2) of the Landlord and Tenant (Consolidation)(Amendment) Ordinance 2004 (“LTAO”).
	(4)	As such, all sub-tenancies (including Ms Buena’s sub-tenancy) created under the principal tenancy have also been validly terminated as a matter of law under s 6(5) of LATO.
	(5)	In the premises, Ms Buena has no locus or interest to bring any claim against Intelligent House under ss 4(6) and 8(1)(b) of Cap 545, even if an order for sale is made eventually. She therefore has failed to show any locus, interest or title to be joined in Mr Lai’s connected application.

The review application

5. Ms Buena’s grounds of review are in gist as follows:

	(1)	In her affirmation dated 5 February 2008, Ms Buena points out that according to the List of Tenants filed by Intelligent House in the main application, the principal tenant of Unit 11 was one Mr Lee Hak Yeung, but not Mr Lai.
	(2)	Under such circumstances, the TTN served by Intelligent House may not be valid. This is so as the TTN was served on Mr Lee, while in Ms Lui’s 2^nd Affirmation filed in opposition to Ms Buena’s joinder application, Intelligent House regarded Mr Lai (but not Mr Lee) as the principal tenant.
	(3)	On that basis, it is at least arguable that the principal tenancy and thus the sub-tenancies of Unit 11 have not validly been terminated by way of the TTN.

6. In response to Ms Buena’s above allegations, by way of the 3^rd Affirmation of Lui Wing Yan dated 18 February 2008, Intelligent House exhibited the following to show that Mr Lee was the principal tenant of Unit 11 since the time Intelligent House purchased the property and even after the service of the TTN on 18 October 2006:

	(1)	A letter from Intelligent House’s predecessor’s solicitors dated 30 September 2006, attaching therewith a tenancy confirmation record, confirming that Mr Lee was the tenant of Unit 11 since 1 April 2003.
	(2)	Various rental receipts from Intelligent House’s leasing agent, acknowledging the receipts of rental from Mr Lee for Unit 11 for the period between 1 October 2006 and 31 August 2007.

7. Mr Shum for Intelligent House submits that the above evidence shows clearly that Mr Lee was at the time of the service of the TTN, and had at all material times been, the principal tenant of Unit 11. In the circumstances, the service of TTN was unquestionably valid and proper, and the principal tenancy was properly terminated on 31 October 2007, even if (which is not accepted by Intelligent House) Mr Lai had somehow taken over from Mr Lee as a tenant after August 2007.

8. Further, Ms Lui in her 3^rd Affirmation explains that although she had said in her 2^nd Affirmation to the effect that Mr Lai was the principal tenant, this was made purely for the convenience of argument, and she did not intend to concede in any way that Mr Lai had become Intelligent House’s principal tenant of Unit 11 in place of Mr Lee. She further relies on the position (denying that Mr Lai was the principal tenant) stated in Intelligent House’s Notice of Opposition filed against Mr Lai’s present connected application, and the evidence set out in paragraph 6 above.

9. Ms Buena has not filed or raised anything to rebut or challenge Intelligent House’s above evidence.

10. I accept Intelligent House’s evidence and find that it has shown to my satisfaction (and has confirmed my previous decision) that the TTN was effective in terminating the principal tenancy of Unit 11 on 31 October 2007. As such, as also concluded in my previous decision, Ms Buena’s sub-tenancy was similarly terminated as a matter of law.

11. At the hearing today, Ms Buena raises orally for the first time that the unit she has been staying, namely Room 01, Unit 11, may not be part of Unit 11, since it is called Room 01 of Unit 11. As such, Mr Buena says Intelligent House’s evidence on Mr Lee as a principal tenant is neither here nor there.

12. I reject Ms Buena’s this latest argument on her review application:

	(1)	Purely for the sake of argument but not otherwise, if Ms Buena were right that her unit was not part of Unit 11, she clearly has failed to show any locus or interest to be joined in Mr Lai’s present connected application or to mount a claim under Cap 545 against Intelligent House for compensation because (a) Mr Lai’s application concerns with Unit 11 alone, and thus there is no basis for her to be joined or to replace Mr Lai as the Applicant, and (b) she has not shown by any evidence that Intelligent House is the owner or principal landlord of this Room 01 if it is not part of Unit 11.
	(2)	In any event, on the evidence before me, in particular as Ms Buena’s unit is described as Room 01, Unit 11, of Kam Kwok Building, I am satisfied that her unit is more likely than not to be a subdivided unit (and thus part) of Unit 11.

13. For these reasons, I reject Ms Buena’s review application and confirm hereby my rulings in my previous decision.

Application to substitute Mr Lai

14. For the same reasons above, I also reject Ms Buena’s application to substitute Mr Lai as the Applicant under LDCS 11014/2006. She has failed to show any interest or locus to do so.

Orders

15. I make the following orders:

	(1)	Ms Buena’s review application be dismissed.
	(2)	Ms Buena’s application to substitute Mr Lai as the Applicant in LDCS 11014/2006 is also dismissed.

16. As Ms Buena fails in the applications, costs should usually follow the event. Ms Buena contends that she should not be asked to bear the costs of these applications if they fail, as she would not be able to pay the same. This is not a valid reason for not granting costs against her. I therefore further order that costs of these applications be to Intelligent House, to be taxed if not agreed.

H.H. Judge Thomas Au
Presiding Officer
Lands Tribunal

Ms Buena, acting in person, present.

Mr. SHUM Cheuk Pan of Messrs Woo, Kwan Lee & Lo for the Respondent.

LDCS 11014 /2006

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE APPLICATION NO. 11014 OF 2006

______________________

BETWEEN

	Lai Wai Man	Applicant
	And
	Intelligent House Limited	Respondent
	Buena Elvira Gamos	Intended Respondent

______________________

Coram : H.H. Judge Thomas Au, Presiding Officer, Lands Tribunal, in chambers (open to public), sitting at District Court

Date of Hearing : 23 January, 2008

Date of Handing Down of Decision : 23 January, 2008

______________________

DECISION

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Introduction

1. Intelligent House has by way of LDCS 11000/2006 applied for a compulsory sale order of, inter alia, Kam Kwok Building under the Lands (Compulsory Sale for Redevelopment) Ordinance (Cap 545) (“the Ordinance”).

2. In LDCS 11014/2006, Mr Lai Wai Man as tenant of various units (including the present subject matter unit) claims against Intelligent House for compensation under the Ordinance.

3. Before me now is the application of Madam Buena seeking leave to be joined as an applicant in Mr Lai’s application under LDCS 11014/2006. It is her case that she has been the sub-tenant of Mr Lai at Room 1, Unit 11, 14/F of Kam Kwok Building.

4. Intelligent House opposes the application for joinder on the basis that Madam Buena no longer has any locus to claim compensation, since Intelligent House has validly terminated the head tenancy with Mr Lai by way of a transitional termination notice dated 18 October 2006. The notice was issued and served in accordance with section 5(2) of the Landlord and Tenant (Consolidation)(Amendment) Ordinance 2004 (“LTAO”). As such, Intelligent House submits that the sub-tenancy relied on by Madam Buena shall similarly be terminated and she does not have any locus to bring any compensation claim against Intelligent House.

Discussion

5. Under section 5(2) of the LTAO, a landlord can lawfully terminate any tenancy created before 9 July 2004, the commencement date of that ordinance, by way of transitional termination notice issued and served not less than 12 months before the termination of the tenancy. Such notice should be served on the tenant in the ways in accordance with section 119Y(1) of the Landlord and Tenant (Consolidation) Ordinance (Cap 7).

6. I am satisfied with the evidence before me that such transitional notice has been properly served on Mr Lai between 18 and 20 October 2006 by Intelligent House in relation to the subject matter unit. The expiry date of the notice is 31 October 2007.

7. As such, I am satisfied that the relevant head tenancy between Mr Lai and Intelligent House was lawfully and validly terminated on 31 October 2007. Mr Lai also accepts that his tenancy with Intelligent House was terminated on that date by reason of the notice.

8. What about the subtenancy then? Section 6(5) of LTAO, provides as follows

“ (5) Where a transitional termination notice is served on a tenant, if:
(a) the notice is both in Chinese and English; and
(b) the notice is posted on 3 successive dates upon the main door or entrance of the premises affected,
the notice shall take effect terminating also any sub-tenancies created out of the tenancy to which it relates.”

9. I am also satisfied with the evidence before me (by way of the 2^nd Affirmation of Lui Wing Yan dated 15 January 2008) that the requirements under section 6(5)(a) and (b) of the LTAO are satisfied in relation to Intelligent House’s transitional termination notice. In the circumstances, the subtenancy between Madam Buena and Mr Lai, which was created out of Mr Lai’s head tenancy with Intelligent House, must also come to an end as a matter of law on 31 October 2007.

10. Since under sections 4(6) and 8(1)(b) of the Ordinance, a tenant (or for the present purpose a subtenant) is only entitled to compensation if his tenancy is terminated by reason of the making of the order for sale, Mr Shum for Intelligent House submits that Madam Buena therefore clearly has no entitlement to claim any compensation from Intelligent House as her subtenancy was terminated not by reason of any order for sale. As such, she has failed to show any locus to be joined in the application seeking compensation from Intelligent House.

11. I accept Mr Shum’s submissions.

12. In the premises, I refuse Madam Buena’s application for joinder.

Other matters

13. At the end of the hearing, Mr Lai confirms with the Court and makes an application to withdraw the present proceedings (i.e., LDCS 11014/2006). Mr Shum for Intelligent House does not oppose the same, and seeks no costs against Mr Lai in relation to the action or his application

14. In the premises, I also allow Mr Lai’s application.

Orders

15. For the reasons given above, I make the following orders:

(1) The application made by Mr Tamang to be joined as an applicant in LDCS 11014/2006 be dismissed, with costs to Intelligent House to be taxed if not agreed.
(2) Leave to Mr Lai to withdraw the application under LDCS 11014/2006, with no order as to costs as to the action and the leave application.

H.H. Judge Thomas Au
Presiding Officer
Lands Tribunal

Ms Buena, acting in person, present.

Mr Lai Wai Man, Applicant acting in person, present.

Mr. SHUM Cheuk Pan of Messrs Woo, Kwan Lee & Lo for the Respondent.

LAI WAI MAN v. INTELLIGENT HOUSE LTD

Related cases with same parties

Files (2)

“	(5)	Where a transitional termination notice is served on a tenant, if:
		(a)	the notice is both in Chinese and English; and
		(b)	the notice is posted on 3 successive dates upon the main door or entrance of the premises affected,
		the notice shall take effect terminating also any sub-tenancies created out of the tenancy to which it relates.”

(1)	The application made by Mr Tamang to be joined as an applicant in LDCS 11014/2006 be dismissed, with costs to Intelligent House to be taxed if not agreed.
(2)	Leave to Mr Lai to withdraw the application under LDCS 11014/2006, with no order as to costs as to the action and the leave application.