WONG JUAN v. MORGAN TITUS PIERRE RICHE

LDPD 2425/2017

[2018] HKLdT 20

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 2425 OF 2017

________________

________________

__________________________

REASONS FOR DECISION

__________________________

1.  This is the 2^nd interlocutory application filed by the respondent on 14 March 2018 for leave to appeal of the decision made by the tribunal on 13 March 2018 and stay of execution pending appeal. The 1^st interlocutory application filed by the respondent for stay of execution of the Writ of Possession and time to move out by 15 April 2018 was decided by the tribunal at the hearing on 13 March 2018, and the reasons for decision was handed down on 21 March 2018, before the hearing of the 2^nd interlocutory application on the same date.

2.  I do not repeat the background of the case here, which has been stated in the reasons for decision[1] dated 21 March 2018. 

3.  At the conclusion of the hearing on 21 March 2018, I ordered that (1) the interlocutory application filed by the respondent on 14 March 2018 be dismissed; and (2) there be no order as to costs of this interlocutory application, with reasons to be handed down in writing.  I now do so.

Grounds for the Interlocutory Application

4.  In the affirmation filed by the respondent, he said that the tribunal had refused to read a Family Court document submitted by him, which contains personal information of his family and ex-girlfriend, and had also told him that all the documents even with sensitive information had to be disclosed to the applicant.  He also said that since he refused to let the tribunal disclose the said personal information to the applicant, the tribunal then decided to dismiss his application for stay of execution.  The respondent believed that his rights in the case had not been respected.

5.  At the hearing of the interlocutory application on 21 March 2018, the respondent repeated to present his grounds for stay of execution, which had in fact been discussed and considered by the tribunal at the hearing on 13 March 2018.   He further said that he had just obtained from the Family Court a summary of his case without the said personal information, which could then be submitted to the tribunal for consideration.  He worried that if no stay of execution was granted, he would have nowhere to live that would affect his daughter too, and the applicant might throw his personal belongings away after recovery of possession. He believed that he might be able to get the money for payment shortly and the applicant would finally be able to recover all the arrears of rent / mesne profits.

6.  The applicant opposed the interlocutory application for leave to appeal and disagreed with any stay of execution.

Discussions

7.  According to section 11(2) of the Lands Tribunal Ordinance (“the Ordinance”), 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.

8.  Section 11AA(6) of the Ordinance stipulates that 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.

9.  Firstly, in considering the subject interlocutory application, since the tribunal shall not exercise its power of review in respect of a decision if this decision has already been the subject of appeal or otherwise unless such proceedings have been abandoned, I shall not review the respondent’s grounds for stay of execution, except those in relation to pending appeal. 

10.  At the hearing on 13 March 2018, the respondent had been given chances to hide the personal and sensitive information of the Family Court document before the intended submission, but the respondent refused to follow the direction.  The respondent had not asked for adjournment and insisted to submit the document intact for perusal by the tribunal only.  Whilst, beyond doubt, the tribunal had never told him that all the documents even with sensitive information had to be disclosed to the applicant.

11.  I consider that what had been described by the respondent in this regard is certainly untrue. 

Conclusion

12.  This tribunal did not accept the respondent’s grounds for the interlocutory application.  The proposed appeal has neither a reasonable prospect of success nor any reasons in the interests of justice, and I therefore dismissed it at the hearing.

13.  Further, since the application for leave to appeal is dismissed, the application for stay of execution pending appeal should also be dismissed.

Costs

14.  The applicant did not ask for costs and there be no order as to costs of this interlocutory application.

LDPD 2425/2017

[2018] HKLdT 18

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 2425 OF 2017

________________

________________

_______________________

REASONS FOR DECISION

_______________________

1.  This is an interlocutory application filed by the respondent for stay of execution of the Writ of Possession and time to move out by 15 April 2018. At the conclusion of the hearing on 13 March 2018, I ordered that (1) the interlocutory application filed by the respondent on 2 March 2018 be dismissed; and (2) there be no order as to costs of this interlocutory application, with reasons to be handed down in writing. I now do so.

Background

2.  The applicant filed an application for recovery of possession of the suit premises on 15 December 2017, stating that there was a tenancy between the parties for 2 years from 1 November 2017 and the respondent had failed to pay rent from 1 December 2017. The respondent filed a notice of opposition to application out of time on 4 January 2018.  After hearing the representation of the parties and reviewing all the evidence before the Tribunal, I made a decision to enter judgment and ordered the respondent to (i) deliver vacant possession of the suit premises to the applicant; and (ii) pay the applicant arrears of rent / mesne profits, but subject to a relief expiring on 12 February 2018.

Grounds for the Interlocutory Application

3.  In the affirmation filed by the respondent, the respondent said that until 23 February 2018 he had not received any court order of the case which would confirm that he had to pay the arrears of rent within 4 weeks.  On the same date, he had just received a letter of the Tribunal advising the applicant that the applicant could continue the legal proceedings and apply for a Writ of Possession.  He also said that he had many documents to present at the hearing and would ask the Tribunal to review the case.

4.  At the hearing of the interlocutory application on 13 March 2018, the respondent further said that he originally planned to file an application for leave to appeal and / or review on 2 March 2018.  However, since he was misled by the staff of the Registry and / or he was refused by the staff of the Registry to file the said intended application for leave to appeal and / or review, he had filed the subject interlocutory application only. 

5.  The respondent also submitted that he is a visitor of Hong Kong, had no working visa to earn money here and had then no money to make payment of rent / mesne profits, and therefore he had nowhere to relocate, whilst he was ordered by the Family Court not to leave Hong Kong.  In the circumstances, he could not comply with the orders of both the Family Court and the Tribunal.  In addition, he relied on two documents including his Financial Statement to Family Court and another Family Court document (“Family Court Document”).  He submitted that both the applicant and the Tribunal could read his Financial Statement to Family Court that could support his interlocutory application, but the Family Court Document could be read by the Tribunal only because it contained personal information of other parties.

6.  I had then decided and made the direction that the Tribunal would not read the Family Court Document unless the applicant could also read it and reply, but the respondent could firstly hide all personal and sensitive information therein.  Since the respondent insisted to present the Family Court Document intact for perusal by the Tribunal only, I refused to accept the submission of the Family Court Document.

7.  The applicant objected to the interlocutory application and disagreed with any extension of time for the respondent to move out.

Discussions

8.  Firstly, since this is an interlocutory application for stay of execution and extension of time to move out only, the Tribunal shall not consider and handle the intended review and the intended leave to appeal in this interlocutory application.

9.  Although the respondent had applied for a sealed copy of court order on 2 February 2018 and he alleged that he had not received any copy of court order until 23 February 2018 to confirm the time for payment, the judgment had in fact been delivered by the Tribunal at the hearing on 2 February 2018.  I consider that the respondent should have known the relief expiration date that had been discussed at the hearing on 2 February 2018.  In any event, the respondent said that he had then no money in Hong Kong to make payment of rent / mesne profits.  In the circumstances, even if the respondent had not received the sealed copy of court order before the relief expiration date, I consider that this is certainly not an acceptable ground for stay of execution.

10.  Further, even if the respondent could not leave Hong Kong because of other legal proceedings, this does not mean that the respondent could not vacate from the suit premises. Although the respondent alleged that he had tried to sell his flat in Paris and would be able to make payment by 14 April 2018, there was no acceptable and concrete evidence before the Tribunal that the respondent could and would pay the arrears of rent / mesne profits up to his proposed date of vacation.  I consider that the grant of stay of execution and extension of time to move out would have the possibility to increase the damages to the applicant.  Without the consent of the applicant, the applicant has no duty to bear the misfortune of the respondent if any.  I consider that on balance it is not fair and equitable to allow the respondent to stay until a date when the respondent could move out only. 

11.  Lastly, the applicant should have a right to reply the respondent’s submissions.  This is the fundamental rule of a fair hearing.  On the condition that the respondent insisted to submit the Family Court Document intact for perusal by the Tribunal only, I consider that the Tribunal should refuse to accept it irrespective of its contents.  The respondent could have opportunity to hide the personal and sensitive information of the document before the submission, but it was the choice of the respondent not to follow the direction.

Conclusion

12.  This tribunal did not accept the respondent’s grounds for the interlocutory application and therefore dismissed it at the hearing.

Costs

13.  The applicant did not ask for costs and there be no order as to costs of this interlocutory application.