LEE CHONG LUAN v. OSUJI ONYEKACHI LOUIS

LDPD 1340/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1340 OF 2014

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BETWEEN

LEE Chong Luan Applicant
and
OSUJI ONYEKACHI LOUIS Respondent

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Coram: Deputy Judge Tracy Chan, Presiding Officer of the Lands Tribunal

Date of Hearing: 22 August 2014

Date of Decision: 28 August 2014

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D E C I S I O N
APPLICATION FOR LEAVE TO APPEAL

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1. The applicant is the landlord of a property situated at 4/F, Flat F, 37 Fuk Wah Street, Sham Shui Po (the “suit premises”). On 18 June 2014, he took out an application to ask for repossession of the suit premises on grounds of arrears of rent since 11June 2014. Judgment was entered on 3rd July 2014. By that judgment, while the applicant was granted order for possession and arrears of rent, the respondent was grantedrelief; so that if he paid all arrears and rent became due on or before 17 July 2014, he would be relieved from forfeiture, and thetenancy agreement would be reinstated.

2. The respondent failed to pay all arrears and rent which had become due before relief expiration date. The applicant took out applicationfor writ of possession which was granted on 21 July 2014. The respondent asked to have the Judgment set aside on 7 August 2014. His application was heard and was refused and he now asked for leave to appeal.

3. At the hearing of his application for setting aside, the respondent said that he has been an asylum seeker in Hong Kong and hisrent was supposed to be paid by the International Social Services (the “ISS”). Payment of rent was however withheld becausethe applicant had refused to fill in a form for him to satisfy the requirement on proof of ownership of the suit premises. The respondentsaid that since ISS had withheld payment he had been borrowing money from his friends to settle the rent up to 10 August 2014. Headmitted that he had been late in paying rent at times and that the rent due on 11 August 2014 was in arrear.

4. Upon hearing the parties I found that the Tribunal had no jurisdiction to order the applicant to sign any form to satisfy the requirementof the ISS. In fact the respondent conceded that it was the right of the applicant not to assist in his application for subsidies. He said that that was why he would not insist to ask the applicant to sign the form to support his application. He would find hisway to pay the rent. In this regard, I found there was little likelihood that the respondent could get a job to make a living inHong Kong and to pay rent. There were still arrears as at the date of hearing although he managed to pay part of them before andafter the relief expiry date. I do not see any merit in his case for the judgment to be set aside. I therefore dismiss his application. I also refused application for stay of execution.

5. Now he seeks leave to appeal against my decision. The law applicable to the leave application has been summarized by HHJ Ko inThe Incorporated Owners Of Kadoorie Avenue Mansion v. Rising Dragon International Limited LDBM 201/2013:

(a) A party may only appeal to the Court of Appeal against a judgment, order or decision of the Lands Tribunal on the ground that suchjudgment, order or decision is erroneous on point of law: section 11(2) of the Lands Tribunal Ordinance (“LTO”).
(b) No appeal may be made under section 11(2) unless leave to appeal has been granted by the Lands Tribunal or the Courtof Appeal: section 11AA(1) of the LTO.
(c) Leave to appeal shall not be granted unless the court is satisfied that either (i) the appeal has a reasonable prospectof success; or (ii) there is some other reason in the interests of justice why the appeal should be heard: section 11AA(6) of theLTO. ”

6. The intended ground of appeal is that the landlord had agreed to be co-operative in his application and later refused to sign a formto prove his ownership of the suit premises. This had been raised at the setting aside application hearing. I am of the view thateven if there was a promise from the applicant to “assist”, I do not think that was an enforceable agreement to justify a claimfor specific performance. For the purpose of assisting, the applicant had provided copy of bank passbook and identity card. Theapplicant’s understanding from the ISS was that he had to sign a form to support the application of the respondent. He found hehad no duty to do so. As far as he was concerned, he had already provided his documents to prove his identity. From such facts,I could hardly see any enforceable agreement binding the applicant to do any thing requested by the ISS to assist. Moreover, asmentioned, the respondent had at the conclusion of the hearing of setting-aside application conceded that the applicant had the rightnot to sign the form.

7. Furthermore, the case of the respondent was not that the Tenancy Agreement was conditional upon his successful application for ISS’ssupport. It was neither the case of the respondent that there was a breach on the side of the applicant and that he was entitledto rescind the Tenancy Agreement. What he had asked for was to continue to stay at the suit premises and he would pay the rent withoutthe support of ISS despite of the fact that there were arrears.

8. He had mentioned in his written application for leave to appeal that he had received no notice of application, but that was not raisedin the application for setting aside. It was not mentioned when hearing the present application either. I do not accept such allegation.

9. His allegation that my decision was biased is not supported by reason. His allegation that the judgment being racist was made absolutelywithout basis.

10. I am not satisfied that the intended appeal has a reasonable prospect of success; nor is there any reason in the interests of justicewhy the intended appeal should be heard, I dismiss the application of the respondent.

11. I see no reason to grant any stay of execution in the circumstances. The interim stay imposed on 22 August 2014 is now uplifted.

12. I make no order as to costs for this application for leave to appeal given the status of the respondent and that the applicant isacting in person.

Order

13. My order is as follows:

(1)

The respondent’s application for leave to appeal filed on 20 August 2014 be dismissed;

(2)

There be no order as to costs for this application; and

(3)

Interim stay granted on 22 August 2014 be uplifted.

Deputy Judge Tracy Chan
Presiding Officer
Lands Tribunal

Applicant, acting in person, present

Respondent, acting in person, present