MISS CAROL WISNOM & MISS MICHELLE PRIOLEAU v. DR. JOHN CHAN

CACV000064/1990

IN THE COURT OF APPEAL 1990, No. 64
(Civil)

BETWEEN

MISS CAROL WISNOM & MISS MICHELLE PRIOLEAU Applicants
(Respondents)

AND

DR. JOHN CHAN Respondent
(Appellant)

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Coram: Fuad, J.-P., Power & Penlington, JJ.A.

Date of Hearing: 7 December 1990

Date of Judgment: 7 December 1990

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. This is an intended appeal by Dr. John Chan from a decision of the Lands Tribunal. He is unrepresented and this accounts for thefact that the papers before us would be quite inadequate for us to be able to hear and determine the appeal he wishes to pursue.

2. All we have before us are the following documents. A copy of an order dated 6th February 1990 made by the Presiding Officer (H.H.Judge Cruden) in the following terms:

ORDER

This application having been heard before his Honour Judge Cruden, presiding officer, and upon the hearingthe applicants (Carol Wisnom & Michelle Prioleau) and the Respondent (Dr, John Chan) all in person. It is ordered that:

1. New tenancy for 2 years from 3.11.89;

2. New rent $19,750.00 per month; leave to pay arrears within 14 days;

3. Deposit to be increased pro rata in accordance with new rent; leave to pay increase within 14 days;

4. New tenancy agreement to include a break clause entitling the applicants during second 12 months of the 2 years durationto terminate the tenancy by giving 2 month’s written notice to the respondent;

5. Parties to pay in equal snare/costs and stamp charges in relation to new tenancy agreement;

6. Other terms same as in prior tenancy agreement.”

3. We also have a copy of a further order made on 20th March 1990 by the same presiding Officer, which reads:

ORDER

Upon the application of review hearing of the Respondent (Dr. John Chan) and upon the hearing of the applicants (Miss CarolWisnom & Michelle Prioleau) and the respondent (Dr. John Chan) all in person, it is ordered that:

1. Application for review dismissed ;

2. Orders dated 6.2.90 confirmed ;

3. Photocopy of Exhibit R1 to be released to respondent.”

4. Then there is Dr, Chan’s Notice of Appeal which he filed on 4th April 1990. By it he seeks an order that the order given by the PresidingOfficer of the Lands Tribunal dated 6th February 1990 (and confirmed by his order given on review on 20th March) be substituted byan order from this Court that the parties “enter into a new one year tenancy agreement on exactly the same terms as the previouslease first signed oh 26th June 1988 (copy enclosed)”, although we have no copy in our papers.

5. In his grounds of appeal, Dr. Chan summarises some of the terms of the tenancy agreement of June 1988 and sets out the manner inwhich he says some of those terms were breached by his tenants. He indicates that he would be willing to accept a two year leaseif this Court were to approve a “break” clause in the terms he specifies in paragraph (10)(a) and (b) of his grounds of appeal. Heasks “the judge in the Supreme Court” (I take it that he means this Court) to “reinforce” some of the clauses in the lease earlierreferred to, and seeks advice from us as to what action he should take if his tenants should fail to observe those terms of the lease”in the foreseeable future”, as he puts it.

6. The only other document we have before us is an additional ground of appeal Dr. Chan filed on 1st December 1990 and in that he asksfor the “reinforcement” of a particular clause in the 1988 lease (one he already mentioned in his earlier Notice of Appeal) for thereasons which he gives.

7. From what we have been told today, and from the documents shown to us by Dr. Chan at the outset of the appeal, it appears that whathappened was that Dr. Chan gave notice of termination of the tenancy under Part IV of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, indicating that he would not oppose an application to the Lands Tribunal for tae grant of a new tenancy, but only a tenancyof one year’s duration. The tenants then applied for the renewal of the tenancy and were granted the new two year tenancy by theTribunal on the terms set out in the order of 6th February 1990 which I have already read. Then, it appears, Dr, Chan’s efforts byway of review to have the length of the tenancy reduced from two years to one year were rejected by the judge on 20th March 1990.

8. We have been informed by the Registry that when an unrepresented party files an appeal he is handed a document in English end inChinese telling him what documents he is responsible for lodging for the purposes of the appeal. Dr, Chan says that he was nevergiven such a document and, of course, we accept his word for this.

9. But, be that as it may, the right of appeal given under s.11 (2) of the Lands Tribunal Ordinance, Cap.17, to this Court against a determination or order of the Tribunal is restricted to the ground that such determination or orderis erroneous in point of law. Moreover, it does not appear that Dr. Chan applied to the Tribunal to record its reasons for its decision,as he should have done in accordance with rule 2b(2) of the Lands Triounal Rules.

These are procedural matters, but when one peruses the documents which are before us and Dr. Chan’s Noticeof Appeal, it is perfectly plain that no point of law is raised. It seems that a substantial part of his intended appeal is an attemptto obtain this Court’s assistance to make his tenants obey the terms of the lease under which they are in occupation of his property.Of course, we have no power whatever to do this. This Court derives its jurisdiction from statute and what Dr. Chan seeks from usis beyond our powers. Nothing would be gained by adjourning the appeal for the rules regarding the lodging of papers to be compliedwith. In the absence of a point of law, the appeal is not competent. We have no jurisdiction to entertain it and, therefore, itis struck out.

[No order as to costs]

Representation:

Dr. John Chan, Appellant in person

Miss Carol Wisnom, Respondent in person