LDPD 152/2024

[2024] HKLdT 31

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 152 OF 2024

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BETWEEN

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DECISION ON REVIEW

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1. This case originated from the Applicant’s application for recovery of possession of Flat D on 9 ^th Floor, Block A, Comfort Gardens, No 60 King’s Road, Hong Kong (“the Premises”) on the ground that the Respondents, as tenants of the Premises, breached the user clause in the tenancy agreement dated 24 August 2023 (“the Tenancy Agreement”).

2. I handed down my judgment on 11 March 2024 (“the Judgment”) dismissing the Applicant’s application on the ground that she failed to serve a warning notice under section 58(1) of the Conveyancing and Property Ordinance, Cap 219 (“section 58 requirement”) on the Respondents.

3. The Applicant on 21 March 2024 applied for a review of the Judgment pursuant to section 11A of the Lands Tribunal Ordinance. In support of this application for review (“Application for Review”), the Applicant filed an affirmation (“the Affirmation”) “seeking enforcement of a writ of possession for Comfort Garden due to the tenant’s persistent disregard for the court’s directives and the terms of our rental agreement.” The Applicant further affirmed that since the Judgment, she had served a termination notice in compliance with the section 58 requirement. Despite this, the Respondents still “failed to demonstrate an understanding of the breach of the contract implications or shown any willingness to rectify the situation…”

4. With respect, the Applicant appears to have failed to understand the section 58 requirement which begins by

“A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice …” (underline added)

5. That is, the cause of action against the Respondents, for instance, on 1 February 2024, could not accrue because the Applicant by that time, according to para 32 of the Judgment, had not yet served the warning notice (as opposed to a termination notice as alleged by the Applicant). The Applicant cannot remedy the lack of section 58 requirement retrospectively by serving a fresh warning notice.

6. There is therefore no ground for review of the Judgment.

7. In the Affirmation, the Applicant also complaint that the Respondents persisted in their breach of the user clause even after the Judgment was handed down. With respect, this cannot be an excuse nor an alternative ground for review.

8. But this should not be understood as a tacit approval of the Respondents’ breach, if any. The Applicant may, if she wishes, serves a new warning notice that complies with the section 58 requirement, and if and only if the Respondents fail, within a reasonable time thereafter,