CENTALINE PROPERTY AGENCY LTD v. SUNTON LTD AND ANOTHER

CENTALINE PROPERTY AGENCY LTD v. SUNTON LTD AND ANOTHER

The Deputy Adjudicator materially misrecited the 2nd defendant's evidence in a manner that affected the decisive finding that the defendants were the defaulting parties; that misreading constituted an error of law vitiating the Tribunal's principal finding and, because the finding was the single most important issue of mixed fact and law, the proper remedy was to remit for a trial de novo before a different Adjudicator rather than substitute a factual finding.

Citation
[2020] HKCFI 1189
Parties
Claimant: Centaline Property Agency Limited; 1st Defendant: Sunton Limited; 2nd Defendant: Lee Yuk Ming Sunny
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 June 2020
Case Number
HCSA31/2019
Procedural Posture
Small Claims Tribunal Appeal (court of First Instance) / Leave to Appeal Granted; Appeal Heard on Question of Law; Remitted to Tribunal for Trial De Novo
Outcome
Case remitted to the Small Claims Tribunal for trial de novo before a different Adjudicator; costs order nisi that Claimant to bear costs of this appeal (excluding those relating to the ex parte leave application), to be taxed if not agreed.
Legal Topics
Provisional Tenancy Agreement, Implied Terms, Breach/default, Misrecital of Evidence, Question of Law Vs Fact, Remittal / Trial De Novo, Costs
Source Language
EN
Contract Landlord and Tenant Civil Procedure Evidence Appeals Provisional Tenancy Agreement Implied Terms Breach/default +4 more

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Parties

Centaline Property Agency Limited

Claimant

Sunton Limited

1st Defendant

Lee Yuk Ming Sunny

2nd Defendant

Procedural Posture

Small Claims Tribunal Appeal (court of First Instance) / Leave to Appeal Granted; Appeal Heard on Question of Law; Remitted to Tribunal for Trial De Novo

Legal Issues

  1. 1 Whether the Deputy Adjudicator misread the 2nd defendant's witness statement (omission of '肯') and thereby erred in finding the defendants to be the defaulting parties
  2. 2 Whether that misrecitation constituted an error of law permitting appellate intervention on a leave granted under s28(1)
  3. 3 Whether the Court should decide the factual issue itself or remit the matter to the Tribunal for a fresh hearing

Ratio Decidendi

The Deputy Adjudicator materially misrecited the 2nd defendant's evidence in a manner that affected the decisive finding that the defendants were the defaulting parties; that misreading constituted an error of law vitiating the Tribunal's principal finding and, because the finding was the single most important issue of mixed fact and law, the proper remedy was to remit for a trial de novo before a different Adjudicator rather than substitute a factual finding.

Court Disposition

Case remitted to the Small Claims Tribunal for trial de novo before a different Adjudicator; costs order nisi that Claimant to bear costs of this appeal (excluding those relating to the ex parte leave application), to be taxed if not agreed.

Orders

  • Remit the case to the Small Claims Tribunal for a trial de novo before a different Adjudicator.
  • Costs order nisi: Claimant (Centaline Property Agency Limited) to bear the costs of this appeal excluding costs relating to the ex parte leave application; costs to be taxed if not agreed.