XCHRX ON SUCCESS DEVELOPMENT LTD. v. MIRACLE LTD. t/a CAN DO RESTAURANT

HCA 56/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 56 OF 1999

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J U D G M E N T

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1. This is an appeal from an order of Master Muttrie giving summary judgment in favour of a landlord in respect of arrears of rent, etc. The tenant asks for leave to defend the action, claiming to have a counterclaim for damages against the landlord for breach of the latter's covenant for quiet enjoyment and for derogation from its grant. This complaint is based on the fact that the landlord has approved plans which show a second entrance to the tenant's premises, being an entrance which has long been used by the tenant's customers for access to and egress from the car park in the building.

2. But the tenant cannot point to any grant to it of a right to use the second entrance in this way (which has been subjected to some restrictions, apparently for security reasons), and I am satisfied that there is no evidence of any breach of covenant or derogation from the grant on the part of the landlord. There is nothing in the point that the landlord approved the plan showing this second entrance, for this comes nowhere near to entitling the tenant to a right to the unrestricted use of that entrance when no such right is granted by the lease. I shall therefore dismiss this appeal.

3. The landlord's costs of the appeal are to be taxed if not agreed and paid by the tenant to the landlord. By consent, the order of the Master will be amended so as to substitute 5 January 1999 for 1 February 1999.