LI JING v. CHAN TAI KUK MELVIN AND ANOTHER

HCA3803/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3803 OF 2003

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JUDGMENT

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1. The first application of the 1^st defendant is to strike out the plaintiff’s claim for rents against him for the period from 12 June 2002 to 18 December 2002.  Those rentals since 19 December 2002 had already been struck out by me by my order dated 1 August 2007.  

2. The ground of the application is that on 11 June 2002, the 2^nd defendant Lau Kam Chuan entered the property pursuant to the judgment of Deputy High Court Judge Poon dated 29 October 2001.  Since then he had been living there and the 1^st defendant therefore had to move out.

3. I accept the submission of Mr Lee for the 1^st defendant that this is a clear deprivation of the quiet enjoyment of the subject property and thus the plaintiff is not entitle to receive rents for that period of time.  Mr Lee relied on the case of Yeung Lam Wilson & Anor v. Law Po Chong Priscilla in which Godfrey JA held that :

“What is relevant is that, from that moment, the landlord is in breach of his obligation to the tenant to secure that the tenant will be able quietly to enjoy his or her possession of the premises in right of the tenancy the landlord has granted; and accordingly the landlord cannot thereafter claim to be entitled to rent.”

4. The 1^st defendant was clearly deprived of the quiet enjoyment of the property and if the plaintiff were still entitled to rental, she would have to pay damages to the 1^st defendant.  The amount of damages would be exactly the same as the rental and therefore she is, on another view, not entitled to claim rents for that period of time. 

5. Accordingly, I order in terms of the application and that is this part of the claim for rents for the period from 12 June 2002 to 18 December 2002 is struck out.

6. I also accept the application of costs for this application amounting to 190 minutes for Mr Lee and therefore the costs will come up to a round figure of $12,700 by way of summary assessment.

7. The second application of the 1^st defendant is a little bit more complicated.  It is an appeal against paragraph 7 of the order of Madam Registrar Au-Yeung dated 18 February 2008.  Mr Lee for the 1^st defendant accepted that an appeal for costs the appellant will have to show that the court’s order is unreasonable.

8. This order of costs arises from the plaintiff’s summons filed on 17 December 2007.  She asked for the following items :

(1)    accrued rental and interests (from 15 March to 18 December 2002);

(2)    costs in the Small Claim Tribunal (SCTC32672/2002);

(3)    costs in the Lands Tribunal (LDPD1280/2003);

(4)    costs in CACV227/2003;

(5)    costs in CACV221/2005;

(6)    another set of costs; and

(7)    another set of costs.

9. The aforesaid claims are similar to the plaintiff’s prayer in her statement of claim and such claims had already been struck out by my order dated 1 August 2007.

10. It is quite clear that the costs in other proceedings should not be raised in the present proceedings and this has been decided previously.

11. During the hearing on 18 February 2008 before the learned Registrar, the 1^st defendant’s solicitors asked for half of the costs occasioned by the plaintiff’s summons.  Finally, the learned Registrar ordered that the costs of the plaintiff’s summons be in the cause between the plaintiff and the 1^st defendant.

12. I agree with Mr Lee that the 1^st defendant’s costs has been wasted by the plaintiff’s vexatious and totally ungrounded application.  The learned Registrar should, in my view, order that one half of the costs occasioned by the plaintiff’s application be to the 1^st defendant.

13. The plaintiff had been previously repeatedly explained and cautioned by the court that her application for the aforesaid costs order was unreasonable.  However she persistently and deliberately pursued the same and therefore caused loss of costs to the 1^st defendant.  

14. Accordingly, I allow the 1^st defendant’s appeal and the learned Registrar’s costs order is set aside.  The plaintiff, in my view, should be ordered to pay half of the costs incurred by the 1^st defendant.  I also accept that Mr Lee for the 1^st defendant had spent 290 minutes and, instead of asking for $9,000 odd, he only asked for $6,000 for the costs incurred and I so order.

15. In respect of the costs of this appeal, Mr Lee spent 185 minutes and I therefore summarily assess the costs to be the round figure of $12,300.

16. In conclusion, today I have struck out the claim for rent between 12 June 2002 to 18 December 2002.  I awarded costs to the 1^st defendant and assessed summarily at $12,700.  In respect of the second application, the appeal is allowed with costs which is summarily assessed at $6,000 in the court below and $12,300 in the appeal before me.