YEUNG TAK SHUN DAVID v. ELTHAF CHAUDHRY MUHAMMAD

LDPD 2259/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 2259 OF 2014

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REASONS FOR DECISION

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1. This was an interlocutory application filed on 12 December 2014 by the respondent for (1) leave to appeal the Order made on 5 December 2014; and (2) stay of execution of the possession order made on 7 November 2014 pending for the appeal. The respondent had also added new requests by fax to the tribunal on 22 December for (3) time to pay the arrears of rent from 15 October 2014 to 14 January 2015 by 1 March 2015; and (4) continuance of the tenancy until lease expiry.

2. At the conclusion of the hearing on 23 December 2014, I ordered (1) the interlocutory application filed by the respondent on 12 December 2014 be dismissed; and (2) the applicant do not ask for costs, there be no order as to costs, with reasons to be handed down in writing.  I now do so.

Background

3. The applicant is the landlord of the premises known asFlat C, 14^th Floor, Hing Lin Building, 208-228 Tong Mi Road, Kowloon (the “Suit Premises”) and the respondent is the tenant.  By a tenancy agreement dated 14 January 2014 (the “Tenancy Agreement”), the Suit Premises was leased to the respondent for the period from 15 January 2014 to 14 January 2016 at the monthly rent of $9,100. 

4. The applicant filed a Notice of Application to the tribunal on 13 October 2014 for recovery of possession of the Suit Premises.  The applicant claimed that (1) the respondent had failed to pay rent from 15 July 2014; and (2) the respondent had also refused the landlord’s workers entering into the Suit Premises to carry out the repair work for the whole building.

5. The respondent filed a Notice of Opposition on 18 August 2014.  The respondent contended that there were no arrears of rent and he had already allowed the workers to carry out the said repair work, which was completed on 18 October 2014.

Hearing on 7 November 2014

6. Since the applicant had failed to serve on the respondent a notice specifying the particular breach complained of under section 58 of Conveyancing and Property Ordinance, Cap. 219, I did not accept the 2^nd ground of the applicant irrespective of whether or not the respondent had breached the covenant in the tenancy.

7. Nevertheless, the respondent admitted at the hearing that, after consideration of his payment of 1 month’s rent on 21 September 2014, there were arrears of rent from 15 July 2014.  However, he contended that the condition of the Suit Premises was unsatisfactory before and during the repair / renovation period, and he had verbal agreements with the applicant on the offset of rent by the payments previously made by him including the legal costs in the sum of $10,000, the costs for alternative accommodation from June to August 2014 in the sum of $24,900 and various repair costs.

8. The applicant’s representative denied that there was any agreement with the respondent on the offset of rent, but she admitted that she had agreed to pay the respondent some repair costs previously spent by the respondent.  At the hearing, the applicant’s representative agreed to deduct the repair costs in the sum of $2,320 from the arrears of rent.

9. Except for the oral admissions of the respondent and his witness Ms Leung, the respondent had no other evidence that could prove the agreements on the offset of rent.  Further, Ms Leung had admitted at the hearing that her knowledge about the agreements on the offset of rent was learnt from the respondent only.  On the other hand, in the WhatsApp messages submitted by the applicant, although there were discussions between the parties about the repair and legal costs, there was no agreement between the parties in this regard. 

10. On the balance of probabilities, I accepted the applicant’s submission that there was no agreement between the parties on the offset of rent. Accordingly, I ordered the respondent to deliver vacant possession of the Suit Premises to the applicant but subject to a relief period until 17 November 2014.  I also ordered the respondent to pay the applicant arrears of rent / mesne profits from 15 July 2014 until delivery up of vacant possession and there was a deduction of $2,320 as agreed by the applicant.

Hearing on 5 December 2014

11. The application for review filed on 14 November 2014 by the respondent was heard on 5 December 2014.  The respondent submitted photos showing the condition of the Suit Premises.  At the hearing, the respondent also submitted WhatsApp messages between the parties.  Further, the respondent counter claimed for $39,000 as the compensation for damage to his personal belongings at the Suit Premises.

12. In the WhatsApp messages submitted by the respondent, although the respondent had made requests for and statements on compensation and waiver of rent for 3 months, I found no agreement between the parties in this regard.  I only found the applicant had once agreed to pay the costs for checking electricity supply as spent by the respondent, which had already been agreed by the applicant as a deduction of rent in the last hearing.

13. Although the photos as submitted by the respondent reveal that the condition of the Suit Premises might be unsatisfactory before and during the repair / renovation period, these are not the evidence for agreements on offset of rent.  In the circumstances, I confirmed my Order made on 7 November 2014 was in order.

14. Nonetheless, with a view to reflect that the payment made by the respondent on 21 September 2014 should actually be the rent from 15 September 2014 to 14 October 2014 instead of the rent from 15 June 2014 to 14 July 2014, I ordered to make a technical amendment to the dates for arrears of rent and extend the relief period to 15 December 2014 too.

15. The same as the decision made on 7 November 2014, this decision was based on the finding that, on the balance of probabilities, there was no agreement between the parties on the offset of rent.  Even ifthe applicant had breached the covenants of the Tenancy Agreement and/or the applicant had agreed to pay the costs and/or compensation as claimed by the respondent, these are not the acceptable defences for non-payment of rent.

16. It was held in Charmway Development Limited v Long China Engineering Limited [2001] 3 HKC 515 that a tenant’s obligation to pay rent was not dependent upon the compliance by the landlord of its obligations under the lease unless it is otherwise stated in the tenancy agreement.  In the Tenancy Agreement, I found the covenant to pay rent by the tenant is independent of the other covenants and obligations.

17. About the counter-claim filed by the respondent in the review application, it was held in 黄英對譚炳新 HCMP 2049 of 2000, 1 August 2000, that the Lands Tribunal does not have jurisdiction under the Lands Tribunal Ordinance, Cap. 17, to entertain counter-claims of the tenant, and if the tenant would like to pursue the counter-claims, the tenant could file application to the Small Claims Tribunal, District Court or High Court depending on the amount of the claims.  

18. In fact, in between the hearing on 7 November 2014 and the review hearing on 5 December 2014, the respondent had already filed two applications to the Small Claims Tribunal for the said legal costs in the sum of $10,000 and compensation for damage to his personal belongings in the sum of $39,000, and the said costs for alternative accommodation in the sum of $24,900 respectively. 

19. I considered, without an agreement on offset of rent, the respondent should continue to pay rent on time in accordance with the Tenancy Agreement.  The respondent should not mix up his responsibility to pay rent and his counter-claims in the Small Claims Tribunal.  In the present proceedings, I had decided on whether there was agreement on offset of rent only, and had not discussed nor decided whether the applicant had breached the covenants of the Tenancy Agreement and/or the applicant had agreed to pay the costs and/or compensation as claimed by the respondent, which could then be decided by the Small Claims Tribunal.

Hearing on 23 December 2014

20. The interlocutory application filed on 12 December 2014 by the respondent was heard on 23 December 2014. In addition to making the new requests in the interlocutory application, the respondent prepared to provide new evidence for the appeal.

21. The respondent made the new requests to the tribunal by fax one day only before the hearing and he had not copied this fax to the applicant.  Since the respondent did not follow the procedures for hearing and the applicant objected to the filing of these new requests by the respondent, I refused to hear these new requests at the hearing and dismissed the late application in this connection.

22. The respondent stated that he would call two additional witnesses to prove his case, including a security guard of Hing Lin Building who could just been located by the respondent and his contractor who was out of town in the last two hearings.  The respondent contended that the security guard could prove there was damage to the Suit Premises and he was not living in the Suit Premises for about 2 months and 20 days from June to August 2014, and his contractor could prove the parties had discussions and/or arguments at and in front of the Suit Premises and the respondent had asked the applicant to pay the rent for alternative accommodation, repair costs and legal costs.

23. In Ladd v Marshall [1954] 1 WLR 1489 it was held that further evidence is admissible on appeal only where such evidence satisfies 3 conditions: (1) it could not have been obtained at the hearing with reasonable diligence; (2) it would or might, if believed, have an important effect on the mind of the tribunal, though it need not be conclusive; and (3) it is of a sort which inherently is not improbable.

24. Based on the submissions of the respondent, there are the possibilities that the new evidence may satisfy the conditions (1) and (3) of Ladd v Marshall, but it does not have an important effect on the mind of the tribunal.  Even if the evidence is believed, it cannot prove whether there was any agreement on offset of rent.  Accordingly, I refused to adjourn the hearing and let the respondent call these two witnesses.

25. On the other hand, since the respondent had just repeated his grounds and particulars in the last two hearings and all these had already been decided with reasons, I consider the appeal does not has a reasonable prospect of success.

26. According to section 11(2) of the Lands Tribunal Ordinance (“the Ordinance”), any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law. 

27. Section 11AA(6) of the Ordinance stipulates that leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

28. Since the respondent had not provided any ground of appeal on point of law and the appeal does not has a reasonable prospect of success nor any reason in the interests of justice, I dismissed the interlocutory application filed by the respondent.

29. On the condition that I refused to grant leave to appeal, I also refused to grant leave for stay of execution pending for the appeal. 

30. Since the applicant did not ask for costs, there be no order as to costs of this interlocutory application.