Capital Well Development Ltd. v. Christopher J. Higgins

LDPD715/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDPD No. 715 of 2001

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JUDGMENT

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Background

1. The Applicant is the landlord and the Respondent the tenant of the premises known as House B, 18 Tsung Tsai Yuen, Tai Po Kau, Tai Po, Lots 1, 2, 4-8, D.D. 33, N.T. ("the subject premises"). The subject premises was let at a rent of $4,500 per month commencing from 1st March 1999 to 28th February 2001. On 17th March 2001, the Applicant filed by Form 22 an application for recovery of possession of subject premises on the ground that the Respondent has failed to pay rent since the 1st January 2000 and electrical bill in the sum of $3,913.25. On 10th April 2001, the Applicant applied for judgment by way of affidavit/affirmation in default of opposition.

2. The following order was made on 23rd April 2001 by the Deputy Registrar, Lands Tribunal:

"In default of opposition, order for the Applicant(s) against the Respondent Christopher J. Higgins for the claim in terms of the application dated 10 April 2001. The Respondent shall pay the Applicant costs at $800.00."

The Respondent's case

3. The Respondent applied on 8th May 2001, among other things, "to set aside the order dated 23 April 2001." His other application was "to have the matters of false statement to the Tribunal; and the matter of harassment; by the Landlord and his agents, heard in Court."

4. In the Statement 'A' attached to the Respondent's application dated 8th May 2001, the Respondent stated that he did not receive the Notice of Application by the Applicant until after the 14 day deadline specified. The reason being that "This was due to some unknown person interfering with our mail and resulted in no mail being received at our premises for over 2 weeks in the second half of March 2001. No explanation has been provided by the Post Office for this occurrence."

5. He also set out in that Statement, firstly what he claimed to be false statements made by the Applicant and his agent and secondly, what he detailed to be the accounts of harassment against the Respondent by the Applicant as the landlord. He referred the Tribunal to Section 70C (False Statement) and Section 70B (Harassment) of the Landlord and Tenant (Consolidation) Ordinance ("the Ordinance"). To support his claim that the Applicant had made a false statement in Form 22 that the Respondent had made "no payments of rent since 1st January 2000", he enclose copies of cheque stubs and subsequent bank statements showing payments made by the Respondent and monies drawn by the Applicant." He produced these copies in the hearing as Exhibits R1 and R2. As regards to the Respondent's claims of harassment by the Applicant, he alleged that the Applicant's action or inaction had constituted the following forms of harassment:

(1) Refusal by the Respondent to repair the badly leaking roof;

(2) Refusal by the Respondent to repair electrical supply to House B (subject premises) and neighbouring houses (Houses A, D and E);

(3) Refusal by the Respondent to provide adequate water supply;

(4) The Applicant and his agent, John Chan of Land Partners Surveyors Limited, have prevented workers employed by the respondent and his neighbour at House A and E to complete their repair and maintenance work on the premises;

(5) Refusal to give the Respondent a replacement key for main entrance gateway to the property;

(6) Re-letting House C, Tsung Tsai Yuen to a known and convicted criminal, namely Kevin Green, who was convicted at Fanling Magistracy of criminal offences at House B, Tsung Tsai Yuen (subject premises).

6. It was contended by the Respondent that the accumulated actions of the Applicant and his agents had been to make living at House B, Tsung Tsai Yuen (the subject premises) so uncomfortable that the Respondent will vacate the property and enable the Applicant to proceed with sale or re-development plans with vacant possession.

7. The Respondent gave evidence in person. He produced two copies of statements of his account at Standard Chartered Bank (as Exhibits R1 and R2). The Respondent also called for the evidence of Mr. Sunny Wong Yue Yiu, the Respondent's neighbour who rented House A and House E.

8. The Respondent submitted that the subject premises was not fit for dwelling. He claimed that the Applicant was using the original possession application as a means to gain possession, by-passing the procedure including the service of Form CR101 as laid down in the Ordinance.

9. Finally, the Respondent admitted that he would only be able to pay an additional month's rent in alternate months as a method of paying back all the rents in arrears. He would not have the money to pay back all the rents in arrears within a stipulated period of say 4 weeks.

The Applicant's case

10. The Applicant opposed the application by the Respondent to set aside the Order made by the Deputy Registrar under Rule 15 of the Lands Tribunal Ordinance. Mr. Chan, John Loong Fai, the representative of Capital Well Development Limited, the Applicant gave evidence himself. He clarified that the statement in the Form 22 that "the Respondent has failed to pay rent since the 1st day of January 2000" intended to mean that the rent for the period commencing from the 1st day of January 2000 had not been paid. He acknowledged that the Respondent had paid some rents since the 1st day of January 2000 but those rents were in respect of the months in 1999 only. In support of his statement, he produced copies of cheques, statements of accounts, and letters of Messrs. Littlewood, the Applicant's solicitor (Exhibits A1 to A5, A7, and A10 to A11). These show the various payments of rents by the Respondent as well as the record of bounced cheques from the Respondent. He also produced a few photographs showing the state of the subject premises and the surroundings (Exhibits A6, A8 and A9), a copy of the tenancy agreement of the subject premises (Exhibit A12). Finally, he produced a copy of the electricity supply application form (Exhibit A13) which show that the Respondent had supply of electricity in the subject premises.

11. The Applicant submitted that their original application was for recovery of possession of the subject premises due to non-payment of rent by the Respondent. It was further submitted that the Applicant was very lenient regarding the non-payments of rents by the tenants, including the Respondent. The Applicant also denied that there were disruption of electricity and water supply in the subject premises. The Applicant alleged that the Respondent had installed dangerous electricity equipment and had been polluting the surrounding environment.

12. It was common ground that since the original application dated 23rd April 2001, there was no payment of rent by the Respondent. Also, the Respondent has not given up possession of the subject premises to the Applicant.

Findings and analysis by the Tribunal

13. From the evidence given by the parties, I have the following findings:

(1) The tenancy of the subject premises, the subject matter of the present application falls within Part IV of the Ordinance. However, both Sections 70(B) (Harassment) and 70C (False Statement) fall within Part II of the Ordinance. They therefore do not apply to any domestic tenancy that falls within Part IV of the Ordinance.

(2) There were only evidence addressed by the parties that up to the date of the Applicant's Application, the Respondent had paid only 7 months' rent although outstanding rents were due since 1st May 1999. There were 8 months from 1st May 1999 to 1st January 2000. Therefore, the statement by the Applicant in Form 22 that the Respondent has, up to the date of Application of 17th March 2001, failed to pay since the 1st day January 2000 was not false but correct. The Respondent failed to provide evidence to the contrary. In fact, from the Exhibits produced by the Respondent (Exhibits R1 and R2), he was only able to show that he had paid rents in the sums of $4,500 and $9,000, or a total of $13,500 (being 3 months' rent). The Applicant confirmed these payments. In addition, both the Respondent and the Applicant acknowledged 4 other months' payments of rents by the Respondent (being payments made by the Respondent to the Applicant's lawyer, Messrs. Littlewoods). The Applicant also took the trouble of producing copies of correspondent, receipts and bank statements verifying the Respondent's payments. I have no doubts of the evidence given by the Applicant's witness in this regard.

(3) The cheque payment of agreed electricity charges of $3,913.25 by the Respondent bounced. Following the bouncing of his cheque, the Respondent did not settle this sum with the Applicant.

(4) The Tribunal has no jurisdiction to deal with the counter claim statement raised by the Respondent during the hearing that the Respondent would only be prepared to pay the rent on condition that the premises were repaired and fit for dwelling.

14. In the circumstances, the Respondent failed to substantiate his application made on 8th May 2001 that the order dated 23 April 2001 be set aside. The facts that the Respondent had failed to pay rent and electricity charges as set out in the Applicant's applications dated 17th March 2001 and 10th April 2001 had been proved to the Tribunal. Also, the other application by the Respondent that the Tribunal should hear the matter of "False Statement" and the matter of "Harassment" are outside the jurisdiction of the Tribunal. The Respondent stated in the hearing of his application that he could not repay all the rents in arrears unless he were given sometime to settle by paying one month's rent in one month and two months' rent in the alternate month. Since the total number of months that the rents were in arrears now amounts to 17, and over a month has elapsed between the Tribunal's Order of 23 April 2001 and today, I decide not to exercise the Tribunal's discretion to give the Respondent further relief period to pay all the rents in arrears. Thus, I make the following orders:

Orders

(1) Application by the Respondent dated 8th May 2001 be dismissed.

(2) The Respondent shall pay cost of $300 to the Applicant.