WONG KIN LEE v. 黃沛鴻

HCSA 18/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 18 OF 2006

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J U D G M E N T

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1.  This is an appeal by the Defendant in respect of a Judgment of the Small Claims Tribunal dated 23^rd June 2006 (“the Judgment”) whereby, inter alia, a sum of HK$2,910.29 was awarded against the Defendant in favour of the Plaintiff (“the Sum”).  By an order made on the 5^th July 2006, leave was granted to the Defendant to appeal against the award of the Sum (Leave to appeal against the dismissal of the Defendant’s counterclaim was refused.)

2.  At all material times, the Plaintiff (with his family) and the Defendant (with his mother) were sharing a flat at Cheung Sha Wan.  The Plaintiff’s claim against the Defendant was for his share of water charges, electricity charges and plumbing expenses.  The Sum is comprised of three items – water charges at HK$456.44, electricity charges at HK$1,903.85 and plumbing expenses of HK$250.  The Defendant contends that the apportionment of those charges and expenses are wrong in principle.

3.  The claim which resulted in the Judgment was the third occasion where a claim for unpaid water and electricity charges was made by the Plaintiff against the Defendant.  The two previous claims were made in SCTC 48892/01 and SCTC 46914/03.  In SCTC 48892/01 (“the First Case”), the issues of apportionment of the water and electricity charges were argued and adjudicated upon.  It was held that the Defendant should bear 6/35^th of the water charges and 13/28^th of the electricity charges (see Brief Reasons dated the 16^th August 2002).  There was no appeal against such adjudication. 

4.  At the hearing below, save for the additional item of plumbing expenses, it was common ground that there was no change of circumstances as compared with the previous two cases.  The issues and the parties were identical (see para. 5 of the Judgment).  In the premises, I am of the view that there was and is an issue estoppel against any further dispute over the apportionment.  With respect, the learned Adjudicator should not have allowed the matter to be re-argued in the absence of any material change of circumstances.  However, the learned Adjudicator came to the same conclusion as in the First Case in respect of the apportionment of the water charges (see para. 7 of the Judgment).  As regards the electricity charges, the finding below was more favourable for the Defendant than that made in the First Case, 9/28^th as opposed to 13/28^th (see para. 8 of the Judgment).  With respect, by reason of the issue estoppel, the Tribunal below should have adhered to the apportionments made in the First Case.  

5.  As regards the plumbing expenses, there was no argument on apportionment at the hearing below (see para. 9 of the Judgment).  I am unable to see any legitimate ground for the Defendant to challenge the apportionment of the plumbing expenses now. 

6.  For these reasons, this appeal is dismissed.  I find this appeal to be totally without merits.  I am unable to see why the Defendant did not pay for the use of water and electricity.  However, I make no order as to the costs of this appeal given the absence of application on the part of the Claimant.