CHOW WAI-FUN, AMY v. MCKEON, BRENDAN HUGH

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 15684 OF 2000

-----------------

-----------------

JUDGMENT

-----------------

1. This is an application for summary judgment. The Plaintiff brought the present action against the Defendant to claim for arrears of rent and mense profit commencing from 1 May 1990.

2. The premises was surrendered by the Defendant on 30 October 1990, and so the claim for possession is no longer necessary. Further, the claim for unpaid rent and mense profit only covers the period from May 2000 to October 2000. The Plaintiff will give credit to the rental deposit in the sum of $20,000 kept by the Plaintiff and so the Plaintiff's claim is only limited to $40,000.

3. The Defendant submits that the claim now falls within the exclusive jurisdiction of the Small Claims Tribunal, and so the Plaintiff cannot proceed with the claim in this court. I do not accept this argument. When the Plaintiff commenced the present action, the case and the claim properly fell within the jurisdiction of this court. It was only because of the subsequent conduct of the Defendant in surrendering the premises that the claim for possession no longer became necessary. In my judgment, if the Plaintiff's claim was a proper one when he first commenced it, the events which occurred after the commencement of the action would not deprive this court of the jurisdiction to deal with the matter. What matters is the claim of the Plaintiff at the commencement of the claim, and so I am of the view that the District Court does have jurisdiction to deal with the present claim.

4. The Defendant is relying on the counterclaim to oppose the Plaintiff's claim. According to the Defendant, one of the windows of the premises was defective, and as a result the window could not be closed fully starting from June 1997. By reason of such defect, the Defendant claims the following losses:

5. For the purpose of this Order 14 application, I am prepared to accept that the alleged defect did exist. However, after perusing the photographs produced by the Defendant, I am of the view that the alleged defect was a very trivial one, and I have serious reservation as to whether the Defendant has suffered any loss arising out of such defect.

6. No air-conditioning bill has been produced and so there is no evidence to substantiate the loss relating to the extra air-conditioning expenses.

7. For the diminution in the rental value, no supporting evidence has been produced to this court. Since the alleged defect could have been rectified fairly easily, I do not accept that the alleged defect would have had any effect on the rental value of the property.

8. Further, as the defect was very minor in nature and it could have been rectified quite easily by engaging a contractor to repaid the same at a cost of about $450 (see the quotation exhibited in the Defendant's affirmation), I do not accept that the alleged defect would have caused any significant loss and enjoyment of the property, otherwise, despite the alleged promises made by the Plaintiff, one would have expected the Defendant to proceed to engage a contractor to rectify the defect without further delay. The fact that he has not done over a period of three years shows that he has not suffered any significant loss in this regard.

9. In such circumstances, despite the alleged defect of the window, I do not accept that the Defendant has managed to prove that he has suffered any significant loss which would form part of the counterclaim. I therefore allow the Plaintiff's application for summary judgment.

(Discussion re costs)