Lau Wing Chung v. Yip Chi Tung

LDNT462/2000 Review

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDNT No. 462 of 2000 Review

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JUDGMENT OF THE REVIEW APPLICATION

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Background

1. The Applicant is the tenant and the Respondent the landlord of the subject premises described as Flat A, 1st Floor, Block 5, Casa Bella, 5 Silverstrand Beach Road, Clearwater Bay, Kowloon and Car Park 54 ("the premises"). The current tenancy of the premises (Exhibit R1) made between the Applicant and the Respondent on 5 January 2000 is for a term commencing from 15 January 2000 and expiring on 14 January 2002 at a rent of $14,000 per month.

2. The Applicant on 22 December 2000 filed a notice of application (Form 22) to the Lands Tribunal, applying for a new tenancy. The Respondent filed a notice of opposition (Form 7) on 3 January 2001. The application was fixed for hearing on 16 January 2001.

3. From the evidence produced by the parties, the Tribunal found that the tenancy agreement of the premises was a tenancy for a term from 15-01-2000 to 14-01-2002 with an option to terminate the tenancy earlier by either the landlord or the tenant, and any such written notice of termination shall not be less than two months, and any such notice shall not expire earlier than 12 months from the commencement date of the tenancy (i.e. the Tenant shall rent the Premises for at least 14 months). In this respect, the Tribunal also found from the evidence that, as at the date of this application for a new tenancy, the Applicant had not served to the Respondent any notice of earlier determination of the tenancy and neither had the Respondent serve a similar notice to the Applicant.

4. The Tribunal also determined that the Form CR101 dated 14 September 2000 which was served by the Respondent to the Applicant could not serve an additional purpose as the notice required to be served under the tenancy agreement for the premises. Even if the Tribunal was wrong in this determination, the Form CR101 could not serve as a valid notice because the date of service (i.e. 14 September 2000) of the said Form did not comply with the requirement of the tenancy - that any such notice shall not expire earlier than 12 months from the commencement date of the tenancy (15 January 2000)! As a result, the Tribunal determined that at the time of filing this new tenancy application to the Tribunal by the Applicant, the tenancy for the premises had not expired by effluxion of time. In addition, the said Form CR101 served by the Respondent was invalid under the Landlord & Tenant (Consolidation) Ordinance ("the Ordinance") since it did not comply with the requirement of section 119(3)(b) of the Ordinance.

5. For the above reasons, the Tribunal made the following Orders on 2 March 2001:

(1) Application for new tenancy dismissed.

(2) It is hereby declared that the tenancy has not come to an end by effluxion of time and the Applicant may therefore continue to reside in the suit premises thereunder subject to paying the monthly in advance the current rent of $14,000 per month (inclusive of rates and management fee) and otherwise complying with the terms of the tenancy;

(3) No order as to costs.

Review application

6. The Respondent filed on 21 March 2001 an application to review the above orders. In the affirmation attached to the application, the Respondent affirmed the following:

" (1) the judgement did not take into consideration additional relevant information submitted on March 2, 2001 (see attachment).

(2) We have subsequently exercised the break clause by serving two months notice for termination of the tenancy agreement, however, the tenant still refused to move out.

(3) Repairs & maintenance under normal course of dealing does not affect a tenant's right, however, we found that the tenant has intentionally delayed our works or repairing."

7. Ms. Yip Fung Ling Irene, the representative of the Respondent explained further the Respondent's reasons for the review. The Respondent's position was that in exchange for a lower rent of $14,000, which was the rent agreed by the parties and shown in the tenancy agreement, the parties had prior to the signing of the agreement consented that the tenancy was only for a one-year term. This was considered by the Respondent to be significant and vital. There was no apparent reason that the Respondent chose not to accept a higher offer by the other prospective tenants but to accept a lower offer of $14,000 by the Respondent.

8. Regarding the Form CR101 served by the Respondent, Ms. Yip claimed that it should serve as a notice under the break clause of the tenancy agreement for the premises.

9. The Applicant admitted that he had considered to agree a rent of $16,000 with the Respondent on condition that the Respondent were to make good the premises. However, since the Respondent said that he would have no time to follow through the works, the parties had eventually agreed the rent of $14,000

Tribunal's findings and determination

10. The Tribunal has reviewed its judgment made on 2 March 2001. In paragraph (1) of the Affirmation, the Respondent claimed that the Tribunal did not take into consideration of additional information submitted on March 2, 2001. In fact, the Tribunal had completed the hearing of the evidence and submission on 16 February 2001. The hearing was adjourned to 2 March 2001 on which date a written judgment including the orders were delivered to the parties. The Tribunal should not accept further evidence at that stage.

11. In this review, the Tribunal has gone through the documents attached to the Respondent's affirmation, which was the same as the additional information the Respondent handed to the Tribunal on 2 March 2001. There were altogether 8 documents attached to the affirmation, as follows:

(1) a copy of a letter (3 pages) summarizing the history of negotiation of rents among the parties and an estate agent, and the matter of repairs and maintenance;

(2) a copy of an invoice (2 pages) dated 30 January 2001 from Leung Chan & Pang Solicitors to the Respondent which show that the former had attended to the premises by writing and receiving numerous letters to the Applicant and Messrs. Au-yeung Cheng Ho & Tin between 24/10/2000 and 23/12/2000;

(3) a copy of a letter from a neighbouring landlord Wong Sai Kit to Lands Tribunal on "repairs and maintenance of water leakage work of the premises";

(4) a copy of a letter dated March 8, 2001 from the Respondent to the Applicant, informing the Applicant that the Respondent "wish to terminate the above tenancy agreement with effect from May 15, 2001"; and

(5) a copy of a letter dated 10 March 2001 from the Applicant to the Respondent replying that "your request in termination of the tenancy agreement of the captioned premises is not accepted."

12. The Tribunal decides that the above documents are all irrelevant documents for the purpose of the original new tenancy application and the Tribunal's judgment made on 2 March 2001. As explained before, the circumstances of negotiation prior to the signing of the tenancy agreement will not change the contents of the said agreement, which was a piece of agreed document (a copy of which was produced and marked as Exhibit R1), therefore, the above document (1) is irrelevant. Similarly, the state of repairs and the dispute between the parties over the repairs will not have any bearing on (i) the interpretation of the term of the tenancy for the premises, (ii) the service of a valid notice or otherwise under the break clause of the tenancy agreement for the premises and (iii) the statutory requirement for the service of the Form CR101 under the Ordinance, which were the basis of the Tribunal's judgment of 2 March 2001. Therefore, the above documents (2) and (3) are irrelevant. Finally, since this new tenancy application made by the Applicant to the Lands Tribunal was dated 20 December, 2000, any written notice made by the parties under the tenancy agreement after that date, not to say after the Tribunal's date of judgment of 2 March 2000, must be irrelevant. Therefore, the above documents (4) and (5) are obviously irrelevant documents for the purpose of this review.

13. The Respondent did not provide any relevant new evidence or any relevant argument in support of the review application. The Tribunal decides that its original judgment and orders stand. Neither party has asked for and addressed the Tribunal on the matter of the costs of this review. In the circumstances, the Tribunal makes the following orders：

Orders

(1) The review by the Respondent be dismissed.

(2) No order as to costs.