WONG CHING LING v. KHAN DAWOOD

[English Translation - 英譯本]
LDPD 317/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 317 OF 2012

_______________________

BETWEEN

_______________________

JUDGMENT

Background

1.  The Applicant is the landlord of “ROOM 1, 6/F, BLOCK A5, UNITED MANSION, 37E-37H JORDAN ROAD, JORDAN, KOWLOON” (“the premises”) and the Respondent is the tenant of the premises.

2.  On 10 February 2012, the Applicant, on the ground that the Respondent had not paid any rent since 1 November 2011, filed an application with the Lands Tribunal for possession of the premises and recovery of rent in arrears. The Applicant also sought an order for payment of mesne profits up to the day of delivery of vacant possession and costs.

3.  On 2 March 2012, as the Respondent did not file any Notice of Opposition, the Applicant filed an application with the Lands Tribunal for an order to be made in default of opposition in his favour. The Applicant averred that from 1 January 2012 till the date of the application, the Respondent had not yet paid any rent in arrears/mesne profits at the rate of $4,500 per month. The Applicant asked for an order that the Applicant recover possession of the premises, the Respondent pay all the above-mentioned sums and the Applicant’s costs.

4.  On 12 March 2012, Deputy Judge A. Kot of the Lands Tribunal, in a chamber hearing, ruled in favour of the Applicant. An order was made for the Respondent to deliver vacant possession of the premises to the Applicant. The Respondent was also ordered to pay the Applicant the rent in arrears/mesne profits at the rate of $4,500 per month for the period starting from 1 January 2012 until delivery of vacant possession of the premises. Costs order was made against the Respondent who was to pay the taxed costs of $800. If the Respondent paid into the Tribunal all the rent in arrears and costs on 24 March 2012, he would be entitled to a relief against forfeiture.  

5.  On 16 March 2012, the Respondent filed an interlocutory application for setting aside the order of the Lands Tribunal made on 12 March 2012. He also applied for leave to pay the rent in arrears and costs no later than 2 April 2012.

6.  The interlocutory application was heard in the Lands Tribunal before me on 2 April 2012. Having heard the Applicant and the Respondent in person and the evidence from both sides, I adjourned the case for a trial.

Evidence from both sides

7.  Witness for the Applicant: Mr HO TUNG CHEE (AW1). Witness for the Respondent: Mr KHAN DAWOOD the Respondent (RW1).

Undisputed facts

8.  The Applicant and the Respondent signed the Tenancy Agreement in relation to the premises on 2 July 2010.

9.  The term of the tenancy runs from 1 July 2010 to 30 June 2012 and the rent is $4,500 per month.

10.  Clause 5 of the Tenancy Agreement stipulates that during the tenancy the tenant shall settle all water charges, electricity charges, telephone charges and other similar miscellaneous charges.

11.  The Remarks of the Tenancy Agreement stipulates that

ELECTRIC FEE = 1° = $1.20

WATER FEE  = 1° = $10.00

[(Translation) Electricity Charge: 1 Unit = $1.20, Water Charge: 1 Unit = $10]

12.  The Applicant’s evidence contained a table showing that the Respondent had paid the Applicant $95,500 from 2 July 2010 to 9 February 2012. The rent from 1 July 2010 to 29 February 2012, at the rate of $4,500 per month, was $90,000 in total.

The Issue

13.  There is one issue in this case, namely, whether the Respondent was in arrears of rent in relation to the premises.

The Applicant’s evidence

14.  The Applicant compiled a table of the Respondent’s rental payment record as follows:

Rent for	Date of Payment
July, 2010	2 July 2010
August, 2010	6 August, 2010
September, 2010	15 September, 2010
October, 2010	3 November, 2010
November, 2010	3 November, 2010
December, 2010	12 January, 2011
January, 2011	7 February, 2011
February, 2011	8 March, 2011
March, 2011	13 April, 2011
April, 2011	14 May, 2011
May, 2011	17 June, 2011
June, 2011	8 July, 2011
July, 2011	9 August, 2011
August, 2011	14 September, 2011
September, 2011	11 October, 2011
October, 2011	9 February, 2011
November, 2011	9 February, 2011
December, 2011	9 February, 2011

Therefore, the Applicant was of the view that the Respondent was in arrears of rent since 1 January 2012.

15.  The Applicant believed that the following payments made by the Respondent to the Applicant, namely:

a) on 15 September 2010, $1,000;

b) on 12 January 2011, $3,500;

c) on 8 July 2011, $3,500;

d) on 17 August 2011, $1,000;

e) on 14 September 2011, $1,000;

f) on 11 October 2011, $1,000;

g) on 17 January 2012, $3,500,

totalling $14,500, were repayments for electricity and water charges owed by the Respondent to the Applicant, instead of rental payments.

16.  The Applicant alleged that each month, the Respondent was invited to view the readings on the water and electricity meters together with the Applicant. Each of the payment listed in paragraph 15 above fell short of the monthly rent of $4,500 and therefore, was payment for water and electricity charges. It was unreasonable to assume that the Respondent was only paying for the rent instead of paying for water and electricity charges as stipulated in the clause of the Tenancy Agreement.

17.  The Applicant alleged that the Respondent had consumed 12,110 units of electricity from 2 July 2010 to 9 February 2012, which was equivalent to $14,532 at the rate of $1.20 per unit. The Applicant also submitted that from 7 August 2010 to 6 December 2011, the total electricity consumption of the premises and the three adjacent rooms was 26,512 units, and the total electricity charge was $29,424.

18.  The Applicant alleged that the Respondent had consumed 910 units of water from 2 July 2010 to 9 February 2012, which was equivalent to $9,100 at the rate of $10 per unit. The Applicant also submitted that from 17 June 2010 to 22 February 2012, the total water consumption of the premises and the three adjacent rooms was 1,642 units, and the total water charge was $18,942.

19.  The Applicant alleged that from 2 July 2010 to 9 February 2012, the total water and electricity charges to be borne by the Respondent was $23,632. After deducting $14,500, the Applicant was of the view that the Respondent still owed the Applicant $9,132 being the outstanding water and electricity charges.

The Respondent’s evidence

20.  The Respondent alleged that the payment listed in paragraph 15 (a) and (b), totalling $4,500, was payment for the rent for January 2011.

21.  The Respondent produced rental slips as record, namely:

Rent for	Date of Payment
March, 2011	14 March, 2011
April, 2011	13 April, 2011
May, 2011	14 May, 2011
June, 2011	17 June, 2011
July, 2011	8 July, 2011

The dates of payment on the rental slips were inconsistent with the Application’s allegation in paragraph 14 above.

22.  The Respondent conceded that payments listed in paragraph 15 (c), (d) and (e) above were payments for water and electricity charges.

23.  The Respondent agreed that he and the Applicant did view the readings on the water and electricity meters together. However, the Applicant had never provided the Respondent with any information about the water and electricity charges. The Respondent had already paid water and electricity charges. The Respondent was of the view that since he did not have sufficient money to pay the full rent and could only afford to pay part of the rent, how he would be able to pay for water and electricity charges.

24.  The Respondent alleged that the payment listed in paragraph 15 (f) and (g) totalling $4,500 was payment for rent and he thought that the Applicant had agreed so.

My Ruling

25.  I note that the dates of payment alleged by the Applicant in paragraph 14 above are clearly inconsistent with the facts as recorded in the rental slips. Having considered all the evidence and the balance of probability, I reject the Applicant’s case and accept the Respondent’s case. The payment totalling $4,500 listed in paragraph 15 (a) and (b) above was payment for rent.

26.  I also note that the Applicant has never provided the Respondent with any information about the water and electricity charges. I reject the Applicant’s allegation that any payment made by the Respondent that fell short of the monthly rent of $4,500 was payment for water and electricity charges. I also accept the Respondent’s case that the payment totalling $4,500 listed in paragraph 15(f) and (g) above was payment for rent.

27.  I find that on 9 February 2012, the Respondent has already paid for the rent from 1 July 2010 to 29 February 2012.

28.  When Deputy Judge A. Kot of the Lands Tribunal made the order in the chamber hearing on 12 March 2012, she was not aware that the Respondent had already paid for all the rent up to 29 February 2012. It follows that Deputy Judge A Kot’s order asking the Respondent to pay the Applicant the rent in arrears/mesne profits since 1 January 2012 was based on incorrect facts, without proper grounds and cannot stand. That order should be set aside.

29.  Since I have found that the Respondent had already paid the rent from 1 July 2010 to 29 February 2012, I rule that the application filed on 10 February 2012 by the Applicant for possession of the premises and recovery of rent in arrears on the ground that the Respondent had not paid any rent is hereby dismissed.

30.  The Applicant has not sought for recovery of water and electricity charges in this case. I therefore make no ruling on the water and electricity charges owed by the Respondent. In any event, I am of the view that the method of calculating the water charge explained by the Applicant when giving evidence in court seems to be inconsistent with Regulation 47 [Prohibition of sale of water], Waterworks Regulations, Cap 102A. The method of calculating the electricity charge also seems to have omitted the issue of electricity charges subsidy.

I hereby order that:

(1)  The interlocutory application filed by the Respondent on 16 March 2012 be allowed, inter alias, allowing the setting aside of the Lands Tribunal order made on 12 March 2012.

(2)  The application filed by the Applicant for possession of the premises and recovery of rent in arrears on the ground that the Respondent had not paid any rent be dismissed.

(3)  Costs of this case, now taxed at $200, be paid by the Applicant to the Respondent.