YU YIU KONG SAMUEL v. KOBYLANSKI, STEPHEN ANDRE

HEADNOTE

Landlord and tenant - when premises became unfit for occupation - tenant's obligation to repair - fixture or chattel - landlord's obligation to keep appliance included in demise in working order - air-conditioning unit in bedroom - assessment of damages for failure to repair - when costs do not follow event

FOR REFERENCE

DCCJ15371/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 15371 OF 2000

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J U D G M E N T

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1. The Plaintiff is the registered owner of Flat C, 35th Floor, Tower T-1, Miami Beach Towers, No. 268 Wu Chui Road, Tuen Mun, New Territories, Hong Kong. By a written Tenancy Agreement dated 28th January 2000, the Plaintiff let the flat to the Defendant for domestic purposes for a fixed term of 2 years commencing on 1st February 2000 and expiring on 31st January 2002 at the monthly rent of $6,200 (inclusive of rates and management fee). The Tenancy Agreement contained a break clause which could be exercised by the tenant upon the expiry of a period of 12 months after the commencement of the term.

2. Attached to the Tenancy Agreement was a list of furniture included in the demise. Amongst other things, a bedroom (called No. 1 Bedroom on the list) was said to be equipped with an air-conditioning unit of Hitachi make. Likewise, the living and dining room was also equipped with an air-conditioning unit of the same make.

3. The Tenancy Agreement also contained the following material terms. Under the caption "Tenant's rights, Obligations & Prohibitions" in Part II of the Tenancy Agreement, Clause 3 provided thus:

"At the Tenant's own expense to keep the interior of the said premises including window frames, glass panes, sinks, drains, pipes, water taps and other sanitary equipment all fixtures and additions thereto in good and tenantable state of repair and condition."

4. Clause 17 of Part II read:

"On the determination of the tenancy hereby created forthwith to deliver up vacant possession of the said flat to the Landlord and to yield up the said flat together with all the Landlord's fixtures and fittings therein in good tenantable repair and condition."

5. Clause 4 in Part IV of the Tenancy Agreement read:

"Should the said flat or part thereof be rendered unfit for occupation by any cause not attributable to the negligence or default of the Tenant, the rent or part thereof proportioned to the damage suffered by the said flat shall abate and cease to be payable until the said flat shall have been again rendered fit for occupation: Provided always that the Landlord shall not be required to reinstate the said flat if by reason of the condition of the premises or any local regulations or other circumstances beyond the control of the Landlord it is in the opinion of the Landlord not practicable or reasonable so to do."

6. The dispute in this case arose basically this way. The Defendant says that prior to the renting of the premises, he only had a very brief and superficial inspection of the condition of the premises. But soon he moved into the premises, he and his girlfriend, DW2, discovered that the condition in the flat was not as satisfactory as they originally thought. In short, the problems included loose paint flaking from the kitchen ceiling, the kitchen sink base unit deteriorating in condition and becoming rotten and mouldy, leak to the toilet cistern, and poor and inefficient air-conditioning to the living/dining (or lounge) area and bedroom. According to the Defendant, he mentioned all these to the Plaintiff over the telephone but at that time he thought that he could live with the condition. But as summer approached, he became worried about the air-conditioning units' efficiency. Thus he wrote to the Plaintiff by a fax dated 31st May 2000. Apart from setting out the condition in the premises complained of, which the Defendant said was of a pre-existing nature, he invited the Plaintiff to come and visit the premises as soon as possible.

7. Apparently the landlord, the Plaintiff, did not take the matter very seriously initially. But eventually in early July, it would appear that the Defendant, at the suggestion of the Plaintiff, contacted the manufacturer of the two air-conditioning units, Hitachi, for an inspection of the air-conditioning units. By a misunderstanding, the Hitachi technician who went to the premises for inspection only inspected the air-conditioning unit in the living/dining area. According to an "invoice" issued by Hitachi and apparently prepared by the technician, he commented that the compressor of the air-conditioning unit in the living/dining area had broken and its repair/replacement would cost approximately $4,000. No examination of the air-conditioning unit in the bedroom was, however, done by the technician. This result was duly conveyed by the Defendant to the Plaintiff. This, coupled with the continued complaints made by the tenant to the landlord about the condition in the premises, as well as the failure of the tenant to pay the rent for the month of July, probably prompted the Plaintiff and his wife, together with a Miss Cheuk, the estate agent who first brought about the Tenancy Agreement between the parties, to visit the premises in the evening of 19th July 2000. During the visit, the Defendant pointed out to the visitors all the complaints on site. According to the Plaintiff and the evidence of Miss Cheuk, they found the efficiency of the 2 air-conditioning units to be acceptable. But Miss Cheuk, in her evidence, did accept that even at that relatively early stage, she had been seeking to persuade the Plaintiff to replace the air-conditioning unit in the bedroom with a new one. It should be noted that the 2 units had been purchased by the Plaintiff in 1993. In other words, by the summer of 2000, the 2 units were already 7 years old.

8. After the visit, correspondence followed between the parties. The Plaintiff arranged for a general contractor/technician (Master Yau) to inspect the property on 22nd July 2000. Master Yau took a brief look at the various complaints and left. There was apparently an argument between the Plaintiff's wife and the Defendant's girlfriend, who were at the premises at the time, as to whose fault it was which led to the poor condition observed in relation to the kitchen sink and cupboard.

9. In any event, on 29th July 2000, the Plaintiff instructed Master Yau to visit the premises again and carried out repair. According to the Plaintiff, so far as the air-conditioning units were concerned, he only asked Master Yau to dismount the air-conditioning unit in the living/dining room, cleaned it (at his own shop) and reinstalled it. He initially said he did not ask Master Yau to do anything to the air-conditioning unit in the bedroom. But eventually, the Plaintiff accepted that he did ask Master Yau to inspect the air-conditioning unit in the bedroom as well. This is consistent with a fax written by the Plaintiff dated 24th July 2000 where he said "the contractor would check [this air-conditioning unit] later." So on 29th July 2000, Master Yau did some minor repairs to the leakage problems complained of, and refixed the cupboard doors in the kitchen that had fallen off. He also cleaned the air-conditioning unit in the living/dining room. As to the air-conditioning unit in the bedroom, it could not be pulled out completely from its case due to the way it was mounted on the wall, and not much could be or was done by Master Yau.

10. What happened next led directly to the dispute in the present case. At around 3 a.m. on the following day, 30th July, the air-conditioning unit in the bedroom broke down. Quite understandably, the Defendant blamed it on the Plaintiff and his contractor, Master Yau, and demanded immediate repair or replacement of the air-conditioning unit. The breaking down of the unit to some extent vindicated his complaint in this regard.

11. Further faxes were exchanged between the parties, and the atmosphere became increasingly hostile, emotional and personal. But it is quite clear from the correspondence as well as the evidence given that on 1st August 2000, the Plaintiff agreed to replace the air-conditioning unit in the bedroom. Initially, he said that he was waiting for the dimensions of the air-conditioning unit to be supplied by the Defendant, and that delayed the matter by a few days. At this juncture, it should be noted that by then, the complaint relating to the air-conditioning unit in the living/dining room had faded away. This was because after the cleaning of the unit by Master Yau, even the Defendant accepted that the unit was in an acceptable working condition. But that notwithstanding, the parties still argued amongst themselves then, as well as before me at the trial, as to whether the invoice written by the Hitachi technician was "doctored" by the Defendant and his girlfriend who, according to the Plaintiff, in effect, told the technician what to write on the invoice. In this regard, the Plaintiff produced a letter written by a sub-manager of the service department of Hitachi dated 16th February 2001 in support of his belief although the manager was not called as a witness at this trial.

12. But returning to the replacement of the air conditioning unit in the bedroom, after the dimensions of the unit were supplied by the Defendant to the Plaintiff on 3rd August 2000, the Plaintiff still did not replace the air-conditioning unit. He explained in Court that at that time he wanted to have a written assurance from the Defendant that he would not, after the replacement of the air-conditioning unit in the bedroom, pressed for the replacement of the air-conditioning unit in the living/dining room. I find this rather difficult to comprehend because by an earlier fax dated 2nd August 2000, the Defendant had already indicated that he accepted that the air-conditioning unit in the living/dining area did not warrant its replacement after the cleaning done by Master Yau. This position he repeated in his later fax dated 9th August 2000. The more important reason for the Plaintiff's refusal to honour his promise to replace the air-conditioning unit in the bedroom was, in my judgment, the Defendant's failure to pay the rent for the month of August. (After the 19th July visit, the rent for July had been paid.) In fact the Plaintiff said so in so many words in his fax dated 8th August 2000 to Miss Cheuk, the estate agent.

13. The promise to make payment of the outstanding rent for August made by the Defendant by fax on 14th August 2000 eventually led to a meeting between the parties at the office of the estate agent on 15th August 2000. By then, Miss Cheuk had already been transferred to another branch doing commercial premises. The meeting at the estate agent office took place in the presence of Miss Cheuk's successor, a Mr. Chu (PW3). That meeting was a long one lasting for several hours. It was also a most unpleasant one in which heated arguments and not so friendly words were exchanged between the Plaintiff and his wife on the one part, and the Defendant on the other. In short, the Plaintiff refused to replace the air-conditioning unit in the bedroom unless the Defendant paid him first the rent for August. On the other hand, the Defendant refused to pay the rent or the full amount thereof, unless the air-conditioning unit was replaced first. According to Mr. Chu whose evidence in this regard (subject to allowance for lapse in recollection which is understandable) I accept, he suggested to the parties that the Defendant should immediately pay the outstanding rent in full to the Plaintiff and the Plaintiff would immediately authorize him to go with the Defendant to a nearby shop to buy (on the Plaintiff's account) an air-conditioning unit for replacing the broken unit in the bedroom. According to Mr. Chu, that proposal was rejected by the Defendant.

14. So the impasse continued. No rent was paid, and no new air-conditioning unit was installed in the premises. According to the Defendant and his girlfriend whose evidence in this regard I accept, they continued to sleep on the floor of the living room, something which they had been forced to do since the breaking down of the air-conditioning unit in the bedroom in the early hours of 31st July.

15. To cut a long story short, this state of affairs continued and no rent was paid for the months of September, October and November. On 7th November 2000, the present action was commenced by the Plaintiff, seeking possession of the premises, together with arrears of rent and mesne profits. Apparently, immediately after the service of the writ on him, the Defendant vacated the premises. That he did by asking Mr. Chu of the estate agency to go up to the premises to collect the keys from him. He maintained at trial that Mr. Chu did not make any adverse comments relating to the condition of the premises although he was invited to carry out an inspection of the premises at the time when he came up to collect the keys. Mr. Chu said on oath that his only purpose of going up to the premises were to collect the keys. He was not acting for the parties for any other purpose, and that was why he did not make any comment relating to the condition of the premises. Since he was not the agent who arranged for the letting of the premises to the Defendant in the first place, he felt that he was not in a position to comment on the condition of the premises. I have no reason to doubt the evidence of Mr. Chu in this regard.

16. The condition of the premises at the time when vacant possession was delivered up in the manner set out above also forms part of the Plaintiff's complaint. According to the Plaintiff, as supported by the photographs he had taken, various items were damaged. Put another way, in vacating the premises, the Defendant as tenant did not return the same in good and tenantable condition. This forms part of the Plaintiff's claim before me although the claim is only included in a document entitled "Supplemental Statement of Claim" filed subsequent to the filing of a Defence and Counterclaim by the Defendant. At the beginning of the trial, I gave leave, with the consent of the Defendant, to the Plaintiff to include the summary of claim set out in his "Supplemental Statement of Claim" (which should properly be regarded as a reply and defence to counterclaim) as part of his original claim. Technically, the Statement of Claim was thus deemed by the leave I granted to have been amended accordingly. So the condition of the premises after the vacating of the same by the Defendant also forms a subject matter of adjudication before me.

17. The above narrative about the dispute between the parties is based either on the common ground between the parties or on my findings of fact, after hearing three days of evidence at the trial as well as reviewing the documentary evidence before me which was by agreement accepted as admissible evidence. I shall make further findings of fact in the following part of my judgment when it becomes necessary to do so.

Possession

18. This is no longer in issue. As I said, the premises were returned to the Plaintiff on 9th November 2000. And the Plaintiff had accepted the keys to the premises.

Arrears of rent/mesne profits

19. It is common ground that the Defendant did not pay any rent starting from August. Technically, the tenancy was either terminated on 7th November 2000 with the commencement of the present action if the Plaintiff is in the right, or on 9th of November 2000 when the Defendant vacated the premises if he is in the right. But either way, it would not affect the amount of rent and/or mesne profits due by the Defendant to the Plaintiff. The Plaintiff has calculated the amount to be $20,460 for a period of 3 months and 9 days at the rate of $6,200 per month.

20. Subject to one matter which I shall immediately turn to, the Defendant cannot have any defence to this claim. At the trial, the Defendant relied on Clause 4 in Part IV of the Tenancy Agreement already recited above and argued that because of the condition of the flat, i.e. the breaking down of the air-conditioning unit in the bedroom, the condition in the kitchen and the condition in the toilet, and I should add the complaint that the bedroom curtain had holes, the premises (or at least a part of it) were rendered unfit for occupation. (This is thus a situation akin to one where furnished premises are let in which case there will be an implied condition that the premises are fit for habitation at the commencement of the tenancy.) As a result, the Defendant says he was entitled to refuse paying rent or an abatement thereof. I think by the time of the final submission, I did not understand the Defendant to be saying that the condition warranted the total suspension of the payment obligation regarding rent. Rather he was arguing for an abatement. But regardless of the position of the Defendant, in my judgment, the condition complained of, even assuming that the landlord was responsible for it (see below), did not render the premises unfit for occupation. I do not intend to lengthen this judgment with reference to the body of case law regarding what is or what is not considered as being fit for occupation. Suffice it to say, the law only requires that "the place must be decently fit for a human being to live in": Jones v. Geen [1925] 1 KB 659, 668 per Salter J. Take the lack of air-conditioning in the bedroom, I accept that that would be quite uncomfortable to the occupants particularly when the period of time in question was summer. But we still have electric fans these days, and the premises in question was one facing the sea with an unobstructed view, situated on a high floor of a high rise building in the New Territories. The windows could be opened and the ventilation could be assisted, as I say, by an electric fan. I appreciate that the Plaintiff came from another country about 4 years ago, but that cannot be a matter attracting great, if any, weight. The matter must be looked at objectively bearing in mind the general population in this society and its standard of living. Many people, even at this day and age, still cannot afford or do not find it necessary to install air-conditioning units in their bedrooms. I think it is still within the memory of the adult generation in Hong Kong that not so many years ago domestic air-conditioning was considered by many as a piece of luxury item. But in any event, I do not consider, in my judgment, that the lack of air-conditioning in the bedroom rendered the premises or the bedroom itself unfit for occupation. The same applies to the kitchen condition. Judging from the photographs and considering the evidence before me, the condition in the kitchen was less than satisfactory. That did not, in my view, make the kitchen unfit for occupation or use. The fact remains that notwithstanding the Defendant's complaints in this regard, he and his girlfriend continued to occupy the premises (which the Defendant now says were unfit for occupation) for another 3 months since the deterioration of the situation in early August.

21. This being the case, I find that the Defendant is liable to pay the arrears of rent or mesne profits in the sum claimed, subject to - and this is an important proviso - any counterclaims which the Defendant may be able to succeed against the Plaintiff to which I now turn, and also subject to the giving of credit for the 2 months deposit in the total sum of $12,400 paid by the Defendant to the Plaintiff when the tenancy relationship was first entered into.

Air-conditioning

22. I have already mentioned above that the air-conditioning unit in the living/dining area was no longer in issue after the cleaning done by Master Yau in late July. That was accepted by the Defendant in his fax messages I already referred to above. At this trial, the unit in the living/dining area was no longer seriously relied on in support of the Defendant's case.

23. That leaves me with the air-conditioning unit in the bedroom. If the upkeep of the unit in the bedroom was the responsibility of the landlord, and if the unit was beyond repair and required replacement, but the landlord did not do so, then although as I have already held that would not by itself render the premises or the bedroom unfit for occupation, the tenant would still be entitled to compensation for the breach on the part of the landlord in relation to his obligation to upkeep the air-conditioning unit.

24. Did the Plaintiff bear the responsibility to repair the air-conditioning unit in the bedroom? I need to consider Clause 3 in Part II of the Tenancy Agreement already referred to above. This clause imposed an obligation on the part of the tenant to repair "all fixtures and additions" to the premises. Was the air-conditioning unit a "fixture" or "addition" to the premises? Again I do not want to labour this judgment with extensive reference to authorities. But in my judgment, it was not. Generally speaking, where an article is actually attached to the land or to a building, the tests to determine whether it is a chattel or a fixture are the purpose of the item and the purpose of the link between the item and the land or building, and the degree of annexation to the land or building. If the item is intended to be permanent and to afford a lasting improvement to the land or building, it will be a fixture. If the attachment is intended to be temporary and no more than necessary for the use and enjoyment of the item, it remains a chattel. See Hill & Redman's Law of Landlord and Tenant Vol. 1 para. [1665]; Elitestone Ltd. v. Morris [1997] 1 WLR 687 (HL); Goldful Way Development Ltd. v. Wellstable Development Ltd. [1999] 1 HKLRD 563. Applying these tests, I have no doubt that the air-conditioning unit in question, a window type air-conditioner, was not a fixture. Its attachment to the wall was only temporary. It could have been removed without much damage to the wall. Such an air-conditioner was no different in nature from a ceiling fan or wall-lamp. All of these items are, in my view, chattels rather than fixtures.

25. For the same reason, I do not think the air-conditioning unit was an "addition" to the premises ("in addition thereto"). It was not an addition to the premises. It was just an electrical appliance for the proper functioning of which had to be attached to the premises.

26. In any event, in my view, on a proper construction of Clause 3 in question, the obligation on the part of the tenant to keep the fixtures and additions in good and tenantable state of repair and condition did not extend to any pre-existing defect in the air-conditioning unit or disrepair through fair wear and tear or lapse of time. As pointed out by Hill & Redman, whilst it is open to the court, in construing contractual obligations on the part of tenants to repair, to strive to give effect to every word in the relevant covenants, the more common modern view is to give effect to the "good sense of the agreement" (para.[6470] - [6480]). I adopt this construction approach because otherwise, whoever happened to be the last one on the long line of tenants, whose predecessors all had had the use of this air-conditioning unit before, would have the misfortune of having to repair this aging unit, something which, in practice, could be done by buying a new one. (This would have constituted an improvement rather than repair.)

27. In this regard, I do have a document prepared by a Ron But of Sundart (M & E) Limited dated 15th August 2000 to the effect that the thermostat and the compressor of the air-conditioning unit in the bedroom were defective and that "led to overload tripping of the associated switch", and this problem was caused by normal wear and tear. The contractor recommended that it would be more cost-effective to replace the unit rather than the defective items since the compressor was a major part of the unit and given that the unit was 7 years old. Mr. But was not called as a witness before me. But as I say, the parties agreed that amongst other things, this document was admissible as evidence before me. This document had been disclosed by the Defendant for some time, the Plaintiff did not seek to adduce evidence to contradict this document, and Master Yau was not called upon to do so. On a balance of probabilities, I accept what was said in this document as setting out the true cause of the break down of the unit. In doing so, I also take into account the fact that the unit was 7 years old and had been used by various tenants before who may not have been as careful in using the unit as an owner, and the general complaint of the Defendant about the efficiency of the unit beforehand. My finding would also exonerate Master Yau of any responsibility for the breaking down of the unit after his brief inspection of the same on 29th July 2000. In my view, more likely than not, this was just a pure coincidence.

28. But this is not the end of the matter. Although as I held above, the Defendant as tenant was not obliged to repair the unit given the nature of the defect in question, it does not necessarily mean that the landlord was under a duty to do so. And if the landlord was not under a duty to do so, then there could be no counterclaim for damages, which could be used to set off against the arrears of rent and/or mesne profit due by the Defendant to the Plaintiff. To this latter question, I now turn.

29. The common law has traditionally been reluctant to imply obligations in respect of repair against a landlord where the parties had entered into a contractual relationship in which it was open to the parties to make such provision but they failed or chose not to do so. See Hill and Redman, para. [6432]. Further, as illustrated by Penn v. Gatenex Co. Ltd. [1958] 2 QB 210, in the absence of express contract, a landlord is not liable to keep fixtures included in the demise in working order. But I have already held above that the air-conditioning unit in the bedroom in the present case was not a fixture. Moreover, Penn v. Gatenex is of limited assistance here because in that case, the central refrigeration unit included as one of the fixtures of the premises there was already not in proper working order when the tenant entered into occupation (p. 222), and the "defect" complained of was not in the refrigerator as a fixture but in the plant supplying the refrigeration which was situated outside the demised premises (p. 223). And the ground for making a claim against the landlord for the repair of the refrigeration unit by the tenant in that case was the implied covenant for quiet enjoyment. In the present case, once the air-conditioning unit is not viewed as a fixture but simply as an electrical appliance hired together with the demise of the premises to the Defendant, the matter would become clearer. If somebody hired an electrical appliance from another for a term of 24 months, the hirer would be quite entitled to assume that the plant would under normal working condition and with normal maintenance and care, be able to last for the period of 24 months. No doubt, quite clearly, the tenant was not hiring a brand new air-conditioning unit, but he should not be treated as having agreed to hire a unit which would break down within several months of normal working either. Unlike the case in Penn, the air-conditioning unit was working properly at the start of the tenancy. The tenant would be quite entitled to assume that the air-conditioning unit, subject to normal maintenance, would continue to be in that condition throughout the period of hiring.

30. This being my view, in my judgment, the Plaintiff did in the present case have a positive responsibility to repair or if necessary to replace the air-conditioning unit given that the "defect" in the unit was caused by fair wear and tear and lapse of time or to put it another way, natural aging.

31. In any event, in my judgment, the agreement of the Plaintiff, made quite unequivocally at the time, i.e. 1st August 2000, to replace the air-conditioning unit in the bedroom was a binding one. That was made to compromise the dispute then arising between the two parties relating to the condition of the air-conditioning unit in the bedroom and whose responsibility it was in relation to the repair of it. In so finding that there was this agreement made, I bear in mind that the mere fact that a landlord elected to do repair work does not necessarily prove that there had been a change in the terms of the bargain or a transfer of the burden of repair: London Hospital Governors v. Jacobs [1956] 1 WLR 662, 673. But in my view everything would turn on the facts and evidence of each individual case. In the present case, there were clear oral and documentary evidence and admission that such an agreement had been made. Having made such a compromise agreement, and regardless of whether I was right or wrong above in relation to who should be responsible for repairing the unit, that would be the end of the matter. In my judgment, the Plaintiff was not entitled to disregard the agreement and insist on getting a written confirmation from the Defendant in relation to the other air-conditioning unit first before honouring the compromise. That was not part of the agreement made on 1st August 2000. In any event, such assurance had been given by the Defendant in his two faxes referred to above. Further, the non-payment of the rent of the month of August did not entitle, in my judgment, the Plaintiff not to honour this agreement. This was because there had been delays in payment of the rent in the past. In fact the rent for the month of July was not paid until 19th July. In those circumstances, once the agreement was made on 1st August 2000, the Plaintiff had to honour it within a reasonable time which would be a short one given the urgency of the matter, and the non-payment of the rent at that time would not entitle the Plaintiff not to replace the air-conditioning unit. In any event, the tenancy was not immediately forfeited after the lapse of 15 days as per the Tenancy Agreement, rather it continued until 7th November 2000 when the present action was commenced. So there was no reason for the Plaintiff not to honour his agreement by way of compromise to replace the air-conditioning unit.

32. I thus conclude, for all these reasons, whether viewed individually or cumulatively, that the Plaintiff was under an obligation to replace the air-conditioning unit in the bedroom and in breach of it he failed to do so. What was the consequence and what was the loss or compensation due to the tenant? In my view, first of all, this was not serious enough to justify the Plaintiff's not paying rent at all. Secondly, even if it were, the Defendant did not terminate the Tenancy Agreement. He continued to occupy the premises until November. Thirdly, in my view, the compensation would basically be measured, in the circumstances of the present case, by the discomfort, loss of enjoyment, and so forth on the part of the Defendant, in having no air-conditioning in the bedroom. In this regard, I take into account the season in question (summer), the nature of the affected part of the premises in question (i.e. the only bedroom in this unit of about 600 sq. ft.), the amount of rent for the whole unit per month, the cost of a brand new air-conditioning unit (estimated at around $3,000), and the general circumstances of the case. I also take into account the fact that it may not have been practicable for the Defendant to "mitigate" his loss by buying a replacement unit himself and seeking to deduct the cost from the rent due to his landlord. Whether he could do so would be doubtful. Whether he would be entitled to remove the old air-conditioning unit which belonged to his landlord would be questionable. Where he should place or store the old air-conditioning unit (after dismounting it) during the remainder of the term of the tenancy would be a problem. Further, what should he do with the new air-conditioning unit at the end of the term in case the landlord refused to recognize it as his own would yet be another problem.

33. In his submission, the Plaintiff said in effect that a reduction of rent of $200 would be reasonable. This was arrived at by estimating the market rental value of the premises without an air-conditioning unit to the bedroom at $6,000 per month. If one spreads out the cost of a brand new air-conditioning unit within 24 months (i.e. the term of the tenancy agreement) or 12 months (i.e. the minimum period for which the tenant had to stay in the premises with the benefit of the break clause), that sort of estimate would seem to be right. But on top, I should take into account the fact that this was happening to the tenant half a year after the commencement of the tenancy and it was a situation forced upon him. If he knew from the outset that there would be no air-conditioning unit to the bedroom, he might well have not rented it. For why should a tenant want to rent the premises and then run the trouble of buying an air-conditioning unit for installation in the bedroom and then having to remove it at the expiry of the term. He would have wanted to rent a similar premises with an air-conditioning unit already installed to the bedroom by his landlord.

34. Taking everything into account, and without pretending to be either scientific or very exact, I think a reduction of $1,500 per month for the months of August and September (when the weather was hot) and a sum of $1,000 for the month of October (when the weather became cooler) would be fair. For the first nine days in November, I would award a nominal sum of $100 only.

35. So in total, I am awarding the Defendant a sum of $4,100 as compensation for the lack of air-conditioning to the bedroom starting from 30th July 2000 to the time when his tenancy was terminated.

Kitchen

36. So far as the leakage is concerned, I do not accept that this was a pre-existing condition. Leakage in the present case should not have been a serious or difficult item to repair. And any pre-existing leakage must have been repaired properly by the Plaintiff prior to his letting the premises to the Defendant as the evidence suggested. In other words, I do not accept the argument of the Defendant that this was a pre-existing defect. In any event, no evidence was adduced by the Defendant, on whom the burden of proof clearly lies, regarding the true cause of the leakage.

37. Furthermore, as I already held, the kitchen complaints whether viewed by themselves or together with other defects complained of, did not render the premises unfit for occupation. Moreover, the matter in question would be caught by Clause 3 in Part II of Tenancy Agreement which specifically referred to sinks, drains, pipes and water taps. Even if I were wrong and the leakage was due to a pre-existing defect, so that the matter was not caught by Clause 3 in Part II of the Agreement, that would only mean that the Defendant as tenant need not repair the leakage. It would not follow that the landlord had the responsibility to repair it in the absence of any express provision in the Tenancy Agreement to do so.

38. As regards the cupboard condition and falling off of the cupboard doors, I do not think they were caused by any pre-existing defect as such. Either they were caused by normal use (the cupboard was an old one) or careless or excessive use. I need not make a finding on it. Suffice it to say, in my judgment, the landlord was not responsible for it. (If necessary, I would prefer Miss Cheuk's evidence in this regard, namely, that the condition of the kitchen in the suit premises at the beginning of the tenancy was acceptable and no different from that observed in the other flats in the same development, and she had never seen a similar degree of deterioration in the condition of the kitchen as she subsequently observed during the July visit.) As for the flaking paint in the ceiling of the kitchen, there was no proof by the Defendant regarding the real cause. In the absence of an express provision in the Tenancy Agreement obliging the Landlord to carry out a repair to the interior of the premises, I do not think that the Landlord can be held responsible for it. On the other hand, I do not think the tenant should be responsible for it either.

Toilet leakage

39. There is no expert evidence before me regarding the cause of the leakage. For the same reason as that applying to the kitchen, I also hold that either the matter was covered by Clause 3 of Part II of the Tenancy Agreement in which case the tenant would have to repair the leakage, or even if it was not it does not follow that the landlord would have the obligation to repair it either.

Curtain

40. Finally, I come to the question of the curtain. This complaint baffles me. I cannot see anything in the Tenancy Agreement which would oblige the landlord to replace the curtain. The holes would have been readily apparent to the naked eye during the pre-contract inspection by the tenant. Whilst the Defendant maintains that he only carried out a superficial inspection, that is neither here nor there. There was nothing to stop him from carrying out a detailed inspection of the premises (including the curtain) before he decided to sign the Tenancy Agreement. In my judgment, there is no merit in relation to this complaint.

Damaged items

41. I have already mentioned that upon recovering possession of the premises, the Plaintiff noticed various damaged items in the premises. They included the coming off of the kitchen cabinet doors, some damage to the television set, the air-conditioning unit in the bedroom, the missing bathroom shower, the coming off of the door closer of the main door, and the inability of the closet doors to close properly. The Plaintiff claims that the whole kitchen cabinet has to be replaced. He claims $8,000. In my view, only the cost for fixing the doors to the kitchen cabinet which was, according to the evidence, about 10 years old, would be justified. As for the television set, a sum of $3,600 is claimed for this old television set. The sum claimed is in my view excessive. For the air-conditioning unit in the bedroom, given my finding above, I do not think the Plaintiff is entitled to make a claim. As for the bathroom shower which was missing, there was evidence to the effect that the old one was broken and the new one was bought by the Defendant himself. So there is nothing in this complaint. For the remaining items, I think a half day's work by a carpenter would be sufficient. Taking into account as well the television set the cause of the alleged damage of which had not been established by any evidence adduced by the Plaintiff, I would award a total sum of $1,000.

Slanderous remarks made against the wife of the Plaintiff

42. The Plaintiff's case is that various slanderous remarks were made by the Defendant against his wife during the meeting at the estate agency office on 15th August 2000. The wife has suffered emotionally, psychologically and mentally as a result. He makes a claim quantified at $50,000 in respect of the mental distress, loss of income and so forth. As I pointed out to the Plaintiff during the course of the trial, apart from other difficulties regarding the possible cause of action, one fatal difficulty is the fact that the Plaintiff's wife is not a co-plaintiff in the present case. So for this reason alone, I cannot accept the Plaintiff's claim in this regard.

Conclusion

43. So in conclusion, in my judgment, the Defendant is liable to pay the Plaintiff the sum of $20,460, being the arrears of rent and/or mesne profit for the period from 1st August 2000 to 9th November 2000. The Defendant is also liable to pay the Plaintiff $1,000 for the damaged items. Further as accepted by him, the Defendant is liable to pay $24 for the outstanding water bill, $465 for the outstanding electricity bill, and $1,103 for the unpaid gas bill.

44. Also, it is implicit in my above judgment that the Defendant was in breach of the Tenancy Agreement in prematurely terminating the same. The evidence was that the Plaintiff could have rented out the premises again within 1 month. And the necessary repairs to the damaged items could be done within a week. So the Plaintiff's loss in this regard is limited to 1 month's lost rental of $6,200.

45. On the other hand, the Defendant is entitled to receive a sum of $4,100 in respect of the non-replacement of the air-conditioning unit. Further, the Plaintiff is obliged to give credit for the rental deposit in the sum of $12,400 paid by the Defendant.

46. In the circumstances, I would give a net judgment in favour of the Plaintiff against the Defendant in the sum of $12,752 (i.e. $20,460 + $6,200 + $1,000 + $24 + $465 + $1,103 - $4,100 - $12,400). Further I award interest on this sum of $12,752 at the rate of 8% per annum from the date of the Writ (7th November 2000) to the date of the judgment and thereafter at the judgment rate until full payment. Save as aforesaid, I dismiss the rest of the Plaintiff's claim and the remainder of the Defendant's counterclaim.

Costs

47. The normal rule is that costs should follow the event. But the net amount recovered by the Plaintiff is small. It would have fallen within the exclusive jurisdiction of the Small Claims Tribunal but for the fact that originally there was a claim for vacant possession. However two days after the Writ was issued, possession was delivered back to the Plaintiff. In the Small Claims Tribunal, there can be no legal representation. In fact, at an early stage of this Action, the Plaintiff became acting in person. For all those reasons, I do not see fit to make an order for costs of this action (and counterclaim) in favour of the Plaintiff, save and except the costs of the preparation and issue of the Writ together with the Statement of Claim. In relation to the Writ and Statement of Claim, they were prepared at a time when possession was still in issue. The Plaintiff should be entitled to the legal costs expended on it. But once possession was delivered up, the matter in dispute would really be within the jurisdiction of the Small Claims Tribunal. And after the filing of the Statement of Claim, the Plaintiff has been acting in person, just as he would have to do if the case were tried before the Small Claims Tribunal. So I would make an order nisi that the Defendant do pay the Plaintiff the costs of this action up to and including 9th November 2000 and thereafter there be no order as to costs. I make no order as to costs in relation to the counterclaim. This order nisi as to costs will become absolute unless either party applies within 14 days of this judgment to have the question of costs argued further before me.