JOYFUL SPARKLE CO LTD v. NG PIK CHU t/a SHAN YAU CO

DCCJ 1881 of 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

ACTION NO. 1881 OF 2008

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BETWEEN

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JUDGMENT

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BACKGROUND

1.  On or about 17^th June 2010,  the District Court Registry received a batch of documents that include 3 pages of written document in Chinese and bears the signature of a director of the Plaintiff’s company and the company chop.   The said document reflects that the officers of the company were in the United States and they were preoccupied in personal affairs.  They would not attend the trial.  The sender also enclosed a copy of the Notice of Trial dated 11^th May 2010 issued by the Registry notifying the Parties of the trial dates fixed on 8^th July 2010. 

2.  The Plaintiff was absent at trial.   Pursuant to Order 35 rule 1(2) of the Rules of the District Court, Cap. 336, Laws of Hong Kong, this Court proceeds with the trial of the action and the counterclaim in the absence of the Plaintiff.

3.  On the question of whether I should dismiss the Plaintiff’s claim, I refer to Hong Kong Civil Procedure 2010 edition, Volume 1, paragraph 35/1/1, it states that:-

“On the other hand, if the plaintiff does not appear, but the defendant does appear at the trial, the defendant is entitled to judgment dismissing the claim, and if he has a counterclaim, he may prove such counterclaim, so far as the burden lies on him. The effect of this judgment is the same as if it were a judgment dismissing the action on the merits, i.e. the court will give the whole costs of the action and counterclaim to the defendant (Armour v Bale [1891] 2 Q.B. 233.)”

4.  Accordingly, I dismiss the Plaintiff’s claim.  The main issue for determination at trial is whether the Defendant is able to establish her counterclaim. 

COUNTERCLAIM

5.  The Defendant gave evidence on her counterclaim.  She claims a total sum of HK$83,000, HK$70,000 of which is the rental deposit and HK$13,000 is the share of the expenses in respect of the fire prevention facilities that she paid on behalf of the Plaintiff.   

6.  The Defendant’s relevant evidence can be summarised as follows:-

(1)	The Plaintiff was and is the landlord of the commercial premises known as Shop A on Ground Floor including the Yard thereof, No. 52 Bonham Strand West & No.3 Heung Hing Lane, Hong Kong, and Shop B on Ground Floor, No. 52 Bonham Strand West & No.3 Heung Hing Lane, Hong Kong, and Show Room including the Canopy on Mezzanine Floor, No.3 Heung Hing Lane, Hong Kong (“the Premises”).  The Defendant was the tenant of the Premises since about February 2000 by virtue of a written tenancy agreement.   The Defendant delivered vacant possession of the Premises on 29th February 2008.
(2)	The Plaintiff issued the writ on 6th May 2008 claiming the alleged rent deficit tracing back as early as from February 2000 to February 2008.    For example, the monthly rent between April 2000 and March 2002 should be HK$29,000 but the Defendant only paid HK$26,000 per month.  The Defendant contended that because of poor business, the Plaintiff agreed and accepted reduced rent from time to time after negotiation.
(3)	In respect of the claim for the rental deposit, she relied on two written tenancy agreements dated 17th February 2000 and 26th August 2004 respectively in which the Plaintiff acknowledged the receipt of HK$58,000 as the rental deposit which was topped up to HK$70,000 after the monthly rent was increased.  She also produced a copy of the cheque dated 24th August 2004 showing the said top up payment.  All along, she has not received any claim for forfeiting the said deposit.
(4)	In respect of the claim for the reimbursement, she referred to a final notice issued on or about 30th June 2006 to the Defendant by the Incorporated Owners of the building (“IO”) where the Premises situates.  The IO demanded payment of HK$13,000 for the share of the expenses relating to fire prevention works of the building.  The deadline for payment is stated to be by 31st July 2006.
(5)	She asked the account clerk to send the said notice by facsimile on or about 7th July 2006 to Yu’s couple who controlled the Plaintiff.  Yu’s couple were in United States at that time.   The Defendant also sent another letter to Yu’s couple on about 28th July 2006 reminding them about the deadline, if there was no reply before the deadline, the Defendant would pay first and deduct from the rent.   She was able to reach Yu’s couple around that time who asked her to pay first.  The Defendant produced a receipt dated 1st August 2006 issued by the IO showing the said payment by the Defendant in the sum of HK$13,000.
(6)	Subsequently, Mr. Yu did not agree to deduct the said HK$13,000 from the rent.  As a result, the Plaintiff still owed the Defendant HK$13,000.

DISCUSSION

7.  I find that the Defendant is honest and reliable.  Her evidence is also supported by contemporaneous documents.   I accept her evidence.

8.  In short, the Defendant should be entitled to judgment on the counterclaim in the sum of HK$83,000.

CONCLUSION

9.  In the premises, I make the following orders:-

(1)	The Plaintiff’s claim be dismissed;
(2)	Judgment be given for the Defendant on her counterclaim against the Plaintiff.  The Plaintiff do pay HK$83,000 to the Defendant;
(3)	Intereston the said sum at half judgment rate from the date of the writ to the date of judgment, thereafter at full judgment rate until full payment;
(4)	The Plaintiff do pay the costs of the action, including the costs of the counterclaim to the Defendant with certificate for counsel.

10.  I shall proceed to conduct summary assessment on costs.  Having read the statement of costs and the submissions from the Plaintiff’s counsel.  Save as item C3 that I deducted $6,600, the rest of the items are reasonable and necessary.  I note that the total sum of solicitors’ costs and disbursement, after deducting the said $6,600, is HK$134,750.  The writ was issued in May 2008 and the trial is concluded in July 2010.  With the scale of this litigation in mind, the said amount is reasonable.  In addition, the counsel’s fee is HK$43,000, of which HK$25,000 is the brief fee and HK$18,000 is the fee for the written advice.  Mr. Ho, counsel for the Defendant has 5 years’ post-admission experience.  I am of the view that his charge is modest and reasonable.  I allow the said amount of counsel’s fee.

11.  As a result, the Plaintiff do pay the costs of the action, including the costs of the counterclaim to the Defendant with certificate for counsel assessed summarily in the sum of HK$177,750 payable by the Plaintiff to the Defendant forthwith.