XCHRX BATES HONG KONG LTD. v. HO SHING SAU TONG LTD.

1995, No. A3679

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REASONS

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1. On 19 April 1995, the plaintiff issued a writ of summons against the defendant claiming damages for breach of a covenant of quiet enjoyment contained in a written tenancy dated 26 August 1993, an injunction ordering the defendant to remove scaffolding, a screen and a cover surrounding the leased premises and restraining the defendant from re-erecting them, and other relief. On 27 April 1995, the plaintiff issued an inter-partes summons claiming the injunctions by way of interlocutory relief. I heard that summons on 5 May 1995. I granted the interlocutory injunctions then, and said that I would hand down written reasons later. These are the reasons.

2. The tenancy agreement contains a covenant in familiar terms -

"That the tenant . . . shall peacefully hold and enjoy the said premises during the said term of tenancy without any interruption by the Landlord . . ."

3. On 25 October 1994, the plaintiff was informed by letter that the defendant intended to renovate the building in which the leased premises are situated, and that this would include replacement of the window frames in the plaintiff's premises. On 1 November 1994, the plaintiff wrote to the defendant saying - "Please be advised that I do not agree to the replacement of window frames to be undertaken in my flat as the work will cause considerable disturbance to our daily life." The defendant wrote on 2 November 1994 saying that some of the window frames were defective and needed to be replaced. On 7 November 1994, the plaintiff said that the window frames in the leased premises were not defective and did not need to be replaced. If, the plaintiff said, the replacement was for cosmetic purposes, the work should be done when the premises were vacant and "not at the expense of the peace and quiet of the tenant."

4. The defendant then proceeded with work on the building. Scaffolding and nylon nets were erected. Shortly after Chinese New Year, Mr Ho of the defendant and others visited the leased premises. Permission was sought by the defendant to enter the premises for the purpose of replacing the window frames. This was refused. Shortly after this, the exterior of the leased premises was covered with a cover of nylon sheets. This had the effect of depriving the premises of natural light and inhibiting the free flow of air. The plaintiff demanded that the cover be removed. This was done on about 8 April 1995 when the scaffolding was removed from the whole of the building, but, a day or so later, the defendant restored scaffolding around the leased premises only, with a cover a nylon sheets, so the leased premises were wholly encapsulated. This prevented natural light entering the windows and restricted the flow of air. Despite demands, the defendant has failed to remove the scaffolding and the cover.

5. None of this is contested by the defendant. It is said that it is necessary to erect the scaffolding and the cover around the leased premises, which is on the first floor, because loose particles may fall from the walls.

6. I have been shown photographs of the leased premises with the scaffolding and covered surrounding it. The exterior of the premises is completely cocooned in the scaffolding and the blue and white, and red white and blue, plastic sheeting with which we all in Hong Kong are familiar. The atmosphere created in the premises is dark, gloomy and oppressive. These are residential premises. It would be impossible to enjoy the premises in a normal way with this shell encapsulating the exterior so that little natural light penetrates and the free flow of air is restricted. This might be tolerable for a short time, but here the situation has existed for a month and there is no end in sight. The plaintiff does not want the window frames in the premises replaced and it seems that the defendant intends to keep the premises enfolded in plastic until it agrees to this. I asked Mr Lai if the plaintiff was to be expected to put up with this situation until the trial, which would be many months away. As I understood him, his response was that something would have to worked out. I put to him that surely the balance of convenience required that the shell be removed pending the trial; what possible harm would the defendant suffer? Mr Lai said that the cover could not be removed because debris might fall from the walls, and, in any event, the plaintiff should have joined the contractor for an order that it remove the offending erections. If falling debris is a problem, this can be remedied by continuing with the renovation of the wall around the premises, as has been done for the rest of the building, or other temporary precautions can be taken. For this reason, I ordered the removal within seven days. I do not accept that the contractor should have been joined. As I put to Mr Lai, this is the defendant's building, and it can order the contractor to remove the cover, or get another contractor to do so.

7. It was quite clear to me that the plaintiff has a good arguable claim that its right of enjoyment of the premises has been substantially and more than merely temporarily diminished by the defendant contrary to the covenant, that, certainly, there is a serious question to be tried and that the balance of convenience is overwhelmingly in favour of the plaintiff. Accordingly, I granted the interlocutory injunctions and ordered that costs be in the cause.