XCHRX WIDE HARVEST INVESTMENT LTD. v. NG YUE WAH ALICE t/a WINNER VEGETARIAN RESTAURANT

HCA 12069/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 12069 OF 1998

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J U D G M E N T

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1. This is an appeal from the decision of Master Cannon given on 26th October 1998. Master Cannon ordered that pending the disposal of the application for summary judgment against the Defendant, the Defendant do pay into court pursuant to O. 29, r. 10 and 12 of the Rules of the High Court:

(1) sum of $939,348.64 within 14 days thereof; and

(2) a periodic payment of $126,289.00 per month on the first day of each calendar month from 1st November 1998,

in an interest bearing account, with costs reserved.

2. The order that was made by Master Cannon was under para 2 of the Plaintiff's summons dated 10th August 1998. Para 1 of the summons was for final judgment in the action against the Defendant for the amount claimed in the Statement of Claim together with interest thereon. The application for final judgment under O. 14 has been set down for hearing before Master Lok in Chambers on 21st January 1999 at 9:30 a.m. I am not concerned with that application for final judgment.

3. The Plaintiff is and was the registered owner of the Shops Nos. 41, 41A, 49, 50, 52 and 53 on the Upper Ground Floor of the Podium, China Hong Kong City, China Ferry Terminal, Canton Road, Kowloon ("the premises"). The Defendant is the lessee of the Plaintiff under a lease dated 10th November 1997 whereby the premises were let to the Defendant to be used for the purpose of a vegetarian restaurant for a term of three years commencing on 1st October 1997 at a monthly rental of $95,000.00, exclusive of rates and surcharges, payable in advance on the first day of each and every calendar month. As pleaded, the surcharge payable in respect of the premises was HK$31,289.00 per month.

4. Clause 5(a)(i) of the lease provided that if the rent or the surcharge reserved or interest thereon, if any, shall be unpaid for fifteen days next after any of the days on which the same ought to have been paid, it shall be lawful for the Plaintiff at any time thereafter to re-enter into and upon the premises and whereupon the lease shall absolutely determine. Clause 5(a)(ii) of the lease provided that in the event of default in payment of rent and surcharge on the date on which the same falls due for payment, the Defendant shall further pay to the Plaintiff on demand interest on the amount in arrears at the rate of 1.5% per month.

5. Apart from claiming vacant possession, the Plaintiff claims the sum of $560,481.64 as particularised in para 8 of the Statement of Claim. The monthly rent and the surcharge amount to the sum of $126,289.00 per month. The Master ordered the payment into court by the Defendant of the sum claimed, together with the amount of the monthly rent and surcharge for three further months making a total of $939,348.64.

6. The Defendant in her draft defence and in her affirmation affirmed on 22nd October 1998 relies on an oral acceptance by one Madam Chan of the Plaintiff on or about 8th April 1998 whereby it is said that she accepted the Defendant's proposal for deferred payment of the monthly rent and surcharge for an amount not exceeding three months' rent and surcharge. And this is what the Defendant has submitted to me. However, the lease by Clause 5(l) provided as follows:

"No condoning excusing or overlooking by the Lessor of any default breach or non-observance or non-performance by the Lessee at any time or times of any of the Lessee's obligations herein contained shall operate as a waiver of the Lessor's rights hereunder in respect of any continuing or subsequent default breach or non-observance or non-performance or so as to defeat or affect in any way the right of the Lessor herein in respect of any such continuing or subsequent default or breach and no waiver by the Lessor shall be inferred from or implied by anything done or admitted by the lessor unless expressed in writing and signed by the Lessor."

7. It was also provided by Clause 5(s) of the lease as follows:

"No approval by the Lessor is valid unless it is in writing and signed by the Lessor or its authorised agent."

Unfortunately for the Defendant, there is no such document in writing. I accept counsel for the Plaintiff's submission that the Defendant as lessee is bound by the provisions of the lease.

8. I have considered all the submissions of the Defendant. I am of the view that Master Cannon was correct to make the order that she did. I am satisfied that it was proper for her to order interim payment under the provisions of O. 29, r. 12. The appeal is dismissed with costs to the Plaintiff.