AU WAI YIN, TERESA v. SOTIME LTD.

CACV 244/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 244 OF 2002

(ON APPEAL FROM DCCJ NO. 10838 OF 2000)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from the judgment of HH Judge Li given on 7 January 2002. The plaintiff's claim was for loss and damages of $78,084 together with interest and costs. The claim arose in respect of a tenancy of a flat and a carpark in Braemar Hill Mansions, North Point. The judge dismissed the plaintiff's claim. The plaintiff's appeal was dismissed at the hearing and this court said that it would give its reasons in writing which we now do.

Background

2. The defendant appointed an agent, Chesterton Petty Limited, as its agent to rent Flat C, 16/F, Block 1, Braemar Hill Mansions, Nos. 15-43 Braemar Hill Road on 1 March 2000. The agent wrote to the defendant via Taipan Management Company on 22 March 2000 with a proposal that the plaintiff should be the tenant at a monthly rent of $30,000 per month. It might be mentioned at this stage that the plaintiff is the wife of Mr Chan Chiu Kwok, who is a professional surveyor and an executive director of Chesterton Petty Limited. There were various conditions contained in the letter including several special conditions relating to work to be done in the flat including repainting. The letter was marked "Subject to Contract" and headed "Tower 1, 16C Braemar Hill Mansion, 15-43 Braemar Hill Road and one covered carpark space". The letter concluded with a space for the signature of Taipan Management Co. to signify its agreement. Two further letters were sent on the next day both again marked "Subject to Contract" but the headings included reference to one covered carpark space no. G7. None of these letters were countersigned and return. Instead there were continuing oral negotiations.

3. On 24 March, Chesterton Petty sent one month's holding deposit by a cheque from Mr Chan. A tenancy agreement dated 31 March 2000 was entered into between the parties. The first page of that agreement is formal. It identifies the premises as "16/F, Flat C, Tower 1, Braemar Hill Mansion, 15-43 Braemar Hill Road, North Point, HK" and the carpark as "G7". There is no reference to a covered carpark. The contents are listed as being four air-conditioners. Under "covenants/conditions" on the second page, clause 4(e), which related to the tenant's ability to terminate the tenancy on 30 days notice, was deleted. Specific reference is made to that in clause 6 of which reads:

"Clause 4(e) deleted at tenant's request. Tenant understands she may not terminate until expiry date."

4. Clause 5 sets out various matters, including (i) renovation of kitchen cabinets, including installation of an exhaust hood; (ii) renovation of closet in the master bedroom; and (iii) renewal of electricity main switch box and all wall sockets, and installation of additional wall sockets, which was work which had to be carried out by the tenant at her own cost. It is clear, therefore, that the tenancy agreement, and in particular the covenants and conditions, had been specifically tailored in respect of this tenancy and it was not simply a proforma document.

5. The plaintiff's claim as put forward in this court was that there was a collateral agreement that the defendant would repaint the premises in accordance with the wishes of the plaintiff to an acceptable standard and that had not been done properly. The judge rejected any notion that the terms of the tenancy agreement were not wholly contained within the written contract. In my view, he was entirely correct in this. Attempts had been made in the correspondence, which was "subject to contract", to include such provisions as special conditions. When the written contract was entered it did not contain those conditions. Indeed the fact that it contained conditions with which the plaintiff was required to comply is, in my view, indicative that that was deliberate. The judge who heard the evidence accepted the evidence on behalf of the defendant that he had not, in any event, agreed to these matters and I see no basis for disturbing that finding.

6. An attempt was made to draw some assistance from the fact that the plaintiff had abandoned her attempt to include a provision whereby she could terminate the tenancy. Again, no assistance can, in my view, be derived from that since the tenancy agreement specifically says that clause 4(e) was withdrawn at the tenant's request.

7. In respect of the carpark it was pleaded in the amended particulars of claim that it was an express term of the agreement that the car parking space shall be covered. That "agreement" was pleaded in paragraph 3 of the amended particulars of claim as being partly contained in the written tenancy agreement, partly contained in the offer letter of 23 March 2000 and partly oral. In my view, there was no basis for taking into account the pre-written agreement correspondence which was specifically made "subject to contract".

8. Before this court, it was argued that there was a representation made that the carpark was covered. In this respect the judge accepted the evidence of Mr Young, on behalf of the defendant, whom he said he considered to be a truthful witness. The specific matter which is referred to in paragraph 15 of the judgment is that Mr Young's evidence was that the plaintiff and her agents well knew before 31 March 2000 that the car parking space G7 was uncovered. Our attention was drawn to various passages in the transcript of the plaintiff's witnesses as to when they became aware that the carpark was uncovered. Those passages appear to me to be at best vague but in reality confirmed the fact that it was known that carpark G7 was uncovered. In this respect one cannot lose sight of the fact that the plaintiff's husband, who appears to have been intimately involved in the renting of the premises, was himself a qualified surveyor and an executive director of the estate agent. Moreover, it is apparent that the particular carpark was in a prominent position as regards the building and not hidden away. For these reasons, in my view, the plaintiff's claim and this appeal failed.

Hon Le Pichon JA:

9. I agree.

Hon Yuen JA:

10. I agree.