FONG CHI CHING v. GEORGE HARPER ADAMS

LDPD 475 OF 2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No. 475 of 2005

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J U D G M E N T

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1.  These proceedings have been brought by the Applicant, the registered owner of a flat, to recover its possession and, arrears of rent and /or mesne profits.   The Respondent does not dispute he was in possession of the flat at all material times.  On the day of trial, the Respondent delivered the keys to the Applicant and made it clear to him that he had vacated the flat.  The Applicant accepted the keys. Both parties agreed possession had been delivered and the Applicant need not and did not pursue the order for possession.  The remaining claim is for arrears of rent and mesne profits.

2.  The Respondent complained generally about the owner  not keeping good maintenance of the flat.  These complaints are not defences and are not pursued.  The Respondent also complained about his harassment by persons claiming to represent the owner when they came to press him for rent. Again these incidents of harassment claimed by the Respondent did not constitute a valid defence for not paying rent.  More importantly at the trial, he did not want to give evidence to support his complaints. He was anxious that the case be concluded quickly.  He urged me to dismiss the case outright without a hearing. When I disagreed with him that this was not a proper a case to do so, he was not very pleased.

3.  Despite there is no evidence called for the defence, there is a point of defence in law which is based on indisputable facts. The Respondent argued that the latest tenancy agreement was an illegal document and that he is therefore not liable for rent payable under that tenancy agreement. He did not fame this point correctly. He is a layman, though he told me he was about to be qualified, and I have to try the utmost to assist him and to see what possible defence he could have raised on these facts. 

4.  It is the father of the Applicant who first let the flat to the Respondent. At that time the father was the registered owner. The Respondent had been continuously in possession of the flat as a tenant or as a tenant holding over until just before the commencement trial, when he delivered possession.  Before the latest tenancy agreement was entered into between the father and the Respondent, the father had conveyed the flat to his son, the Applicant. The Respondent was not informed of this change of ownership before signing of the latest agreement. The Respondent made heavy weather out of this, and contended that the tenancy agreement is illegal and therefore he should not be liable for rent under this illegal document.

5.  The Applicant gave evidence that he was studying abroad and authorised his father to deal with the tenancy matter of the flat.  This is a very natural and reasonable arrangement and I have no reasons not to accept his evidence.  There are two complications in this case. But for these two complications, the point of defence, ‘illegality’ or however named and framed, is unarguable.

6.  The first complication is the possibility of issue estoppel or res judicata, caused by the ruling in a previous case brought on the same facts by the father in his name. The Respondent claimed that the Application has been struck out on the ground that the latest tenancy agreement is illegal. The Applicant cannot assist me as to the substance of the ruling. I have to call for the transcript of the previous case (LDPD 91/2005) to ascertain what has been decided in that case.

7.  In the previous case, the father gave the same evidence as given by his son in the instant case.  The Tribunal hearing the case did not rule that the tenancy agreement was illegal. However it ruled that the father could not bring the proceedings in his own name. The father did not appeal against the ruling, did not apply for review, and did not apply to substitute the son as the Applicant.  I am powerless to reverse the ruling not made by me. The Respondent in effect complains that on the same evidence this Tribunal has previously ruled in the earlier case that he did not have to pay rent on the strength of the tenancy agreement. He argued that likewise in this case he should not be ordered to pay rent.

8.  Looking at the transcript, I find that the ruling is nothing more than the finding that the father cannot bring proceedings in his own name to recover possession or to sue for rent.  In particular it has never been ruled that the Respondent is not a tenant or by what status he has when occupying the flat.

9.  It is a clear case that the Respondent was occupying the flat as a tenant or as a tenant holding over. What I have to determine is whether the Respondent is the tenant of the son, the Applicant in this case.  The definition of landlord is given in the Landlord and Tenant (Consolidation) Ordinance.  The person who is entitled to receive rent is the landlord. The Applicant is entitled to receive rent from the Respondent after he has become the owner of the flat, especially when the Tribunal ruled in the previous case that the father could not sue in his own name.  The Applicant is therefore not estopped from bringing the present proceedings. In my judgment the tenant is the tenant of the Applicant. This finding is not inconsistent with the ruling in the previous case brought by the father. There is no question of issue estoppel or res judicata.

10.  The Respondent does not want to commit himself whether he owes that amount of rent should he be found liable. He requires the Applicant to prove his case strictly. I accept the evidence of the Applicant and find the amount claimed correct.

11.  The second complication is that no notice of entering to the tenancy agreement or to renew a tenancy agreement has been given to the Commissioner of Rating and Valuation. Therefore action to recover rent is not maintainable: section 119L(2). However failure to give such notice does not prejudice the right of the Applicant to forfeit the tenancy on ground of non-payment of rent. The date of forfeiture dates back to the date of Application. From that date, the Respondent is liable for mesne profits.  Though I cannot order the Respondent to pay the arrears of rent, I can order him to pay mesne profits from the date of service of the Application to the date of delivery of possession.  The Respondent filed his notice of opposition on 28 February 2005. The date of service must therefore be on or before that date. The fair assessment of mesne profit should be the same as rent.  I order the Respondent to pay Applicant mesne profit at the rate of $6000 per month from 28 February 2005 to 24 May 2005 and costs of $1600.