XCHRX LI KIM FUNG v. SPARKLE CHINA LTD.

HCA2262/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2262 OF 1999

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J U D G M E N T

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The tenancy

1. By a Tenancy Agreement dated 20th March 1996, the Defendant let the premises known as 2/F, 45 Tai Po Road, Kowloon, Hong Kong to the Plaintiff for domestic purpose for a term of two years commencing from 24th April 1996. The tenancy expired by effuxion of time on 23rd April 1998. The Defendant remained as a monthly tenant thereafter. The premises is subject to Part IV of the Landlord and Tenant (Consolidation) Ordinance.

2. On 22nd November 1997, the Defendant served a notice to terminate the tenancy of the premises on 23rd May 1998. The notice was held to be null and void by the decisions of the Lands Tribunal and the Court of Appeal. The decision of the Court of Appeal was given on 22nd January 1999.

3. On 22nd April 1999, the Defendant served a further notice to terminate the tenancy of the premises on 23rd October 1999.

The subletting

4. Since the tenancy was granted, the Plaintiff had gradually subletted the whole of the premises to sub-tenants. By his own admission, he had never lived in the premises at all. He said that the subletting was with the consent of the Defendant, this is disputed but this is something that I need not be concerned with.

The complaint

5. The complaint of the Plaintiff is that the Defendant had interfered with his quiet enjoyment and possession of the premises in that since March/April 1998, the Defendant had informed the sub-tenants that the Plaintiff's tenancy had been terminated. The Defendant had collected rent directly from the sub-tenants and it had accepted surrender of the sub-tenancies and granted new tenancies to the sub-tenants.

6. The present action was commenced on 6th February 1999. On 26th April 1999, the present summons was taken out by the Plaintiff seeking an injunction to restrain the Defendant from disturbing his right of possession, use and quiet enjoyment of the premises.

Damage adequate remedy

7. Obviously, there is a serious question to be tried on whether the Defendant had committed a breach of the tenancy agreement. The only issue that I have to decide in this application is whether if the Defendant is successful at the trial, damage would be an adequate remedy for him. The answer to this question must be yes.

8. The loss of the Plaintiff will be purely monetary loss, namely, loss of rental income from the sub-tenants. The loss can easily be ascertained, namely, from the time the Plaintiff was deprived of receiving rent to the time when the tenancy was properly terminated.

9. The Plaintiff had never lived in the premises before. I would not express any view whether if a tenant is actually living in a premises and is forcibly evicted by the landlord, an injunction would lie. This will depend on the circumstances of the case, for example, whether alternative accommodation is readily available at a price that the tenant can afford. This is not one of those cases.

10. The Plaintiff submits that he will lose the marketing efforts he had made in running an apartment business : he divided the premises into eight cubicles and rent them out. Again, this is not one of those cases in which the sudden loss of a business premises may affect the goodwill and reputation of an enterprise. This is simply a subletting by the Plaintiff of the premises.

11. According to the principle in American Cynamide v. Ethicon [1975] 1 All ER 504 if damages is an adequate remedy and the Defendant is in a position to pay it, then no injunction would be granted. This must be the applicable principle in the present case. The Defendant is the owner of the premises. There is nothing to suggest that it would not be able to pay the damages.

Conclusion

12. The application is accordingly refused.