HOME EXPO (Hong Kong) LTD v. INTERNATIONAL TRADEMART COMPANY LTD

HCA 1183/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1183 OF 2014

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D E C I S I O N

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1.  This is an application by the defendant against the plaintiff for an injunction to restrain the plaintiff from remaining in occupation of certain premises in Kowloon Bay after 31 July 2014.

2.  The plaintiff is the defendant’s tenant.  The tenancy will expire on 31 July 2014.  The plaintiff has on 25 June 2014 issued this action against the defendant for various reliefs, including an order that the defendant shall renew the existing tenancy for a reasonable term at a reasonable rent.

3.  The basis of the claim is pleaded in paragraph 6 of the statement of claim, which alleges an oral representation by the defendant’s representatives to the plaintiff’s representatives made in June or July 2009 before the making of the current tenancy.  It reads:

“During the said meeting, in order to induce the plaintiff to enter into the lease of the premises, Mr Wong orally represented to Mr Hung and Dr Wong that the defendant would not let out any of the floors of the building to anyone else to conduct the same kinds of business as the plaintiff was doing (ie design and sale of furniture) during the five-year tenancy period and that the defendant would not take back the tenanted premises from the plaintiff to re-let for the conduct of the same kinds of business as the plaintiff was doing on these floors.”

4.  Paragraph 7 of the statement of claim further pleads that the plaintiff entered into the lease in reliance of this representation.  There is no allegation of any promise of renewal of tenancy upon expiry, nor is there any option to renew in the tenancy itself.  The oral representation, if indeed made, only amounts to a promise that the defendant would not derogate from the grants to be made in the tenancy.

5.  The plaintiff, apart from issuing this action, has also indicated by letter to the defendant that it would not vacate the premises upon expiry of the tenancy on 31 July unless the defendant would pay it substantial damages.

6.  It appears that the plaintiff is unhappy about the defendant’s entering into tenancies directly with some of the plaintiff’s subtenants.  These tenancies would only take effect upon the expiry of the plaintiff’s tenancy on 31 July.   I see nothing wrong in the defendant’s conduct.

7.  The defendant has filed a defence and counterclaim denying the alleged oral representation.  It further seeks an order for delivery up of the premises upon expiry of the tenancy and an injunction in terms of what I have stated above.

8.  The defendant, apart from letting parts of the premises in question to the plaintiff’s subtenants, has also let a substantial part of the premises to the Hospital Authority, which tenancy will begin on 1 September 2014.  The defendant will require the month of August to make good that part of the premises for use of the Hospital Authority.

9.  The plaintiff has asked for today’s hearing to be adjourned for 14 days so that it could file evidence in opposition.  However, the statement of claim does not disclose any reasonable cause of action.  I can see no basis or need to adjourn the defendant’s application.  I also cannot see what evidence the plaintiff can file which can be used to resist the defendant’s application as the plaintiff has not shown any reasonable cause of action in its statement of claim.  The defendant should not be delayed from the judgment sought.

10.  There is no question of balance of convenience or adequacy of damages (Yeko Trading Ltd v Chow Sai Cheong Tony & Others [2000] 2 HKC 612 at 618 and Cambridge Nursing Home (Kowloon East) Ltd v Loyal Merit Development Ltd HCA 367/2012 at paragraph 21).

11.  In the premises, I grant the defendant’s application.  I order that the plaintiff be restrained, whether by its directors, employees or agents, howsoever from staying in occupation or using any part of the premises known as the 5th and 6th Floors of Kowloon Bay International Trade and Exhibition Centre, No. 1 International Trademart Drive, Kowloon, after 31 July 2014.

12.  I order that the plaintiff do deliver up on 31 July 2014 vacant possession of the said premises, which are coloured blue on the plans annexed to the defendant’s summons dated 8 July 2014.

13.  I further order that in the event of the plaintiff’s failure to comply with the order in terms of the above paragraph, the defendant shall be entitled and at liberty to forthwith re-enter those premises as shown in blue on the said plans and repossess the same in such manner as it deems fit, including but not limited to the changing of locks.

14.  I order costs against the plaintiff with certificate for two counsel because of the importance of the matter.  I do not think the defendant should be delayed in recovering the premises, as it needs time to put the premises into a position that is fit for use as accommodation by the Hospital Authority.