WONG YING WAH v. YEUNG TSANG YING YING SOPHIA

LDPD 861/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 861 OF 2015

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D E C I S I O N
(Application for Leave to Appeal)

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Background

1.  This is an interlocutory application taken out by the respondent on 24 August 2015 seeking leave to appeal against my judgment handed down on 28 July 2015 (“the Judgment”) ordering the respondent to deliver vacant possession of the Premises, ie the subject premises of the application, to the applicant and to pay the outstanding rental and costs of the application.

2.  The background to the underlying proceedings and the reasons for the Judgment have already been set out in the Judgment itself and I am not minded to repeat the same here.  For convenience, I shall adopt the same abbreviations in the Judgment.

3.  In gist, this case involved a tenancy dispute with the applicant claiming against the respondent for a possession order on the ground that the respondent has failed to pay rent under the T/A since 15 March 2015 after a fire occurred at the Premises on 18 March 2015.

4.  It is very undesirable that the respondent could not attach to the interlocutory application any submission on grounds for seeking this leave to appeal until the hearing on 12 October 2015.

5.  Such grounds, basically comprising one page in contents, can be summaries as follows:

(a) I should not be in the position of an expert witness to determine whether (i) the fire happened at the Premises as described in the Judgment was caused by the switch in question being turned on for a few days, or (ii) the fire was caused by the problem of electric wiring or switch;

(b) The applicant, having been notified of the report compiled by the Fire Services Department that the fire was caused by the “defect or want of repair” of the electric wiring inside the Premises, should be liable for the rent sometimes after the fire incident in March 2015 until delivery up of vacant possession. Instead, the respondent submits that she should be liable only for any arrears of rent/mesne profits at the rate of $22,800 per month from 15 March 2015 until the date of service of the incident report compiled by the Fire Services Department dated 27 March 2015.

Cause of Fire

6.  As pointed out by Ms Michelle S T Wong of Messrs H L Wong & Co, Solicitors for the applicant, I did not venture to determine the cause of fire as alleged by the respondent. From §§42 to 47 of the Judgment, all I said was for the applicant as landlord to be responsible for any defect or want of repair, say the electric wiring inside the Premises, he must be prior informed about the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and he has failed to carry out the necessary works with reasonable expedition thereafter. The respondent provided no evidence to prove that the applicant knew of any problem of electric wiring or switch before the fire. The report of the Fire Service Department came as an aftermath.

7.  Either the respondent failed to read the Judgment properly or she misconceives the rationales as set out in the Judgment.

Liability for Rent

8.  At §49 of the Judgment, I have already stated that in law, there is in general no implied warranty on the part of a landlord that the demised premises are fit for the purpose for which they are taken and therefore, on the letting of an unfurnished dwelling house or flat, there is no implied warranty on the part of the landlord that it is in a reasonably fit state for habitation.

9.  I continued to explain that the mere fire incident at the Premises damaging basically the living room of the Premises, causing inter alia the bedrooms and the dining room to be smudged and stained save that the two air conditioners inside the bedrooms “melted” because of the high temperature should not be regarded as amounting to the frustration of the T/A. If this be the case, the respondent is liable under the T/A to continue to observe her obligation to pay rent even after the fire.

10.  Indeed, according to §§18-19 of Charmway Development Limited v Long China Engineering Limited, HCA 54/2001 (reported as [2001] 3 HKC 515) where Hon Chu J (as she then was) stated:

“18. Under the common law, the covenant to pay rent has been regarded as independent of the other covenants or obligations under a lease, including, for example, the covenant for quiet enjoyment: Edge v. Boileau and Others [1885] 16 QB 117, see also Taylor v. Webb [1937] 2 KB 283. A tenant’s obligation to pay rent is not independent upon the compliance by the landlord of its obligations under the lease.

19. There is therefore no room for the defence asserted by the plaintiff to the counterclaim, namely, it is not obliged to pay rent or the defendant is not entitled to rent by reason of the alleged breaches of the Tenancy Agreement on the defendant’s part.”

11.  At §57 of the Judgment, I explained that even if the T/A has been frustrated as agued by the respondent, by holding over the Premises or refusing to deliver vacant possession of the Premises, the respondent is liable for mesne profit from the date of frustration.

Leave to Appeal

12.  Section 11 (2) of the Lands Tribunal Ordinance (“LTO”) provides that :

“Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.”

13.  Section 11AA(6) of the LTO provides that :

“(6) Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

14.  Presumably the respondent’s appeal belongs to the “reasonable prospect of success” category and is not a matter of public interests.  Le Pichon JA in the Court of Appeal said in her judgment in SMSE v KL CACV111/2009 at §17 that :

“Reasonable prospect of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’”.

15.  As manifested above, all the respondent’s grounds for support of her application for leave to appeal have been canvassed by me in the Judgment and the respondent could provide no new points that I erred in law; more probably she has misconceived the Judgment.

Conclusion

16.  Having considered all the argument and submissions, I find the respondent has failed to show a reasonable prospect of success in the appeal on the grounds raised by the respondent and the application must be dismissed.

17.  Costs should follow the event.  In this regard, Ms Wong asks for a sum of $12,000 which I find to be excessive especially when the respondent had not provided any grounds in support of her application for leave to appeal before the hearing which eventually took place for slightly over an hour. While I appreciate that it takes time for Ms Wong to review this case/the Judgment prior to attending this hearing and communicate with the applicant, I order the respondent do pay the applicant costs of this application which is summarily assessed at $5,000.