PERFECT CYPRESS LTD. v. MUI PO CHU

LDPD 2367/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 2367 OF 2001

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JUDGEMENT

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Introduction

1. The Applicant is the landlord of the premises known as Flat A, 3/F, Cannon Garden, 68 King's Road, North Point, Hong Kong ("Premises"). The Respondent is a tenant of the Premises. She had previously signed with the Applicant a tenancy agreement dated 2 July 1998 and then a further tenancy agreement dated 2 July 2000 ("Tenancy Agreement"). The Applicant made the present application for repossession of the Premises on one single ground, namely, the Respondent had not paid any rent since 2 July 2001, that there had been outstanding management fees since November 1999 and also outstanding rates of HK$3,334.

2. The Tenancy Agreement is one of those Chinese standard forms that can be purchased in a stationery store. It contains the basic terms including the monthly rental would be HK$10,800, and that the term of the tenancy would be 2 years from 2 July 2000 to 1 July 2002. Clause 3 of the Tenancy Agreement provides that rent should be payable on the first day of each month.

Respondent's Case

3. On 10 September 2001, the Respondent filed a Notice of Opposition. On 8 October 2001, shortly before the present hearing, the Respondent filed with the Tribunal a letter together with a skeleton argument with documents in support. I have heard the Respondent's oral submission so that she could clarify the contents of those documents. I shall not rehearse the contents of those documents in full detail. It would suffice for me to say that the Respondent's defence can be summarized as follows :

(a) There is no provision in the Tenancy Agreement to pay management fees so the Respondent should not be responsible. On the contrary, it is clear from for example Clauses 5 and 6 of the Tenancy Agreement, the Respondent needs not to pay management fees or rates. The Respondent had therefore mistakenly overpaid 16 months of management fees in the sum of HK$40,844. Likewise she had also overpaid rates in the sum of HK$19,610.

(b) There were proceedings in the Small Claims Tribunal where the Applicant was successfully sued by the management company, one Gallant Management Services Limited ("Management Company") for management fees. There are also a variety of documents (such as for example various cheques by Perfect Cypress Limited) which show the either payment of management fees was the responsibility of the Applicant or that the Respondent should not be responsible. The Applicant had further wrongly served the Small Claims Tribunal documents on the Respondent and wasted much of her time.

(c) The Applicant was in breach of the Tenancy Agreement in failing to provide services so that there was a broken tree and mud and dirt on the broken ground outside the Premises. This is a breach of Section 119V(1) and (2) of the Landlord and Tenant (Consolidated) Ordinance Cap.7.

(d) The Applicant had conspired with the Asia Television Limited and others to try to interfere with the Respondent in her probate proceedings in the High Court. There were also other conspiracies which involved the Applicant.

4. As a result of her position, the Respondent says she should be entitled to set off the outstanding rent, management fees and rates by the following sums :-

Amount (HK$)
Overpayment of management fees	$ 40,844
Overpayment of rates	$ 19,610
Wasted time (18 hours at $1,800 per hour)	$ 32,400
	$ 92,854

5. I have carefully considered the skeleton argument made by the Respondent, her oral testimony and the documents she presented to the Tribunal, and also the evidence of the Applicant's representative, Mr. Kwok. I have noted that there is no dispute that the Respondent has not paid the Applicant the following sums :-

(a) rent since 2 July 2001 ;

(b) management fees since November 1999 ;

(c) rates amounting to HK$3,334.

Management Fees

6. Clause 6 of the Tenancy Agreement expressly provides that :-

"該樓所有之差餉概由乙方支付其他一切什費電梯費水電費泵費清潔費看更費等一概由乙方支付。"

English translation :

"[the tenant] shall be responsible for rates, all other miscellaneous charges, lift service, water, electricity, pump, cleaning and caretaker fees or charges"

7. In my judgment the Respondent if she is right that she is not liable to pay management fees, then the overpayments may be greater than the outstanding rent. However, I am not satisfied that as a matter of construction of the Tenancy Agreement in particular Clause 6 that she is not liable to pay management fees. First of all, "all other miscellaneous charges" is drafted in wide terms. The meaning of the words "all other miscellaneous charges" is qualified by other terms in the same clause, and in particular by the other terms which follow it. Those subsequent terms including "lift service" or "caretaker fees" would normally form part of management fees. Therefore it is clear that either "all other miscellaneous charges" or the words "all other miscellaneous charges, lift service, water, electricity, pump, cleaning and caretaker fees or charges" must refer to management fees. There is no doubt in my mind that on a true construction, Clause 6 requires the Respondent to pay management fees.

8. Clause 5 of the Tenancy Agreement in my view is not relevant and does not assist the Respondent:

"乙方無須交付建築費及頂手費與甲方..."

English translation:

"[The tenant] does not have to pay [the landlord] building and transfer fees..."

9 ． The Respondent had presented a variety of documents to this Tribunal to suggest that the management fees were the responsibility of the Applicant. This can be answered shortly. Those documents were either related to the relationship between the Applicant and a third party (such as the Management Company or other owners under the Deed of Mutual Covenant) or between the Respondent and a third party. They have no direct bearing on the contractual relationship between the Applicant and Respondent inter se. An example is the fact that the Management Company proceeded against the Applicant landlord does not mean the Respondent tenant is not liable to the Applicant. Documents which do not contain the name of the Respondent do not necessarily mean the Respondent is not liable.

10. I cannot find any unilateral mistake on the part of the Respondent to justify repayment of management fees or any restitutional remedies.

Rates

11. The position in relation to rates is even clearer. Clause 6 of the Tenancy Agreement expressly requires the tenant to pay rates.

Breach of Tenancy Agreement

12. The other arguments raised by the Respondent are in relation to an alleged breach of the Tenancy Agreement by the Applicant. Those arguments are in my judgment irrelevant or not substantiated. The Tenancy Agreement does not provide services by the Applicant to repair areas not within the Premises and it is quite clear that the so-called broken road was situated in a public area which is never part of the Premises. Section 119V(1) and (2) of the Landlord and Tenant (Consolidated) Ordinance merely relate to harassment in relation to occupation of the Premises and clearly does not apply in the present circumstances :

"(1) Any person who unlawfully deprives a tenant of occupation of any premises commits an offence ...

(2) Any person who with intent to cause a tenant -

(a) to give up occupation of any premises or part of premises ; or

(b) to refrain from exercising any right or pursuing any remedy in respect of any premises or part of premises,

does any act calculated to interfere with the peace or comfort of the tenant ... or persistently withdraws or withholds services reasonably required for occupation of the premises as a dwelling commits an offence".

13. In relation to the Small Claims Tribunal proceedings by the Management Company against the Applicant, I agree it was right that, since the Respondent was liable to pay the Applicant, she should be notified of those proceedings.

Conspiracy

14. I should add that I do not see any basis (evidential or otherwise) of conspiracies as alleged by the Respondent. I believe I am justified to say that the Respondent was confused by a number of irrelevant matters in these proceedings in particular her earlier probate case. Her submissions and skeleton convinced me these conspiracies were at most fantasies which cannot support a foundation of her allegations.

Conclusion

15. I therefore make the following orders :

(1) Unless the Respondent do pay the Applicant within 4 weeks the sums as stated in Paragraphs 2 to 5 below, in accordance with Section 21F of High Court Ordinance, Cap. 4, the Respondent do deliver vacant possession of the Premises to the Applicant;

(2) The Respondent do pay the Applicant all outstanding rent or mesne profit commencing from 2 July 2001 at the rate of HK$10,800 per month and continue to pay any outstanding rent due until delivery of vacant possession of the Premises by the Respondent to the Applicant;

(3) The Respondent do pay the Applicant all management fees outstanding since 1 November 1999 and continue to pay any further outstanding management fee due until delivery of vacant possession of the Premises by the Respondent to the Applicant, the management fees outstanding being at the rate of HK$948 per month from November 1999 to October 2000, and at the rate of HK$995 from November 2000;

(4) The Respondent do pay the Applicant all rates outstanding since June 2001, in the sum of HK$3,334 and continue to pay any further rates due until delivery of vacant possession of the Premises by the Respondent to the Applicant;

(5) The Respondent do pay the Applicant HK$1,000 as costs of this Action;

(6) If the Respondent elects to pay the sums now outstanding as stated in Paragraphs (2) to (5) above into court, then upon payment the Applicant do have leave to withdraw the same.