昌興富有限公司（PERFECT CYPRESS LTD）v. 梅寶珠 (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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DECISION

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Introduction

1. On 15 October 2001 I gave judgment in favour of the Applicant, the landlord of the premises known as Flat A, 3/F, Cannon Garden, 68 King's Road, North Point, Hong Kong ("Premises") for possession of the Premises, payment of arrears of rent and management fees, and other ancillary or consequential order. The Respondent is a tenant of the Premises. On 5 November 2001, the Respondent filed the present application for a number of orders including stay of execution and setting aside of the various orders of my previous judgment.

2. The Respondent in her "summons" dated 5 November 2001 first pointed out certain arithmetic errors made in Paragraph 4 of my previous judgment. These are related entirely to the amount of the overpayment said to have been made by the Respondent. The total of those of her claims so far as they had been specified was a sum of HK$120,854. While those sums have already been the subject of a corrigenda dated 18 October 2001, the Respondent in the last part of her summons had not only confirmed those amounts stated in the corrigenda correctly represented her claim, she is now claiming an addition sum of HK$40,000 which she said represents "compensation suffered from dangerous environment of inserted broken tree and claim remedies from the landlord breach of contract". This brings her claim to a total of HK$160,854. In addition she also claims search fees in the Land Registry of HK$2,896, traffic expenses of HK$216, and costs to be taxed. The Respondent said that the implication of her claims is that if she was right then she did not have to pay the outstanding rents and other sums claimed by the Applicant. Indeed she does not have to pay any further rent or management fees and rates until the expiry of the present tenancy, and there would be a further sum of HK$31,254 which the Applicant would owe her. She asked that the Applicant be ordered to pay the HK$31,254 into court so that she could be paid that sum.

3. In support of her application the Respondent relied upon the following grounds :-

(a) Ground No. 1, namely, that the word "specified monthly rental" (訂定租金) in clause 6 of the tenancy agreement on its true construction includes in addition to rent those matters as rates, caretakers fees and all miscellaneous expenses ;

(b) Ground No. 2, namely, that in fact the "broken" road where the "broken" tree had lied outside the Premises was situated within a "private" area rather than a "public" area.

4. I should also mention that in support of her present application, the Applicant had also filed an affirmation with some 300 pages of exhibits, which may be briefly described as follows :-

(a) a Government Lease by the Government (under the name of Her Majesty Queen Elizabeth II) in favour of one Siu Ping Sheung dated 17 September 1953 (document D-1 to D-11) ;

(b) a Counterpart Agreement for Sale and Purchase of Section A of Inland Lot No. 5331 by Siu Ping Sheung in favour of one Fung Man Wan and one Lam Fung Ngor, dated 25 September 1953, and registered in the Land Registry as memorial no. 219989 (document D-12 to D-22) ;

(c) a Deed of Partition and Counterpart by Fung Man Wan and Lam Fung Ngor dated 28 April 1954 (document D-23 to D-28) ;

(d) a Deed of Grant of Easement dated 8 July 1954 by Siu Ping Sheung as grantor, and Fung Man Wan, Leung Chan Man, Fok Mo Ching, Leung Pik San as grantees (document D-30 to D-36) ;

(e) a copy of a plan which appears to be part of a memorial no. 225883 (document D-37) ;

(f) a copy of a plan showing grant of certain easements which appears to be part of a memorial no. 228996 (document D-38) ;

(g) a set of MTR Island Line approved plans of private lots affected by Tunnels (from) Tin Hau to North Point (document D-39 to D-40) ;

(h) a Plan which appears to be part of an instrument registered as memorial 225884 (document D-41- to 42) ;

(i) an Assignment dated 11 May 1991 by Ho Kwok Kwong (the executor of the Will of Ho Cheung Oi Wah) in favour of Proudearn Development Limited, and registered in the Land Registry as memorial no. 4874558 (document D-43 to D-49a) ;

(j) two Plans which appears to be part of instruments registered respectively as memorial 225881 and 225882 in the Land Registry (document D-51 to D- 53) ;

(k) 3 pages of plans which appears to be part of an instrument registered as memorial 5843715 and 5858605 in the Land Registry (document D-54 to D-57) ;

(l) a Deed of Mutual Covenant dated 1 November 1993 ("Deed of Mutual Covenant") registered in the Land Registry as memorial no. 5843715 (document D-59 to D-126) ;

(m) 3 pages of plans which appears to be part of an instrument registered as memorial 5843715 and 5858605 in the Land Registry (document D-127 to D-130) ;

(n) various land search records (taken on various dates) of the Premises, namely, Flat A, 3rd Floor, Cannon Garden, No. 68, King's Road, Hong Kong (document D-131 to D-148) ;

(o) a Settlement Monitoring Record and plans extracted from certain site investigation reports (document D-148 to D-D-179) ;

(p) photos with cross reference to various plans (document D-180 to D-194a) ;

(q) an Assignment dated 11 October 1969 by the Hong Kong and Shanghai Bank, Hong Kong (Trustee) Limited (as vendor) in favour of Lee Siu Lun (as confirmor) and Siu On Land Investment Company Limited (as purchaser) and registered in the Land Registry as memorial no. 702564 (document D-196 to D-204) ;

(r) a Deed of Covenant dated 8 February 1975 (document D-205 to D233 ;

(s) Various plans attached to certain memorials (document D-234 to D-259) ;

(t) a land search record of Space No.1 on 3rd Floor, Comfort Garden, Nos. 59/60 King's Road, Hong Kong (document D-260 to D-263) ;

(u) A floor plan and a block plan (document D-264) ;

(v) A company search record of Perfect Cypress Limited, the Applicant landlord herein (document D-265 to D-268) ;

(w) An assignment dated 23 April 1997 in favour of the Applicant (document D-268a to D- 277) ;

(x) my previous judgment and corrigenda (document D-278 to 289) ;

(y) documents relating to viewing of building plans and land search records (document D-290 to D-300).

5. Those rather bulky documents were put forward by the Respondent to show one aspect, namely, the location where the broken tree had lied was in fact a "private area". In addition, the Deed of Mutual Covenant was put forward for the purpose to support the Respondent's construction of the tenancy agreement.

Ground No. 1 : Construction of the tenancy agreement

6. I have already set out my reasons in my previous judgment on the true construction of the tenancy agreement. I do not intend to repeat them here. I am not persuaded that the further arguments now advanced by the Respondent are valid. The Deed of Mutual Covenant is of relevance to show the Applicant as owner are primarily liable to pay management fees. It does not state the position as between the landlord and the tenant.

7. There is a reference at the top of page 6 of the Respondent's present summons to contend that the Respondent was in some financial difficulty allegedly as a result of some fault on the part of a television show of the ATV. I do not consider the Respondent has shown any sufficient evidence to substantiate her allegation. I also do not regard the Applicant has anything to do with the Respondent's financial difficulty (if any).

8. There is another reference at page 6 of the Respondent's summons to contend that I was in error on the Respondent's allegation on conspiracy. The Respondent says the fact the I did not see any basis of conspiracies between the Applicant and the ATV, it does not mean that there was no such conspiracy. I should merely say that since the Respondent made the allegation of conspiracy it was for her to advance sufficient evidence, not for the Applicant to advance evidence to disapprove her allegation.

Ground No. 2 : The "broken" tree and the "broken" road

9. The Respondent in the previous hearing contended that the Applicant was acting in breach of the tenancy agreement and also section 119V(1) and (2) of the Landlord and Tenant (Consolidation) Ordinance Cap. 7. However, at the last hearing the Respondent (apart from her own bare assertions) advanced little (if any) evidence to support her allegations. She introduced certain photos which on their face showed more likely than not that the "broken" road (in fact a pedestrian path) was a road where the public would have access. The Applicant also suggested that it was a "public" area. As the Respondent did not suggest the Applicant was doing anything which was unlawful or positively withdraw any services reasonably required for occupation, Section 119V(1) and (2) of the Landlord and Tenant (Consolidation) Ordinance would not assist the Respondent. There was no allegation that the Respondent had no other access except through the "broken" road and that "broken" road could hardly be a "service" reasonably required for occupation of the Premises. The arguments advanced by the Respondent at the last hearing must be treated as either not relevant or not substantiated.

10. In the present application the Respondent introduced land search records and the title documents relating to the Premises and the "broken" road where she said there was bad fung shui because someone had put a "broken" tree into the "broken" road after she had entered the tenancy. Those title documents according to the Respondent would show in fact the lot boundary of the building (Cannon Garden) where the Premises forms part would include the "broken" road where the "broken" tree lied. The representative of the Applicant at the review hearing said the Applicant had attempted to deal with the Respondent's complaint about the "broken" tree on the "broken" road and had asked the management company to rectify the matter. The matter was in fact remedied about 4 months afterwards. The Respondent accepted there was limited period of 4 months when the "broken" tree was at the "broken" ground but said she had suffered inconvenience and bad fung shui.

11. I therefore have to examine the title documents.

The title documents

12. On the materials now before this Tribunal, and according to a Crown Lease dated 17 September 1953 the "broken" road was part of the land known as Inland Lot No. 5331 in favour of one Siu Ping Sheung ("Siu"). By an agreement dated 25 September 1953, Siu sold part of Inland Lot No. 5331, namely, Section A of Inland Lot No. 5331 to one Fung Man Wan and Lam Fung Ngor. He still owned the remaining part of Inland Lot No. 5331, namely, Remaining Portion of Lot No. 5331 By Clause 7 of that agreement dated 25 September 1953, Siu granted a right of way in favour of Fung Man Wan and Lam Fung Ngor. This right of way appears to have been identified as "right of way over the lot" on the plan attached to the agreement (document D-20) and various other plans. In the body of other title documents this right of way appears to have also been referred to as "the approach road".

13. This right of way when comparing the plans and photos, in particular document D-194a would appear to include the location where the "broken" road was situated. The land where Cannon Garden (and the Premises) situates has been described as "All Those pieces or parcels of ground in Section A of Subsection 1 of Section A of Inland Lot No. 5331, The Remaining Portion of Subsection 1 of Section A of Inland Lot No. 5331, The Remaining Portion of Section A of Inland Lot No. 5331 and Subsection 2 of Section A of Inland Lot No. 5331". This appears to be the result of further partitioning by Fung Man Wan and Lam Fung Ngor of Section A of Inland Lot No. 5331.

14. Therefore on the existing evidence it appears that the "broken" road was in fact situated at a piece of land outside the lot boundary where Cannon Garden situates. I should mention that it cannot be confirmed from the limited evidence before me whether in addition to this private right of way there is a public right of way on the same road where the "broken" road situates.

15. Having come to this conclusion I do not intend to refer to all the other title documents save to point out that the Respondent had referred me to Document D-194a to identify the location of the "broken" tree and the "broken" road. In relation to the Deed of Mutual Covenant she referred me to the meaning of "Building Common Areas" and "Building Common Facilities" which she says either or both of these two matters would include the "broken" road in question.

16. The Respondent further relied on Clause 5.1.14 of the Deed of Mutual Covenant and she said that clause would assist her. That clause provides that :-

"...no part of the Building Common Areas or of the Building Common Facilities shall be obstructed ... nor shall any refuse or other articles or things be placed or left thereon or therein ... and no owner shall do or suffer or permit to be done or otherwise cause anything in such Building Common Areas or of the Building Common Facilities which may be or become a nuisance or cause annoyance to any other owners or occupiers of the Building ... If and whenever any article or things shall be placed or left by any owner on or in any part of the Building Common Areas, then the Manager or its agents, servants, caretakers or cleaners of the Building shall have the right without giving any prior notice to the defaulting owner to remove such article or thing from such part of the Building Common Areas to another place or places as the Manager shall think fit and all costs and expenses incurred by the Manager for such removal shall be reimbursed upon demand to the Manager by the defaulting owner and the defaulting owner shall not claim against the Manager or its agents, servants, caretakers or cleaners for any loss or damage to such article or thing due to such removal. No Owner will do or suffer or permit to be done anything in such Building Common Areas as may be or become a nuisance or cause annoyance to any other Owners or occupiers of the Building".

17. The Respondent further said it was the obligation of the Manager or owners of the building to put the "broken" road right and to remove the "broken" tree. She should not be made to pay the management fees for those reinstatement works, and she did not get what she had contracted for.

18. Having heard the Respondent and considered her documents, very much the same and indeed more difficulties arise with the Respondent's case. The "broken road" appears to have situated in neighbouring land notwithstanding the previous owner of the land where Cannon Garden situates was to pay the costs of its construction and also part of the costs of repairs and maintenance. More importantly, the Respondent did not suggest the Applicant had inserted the "broken" tree into the "broken" road that had allegedly caused nuisance or inconvenience to her. Even assuming the "broken" tree and the "broken" road are within the Lot, the Deed of Mutual Covenant is a document binding the owners and the Manager inter se. Further, the Deed of Mutual Covenant in particular Clause 5.1.14 is not clear whether the owner by his own action will constitute "suffer" or "permit" nuisance or inconvenience. The Respondent said she should be treated to have suffered HK$40,000 but had advanced no evidence (such as a medical report from a psychiatrist) to prove her loss or damage.

19. I am not prepared to accept, on the present state of evidence, the Respondent has any sufficient basis on her allegations against the Applicant. I do not consider there is merit of the Respondent's case notwithstanding the fact she must have spent a lot of time and energy on this case. At its highest, the existing evidence only shows the Respondent might have been annoyed by the "broken" tree on the "broken" road. It would be a far cry for the Respondent to allege a breach of the tenancy agreement by the Applicant including breach of covenant of quiet enjoyment or nuisance.

Conclusion

20. I consider there is no merit in the Respondent's application, except that the Applicant has conceded that the Respondent should only be liable to pay rates since 1 July 2001 instead of June 2001.

21. I therefore make the following orders :

(1) Paragraph 15 (4) of the order of my judgment dated 15 October 2001 be amended to read "The Respondent do pay the Applicant all rates outstanding since 1 July 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".

(2) The Application by the Respondent dated 5 November 2001 be dismissed.

(3) There be no order as to costs of the Respondent's application for review.