LAI, RAYMOND YOUMENG v. HEUNG ELIZA NGAN SIU

LDPD 1433/2017

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1433 of 2017

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REASONS FOR DECISION

(APPLICATION FOR LEAVE TO APPEAL OUT OF TIME)

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1.  This is an interlocutory application taken out by the respondent on 18 September 2017 seeking

(i) leave to appeal out of time against my judgment made on 16 August 2017 (“the Judgment”);

(ii) stay of execution of the writ of possession pending the appeal.

2.  Having heard the submissions of respondent, I dismissed the interlocutory application and said I would provide the reasons for my decisions in due course. Here are the reasons.

Background

3.  By a tenancy agreement dated 24 April 2017 both in English and Chinese (“the Tenancy Agreement”), the applicant let to the respondent Flat E, 7/F, Tower 8 (La Rossa B) Coastal Skyline, Tung Chung, New Territories (“the Premises”) for a term of 2 years from 1 May 2017 to 30 April 2019 at a monthly rent of $21,000 inclusive of management fee, Government rates and Government rent. In Clause 5 of Schedule II to the Tenancy Agreement, it was specifically inserted as “Others” that:

“租金亦包括展商隨樓附送的設備和電器, 連同傢俬清單一份。”

4.  On 20 July 2017, the applicant filed a Notice of Application (Form 22) in Chinese for recovery of vacant possession of the Premises on the ground that the respondent had failed to pay rent since 1 July 2017 (“the Application”).

5.  The respondent did file a Notice of Opposition but stated that she could not read Chinese and had no idea of what the applicant was alleging. She also asked the Application be struck out.

Hearing on 16 August 2017

6.  When the Application was heard before me on 16 August 2017, I firstly pointed out to the respondent who was represented by her friend,  Mr Fu Chee Wai (“Mr Fu”)[1],  that both English and Chinese are official languages in Hong Kong[2] and the respondent has no ground for striking out the Application.

7.  Then I let Mr Fu explain the grounds of opposition, if any.

8.  Mr Fu then tried to suggest that all air-conditioners at the Premises did not work and there was infection of big cockroaches (up to 3 inches long). Mr Fu complained that the Premises was inhabitable.

9.  Mr Fu nevertheless conceded that because 1 July 2017 was a holiday, the respondent had forgotten to pay rent but when she requested a meeting with the applicant on 15 July 2017 to sort out the matter, the applicant did not turn up.

10.  On the other hand, the applicant rebutted that the respondent did only complain that the running of the air-conditioner inside the room was noisy. He produced his WhatsApp record with the estate agent, Mandy Ng (“Ms Ng”) who had been corresponding with him on behalf of the respondent all along. On 3 May 2017, Ms Ng stated only that:

“租客說單位還有些問題， 會直接聯絡你。 她說房間冷氣很嘈 ….”

to which the applicant responded that he would expect the respondent to contact him:

“待租客聯絡我后， 會再跟你討論 ….”

11.  And according to the WhatsApp record, the respondent had not contacted the applicant by 1 June 2017 when the latter was demanding the rent for June 2017.

12.  When the applicant chased for the rent for July 2017 on 3 July 2017, respondent replied that she was overseas and would only settle the rent on 14 July 2017. The applicant responded that it would then become too late. Up to then, there was no mentioning of the problems alleged by Mr Fu for the respondent. According to the applicant, there was no direct communication between him and the respondent before that day.

13.  Then the applicant received a letter from the respondent dated 9 July 2017 as follows:

“…. I informed you that I am presently out of Hong Kong on my annual leave and will return late on 14 July 2017…. I was unable to do the internet payment due to my having inadvertently leaving the internet bank security device at home. I have informed you before the due date as I have no intention of not honouring my commitment.

…. But since the first payment, you have been harassing me on the due date, even contacting the agent on June 1 before lunch saying that the payment had not been made. I am protected by law preventing harassment. I would also pointed out that since April 2017, (when the contract was signed) I have informed you via the agent that there are several items that need to be fixed.

1. Air conditioners –they have not been serviced and are leaking. With the present weather conditions it makes the property almost unbearable when the heat is so high.

2. Bathroom door – this has been rubbing so harshly on the stone floor, that its causing the problem of closing it when in use.

3. Television – a functioning tv was included in the price of the agreement and that has ceased to function correctly so is fact becoming unusable.

4. Master bedroom’s bathroom – consistently has a foul odour that we have tried to treat ourselves but continually returns despite daily cleaning. It would require a qualified plumber to investigate and treat that problem.

All of these were notified back in April and have yet to see any written or even verbal response to, let alone action to rectify the problems. You are correct we have an agreement, but it is not only that you will be paid for the property but that you will maintain the structure aspects and that the (sic) included electrical equipment supplied as part of the agreement continue to function.

I will be returning around 11pm on 14July and will rectify my side of the agreement by midday 15 July 2017. Can I ask when you will deal with your part of the agreement?”

14.  However, in Charmway Development Ltd v Long China Engineering Ltd [2001] 3 HKC 515 at p.519D-I, Chu J (as she then was) recited the common law principle that the covenant to pay rent is independent of the other covenants or obligations under a lease. It is generally of no defence in saying that the tenant is not obliged to pay rent or the landlord is not entitled to rent by reason of alleged breach of the tenancy agreement on the landlord’s part. The principle applied to the facts of that case where the obligation of the tenant to pay rent was not expressed to be subject to or conditional upon compliance by the landlord of its obligations thereunder. The same is true for the Tenancy Agreement.

15.  Also, 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; the intending tenant is presumed to make her own inquiries as to its condition, and, in the absence of a special stipulation, she takes the house as it stands. This is so notwithstanding that the house is, to the landlord’s knowledge, required for immediate occupation. [3]

16.  Similarly, the covenant for quiet enjoyment that may be implied by the Tenancy Agreement is not broken by the infection of cockroaches as complained by the respondent where the landlord has done nothing which might attract them or let them escape onto the demised premises. The covenant is not a warranty of fitness or habitability[4].

17.  In any event, after hearing the submissions of the parties, I made the Judgment as follows:

(1) Subject to paragraph (4) below, the respondent do deliver vacant possession of the Premises to the applicant;

(2) The respondent do pay the applicant arrears of rent/mesne profits at the rate of $21,000 per month from 1 July 2017 until delivery up of vacant possession;

(3) The respondent do pay the applicant the costs of the Application which is summarily assessed at $365;

(4) If the respondent should on or before 5 September 2017 (“Relief Expiration Date”) pay into the Tribunal all the arrears of rent/mesne profits as stated in paragraph (2) above (including all arrears of rent/mesne profits due on or before the date of payment) together with the costs referred to in paragraph 3 above, the respondent be relieved from the forfeiture incurred herein, and the lease of the Premises be reinstated;

(5) Unless otherwise ordered, all sums ordered to be paid under this judgment shall be paid into the Tribunal in cash, by cashier orders issued by banks in Hong Kong or by cheques drawn by firms of solicitors in Hong Kong, and such sums received by the Tribunal shall be released to the applicant;

Interlocutory Application dated 18 September 2017

18.  In the Affidavit attached to the Interlocutory Application dated 18 September 2017, the respondent included 3 grounds in support of her application for leave to appeal out of time:

(1) The amount that was due is not accurate; the applicant agreed at the outset of the tenancy all maintenance would be reimbursed at payment of the next month’s rent.

(2) The applicant did not attend the meeting at the Premises on 15 July 2017 and has ceased all communication since early July; and

(3) She has been awaiting the written order of the Judgment and was only notified on 13 September 2017. She made the payment on 18 September 2017.

Hearing on 6 October 2017

19.  In this hearing on 6 October 2017, Mr Fu introduced no further points and I have dismissed the leave to appeal. I decided that the respondent’s appeal had no reasonable prospect of success, and the respondent failed to satisfy me that there was some other reason “in the interests of justice” why the appeal should be heard.  

20.  There is no evidence that the applicant had agreed that the respondent was entitled to deduct any expense for maintenance at payment of the next month’s rent. By reference to the WhatsApp message recorded between the applicant and Ms Ng in April 2017, the deduction was related to certain door handles and a sprinkler in a bathroom instead of all maintenance items.

21.  As I explained on 16 August 2017, the attendance of the meeting by the applicant or its failure is neither here or there in relation to the obligation of the respondent to pay rent on time.

22.  Again, the 3rd ground of intending appeal is irrelevant as the respondent was represented by Mr Fu who had been reminded the importance of the Relief Expiration Date.

Leave to Appeal out of time

23.  By section 11(1) and (2) of the Lands Tribunal Ordinance, the Judgment dated 16 August 2017 shall be the final subject appeal to the Court of Appeal on point of law.

24.  Obviously, the grounds put forward by the respondent are not points of law.

25.  Section 11AA (6) of the Ordinance provides that:

“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.”

26.  Summing up, since the grounds stated by the respondent as the grounds of appeal were the “findings of facts” which formed the basis of the Judgment, and more importantly, were not issues in “point of law”, I cannot see how the respondent should be given the leave to appeal. 

27.  This is originally a simple application for recovery of possession and payment of outstanding rent/mesne profit.  Under the Judgment, the respondent had a relief period for payment of outstanding rent by 5 September 2017, failing which the applicant had the right to obtain vacant possession of the premises.  Since the respondent failed to pay the outstanding rent in full by the Relief Expiration Date, the applicant has been granted writ of possession of the premises on 11 September 2017.

28.  Since I did not allow the respondent the leave to appeal out of time, the consequential application by the respondent for stay of execution of possession of the premises pending appeal was therefore refused.

Costs

29.  As the applicant did not ask for costs for today, there be no order as to costs.