ATTORNEY GENERAL v. HAPPY BIRDS LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. Notice of today's trial was duly sent to the Defendant which, however, has failed to appear. Accordingly upon the application of Mr. Hinchen for the Plaintiff I dismiss the Defendant's counterclaim.

2. The Plaintiff's claim is for outstanding rent less deposits, amounting to a balance of $159,861.20. It is apparent from the pleadings that the Defendant does not dispute that claim. What it does seek to do is to confess and avoid upon the basis of two allegations. First that the larger of the two premises rented admittedly for the known purpose of a restaurant, was unsuited and unfit for that purpose. And second that one Mr. Lo on the Plaintiff's behalf promised to let the Defendant have the use of an open terrace but that the Defendant declined permission to have it covered, thereby precluding its use for the restaurant. It is clear from the pleadings that such a representation was made and that in relation to it the rent was substantially reduced. Apparently the Plaintiff refused to allow the area to be totally covered taking the view that awnings, umbrellas or the like were quite adequate. However that may be, it is for the Defendant to establish its allegations, which it has failed to do. Upon the basis of the pleadings therefore, the Plaintiff is entitled to judgment in the sum of $159,861.20.

3. The Plaintiff also claims interest but Mr. Hinchen has simplified matters by asking for interest only from the 1st of October 1984, all the outstanding rent having become due prior to that date. In my judgment the Plaintiff is entitled to such interest which, clearly, in my view should be at the commercial rate i.e. prime plus 1%.

4. The Plaintiff also asks for costs, to which in my view it is also entitled.

5. There will be judgment for the Plaintiff accordingly.