BAIYU PROPERTY (OVERSEAS) HOLDING LTD v. MILLION UNIVERSE LTD

LDPE 1531/2019

[2020] HKLdT 31

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPE 1531 OF 2019

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REASONS FOR JUDGMENT

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1.  The Applicant seeks to recover possession, rent/mesne profits, and costs against the Respondent in respect of a property situated at 6^th Floor, Overseas Trust Bank Building, No.160 Gloucester Road, Hong Kong (“the Premises”). At the conclusion of the trial, I allowed the application for reasons to be handed down later and made the order set out in paragraph 75 below. I now hand down my reasons.

PROCEDURAL HISTORY

2.  By a tenancy agreement dated 24 September 2018 (“Tenancy Agreement”), the Applicant as the landlord let the Premises to the Respondent as the tenant for a fixed term of three years commencing from 3 September 2018 to 2 September 2021 at the rent of $250,000 per calendar month exclusive of rates and management charges.

3.  The Respondent has failed to pay rent since July 2019. The Applicant issued distraint proceedings against the Respondent on 13 August 2019 in the District Court (under DCDT 2311 of 2019) which was not proceeded with eventually.

4.  On 18 December 2019, the Applicant acting in person filed an application in the Lands Tribunal (i.e. the present proceedings) to recover from the Respondent vacant possession of the Premises, arrears of rent and other reliefs.

5.  In parallel, the Applicant instructed solicitors to issue a writ of summons in the High Court on 20 December 2019 (under HCA 2372 of 2019) to recover possession and rent of the Premises. The Respondent filed an acknowledge of service indicating the intention to contest the proceedings.

6.  As the Respondent did not file any Notice of Opposition, pursuant to Rule 15 of the Lands Tribunal Rules, Cap.17A, the Applicant obtained a judgment for possession and rent on 7 January 2020. A writ of possession was obtained by the Applicant on 18 March 2020.

7.  On 8 May 2020, the Respondent took out a summons with affidavit in support to apply for setting aside the said Rule 15 judgment and stay of execution thereof. The Applicant filed affidavit evidence in opposition.

8.  In the hearing of the summons on 18 May 2020, the Respondent’s counsel on the spot applied for adjournment of the summons sine die until disposal of the High Court action.

9.  Upon the Applicant’s confirmation that they would discontinue the High Court action forthwith to avoid duplicity of legal proceedings, I refused the Respondent’s application for adjournment of the summons and ordered, inter alia, that:-

(a)	The Rule 15 judgment dated 7 January 2020 and the writ of possession issued on 18 March 2020 be set aside;
(b)	The Respondent to file and serve their Notice of Opposition within 3 days;
(c)	The affirmation evidence already filed by the parties for the set-aside application shall stand as their respective witness statements at trial;
(d)	Supplemental/further witness statements be filed within 21 days;
(e)	The Respondent to make interim payment[1] of rent/mesne profits to the Applicant at the rate of $250,000 per month on the first day of each month until disposal of the Applicant’s application for possession, rent and other reliefs; and
(f)	The case be set down for trial.

THE RESPONDENT’S CASE

August 2018 Promise

10.  The Respondent is a limited company incorporated in Hong Kong on 15 September 2016.

11.  Prior to the letting of the Premises to the Respondent, the Premises was let out to a finance company known as Glory Sky Group (“Glory Sky”). In or around August 2018, certain members of Glory Sky was arrested by the police for having participated in London gold investment scams. After the arrests, a lady by the name of Sarah who claimed to represent Glory Sky approached the representative of the Respondent, Mr. Ha Po Kwan (“Ha”). According to Sarah, Glory Sky could no longer afford to rent the Premises and the Applicant had agreed to waive any penalties under the tenancy if a new tenant could be found to take its place. Sarah expressed Glory Sky’s desperation to exit the tenancy agreement with the Applicant and pleaded with Ha to persuade the Respondent to take up the Premises.

12.  Through Sarah, Ha was then introduced to a Mr. Chung (“Chung”) who was understood to be a representative of the Applicant.

13.  Ha and Chung then negotiated the potential lease of the Premises on several occasions over the phone.

14.  During the negotiations, Chung told Ha that:-

(a)	Glory Sky would terminate their tenancy with the Applicant which was eager to lease out the Premises and would offer to let it at the rent of $250,000 per month;
(b)	Ha pointed out that this monthly rental was far above the then prevailing market rent which should be around $200,000 to $220,000;
(c)	Chung agreed that the then prevailing market rent applicable to the Premises was around that range and said that the Applicant would nevertheless fix the monthly rental at $250,000 in order to keep up the saleable value of the Premises;
(d)	To encourage the Respondent to rent the Premises, Chung represented that if the Respondent agreed to the monthly rental of $250,000, the Applicant would allow certain rent-free periods in future upon the Respondent’s request (“August 2018 Promise”).

15.  The Respondent then engaged an estate agent, Jan Poon of Midland Commercial, as well as Messrs. Chan & Chan solicitors to execute the Tenancy Agreement.

16.  It is said that, in reliance of Chung’s representation/promise of granting future rent-free periods, the Respondent altered its position by agreeing to rent the Premises and eventually signing the formal Tenancy Agreement on 24 September 2018. By the doctrine of estoppel, it would be unjust, unfair and unconscionable for the Applicant to go back on the promise.

June 2019 Promise

17.  The Respondent duly paid the monthly rent of $250,000 since October 2018 until around June 2019, due to social and political situation, the Respondent approached Chung and requested the Applicant to honour their previous promise for rent-free periods. Chung told the Respondent that the Applicant agreed to grant further rent-free period (in other words, to waive the Respondent’s rent) (“June 2019 Promise”).

18.  It is said that in reliance of Chung’s representation/promise, the Respondent did not pay rent to the Applicant in July 2019 and in the following months with the expectation that the Applicant would not take issue with the non-payment of rent. It is alleged that the Respondent would not have done so but for the said reliance.

19.  By the doctrine of estoppel, it would be unjust, unfair and unconscionable for the Applicant to go back on the promise.

20.  It is further asserted that the June 2019 Promise has formed part of the entire tenancy agreement between the Applicant and the Respondent, and/or has replaced or amended the Tenancy Agreement to the effect that starting from July 2019, the Applicant would allow the Respondent an indefinite rent-free period.

21.  The Respondent prays for an order that the Applicant’s application for possession and rent be dismissed with costs.

THE APPLICANT’S CASE

22.  The Applicant was and is a company incorporated in British Virgin Islands and the registered owner of the Premises.

23.  At the material times, there were two staffs in the leasing team of the Applicant and its affiliates (including its sister company ASL), they are namely Miss Wong Kin Yi, Zoe (“Wong”) and Miss Ip Hau Yu (“Ip”). They were and are the main staffs in charge of and involved in the daily operations of all leasing matters of the Applicant and its affiliates. Mr Wong Pak Wai and Mr Chang Wing Yiu[2], the senior management personnel of the Applicant, carried out a supervisory role over the Applicant’s leasing matters and would be involved in affairs that require the participation or approval of the senior management.

24.  The Applicant categorically denies the existence of the alleged promises and that Chung was the Applicant’s servant, agent, representative or authorized personnel. The Applicant actually has no idea of the identity of Chung at all.

25.  On 4 August 2018, it was agreed in principle between the Applicant and its previous tenant, Prudential Global Holdings Company Limited (“Ex-tenant”), pursuant to the latter’s request, that the tenancy agreement between the parties would be surrendered.

26.  In or around early August 2018, Wong and Ip on behalf of the Applicant approached several real estate agencies in Hong Kong, including Midland Realty (Commercial) Limited (“Midland Realty”), to list the Premises for lease at about $250,000 per month.

27.  Shortly after the Premises was listed, Miss Doris Siu (“Siu”) of Midland Realty orally informed Wong by telephone that the Respondent would like to rent the Premises.

28.  On 7 August 2018, the Applicant and the Ex-tenant formally entered into a surrender agreement under which the Ex-tenant agreed, inter alia, to pay compensation of $499,392 and to deliver vacant possession of the Premises on 8 August 2018.

29.  On 14 August 2018, Law Suk Yi (“Law”) on behalf of the Respondent signed a provisional agreement for tenancy which was drafted and prepared by Midland Realty. Subsequently, Siu of Midland Realty delivered to the Applicant the Respondent’s cheque in the sum of $250,000 being the initial deposit and the provisional tenancy agreement already signed by Law. Wong then signed the provisional tenancy agreement.

30.  On 24 September 2018, Law on behalf of the Respondent signed the formal Tenancy Agreement which was delivered by Siu of Midland Realty to the Applicant. Mr Chang Wing Yiu, one of the directors of the Applicant, then signed it on behalf of the Applicant as the landlord.

31.  The tenancy had been uneventful until mid 2019.

32.  On 1 June 2019, the monthly rent for June 2019 was due and payable[3] by the Respondent but the Respondent failed and/or refused to pay the same.

33.  On 20 June 2019, the Applicant issued a debit note for July 2019 demanding payment of rent and government rates by the Respondent[4].

34.  On 1 July 2019, the monthly rent for July was due and payable by the Respondent but the Respondent failed and/or refused to pay the same.

35.  By a letter dated 12 July 2019, the Applicant through their solicitors demanded the Respondent to pay the rental arrears in the sum of $500,000 ($250,000 x 2) for June and July 2019. It was only after issuance of the demand letter that the Applicant realised the Respondent had paid the monthly rent for June 2019 on 11 July 2019 by depositing into cheque box.

36.  In short, the Respondent has remained in possession and/or occupation of the Premises without paying rent for and since July 2019 up to present.

THE TRIAL

37.  Both parties were legally represented and filed witness evidence[5]. However, the Respondent filed a Notice to Act in Person shortly before trial and turned absent from trial.

38.  Order 35, rule 1(2) of the Rules of the High Court, Cap.4A stipulates that if, when the trial is called on, one party does not appear, the judge may proceed with the trial of the action in the absence of that party. The trial was therefore proceeded with and conducted in the absence of the Respondent. The Applicant called Miss Ip Hau Yu[6] to give oral evidence.

39.  At trial, Counsel on behalf of the Applicant confirmed that they would not rely on the alleged breach of the Tenancy Agreement due to unauthorized interior alteration on the Respondent’s part as a ground for recovering vacant possession of the Premises. Claims for interest and government rates were also waived.

40.  Arguments from Counsel for the Applicant could be summarised as follows. First, whilst it is denied that any promise for rent-free period or waiver of rent has ever been made by the Applicant or its representative, even if the alleged promises were made, such promises are not legally valid and could not give rise to any form of estoppel due to lack of certainty. Secondly, the alleged promises completely contradicts the terms of the Tenancy Agreement. Parol evidence applies rendering any extrinsic evidence seeking to add or vary or contradict the Tenancy Agreement inadmissible or ought to be wholly rejected. It is also submitted that the Tenancy Agreement was the entire agreement between the parties. Promises or assurances made in the course of negotiations shall have no contractual force, Glory Gold Ltd v Star Play Development Ltd[7] was cited as the authority. Lastly, it is submitted that the exclusion clauses in the Tenancy Agreement operate to prevent the Respondent from relying on the defence of collateral warranty, Wing Siu Co Ltd v Goldquest International Ltd[8], is cited.

DISCUSSION

Parol Evidence Rule

41.  To begin with, by the parol evidence rule, if there be a contract which has been reduced to writing, verbal evidence is not allowed to be given so as to add to or subtract from, or in any manner to vary or qualify the written contract. Extrinsic evidence is, however, admissible as to the validity rather than the contents of a written contract to defeat a deed or written contract on the ground of fraud, illegality, misrepresentation, mistake or duress.[9]

42.  Turning to the facts of the present case, Clause 6.11 of the Tenancy Agreement stipulates that:

“No Warranties

(a)

This Agreement supersedes any and all previous agreements between the parties and constitutes the entire agreement among them and there are no other express terms (whether oral or in writing) or implied terms agreed between them and all representations, warranties, statements or agreements, whether made orally or in writing, prior to and simultaneously with the grant of this Agreement relating to any of the matters referred to herein are hereby waived, negated and excluded unless otherwise agreed or confirmed by the parties in writing after the date of this Agreement;

(b)

Each party acknowledges that in entering into this Agreement, it is not relying upon any representation, warranty, statement or agreement, undertaking, promise or assurance made or given by the other or any other person, whether or not in writing, at any time prior to or simultaneously with the grant of this Agreement which is not expressly set out in this Agreement. …” (emphasis added)

43.  Clause 8 of the Tenancy Agreement stipulates that:

“NO REPRESENTTAION

This Agreement sets out the full agreement between the parties hereto. No other warranties or representations have been made or given relating to the Landlord, the Tenant, the Building or the Premises or if any warranty or representation has been made the same is hereby waived.” (emphasis added)

44.  Clause 6.6(c) of the Tenancy Agreement is relevant. It stipulates that:

“No Waiver of any right, power or remedy of the Landlord and no consent by the Landlord shall:

(i)	be valid unless signed by the Landlord in writing and containing an express statement that it is a waiver pursuant to this Clause 6.6(b); or
(ii)	be inferred from or implied by anything done (including acceptance by the Landlord of Rent and/or other amounts payable under this Agreement) or omitted to be done by the Landlord unless expressed in writing and agreed by it.” (emphasis added)

45.  Clause 6.10 of the Tenancy Agreement stipulates that:

“Amendments

This Agreement may only be varied or modified by a supplemental agreement or other document signed by all the parties hereto. No provision of this Agreement may be waived, discharged or terminated orally, except only by an instrument in writing signed by the party against whom enforcement of the waiver, discharge or termination is sought.” (emphasis added)

46.  It is noted that the Tenancy Agreement was prepared and executed by the parties with the assistance of lawyer. The above clauses strongly show that the parties did intend the Tenancy Agreement to stand as a final integrated expression of what had been agreed between them in relation to the tenancy. Clauses 6.6(c) and 6.10 in particular show a clear intention on the parties that the landlord’s rights under the Tenancy Agreement (which of course encompass the right to full payment of rent throughout the term except for the first month rent-free period) shall not be waived unless the waiver is confirmed in writing and signed by the landlord, and that the Tenancy Agreement could only be varied or modified by way of a supplemental agreement or other written document signed by both the landlord and the tenant. Premised on such observations and finding, I take the view that the parol evidence rule shall apply and extrinsic evidence shall not be admitted so as to add to, subtract from or in any way vary or qualify the Tenancy Agreement.

Unproved on Facts

47.  Even assuming that I was wrong in the above analysis and that the parol evidence rule does not operate in the present case such that extrinsic evidence as to the contents of the full tenancy agreement shall be admissible, then having considered all evidence before me, I still find it hard to believe that as a matter of fact further rent-free period for an uncertain/indefinite period of time had been agreed by Chung or the Applicant in the Respondent’s favour. Here are the reasons.

48.  Clause 10 of the provisional agreement for tenancy dated 14 August 2018 signed between the parties specifies that the tenant shall be entitled to a rent-free period from 3 September 2018 to 2 October 2018 (both days inclusive).

49.  Schedule 1 of the Tenancy Agreement states that the rent-free period shall be from 3^rd September 2018 to 2^nd October 2018.

50.  The alleged promises for further rent-free period for an uncertain or indefinite period of time is plainly contradictory to what is expressly stated in both the provisional tenancy agreement and the formal Tenancy Agreement.

51.  If further rent-free period was actually promised by Chung or the Applicant in August 2018, there is no logical reason why the Respondent would not have insisted or at least asked to have such promise properly reflected in the preliminary tenancy agreement and/or the formal Tenancy Agreement in order to safeguard their interest.

52.  My second observation is the undisputed fact that on 25 August 2019, the Respondent’s staff issued an email[10] to the Applicant to request for abatement or waiver of rent, contents of the email are appended below:

“Dear Sir or Madam,

The letter is about the rental delay on 6/F Overseas Trust Bank Building, 160 Gloucester Road. Our company Arco was having an internal issue. Not only our senior management was stealing our data base, also they were intentionally destroying our business, ruining the relationships between the company with our customers, also with the devastating results that not only stealing our asset, also betraying us by persuading almost all of our employees to resigned obviously there was a huge loophole on our system that we can blame no one but ourselves, the chairman of Arco was too busy of developing the business in China over the last few months, as you know the economy in HK is different since June, and due to the improper management and the economy depression, we are facing a huge issue here.

We now sincerely asking for the permission of a gap, of a hope, allowing us to summon up, build up our team, recovering our customers, please help us get through this hardest time, we promised you after we get back our strength we will be managing the payment on time.

Please consider to lower our rent or to permit rent free period.

I look forward to hearing from you!

…”

53.  The above email did not mention the August 2018 or the June 2019 Promise at all. The contents of the email literally depict a situation where a tenant, not having the means to pay rent due to the outside factor of social turmoil and the internal factor of business mismanagement, pleaded with the landlord for indulgence and help. This is too humble a tone for a tenant who seeks to exercise their right or entitlement to further rent-free period as promised by a landlord.

54.  I have also considered the documentary proof produced by the Applicant which shows how rent reduction/waiver was normally arranged by their group of companies with other tenants. In relation to the 5th Floor of the same building which was/is owned by ASL (the Applicant’s sister company operated by the same directors and leasing officers), ASL granted a three-month rent reduction to the then tenant, Luxasia (HK) Limited (“Luxasia”). The arrangement was effected in writing by a letter dated 31 October 2019 formally signed by the Applicant and Luxasia[11] wherein the exact amount and the exact period of rent reduction are specified. The Respondent’s allegation of casual verbal agreement(s) between the parties on further rent-free period for uncertain/indefinite period of time is contrary to the usual business practice of the Applicant as evident by documentary proof.

55.  The Respondent is charged with the burden to establish the existence of the August 2018 Promise and June 2019 Promise. They have not been able to produce any proof to sustain their allegation. Even if the parol evidence rule does not operate and I am to consider evidence extrinsic to the Tenancy Agreement, by reason of the above analysis, I believe that the Applicant’s version of event is more likely to be the truth. I find as a matter of fact that no promise or representation was made by Chung or the Applicant’s representative to the Respondent for further rent-free period in addition to the rent-free period as expressed in the Tenancy Agreement.

Respondent’s Case Bad in Law

56.  Even assuming that my factual finding above was wrong and Chung did make the August 2018 Promise and June 2019 Promise in the Respondent’s favour, in my opinion, the Respondent would not be able to surmount the difficulties in running their arguments as a matter of law.

Collateral Contract

57.  It is unclear whether the Respondent predicates their case on a collateral warranty, but in any case such argument would unlikely succeed.

58.  In Glory Gold Ltd v Star Play Development Ltd[12], the plaintiff there agreed to lease the second floor of a building from the defendant for use as a Chinese restaurant. The plaintiff’s case was that the defendant made representations to it that this would be the only Chinese restaurant in the building but that the defendant then offered the third floor for lease to another Chinese restaurant. The lease contained an entire agreement clause[13] in relation to which the Court of Appeal comments that:

“The clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clauses and not elsewhere and that any promises or assurances made in the course of negotiation (which in the absence of such a clause may have effects as a collateral warranty) shall have no contractual force, save, insofar as they are reflected and given effect in that document. The clause is not merely to render evidence of the collateral warranty inadmissible in evidence but to deny what would, otherwise, constitute a collateral warranty of legal effect, see: Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyd’s Rep 611.”

59.  In Wing Siu Company Limited v Goldquest International Limited, when considering an “entire agreement clause”, Hon Ma J (as he then was) observed at para 21 that:

“The Lease was made subsequent to the alleged collateral contract. Quite apart from its terms being completely inconsistent with the existence of the alleged collateral contract, in my view, Ms Ismail is right when she says that clause 5(8) operates to prevent the Defendant from relying on this defence. Although the clause does not in terms exclude the applicability of any previous agreements or promises, I am of the view that it is sufficiently wide to cover any reliance on the alleged collateral contract. In Inntrepreneur Pub Company (GL) v East Crown Ltd [2000] 2 Lloyd’s Rep.611, Lightman J had to deal with a clause that was more or less only stated that the written agreement in that case constituted the “entire Agreement” between the parties : see 613(1). Like clause 5(8) of the Lease, there was no express exclusion of previous agreements or promises. The learned judge held, however, that the words in that case were sufficient to exclude the application of any alleged collateral contract : see 614(1) – 615(1). With respect, the reasoning of Lightman J in Inntreprreneur is compelling and I follow it. The nature of a collateral contract (or collateral warranty as it is sometimes called) is that it involves an assurance or warranty : see Chitty at paragraph 12-101. The words “representation or warranty” contained in clause 5(8) are apt in my view to cover collateral contracts.”

60.  In my opinion, the crystal clear wording in the entire agreement clauses as discussed in paragraphs 42 to 43 above effectively preclude any defence of there being a collateral contract on the granting of further rent-free period.

Promissory Estoppel

61.  As regards the doctrine of promissory estoppel raised by the Respondent, the Court of Final Appeal succinctly summarized the relevant legal principle in the case Luo Xing Juan v Estate of Hui Shui see[14] at para 55 as follows:-

“A promissory estoppel may be said to arise where (i) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (ii) one party (“the promisor”), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (“the promisee”) that the promisor will not enforce or exercise some of those rights, duties or powers; and (iii) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.”

62.  It is trite that for a promise or representation to give rise to various forms of estoppel, it must be unambiguous and unequivocal[15]. Even on the Respondent’s own case, they provided no particulars as to the length of the rent-free periods and/or the amount of rent allegedly waived by Chung on behalf of the Applicant.

63.  For the August 2018 Promise in particular, it was unclear as to upon occurrence of what event that the further rent-free period of an unspecified length shall be granted. For the June 2019 Promise in particular, the Respondent’s evidence changed in that in their Notice of Opposition and the evidence[16], it was said that Chung promised further rent-free period without specifying the duration thereof whereas in some other evidence[17] filed by the Respondent in these proceedings, it was deposed that the further rent-free period was agreed to be six months.

64.  In my view, the alleged promises by Chung in August 2018 and June 2019 is far from clear and unequivocal to found a promissory estoppel. I also seriously doubt what sort of detriment could have been suffered by the Respondent as a result of the June 2019 Promise because the only position the Respondent took in their alleged reliance of such promise was a refusal to pay rent which obviously was a detriment to the landlord rather than a detriment to the tenant.

65.  I do not think the doctrine of promissory estoppel could avail the Respondent.

Chung’s Lack of Authority

66.  In any event, even if the Respondent’s assertion about Chung’s making the August 2018 and June 2019 promises are believable (which in my view they are not), I would not hold the Applicant liable for such promises.

67.  As a matter of general principle, when a person by words or conduct represents or permits to be represented that another has authority to act on his behalf, he may be bound by the acts (which he has not authorised and has even forbidden) of that other person with respect to anyone dealing with him as agent on the faith of such representation, to the same extent as if such other person has the authority that he is represented to have, even though he has no such actual authority[18]. Such representation must be made to third party(ies) who must have reasonably relied on it[19]. An act of an agent within the scope of his apparent authority does not cease to bind his principal merely because the agent was acting fraudulently and in furtherance of his own interests[20]. Such doctrine applies to transfers of property[21]. The burden of proof is on the person alleging apparent authority.

68.  A representation by the agent himself that he has authority cannot create apparent authority in him unless the principal can be regarded as having in some way instigated or permitted it, or put the agent in a position where he appears to be authorised to make it[22]. One way in which courts have sought to validate unauthorised dispositions by agents in possession of goods or documents of title is to recognise apparent authority where the principal has entrusted the agent with indicia of title to property with some representation beyond mere parting with possession[23].

69.  Turning to the facts, the Respondent produced as evidence a name card given by Chung to Ha. I note that the name card does not bear the name of the Applicant nor any official title within the Applicant’s company or its affiliates. Essentially, none of the information or details (including the business address, company name, email address, telephone number etc.) pertaining to Chung as stated on the name card is related to the Applicant or its affiliates.

70.  On the Respondent’s own case, Chung was introduced to Ha not even by the Applicant but by someone called Sarah who claimed to be a representative of the ex-tenant[24] of the Premises. Not being a representative of the Applicant, Chung should not have the actual authority to make promises on behalf of the Applicant. I do not think Chung had the apparent authority either as there is not the slightest evidence implicating that the Applicant had in any way instigated or permitted Chung, or put Chung in a position where he appeared to be authorized, to deal with the leasing matters with the Respondent on the Applicant’s behalf.

71.  For these reasons, the alleged promises made by Chung to the Respondent even if proved shall not be legally binding on the Applicant.

CONCLUSION

72.  In conclusion, the Respondent’s case cannot be proved on facts and is bad in law. The interrelationship between the Applicant and the Respondent in respect of the lease of the Premises shall be governed by the Tenancy Agreement as formally executed.

73.  Clause 3.1(a) of the Tenancy Agreement provides that the tenant shall pay the rent in advance on the first day of each calendar month without any deduction.  Clause 6.1 provides, inter alia, that if the tenant shall fail to pay the rent after 15 days from the due date, it amounts to an event of default and the Landlord may, without prejudice to the Landlord’s other rights and remedies, at any time re-enter the premises or any part of them.

74.  The Respondent was and is in breach of the Tenancy Agreement by remaining in possession of the Premises without paying rent since July 2019 up to present.

75.  At the conclusion of the trial, I ordered inter alia that:

1.	Subject to paragraph 5 below, the Respondent do deliver vacant possession of the Premises to the Applicant;
2.	The Respondent do pay the Applicant arears of rent/mesne profits as follows:
	(1)	Balance of arrears of rent from 3 July 2019 to 2 August 2020 in the sum of $3,250,000; and
	(2)	Arrears of rent/mesne profits at the rate of $250,000 per month from 3 August 2020 until delivery up of vacant possession;
3.	The Respondent do pay the Applicant arrears of management fees at the rate of $20,800 per month from 3 July 2019 until delivery up of vacant possession;
4.	The Respondent do pay the Applicant the costs of this Application summarily assessed at $75,000;
5.	If the Respondent should on or before 4 September 2020 (“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) and the arrears of management fees as referred to in paragraph 3 above together with the costs referred to in paragraph 4 above, the Respondent be relieved from the forfeiture incurred therein, and the lease of the Premises be reinstated; and
6.	Unless otherwise ordered, all sums ordered to be paid under this judgment shall be paid into the Tribunal in cash, by EPS, 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.

76.  On costs, the Applicant was receptive to my direction for costs be summarily assessed. I considered the amount of $91,611 claimed by the Applicant a bit on the high side and allowed $75,000 after assessment.