WU CHIEH YUN v. HIDEICHI NAKAMURA

HCMP 1805/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1805 OF 2013

(on an intended appeal from DCCJ No. 4379 of 2012)

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J U D G M E N T

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Hon Yuen JA (giving the judgment of the court):

1.  This is an application by the defendant in DCCJ 4379/2012 for leave to appeal an order of summary judgment made by Deputy District Judge Tracy Chan on 30 April 2013.

2.  On 11 July 2013 the judge refused leave to appeal.

3.  On 24 July 2013 the defendant sought leave from this court.  The plaintiff did not file any documents in opposition.  

Plaintiff’s case

4.  Essentially, the background of the matter is as follows. 

5.  The plaintiff is the landlord of a residential unit.  On 15 October 2009 the unit was let to a company (KBK) for a term of 2 years for occupation by the defendant and his family.  KBK, of which the defendant and his wife were directors, was often in arrears of rent.  When this occurred, the defendant and/or his wife paid the rent personally.  They paid a total of $140,000 to the plaintiff for rent.

6.  On 14 October 2011 KBK’s term of tenancy expired. 

7.  Before the expiry of the term, the plaintiff had indicated in email correspondence with the defendant that she was not prepared to let the unit to KBK any further.  There were then negotiations between the plaintiff and the defendant for the continued occupation of the unit by the defendant’s family. 

8.  It was the plaintiff’s case that the only agreement concluded was that the defendant was given a monthly tenancy at $23,000 a month commencing 15 October 2011 pending further negotiations.

9.  However within 2 months (i.e. by December 2011) the defendant was in arrears of rent.  No agreement was made for a tenancy for a longer term.  By 16 October 2012, the defendant’s arrears had grown to more than $96,000. 

10.  The plaintiff gave notice to terminate the monthly tenancy on 29 November 2012.

DCCJ4379/2012

11.  The next month the plaintiff issued a writ for vacant possession and for arrears of rent and mesne profits. 

12.  In his Defence and Counterclaim, the defendant alleged the following:

12.1   his wife, and not he, was the proper party to the action; 

12.2   he and his family were not occupying the unit under a monthly tenancy as his wife had entered into a tenancy commencing 5 November 2011 (sometimes mistyped as “2012" in the Defence and Counterclaim) for a term of 2 years;

12.3   he and/or his wife had paid a “security deposit” of $140,000 to the plaintiff during the period of KBK’s tenancy;

12.4   he was entitled to a set-off arising from his counterclaim for damages due to lack of repairs in the unit. 

Deputy Judge Chan’s decision

13.  In relation to the defence at 12.1, the judge held that although email correspondence of 9 October 2011 from the defendant referred to a proposal that his wife sign a new tenancy agreement, he went on to say that if he was unable to persuade his family to do so (i.e. to enter into a tenancy agreement), he personally guaranteed to pay rent at $23,000 a month from 15 October 2011 to the date when they moved out.  His expressed willingness to pay rent, coupled with the fact that no tenancy agreement was signed, was consistent with the defendant, and not his wife, being the monthly tenant.

14.  In relation to the defence at 12.2, the judge held that the defendant’s allegation of a concluded agreement for a 2-year tenancy was contradicted by his own email of 20 November 2011 (15 days after 5 November 2011, the commencement date of the alleged 2-year term) in which he was still expressing only proposals for a new tenancy.

15.1   In relation to the defence at 12.3, the judge also held that the total sum of $140,000 had been paid by the defendant and/or his wife as guarantors when KBK defaulted on payment of rent during the term of KBK’s tenancy.  Accordingly there was no sum due from the plaintiff to the defendant. 

15.2   This finding was supported by the defendant’s email of 7 October 2011, in which he referred to his wife having deposited money to “cover the balance period of my previous company’s contract” and said “pls understand that we are the one who has been forced to support the previous company’s contract with landlord, even after resignation, by paying our out of pocket money during the past two years.  And as a result of our support, may I emphasize that landlord has been fully received all the rent during full contract period already”.    

15.3   Accordingly the judge found that the sum of $140,000 was not being held by the plaintiff as a security deposit. 

16.  In relation to the defence at 12.4, the judge held that there was no obligation at law to render the unit habitable, and there was no agreement to effect repairs.  Accordingly, the defendant was not entitled to set-off any alleged damages on account of lack of repairs.   

17.  The judge held that the defendant had failed to show an arguable defence.  She accordingly ordered summary judgment in favour of the plaintiff with costs. 

Application for leave to appeal

18.  The defendant applied for leave to appeal.

19.  The judge refused leave for reasons set out in her Decision dated 11 July 2013.

20.  On 24 July 2013 the defendant issued a summons for leave to appeal, in which the only ground of appeal was that he had not been provided with “fair translation” at the hearing in April 2013.

Discussion

21.1   The defendant had run the “translation” argument when he appeared before the judge for his application for leave to appeal.  He claimed first that at the O.14 hearing, the judge had communicated with the plaintiff’s counsel in Punti which he could not understand.  He was then given the opportunity to listen to the court’s audio recording of the O.14 which showed that all submissions were in English. 

21.2   The defendant then said that what he said to the Japanese interpreter may not have been correctly translated.  He then went through his points, which had in fact been dealt with by the judge in her decision giving summary judgment.

21.3   Eventually the defendant abandoned the “translation” ground.

22.  The “translation” ground has now re-surfaced as the sole ground of appeal in his summons to this court.  The defendant claims that even though the O.14 hearing started with double translation from English-Cantonese and then Cantonese-Japanese, in the course of the hearing the English-Cantonese part was sometimes skipped, which he said caused him confusion.      

23.1   In our view, there is no merit at all in the defendant’s application.

23.2   First, if the defendant had been in any confusion, he should have raised the matter before the judge at the O.14 hearing. 

23.3   Further, having attempted to get leave to appeal on two other versions of the “translation” ground before the judge, which were demonstrated to be wrong, he had abandoned the point. 

23.4   It is clear he is now seeking to revive it again in another form. 

24.  In any event, what is important is what points he claims he could have run at the hearing had he not been “confused”.  The emails he sent to the plaintiff’s representative were in English.  They were, correctly, objectively construed by the judge.  Further, his insistence that his wife had entered into a 2-year tenancy agreement on 5 November 2011 flies in the fact of his own email 15 days later in which he was still referring to proposals for a new tenancy.

25.  In O.14 proceedings, the onus lies with the defendant to show that he has an arguable defence or a triable issue.  Clearly he failed to do so. 

Order

26.1   By reason of the matters above, we take the view that there was no merit in the application for leave to appeal. 

26.2   The application is dismissed, and pursuant to Order 59 rule 2A(8) RHC, it is ordered that no party may request this determination to be reconsidered at an oral hearing inter partes. 

26.3   Since it does not appear that the plaintiff has incurred any costs in this application, we make an order nisi that there be no order as to costs of this application.  This costs order will be final unless there is an application made within 14 days of the date appearing on this Judgment to vary the costs order.