WELL HARVEST PROPERTIES LTD v. KALA RAJ SHREE

DCDT4668/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DISTRAINT NO. 4668 OF 2007

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D E C I S I O N

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1.  The plaintiff is the landlord and the defendant is the tenant of Flat 16, Tai Chi Court, 132-134 Austin Road Tsim Sha Tsui, Kowloon, (hereinafter called “the premises”).

2.  The plaintiff claimed that the defendant owed $20,467 being arrears of rent from 15 October to 30 November 2007 which were payable in advance on the first day of each and every month.  A warrant of distress was issued on 14 June 2006 in respect of the said arrears. 

3.  According to the bailiff records the warrant of distress was executed on 23 November 2007.  When the bailiff explained the purpose of the visit to the defendant and her husband they said that they could not settle the arrears of rent immediately.  On that occasion, the bailiff seized the goods and chattels at the premises.  The bailiff prepared an inventory and appraisement of the seized goods and chattels at the premises. 

4.  On the same day, on 23 November 2007, the bailiff issued a notice under section 89 of the Landlord and Tenant (Consolidation) Ordinance Cap.7 (hereinafter called “the Ordinance”) stating that the seizure of the goods and chattels contained in the inventory for the sum of $20,467 being the amount of one month and 16 days’ rent due to the plaintiff on 1 November 2007, and reminding that unless such sum together with the cost of the distress was settled within five days or an order of the court to the contrary was obtained, the seized goods and chattels would be sold on 30 November 2007.

5.  The bailiff also notified the defendant in writing that a notice of sale will be put on newspaper(s) on 29 November 2007 and she was further reminded that if payment was made on or after 29 November 2007 fees for the advertisement and auctioneer’s expenses would be incurred.  She was also given notice that security guards were on duty to secure the goods and chattels seized by the bailiff.

6.  On 28 November 2007 the defendant applied by inter partes summons returnable today before me for an order:

(a)	to postpone the auction to be held on 30 November 2007 on the basis that “I request you to give it to time little” and
(b)	for time for service of the summons to be abridged.

7.  The defendant filed an affirmation dated 28 November 2007 in support of the summons.  She accepted it was her responsibility to pay the rent of the premises.  She claimed that her husband’s business was not so good so she wanted extra time to pay the arrears.  She did not have any relative in Hong Kong but she would try to settle the rent as soon as possible. 

8.  The summons was served yesterday on the landlord at 1 pm. 

9.  It appears that from the receipt of the District Court office dated yesterday, i.e., 28 November 2007, that the defendant has paid the sum of $26,388 in settlement of the outstanding arrears of rent from 15 October 2007 to 30 November 2007 in the sum of $20,467.80, commission of $2,050, fixed costs of $25, travelling expenses of the bailiff of $7.40, guard fees of $3,612 and stamp for order for sale of $1.

10.  In the circumstances, the auction has been called off.  Today, instead of pursuing the reliefs claimed in the summons, the defendant asked for refund of all the costs and expenses other than the outstanding rent.

11.  However, under the Tenancy Agreement shown to the court by the defendant the rent in respect of the premises was expressly stated to be payable on the 1st day of each month.  There was no dispute that rent was outstanding and due when the warrant of distress was issued.  Plainly the landlord was entitled to apply for and to execute the warrant of distress under the Landlord and Tenant (Consolidation) Ordinance Cap.7 which they have done.  The costs incurred were necessary and reasonable costs associated with the execution of the warrant of distress by the bailiff.

12.  Whist the court sympathises with the personal and financial difficulties of the defendant and her family, the expenses could not be said to be improperly or unnecessarily incurred and I see no basis for refund. 

13.  In the circumstances, no order is made in respect of the defendant’s summons dated 28 November 2007 which has been superseded by the defendant’s payment.  The defendant’s application for refund of the cost and expenses is dismissed.