AU KIN FAN v. WONG BIK HAR

HCMP 104/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2011

(ON AN INTENDED APPEAL FROM DCCJ NO. 3929 OF 2008)

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1.  On 24 June 2006, the plaintiff (Au Kin Fan), as the landlord and the defendant (Wong Bik Har), as the tenant executed a tenancy agreement in connection with the property for a term of 24 months from 1 July 2006 to 30 June 2008 at the monthly rental of $15,000. Thirty thousand dollars ($30,000) was paid by the defendant as deposit.

2.  By a letter dated 18 June 2007, the defendant purported to terminate the tenancy on 30 June 2007, on the basis that the plaintiff had refused to discuss with her repairs to the air-conditioners and the cooking stove. On 26 June 2007, the defendant, through her solicitors, returned the keys of the property saying that she had already moved out.

3.  On 14 May 2008, the plaintiff let out the property to another tenant at $18,500 per month. The plaintiff suggested that there were damages to the property when he regained its possession.

4.  The plaintiff claimed against the defendant for costs of repair to the property, damages for early termination of the tenancy as well as expenses incurred in re-letting the property.

5.  The defendant counterclaimed for the return of the deposit.

6.  The matter went before Judge S Leung in the District Court and the issues, as identified by the judge, were (1) the plaintiff’s capacity as landlord; (2) the condition of the air-conditioner and the cooking stove; (3) which party was in breach; and (4) the loss and damages.

7.  On 6 December 2010, the judge found against the defendant and awarded damages to the plaintiff in the sum of $137,829.50 with costs. The defendant sought leave to appeal from the judge, but failed. The defendant now seeks leave to appeal again.

8.  In support of the leave application, two matters are contended by the defendant; (1) the judge should not have rejected the defendant’s case that she was entitled to rescind the tenancy agreement because of the defect to the cooking stove; and (2) the plaintiff had failed to take reasonable steps to mitigate his loss.

9.  Miss Ng for the defendant emphasizes that the defendant had complained about the lack of safety device in the cooking stove, rendering its use dangerous, yet the plaintiff had never taken any step to have the cooking stove inspected. Miss Ng also suggests that the plaintiff was acting unreasonably by asking a monthly rent of $20,000 and that if he had not done so, he could have rented out the property earlier.

10.  On the issue of whether the cooking stove had any defect, the judge had examined the evidence of the parties carefully before making an adverse finding of facts against the defendant. The burden was of course on the defendant to establish the alleged defects. The defendant’s evidence contradicted her pleaded case and the independent evidence of Whirlpool and Shell, and was unsupported by any document.

11.  There was simply no acceptable evidence to support the defendant’s case that the cooking stove had any defect which justified her earlier termination of the tenancy agreement.

12.  The defendant had occupied the property for a year before she moved out.  Even if the cooking stove had any defect, it could not have been a valid reason for her to rescind the tenancy agreement.

13.  There could be no dispute that rent was moving up in 2007 and early 2008. One cannot ignore that when the plaintiff rented out the property to a new tenant, the rental period was likely to be two years. It would have been entirely reasonable for him for ask a higher rent. Indeed, the property was successfully rented out at the monthly rent of $18,500.

14.  The judge found that that the defendant had not adduced sufficient evidence to show that the plaintiff had not taken reasonable steps to mitigate his loss. On the facts of the case, the judge was entitled to come to such a conclusion.

15.  In my view, the defendant’s proposed appeal has no reasonable prospect of success and there is no other reason for the proposed appeal to be heard.

16.  The application for leave to appeal is therefore dismissed with costs to the plaintiff.