ATTENWOOD CO LTD v. GOLDTOP CENTURY LTD

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 15682 & 15763 OF 2000

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JUDGMENT

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1. There are two related applications for summary judgment before me.

2. The Plaintiff was the landlord of the two premises which were the respective subject premises of the two actions before me. One of the premises is known as Unit 13 and Unit 15, 13th Floor, Grandtech Centre, No. 8, On Ping Street, Siu Lek Yuen, Shatin, New Territories, and the other premises is known as Unit 15 on the 11th Floor of the same building.

3. By two separate tenancy agreements, the Plaintiff let the premises on the 13th floor and the 11th floor to the Defendant. However, the Defendant did not pay rent for both premises starting from June 1999, and so the Plaintiff brought the two actions herein against the Defendant to claim for, inter alia, possession of the premises, unpaid rent and other related damages.

4. The Defendant does not seek to dispute the quantum of the claim and it also admits that it has not paid any rent to the Plaintiff starting from June 1999. However, the Defendant complains that there was water seeping from the walls and the ceilings in the two subject premises. It is the Defendant's case that the premises on the 12th floor of the same building was refrigerated, and so the difference in the temperature between the floors caused water to condense on the walls and ceilings of the subject premises.

5. The Plaintiff denies that it knew that the 12th floor premises was refrigerated. It is also denied that it has permitted the tenant on the 12th floor to use the premises for that purpose. Indeed, soon after the Defendant had lodged a complaint to the management office on 12 June 1999, the Plaintiff immediately took remedial measures to stop the condensation of water, and there had been no further complaint launched ever since.

6. In my judgment, the Plaintiff cannot in any way be liable for the present act of the tenant of the 12th floor premises unless the Defendant can establish one of the following;

7. It is trite law that a defendant in an Order 14 application does have a duty to establish an arguable defence. However up to this stage, the Defendant cannot produce any evidence to establish that any one of the above three conditions applies in the present case. Neither can it adduce any evidence to contradict the Plaintiff's allegation that it did not know about the presence of the refrigerated facilities. Undoubtedly, these matters relating to consent and knowledge are something which are privy to the Plaintiff and the tenant of the 12th floor premises, however as discovery was completed about one year ago, there was ample time available to the Defendant to find the supporting evidence by way of various interlocutory applications. However up to now, no application such as application for specific discovery has been made, and there is simply no evidence to substantiate the Defendant's counterclaim as pleaded. In such circumstances, I am of the view that the Defendant has failed to establish an arguable defence and so judgment should be given in favour of the Plaintiff.

8. I also do not accept the submission of the Defence Counsel that there should be an abatement of rent. Although there was water seeping from the ceilings and the walls, I am of the view that the condition in the two subject premises was far from being unfit for use or occupation as stated in section 7, clause (1) of the two subject tenancy agreements. In such circumstances, I do not accept that there should be any abatement of rent.

9. In both cases, the Plaintiff has kept a substantial amount of rental deposit. In one of the cases, the amount of rental deposit actually exceeds the amount of the Plaintiff's claim. However, Mr Wong for the Plaintiff argues that the court should still grant judgment in the full amount of the Plaintiff's claim, with credit perhaps given to the rental deposit kept by the Plaintiff. Mr Wong submits that the Defendant has pleaded in its defence that it is not liable to pay any rent from June 1999 onwards and that it is entitled to have the rental deposit back. In such circumstances, the Plaintiff still has to apply to court for judgment in order to reflect that all the above Defendant's defences are not successful.

10. In my judgment, Mr Wong's submission in this regard must be right. Even if the Plaintiff has kept a substantial rental deposit, it still has to proceed with the Order 14 application in order to resolve all the issues raised by the Defendant in the defence. In such case, I will grant judgment for the Plaintiff in the full amount of the Plaintiff's claim, with credit be given to the rental deposit kept by the Plaintiff.

11. I am also of the view that the claim for mense profit can be easily assessed by reference to the rent that was paid by the Defendant under the two tenancy agreements. In such circumstances, it would not be necessary to have an assessment of damages just in relation to the mense profit.

12. These are the reasons I give in relation to the present application.