Global Union Ltd. v. Deluxe Fashion Co. and Another

LDPE 546/1998

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LDPE No. 546 of 1998

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JUDGMENT

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The Applicant herein is the landlord of the business premises situate and known as Shop No. 1, Ground Factory C13 of Hong Kong Industrial Centre, No. 489-491 Castle Peak Road, Kowloon ("the premises"). The Applicant applied on 2nd December, 1998 for recovery of rental arrears and possession of the premises.

2. Trial was originally fixed for 3rd February, 1999. However, on 21st January, 1999 the Respondents took out an application for adjournment of trial on the ground that the Second Respondent would be out of Hong Kong. This application was fixed for hearing on 29th January, 1999. On 29th January, 1999 the parties came before me, On that occasion the Respondents were represented by one Mr. Yeung who did not seem to know anything about the Respondent's circumstances. Other than the assertion that the Second Respondent would be out of Hong Kong there was nothing to support the application for adjournment. I did not think the mere fact that the Second Respondent would be out of Hong Kong was sufficient ground for re-fixing trial.

3. The court's file revealed that the Respondents had filed a two page home-made defence. It would be idle to repeat verbatim what is said in that defence. In gist, the defence does not mention anything about payment of rent. I took it that there was no denial that rent had not been paid. The defence talked about some action taken by the Applicant about decoration and a signboard which resulted in some alleged loss of business to the Respondent. The defence also talked about notice given by the Applicant to terminate the tenancy but the Respondents wanted continuance and renewal! Mr. Yeung was asked about rental arrears and he said he did not know since when rent had not been paid. In my view there was no defence to the claim for rental arrears and the application to refix trial was a transparent attempt to stall. The defence should be struck out. The amount allegedly owing as rent had accumulated to something over $200,000. In the normal course of events, provided the Applicant could prove its case, judgment should be given with the usual provision for relief against forfeiture. No prejudice could have fallen upon a tenant who has failed to pay rent punctually because the provision for relief against forfeiture would ensure that the tenant may stay after clearing up arrears of rent. In the circumstances, I decided to hear evidence from the Applicant.

4. According to evidence for the Applicant, there was a proforma tenancy agreement in Chinese relating to the premises. A photocopy of the agreement was produced. It was noted therein that the tenancy commenced on 1st April 1997 at the monthly rent of $69,750 payable monthly in advance. The tenant named therein was the Second Respondent and a chop impression bearing the firm name of the First Respondent can be seen at the space for signature by tenant in addition to the signature under the hand of the Second Respondent. The Applicant further produced a document signed by the Second Respondent as manager of the First Respondent showing mutual agreement to reduce the monthly rent for the premises to $60,380. The oral evidence of the representative for the Applicant stated that the Respondents had not paid any rent since 16th October, 1998. That was all the evidence from the Applicant.

5. On the basis of the evidence before me which was not contradicted by the defence filed, there was every reason to give judgment for the Applicant. The Tribunal has no jurisdiction to deal with the question of tort or breach of tenancy agreement resulting in the alleged business loss to the Respondents. The Respondents in their defence insisted that the tenancy agreement was continuing and should be continued and so liability to pay rent must subsist. In my view, the procedure of the Tribunal being informal, it was a proper case for dealing with the case summarily rather than to require the parties to come back a few days later to go through the motions of a trial. Accordingly, order for possession with usual provision for relief against forfeiture under s.21F of the High Court Ordinance, Cap. 4 and judgment for rental arrears from 16th October, 1998 together with costs at $2,000 was made.

6. Subsequently, I was informed of the Respondents' application for leave to appeal out of time. Purely my mistake, I thought the application for leave was made to the Tribunal. The fact that the Respondents did not apply for review or appeal in time gave me the impression that they were again trying to stall, I therefore gave leave subject to payment of rental arrears up to date into the Tribunal within 7 days as security. I thought I could wait for seven days for report of payment into court before I need to hand down judgment. As it turn out there was no report of payment into court because, naturally, the Respondents had gone to the High Court. I do very much regret the failure to lay out the reasons for my decision in time before the High Court