張淑嫺 v. CHIK WAI YIN

DCCJ 3428/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3428 OF 2010

________________________

________________________

J U D G M E N T

________________________

Background

1.  This is a dispute between the defendant landlord, Madam Chik, and her outgoing tenant, Madam Cheung, who is the plaintiff herein.

2.  By a tenancy agreement in writing dated 28 July 2009 (“the Tenancy Agreement”), Madam Chik agreed to let a residential flat known as Flat G on the 2nd Floor of Block 7 at Sceneway Garden in Lam Tin, Kowloon (“the Premises”) to Madam Cheung for a term of two years from 5 August 2009 to 4 August 2011 at a monthly rental of $12,800 which is payable in advance on the first day of each month.  Madam Cheung paid a sum of $25,600 (equivalent to two months’ rental) as rental deposit.  The tenancy was brokered through an estate agent, Mr Yuen.

3.  After Madam Cheung and her husband (Mr Ng) moved into the Premises, they found their occupation far from uneventful.  About one week after moving in, they complained to Madam Chik about insufficient cooling of the air-conditioners in the flat.  One month into their occupation, they discovered growing moulds on the walls in the bedroom and the study.  In December 2009, they complained to Madam Chik about malfunctioning of the water heater.

4.  Eventually, on 5 July 2010, Madam Cheung wrote to Madam Chik to complain that the mould infestation on the walls of the Premises had become intolerable and requested an early termination of the tenancy.  She proposed to hand over the Premises to Madam Chik on 5 August 2010.

5.  In the meantime, Madam Cheung did not pay the rent for July 2010.  By e-mail dated 14 July 2010, she asked Madam Chik to deduct the July rent from her rental deposit and refund the balance of $12,800 at the handover of the Premises on 5 August 2010.

6.  On 5 August 2010, Madam Chik, together with one Mr Lam being her renovation contractor, met with Madam Cheung and her husband at the Premises for inspection and the proposed handover.  Madam Cheung pointed out the moulds on the walls to Madam Chik.  Madam Chik accused Madam Cheung of causing the moulds to develop to such a state, and she refused to refund the balance of the rental deposit.  Madam Cheung refused to hand over the keys of the Premises and asked Madam Chik to leave.

7.  On the following day, Madam Cheung wrote to Madam Chik and stated that she would hand over the keys of the Premises as soon as Madam Chik refunded the balance of the rental deposit to her.

8.  By letter dated 9 August 2010, Madam Chik through Messrs W H Chik & Co demanded Madam Cheung to hand over the keys of the Premises within 7 days.  Eventually, on 14 August 2010, Madam Cheung through a firm of solicitors delivered the keys – and thus possession – of the Premises to Madam Chik.

Procedural history

9.  On 23 August 2010, Madam Cheung brought a claim at the Small Claims Tribunal (SCTC 39413/2010) against Madam Chik for return of the balance of the rental deposit in the sum of $12,800.

10.  On 20 September 2010, Madam Chik filed her Defence and Counterclaim in the Small Claims Tribunal claim where she alleged that Madam Cheung had caused damage to the Premises during her occupation, and she counterclaimed against Madam Cheung for the repair cost, loss of rental during repair, and mesne profits.

11.  On 22 September 2010, the Adjudicator at the Small Claims Tribunal ordered Madam Cheung’s claim and Madam Chik’s counterclaim be transferred to the District Court, which became the action herein. 

The parties’ claims in summary

12.  Madam Chik claims that Madam Cheung has caused damage to the Premises during her occupation as follows:

(1) Extensive deep layer mould infestation on the walls of the living room and all bedrooms;

(2) Crack, burnt marks and discoloration on the worktop in the kitchen;

(3) Small holes drilled on the wall tiles and the doors in the kitchen, bedrooms and bathroom;

(4) Damaged built-in air vent of the bathroom door;

(5) Damaged door of the cabinet in the bathroom; and

(6) Missing parts from the kitchen extractor fan.

13.  Madam Chik claims against Madam Cheung the following:

(1)	Repair cost of the Premises	$116,900
(2)	Loss of rental during repair	$25,600
	($12,800 x 2 months)
(3)	Arrears of rent (July 2010)	$12,800
(4)	Mesne profits (5 to 14 August 2010)	$4,129
	($12,800 x 10/31 days)
	Less: Rental deposit	($25,600)
	Total:	$133,829

 14.  Madam Cheung denies that she is liable to Madam Chik:

(1) She did not cause the mould problem; in any case, she took reasonable steps to address the problem.

(2) She did not cause the alleged damage to the Premises. In particular, the drill holes on the walls tiles and doors and the damage to the kitchen worktop were already in existence when she moved in.

(3) She was not liable to pay any mesne profits given it was Madam Chik’s own fault which caused the delay in the handover of the Premises.

15.  Madam Cheung contends that half of the rental deposit is to be applied to settle the rent for July 2010, and she claims against Madam Chik for return of the remaining half of the rental deposit ($12,800).

Burden of proof

16.  Madam Chik has to prove, on a balance of probabilities, that Madam Cheung has caused damage to the Premises as she alleged.

(1) Mould infestation on the walls

17.  Before the Tenancy Agreement was signed, Madam Cheung noticed some water marks on the ceiling of the corridor in the Premises.  She said Madam Chik explained to her that those marks were caused by previous water leakage from the flat upstairs, which had since been fully rectified.  Madam Chik confirmed Madam Cheung did raise query about the water marks on the ceiling but she denied having told Madam Cheung that the marks were caused by previous water leakage from upstairs.  She only assured Madam Cheung that the water marks should not be of any concern since the management office had already carried out testing and confirmed there was no water leakage from upstairs.

18.  About a month after Madam Cheung moved into the Premises, she noticed moulds developing on the walls in the bedroom and the study.  In fear that the growing moulds may be caused by water leakage from upstairs, Madam Cheung notified the management office which carried out inspection and testing at the Premises and in the flat upstairs in September 2009.  The management office reported on 21 September 2009 and stated that upon their testing and inspection they found no signs of water leakage from the flat upstairs, and they suspected the moulds may be caused by the humid weather condition (懷疑為天氣潮濕發霉所致).

19.  Madam Cheung testified that the mould problem worsened in time, in particular between February and March 2010 when the weather condition was particularly humid, and the mould growth had extended to the rooms, corridor, and living-room in the Premises.  Bugs started to grow out of the moulds.  Madam Cheung said she regularly used anti-dust papers to remove the moulds and bugs, and she switched on two dehumidifiers for long periods of time in order to lower the level of humidity in the Premises.  The moulds and bugs also caused health problems on Mr Ng.

20.  Madam Cheung testified that she had asked Madam Chik to rectify the mould problems, but her repeated requests had all fallen on deaf ears.  Madam Chik, however, denied having ever heard of any complaints about moulds from Madam Cheung, until she received Madam Cheung’s letter of early termination of the tenancy on 5 July 2010.  She insisted that the word “mould” never appeared in any of her conversations with Madam Cheung, or else she would have taken immediate follow-up action.  Madam Chik said that there was never any mould problem in the Premises in the past and she asked her contractors to use “paint of the best quality” – which she meant paint that is resistant to both moisture and moulds – to re-paint the walls before letting out the Premises to a new tenant. Madam Chik also said she only noticed a few water marks (or areas of colour fading) on the walls, but not moulds, when she attended the Premises in September 2009.

21.  I have difficulty accepting Madam Chik’s testimony.  I find it incredible that Madam Cheung had not complained to Madam Chik about the aggravating mould problems at all but only raised it with Madam Chik for the first time when she sought an early termination of the tenancy on 5 July 2010.  The evidence showed that Madam Cheung would not shy away from making prompt complaints about the condition of the Premises to Madam Chik: for instance, she raised query about the water marks on the ceiling both before and after she moved in, and she also complained about the malfunctioning of the air-conditioners and the water heater.  There is no logical reason why Madam Cheung would remain silent and tolerate the mould problem which worsened in time and caused health concern.

22.  Whilst Madam Chik said she did not notice any moulds on the walls when she attended the Premises in September 2009, such an assertion was not raised in her two witness statements at all.

23.  I also have doubts over Madam Chik’s testimony that she had instructed contractors to use “paint of the best quality”, that is paint that is resistant to moisture and moulds, to re-paint the walls before letting out the Premises to a new tenant.  Madam Chik produced no evidence (eg invoice of the paint used) in this regard, and her claim that moisture- and mould-resistant paint has been used was not raised in her two witness statements.  If moisture- and mould-resistant paint has indeed been used to re-paint the walls before Madam Cheung’s occupation, one wonders why shortly after Madam Cheung moved in, moulds started to develop on the walls.

24.  I therefore prefer Madam Cheung’s evidence, and I find that she did complain to Madam Chik about the worsening mould problem but to no avail.  Madam Chik distanced herself from the mould problem so as to create the impression that she played no part in the worsening of the mould infestation by failing to follow up on Madam Cheung’s complaint.  As will become obvious, such a finding does not have a material impact on Madam Chik’s claim relating to the mould infestation, but it does have an impact on my assessment of Madam Chik’s overall credibility.    

25.  Leaving aside the dispute as to whether Madam Cheung had ever complained about mould problem, I take the view that Madam Chik has not proven her claim relating to the mould infestation at all, because she could not prove that the mould infestation on the walls was caused by anything done, or omitted to be done, by Madam Cheung.

26.  Madam Chik adduced no evidence, in particular in the form of expert evidence, to prove the cause of the mould infestation on the walls.  There may be different causes for mould infestation.  It may be caused by the poor quality of the paint.  It may be caused by the inherent vulnerability of the walls due to its geographical location. It may also be caused by past water seepage from the flat upstairs or even from the external walls of the building.  It may even be caused by a combination of the above.  There is no basis to assume that the mould infestation must necessarily have been caused by improper upkeeping of the Premises by the tenant.

27.  Madam Chik said in her witness statement that Mr Lam, her contractor, took the view during the inspection of the Premises on 5 August 2010 that the mould infestation could have been avoided or removed if the walls were cleaned regularly, and the air-conditioner or dehumidifier was switched on in humid weather.  This is entirely hearsay evidence.  Mr Lam was not called to give evidence at trial as an expert.  I thus give no weight to his purported opinion on the cause of the mould infestation which was repeated by Madam Chik in her witness statement.

28.  Madam Chik also said that Madam Cheung told her that she and her husband would often be out of Hong Kong for a few days in a row to work in the Mainland.  She therefore believed Madam Cheung had left the Premises unattended for long periods of time, and had failed to clean the walls of the Premises or switch on the air-conditioner or dehumidifier regularly.  This is mere speculation by Madam Chik.  Madam Cheung and Mr Ng both denied that they had left the Premises unattended for long periods of time.  They also said that they kept trying to remove the moulds on the walls (with some limited success at the beginning), and they even switched on two dehumidifiers in an attempt to reduce the indoor humidity.  I see no reason why I should not accept their evidence.  Madam Chik could not suggest any objective yardstick to demonstrate that such upkeeping of the Premises was improper or otherwise insufficient, and if so how.

29.  Madam Chik’s claim under this head is rejected.

(2) Damage to the kitchen worktop

30.  Madam Chik said in her witness statement – and in very clear terms – that a brand new kitchen worktop was installed only before Madam Cheung moved into the Premises (廚房的工作檯面板在原告人入住前才更換新的).  Madam Chik tried to paint the picture that Madam Cheung had a brand new kitchen worktop at her disposal at the start of the tenancy, and in turn sought to attribute all damage to the worktop found at the end of the tenancy to Madam Cheung.

31.  However, Madam Chik admitted under cross-examination that the kitchen worktop was in fact installed before the previous tenant moved in because the old worktop was worn out.  The previous tenant moved out after one year.  The kitchen worktop was thus used by a previous tenant for one year before Madam Cheung’s occupation.

32.  I am most unimpressed by Madam Chik’s change in evidence.  She tried to give the court a false picture in her witness statement – if not to mislead the court – that she had provided a brand new kitchen worktop for Madam Cheung when in fact it was far from new.  She did not explain why there was such an error in her witness statement.  Again, this will have a material impact on my assessment of her overall credibility.

33.  Mr Kay Chan, counsel for Madam Chik, fairly accepted that in the circumstances there must logically be two suspects for any damage to the kitchen worktop: the previous tenant, or Madam Cheung.  Madam Chik did say in her oral evidence that she did inspect the Premises at the end of every tenancy, but no evidence was led as to how thorough her inspection was when the previous tenant moved out, and whether she had directed any specific attention to inspect the condition of the kitchen worktop.  In any event, Madam Cheung and Mr Ng both testified that the discoloration of the worktop was already in existence when they moved in, and Mr Yuen also recalled seeing “uneven colours” on the worktop when he introduced the Premises to Madam Cheung.  I accept their evidence, and find, as a fact, that parts of the kitchen worktop were already discoloured (including the area which Madam Chik called a “burnt mark”, and which appeared to me from the photographs to be an area with a stronger discoloration) before Madam Cheung started to occupy the Premises.

34.  As to the crack on the worktop, Madam Cheung and Mr Yuen testified that they were not aware of any such crack when Madam Cheung moved in.  Madam Chik, however, did not put forward any positive claim in her witness statements or oral evidence at trial that the crack did not exist when Madam Cheung started her tenancy.  It appeared to me that the evidence suggested that no one was certain when and how the crack on the worktop was caused.  It follows that Madam Chik has failed to prove that Madam Cheung had caused the crack on the worktop.

35.  In any event, based on my observation from the photographs, the discoloration and crack on the kitchen worktop are not really damage as such but form part of normal and reasonable wear and tear.  After all, it was a kitchen worktop with a built-in water tap and inset sink for washing.  It is not unexpected that parts of the worktop (eg parts around the sink) would become discoloured, and cracks may appear, over time through usage.  It is difficult to see how Madam Cheung could be held liable.

36.  Madam Chik’s claim under this head is rejected.

(3) Small drill holes on the walls and doors

37.  Madam Chik claimed that upon recovering the Premises from Madam Cheung, she discovered that numerous small holes were drilled on the wall tiles and door of the kitchen, bedroom and bathroom, presumably for the purpose of putting up racks.  Such drill holes have damaged the wall tiles and doors, necessitating their replacement.

38.  Madam Cheung claimed that the drill holes were already there when she moved in.  She said that Madam Chik told her that the drill holes were made by the previous tenant who was very troublesome and failed to take proper care of the Premises.  Madam Chik further reminded her not to drill further holes in the Premises.

39.  Madam Chik denied the above conversation.  She also stressed that she had inspected the Premises during the handover from the previous tenant and she would have claimed against the previous tenant if drill holes were found to have been made on the walls and the doors.  She further said that any drill holes would have been mended by the renovation contractor whom she had instructed to re-paint the Premises before Madam Cheung moved in, or else she would not have paid her contractor.

40.  Mr Kay Chan argued that Madam Cheung’s case is inherently improbable.  It was unreasonable for Madam Cheung to have been content to take up the Premises filled with drill holes and other defects.  It was also unreasonable for Madam Cheung not to have asked to compile a defect list in the Tenancy Agreement to record all the existing defects so as to protect her interest and avoid future argument with the landlord.

41.  There is some prima facie force in Mr Chan’s arguments, but on reflection I do not believe such arguments rendered Madam Cheung’s case inherently improbable, for the following reasons.

42.  First, Mr Chan’s arguments presuppose that the defects in the Premises are serious.  I looked at the photographs of the Premises taken in August 2010 after Madam Chik regained possession, and I do not believe the drill holes could be said to be defects let alone serious defects, mindful that those holes were in the nature of drill holes for putting up racks, and not holes resulting from other form of damage or disrepair.  The drill holes, together with the “damage” to the kitchen worktop, the bathroom door and cabinet, do not, in my view, affect one’s normal use and enjoyment of the Premises.  It is, after all, a matter of give and take for the tenant.

43.  Second, it was Madam Cheung’s case, which was uncontested at trial, that she only had about two weeks to find a new flat at that time, having given notice to terminate her previous tenancy.  Mr Yuen also said that at that time there were not many available options and he only secured three flats to introduce to Madam Cheung, with the Premises being the last flat that was viewed.  Madam Cheung did not take up the first flat because she found there was a bad odour in the flat and it was quite worn out, and the landlord asked for a monthly rental of $13,500 which Madam Cheung did not find acceptable.  The landlord of the second flat refused to let it to Madam Cheung since she was not a civil servant.  Madam Cheung agreed to take up the Premises because she found the condition in the flat and the monthly rental acceptable.  That being so, I do not think Madam Cheung could be criticized for not continuing with her search for other flats, which may or may not be in a better shape than the Premises.

44.  Finally, I accept the submissions of Mr Gary Lam, counsel for Madam Cheung, that it is often easy to be wise after the event.  The reality is that Madam Cheung claimed that she had no disputes with any of her previous landlords, and she also took comfort in the fact that there was an estate agent (Mr Yuen) handling the transaction throughout.  It thus did not dawn on her that she should have asked for a defect list to safeguard her interest against the landlord.  Her explanation is entirely reasonable.

45.  Mr Ng and Mr Yuen both corroborated Madam Cheung’s case.  I take into account the fact that Mr Ng was in court when Madam Cheung gave evidence.  I also take into account the fact that the witness statements of Mr Ng and Mr Yuen were crafted and drafted in almost identical terms as Madam Cheung’s witness statements.  I remind myself that these factors have a bearing on the weight to be given to the written witness statements of Mr Ng and Mr Yuen, and Mr Ng’s oral evidence. 

46.  Mr Yuen was adamant in his oral evidence that he did notice drill holes in the Premises before Madam Cheung moved in, although he also accepted that he was not aware of the number of drill holes in the entire flat since the drill holes may be in a place (eg behind doors) which renders them not easily noticeable.  Mr Yuen disagreed when Mr Chan put to him there were no drill holes on the walls in the Premises at all before Madam Cheung moved in.  He specifically confirmed that the drill holes on the wall tiles in the kitchen were there before Madam Cheung moved in.  He also said he had a distinct impression of the Premises because there were many drill holes in different parts of the flat and he specifically asked Madam Cheung if she would mind if there were such drill holes, advising her at the same time that she might find the drill holes useful in due course for putting up racks.

47.  Mr Chan invited me to give no weight to Mr Yuen’s evidence.  He argued that Mr Yuen was not an independent witness since he had a commercial tie with Madam Cheung by acting as her estate agent earning a commission in past transactions.  He further argued that Mr Yuen did not seem to be able to recall at trial a large part of his evidence which was set out in his witness statement.  I take into account Mr Chan’s arguments in evaluating Mr Yuen’s evidence, but I do not think I should thus give no weight to his testimony.  In particular, under cross-examination, Mr Yuen repeatedly confirmed there were drill holes in the Premises before Madam Cheung moved in and such drill holes also left a distinct impression of the Premises on him.  I do not believe Mr Yuen was mistaken, or was lying to the court, in respect of the existence of drill holes in the Premises, and I therefore accept his evidence in this regard.  Mr Yuen’s evidence seriously undermines Madam Chik’s case that there were no drill holes at all in the Premises before Madam Cheung moved in.

48.  Although Madam Chik’s case in respect of the drill holes is also not inherently improbable, I have made observations that I have doubts over Madam Chik’s overall credibility (paras 24 and 32 above, and para 53 below).  I am more inclined to accept Madam Cheung’s evidence generally.

49.  In view of all of the above consideration, I find that Madam Chik has failed to prove, on balance, that Madam Cheung had caused the drill holes on the walls and the doors as alleged by Madam Chik.

50.  Madam Chik’s claim under this head is rejected.

(4) Damaged built-in air vent of the bathroom door

51.  Madam Chik claimed that Madam Cheung had damaged the air vent of the bathroom door, by breaking some of the wooden planks of the air vent.  Madam Cheung claimed the wooden planks were not broken, although they were disarranged when she moved in the Premises.

52.  Madam Chik has put forward no evidence, apart from her bare assertion, that the wooden planks of the air vent were broken.

53.  Madam Chik claimed in the pleading that the damaged air vent necessitated the replacement of the whole bathroom door, but under cross-examination she claimed that the bathroom door was in fact not replaced, but was only re-painted.  She said that the contractor told her that he had made a mistake when he listed out the repair item as “door replacement” (換門) in the receipt for the repair work of the Premises. She said that the contractor informed her of the mistake only a few days before trial.  I am most unimpressed by Madam Chik’s change in her case, particularly when what she said in her oral evidence was inconsistent with her pleaded case, the facts of which she had confirmed as true and accurate by signing a statement of truth.  It is obvious that Madam Chik has tailored her evidence in this regard to suit her need, because by then she was cross-examined on the reasonableness of replacing the doors when it was suggested to her that the defects could well be remedied by re-painting the doors, and Madam Chik was trying to impress upon the court that she had in fact acted reasonably by not replacing the doors.

54.  Given my doubts over Madam Chik’s evidence, I find that she has failed to prove, on balance, that Madam Cheung had caused damage to the air vent of the bathroom door.

55.  Madam Chik’s under this head is rejected.

(5) Damaged door of the bathroom cabinet

56.  Madam Chik claimed Madam Cheung had damaged the door of the bathroom cabinet.  Madam Cheung claimed the door was already in such a state when she moved in. 

57.  In view of my doubts over Madam Chik’s overall credibility, I find that she has failed to prove, on balance, that Madam Cheung caused the damage to the door of the bathroom cabinet.

58.  Madam Chik’s claim under this head is rejected.

(6) Missing parts from the kitchen extractor fan

59.  Madam Chik claimed that an oil filter and some screws for the filter were found missing from the kitchen extractor fan.  It was, however, not her evidence that she had specifically inspected the kitchen extractor fan before Madam Cheung moved in to prove that these parts were not already missing after the previous tenant moved out. There is no evidence upon which I can find, on balance, that Madam Cheung had caused these parts to be missing from the kitchen extractor fan.

60.  Madam Chik’s claim under this head is rejected.

Observations on quantum of the repair cost

61.  For completeness, I add that even if I were wrong on liability, I would only award nominal damages in the sum of $1,000 for the repair cost, since Madam Chik has failed to prove quantum.  She only produced what appeared to be a quotation (which she claimed was the receipt) from her renovation contractor of the purported actual cost incurred for the repair.  The contractor, Mr Lam, was not called to give evidence, and there is in turn no evidence to show that all the items set out in the quotation/receipt were necessary or reasonable to reinstate the Premises back to its original condition before Madam Cheung’s occupation.  The absence of evidence in this regard also rendered it impossible to tackle the factor of betterment, namely the tenant in default should not be liable for such part of the repair work that may have the effect of “re-decorating” the premises as if it were brand new: see Judge Lok’s observations in Lee Ho Seok v Kanvest Limited, DCCJ 5074/2002 (unreported, 1 December 2004) at paras 18 to 20, citing Burkeman v G E Capital Europe Limited [2002] EWHC 2863 (QB).

Loss of rental during repair

62.  In view of my findings above, Madam Chik was not entitled to claim any loss of rental when repair work was carried out.  In any case, her claim was based on her own estimate that the repair work would take two months to complete, but there is no evidence to support such an estimate.  Even if I were wrong on liability, I would only award nominal damages in the sum of $1,000 under this head of claim.

Arrears of rent for July 2010

63.  There is no dispute that the rent for July 2010 in the sum of $12,800 shall be deducted from the rental deposit. 

Mesne profits from 5 to 14 August 2010

64.  I reject Mr Lam’s argument that the delay in Madam Chik’s getting back the Premises was entirely her own fault.

65.  It is clear that Madam Cheung steadfastly refused to hand back the Premises to Madam Chik unless Madam Chik first refunded the rental deposit.  There is, however, no provision in the Tenancy Agreement to the effect that Madam Cheung as tenant was entitled to refuse to hand over the Premises to Madam Chik as landlord if Madam Chik has failed to refund the rental deposit.  In my view, the tenant’s duty to surrender the Premises on the expiration of the tenancy, and the landlord’s duty to refund the rental deposit, are separate and distinct obligations.  This is so even though I now find that Madam Chik has not proven her claim such that no repair cost is to be deducted from the rental deposit.  Madam Cheung was still obliged to surrender the Premises back to Madam Chik on 5 August 2010, leaving her dispute with Madam Chik on the damage and repair of the Premises (and possible deduction of the repair cost from the rental deposit) to be resolved on a separate occasion.  Given Madam Cheung surrendered the Premises to Madam Chik only on 14 August 2010, effectively Madam Cheung carried on occupying the Premises between 5 to 14 August 2010, and there is thus no reason why she should be permitted to do so without paying any rent (in the form of mesne profits) to Madam Chik for this period of time.

66.  Madam Cheung is liable to pay mesne profits for the period of 5 to 14 August 2010 in the sum of $4,129 to Madam Chik.

Overall result

67.  I find that Madam Chik is liable to pay the net sum of $8,671 to Madam Cheung, being the rental deposit ($25,600), less the July 2010 rent ($12,800) and the mesne profits for 5 to 14 August 2010 ($4,129).  All other claims in Madam Chik’s counterclaim are dismissed.

68.  Madam Chik shall also pay interest for the said sum of $8,671 at the rate of HSBC prime rate + 1% per annum from 23 August 2010 (the date on which Madam Cheung commenced SCTC 39413/2010) to the date of judgment, and thereafter at judgment rate until full payment.

69.  I make a costs order nisi that Madam Chik shall pay the costs of Madam Cheung in this action, to be taxed if not agreed, with certificate for counsel.  Such costs order nisi shall be made absolute in 14 days.

70.  Finally, I thank both counsel for their assistance.