PERFECT CYPRESS LTD. v. MUI PO CHU

CACV 3752/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3752 OF 2001

(ON APPEAL FROM LDPD NO. 2367 OF 2001)

_________________________

_________________________

_________________________

REASONS FOR JUDGMENT

_________________________

Hon Rogers VP:

1. This is an appeal from a judgment of Deputy Judge Mak sitting as the Presiding Officer of the Lands Tribunal given on 15 October 2001 as varied by a subsequent decision dated 23 November 2001. The application before the Lands Tribunal was for possession of Flat A, 3/F, Cannon Garden, King's Road on the grounds of non-payment of rent, amounts due in respect of management fees and rates. By the judgment the Lands Tribunal ordered that the respondent should deliver vacant possession of the premises unless all outstanding rent and sums due in respect of management fees were paid up to date and the rent was paid until termination of the tenancy. The order was also conditional upon the rates being paid; the later decision varied the period for which rates had to be paid by reducing it by one month.

2. The substance of this appeal appears to be that the respondent below, Miss Mui Po Chu, had substantial claims in respect of sums which were said to be owing to her. These sums included the payments which the respondent had already made in respect of management charges and rates as well as damages in respect of the applicant's Perfect Cypress Limited's failure to keep the premises rented in good order.

3. At the conclusion of the hearing of this appeal, this court dismissed the appeal with costs and said that it would give its reasons in writing which we now do.

Background

4. The applicant is the landlord of the premises. The respondent had signed two tenancy agreements both for two years. The first was dated 2 July 1998 and the second (which will be referred to below as the "Tenancy Agreement") was dated 2 July 2000. It is therefore evident that the tenancy has, in any event, now terminated.

5. The Tenancy Agreement was in Chinese on a printed form with extra clauses added in handwriting. The rent stipulated in the agreement was HK$10,800 per month and the tenancy was to expire on 1 July 2002. Under clause 3 the rent was payable on the first day of each month.

6. A translation of clause 6 of the Tenancy Agreement appears in the judgment below as follows:

"(The tenant) shall be responsible for rates, all other miscellaneous charges, lift service, water, electricity, pump, cleaning and caretaker fees or charges."

There has been no challenge to the translation adopted by the Presiding Officer. In paragraph 7 of his judgment, the Presiding Officer analysed the meaning of clause 6 of the Tenancy Agreement and reached the conclusion that that provided that the management fees would be payable by the tenant. I can see no ground for challenging his reasoning. Furthermore it is abundantly clear that the Tenancy Agreement provided that the tenant would pay the rates.

7. The respondent's written submissions to this court are bizarre, to say the least. Insofar as they have any relevance to these proceedings they are virtually unintelligible. Before us, the respondent argued that the additional clauses in the Tenancy Agreement, written by hand, made clear that the management fees were not her responsibility, as tenant. Nothing in those clauses seems to me to assist the respondent in this respect.

8. The respondent also relied upon the fact that the applicant, as landlord, had been compelled to pay the management fees. Again, this fact cannot assist the respondent as regards her own liability. The applicant, as the landlord of a premises would always have a liability in respect of the management fees. The question which arises is whether the landlord can pass that on to the tenant. In my view, the Presiding Officer came to the correct conclusion in this respect and I see no basis for disturbing his holding.

9. Another major plank of the respondent's case was the allegation that there had been a broken tree on the premises and part of the pavement used for access to the premises had been muddy and broken. As analysed by the Presiding Officer, at best, the areas involved were areas over which there was a right of way which could be enjoyed by the owners of Cannon Garden. The particular locations were clearly outside the premises of Cannon Garden not to say the premises which were leased to the respondent under the Tenancy Agreement. Again, in this respect I cannot see that the respondent has any cause for raising any claim. The formulation of the respondent's claim in this respect is also difficult to discern since $86,400 is claimed as an amount in respect of waste of time in dealing with the broken tree and broken road and $40,000 is claimed in respect of compensation suffered from the dangerous environment of "inserted broken tree and claim remedies from the landlord breach of contract".

10. In conclusion nothing could be discerned which would give rise to a ground of complaint in respect of the judgment and decision in the Lands Tribunal.

Hon Le Pichon JA:

11. I agree.

Hon Waung J:

12. I agree.