FIRST GRADE INTERNATIONAL TRADING LTD v. MEERA INDUSTRIES LTD

LDPE 167/2023

[2023] HKLdT 37

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPE 167 OF 2023

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D  E  C  I  S  I  O  N

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A.  The Judgment

1.  By my judgment dated 23 March 2023 (the Judgment), this Tribunal ordered the Respondent tenant company to:

(1) deliver vacant possession of workshop 9, 9/F (Workshop 909), No.46 Tsun Yip Street, Kowloon (the Building) to the Applicant landlord company;

(2) pay balance of arrears of rent/mesne profit in sum of $30,000 for period from 8 January 2023 to 7 April 2023 to the Applicant;

(3) pay the Applicant mesne profit at the rate of $10,000 per month from 8 April 2023 until delivery of vacant possession of Workshop 909 to the Applicant; and

(4) pay the Applicant costs of this application summarily assessed at $1,365.

2.  In the Judgment, this Tribunal also gave the Respondent relief against forfeiture should it pay into the tribunal on or before 30 March 2023 all outstanding arrears of rent/mesne profit together with costs of this application.

B.  The Leave Application

3.  By Form 1 filed on 31 March 2023, the Respondent applied for leave to appeal against the Judgment to the Court of Appeal (the Leave Application).

4.  At the oral hearing of the Leave Application, both parties appeared in person. The Applicant company was represented by Mr Edmond Yiu (Mr Yiu) as its authorized representative (AR) while the Respondent company was represented by Mr Thanwar Kishinchand Punjabi (Mr Punjabi) as its AR. Mr Punjabi is a director and shareholder of the Respondent company.

C.  Procedural History

5.  By Form 22[1] filed on 13 February 2023, the Applicant applied for vacant possession of Workshop 909, payment of arrears of rent and mesne profit, and costs on the ground that the Respondent has failed to pay rent since 8 January 2023.

6.  By Form 7[2] filed on 24 February 2023, the Respondent opposed this application on the following 3 grounds (the gist of Mr Punjabi’s oral evidence in support of the 3^rd ground thereof is stated below): -

(1)  First, the Respondent had agreed to a break clause of “12” months but the property agent had inserted “24” months into the Tenancy Agreement without its consent[3].

(2)  Secondly, the Applicant had obtained a 3-year rent guarantee from the developer of the Building (the Developer) and the Applicant got payment on that guarantee. For this reason, the Applicant had enriched itself unjustly by receiving double payment – one on the rent guarantee and the other being rent from the Respondent[4].

(3)  Thirdly[5], the Respondent, said Mr Punjabi, had encountered racial discrimination and defamatory words committed by two ladies working in workshop 903 and 911 of the Building and by a 3^rd lady working for the manager of the Building. Their actions and words lowered the reputation of Respondent in the eyes of its customers and suppliers and damaged its business. Mr Punjabi gave evidence of his complaining to the manager who sacked the 3^rd lady and also produced his letter before action dated 14 September 2022 to the two ladies threatening them legal action[6] copied to the Applicant[7]. He said he so copied because he thought the Applicant landlord could do something about these illegal activities and words of the two ladies. Due to their activities and words, the Respondent had, he said, no choice but to stop paying rent to the Applicant as from 8 January 2023.

7.  On 27 February 2023, the Registrar of Lands Tribunal issued Form 2[8] to parties to notify them that these proceedings had been set down for hearing at 1030 hours on 20 March 2023.

8.  On 20 March 2023, both parties appeared in person before this Tribunal for first hearing, with Mr Yiu as AR of the Applicant and Mr Punjabi as AR for the Respondent. Trial was fixed by this Tribunal to start at 0930 hours on 23 March 2023.

9.  On the trial day, the parties’ ARs remained the same. Mr Yiu elected to speak in punti and he gave evidence as witness for the Applicant. Mr Punjabi elected to speak in English and he also gave evidence as witness for the Respondent. This Tribunal elected to speak in English. An English/punti interpreter was arranged to provide translation service to all the parties concerned.

D.  Undisputed or Indisputable Facts

10.  It is common evidence of the 2 witnesses at trial that, by a written and stamped tenancy agreement dated 21 February 2022 and executed in duplicate by Mr Yiu for the Applicant and by Mr Punjabi for the Respondent (the Tenancy Agreement), the Applicant had let Workshop 909 to the Respondent for the term of 2 years from 8 March 2022 to 7 March 2024 at a monthly rental of $10,000 and on other printed and handwritten clauses of the Tenancy Agreement (save for break clause to be discussed below).

11.  Mr Yiu and Mr Punjabi had negotiated and agreed upon the above tenancy on behalf of their respective companies with the other through estate agent. The two of them had never negotiated directly with the other. Neither did they meet the other before the execution of the Tenancy Agreement. Estate agent brought to each of them at two different places two identical duplicates of the Tenancy Agreement (a standard printed form with blanks) already inserted with handwritten words. Each signed the two duplicates (and initialed handwritten insertions agreed by him) and handed them back to the estate agent, who gave each of them subsequently their own duplicate copy[9].

12.  Pursuant to clause 7 of the Tenancy Agreement, the Respondent had paid security deposit of $20,000 to the Applicant by cheque and had taken possession of, and has until trial remained in possession of, Workshop 909.

13.  Clause 1 of the Tenancy Agreement requires the tenant to pay to the landlord monthly rental in advance on the first day of each calendar month and, on the undisputed evidence of Mr Yiu, I take that to mean the 8^th day of each month as the tenancy commenced on 8 March 2022.

14.  The Respondent had paid the Applicant the first-month rental by cheque. It had also paid rental for the second and subsequent months by bank transfer to Applicant’s account until 7 January 2023. However, since 8 January 2023, the Respondent has defaulted in payment of monthly rental to the Applicant. The three monthly rentals due respectively on 8 January 2023, 8 February 2023 and 8 March 2023 have all remained wholly unpaid up to trial.

15.  Finally, it cannot be disputed that the parties had twice, one in September 2022 and the other in January 2023, attempted to negotiate an early surrender of the Tenancy Agreement. Their earlier attempt failed in September 2022 and the parties tried again in January 2023. Different proposals were exchanged among parties in January 2023[10] but it also ended in failure. In the end, Mr Punjabi even closed the negotiation door by blocking Mr Yiu from communicating with him using WhatsApp[11].

E.  Reasons for the Judgment

16.  At trial, after hearing parties’ closing submissions, this Tribunal took time for deliberations. Thereafter, the Judgment was delivered with oral reasons given as follows.

F.  Break Clause

17.  On the first point raised in Form 7, this Tribunal finds that the parties had reached no agreement on break clause at all (be it 12-month, 24-month or otherwise).

(1)  The witnesses for both parties gave same evidence that no agreement had been reached on break clause at all and this Tribunal accepted their common evidence.

(i)  Mr Yiu gave evidence at trial that the Applicant had never agreed to any break clause at all.

(ii)  When Mr Punjabi was asked in the box the same question whether agreement had been reached on break clause, he also answered that “no agreement had been reached”. He also said he heard nothing to that effect from the estate agent who negotiated for him.

(2)  Mr Punjabi only added to say at trial that “his understanding is that 12-month break clause is standard or common place in Hong Kong (italics supplied)”. But “one-side” understanding of “his” cannot become a contract term at law. Every contract term requires “agreement” of “all” parties to a contract.

(3)  Printed English clause 4 (entitled “break clause”) in Schedule II of the Tenancy Agreement, inserted[12] with 2 handwritten words of “24” and one handwritten word of “ONE” which reads:

“Notwithstanding anything to the contrary hereinbefore contained, the Landlord/Tenant/either party shall be entitled to terminate this Agreement earlier than as herein provided by serving not less than 24 months’ written notice or by paying 24 months’ Rent in lieu to the Landlord/Tenant/other party provided that the said written notice shall not be served before the expiration of the [ONE] month of the Term of Tenancy.”

simply cannot work in practice when it is read as a whole.

(i)  The term of the Tenancy Agreement is only 2 years. It is, one thinks, absurd to provide for 24-month-long prior notice to end it earlier than its otherwise expiry date.

(ii)  For same reason, the Applicant’s suggestion of such break clause exercisable only on the 23^rd month of the term of the Tenancy Agreement is also absurd.

(iii)  The said 2 handwritten words of “24” were, I think, likely to have been inserted by mistake by the estate agent who acted as go-between for the parties.

18.  Given that parties reached no agreement on break clause, I find that the parties had entered into a “fixed-term” 2-year tenancy agreement which would automatically expire on 8 March 2024. On a “fixed-term” tenancy, neither party can withdraw from it prior to its expiry date, unless they reach another agreement to allow the tenant to surrender the tenancy earlier than the said expiry date. Absent fresh agreement made by the parties, the landlord of a “fixed-term” tenancy is obliged to allow the tenant to occupy the suit premises until its expiry date so long the tenant complies with its terms and the tenant is equally obliged to pay the rent of the suit premises until its expiry date.

G.  Rent Guarantee

19.  On the second point raised in Form 7, this Tribunal finds as per Applicant’s evidence that the Applicant had obtained no rent guarantee from the Developer for its purchase of Workshop 909. The Respondent had not adduced sufficient evidence to prove the contrary and the alleged rent guarantee of the Applicant asserted by the Respondent in Form 7 is no more than speculation on the part of the Respondent.

(1)  This Tribunal accepts the evidence of Mr Yiu that the Applicant had never obtained any alleged rent guarantee from the Developer for its purchase of Workshop 909.

(2)  Mr Punjabi’s alleged personal experience (according to his evidence in the box) of acting as agent for an alleged Indian investor interested to purchase workshop in the Building when workshops within it were offered for sale by the Developer[13] and of the said investor being offered rent guarantee by 2 firms of estate agents on his enquiry does not, I think, prove that same offer had been made to the Applicant or that the Applicant had accepted the same.

(3)  Mr Punjabi also pointed to a supplemental agreement dated 27 January 2021 entered into by the Applicant and the Developer over the former’s purchase of Workshop 909[14] whereby, at Applicant’s “request”[15], the Developer had reduced its purchase price[16]. Relying on the same, he suggested there was some sort of “collusion” between the Applicant and the Developer deserving ICAC investigation. Looking at the said agreement as a whole, it is, in my view, no more than a commonplace conveyancing document with a developer giving “discount” of purchase price to purchaser due to purchaser agreeing to “earlier” completion date. There is, I think, nothing suspicious about this transaction. In any event, it has nothing to do with rent guarantee as alleged by the Respondent.

(4)  Mr Punjabi further gave evidence of his calling executive assistant of the Developer[17] the day before trial asking about discount and rent guarantee given by the Developer to purchasers and produced their WhatsApp exchange as exhibit[18]. Even taking contents of such exchange at their highest, the said assistant nowhere said or confirmed of the Developer giving rent guarantee to the Applicant as alleged by the Respondent.

20.  In any event, assuming for the sake of argument that the Applicant did have a rent guarantee from the Developer over Workshop 909, the Tenancy Agreement had no clause to allow the Respondent to cease paying rent to the Applicant in that event. There is, I think, nothing unjust to require the Respondent to pay rent for Workshop 909 so long it occupies and enjoys it. The only proper person, if any, to complain of the Applicant having received any alleged unjust enrichment due to alleged double payment, if any, should, one thinks, be the Developer and not the Respondent.

H.  Defamation & Discrimination

21.  On the third point raised in Form 7, this Tribunal is prepared to accept that the Respondent had encountered two unfriendly ladies working in workshop 903 and 911 of the Building who had badmouthed and/or defamed the Respondent and who had persisted doing so despite written warning by the Respondent.

22.  But this Tribunal does not accept Respondent’s claim that the Applicant landlord could do something about these alleged illegal activities and words of the two ladies.

(1)  This Tribunal accepts Mr Yiu’s evidence that the Applicant does not own workshop 903 and 911 of the Building and that the said two ladies had nothing to do with the Applicant.

(2)  Unlike the Equal Opportunities Commission, the Applicant as a private landlord has, I find, no statutory or legal power to stop, or deal with, alleged racial discriminatory actions and words of the two ladies.

(3)  To the contrary, the Respondent knew full well that it could, as it had threatened in its letter to them, take the two ladies to court to stop their unlawful activities and words but, as Mr Punjabi admitted in the box, it elected not to do so because of funding problem.

23.  The above illegal activities and words taken or spoken by these two ladies do not, I think, provide reason or excuse for the Respondent to stop paying rent to the Applicant as it did.

(1)  They did not at law amount to frustration of the Tenancy Agreement which discharges both parties from their respective future obligations under the same. By January 2023, there remained more than 1 year of the term of the tenancy of the suit premises to run and there is ample legal redress that is open for the Respondent to take as against the two ladies. It can apply for injunction to stop them if it sees fit to so apply from District Court as it claimed to them.

(2)  The Applicant was, I think, not in breach of clause 8 of the Tenancy Agreement which promises the Respondent quiet enjoyment of the suit premises[19]. The said clause only prohibits the landlord, and no others, from interfering with tenant’s enjoyment of the rented premises. The two ladies above had, I find, nothing to do with the Applicant, which did not employ them nor instigated/instructed them in committing their illegal actions against the Respondent.

I.  Non-payment of Rent in Breach of Tenancy

24.  Hence, all 3 points raised by the Respondent in Form 7 do not assist it in resisting Applicant’s claim in Form 22. This Tribunal finds that the Respondent remained contractually bound by the Tenancy Agreement it had entered into to pay monthly rental in advance to the Applicant on the 8^th day of each month.

25.  As the parties had failed to reach early surrender agreement of the tenancy of the suit premises in September 2022 and January 2023, this Tribunal finds the Respondent in breach of the Tenancy Agreement in failing to pay monthly rental to the Applicant as from 8 January 2023.

J.  Forfeiture of Tenancy

26.  Clause 7 of the Tenancy Agreement allows the landlord to re-enter the suit premises (or forfeit its tenancy) after rent due has become unpaid for 7 days. By 13 February 2023 when Form 22 was filed, rent due from the Respondent for the month of January 2023 had been unpaid for more than 7 days.

27.  This Tribunal therefore ruled that the Applicant is entitled at law to serve Form 22 on the Respondent to forfeit its tenancy over Workshop 909, and that the Applicant is entitled to recover vacant possession of Workshop 909 from the Respondent.

28.  As the Respondent has, after forfeiture of its tenancy, continued in illegal occupation of Workshop 909, it is liable at law to pay damages for such occupation (i.e. mesne profit) to the Applicant until redelivery of vacant possession of Workshop 909.

29.  For the above reasons, this Tribunal entered the Judgment against the Respondent. But, pursuant to s.21F of High Court Ordinance[20], this Tribunal also gave the Respondent relief against forfeiture should it pay into Lands Tribunal within 7 days all outstanding rent arrears, mesne profit and costs awarded to the Applicant.

K.  Respondent’s Submissions

30.  Reading Mr Punjabi’s affirmation filed on the same day of Respondent’s Form 1 and considering Mr Punjabi’s submissions at the oral hearing of the Leave Application, it appears that the Respondent was pursuing the following grounds of appeal.

(1)  First, Mr Punjabi complained that the trial was fixed without Respondent’s consent to take place on Indian New Year Cheti Chand with only 3 days’ prior notice contrary to prescribed procedure of Lands Tribunal such that the Respondent was prejudiced in not having sufficient time to prepare the case or consult lawyers and that he was deprived of enough time of visiting friends and relatives for festival gatherings and making prayers at temple.

(2)  Secondly, Mr Punjabi complained that, after lunch, he found this Tribunal to be “one-sided” in favour of the Applicant (with 2 sentences of Applicant’s closing submissions repeated by this Tribunal in reasons for the Judgment) and that this Tribunal had “kept humiliating and silencing [him] by shouting at [him] in the name of translation lady needing more time to translate to landlord”, as a result he had his confidence reduced and kept forgetting what he wanted to say.

(3)  Thirdly, it was further complained that the Judgment failed to address fully the first ground of break clause raised in Form 7. This Tribunal was said to have erred in not finding for 12-month break clause (or not finding the tenancy to have expired in 12 months) and wrongly ordering the Respondent to pay rent for January, February and March 2023 exceeding that 12-month period.

(4)  Fourthly, this Tribunal was quoted to have said that it lacks jurisdiction over the break clause and, if that were the case, this Tribunal also, it was said, does not have jurisdiction over any other aspects of the Tenancy Agreement.

(5)  By way of fifth ground, it was said that the Judgment has failed to state clearly how the Applicant will pay back the Respondent the security deposit of $20,000 it had paid. Mr Punjabi said that he did not trust the landlord anymore.

(6)  A sixth matter that Mr Punjabi raised is that he had tried to raise at trial the issue of frequent air conditioner breakdown in Workshop 909 since June 2022 for many weeks to over a month (before a new split-type air conditioner was changed) but that he “forgot to mention that in Form 7”. There was massive leakage on his desk and floor in August 2022. Despite repairs by the Applicant, Mr Punjabi complained that the air-conditioner is still not working with leakage on his desk and floor from September 2022 till today. He requested that this important issue be allowed to be raised in new trial as his “memory is weak due to [his] age” or else that the Respondent needs to file a separate application for this issue with additional legal costs to it.

31.  All in all, the Respondent requested for a new trial to take place before a different neutral, fair and impartial tribunal to settle all issues once and for all with 14 clear days’ prior notice to it as prescribed by law. It asks for leave to appeal without any monetary or other conditions due to its inability to pay as it has right to fair and proper trial and that the Judgment be stayed pending outcome of its appeal.

L.  Applicant’s Submissions

32.  On the first ground of appeal, Mr Yiu for the Applicant pointed out that this Tribunal first proposed to hold trial on 8 May 2023[21] and indicated that the Respondent was required to pay into tribunal “security rental” for the months of January to April 2023 pending the result of the said trial but that Mr Punjabi rejected the said proposal on the ground that the Respondent had no money[22]. Because of such objection, the said trial was fixed instead to take place on 23 March 2023 without the Respondent having to pay any security rental.

33.  On 20 March 2023, Mr Yiu added, this Tribunal had also asked Mr Punjabi how much time the Respondent took to collect evidence and Mr Punjabi had himself answered “1 to 2 days”[23]. Hence, trial had been decided by this Tribunal to be held in 3 days’ time with the “consent or consensus” of the parties, including that of the Respondent.

34.  On the 2^nd ground of appeal, this Tribunal, Mr Yiu pointed out, only spoke in a loud voice but had never humiliated nor silenced Mr Punjabi. This Tribunal had just kept reminding him to allow time for the interpreter to do her translation job but that he did not.

35.  Regarding break clause i.e. the 3^rd ground of appeal, as far as Mr Yiu understood, this Tribunal has, he said, clearly decided that the Tenancy Agreement is one of 2 years[24]. That is binding on both parties to the agreement and both are obliged to follow it.

36.  For security deposit paid by the Respondent i.e. the fifth ground of appeal, Mr Yiu pointed to clause 7 of the Tenancy Agreement at page 1 thereof, which set out clearly the procedure and timing of their return that the parties could, and should, follow in the future.

37.  Moving to the sixth matter of air-conditioner complained by the Respondent, Mr Yiu recalled that Mr Punjabi did complain of that in late June 2022 by WhatsApp. The Applicant had sent in workers to check in early July 2022. Due to parts being not available for repair, workers had mid-July 2022 replaced a brand new air-conditioner for the Respondent. In late August 2022, the Respondent complained again of leakage from the new air-conditioner. The Applicant again sent in workers to check. Workers replied that there was no leakage or water dripping. Since then, the Applicant had received no more complaint from the Respondent regarding air-conditioner.

38.  Before he ended his submissions, Mr Yiu repeated that the Respondent was obliged to pay rentals of Workshop 909 for the months of January to March 2023 as it kept occupying it.

M.  Applicable Law on Leave to Appeal

39.  Any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment of the Tribunal on the ground that such judgment is erroneous in point of law: s.11(2) of Lands Tribunal Ordinance, Cap.17 (LTO).

40.  Leave to appeal shall not be granted unless the Tribunal hearing the application for leave is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard: s.11AA(6) of LTO.

N.  Discussion

41.  The first ground of appeal raised by the Respondent is, I think, misconceived at law and unfounded on facts.

(1)  The prescribed procedure that the Respondent had quoted in Attachment A of Mr Punjabi’s affirmation is rule 14(1A)(a) of Lands Tribunal Rules, Cap.17A, which reads: -

“In relation to an application for an order for possession of any premises—where a notice of opposition has been filed, the registrar shall as soon as practicable list the application for hearing and give notice to all parties, which shall be not less than 14 clear days, or such other period as may be agreed by the parties (bold and italics supplied)”.

(2)  The above rule relates to the duty of the Registrar of Lands Tribunal and not this Tribunal. And the said 14-clear-day notice requirement relates to the first hearing and not to trial hearing. In other words, the said rule has nothing to do with fixing of trial by this Tribunal after first hearing.

(3)  Notice of first hearing held on 20 March 2023 was in fact given to parties on 27 February 2023 by the Registrar (see [7] above). Hence, the said 14-clear-day prior notice requirement of the above rule has been satisfied in this case because the parties had not agreed for a notice period different from 14 clear days. Importantly, the said rule nowhere says that the parties’ consent is required for individual date chosen or fixed by the Registrar for the first hearing.

(4)  As such, the Respondent can point to no applicable legal rule or provision that prescribes that this Tribunal requires its alleged consent in fixing the trial date. Fixing of trial date is, this Tribunal believes, an administrative, and not a judicial, function.

(5)  As such, the Respondent has not been able to identify any error of law made by this Tribunal in the Judgment as required by s.11(2) of LTO to mount an appeal against it.

(6)  Further, as Mr Yiu rightly pointed out, at first hearing held on 20 March 2023, but for Mr Punjabi raising objection to this Tribunal’s proposal of requiring the Respondent to make interim payment on account of its continued occupation of suit premises, the trial would have been fixed to take place more than 1 month later on 8 May 2023 due to the diary of this Tribunal.

(7)  As a result of Respondent’s objection aforesaid, this Tribunal suggested to both parties to proceed with early trial on 23 March 2023[25] and, before making its final decision on that, expressly enquired both parties about availability of their witnesses and their collection of documentary evidence. Both parties then confirmed having only one witness and expressed having no problem bringing to tribunal on proposed trial date intended documentary evidence[26]. It was against such background that the trial was fixed to take place in 3 days’ time without any order of interim payment made against the Respondent.

(8)  On above enquiry by this Tribunal at first hearing on 20 March 2023, Mr Punjabi never raised the fact that 23 March 2023 was Indian New Year[27] nor objected to trial taking place on that day.

(9)  Neither did Mr Punjabi at any time before this Tribunal retired to chambers for deliberation on trial day inform this Tribunal about that day being Indian New Year or object to trial taking place on Indian New Year.

(10)  Considering that Applicant’s claim of non-payment of rent occurred as early as on 8 January 2023, that the Applicant filed Form 22 as early as on 13 February 2023, that the Respondent had raised as many as 3 grounds of opposition in Form 7, and that Mr Punjabi had managed to have collected many exhibits to produce at trial, including WhatsApp messages he exchanged with the Developer the day before trial, this Tribunal does not think it open to the Respondent to claim that it had insufficient time to prepare for trial.

(11)  Indeed, at the first hearing and on the trial day itself, Mr Punjabi never raised with this Tribunal its current complaint of insufficient trial preparation time nor applied to adjourn the trial on such ground or otherwise.

(12)  Considering the words “as soon as practicable” in the above rule quoted by the Respondent, the legislative intent is that early hearing date should be given for contested possession cases. Indeed, for relatively simple case where parties are ready, this Tribunal could have determined the application at the first hearing[28]. In other words, this Tribunal need not fix a trial hearing on a later date.

(13)  Had the Respondent had insufficient time to prepare trial as alleged by Mr Punjabi, given that it had admittedly no funding to instruct lawyers to take out proceedings even against the two ladies who defamed it, one thinks it most unlikely that it would have consulted lawyers to prepare its defence as alleged.

(14)  Had Mr Punjabi intended to enjoy festival gatherings or make prayers at temples on Indian New Year as alleged, the Respondent could also have authorized another person than Mr Punjabi as its AR to handle the trial so that Mr Punjabi could have left Lands Tribunal after finishing his duties as Respondent’s sole witness.

42.  The second ground of appeal raised by the Respondent, this Tribunal believes, does not raise any error of law in the Judgment either. Like the first ground above, this second ground is, this Tribunal thinks, also unfounded and another “afterthought”.

(1)  At no time during the trial hearing on 23 March 2023 did Mr Punjabi complain of this Tribunal of being allegedly biased or apply for this Tribunal to recuse itself.

(2)  The mere fact that this Tribunal in its long reasons for the Judgment had 2 sentences matching with the closing submissions or arguments of the Applicant does not, objectively speaking[29], suggest or indicate that this Tribunal was biased. This Tribunal had also in the Judgment not accepted submissions of Mr Yiu as to construction of the break clause at [17(3)(ii)] above.

(3)  One notices that Respondent’s complaints of alleged “humiliation” and “silencing” by this Tribunal are hollow and lacking particulars, save that “translation lady needing more time to translate to landlord”.

(4)  As a matter of fact, Mr Punjabi had really not accommodated the court interpreter at trial in doing her job of translation such that this Tribunal had no choice but to remind him in order to ensure a fair trial to all parties. This was also confirmed by Applicant’s submissions at the hearing of the Leave Application.

(5)  To put the record straight, this Tribunal had never “humiliated” nor “silenced” Mr Punjabi at trial as alleged. It is most regrettable that the Respondent had seen fit to make such false accusations against this Tribunal.

(i)  Had Mr Punjabi been “silenced” by this Tribunal as he claimed, the trial would not, one thinks, have lasted as long as from 0930 hours to 1807 hours[30] as it did. Mr Punjabi in fact started giving his evidence in the box before lunch.

(ii)  Had Mr Punjabi been “silenced” by this Tribunal as he claimed, he would not, one thinks, have elaborated and developed Respondent’s 3 grounds of opposition put down in Form 7 as he did in the box in the wide-ranging manners one needs to take such length to summarize in Sections C, F to H above.

(6)  As the summary of Mr Punjabi’s evidence at trial above may reveal, generally speaking, he came up to proof in the box (and produced the required exhibits) on 2^nd and 3^rd grounds raised by the Respondent in Form 7. There is no substance at all of Respondent’s allegation of Mr Punjabi rendered “forgetful” due to alleged “humiliation” and “silencing” by this Tribunal.

(7)  Had Mr Punjabi been “forgetful” in any way as claimed (and he gave no particulars of the matters that he forgot to say in the box, unlike the complaint of air-conditioners, and its particulars, that he “forgot” to put down in Form 7), it could well be caused by his own forgetfulness (due to age or otherwise) as he put down in his own affirmation.

43.  The third ground of appeal raised by the Respondent is, I think, equally unmeritorious.

(1)  Reading section F above, this Tribunal had no doubt fully addressed the first ground of break clause raised in Form 7 and found a “fixed-term” 2-year tenancy without break clause at all.

(2)  Save repeating Respondent’s claim at trial of 12-month break clause, Mr Punjabi had not identified in his submissions any error of law in the Judgment in this respect.

(3)  Had Mr Punjabi on behalf of the Respondent made any offer of 12-month break clause to the Applicant through estate agent, on his own evidence and that of Mr Yiu, such offer was, as this Tribunal found, never accepted by the Respondent to become a term of the Tenancy Agreement.

(4)  Assuming for the sake of argument that the parties had indeed agreed upon a 12-month break clause (which this Tribunal think there was none), it could not have, this Tribunal believes, assisted the Respondent either.

(i)  By 8 January 2023 when the Respondent defaulted on rental, 12 months have not elapsed since commencement of tenancy on 8 March 2022 for the Respondent to exercise the said alleged break clause.

(ii)  Neither did the Respondent on the trial evidence give the Applicant 12-month-long prior notice to end the Tenancy Agreement earlier than its otherwise expiry date.

(5)  Hence, the Respondent remained contractually bound to rent the suit premise until its expiry date of 7 March 2024 and pay its monthly rental when it became due on 8 January 2023 and, after forfeiture of its tenancy over the suit premises, it is liable at law to pay mesne profit for its illegal occupation thereafter.

44.  The fourth ground of appeal raised by the Respondent is, this Tribunal also believes, misconceived a matter of law. Mr Punjabi had apparently failed to understand what this Tribunal said on first hearing on 20 March 2023.

(1)  In view of first ground raised in Form 7, this Tribunal had on 20 March 2023 explained that this Tribunal may lack jurisdiction to grant to the Respondent the equitable remedy of rectification (in order to correct any alleged “inaccurate” record of the Tenancy Agreement over break clause) if the need arises and if the Respondent desires the same and that District Court should have jurisdiction to grant the same on Respondent’s application if the Respondent felt necessary to ask for it.

(2)  Without doubt, this Tribunal has jurisdiction under sections 8(6)[31] and 8(8)(a)[32] of LTO to grant the Judgment in favour of the Applicant if the Applicant proves its forfeiture claim (based on non-payment of rent) under the Tenancy Agreement i.e. make order for recovery of vacant possession of suit premises and make order for the payment of rents and mesne profits.

(3)  At the end of the day, in view of this Tribunal’s findings on the first ground raised in Form 7 i.e. there has not been any agreement reached among the parties on any break clause at all, the need to consider whether jurisdiction exists for grant of such remedy of rectification to the Respondent if it so desires simply did not arise at all.

45.  The fifth ground of appeal of the Respondent can be disposed of easily. It relates to security deposit paid by the Respondent to the Applicant. It formed no part of Applicant’s claim in Form 22 nor was it raised by the Respondent in Form 7. It was therefore not subject matter or issue to be decided at trial. This Tribunal therefore did not deal with it in the Judgment or the reasons for it. Hence, this Tribunal could not have committed any error of law in the Judgment about the security deposit and this ground of appeal does not arise at all.

46.  The sixth ground of appeal of the Respondent also fails, I think, for the same reasons above. Due to his own “forgetfulness”, Mr Punjabi had not put forward Respondent’s air-conditioner complaint in Form 7 to make it an issue to be decided at trial. Hence, this Tribunal had committed no error of law in the Judgment about this complaint and this ground of appeal is also a non-starter.

47.  In any event, Mr Punjabi had not in his submissions identified the clause(s) of the Tenancy Agreement or such other legal basis, if any, that the Applicant could be held liable at law to the Respondent for this air-conditioner complaint.

48.  And, lest it be forgotten by Mr Punjabi, the Respondent’s obligation to pay monthly rental to the Applicant under clause 1 of the Tenancy Agreement is not on its express terms subject to or conditional (or dependent) upon compliance of Applicant’s obligations under the Tenancy Agreement. At common law, the covenant to pay rent has been regarded as independent of the other covenants or obligations under a lease, including, for example, the covenant for quiet enjoyment. A tenant’s obligation to pay rent is not dependent upon the compliance by the landlord of its obligations under the lease[33].

49.  Therefore, it is, I think, not open to the Respondent to assert that it was not obliged to pay the monthly rental that became due on 8 January 2023 by reason of alleged breaches of the Tenancy Agreement, if any, on the part of the Applicant over any alleged non-functioning of the air-conditioner.

50.  All in all, the Respondent had, this Tribunal concludes, not been able to identify any arguable error of law made by this Tribunal in the Judgment or point to any arguable material irregularity prior to or made at trial. This Tribunal is thus not satisfied that the intended appeal enjoys any reasonable prospect of success or that there is some other reason in the interests of justice why it should be heard.

O.  Disposition

51.  Accordingly, I dismiss the Leave Application.

P.  Stay of the Judgment pending appeal

52.  An appeal shall not operate as a stay of execution of the proceedings or decision below. Unless a party could justify a stay of execution, a stay would not be ordered[34]. Mr Punjabi had not, this Tribunal notices, put forward in his submission any justification why the Judgment should be stayed pending Respondent’s intended appeal.

53.  The existence of an arguable appeal (i.e. an appeal with reasonable prospects of success) was the minimum requirement before a court would even consider granting a stay[35]. On my assessment in section N above, the intended appeal does not enjoy any reasonable prospects of success. As such, this Tribunal needs not even consider exercising its discretion to grant a stay in this case.

54.  The starting point at all times is that the successful party is not to be deprived of the fruits of success. In exercising discretion to grant a stay, the court must not forget the prejudice that would be caused to the successful party in the event a stay is granted and, if necessary, to impose conditions so as to minimize the prejudice caused to him. Ultimately, the court embarks on a balancing exercise[36].

55.  Had this Tribunal’s discretion to grant a stay been engaged in this case at all, given that the Respondent opposed paying interim payment pending trial, elected not to pay into court outstanding arrears and mesne profit to enjoy relief against forfeiture granted to it, and opposed to all sorts of monetary condition imposed for the intended appeal, this Tribunal would also have declined to exercise its discretion in Respondent’s favour after balancing the interest of the Applicant.

56.  Hence, had the Respondent applied in its Form 1 for stay of execution of the Judgment pending appeal, this Tribunal would also have dismissed the same.

Q.  Costs of the Leave Application

57.  Neither party applied for costs at the hearing of the Leave Application. I make no order as to the costs of the Leave Application. Court clerk do draft, file and serve on all parties sealed copy of all orders of this Decision.