Shing Wai Man and Others v. Dorota Waszak

LDPD1641/2002

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No. 1641 of 2002

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JUDGMENT

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Background

1. The Applicants as the estate administrator of the late Mr. Shing Tso Fuk leased out to the Respondent the subject premises known as 2/F., No. 65 Heng Mei Deng Village, Mang Kung Uk, Clear Water Bay, Sai Kung ("the Premises"). According to the copy of Tenancy Agreement of the Premises ("Tenancy Agreement") dated 15 February 2002 produced as Exhibit A3 by the Applicants, the tenancy of the Premises was for a term of 2 years from 1 March 2002 to 28 February 2004, at a rent of $7,500 per month, inclusive of management fee, Government Rates and Government Rent. Under Clause 5 of the Tenancy Agreement, the tenant shall during the Term pay and discharge all charges in respect of water, electricity, gas and telephone and other similar charges payable in respect of the Premises. Also, under Clause 3 of Schedule II of the Tenancy Agreement, the tenant shall be entitled to a rent free period from 15 February 2002 to 28 February 2002, provided that the tenant shall be responsible for the charges of water, electricity, gas, telephone and other outgoings payable in respect of the Premises during such rent free period.

2. On 20 June 2002, the Applicants filed by Form 22 an application for recovery of possession of the Premises, rent, mesne profits and costs on the ground that the Respondent has failed to pay rent from 1 May 2002. In addition, the Applicants applied for recovery of the bill of electricity and water supply as well as any penalty surcharge.

3. The Respondent filed a Notice of Opposition by Form 7 on 3 July 2002, stating the following grounds for opposing the application:

1. The car park charge is 500HKD pm. Landlord promised 2 car parks without charge.

2. Landlord has not fixed some of the serious problems at the premises.

3. Landlord cut off the water and electricity supply of the premises, case reported to the Police.

4. Landlord harassed the tenant by sending a letter to the tenant's office, phoning the superior and sending his wife to the tenant's office to cause disturbance and embarrassment during the office hours in order to collect the rent. Case reported to the police.

5. Landlord continues to attack and insult the tenant in public places.

The Applicant's case

4. Mr. Shing Wai Man ("Mr. Shing"), 1st Applicant, gave evidence that he was the one from the three Applicants who dealt with the Respondents in relation to the subject tenancy. Before the signing of the Tenancy Agreement, the Respondent gave him two months' rent as deposit in cash as well as a cheque for the first month's rent. He accepted these payments but found that the cheque for the first month's rent bounced. When he contacted the Respondent regarding the bounced cheque, the Respondent paid him cash in lieu of the bounced cheque on or around 17 March 2002 and reiterated that she would not be late again for payment in rent. Since he understood that there was no HSBC branch near her workplace, he decided to open another account in a Bank of China branch so that she could find it more convenient to pay rent by direct deposit to that account. He acknowledged that the Respondent did pay one month's rent into his Bank of China account at around mid April 2002. He could not recall exactly the date of her payment since he had lost his bankbook. Thereafter, the Applicant said that the Respondent had not paid any rent for the Premises.

5. Mr. Shing gave further evidence that he had given copies of demand notes from the utilities, CLP Power and Water Authority to the Respondent by putting them in the latter's mail box. He produced as Exhibits A1 and A2 copies of bills from the said utilities. Despite of his reminders, the Respondent had only settled the water bill but not the electricity bills. Following a recess in the hearing held on 29 July 2002, Mr. Shing informed the Tribunal that he had contacted the utilities by telephone and had been informed that the payment position remained unchanged.

6. Mr. Shing produced a number of documents, Exhibits A1 to A8, in support of the application. He in particular made reference to the Tenancy Agreement (Exhibit A3), which did not include the provision of any parking space. Also, he submitted that he had only agreed to install air-conditioners and kitchen cabinets to the Premises, which was otherwise leased out on an "as is" basis. After the installation of air-conditioners and kitchen cabinets, the Respondent refused to pay rent any more.

The Respondent's case

7. The Respondent gave evidence herself. She agreed with Mr. Shing that as at the date of this application, she had not paid the rent for the Premises from 1 May 2002. The outstanding rents remained unpaid as at the date of hearing. Also, although she originally disagreed with what Mr. Shing said regarding the payment of electricity charges, she later retracted and agreed that she had not paid any electricity bill. However, she explained that that was due to a number of reasons. Firstly, the bill was not addressed to her. Secondly, Mr. Shing called her in the middle of the month and asked her to settle the bills. The bills were not something within her budget so she told Mr. Shing that she would only be able to settle the bill in the following month. Thirdly, one of the electricity bills included a period before her possession of the Premises. Lastly, she claimed that she had only received the water bill but not the electricity bills.

8. The Respondent agreed that she had not given up possession of the Premises to the Applicants even though she had, in an earlier letter dated 30 June 2002 sent to Mr. Shing, said that she would be willing to give up possession within 6 weeks. This is because, the Respondent said, Mr. Shing continued to insult and attack her after receiving her letter. At the end of hearing, when being asked by the Tribunal whether she would give up possession of the Premises to the Applicants, the Respondent said that she would be prepared to give up possession at the end of September 2002 if the Applicants did not accept her demands.

9. Regarding the grounds of opposition as stated in her Notice of Opposition, the Respondent gave evidence that the Applicants did not provide a car park for her use. She said that even though the provision and use of a car parking space was not stated in the written Tenancy Agreement, it was part of an oral agreement between Mr. Shing and her. She had asked to include the provision of a car parking space in the Tenancy Agreement but was advised that that was unnecessary since parking space number was not yet available. After she had moved in, she was told that she had to pay an extra sum for parking if she needed to park her car.

10. The Respondent claimed that both the interior of the Premises and its exterior environment were not to a standard as to she had envisaged, bearing in mind, in particular, that the Premises was a newly completed house and that she had agreed a rent that was higher than market rate for the Premises. She quoted instances of million of insects flying inside her flat because the window shutters were not properly finished. The access to the house was difficult and dangerous. She agreed that Mr. Shing had arranged repairing of the water closet. Despite of her request, Mr. Shing refused to repair the bathing basin.

11. The Respondent gave evidence that Mr. Shing had harassed her by cutting off the electricity and water supply, the mains of which were on the ground floor outside the house. She had reported to the Police and the CLP Power. She finally had to re-connect the water supply by herself, and to arrange an electrician to re-connect the electricity supply.

12. The Respondent gave detailed accounts as to when, what and how Mr. Shing and / or his wife had harassed her by sending to her employer a letter, telephoning her employer, and also insulting and verbally attacking her at her workplace, a kindergarten and in public places. She had reported the incidents to the Police.

Analysis of the grounds of opposition

13. Regarding the provision of car park, there was conflicting evidence from Mr. Shing of the Applicants and the Respondent. On the balance of probabilities, the Tribunal decides to accept Mr. Shing's evidence. The provision of car park is an important term of any lease of domestic premises. It defies common sense that the stipulation that the premises included a car park had to be excluded simply because there was no definite car parking number designation at the time of agreement of the tenancy for the Premises. The parties could well state in the Tenancy Agreement the provision, its usage, and even its location without specifying the exact car parking number.

14. As regards the ground of opposition no. 2 that "the landlord has not fixed some of the serious problems at the premises", there was not sufficient evidence of the "serous problems" alleged. More importantly, however, the Tribunal notes that clause 1 of the Tenancy Agreement requires that "the Tenant had to pay the Landlord the Rent in advance on the first day of each and every calendar month during the Term". Therefore, the rent had to be paid every month without any deduction to account for any claim in respect of for example, the condition of the Premises caused by the "serious problems" as alleged by the Respondent, that the Tenant might have on the Landlord. There was no dispute as to the actual amounts of rents paid by the Respondent to the Applicants. Therefore, the Tribunal decides that this ground of opposition fails.

15. Finally, the grounds of opposition nos. 3 to 5 relate to, as rightly pointed out by the Respondent, the subject matter of harassment of tenant. However, this is a matter of criminal law. Since the Respondent had already reported the matters to the Police. She should enquire with the Police regarding the outcome of the investigation of the Police. She might also consider consulting her lawyers regarding her civil rights in that respect. Suffice to say that all these grounds, whether proved or not, do not remove the Applicants' rights to apply for recovery of possession, arrears of rent, mesne profits, utilities charges and costs.

16. The only dispute that has to be determined rests in the amount of electricity charges payable by the Respondent. Although there was a difference of evidence between Mr. Shing and the Respondent regarding the service and receipt of the electricity bill, the Tribunal finds on balance that Mr. Shing's evidence is to be believed. It was very unlikely that Shing would only place in the Respondent's mail box a copy of the water bill, but not that of electricity bill. Besides, the Respondent already gave evidence that she did not pay the bills because that was not addressed to her and that Mr. Shing had asked her to pay at the middle of the month, a time inconvenient to her. Yet, even at the end of the hearing held on 31 July 2002, the Respondent admitted that none of the electricity bills had been settled by her. However, regarding the first electricity bill issued on 12 April 2002, it is noted that the period of the bill was from 8 February 2002 to 12 April 2002. Since the evidence was that the Tenancy Agreement was signed on 15 February 2002 and the rent-free period started to run from 15 February 2002, there was no evidence on the meter readings on 8 February and 15 February 2002, the Tribunal finds it impossible to do the apportionment of this first electricity bill. Therefore, the Tribunal chooses not to decide on the liability for that bill. Other than that, the Tribunal decides that the Applicants be entitled to what they applied for in their Application.

Orders

1. The Respondent shall deliver vacant possession of the Premises to the Applicant'

2. The Respondent shall pay the Applicant arrears of rent from 1 May 2002 to 30 June 2002 at the rate of $7,500 per month, totaling $15,000;

3. The Respondent shall pay the Applicant mesne profits from 1 July 2002 to the date of delivery up of vacant possession at the rate of $7,500 per month;

4. The Respondent shall pay the Applicant the charges in respect of electricity in respect of the Premises for the period from 12 April 2002 to 11 June 2002 in the sum of $1,254;

5. The Respondent shall pay the Applicant's costs of this Application which is summarily assessed in the sum of 1,000;

6. Upon the Respondent paying to the Applicant the sums in paragraphs 2 and 4 hereinbefore mentioned within 4 weeks from the date hereof, the Respondent be relieved from forfeiture and the Respondent may hold the Premises according to the lease in question without any new lease and that all future proceedings in this Application be stayed;

7. In default of the Respondent paying to the Applicant the sums in paragraphs 2 and 4 hereinbefore mentioned within 4 weeks from the date hereof, the orders in paragraphs 1 to 4 herein may be enforced forthwith and the Respondents shall be barred from all relief;

8. Payment out to the Applicant upon payment in by the Respondent, if any.