XCHRX LAM PUI MAN SABRINA v. GUO SHAN LING AND ANOTHER

HCA 10549/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10549 OF 1999

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REASONS FOR DECISON

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1. This is an appeal by the Defendants against the decision of Master Cheung in granting leave to the Defendants to defend conditional upon the payment into Court of $52,000.00 by the Defendants. The Defendants in this appeal contend that they should be given unconditional leave to defend.

2. The Plaintiff is the owner of the premises known as Block B2 on the third floor and the car parking space No. 173, Maden Court, No. 46, Cloud View Road, Hong Kong ("the said property").

3. By a tenancy agreement dated 2 March 1998 made between the Plaintiff and the 1st Defendant, the 1st Defendant agreed to rent the said property from the Plaintiff for a term of 2 years at the monthly rent of $18,000.00. In respect of the said tenancy agreement, the 2nd Defendant acted as the guarantor of the 1st Defendant.

4. It appears not in dispute that for the period from 18 November 1998 to 17 July 1999, of the total rent payable under the tenancy agreement, the 1st Defendant only paid the sum of $40,000.00, leaving a balance of $104,000.00 which is the subject matter of the claim by the Plaintiff.

5. The Defendants' case is that as from October 1998, there had been extensive renovation work being carried out at the Maden Court and such renovation work resulted in excessive noise, flooding and high level of dust and air pollution and hence a breach of the covenant of quiet enjoyment.

6. The Defendants further suggest that there had been misrepresentation on the part of the Plaintiff by failing to mention to the 1st Defendant of the renovation work in question and had the 1st Defendant been aware of it, she would not have agreed to the tenancy agreement in question.

7. It is also the Defendants' case that the Defendant had either agreed to a reduced rent of $9,000.00 a month or that the Plaintiff had been accepting the reduced rent of $9,000.00 a month, and hence a waiver of the original term of the tenancy agreement.

8. The 1st Defendant continued to occupy the said property throughout the period in question and is still occupying it.

9. The basic premises, in my view, is that she must at least pay a reasonable rent for the affected period, and even on her own case, a reasonable rent would be $9,000.00 a month.

10. On the evidence before this Court, I am somewhat sceptical about the suggestion by the Defendants that that there had been an agreement to reduce the monthly rent to $9,000.00. Whether she is entitled to a reduction even in the absence of an express agreement, is perhaps a different matter and the matter can only be properly resolved at the trial.

11. But as I have observed in the course of counsel' s argument even putting the defence case at its highest, a monthly rent for the affected period of $9,000.00 was payable. I am not persuaded that the 1st Defendant could possibly be entitled to anything more than such reduction in rent.

12. The 1st Defendant, in my view, could not be allowed to continue to live in the said property and not paying the rent or at least a reasonable rent and at the same time, claimed to be entitled to damages for living at the said property because of its state arising out of the renovation work in question.

13. Even if the Defendants were to be successful at the trial, the 1st Defendant could only be entitled to a reduction of rent from $18,000.00 to $9,000.00 a month. That would leave an unpaid balance of rent of $32,000.00.

14. Whether the 1st Defendant could prove her case is a matter that can only be properly dealt with at the trial.

15. The order by the learned Master that the Defendants should pay into Court of $52,000.00 was probably made on the basis of the reduced rent of $9,000.00 per month. With pure conjecture on my part, she probably thought that there was a balance of rent of $52,000.00 even on the Defendants' case. If that was what the learned Master thought, there was a mistake on her part, as on the Defendants' case, the outstanding balance is only $32,000.00 and not $52,000.00.

16. Having said that, I am not persuaded that this is a matter of crucial importance.

17. The defence is not a sham one, the Defendants may not be acting mala fide on the evidence even though their allegations had not supported by direct evidence. The 1st Defendant probably does have genuine grievances arising out of renovation work in question, the extent of which may be beyond her expectation. But on the evidence before me, the Defendants could not have hoped for anything more than a reduction of rent to $9,000.00 a month even putting their case at its highest.

18. I am not here to deal with the nitty-gritty of the issues and to count every single dollar ordered by the Master. My duty is to decide whether there are matters upon which, in the proper exercise of her discretion, the learned Master could make the order as she did.

19. In my view, there are justifications for the Master to make the order as she did in the light of the undisputed evidence pertaining to the dispute between the parties. That being the case, there is no valid basis upon which I can properly interfere with the order made by the learned Master.

20. In the circumstances, the appeal has to be dismissed.