Kar Lok Investment Co Ltd v. Siu Pui To

DCCJ4139/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4139 OF 2015

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REASONS FOR DECISION

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1.This is the hearing of the defendant’s appeal against the decision by a master, namely Registrar Lui, on 27 November 2015 when he granted summary judgment against the defendant upon an Order 14 application made by the plaintiff (“the Order 14 Summons”).

2.I dismissed the defendant’s appeal at the hearing on 18 January 2016 and said I would provide the reasons for my decision in due course.  Here are the reasons.

BACKGROUND

3.By a tenancy agreement dated 24 November 2014, the plaintiff let a premises on Shaukeiwan Road, Hong Kong to the defendant for a term of two years from 1 December 2014 to 31 November 2016 at a sum of HK$13,000 per month upon the terms and conditions contained therein (“the Tenancy Agreement”).  The defendant failed to pay the arrears of the rent for a period of 4 months from 1 June 2015 to 30 September 2015 in the total sum of HK$52,000.

4.By a writ of summons dated 9 September 2015, the plaintiff commenced the present action to recover, inter alia, the arrears of rent and vacant possession of the premises.  The defendant has given notice of intention to defend on 22 September 2015 and filed a defence on 19 October 2015.

5.On 4 November 2015, the plaintiff issued the Order 14 Summons.

6.After hearing submissions from both sides, Registrar Lui made the following order against the defendant:-

(a) Vacant possession of the premises;

(b) 4 months’ arrears of rent in the sum of HK$52,000;

(c) Mesne profits at the rate of HK$13,000 per month from 1 October 2015 until date of delivery of vacant possession of the premises to the plaintiff; and

(d) Costs of the action including the Order 14 application, which has been summarily assessed at HK$15,000, to be paid by the defendant to the plaintiff;

with the usual condition for relief from forfeiture if the defendant pays into court on or before 11 December 2015, the said arrears of rent, mesne profit and costs. (“Registrar Lui’s Order”)

7.The defendant appealed against Registrar Lui’s Order.

8.The defendant does not dispute that the rent claimed under the statement of claim had never been paid by him.

9.However, the defendant failed to file any affidavit/affirmation to show any cause or reason to resist the summary judgment application made by the plaintiff before Registrar Lui.

10.Only bare assertions had been made by the defendant in this case.  They were first made by him in the defence and the same were repeated in his affidavit filed for the purpose of the present appeal (“the Affidavit”).  In the Affidavit, the defendant has simply stated in 2 short sentences that Registrar Lui’s Order was unreasonable and that he refused to pay rent because the plaintiff had not fulfilled its obligation to maintain certain parts of the premises.  It must be emphasised here that no exhibits or documentary evidence have been produced by the defendant in support of his bare assertions.

11.Under Order 58, rule 1(4) of the Rules of the District Court (“the RDC”), no further evidence other than the evidence before the master may be received on the hearing of an appeal except on special grounds.  Since there was no application made by the defendant to adduce such further evidence, and if the defendant did, without doubt, the plaintiff would have objected to any such further evidence being adduced in any event.  Hence, there is really nothing in terms of evidence before this court for its consideration in relation to the defendant’s case.

APPLICABLE LEGAL PRINCIPLE

12.The legal principles for Order 14 applications are trite and there is no need for me to repeat them here.  Suffice to say that the underlying policy of summary procedures is to prevent a defendant from delaying a plaintiff from obtaining judgment in a case where a defendant clearly has no defence to the plaintiff’s claim.  The court will look at 2 things:-

(1) Is what the defendant says credible, as opposed to whether the defendant’s assertions are to be believed; and

(2) If it is, is there a fair or reasonable probability of the defendant having a real or bona fide defence.

13.The onus is always on the defendant to show that there are triable issues or an arguable defence.  And it is the court’s duty to give judgment for the plaintiff when it is satisfied that not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant: See Hong Kong Civil Procedure 2016 §§14/4/1 - 14/4/9.

DISCUSSION

14.As explained to the defendant at the hearing, I find the so-called defence put up by him totally without any foundation, principally based on 2 reasons.  They are:-

(a) a tenant’s independent obligation to pay rent; and

(b) total lack of particulars in the defence and evidence in support of the defendant’s case.

15.On (a) above, it has been firmly established that, in the absence of any express agreement to the contrary, a tenant’s obligation to pay rent is independent of any other term or condition of a tenancy agreement. As such, the plaintiff’s entitlement to the rent in this case under the Tenancy Agreement is beyond any shadow of doubt.  The defendant has not, and in any event not entitled to, set up any valid set-off under the Tenancy Agreement. Hence, in my judgment, the alleged failure to repair is simply no defence to the summary judgment application made by the plaintiff in this case: See Charmway Development Ltd v Long China Engineering Limited [2001] 3 HKC 515, per Chu J (as she then was) and Ridge Ltd v Golden Castle Ltd [2005] 3 HKC 592, at §§11 to 18 at pp 594-596.

16.On (b) above, as stated, the burden is on the defendant to show that there are triable issues or an arguable defence.  Further, the defendant is required to provide an affidavit which must condescend upon particulars with sufficient facts and particulars to show there is a triable issue.  Mere assertion does not provide leave to defend.

17.I find that neither in the defendant’s defence nor in the Affidavit filed for the purpose of this appeal, the defendant has given any particulars of the alleged defects/want to repair or alleged request to the plaintiff to carry out such repairs, such as letters or photos, in support of his alleged defence.  I agree with the plaintiff’s counsel that what the defendant says is not credible and is merely a tactic to delay payment of the rent. Further, the Affidavit contained mere bare assertions without any factual foundation or any documentary evidence in support.  As such, I have no difficulty in dismissing the defendant’s appeal on this ground also.

CONCLUSION

18.For the aforesaid reasons, I dismissed the defendant’s appeal at the hearing and upheld Registrar Lui’s Order.  I also ordered the defendant to pay the plaintiff’s costs of this appeal, such costs to be taxed if not agreed with certificate for counsel.

Mr Jonathan Chan, instructed by John Ho & Tsui, for the plaintiff

The defendant not represented and appeared in person