Case Document

LDPD 643/2017

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 643 OF 2017

_________________

BETWEEN
	WHITE DRAGON LIMITED	Applicant
	and
	EVERTIME TECHNOLOGY DEVELOPMENT LIMITED	Respondent

_________________

Before: Mr Lawrence PANG, Member of the Lands Tribunal

Date of Hearing: 21 April 2017

Date of Trial: 10 & 11 July 2017

Date of Judgment: 9 August 2017

_________________

JUDGMENT

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Background

1.The applicant is the registered owner of the property known as Flat B on 18/F of Block 1, Cavendish Heights (“the Estate”), No 33 Perkins Road, Hong Kong (“the Premises”). By a “Tenancy Agreement” dated 13January 2016 between the applicant and the respondent (“the T/A”), the applicant let the Premises to the respondent for residential purpose for a period of 3 years from 15February 2016 to 14 February 2019 at a monthly rent of $88,000 (inclusive of management fee, Government rates and Government rent).

2.In Schedule II to the T/A, there exists however a break clause whereby the respondent and the applicant shall be entitled to terminate the tenancy by serving not less than 2 months’ written notice or by paying 2 months’ rent in lieu to the applicant provided that the T/A shall not be terminated earlier than a date which shall be 26 months from the commencement date of the tenancy.

3.On 30 March 2017, the applicant applied to the Tribunal for recovery of possession of the Premises on the ground that the respondent had failed to pay rent from 15 February 2017.

4.In its Notice of Opposition dated 3 April 2017, the respondent replied that, inter alia,

(1)   it has given 3-month notice to the applicant for early termination of the T/A;

(2)   it agreed to return the keys and vacate the Premises to the applicant on or before 15 April 2017;

(3)   it agreed to pay interest for the 2-month’s rent;

(4)   it has assisted the applicant in finding replacement tenant so as to minimize the applicant’s loss;

(5)   according to the management office of the Premises, there will be a major renovation starting mid-April 2017 that will include scaffolding works and structural change to the building thereby breaching the T/A.

Hearing on 21 April 2017

5.Notwithstanding (1) above, in the hearing on 21 April 2017, it transpired that the respondent only served a written notice dated 20 February 2017 proposing to determinate the T/A on 15 April 2017 on the ground of renovation of the Estate.[1] This discrepancy, if any, is however immaterial because the respondent had no right to terminate the T/A or surrender the T/A by returning the keys to the Premises before the T/A expires or before the time comes when the break clause can be exercised.

6.Nor does the respondent have the right to repudiate the T/A on ground (5) above.

7.Clause 8 of the T/A contains a covenant for quiet enjoyment as follows:

“Provided the Tenant shall have paid the Rent and other outgoing on the days and in the manner herein provided and observe and perform the terms and conditions herein contained and on the Tenant’s part to be observed and performed, the Tenant shall peacefully hold and enjoy the Premises during the Term without any interruption by the Landlord.”

8.It is undisputed that the respondent had ceased to pay rent since 15 February 2017. By that time, the major renovation had not yet started. But even if it were otherwise, the covenant does not extend to acts of a stranger notwithstanding that he purports to claim under the landlord.

9.In law, for the purpose of considering whether there is a breach of the covenant for quiet enjoyment or interruption by the landlord, a person will be regarded as one claiming under or in trust for the landlord if he is a successor in title to the landlord, or he has actual authority from the landlord to carry out the acts (complained of). In Chong Lap Fu George v. Hydra Shipping Services Limited and Others [2009] 4 HKC 445, however, HH Judge Au (as he then was) held that the Incorporated Owners is an entirely separate and distinct person from the individual owners as landlord in a lease. Likewise, in my opinion, the purported act of the management office in the present case cannot be attributed as act of the applicant in breaching the covenant for quiet enjoyment or Clause 8 of the T/A.

10.In spite of the above, Mr Ben Wong (“Ben”), the director of the respondent, submitted that his family (of 5 including a baby) had experienced the chaos of building renovation during a prior tenancy for another premises and it was his concern before signing the T/A. He had enquired if the Premises would be subject to major renovation. He alleged and to an extent Ma Kyin Htwe (hereinafter referred to as “Mrs Wong”) appearing for the applicant agreed that she gave a reply that there had been talks of the renovation for several years but that would not occur soon. To his surprise, the respondent received a notice from the management office dated 11 January 2017 (“the January Notice”) stating that an Extraordinary General Meeting for Major Renovation Works would be held on 12 January 2017 for the selection and appointment of the contractor.

11.Together with this notice is a chart showing the “Workflow of Preparation Works for Proposed of Major Renovation Work of Cavendish Heights Blocks 1-7” (“the Flow Chart”)[2]. For instance, it shows that on 9 February 2011, an owners’ meeting agreed to plan for the preparation of the major renovation. More particularly on 17 December 2015, ie after a lapse of nearly 5 years, resolution was passed at an Extraordinary General Meeting for the selection of the conceptual design and on 17 November 2016, tenderers for the renovation contract were invited to attend an interview with the consultant appointed by the Estate.

12.Further on 8 April 2017, the respondent received a notice from the management office (“the April Notice”)[3] that renovation of the Estate would start on 10 April 2017 which would last about 360 days. The respondent intimated that after signing the T/A, he had incurred some HK$200,000 in renovating the 2 bathrooms in the Premises and he regretted that he was misled into signing the T/A.

13.Premised on the applicant’s misrepresentation, the respondent sought to terminate the T/A. Ben confirmed that he had, in the absence of agreement by the applicant, deposited the keys to the Premises in the letter box for the Premises on 14 April 2017. Although in such regard, I had directed that the applicant can re-enter the Premises, the applicant would like to claim all consequential losses resulting from such early termination of the T/A.

14.Despite a short adjournment was granted, Mrs Wong and Ben could not come to terms with each other and therefore, the case was set down for trial.

Applicant’s Witness Statement for Trial

15.Mrs Wong, on behalf of the applicant, submitted her witness statement on 18 June 2017. Mrs Wong alleged that when the applicant and respondent signed the T/A on 13 January 2016, the respondent and its agent were aware of a possible building renovation plan in the Estate though the exact date was not confirmed by the management office. Mrs Wong suggested that they therefore negotiated the rental price from HK$93,000 per month to HK$88,000 per month. Then, the respondent had continued to pay rent of HK$88,000 per month for 12 months but not so since 15 February 2017.

16.Following my direction on 21 April 2017, Mrs Wong conducted an inspection of the Premises and found a large pile of trash was left behind in the rooms and kitchen (with photos). She submitted there were visible wears and tears on furniture and restrooms which might be caused by respondent’s pet without her knowledge[4].

17.As a result, the applicant claimed against the respondent:

(1) the balance of rent for the remaining term of the T/A at $88,000 per month x 14 = $1,232,000;

(2) Cleaning, Repairs and Repainting costs in the region of HK$100,000.

Respondent’s Witness Statement for Trial

18.Ben, on behalf of the respondent, submitted his witness statement on 16 June 2017 (in Chinese).

19.Firstly, Ben referred to Reg 30 & 31 of the Building (Planning) Regulations, in accordance with which every room used for habitation shall be provided with one or more windows facing into a space uncovered and unobstructed above the area delineated by the rectangular horizontal plane, etc. Thus, Ben submitted that, §4 of the April Notice which requested the owners/occupiers to close and lock the windows and balconies amounted to breaching the Building (Planning) Regulations.

20.According to Ben, he was in January 2017 aware of the applicant’s breach of the landlord’s covenant by failing to provide the Premises with 4 rooms within the term of the T/A and failing agreement with the applicant on returning the rental deposit and paying compensation, he could not but withhold payment of rental.

No Breach of Building (Planning) Regulations

21.Firstly, I find there has been no breach of the Building (Planning) Regulations as evinced from the April Notice. §4 of the April Notice only suggested the owners/occupiers to close and lock the windows and balconies during the renovation works for the sake of safety and cleanliness. There has been no compulsion even when it suggested that the contractor would apply the necessary protective measures to the windows etc.

22.More particularly, under section 41 of the Buildings Ordinance (“the BO”), building works (other than drainage works, ground investigation in the scheduled areas, site formation works or minor works) which do not involve the structure of the building are exempted works.

23.In addition, in Wing Hong Investment Company Limited v Fung Sok Han & Others, [2016] 1 HKLRD 1, the defendants there also claimed that the plaintiff in that case had converted the ground floor carport into shops in contravention of the BO. Honourable Judge Chan of the High Court found there is no provision in the BO to suggest it is an offence to adopt a user of premises which is materially different from that stated in the Occupation Permit (at §235). Thus even if I am wrong on the issue of works exemption, the closing or locking up of the windows etc is a non-issue.

24.Again, as explained in §§8 & 9 above, such closing or locking up of the windows etc cannot be regarded as breach of quiet enjoyment of the Premises.

Representation by the Applicant

25.In fact, during the hearing on 21 April 2017 or the trial on 10 & 11 July 2017, Ben emphasised that he was misled into signing the T/A when Mrs Wong told him that the major renovation would not come soon.

26.Ben denied he was aware of the forthcoming renovation when he signed the T/A as suggested by Mrs Wong in her witness statement as per §15 above. He even produced a statement dated 10 July 2017 by a Mr Daniel Lam (“Mr Lam”), an estate agent of Centaline Property Agency Limited who had brought together the parties into a Preliminary Tenancy Agreement (“PTA”) on 6 January 2016 prior to the signing of the T/A[5]. Categorically, Mr Lam stated he was not aware that the renovation was forthcoming on 13 January 2017. Neither did he know that the Estate owners had passed resolution and appointed contractor for the purpose of renovation; otherwise, he would not have introduced the Premises to the respondent.

27.Mr Lam also explained in the statement that the reduction of the rental from HK$93,000 per month to HK$88,000 per month in the negotiation had nothing to do with the major renovation of the Estate but was only to reflect the respondent’s intention to have the 2 bathrooms in the Premises renovated.

28.Although Mr Lam was not called to give evidence, his statement or the contents thereof were not disputed by the applicant. In fact, during cross-examination, Mrs Wong conceded that her statement as cited in §15 above was a little off the mark. Mrs Wong stated in January 2016, neither could she speculate on how soon the major renovation would come.

29.Under section 2 of the Misrepresentation Ordinance,

“Where a person has entered into a contract after a misrepresentation has been made to him, and—

(a) the misrepresentation has become a term of the contract; or

(b) the contract has been performed,

or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Ordinance, notwithstanding the matters mentioned in paragraphs (a) and (b).”

30.To establish fraudulent representation, the respondent must establish lack of honest belief of the applicant or more properly Mrs Wong that the representation of the major renovation not forthcoming soon was true (either knowledge of the falsehood or reckless as to this) and the intention that the respondent or Ben should act on the representation.

31.As mentioned in §28 above, Mrs Wong was cross-examined by Ben.

32.In Hui Cheung Fai & Anor v Daiwa Development Ltd, HCA 1734/2009 (unreported, 8 April 2014) at §§78-82:

“78. In deciding whether to accept a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5th May 2011) §39 (Chu J).

79. In determining a witness’s credibility, I have also attached importance to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination…”

33.I accept that Mrs Wong is a reliable witness and has good memory, for instance, in recounting what happened after she found the respondent default in paying rental and the discussion with Ben together with her husband on 24 March 2017 with a view to reaching some sort of settlement. According to Mrs Wong, she is a retired doctor.

34.But on what happened just prior to signing the T/A or PTA in January 2016, Mrs Wong’s evidence was a little convoluted. She can only remember that she and Ben did not really discuss the major renovation issue but she could not deny that Ben had ever raised a question on renovation. Taking into account the contemporary document, ie the Flow Chart as well as Ben’s evidence, I find, however, as stated in §10 above, it was Mrs Wong’s genuine belief that the major renovation would not have come so soon and she had answered Ben to that effect.

Recklessness

35.Was Mrs Wong’s answer on the major renovation made recklessly?

36.In Derry v Peek (1889) 14 App Cas 337 at 374, Lord Herschell pointed out that the representor will be fraudulent if he made the statement “recklessly, careless whether it be true or false”. Nevertheless, he was at pains to emphasise that negligence is not sufficient for deceit, since recklessness involves not caring whether the statement is true. The expression “not caring” had nothing to do with not taking care, it meant not caring in one’s own heart and conscience whether the statement is true or false. It is well established that to establish common law deceit, a degree of dishonesty or moral turpitude has to be present. In this context, the moral obliquity consists of an indifference to the truth, a wilful disregard of the importance of the truth (Joliffe v Baker (1883) 11 QBD 255 at 275; Angus v Clifford [1891] 2 Ch 449 at 471; Le Lievre and Dennes v Gould [1893] 1 QB 491 at 501; Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573 at 587g to h; Lee Yuk Shing v Dianoor International Limited, CACV 185/2015 (unreported, dated 23 May 2016)). I am not persuaded that Mrs Wong was deliberately closing her eyes to the truth or that she had any kind of dishonest mind.

Representation as to the Future

37.By reference to Chapter 7 of Chitty on Contracts (32^nd ed, 2015 at 7-006), a misrepresentation must be a false statement of fact, past or present, as distinct from a statement of opinion , or of intention or a mere commendatory statement. More particularly, “a mere statement of opinion which proves to have been unfounded, will not be treated as a misrepresentation .”

38.Similarly, that Mrs Wong’s representation on major renovation was not actionable is also supported by Anson’s Laws of Contract,30^th Edition at p323:

“An expression of the speaker’s intention, a promise and a prediction about the future are not normally misrepresentation. None of these can be regarded as true or false at the time when it is made, except in so far as a person may misrepresent the state of his or her own mind or power to bring an event to pass.”

39.As emphasised by Mrs Wong both at the hearing on 21 April 2017 and during cross-examination on 11 July 2017, the talk on major renovation of the Estate had been going on for many years. This is evidenced by the Flow Chart which shows that the renovation might have been initiated as early as in February 2011. Also, by reference to the Flow Chart, it was only on 17 December 2015 that the owners of the Estate decided on the scheme design. Mrs Wong was entitled to rely on the history and her experience of the past to formulate her opinion that the renovation would not have come so soon. More importantly, it was Ben’s own evidence that he only realised the prospect of renovation when he received the January Notice in 2017.

40.If otherwise I am wrong above, that is, someone with a reasonable mind should have realised as at January 2016 that the renovation would be imminent, the same would be true for the respondent for the reason that Ben and his family had resided at the Premises for 1 year before raising the issue of misrepresentation. This lapse of time is a good evidence of the respondent’s affirmation of the T/A despite the misrepresentation, if any.

41.Thus, I am of the opinion that the respondent has no legal ground to terminate the T/A unilaterally on the ground of misrepresentation or otherwise.

Liability for Damages

42.Clause 7 of the T/A provides that:

“... If the Rent and/or any charges payment by the Tenant hereunder or any part thereof shall be unpaid for seven (7) days after the same shall become payable (whether legally demanded or not) or if the Tenant shall commit a breach of any of the terms and conditions herein contained, it shall be lawful for the Landlord at any time thereafter to re-enter the Premises whereupon this Agreement shall absolutely terminate and the Landlord may deduct any loss or damage suffered by the Landlord as a result of the Tenant’s breach from the Security Deposit without prejudice to any other right of action or any remedy of the Landlord in respect of such breach of the Tenant.”

43.Whereas it is theoretically possible for the applicant for the applicant to re-enter the Premises based on the above provision, the re-entry must be peaceful; otherwise, the applicant will be liable for prosecution under section 23 of the Public Order Ordinance. In addition, under section 119V(1) of the Landlord and Tenant (Consolidation) Ordinance, Cap 7, if the respondent does not leave the Premises and the entry is not justified, the applicant would be liable for unlawful eviction. Therefore, it would be prudent for the applicant to obtain an order for possession by the court.

44.On the other hand, returning the keys to the Premises by the respondent to the applicant on 14 April 2017 did not take effect automatically as a surrender of the T/A by operation of law. In Oastler v Henderson (1877) 2 QBD 575, Artworld Financial Corp v Safaryan [2009] EWCA Civ 303 and more recently in Padwick Properties Limited v Punj Lloyd Limited [2016] EWHC 502 (Ch) and Levett-Dunn & Others v NHS Property Services Limited [2016] EWHC 943 (Ch), a number of propositions were enunciated:

(1) Accepting back the keys without more will always be equivocal. As a matter of practicality and common sense, one party has to hold the keys to prevent an absurd situation in which they are passed back and forth because neither party wants to risk it being suggested that it has made an admission by holding them.

(2) Any act of the landlord which is consistent with its rights under the lease, such as entering the premises to inspect or to repair them, will not in itself give rise to a surrender because, by definition, it is not inconsistent with the lease continuing.

(3) Any further act of the landlord which amounts to protecting or preserving the property, such as taking security measures or doing necessary repairs, will not in itself give rise to a surrender because such self-help, necessary to preserve the landlord's interest in the value of his property, is a reasonable response to the tenant's evinced intention not to perform the obligations of the tenancy.

(4) Any further act of the landlord referable to the landlord's seeking to re-let the premises will not necessarily give rise to a surrender by operation of law, as it is no more than what the landlord might reasonably be expected to do in the circumstance for the potential benefit of all parties. The landlord must be entitled to seek to mitigate the damage caused in reality (even if not yet technically in law so long as the lease remains extant) by the tenant's abandoning the lease, by seeking to obtain another tenant, without thereby losing his rights against the original tenant if he is unable to do so.

45.In fact, the re-entry of the Premises by the applicant only took place on 22 April 2017 pursuant to my direction on 21 April 2017. Then on 29 June 2017, the applicant found the replacement tenant. In my view, the time taken in successful re-letting of the Premises is not unreasonable taking into account particularly the major renovation going on etc.

46.In any event, in Well Century Holdings Limited v Leung Kam Yu [2003] 2 HKLRD 653, the Court of Appeal held that, as a matter of principle, common law remedies could co-exist with the forfeiture remedy. A landlord could forfeit the tenancy if the lease allowed it for a breach, and where the breach was repudiatory, the landlord could also invoke common law remedies, such as seeking damages for the “unexpired term”. This is now pursued by the applicant.

Rental Loss

47.In the present case, the respondent had wrongly repudiated the T/A. Indeed, the respondent had refused to pay rent since 15 February 2017. Now the applicant claims damages for the unexpired term[6].

48.In the meantime, however, the applicant has successfully re-let the Premises. By a Tenancy Agreement dated 29 June 2017, the Premises have been let (via the same property agency but not Mr Lam) for a term of 2 years from 3 July 2017 to 2 July 2019 at a monthly rental of $65,000 subject also to a break clause whereby the tenant shall rent the Premises for at least 14 months. Thus, the applicant has revised its claim as follows:

For the period from 15 February 2017 to 2 July 2017:

HK$88,000 x (4 + 18/30) = HK$404,800

For the period from 3 July 2017 to 14 February 2019:

HK$23,000 x (19 + 12/30) = HK$446,200

49.As pointed out by Ben, the second calculation is wrong because by the break clause in the T/A, either party is entitled to terminate the T/A not earlier than a date which shall be 26 months from 15 February 2016, ie not earlier than 14 April 2018. The second calculation should be revised as follows:

HK$23,000 x (9 + 12/30) = HK$216,200

50.That is, the total damages for the unexpired term should be

HK$404,800 + HK$216,200 = HK$621,000

subject to deduction of the 2-month deposit (HK$176,000) held by the applicant.

51.Here, the respondent took issue on the amount of monthly rental in the new tenancy.

52.In answer to my query, Mrs Wong stated that the rates payable for the Premises per quarter are about HK$9,800. On the basis of the prevailing rates at 5% of the rateable value, the latter is estimated to be about HK$784,000 per annum which is equivalent to HK$65,333 per month. Bearing in mind however the renovation had started in mid-April 2017, this may have also affected the rental achievable.

53.In 梁續有(以天祥參茸藥行的名營業) v 地政總署署長, LDLR 4/2006 (unreported, dated 22 February 2008), the Lands Tribunal remarked at §46 as follows:

“Although it is not the same as the market rent at any particular time, the rateable value of a property is an estimate of the annual rental value of the property at a designated valuation reference date (i.e. 1 October of each year), assuming that the property was then vacant and to let. In the absence of any evidence on market rent, the rateable value can be an indication of the level of rent a property can attract.”

54.More recently, the District Court also had similar observation in 皇河實業有限公司 v Wan Chiu Yuen & Another, DCCJ 4448/2011 (unreported, dated 20 April 2015) at §204:

“The Rating and Valuation Department with its statutory authority should have collected a representative percentage, if not all, of the rental transactions at the material times to assess rateable value of properties. Of course special features of individual property such as internal decoration; historical nature of the information obtained by the Rating and Valuation Department and change of market conditions after the designated valuation reference date will all affect the valuation of market rental at a particular date. It should also not be forgotten that the rateable value of a property is assessed for the purpose of determining how much is payable as rates for the property. Various adjustments have been made by the Rating and Valuation Department to the data collected to achieve the statutory purposes. The rateable value is not the exact rental which a particular property may fetch in the open market but it provides a useful reference of the market rental of a property.”

55.In light of the above, I consider the re-letting of the Premises at HK$65,000 per month is sufficient proof that the applicant has mitigated its loss and the monthly rental achieved is reasonable.

56.After deduction of the 2-month deposit held by the applicant, the respondent should be liable to pay the applicant the damages (in rental shortfall) in the sum of HK$445,000.

Agency Commission

57.Whereas the applicant has incurred agency commission in re-letting the Premises as a result of the respondent’s breach of T/A, it claims against the respondent for the agency fee for the new tenancy at HK$32,500 which is equal to half-month rental under the new tenancy. I consider this claim and the amount reasonable.

58.In addition, however, the applicant claims also the agency commission paid for the T/A in the sum of HK$40,000. I agree with Ben that this is not reasonable. To the extent that the applicant is claiming for the rental loss for the unexpired term of the T/A, the agency commission it paid for the T/A had exchanged value for money. Therefore, this claim in the sum of HK$40,000 is disallowed.

Cleaning, Repairs and Repainting Costs

59.Instead of mere assertion of the amount claimed as stated in §17 above, the applicant has provided an invoice issued by Kwong Lee Engineering Co dated 30 June 2017 as follows:

項目 (Item) 金額 (Amount)

1. 清拆全屋舊傢俬雜物（連政府環保費） Removal of old furniture & debris (inclusive of Government environmental levy) $7,000

2. 執底新做全屋天花，牆身乳膠漆 Emulsion painting of ceiling and walls of whole Premises $78,000

3. 全屋翻新地腳綫 Renewing skirting $8,000

4. 全屋翻新天花綫 Renewing ceiling cornices $8,000

5. 執主人廁花灑池玻璃門漏水 Repairing the glass door sealant of shower stand in master bedroom $1,500

6. 執客廁浴缸邊漏水 Repairing bathtub sealant $1,500

7. 翻新房門及大門共13套 Renewing altogether 13 sets of doors $19,500

8. 執窗及工人廁水箱 Repairing windows and cistern in servant’s room $1,500

9. 執廚房雙星盤漏水, 拆除雙星盤重新安裝接駁隔氣去水喉 Repairing water leakage at double sinks $2,000

10. 修理廁所燈及廚房光管共5套 Repairing altogether 5 sets of lights in bathrooms and fluorescent tube in kitchen $800

11. 工程後清潔 Cleaning after works $4,000

Total: HK$131,000

* Save for the word “Total”, the invoice is in Chinese only. The English translation is only inserted by me for illustration.

60.As regards the 1^st item, by reference to the photographs submitted by the applicant, the furniture or debris left over by the respondent were not substantial and therefore the amount claimed in the sum of HK$7,000 appears excessive. I only allow HK$4,000.

61.Coming to the following items, I note under Clause 6 of the T/A, fair wear and tear and damage caused by inherent defects are excepted from the liability of the respondent to keep the interior of the Premises in good and tenantable repair and condition. In such regard, I consider that they are not compensable to the applicant because these are expenses for which the respondent has never assumed responsibility or which do not fall within the scope of his duty. The applicant cannot provide any evidence that the condition or disrepair of the Premises was aggravated by the purported acts of the respondent. In re-letting the Premises to a replacement tenant after the occupation of the respondent for 1 year or more, many of the items have to be carried out by the applicant anyway. At most, I would only allow a nominal sum of HK$10,000 inclusive of the cleaning fees.

62.Thus, for the claim on cleaning, repairs and repainting costs, I would only allow a total of HK$14,000

Conclusion

63.Having considered all the above, I rule that the respondent has wrongfully repudiate the T/A in April 2017 and is liable to pay damages in the sum of HK$491,500 based on the following: