Lo Pui King and Another v. Fan Siu Man Beatrice

DCCJ018616/2001

DCCJ 18616/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 18616 OF 2001

Coram: Deputy District Judge S.M. SHAM

Date of Hearing: 14 January 2002

Date of Handing Down Reasons for Decision: 24 January 2002

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REASONS FOR DECISION

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1.This is an application by the Defendant to strike out the Plaintiff's claims on the grounds of abuse of court process as well as lack of jurisdiction.

2.The Plaintiffs are the landlords of the property known as Flat 1, 18/F, Wah Lai House, 5 Po Ying Lane, Kowloon( hereinafter called " the premises" ). By a tenancy agreement dated 29th April 2001, The Plaintiffs let "the premises" to the Defendant for a term of 2 years from 25th March 2001 to 24th March 2003 at a rent of HK$ 5,400.00 per month, payable on the 25th day of each and every calendar month. Upon signing of the tenancy, the Defendant had paid to the Plaintiffs a deposit equivalent to two months' rent.

3.The Defendant failed to pay rent as from 25th June 2001, and the Plaintiffs filed a claim for arrears of rent and possession of "the premises" in the Lands Tribunal on 19th July 2001. The claim was set down for hearing on 29th August 2001. After the hearing, the claim was adjourned sine die for parties to consider to resolve it by way of settlement. But there was never a settlement. On 25th September 2001, the Defendant delivered vacant possession of " the premises" to the Plaintiffs. The Plaintiffs commenced an action in the District Court on 27th October 2001 claiming against the Defendant for arrears of rent, damages of the unexpired portion of the lease, outstanding management fees and damages for damage to " the premises". On 5th December 2001, the Defendant filed the present application to strike out the Plaintiffs' claim, and on 10th December 2001, the Plaintiffs filed a notice of discontinuance to the Lands Tribunal to discontinue the action there.

4.The Defendant argued that at the time when the Plaintiffs took out the present action in the District Court for recovering of arrears of rent, there was a concurrent action for the same going on in the Lands Tribunal, it would amount to abuse of court process and so as far as the claim for arrears of rent was concerned, that part of the claim should be struck out.

5.But the circumstances had changed during the adjourning period in that the Defendant had given up possession of 'the premises", therefore, the claim for possession became unnecessary. When the application was heard before me, there was no longer any action in the Lands Tribunal as the Plaintiffs had discontinued it by giving a notice of discontinuance to the Tribunal. Thus, the basis of the Defendant's complaint has in fact gone, the argument of abuse of court process would become purely academic. Assuming for the sake of argument, there is still the action in the Lands Tribunal claiming for arrears of rent, when court faced with this situation, it is more likely that the Plaintiffs would be advised to apply to join both actions together to be tried by one court. As the plaintiffs have other claims i.e. damage to "the premises", it would be likely to be dealt with in the District Court. The end result would be the same.

6.The Defendant also advanced the argument of res judicata in support of his contention of abuse of process. I don't find this argument convincing at all since the action in the Lands Tribunal had never been adjudged on its merits nor was any settlement finalised. There is no question of res judicata.

7.Regarding the claims for management fees, damages of unexpired portion of the lease and damage to "the premises", the Defendant also apply to strike out on the grounds that the amount of these claims below HK$ 50,000.00, the District Court has no jurisdiction to entertain, and such matters should be dealt with by the Small Claims Tribunal. Section 8 of the Small Claims Tribunal provides: " No claim shall be split or divided and pursued in separate proceedings in the tribunal for the sole purpose of bringing the sum claimed in each of such proceedings within the jurisdiction of the tribunal." The legislation clearly does not encourage the split of action. In the present action, the Plaintiffs are claiming arrears of rent on top of other claims, the amount of claims is over HK$ 50,000.00. In my judgment, the proper venue to decide the matter should be in the District Court. All in all it would be desirable and time saving to try issues arising out of the same facts at the same time and by one single court so as to avoid any possible inconsistent decisions.

8.For the reasons given, the order that I make is that the Defendant's application be dismissed.

9.Costs of this application be to the Plaintiffs, to be taxed if not agreed. I refuse to grant certificate for counsel since the application does not involve any complex issues, neither in law nor in facts, and the claim itself in the action is less than HK$150,000.00. I shall make it an order nisi, it shall become absolute upon the expiration of 14 days after the date of handing down this decision.

Representation:

Mr. Lawrence Hui instructed by Messrs. Wong, Fung & Co for Plaintiffs

Mr. Chum Yau Fong David instructed by Messrs. Paul Chan & Co. for Defendant