Abdoolally Ebrahim & Co., (H.K.) Ltd. v. Formalex Ltd.

LDNT000043/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

New Tenancy Application No. LDNT 43 of 2000

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Date of Judgment: 4 August 2000

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Judgment

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1. The Applicant is the tenant of the premises known as Flat E, 41/F, Block 3 and Car Parking Space No. 233 on 2/F, Estoril Court, 55 Garden Road, Hong Kong which were under a tenancy for 2 years, running from 16.4.1998 to 15.4.2000. The Respondent is the landlord of the premises.

2. Shortly after 11th October 1999, the Applicant received a notice of termination of tenancy (Form CR 101) from the Respondent to the effect that the tenancy of the premises would be terminated on 15.4.2000. The said notice further stated that the Respondent would oppose an application to the Lands Tribunal for the grant of a new tenancy on the following ground :-

"The Tenant has persistently failed to pay rent on due date(s), causing unnecessary annoyance, inconvenience or disturbance to the landlord and technically in breach of the Tenancy Agreement."

3. On or about 16.11.1999 the Applicant sent out to the Respondent Form CR 102, which was the tenant's response to landlord's notice of termination of tenancy.

4. On 20.10.1999, Tai Hing Management Ltd., apparently acting on behalf of the Respondent, sent a letter to the Applicant, which stated, "..... while on time rent payment of the Tenant is another matter, any delay in payment will constitute as an action of the breach of the Agreement". This clearly is the warning in writing served on the Applicant by the Respondent on 20 October 1999 as referred to in Paragraph 3 of the Notice of Opposition.

5. Section 119E of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 provides for the following grounds of opposition which may be relied on by a landlord to refute an application for a new tenancy by a tenant:-

"(1) The grounds on which a landlord may oppose an application under section 117(1) are such of the following grounds as may be stated in the landlord's notice under section 119, or, as the case may be, the notice under section 119A(6) ―

(a) ........................................................

(b) ........................................................

(c) ........................................................

(d) the tenant has caused unnecessary annoyance, inconvenience or disturbance to the landlord or to any other person :

Provided that no ground shall be established under this paragraph unless the Tribunal is satisfied that the annoyance, inconvenience or disturbance had continued after a warning in writing had been served by the landlord on the tenant causing the same;" (underlines provided)

6. Section 119E (3) stipulates that "for the purpose of subsection (1)(d), a tenant who persistently fails to pay rent as and when it falls due may be regarded as causing unnecessary inconvenience to the landlord."

7. Mr. Ebrahim Jaffer Abdeally who represented the Applicant in the trial admitted the following record of delayed payments of rent made by the Applicant :-

8. The ground relied upon by the Respondent to oppose the Applicant's application for a new tenancy is Section 119(E)(1)(d). Form CR 101 (dated 11.10.1999) was received by the Applicant shortly after 11.10.1999. But the notice of warning was dated 20.10.1999. Thus at the time when the Respondent purported to terminate the above-said tenancy by serving Form CR 101 on the Applicant and relied on the ground stated on the said notice for opposing the Applicant's application for a new tenancy, that ground did not exist at all, because up to that time, there had not been any warning in writing whatsoever, but section 119E(1)(d) expressly provides that no ground shall be established under paragraph (d) of section 119E(1) unless the annoyance, the inconvenience or disturbance had continued after a warning in writing had been served on the tenant.

9. For the above said reasons, the Tribunal decides that the Respondent has failed to establish any ground to oppose the present application instituted by the Applicant.

10. The Respondent is bound by the ground expressly stated in Form CR 101 for the termination of the tenancy. That notice could not be amended. Therefore the Tribunal refused the application to amend the notice of opposition at the commencement of the trial.

11. The Tribunal grants the parties the liberty to fix a date for the determination of the terms of the new tenancy, and further orders that the costs of the trial in respect of this preliminary issue be reserved.

Representation:

The Applicant : represented by M/S AB Nasir & Co.

The Respondent : represented by M/S Therese P.F. Chow & Co.

Remarks:
On appeal by the Respondent to the Court of Appeal: Appeal dismissed with costs. Please refer to CACV000378/2000.