Ho Yick Chi v. Ng Kin Foon

HCA003750/1977

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Coram: Mr. Commissioner Penlington in Court.

Date of Judgment: 3 October 1979

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JUDGMENT

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1. This is a claim arising from a Tenancy Agreement dated the 29th September, 1977 by which the defendant let to the plaintiff premises at 158 Aberdeen Main Road. This tenancy followed a previous one which was entered into in 1970 and which expired on the 30th September, 1977. The plaintiff claimed the sum of $8,000 being the amount of a deposit which he had given to the defendant at the time he entered into the new lease and also the sum of $41,105 which he claimed was the expenditure he had incurred in adapting the premises for his Use following the signing of the said new Agreement. The defendant counterclaimed for the sum of $6,000 arrears of rent plus rates of $215.63 and also the sum of $14,960 which she said she had expended in repairing the premises following the plaintiff's vacating them.

2. The plaintiff relied for much of his claim on the fact that there was to be a new entrance to the premises and he said that this was at the suggestion of the defendant's husband CHOW Ching. That CHOW Ching agreed at the time they entered into the new lease that CHOW Ching would be responsible for not only the total cost of the new entrance but also for obtaining any necessary Government consents. It is not in dispute that this fresh entrance was not to be directly off the street as the old one had been but was off a stairway on the left hand side of the building. The plaintiff said that this was so that CHOW Ching could increase the size of a stall on the ground floor and thus increase the rent, the old entrance to the premises being beside this stall. The plaintiff said that he also asked CHOW Ching for a new place to put his sign and CHOW Ching agreed that it would be put over the main entrance on the left hand side of the building as shown in the photograph P1. He said that Chow made the hole in the wall for the new doorway but failed to actually put in a door. The plaintiff said that he then at his own expense installed a steel rolling shutter in the doorway and that again is shown in the photographs. This was completed on the 19th or 20th of October. Because the shutter was not apparently considered satisfactory a Fire Hazard Abatement Notice was served on the plaintiff, who said that because of this problem and also because he had not been given the space he wished for his sign he decided to cancel the lease and it is not in dispute that he returned the keys to the premises on the 29th of November. He said that he naturally stopped the decoration work that was going on but that he had spent some money before he left. He said that the balance of the orders were cancelled. Certain receipts were tendered in support of this evidence. There was no evidence supporting the claim which had been made for the amount of $41,000 odd and the plaintiff finally said his actual loss was $17,600 plus the amount of the deposit.

3. CHOW Ching gave evidence and he said that the suggestion for the new entrance came from the plaintiff himself and that the plaintiff was to be responsible for installing a door, for obtaining any necessary consents and he denied that he promised the plaintiff that he could have a sign over the entrance because he said that space was already taken by another company which was in the same business as the plaintiff and over whom he had no control. He said that he did agree to pay for the cost of actually making the hole in the wall for the new entrance but not for installing the necessary door. I am satisfied on the evidence that the idea of having a new entrance originated from the plaintiff who wanted a more prestigious entrance to the premises although it was advantageous to both sides and each agreed to it. I am satisfied that the plaintiff did undertake to pay for the cost of a new doorway and that there is no foundation for his claim that because the new doorway was not installed to the satisfaction of the Fire Services Department he did not have quiet enjoyment of the premises and that the defendant was in breach of the covenant for quiet enjoyment. I am also satisfied that there was no agreement that the plaintiff could have a fresh place for his sign and that again was not one of the reasons why he vacated the premises.

4. I am therefore satisfied that the plaintiff's claim that the defendant either derogated from her ground or was in breach of the covenant for quiet enjoyment has not been made out and it follows from that that his claim to be repaid the costs he incurred in redecoration must fail. I am also satisfied that the plaintiff was not given a period of grace for redecoration and that the new lease was to follow on immediately from the old one i.e. from the 1st October, 1977 and that rent at the new rate was to be payable from that date. I accepted the evidence given by CHOW Ching on that point.

5. The defendant claimed for the costs incurred in restoring the premises after the plaintiff had vacated. I did not consider the evidence on this to be satisfactory apart from two claims: one for the removal of trash, $400, and the cost of removing the iron shutter installed by the plaintiff, again $400.

6. I am satisfied that by a mutual consent the lease was cancelled at the end of November but that the plaintiff had not paid rent for that month nor for October. The defendant is entitled to rent for those two months and for reimbursement of the two items of $400 each but the plaintiff is entitled to the return of his deposit.

7. In Chell Engineering Limited v. Unit Tool and Engineering Co. Ltd.⁽¹⁾ it was held that where a plaintiff succeeds on his claim and the defendant also succeeds on a counterclaim the best course is not to enter judgment for the balance in favour of the party entitled thereto but to enter judgment for the plaintiff and for the defendant for the respective amounts for which they had been given judgment. This case however is somewhat different in that the deposit was to secure payment of rent and costs of remedying any breach of covenant and the amount of any arrears and costs could therefore be deducted from the deposit.

8. As it will affect the question of costs, however, I feel I should follow the Chell Engineering case and there will therefore be judgment for the plaintiff in the sum of $8,000 on his claim and for the defendant for the sum of $4,800 on her counterclaim.

9. The plaintiff will be entitled to costs on his claim but as the amount which he said in evidence he had lost was only $17,600, which is within the District Court civil jurisdiction, he will only have costs on the upper District Court scale, with certificate for counsel. The defendant is entitled to Supreme Court costs on her counterclaim and for the purposes of calculating these I consider that two days was spent on the question of the counterclaim.

Representation:

W. Stone (H.H. Lau and Co.) for plaintiff.

T. Lai (P.H. Sin and Co.) for defendant.

(1) 1950 1 A.E.R. p.378