Cheng Pui Kee v. International Property Management Limited

HCSA000004A/1984

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J.

Date of Hearing: 8th June, 1984.

Date of Delivery of Judgment: 8th June, 1984.

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JUDGMENT

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1. On 13th April this year I gave leave to the applicant to appeal against a decision of Mr. Adjudicator Hon given on 20th February 1984 in the Small Claims Tribunal. The respondent company was not represented on the application for leave nor was it represented today at the hearing of the substantive appeal. I ought to say a word or two about that.

2. In the Small Claims Tribunal, very sensibly, there is provision for a party not only to appear in person but, where a limited company is involved, for a representative of that company to appear and all that, of course, is aimed at saving costs. But there is no such statutory provision relating to hearings in the High Court even though they lie by way of appeal from the Small Claims Tribunal, and so when today a Mr. Wong appeared wanting to be heard on the appeal on behalf of the respondent, I am afraid I had to tell him that I could not listen to his submissions; but, that if the respondent wished to appear at all, they would have to do it through counsel. He did not wish to have the matter adjourned, as he told me from the witness box, and I proceeded then to hear the merits of this appeal which, as on the application for leave, were presented by Mr. Cheng himself with great skill, frankness and courtesy.

3. I think I ought to review the circumstances of this case very briefly. Mr. Cheng lives in a block of flats. Those flats are managed by the respondent company. It is the duty of the respondent company to look after the flats and, to paraphrase the Deed of Mutual Covenant, to keep the common areas clean and in a sanitary condition. For a long time now, Mr. Cheng has been doing battle with the management company over the putting up of a lavatory on the roof of the building near to the entrance to his own flat and which is used by workmen, as a result of which, says Mr. Cheng, the areas near to his doorway and the area over which he has to pass to get into his flat have become increasingly less clean and less sanitary. Moreover, he says that the lavatory should not be there at all because it is in breach of Building Regulations. None of these questions will fall to be decided by me. Because of his complaints and because of the failure of the management company to respond to his complaints, he withheld management fees which would, otherwise, have been due under the agreement which he and other tenants have with the management company. It was his refusal to pay the management charges which led to the claim being brought by the respondent company in the Small Claims Tribunal.

4. When that matter came before Mr. Adjudicator Hon, Mr. Cheng raised these matters and put it forward as a defence. On the application for leave, I had not appreciated the fact, and I think I was not told on that occasion, that the Adjudicator had said to Mr. Cheng that if he wished to raise them, they ought to be made the subject of a claim and it is common ground that Mr. Cheng has never, up to now, filed any claim in the Small Claims Tribunal or anywhere else. Now, in giving leave to appeal, I said that the interpretation of the Deed of Mutual Covenant and, in particular, the clause to which I have made reference was a relevant consideration and ought to have been taken into account by the Adjudicator. I think, on reflection, I was wrong about that and I think I owe Mr. Adjudicator Hon an apology because his appreciation of the position in law was better than mine on the hearing of the application for leave to appeal. I now think he was right to say that he could only deal with Mr. Cheng's complaints if they were made the basis of a claim because, in themselves, they cannot and do not constitute a defence to the claim made by the respondent company for payment of its charges. At best, Mr. Cheng would be entitled to damages, a proportion of which might be set off against the management charges of the respondent company if both claims were heard at the same time. Mr. Adjudicator Hon was never faced with the situation in which he could do such a thing, that is, find that Mr. Cheng was entitled to damages and order a set off. It may have been open to him, though I do not know if suggestion was ever made, to have invited Mr. Cheng to file a claim there and then to adjourn the hearing so that the two claims could be heard together. But Mr. Cheng did not seek leave and in any event may not have wished to forego the opportunity of proceeding in the District Court. Therefore, I have come to the conclusion, rather contrary to my initial view, that this appeal must fail; nor would it be right for me to remit the matter for re-hearing with directions because as matters stand at present, there is nothing to remit. No question of costs arises.

Representation:

Applicant - in person.