R B Naylor v. Konmill Ltd
Read the full judgment text of LDNT 61/2004 on BabelCite. This LDNT judgment was delivered on 17 September 2004.
1. The Applicant is the tenant and the Respondent the landlord of the subject premises known as 3 rd Floor of No. 23 Wilson Road (Including Roof A Thereof) and Car Parking Space No. 3 on Ground Floor, Cooper Villa, Nos. 23-29 Wilson Road, Hong Kong (“the Premises”). It was agreed that the Premises was let to the Applicant for a term of 2 years commencing from 1 June 2002 at a rent of $40,000 per month, inclusive of rates and management fee.
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LDNT61/2004 (Review) IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION Application No.: LDNT No. 61 of 2004 BETWEEN
Coram: Member W K LO Date of review hearing: 6 September 2004 Date of decision: 17 September 2004 DECISION ON REVIEW 1.The Applicant is the tenant and the Respondent the landlord of the subject premises known as 3rd Floor of No. 23 Wilson Road (Including Roof A Thereof) and Car Parking Space No. 3 on Ground Floor, Cooper Villa, Nos. 23-29 Wilson Road, Hong Kong (“the Premises”). It was agreed that the Premises was let to the Applicant for a term of 2 years commencing from 1 June 2002 at a rent of $40,000 per month, inclusive of rates and management fee. 2.By an application filed to the Lands Tribunal on 29 April 2004, the Applicant applied for a new tenancy of the Premises and the determination of the Prevailing Market Rent (“the PMR”) under the new tenancy. The application was heard on 12 July 2004 after which I handed down a written judgment on 27 July 2004 (“the original judgment”). The Orders granted were as follows: -
3.The Respondent applied to review my decision/order made on 27 July 2004, seeking an order that the PMR of the Premises should be increased to $49,346. The review application was heard on 6 September 2004. Mr. Cheng Chi Hung, the lawyer for the Respondent submitted that Comparable 1 should be excluded in the valuation of the Premises. Otherwise, Mr. Cheng submitted that Respondent did not take issue with any other findings or decisions of the Tribunal as set out in the original judgment of 27 July 2004. Mr. Cheng further stated that there were 2 reasons for such exclusion. Firstly, Comparable 1 was physically situated close to a dangerous slope that appeared to be suffered from landslide. Secondly, the term of tenancy of Comparable 1 was 3 years, instead of the usual terms of 2 years. For these reasons, submitted Mr. Cheng, Comparable 1 was excluded by Ms. Carmen Chan, the surveyor giving evidence for the Respondent during the hearing on 12 July 2004. On the basis of exclusion of Comparable 1 and using all the Tribunal’s adjustments given to the remaining comparables, Mr. Cheng calculated that the PMR should be $49,346 per month, inclusive of rates and management fee. 4.The Applicant objected to the Respondent’s review application. He produced a set of color prints (Exhibit A2) that show the state of slopes surrounding the Premises and the comparables adopted by the Tribunal. At the request of the Tribunal, the Applicant also produced a key map (Exhibit A3) showing the positions of the slopes and the properties that appeared in the said color prints. The Applicant submitted that there was no difference in the surroundings of Comparable 1 and that of the Premises. 5.The Respondent sought an adjournment after which he obtained leave from the Tribunal to call for the evidence of Mr. Wayne Lee of Messrs. RHL Appraisal Ltd., the co-author of the valuation report produced by the Ms. Chan as she had left the employment of the firm of surveyors in the interim. 6.Mr. Lee gave evidence and clarified that the ground for review by the Respondent was really on the basis that Comparable 1 should be excluded because it was out of line of the range of values fetched by the other comparables adopted by the Tribunal. Mr. Lee abandoned the 2 grounds put forwarded by Mr. Cheng, the lawyer for the Respondent since these 2 grounds were just 2 possible reasons for the distinctly low unit rent of Comparable 1. Firstly, the Respondent submitted that as the Tribunal stated in the original judgment that all the adjustment figures of Ms. Chan were accepted with 2 exceptions, the Respondent decided to apply for a review in order to seek an clarification from the Tribunal because the Tribunal did not only differ from the opinion of Ms. Chan in the treatment of Comparable 1 in the original judgment but was also silent on this point in the original judgment. 7.The Applicant submitted that the decision of the Tribunal in its original judgment should not be altered. He said that the Tribunal was correct in accepting Comparables 1, 3, 5 and 6 as the suitable comparables and declined to exclude Comparable 1 for the ground put forward by Mr. Wayne Lee. 8.I reproduce below the unit effective rent and the adjusted unit rents of Comparables 1, 3, 5 and 6 as set out in my original judgment:
9.I also include in the above table the percentage difference between the adjusted unit rents of each comparable and the average adjusted unit rent of all 4 comparables. After careful consideration, I actually found that the difference between Comparable 1 and the average of all 4 comparables was not distinctly so large as to warrant a decision to abandon Comparable 1 in the valuation. I therefore did not follow Ms. Chan’s evidence and approach, deleting Comparable 1 in the valuation in the original Judgment. In this review, I still maintain the same view and decide not to abandon Comparable 1. Therefore, I do not agree with the opinion of Mr. Wayne Lee and Ms. Carmen Chan in their valuation report that Comparable 1 should be abandoned. As this was the only ground put forward by the Respondent, I agree with the Applicant that there should be no variation of the estimated PMR for the Premises and that the Respondent’s review should be dismissed. 10.Orders
The Applicant The Respondent, represented by Mr. Cheng, Chi Hung of Messrs. Cheng, Chan & Co., Solicitors | |||||||||||||||||||||||||||||||||||||
Further hearings and rulings under LDNT 61/2004