Chan So Lan Emmy v. O’connor, Kevin John

DCCJ 1910/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. DCCJ 1910 OF 2004

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BETWEEN

Before: Deputy District Judge Tracy Chan in Court

Date of Hearing: 31 January 2005

Date of Handing down Judgment: 25 February 2005

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J U D G M E N T

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1.The Plaintiff’s claim is for arrears of rent arises out of a dispute over a term in a written tenancy agreement (“the Tenancy Agreement”) made between the Plaintiff as landlord and the Defendant as tenant. The Tenancy Agreement concerns a property situated at Flat B1, 30/F, Block 6, Fortune Garden, No. 11, Seymour Road (“the Property”).

2.It is alleged by the Plaintiff that the Defendant has failed to pay part of the rent amounting to $8,000 for September 2004 where as the Defendant says that the $8,000 (originally $9,000) has been deducted from the rent for breach of clause 5 of the Tenancy Agreement on the part of the Plaintiff by her failure to install a big cooker inside the Property. By “big cooker”, the Defendant says it meant a cooking equipment with stove on top and oven blow, a stand-alone one, big enough to cook European food.  The Defendant counterclaims for specific performance and damages. The Defendant also asks for an injunction to restrain the Plaintiff from entering into the Property without his prior approval.

3.The issues for trial is whether the Defendant is entitled to deduct the said $8,000 form the rental for September 2003; and whether the Plaintiff had agreed to install a big cooker for the Defendant and was therefore in breach of the Tenancy Agreement by her failing to do so. 

The Plaintiff’s Evidence

4.The evidence of parties is not much so different. Plaintiff says that the Defendant was brought to the Property by an estate agent Mr. Ho on 14 August 2003. She says that the Property was rented to the Defendant on an as is basis. She says after discussion, she agreed to cut the rental from $21,000 to $19,000 per month and to touch up with certain equipment in the Property. After that the Defendant asked whether she could install a big size cooking set for him. She told him that the kitchen was not big enough to accommodate such big size cooking set unless she took out major renovation work in the kitchen. She would not agree to do so but she agreed to replace the stove in the kitchen with a new one also with 2 rings of burners. She says she was speaking half English and half Chinese at that time.

5.Hearing this, the Defendant did not say anything further but proceeded to the office of the estate agent to sign the Provisional Agreement. She herself signed also. She said the handwriting in the documents was put down by Mr. Ho. Among other terms and conditions, it is written down in the column of “Remarks” that  “ (3) ADD A NEW STOVE IN THE KITCHEN”. By stove she understood it to be cooking stove where fire came out for cooking, it could be with one ring or two rings. She says that she never takes a stove as a big cooker as defined by the Defendant. She adds that if “big cooker” was put down in the Provisional Agreement, she would not have agreed to sign.

6.After execution of the Provisional Agreement, she commenced work for installation of a new stove. She bought a new 2-ring stove with a grille below and had it installed on 21 August 2003. She also went about for other touching up jobs as agreed in the Provisional Agreement.

7.In the afternoon of 22 August 2003, 3 of them went to the Property again. Inside the Property, the Defendant said that the grille below the stove was too small [photo at p69] and he wanted to have an oven big enough to bake a chicken. She promised to buy him an oven so that he could bake chicken. She told him that this was done just to make him happy and she herself would pay for the oven personally to avoid objection from her family members. She told him that she would buy him an oven which could be placed on top of a washing machine. She says she thought the Defendant was grateful to her at that time.

8.Parties then proceeded to the office of the estate agent to execute the Tenancy Agreement which was to take effect on the next day. She took the deposit, paid the estate agent and handed the key to the Property over to the estate agent. On or about 25 August 2003, pursuant to what had been agreed, she bought an electricity oven which according to her was big enough for baking chicken. 

9.On 26 August 2003 she delivered the oven over by herself and found that coolies were moving furniture into the Property but no one open the door to let them in. She then called the estate agent, Mr. Ho came and opened the door with a key and then left. Mr. Ho had been informed that she came to deliver the electric oven. After entering into the Property, she put the oven on top of the washing machine. She says this was where the oven was to be placed as agreed by the Defendant. When she left, she saw the floor being scratched by the furniture so she wrote a letter to the Defendant asking him to be careful in future.

10.Nothing happened between 26August and 3 September 2003. Then there were conversation between the Defendant and the Plaintiff’s accountant about installation of new stove.

11.In cross examination, she says stove means “stove” and not a “big cooker”.  She said according to the Tenancy agreement, it would suffice if a stove is put into the kitchen even if it is with one ring as there was no description to the stove. She says what she had done was sufficient to meet her obligation set out in the Provisional Agreement and the Tenancy Agreement.

12.She is referred to her Reply and Defence to Counterclaim at p20 of bundle and was asked why she put down stove and oven in paragraph 2 if she never intended to install an oven at that stage, which was prior to the Provisional Agreement. She says it was a mistake. She says at the stage of Provisional Agreement she only agreed to replace the stove.

13.The inventory list as at p6 of bundle is shown to her during cross examination. Her attention is drawn to the item near the bottom. The box against cooker had been checked and there were handwriting of “to be replaced”, the word “oven” next to cooker had been crossed out. She is asked to explain this. She says, cooker is a stove to her as in Chinese, it says “煮食爐” and that had been replaced by her before execution of the Tenancy Agreement, so she wrote down two ring R3 GM by the side indicating that this had been done and recorded this in the inventory list for future reference. As to oven, she does not know who crossed that out but as the oven had not been put inside the Property, she had no objection if it was crossed out from the list. 

14.She is referred to the Tenancy Agreement and asked why the requirement for “stove / oven” was recorded there if according to her, the requirement had been fulfilled by the replacement of the stove before the execution of the Tenancy Agreement. She says this is a copy of the Provisional Agreement, she thought the items in the Provisional Agreement would be listed in the Tenancy Agreement again and she did not notice that there were changes to the items listed.   

The Defendant’s Evidence

16.The Defendant gives evidence. He says by “big cooker” he meant a cooking set with stove on top and oven below for cooking European food. He says he enjoys cooking and entertaining guests at his place and cooking equipment is very important to him, and would not have rented the place without a big cooker.

17.He says he had always asked for a big cooker but at the time the two agreements were entered into, he did not know how to describe this and as he gave very clear description of what he wanted by word of mouth and hand gesture inside the Property he thought it was understood by the Plaintiff. He agrees that the Plaintiff had mentioned to him that there was not enough space in the kitchen the first time he viewed the Property. He says that the discussion on the installation of the cooker was short which took 1-2 minutes to finish and they talked about other things on cooking. He says the Plaintiff did not refuse his request at that time.

18.He agrees that on 22 August 2003 he found a new two-ring stove in the kitchen but that was not what he wanted. So he repeated his request with gesture. He says he suggested some location for the big cooker but the Plaintiff said she would have to renovate the place but did not specifically address to his request, and at times, she changed subjects. He says he told the Plaintiff he would not mind if the big cooker is to take up space, he finds cooking more important than space. Then Mr. Ho suggested that the big cooker be put inside the dinning room, both the Plaintiff and him thought it was a silly idea. But eventually the Plaintiff agreed to install a big cooker without mentioning the place for it to be installed. He says she did not mention that she would buy a small one but she did ask what if she bought him one which could sit on top of the washing machine. He said to her he would not mind as long as he got the cooker he requested. 

19.At this point the court has to clarify with the Defendant how he could cook on the stove of a big cooker if it was to be placed on top of a washing machine. He says his height would have allowed him to do so with no difficulty. He further points out to the court that some “big cooker” is of smaller size like 18-24 inches in height.

20.Since the Plaintiff has failed to install a big cooker as agreed, he could not cook as the electric oven is just only big enough to bake a chicken but not together with vegetable etc.. He could not entertain friends and if on the rare occasions he did, he had to buy cooked food from outside which was expensive. He also paid more for his own meals for the same reason.

21.He says that he deducted a sum of $8,000 from the rental due for the purpose of prompting an action for negotiation by the Plaintiff.

Analysis of Evidence

22.The first issue for trial on the claim is whether the Defendant has the right to deduct $8,000 from the rental due.

23.From evidence before me, I find that he is not so entitled. Plaintiff is entitled to rent paid by the Defendant on time. Deduction could only be made in cases where a tenant has paid some expenses concerning the premises on behalf of the landlord (Hong Kong Tenancy Law 4^th edn. by Malcolm Merry at p.72).  In the present case, I do not find that the reason for the deduction as provided by the Defendant good enough to justify the deduction. He says he held the sum to prompt an action for negotiation, he agrees that he has not spent any money to install a big cooker up to date of hearing. To prompt negotiation is not a good enough reason to make deduction from rent.  I therefore enter judgment for the Plaintiff’s claim.

24.The issue for trial on the counterclaim is whether parties reached an agreement on what was to be installed for the Defendant to cook inside the Property. In fact the factual dispute is very little.  After hearing parties, I accept the Plaintiff’s saying that she has never agreed to install something now the Defendant calls it as a big cooker inside the Property. The Defendant agrees that the Plaintiff had mentioned to him that it could not be done without a renovation to the kitchen. The Defendant also agrees that she asked whether he would take an oven which could sit on top of a washing machine and he agreed to it. So in the mind of the Plaintiff what she had to do was to buy him an oven which is big enough to bake a chicken and could be placed on top of the washing machine. This could not have been a big cooker in her mind because with the size of a big cooker nobody would ever come up with an idea of putting it on top of a washing machine! During the discussions, she must have appreciated the size of a big cooker as she had told the Defendant that this could not be done without renovation made to the kitchen. I accept her saying that she did tell the Defendant she was going to buy him a smaller oven which could sit on the washing machine for him to bake chicken.  The assertion of the Defendant that there are “big cooker” of smaller size had not been raised during the discussions. It was raised when the Defendant answered a question from the court. The connection to the gas is another problem if it is put on top of a washing machine. Even the estate agent who was eager to close the deal would only come up with an idea which both party find nonsensical to have it put inside the dining room, but not on top of a washing machine. 

25.I am satisfied on balance of probability that the Plaintiff has never agreed to install a big cooker. What she had agreed to buy is a smaller oven big enough to bake a chicken for the Defendant. Her version on what had been agreed was not contradicted by the Tenancy Agreement under which she was asked “to install stove / oven”.

26.Parties have no dispute on the ordinary and plain meaning of “stove”.  They both refer to it as a cooking equipment with burners on top.  But Defendant said “stove / oven” means “oven with stove on top” on “stove with oven below”.  I do not agree.  This could also mean “stove or oven” or “stove and oven”.  The phrase “stove / oven” did not carry an unambiguous meaning for an equipment the Defendant calls it a big cookers.  I find that the Plaintiff has fully discharged her duty according to what had been agreed; there was already a new stove in the kitchen and she put an oven on top of the washing machine. The Defendant’s prayer for installation of a big cooker is therefore dismissed and the damages claimed must also fail.  This also means that there is no money due from the Plaintiff to be set-off with the $8,000 being held by the Defendant.

27.I find nothing in the complaint against the entering to the Property by the Plaintiff on 26 August 2003. She was granted leave by the estate agent with the key to the Property and therefore had the apparent authority to let her in. Further she did not enter to interfere with the Defendant’s enjoyment of the Property and there was never a second occasion.  The Defendant has failed to prove that his enjoyment had been interfered with and unless with a court order, the said conduct is likely to be continued by the Plaintiff. The plea for an injunction is therefore dismissed.

28.I order the Defendant to pay $8,000 to the Plaintiff with interest at half judgment rate from 22 October 2003 until judgment and thereafter at full judgment rate until full payment of the same.

29.I also order the Defendant to pay costs of $2,000 to the Plaintiff. 

Representative

Plaintiff, acting in person, present

Ms C. Tam of M/s. Yip, Tse & Tang for Defendant