Pure Class Services Ltd v. Cheng Yuet Ming

HCA 308/2005

in the high court of the

hong kong special administrative region

COURT OF FIRST INSTANCE

ACTION NO. 308 OF 2005

BETWEEN

Before: Hon Rogers VP (sitting as an additional Judge of the Court of First Instance) in Chambers

Date of Hearing: 16 August 2005

Date of Judgment: 16 August 2005

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J U D G M E N T

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1.This is an appeal from a master.  There are other applications in order to enable this appeal to come on because it was slightly out of time, and there are further affidavits which are sought to be used.  Be that as it may, the substance of this case has been dealt with.

2.The case is a very simple one.  It is for vacant possession and for rent and rates which have been unpaid since January of this year.  There is no dispute that the rent and rates have been unpaid.  The reason that the defendant has put forward has been, first of all, that the sink in the kitchen was blocked, and the defendant says it has been blocked since she moved in, which was in March of 2004.  In support of that, she has produced a receipt from a decoration and an electrical works company which says that the sink was too blocked for the person who attended to do anything about it.  He apparently charged $100 for his trouble in coming to the premises.  That, really, is the sum total of that part of it.

3.There is a suggestion by the defendant that she has been told by the man that there has been an alteration in the structure of the building which has prevented the sink working.  As regards the plaintiff, the plaintiff says, well, it has tried to arrange somebody to come but it could not fix an appointment with the defendant and so that has not taken place.

4.I am very far from convinced that there is any substance in this.  The sink is simply blocked and somebody has undone the pipe underneath the sink and put a bucket underneath to collect what comes through the sink.  Be that as it may, even if the sink were blocked, on the terms of the lease, it seems to me that the rent is still payable.

5.Then it is said that there has been a breach of covenant of quiet enjoyment.  There are two aspects to that.  First of all, the defendant says some debt collectors came, and the plaintiff says, “Well, that was in respect of another company” and therefore not in respect of the plaintiff in this case.  In any event, it seems to me that if the debt collectors did come, they came to the wrong place, not to a place where they would have found directors of the company that they were after because the address for the two persons who were directors of the plaintiff and the other company as filed in the Companies Registry were not that of the suit premises.

6.Secondly, it has been said that there are some letters which have come for one of the directors of the plaintiff from a credit card company.  It seems quite clear when you look at what it was that they were statements.  They showed that, first of all, the credit card was not being used and then when the credit card company was informed of that, they reimbursed the fees, and it seems to me a defunct credit card and the statements happened to come to the premises.  To suggest that that is some kind of breach of covenant of quiet enjoyment is simply ridiculous.

7.In my view, the master was quite right.  The master gave the defendant conditional leave to defend, provided that the defendant paid the rent.  Paragraph 2 of the order did not provide for a stay of execution for 7 days from the date of the order as provided for by section 21F of the High Court Ordinance, but I am sure if that had been asked for and the master’s attention had been drawn to section 21F then that would have been inserted.

8.So, apart from inserting the requisite wording into the order, in my view, this appeal should be dismissed and should never have been brought in the first place.

(Submissions re costs)

9.The appeal will be dismissed, with costs, save for the inclusion of wording to satisfy section 21F(3) of the High Court Ordinance.

(Submission)

10.Order for possession not to take effect until 30 August 2005.

Mr Lee Siu-ho, instructed by Messrs Chung & Kwan, for the Plaintiff/Respondent

Ms Diana Cheung, instructed by Messrs William Sin & So, for the Defendant/Appellant