Mr Stevens Andrew John v. Mrs Ko Wong Wai Ching
Read the full judgment text of DCCJ 5605/2004 on BabelCite. This District Court judgment.
1. The Plaintiff’s claim is for the value of items lost due to the removal of various items of his articles by the Defendant when he was still a tenant of the Premises known as 2 nd floor, 11 St. Stephen’s Lane, Hong Kong. The defence is that the tenancy was terminated on 19.6.2003 by mutual agreement, and as from that day, the Premises were let to a Mr. Robert Novoa (“Robert Novoa”), at a monthly rent of $12,000. On or about 4.8.2003, Robert Novoa returned possession of the Premises to the De
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DCCJ 5605/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5605 OF 2004 -------------------- BETWEEN
-------------------- Coram: H.H. Judge Chow Dates of Hearing: 9th and 10th November, 2005 Date of handing down Judgment: 4th March, 2006
______________________ J U D G M E N T ______________________ 1.The Plaintiff’s claim is for the value of items lost due to the removal of various items of his articles by the Defendant when he was still a tenant of the Premises known as 2nd floor, 11 St. Stephen’s Lane, Hong Kong. The defence is that the tenancy was terminated on 19.6.2003 by mutual agreement, and as from that day, the Premises were let to a Mr. Robert Novoa (“Robert Novoa”), at a monthly rent of $12,000. On or about 4.8.2003, Robert Novoa returned possession of the Premises to the Defendant, and for the various items of articles left in the Premises, Robert Novoa told the Defendant that he did not want the said items and would not move them away. The Plaintiff’s case 2.On 19.4.2002 he rented the Premises from the Defendant at a monthly rental of $14,000 for the period from 19.4.2002 to 19.4.2004. At the end of the one year contract period he contacted the Defendant and told her that he would like to continue to rent the Premises, but at a reduced monthly rental. In a meeting between them, the Defendant asked him to sign off the contract, and he did. They then agreed that around the end of June, 2003, he could continue to stay at the Premises at a reduced monthly rental of $12,000. 3.Sometime later he went abroad. He returned to Hong Kong on 28.8.2003, but he discovered that the Premises had been let to a new tenant. He enquired with the Defendant where his properties were. She said that they were no longer in the Premises, and that she had seized and disposed of the entire contents of the Premises, because he owed her 2 weeks’ rent (i.e. $6,000). The Defendant’s evidence 4.She said that on 15.4.2002 a tenancy agreement was entered between her and the Defendant, for a period of 2 years, from 19.4.2002 to 18.4.2004, at a monthly rental of $14,000. There was a deposit of 2 months’ rental. From the second month onward, the Plaintiff began to owe her rental. The rentals for the periods from 19.6 2002 to 18.7.2002, and from 19.11.2002 to 18.12.2002, had to be deducted from the deposits. 5.In May, 2003, she rang up the Plaintiff, because he did not pay up his rent. He said that he was in Singapore. He hoped that the tenancy could be terminated and he would move out of the Premises. She agreed. He also asked her if he could transfer the tenancy to his good friend Robert Novoa. Finally she agreed to let the Premises to Robert Novoa on a monthly basis at a monthly rental of $12,000. 6.On 28.6.2003, she attended the Premises for the first time after letting the Premises to the Plaintiff. The Plaintiff signed on the original tenancy, confirming that the tenancy was terminated on19.6.2003, and he also got back the deposit of $28,000. Then she asked to see Robert Novoa, but the Plaintiff told her that Robert Novoa was sleeping in the sleeping room, so she could not see Robert Novoa then. But the Plaintiff gave her the mobile phone number of Robert Novoa. 7.From her viewpoint, commencing from 19.6.2003, the tenancy of the Premises had been transferred to Robert Novoa, at a monthly rental of $12,000. 8.On 4.7.2003, her bank record showed that a sum of $12,000 had been deposited into her bank account. At that time she thought that it was the payment of the rental for the first month by Robert Novoa. 9.At the beginning of August, 2003, she found that the rental for the second month had not been paid, so she rang up Robert Novoa. Robert Novoa told her that he had moved out of the Premises on 1st August, 2003. He agreed to return the keys of the Premises to her. On 4.8.2003, she met Robert Novoa at the Premises, and he returned the keys of the Premises to her. At that time she saw that there were a lot of furniture, electrical appliances and miscellaneous items inside the Premises. So she asked him how he intended to do with those things. He indicated that he did not need those things, and he did not intend to take away those things. So she asked him to ask the Plaintiff whether he had any intention to deal with those things. Robert Novoa replied that he was unable to contact the Plaintiff. Eventually he left. 10.Within the following week he rang up the Plaintiff 3 times. For the first 2 occasions, nobody received the calls, and on the 3rd occasion, there was a telephone record which required her to leave her message. So she made a telephone record by telling the Plaintiff that Robert Nova had moved out of the premises, leaving behind a lot of electrical appliances and miscellaneous items of things. She needed to clear up the Premises, so that she could let out the Premises. She asked him to tell her whether he intended to deal with those things. For the following 2 weeks, she did not receive reply from the Plaintiff. Because the new tenant would move into the Premises, in the last week of August, so except for a set of sofa and a mirror left behind by Robert Novoa, she moved other things into another property belonging to her and her husband. At that time they had not reached a decision as to how to deal with those things. 11.On 28.8.2003, the Plaintiff rang her up, and requested to get back his properties in the Premises. She told her that the electrical appliances and miscellaneous items were left behind by Robert Novoa in his status as the last tenant. Since Robert Novoa had already abandoned those things, she as the landlady had the right to deal with those things. She said “I disposed of them”. But the Plaintiff replied that those things belonged to him. So she told the Plaintiff that he and Robert Novoa had to clarify to her to whom those things belonged. The Plaintiff appeared to be very angry and rang off. 12.The deposit was in the amount of two months’ rental. If the rentals for the periods from 19.6.2002 to 18.7.2002 and from 19.11.2002 to 18.12.2002 had been deducted from the deposits, then there would have been no deposit left after 18.12.2002, and it cannot be true that on 28.6.2003 the Plaintiff got back his deposit in the sum of $28,000. 13.The Defendant said that in May, 2003, she agreed with the Plaintiff to transfer the tenancy to Robert Novoa, and she considered that from 19.6.2003, the tenancy of the premises had been transferred to Robert Novoa. It is clear that prior to 28.6.2003 she had not seen Robert Novoa before. But on 28.6.2003, inside the premises, when she made a request to the Plaintiff to see Robert Novoa, she was not able to do so, because Robert Novoa was sleeping. This is incredible, because how Robert Novoa was to pay the monthly rental had not been discussed or arranged between them. This is the most important thing to do. Since Robert Novoa was in the sleeping room, it would not be so inconvenient that he was to be waken up so that she could talk to him. 14.On 4.8.2003, it is incredible that she asked Robert Novoa to ask the Plaintiff if he had any intention of dealing with those things. Those things simply had nothing to do with the Plaintiff. The same reasoning applies to her 3 telephone calls made to the Plaintiff afterwards. If she had genuinely believed that those things did belong to Robert Novoa as the last tenant leaving the premises, and that Robert Novoa had already abandoned them, then she should not have rung up the Plaintiff 3 times. 15.I did not accept the Defendant’s version of evidence. The Plaintiff’s evidence is truthful. I find that when the Plaintiff was still a tenant of the Defendant, she disposed of his properties without his consent. I therefore dismiss the Defendant’s counter-claim of moving and storing the Plaintiff’s articles. The loss to be awarded to the Plaintiff is the monetary value of the articles at the time the Defendant disposed of them. The prices set out in the Statement of Claim of the articles were the specific costs of the items or market replacement values. The articles he lost were not new articles. Therefore it would not be unreasonable to impose a discount of 20% on the prices he sought in the Statement of Claim. I therefore enter judgment in his favour in the sum of $89,684.00 (80% x $112,105), together with interest thereon, commencing from 25.10.2004 at judgment rate until satisfaction of the debt, to be paid within 14 days from today. 16.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Defendant is to pay costs to the Plaintiff, to be taxed, if not agreed.
The Plaintiff : unrepresented, appearing in person The Defendant : unrepresented, appearing in person |