Everich Century Ltd v. Sansam Enterprises (Hong Kong) Ltd

DCCJ 1372/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1372 OF 2005

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BETWEEN

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Coram: Deputy Judge W. Lam in Chambers

Date of Delivery of Decision : 30 September 2005

Decision

1.The Plaintiff (“P”) seeks summary judgment against the Defendant company (“D”) as per its Statement of Claim (at Bundle page 4) although the figures are now updated.  P was the landlord and D its tenant since the 1st July 2004, with tenancy agreement signed for 2 years.  D has been in default in rent since the 1st January 2005.  D’s liability to surrender possession, for rent in arrears, for interest on the arrears and legal costs, is found in the tenancy agreement: see Bundle page 23 para 1, page 30 at para 4(a)(i), and page 31 para 4(a)(i) to (iii). 

2.D has never filed a proper Defence, but its representative, Managing Director Mr Rhee, has written letters which are in the court file: see Bundle pages 52 to 63.  Today Mr Rhee has also read his submissions from a document which is now added into the court file.  All of these documents and including the matters raised by Mr Rhee in court today I will treat as the Defence. 

3.In summary, D’s position is as follows:

(1)	It does not dispute liability for rent: Bundle page 63 line 4, which liability Mr Rhee confirmed in court today,
(2)	It has not, at any time, disputed quantum as detailed by P,
(3)	It blamed P for not having supplied “the right furniture”, namely that a water heater was faulty and a toilet seat cover was faulty: page 52 at the 7th last line, page 53 at the 2nd paragraph, and page 61 at the 8th last line. D said if P would repair the water heater and the toilet seat, it would pay the money in arrears, although it would not pay any legal costs or interest.

Regarding point “3” above, the water heater was indeed one of P’s “Provisions” (Bundle page 37). However the duty to repair was not on P but on D: see page 23-24 under para 2(b)(i).  In any event I do not find it an essential term in the contract so as to make it “wrong” as D put it.  As Halsbury’s Laws of England (4th ed) Volume 27(1) at paragraph 243 points out, “a tenant takes the demised premises subject to any defects existing in them at the time of the letting”.  Nothing here points to the premises being “unfit for habitation”.  As to the toilet seat, this is not even under P’s “Provisions”, not to mention who had the responsibility to effect repairs.

3.It is clear that D has not disclosed any triable credible or arguable Defence.  I should also state that despite the responsibility to render repairs falling on D, P was nevertheless willing to allow a sum of $2500- to satisfy D’s complaints (Bundle page 19 line 3), but D had never accepted the offer.  I am satisfied that P has been more than fair to D in this matter.

4.For the above reasons there will be judgment for the Plaintiff for vacant possession, and the sum of $89,985.00 with interest at 5% per annum from the date of the Writ to today, and thereafter at 8% per annum until payment is effected. 

5.Costs of this action be to the Plaintiff, to be taxed if not agreed, including costs at the Call-over.

Representation :

Ms. Y.Y. Hui of Messrs. Tang, Lai & Leung for Plaintiff.

Defendant represented by Mr. RHEE Heui Gwan, present.