Greenhill Enterprises Ltd v. Thomas Young

DCCJ520/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 520 OF 2006

BETWEEN

Coram:  Deputy District Judge S T Poon in Chambers (Open to the public)

Date of Hearing: 7 July 2006

Date of Delivery of Decision: 7 July 2006

D E C I S I O N

1.The issue in this application is whether the Defendant is the tenant or Taipan Management Company is the tenant of the lease.

2.It is admitted by the Defendant that Taipan is controlled by him.  There is evidence from documents produced by both sides that both Taipan and the Defendant have been described as “the tenant”.  However, there is no evidence from either side as to the circumstances under which the tenancy was created, which is, in my view, more important in considering who was the tenant parties intended to be, given the fact that there is no written tenancy agreement before me.  I am of the view that there is a triable issue as to this.

3.Miss Lau, counsel for the Plaintiff, argued that at the time the Defendant signed the Form TR7 agreeing to adjustment of rent of the tenancy, Telsheen, the company using “Taipan” as a trade name, was dissolved and there was no legal entity using “Taipan” as a trade name at that time.  Therefore, the Defendant became the tenant, since he must be signing the said form on his own behalf.

4.With respect, I do not think that it is the correct position in law.  As admitted by Miss Lau, the dissolution of the company did not render the tenancy terminated.  If Telsheen was, in fact, the tenant at the time the Defendant signed on its behalf, even if it is dissolved, Telsheen remained the tenant.  The fact that another company, namely, Henlex, is seeking to rectify the agreement of alteration of rent does not make the Defendant to be the tenant himself.  As there was no new tenancy created by the signing of the Form TR7, the question remains who was the actual tenant at the time when parties created the tenancy. 

5.However, there is no evidence filed on the part of the Defendant, who is in control of Taipan, as to why rent is not paid. On balance, I do not accept that the Defendant was not in occupation of the premises.  Otherwise, information in relation to who is the actual occupier should be forthcoming.  I am of the view that the Defendant is the one benefiting from the premises and it is only just if the Defendant is to pay for the rent pending this case to be determined.

6.I order that leave to defend be granted on condition that the Defendant do pay the Plaintiff interim payments being the amount equal to the outstanding rent of $136,500 within 14 days from the date hereof, and the payment of $19,500 monthly, starting from 1 August 2006, payable on the first day of each month until determination of this action or further order.

7.Costs in the cause.

(Discussion re payment into court)

8.I am of the view that the plaintiff should be entitled to rent and I see no reason why it should not be paid.  My order remains that the money be paid to the Plaintiff rather than be paid into court.

9.I also grant certificate for counsel.

Representation:

Ms Lau Lorinda, instructed by Messrs Kelvin Cheung & Co., for the Plaintiff

Mr James Tse, instructed by Messrs Samuel Ho & Co., for the Defendant