Istril Ltd v. Neville James Jenner Watkins

DCCJ 5084/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5084 OF 2009

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BETWEEN

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Coram: H.H. Judge Chow

Hearing dates: 21^st and 22^nd February 2011

Date of handing down Judgment: 2^nd March 2011

JUDGMENT

1.The Plaintiff is the registered owner of the premises known as Flat B, 13^th Floor, Block 1 and all those carparking spaces, Victoria Garden, 301, Victoria Road, Hong Kong (collectively known as “the Premises”). Its claim against the Defendant was set out under Paragraph 2 of the Statement of Claim. It reads:-

“2. By a Provisional Tenancy Agreement by way of a Letter in writing dated the 4^th day of July 2008 issued by the Plaintiff and counter-signed by the Defendant, Neville James Jenner Watkins to acknowledge acceptance of the tenancy of the Flat and two car parking spaces of the said Car Park (hereinafter collectively called “the said premises”) subject to the terms and conditions therein (hereinafter called “the said Provisional Tenancy Agreement”), the Plaintiff let to the Defendant the said premises and the Defendant agreed to take the tenancy of the said premises for domestic use for a term of two years commencing on the 23^rd day of August 2008 to the 22^nd day of August 2010 at the rent of HK$41,800.00 per month for the said Flat and at the licence fee of HK$3,000.00 per month for the said two car parking spaces of the said Car Park, … … … … … … … … … …”

(Underlines provided)

2.On or about 4^th July 2008, the Chinachem Group sent to the Defendant a letter dated 4^th July 2008 (“the Letter”), which reads:-

‘Dear Sir,

Re : Flat B, 13^th Floor, Block 1 & Two Carparking

Spaces, Victoria Garden, 301 Victoria Road,

Hong Kong

We refer to your interest in leasing of the above property and are pleased to set out herewith the terms and conditions which the Landlord would be willing to offer:-

1.	Landlord	:	Istril Limited
2.	Tenant	:	Mr. Neville James Jenner Watkins …..
3.	Premises	:	Flat B, 13th Floor, Block 1 & Two Carparking Spaces, Victoria Garden
4.	Gross Area	:	1,700 sq. ft.
5.	Term of Tenancy	:	24 months
6.	Commencement Date	:	23rd August 2008
. … … … … … … … … … … … …… … … … … … …
17. … … … … … … … … … … … …… … … … … … …

Should you accept this offer, you will be required to attend at our office on or before 15^th August 2008 to sign the Tenancy Agreement and to pay up the balance of the rental deposit and advance charges. … … … … … … … … … …… … … … …

Please confirm your acceptance as set out above by signing and returning the duplicate of this letter together with your cheque in a sum equivalent to one month’s rent by way of initial deposit made payable to “Chinachem Agencies Limited”.

…..

Yours faithfully,

For and on behalf of

Chinachem Agencies Limited

W.K. Tam

Manager’

3.On or about 9^th July 2008, the Defendant wrote to the Chinachem Group by way of a letter dated 9^th July 2008, which states:-

“I enclose herewith your letter dated 4^th July 2008 duly signed by me together with a cheque in the sum of HK$41,800 being initial deposit for your handling.”

The Letter and a cheque in the sum of $41,800 were sent to the Chinachem Group.

4.On 11^th July 2008, the Chinachem Group sent to the Defendant a standard engrossment of Tenancy Agreement and Licence Agreement in respect of the Premises for his signature. On 20^th August 2008, the Defendant sent a letter to the Chinachem Group, stating:-

“Following my telephone conversation yesterday with Becken Ng, I write to confirm that we are with regret unable to proceed with the letting of the above property. …..”

The Letter was signed by a W.K. Tam, for and on behalf of Chinachem Agencies Limited. W.K. Tam did not testify in Court to show the relationship between Chinachem Agencies Limited, the Plaintiff and the Chinachem Group. It was not stated that the Letter was signed for and on behalf of the Plaintiff. The Letter did not state that Chinachem Agencies Limited was acting for the Plaintiff. If there had been such an intention it should have expressly stated so in the Letter. This is exactly what was done in another letter sent by the Chinachem Group (dated 11^th July 2008) to the Defendant, as set out below:-

“We act for the Landlord, Istril Limited, and are pleased to enclose ‘the standard engrossment of Tenancy Agreement and Licence Agreement in respect of the above premises for your signature …..

Yours faithfully,

For and on behalf of

Chinachem Agencies Limited”

5.Miss Becken Ng is the only witness for the Plaintiff.  In her witness statement, she said that the Defendant was the tenant of the Premises pursuant to a provisional tenancy agreement by way of the Plaintiff’s letter dated 4^th July 2008 and entered into between the Plaintiff of the one part and the Defendant as tenant of the other part.  That simply is incorrect.  There is no evidence that Chinachem Agencies Limited signed the letter on behalf of the Plaintiff.  On the face of it, the Letter was an agreement entered into between Chinachem Agencies Limited (and not the Plaintiff) and the Defendant.  Thus there is no agreement reached between the Plaintiff and the Defendant. 

6.Even if Chinachem Agencies Limited did sign the letter on behalf of the Plaintiff, there is no evidence adduced from W.K. Tam that he intended the letter to constitute a “provisional” tenancy agreement between the Plaintiff and the Defendant.  If the letter had been intended to be a “provisional” tenancy agreement it should have been clearly expressed to be so.  The very fact that the Plaintiff did not sign the letter indicates that the drafter of the Letter did not intend that the Letter was to constitute a provisional tenancy agreement between the Plaintiff and the Defendant. As indicated in the Letter, a tenancy agreement between the Plaintiff and the Defendant would be entered into when the Defendant attends the Chinachem office on or before 15.8.2008 to sign the tenancy agreement. 

7.In his witness statement the Defendants states that “… … by a letter dated July 2008 from the Plaintiff’s agent Chinachem Agencies Limited … to me, Chinachem set out some basic terms … … … …”.  There is no factual basis for him to say that Chinachem Agencies Limited was the Plaintiff’s agent at the material time.  This statement is not supported by evidence adduced in court.  Therefore I attach no weight to this statement.

8.For the above-said reasons the Plaintiff has failed to prove its case.  Accordingly I therefore dismiss it.

Costs

9.I make an order nisi, to be made absolute in 14 days’ time, that the Plaintiff do pay costs of this action to the Defendant, to be taxed, if not agreed, with certificate for counsel.

The Plaintiff: represented by Miss Rachel Lam, instructed by M/S Ford, Kwan & Co., Solicitors

The Defendant: represented by Mr. Malcolm Merry, instructed by M/S Boase, Cohen & Collins, Solicitors.