Wong Sau Lin v. Ip Theodore James
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LDPD 738/2013 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION APPLICATION NO. LDPD 738 OF 2013 __________________________ BETWEEN
__________________________ Coram: Deputy Judge Tracy Chan, Presiding Officer of the Lands Tribunal Dates of Hearing: 25 June 2013 Date of Judgment: 28 June 2013 ________________ J U D G M E N T ________________ 1.This is an application taken out by the landlord (“Madam Wong”) of a property situated at the Rear Portion of the 2nd Floor, No. 372 Des Voeux Road West, Hong Kong (“the suit premises”). 2.The Respondent tenant is absent today saying that he was not well when called by the court clerk at the beginning of the trial but he did not seek any adjournment nor seek to produce any medical proof. The trial proceeded in his absence. Background 3.By a tenancy agreement dated 2nd December 2009 (“the 1st Agreement”), Madam Wong let to the Respondent for a fixed term of tenancy of two years from 10th December 2009 to 9th December 2011 at a monthly rent of HK$7,000.00. 4.It is alleged that the Respondent had not been punctual in making payments during the term of tenancy under the 1st Agreement, and in October 2011 when he had defaulted in payment for two months, Madam Wong instructed lawyers to send a letter to him demanding for HK$14,000.00 being the arrears of rents from 10th September 2011 to 9th November 2011. The Respondent made some partial payment subsequently. 5.Before this 1st Agreement expired, parties reached another agreement to commence from 10 February 2012 for 12 months and the monthly rent was $7,500.00 per month (“the 2nd Agreement”). 6.When renewal of the tenancy was discussed again in January 2013, Madam Wong offered renewal only on condition that the Respondent would pay 6 months’ rent in advance, and the monthly rent would be increased to $8,500.00 per month. He had agreed to those terms but failed to pay accordingly. 7.Madam Wong said the Respondent had all along been making payments to her directly to her bank account with Bank of China (Hong Kong) Limited (“the BOC Account”). Since Madam Wong could not communicate with the Respondent who speaks only English, her son-in-law Mr Wong had been the go-between. Whenever Mr Wong received messages from the Respondent saying that rental had been paid into the BOC Account, he would ask Madam Wong to check it out for confirmation. For purpose of this suit her solicitor had gone through her bank records and produced a schedule showing the payment and arrears (“the Schedule”). She confirmed the calculation was correct and the arrears up to 9 April 2013 was $27,000.00. 8.Madam Wong denied she was responsible for the electrical and plumbing expenses allegedly spent by the Respondent. She said according to the 2nd Agreement, there was a term saying that all interior appliances (electrical appliances and furniture, in case of damage, shall be fixed by the tenant himself”. Further she had no knowledge of the replacement of the air-conditional undertaken by the Respondent. She denied there was any agreement between the Respondent and herself for her to share or shoulder the expenses. Evidence of Wong Jeffery 9.He adopted his evidence is the witness statement. He said he had been at Madam Wong’s request communicated and followed up with the Respondent about the tenancy matters in respect of the suit premises. He confirmed the calculation shown in the Schedule prepared by their solicitor after checking the bank statements of Madam Wong. He confirmed that there had once been a mistake in calculation but the figure now shown in the Schedule was true and correct and should be adopted for the purpose of this suit. He explained that the mistake arose because Madam Wong might have forgotten to count one of the two months’ rents covering the period from 10th December 2011 to 9th February 2012 between the respective terms under the 1st Agreement and the 2nd Agreement, and had messed up the relevant rent payment periods. 10.He referred the court to the whatsapp messages produced by the Respondent to establish that there was an agreement between the Respondent and Madam Wong through him that the tenancy was extended at a new monthly rent of HK8,500.00 from 10th February 2013; and that the Respondent should pay 6 months in advance. But he had failed to pay the 6 months rental as agreed. 11.After hearing evidence of the Madam Wong and Mr Wong, I am satisfied that they are reliable witnesses. Their evidence is well supported by documents. On the other hand, although the Respondent commented that Madam Wong had made the record of payment chaotic without issuing rental receipts on time, I accept that with the assistance of her lawyer, the Schedule now reflects the arrears up to 9 April 2013 is correct. I also accept the evidence of Madam Wong, the Respondent is still occupying the property. 12.Since the Respondent did not attend court to advocate and prove his opposition to the Application, I would not consider his saying that he had been spending money on the electrical wiring and plumbing ($4,600) and replacing the air-conditioner. The Respondent did not put in any proof that such expenses should be shouldered by Madam Wong. Further, there was no proof that Madam Wong had ever agreed to shoulder such expenses. To the contrary, this was raised in one of his emails sent to the solicitors acting for Madam Wong on 6 April 2013 (Page 61). If there was no agreement given by the landlord to shoulder any part of such cost, such cost would be shouldered by a tenant because there is no implied term or warranty in a lease that a landlord would shoulder the cost. In any event, I find that there was no agreement between the Respondent and Madam Wong that Madam Wong would shoulder such cost. 13.I find that the Applicant had proved her claim on arrears of rent. I find that there was agreement on new lease that it commenced on 10 February 2013 for 6 months; monthly rental would be $8,500 per month; and that the Respondent would have to pay 6 months’ rental in one go before the lease was to start. I find that the Respondent had failed to pay the 6 months’ lease in advance. I am given to know that the Applicant would not ask for all of the 6 months rent as it is her case that the new lease had not commenced because the Respondent had not fulfilled the condition of paying 6 months in advance. I accept that the Schedule reflects an accurate account of rental payments and arrears. I find that as at 9 February 2013, a day before the new tenancy was to start, the Respondent was in arrears of rent for $30,000 from the 2nd Agreement. I find that he had never paid the 6 months rent in advance. I find that there is no valid tenancy subsisting since 10 February 2013. Further as he had not been paying any rent after 10 February 2013, there is no monthly tenancy under operation of law. The $20,000 paid on 26 February 2013 was to settle part of the $30,000 arrears I have just mentioned. I find that the value of the mesne profit starting from 10 February 2013 is at the monthly rate of $8,500 as agreed between the parties. 14.I am satisfied that up to 9 May 2013, the Respondent is in arrears at the amount of $35,500. Since there is no subsisting tenancy, the Respondent would not be granted relief against forfeiture of a tenancy. Order 15.This is my order:
Mr Chang Chun Pong, of Messrs. Kong & Chang, for the Applicant The Respondent: absent, acting in person |
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Further hearings and rulings under LDPD 738/2013