Ever Gold International Development Ltd v. Vincent Thomas

DCCJ 1138/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 1138 OF 2013

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BETWEEN

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JUDGMENT

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1.This is an appeal of the defendant against the order of Registrar Lui dated 21 June 2013 (“the Order”) whereby the defendant was ordered to, among other things, deliver vacant possession of a property registered in the name of the plaintiff (“the Property”) and pay the plaintiff arrears of rent and mesne profits at the monthly rate of HK$11,000 from 4 September 2012 to the date when delivery of vacant possession is completed.

2.This is a simple case involving a landlord and tenant dispute. The plaintiff’s claim is founded on the following undisputed facts. The plaintiff and the defendant entered into a written tenancy agreement dated 20 March 2012 (“the TA”). Under the TA, the plaintiff as the registered owner of the Property situated at First Floor, 15 Burd Street, Sheung Wan, Hong Kong agreed to let the Property to the defendant for a term of 2 years from 4 April 2012 to 3 April 2014 at a monthly rent of HK$11,000.

3.There was a forfeiture clause in the TA entitling the plaintiff to re-enter the Property and determine the tenancy in case of a breach of the TA by the defendant including the covenant to pay rent.

4.There was also a break clause in the TA whereby both parties could terminate the TA prematurely by giving not less than 1 month’s written notice not before the expiration of eleventh month of the tenancy (“the Break Clause”).

5.The defendant has not paid any rent since September 2012 and yet continues to occupy the Property.    

6.Pursuant to the Break Clause, the plaintiff served on the defendant a written notice dated 5 March 2013 to terminate the TA with effect from 6 April 2013.

7.Notwithstanding the notice, the defendant has refused to give vacant possession of the Property but at the same time does not pay any rent under the TA.

8.Against this background, the plaintiff commenced these proceedings against the defendant by writ on 8 April 2013. By summons dated 27 May 2013, the plaintiff applied for summary judgment and the application was heard and granted by Registrar Lui on 21 June 2013. By way of a Notice of Appeal dated 5 July 2013, the defendant appeals against the Order.

This hearing

9.There is no dispute that this court has to rehear the application of the plaintiff. By his letter dated 11 July 2013, the defendant applies for an adjournment for the purpose of preparation of specialist reports to prove the existence of illegal structures in the Property. At the hearing, the defendant adds that he wants the adjournment so that he could seek legal advice.

10.The plaintiff does not want any adjournment. The plaintiff says that the evidence proposed to be adduced by the defendant fails to meet the requirements set out in Ladd v Marshall and therefore the adjournment sought is not for good reasons. The plaintiff also accuses the defendant of deploying delaying tactics so that he could stay at the Property longer.

11.For the reasons to be given below, I agree that the specialist reports purportedly to be prepared by the defendant are not relevant to any defence to the plaintiff’s claim and there is no reason why these reports could not have been made available earlier. I do not think an adjournment is justified on this basis.

12.The defendant has had ample opportunities to seek legal advice in these proceedings since April this year. It is unreasonable to allow him further time and there must be finality to the dispute as soon as possible. I refuse to grant the defendant an adjournment and proceed to deal with his appeal on its merits.   

Any triable issues

13.On the undisputed facts, it is incumbent on the defendant to show a reasonable defence or triable issues warranting a trial with evidence condescending upon particulars.

14.The only defence put forth by the defendant is that there are illegal structures in the Property, which he says would affect the legality of the TA and hence his obligations to pay rent thereunder. Further, he complains about certain wiring and drainage defects in the Property. He accordingly counterclaims for damages to be assessed.

15.Even if I accept that there are illegal structures and such defects under complaint in the absence of any expert evidence for the purpose of this appeal only, on the authorities, they do not affect the obligation of the defendant to pay the rent under the TA: Edge v Boileau & Ors (1885) 16 QBD 117 applied by Chu, J (as then she was) in Golden Sunrise Ltd v Lee Kwok Hung [2005] 1 HKC 466 at §38. In the absence of express agreement to the contrary, the covenant to pay rent has been regarded as independent of other covenants or obligations under a lease.

16.Further, the mere existence of illegal structures would not begin to invalidate the TA. I fail to see that there is any issue of legality concerning the TA. The defendant cannot shirk from his responsibility to pay rent under the TA even if his allegations are factually correct.

17.On the other hand, the defendant advances no valid reason why he could remain in possession of the Property despite the notice served pursuant to the Break Clause. He is clearly trespassing and is liable to pay the plaintiff mesne profits.

Conclusions and Orders

18.The defendant has failed to show any triable issues and a genuine and reasonable defence to the plaintiff’s claim. The defendant may continue his counterclaim if so advised but it fails to constitute a valid set-off against the plaintiff’s action. The defendant’s appeal is devoid of merit and falls to be dismissed. I thus confirm the Order save that I grant a further stay of execution of the order for possession for 3 weeks from the date of today.

19.Costs should also follow the event. Despite the helpful assistance given by Mr Lam, counsel for the plaintiff, I fail to see any complexity in this matter which may justify engagement of counsel. The plaintiff’s solicitors would be competent enough to handle this appeal after obtaining the Order before the Registrar themselves. I do not grant certificate for counsel accordingly.

20.It appears to me that summary assessment is appropriate. I have perused the skeleton bill prepared by the plaintiff. Bearing in mind that I have disallowed certificate for counsel, I assess the plaintiff’s costs at HK$10,100. I order that the defendant do pay such costs to the plaintiff forthwith.

Mr Gary Lam Chin Ching, instructed by Messrs Lo, Wong & Tsui, for the plaintiff

The defendant appeared in person

Please refer to HCMP3240/2013 for the relevant appeal(s) to the Court of Appeal.