R. CORNEY & CO. LTD. v. NG SIU FAN

IN THE LANDS TRIBUNAL OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDPB 53 of 1998

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REASONS FOR DECISION

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1. The Applicant (A) is the registered owner of the suit premises at Flat F, 9th Floor, No.3 Lily Street, Hong Kong (the premises). The premises was first let to the Respondent (R) before 10th June 1983. Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap.7 applies to the premises.

2. The rent of the premises was increased $7,205 per month from 25th May 1997, by a Notice of Increase in Rent on account of increase in rates (Form TR8) dated 30th April 1997. There is an implied covenant to pay rent on the due date of the 25th day of each month, and a condition for forfeiture for non-payment within 15 days of such date, under S.52(3) of Cap. 7.

3. R had paid no rent since 25th October 1997, and no management fees from 25th October 1997. A letter demanding payment of arrears of rent and management fees was sent to R by A's solicitors on 21st May 1998. R made no payment.

4. By an application dated 22nd May 1998, A applied for possession of the premises, arrears of rent and management fees at $54,345, mesne profit at the rate of $7,205 per month and management fees at the rate of $580 per month from 25th May 1998 to the date of delivery of vacant possession, and costs.

5. On 17th December 1998, A obtained an order for interim payment of the accrued rent/mesne profit and management fees, with liberty to execute upon the order on default. R was given one month to pay. There was no payment made.

6. On 20th January 1999, A's solicitors received a letter from the Official Receiver's Office informing them that a receiver has been appointed to receive the estate of R by virtue of a Bankruptcy Order made on 23rd December 1998.

7. A the applied for leave to proceed with the application LDPB 53 0f 1998 and to enter judgment against R for vacant possession, accrued rent and management fees of $54,345 , mesne profit at the rate of $7,205 per month, and management fees at the rate of $580 per month, both from 25th May 1998 up to the date of delivery of vacant possession, and costs. The application was served upon the Official Receiver, being the receiver of R's estate.

8. By a letter dated 3rd February 1999, the Official Receiver stated that he had no objection to the order sought by A, and did not intend to attend the hearing. A's solicitors was asked to produce the letter to the Tribunal.

9. The Official Receiver notified R of the hearing. R attended and contended that the Official Receiver had agreed to deal with the arrears on his behalf, that A was only eligible for the amount of accrued rent and management fees up to $54,345, that A owns the whole building which is rented for gain, that he was bankrupt, a single parent, suffering from various illness, and was entitled to a place to live with his two children. He also relied upon lack of repairs as a ground for non-payment of rent. His objections were all misconceived. The Official Receiver had given no undertaking for the payment of rent or arrears, neither has he applied to the Court of First Instance sitting in its bankruptcy jurisdiction to stay the proceedings.

10. As the Official Receiver had no objection to the application, there was order in terms of A's application.