Leung Kit Hing v. Wah Foo Enterprises Co. Ltd.

LDNT000055A/2000

LDNT 55/2000 Review

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDNT No. 55 of 2000 (Review)

 

BETWEEN
	Leung Kit Hing	Applicant
	AND
	Wah Foo Enterprises Company Limited	Respondent

Coram: Member W K LO

Dates of hearing: 29 and 30 August 2001

Date of delivery of judgment: 13 September 2001

_________________

JUDGMENT

_________________

1. Background

The Tribunal granted orders on 7th December 2000 regarding the terms of the new tenancy of the Premises known as the First Floor of No. 109 Lockhart Road, Wanchai, Hong Kong ("the Premises"). They are as follows:

1. New Tenancy for 2 years from 3rd May 2000;

2. New rent at $4,650 per Lunar calendar month (exclusive of rates); leave to the Applicant to pay the Respondent the arrears of rent within 1 month;

3. The other main terms of the tenancy, above from the rent, commencement date and the duration are as follows:

(1) The landlord to keep the structure and exterior of the Premises in reasonable and proper state of repair and condition provided that the landlord shall not be liable for breach of this Clause unless and until written notice of any serious defect or want of repair which is not within the responsibility of the tenant has been given to the landlord by the tenant and the landlord has failed to take reasonable steps to remedy the same.

(2) The tenant to keep the interior of the Premises clean and tidy throughout the tenancy, fair war and tear excepted.

(3) The tenant to permit the landlord and all persons authorised by the landlord at all reasonable times with prior appointment during the term hereby created to enter into and upon the said premises to view the state and condition of the same and to carry out any repairs to the Premises which the landlord considers necessary or proper to be done.

(4) The tenant paying the said rent and performing and observing the tenant's terms and conditions herein contained may peaceably hold and enjoy the said Premises without any interruption by the landlord or any person or persons lawfully claiming through or in trust for him.

(5) In case the Premises or any part thereof shall at any time during the said terms be destroyed or damaged by typhoon, fire, earthquake or hostilities so as to be wholly or partially unfit for use and occupation, the rent hereby reserved or a fair proportion thereof according to the nature and extent of the damage sustained shall be suspended until the same Premises shall again be rendered fit for use and occupation.

4. The Applicant do pay one third of the Respondent's costs for the hearings dated 24th August 2000 and 17th October 2000, to be taxed if not agreed.

2. The Applicant applied on 6th January 2001 for "overall review as per my affidavit attached." It was fixed for hearing on 23rd February 2001. During the hearing on 23rd February 2001, the Applicant applied that the review application be adjourned sine die with liberty to restore. The ground for adjournment was that the Applicant required more time to obtain the transcripts of previous hearings. The Applicant submitted that there be no order as to costs since this was provided for in the Ordinance for new tenancy application. On the other hand, the Respondent submitted that the costs be in the cause. At the end, the Tribunal gave the following orders:

" 1. On application by the Applicant, hearing for the review application be adjourned sine die with liberty to restore;

2. Costs be in the cause. "

3. A summons application was made by the Respondent on 18th April 2001 seeking an order that:

"1. The adjourned Application of Review taken out by the Application by her summons dated the 6th day of January 2001 be struck out; and

2. The costs be to the Respondent in any event. "

4. The summons application was fixed for hearing on 9th May 2001. At the end, it was decided that:

" 1. Application by the Respondent to strike out the Application's review application dated 6th January 2001 be dismissed;

2. Costs of the Respondent's summons application to the Applicant, to be taxed if not agreed. "

5. At the end of the hearing on 9th May 2001, the Tribunal was advised that the Applicant would apply to list the review application for hearing after the Applicant received all the required transcripts. After the hearing, the Assistant Registrar was directed by the Tribunal to reserve a date for the review hearing. Recently, the Assistant Registrar was further directed by the Tribunal to write to both parties and inform them that the hearing for the review, previously adjourned by the Orders dated 23rd February 2001, will be restored by the Tribunal on 29th August 2001.

6. The review application

The Applicant submitted a 17 pages "statement" with exhibits in support of her application prior to the hearing on 29th August 2001. At the beginning of the review hearing, the Applicant produced a bundle of documents as well. However, the Respondent submitted that the bundle of documents should not be allowed for the purpose of review because the Applicant produced the bundle in the last minute. The Respondent was taken by surprise and was prejudiced by the Applicant's move. The Respondent said that the Applicant first applied for review on 6th January 2001 and used many excuses to delay the hearing. So, the Applicant should not be allowed to twist the rules again.

7. After being told by the Tribunal that the documents in the Respondent's bundle appeared to be documents that had either be part of the documents (such as Forms and Affidavits) filed or produced by the parties before, the Respondent agreed to read the documents and reconsider their position. The hearing was adjourned for a while after which the Respondent submitted that apart from a page marked 6 & 7, the Respondent did not object the rest of the Applicant's bundle.

8. After hearing the parties' submission on the admissibility of the said page, the Tribunal ruled that the Respondent's application to disregard the page marked 6 & 7 in the Applicant's bundle was agreed. The reason for the ruling was that the Applicant should adhere to the rules and should not be allowed to produce a document prepared by a director of a building surveyors firm in the last minute, thus depriving the Respondent the opportunity of seeking expert advice on the contents of that document. Should the document be accepted and if the Respondent required an adjournment so that they could study the document, the costs occasioned by the adjournment would certainly have to be borne by the Applicant since the adjournment was caused by the Applicant. However, the Tribunal agreed with the Respondent that the review hearing should not be adjourned further since the original orders were granted on 7th December 2000. Therefore, the said document was disallowed.

9. Details of the Applicant's review application

In the review application (Form 1) filed by the Applicant on 6th January 2001, the Applicant applied for an order to be made that "applications for overall review as per my affidavit attached." Her affidavit is reproduced below:

(1) "To take leave to review Order of 13/6/2000....

(2) To take leave to review Cost Order on 7/7/2000(Pursuant to Section 48, 119D, 117) To clarify Order Part IV (Part IV or Continued/Renewed or New Tenancy);

(3) To take leave to review Cost Order 9/10/2000....

(4) To review Judgment handed down on 7/12/2000....

(5) Alternatively, review Cost Order of 24/8/2000 and 17/10/2000.

10. It was not clear what Orders the Applicant wished to review and how should the Orders be reviewed. There were differences between what were stated in the Interlocutory Application (Form 1) filed on 6 January 2001 and the "statements with exhibits" dated 28th August 2001 and submitted by the Applicant on the same date, and the bundle of documents submitted by the Applicant in the beginning of the review hearing held on 29th August 2001. Upon questioned by the Tribunal, the Applicant advised that she intended to and also applied for both this review application and an ex-parte application for "overall review" before, but was advised that the ex-parte application was refused. Therefore, the Applicant agreed that her review application could be summarised as follows:

1. Term of the new tenancy --
The original order no. 1 (i.e. "new tenancy for 2 years from 3rd day of May 2000" be replaced by "a new tenancy for 3 years which is a continued / renewed tenancy under Section 117 of Part IV originally formed by oral agreement prior to March, 1946 (the written lease is lost)."

2. Rent --
The original order no. 2 be changed to "New rent calculated at Standard Rent of $40 X 85 times, i.e $3,400 per month (exclusive of rates); leave to the Applicant to pay the Respondent the arrears of rent within 1 month"

3. Regarding the original order no. 3, the following supplements or additional clauses be added -
Clause (2) - the following words be added at the end - "provided that the Tenant is not suffered from the damages, which is the responsibility and control of the landlord, in the Premises;
Clause (5) - the following words be added after the word "hostilities"- "or water leakage or over-flow of water";
New clause (6) (To sub-let with the landlord's consent) - "The landlord hereby consents the tenant to sub-let the Premises or part thereof";
New clause (7) (Demolition clause) - "The landlord should inform the tenant that redevelopment is likely within the period of the letting prior to commencement of the Tenancy and compensate the tenant for redevelopment in accordance with the Ordinance."

4. The original order no. 4 be replaced by "there be no order as to costs for the hearings dated 24th August 2001 and 17th October 2001.

11. The Applicant did not elaborate as to why the duration of the tenancy should be varied as set out above. The Respondent submitted that the original duration of the new tenancy should remain unchanged. The Respondent pointed out that the Applicant's proposed term still made reference to his deceased father's tenancy. This should not be accepted since it did not accord with the provisions of the Ordinance. Also, the valuation of the Premises was made on the basis of a 2-year term tenancy, which was also the usual term of new tenancy granted under Part IV of the Ordinance. In the circumstances, since the Applicant failed to provide sufficient ground for the variation of the duration of the new tenancy, the Applicant's application to vary the term of the tenancy must fail. The order no. 1 of the original Orders dated 7th December 2000 shall remain unchanged.

12. Although the Applicant suggested that the Tribunal should consider the rental references of 109 Lockart Road 3rd floor, 111 Lockart Road 1st floor and 111 Lockart Road 3rd floor, she at the end still concluded that the Tribunal should adopt the rent of $3,400, being the product of "Standard Rent" of $40 and a factor of 85. Apart from saying that this was the statement given by the Respondent's Surveyor during the past hearing, the Applicant did not explain why the Tribunal should adopt her method of calculation in the determination of the Prevailing Market Rent ("the PMR") under the Ordinance. This was refuted by the Respondent who submitted that the Applicant had not given any acceptable reason for the variation of this term of the new tenancy originally determined by the Tribunal. Moreover, the Respondent submitted that if the Applicant's proposal to base the "Standard Rent" in assessing the PMR were accepted, there would be no need to refer the matter of determination of the PMR to the Tribunal under the Ordinance in the first place. Therefore, the originally assessed rent of $4,650 should be maintained. After taking into account the definition of the PMR under Part IV of the Ordinance, the evidence adduced in the original hearing as well as the lacking of any new, acceptable evidence from the Applicant regarding the level of the PMR for the Premises, the Tribunal agrees with the Respondent that the PMR in the original order no. 2 dated 7th December 2000 shall remain unchanged.

13. However, the Respondent did agree with the Applicant that the rent should be on the usual calendar month basis, instead of the previous Lunar month basis. On checking from the records of the original hearing, it was found that the originally suggested term of "Lunar month" was in fact requested by the Applicant. The submission by the Respondent is accepted by the Tribunal and the order no. 2 of the original Orders dated 7th December 2000 will be varied as follows: that the word "Lunar" be deleted.

14. Regarding the suggested addition of clauses (2) and (5) of the original order no. 3, the Applicant explained that they were needed in light of the state of repair of the Premises. On the other hand, the Respondent submitted that the original clauses were based on standard clauses used in the market. Besides, the additions were considered by the Respondent to be superfluous. The Tribunal considers that since the original clauses were standard clauses in typical tenancy agreements used by landlords and tenants in the market, their wordings should be retained.

15. Regarding the suggested addition of two other clauses of the new tenancy, the Applicant submitted that due to safety reason, the Applicant should be allowed to sub-let the Premises with the consent of the landlord, hence the addition of clause (6) to the original order no. 3 as stated above. In response to this argument, the Respondent submitted that this was an unusual term for a new tenancy and should therefore not be allowed by the Tribunal. Besides, any sub-letting of the Premises could pose an even greater risk to the Applicant who otherwise resided alone in the Premises. The Tribunal agrees with the Respondent's submission and decided that this suggested additional clause be not allowed.

16. As to the proposed additional clause no. (7) (the demolition clause) to the original order no. 3, the Applicant submitted that this should be added in order to safe-guard the Applicant's interests as a tenant. On the other hand, the Respondent submitted that this was unnecessary because the Applicant's interests as a tenant would already be protected by the Ordinance. The Tribunal agrees with the Respondent that this suggested additional clause be not allowed.

17. In her lengthy written submission (from page 6 to page 16), the Applicant summed up the history of the original hearings and submitted that the Applicant should not be required to bear one third of the costs of the original hearings dated 24th August 2000 and 17th October 2000. Therefore, the Applicant submitted that the original order no. 4 be amended to "costs be responsible by the Respondent or no order as to costs.", in light of the provisions of section 119R of the Ordinance.

18. The Applicant submitted that her review application in respect of the costs order for the hearings of 24th August 2000 and 17th October 2000 were based on the her "draft statement on p.3 III cost order submitted on 23/2/2001". Also, whilst the Respondent's solicitor quoted 4 reasons in the Respondent's final written submission, the Applicant submitted that the Respondent's allegation, upon verification by her using the Court Tapes and Notes of Proceedings, were found to be incorrect. The Applicant went on to give a detailed break-down of how the Court's time should be attributed. In summary, the Applicant concluded that she had not wasted the Court's time in the hearings. In any event, the Applicant claimed that "whatever Court's time wasted on 7/7/2000 and 9/10/2000 were due to the mis-statement of the Respondent's solicitor on 13/6/2000 and 24/8/2000."

19. The Respondent stated that section 119R of the Ordinance provides that the Tribunal shall not make any order as to costs "unless that party has conducted his case in a frivolous or vexatious manner". The Respondent submitted that on exercising the power to award costs in the Judgement dated 7th December 2000, "the Tribunal does so at its discretion having gone through all the circumstances and in particular, the manner the case was conducted." Order 62, Rule 2(4) of the Rules of High Court provides the basis of how the discretion should be exercised. In the present case, the Respondent submitted that the Tribunal had, before coming up with the Judgement, considered thoroughly the demeanors of the parties, the evidence as well as all circumstances of the case. On the other hand, the Applicant had not shown any evidence that "she was playing as a reasonable litigant". At the end, the Respondent submitted that the Applicant had failed the Costs Order review totally. If indeed the Tribunal is to vary the Costs Order, the Respondent asked that the Applicant should pay more than one third of the Respondent's costs for the two hearings dated 24th August 2000 and 17th October 2000.

20. Although the Applicant had provided a very detailed breakdown of the matters raised/spoken before the Court, the Tribunal finds that she failed to justify the proposed change in the Costs Order for the hearings dated 24th August 2000 and 17th October 2000. This may partly stem from her mis-understanding of the nature of application before this Tribunal when hearing the case of an application for a new tenancy for the Premises on the aforesaid two dates. It is noted that all along in the aforesaid two hearings and even in the present review hearing commencing on 29th August 2001, the Applicant has consistently opined that the matter before the Tribunal should not be (a) the granting of a new tenancy but the granting of a "continued/renewed" tenancy and (b) that the PMR to be determined should still be based on a multiplier of "Standard Rent" (taken to mean a notional rent estimated by the Government for pre-war premises decades ago for the purpose of processing rent increase applications for pre-war premises in the past. This the Tribunal must say is erroneous in law simply if the relevant sections of the Ordinance are referred to. These are reproduced below:

Section 117 (Part IV of the Ordinance). Continuation of tenancies and grant of new tenancies

"A tenancy shall not come to an end unless terminated in accordance with this Part; and a tenant may apply to the Lands Tribunal for a new tenancy -

(a) if the landlord has given notice under section 119 to terminate the tenancy; or

(b) if the tenant has made a request for a new tenancy under section 119A."

(underline added)

Section 115 of the Ordinance. Interpretation

"Prevailing market rent" means "the rent, exclusive of rates at which the premises the subject matter of a tenancy to which this Part applies might reasonably be expected to be let, at the date on which the current tenancy would, apart from section 119N, have come to an end under section 119(1) or section 119A(5), on the terms of the new tenancy granted under this Part, but disregarding the effect of this Ordinance." (underline added)

21. So, the Tribunal could only grant "a new tenancy" to any applicant, including the Applicant of the present case. And, the rent payable under a new tenancy granted by order of the Tribunal shall be "such as may be agreed between the landlord and tenant or as, in default of such agreement, may be determined by the Tribunal, or by a valuation surveyor appointed by the Tribunal, to be a prevailing market rent" (section 119K of the Ordinance refers). Comparing the provisions of the Ordinance as quoted above, the terms of the new tenancy requested all along by the Respondent and the persistent attitude of the Respondent in the hearings of 24th August 2000 and 17th October 2000, it is evident that the Tribunal did not err when deciding in the Judgment of 7th December 2000 that the Applicant should bear one third of the costs of the Respondent for the hearings held on 24th August 2000 and 17th October 2000.

22. In the final analysis, after considered all the evidence and submission of the parties, the Tribunal failed to see why the original Costs Order (i.e. order no. 4 of the Orders dated 7th December 2000) should be amended.

23. Costs of the review hearing

The Applicant submitted that for this review, there should be no order as to costs. On the other hand, the Respondent submitted that firstly, for the hearing dated 23rd February 2001 in which the cost order was "costs be in the cause", the Tribunal should award costs to the Respondent; and secondly, for this review, the Tribunal should also award costs to the Respondent. The Respondent also added that although the Applicant clarified during the hearing of this review application on 29th August 2001 the extent of her review and in particular, the exact manner and wordings in which she sought to vary the original Orders given on 7th December 2000, the Applicant chose to include a number of other applications in her review application and attached affidavit filed on 6th January 2001 (the details of which were reproduced in paragraph 9 above). The Applicant did not seek and obtain leave, before 29th August 2001, to amend her review application. As a result, the Respondent had prepared the case on the basis of the Applicant's application filed on 6th January 2001. Therefore, the Respondent submitted that this would be another reason that the Applicant should bear the Respondent's abortive costs of preparing the case. All in all, the Respondent asked that the costs of 23rd February 2001 and 29th & 30th August 2001 be awarded to the Respondent

24. The review hearing was heard in pursuant to the Applicant's application under Section 11A. Review of decision of the Lands Tribunal Ordinance (Cap. 17). Under the same Ordinance, section 12 provides that,

"....the Tribunal may award costs to and against any party to any proceedings...."

25. Therefore, the rules applicable to the award of costs for this review are different from the rules applicable to the award of costs for the original new tenancy application. In this review hearing, the usual rules on costs apply. That being the case and since the Applicant do not succeed in varying or amending any of the terms of the original orders as proposed in her review application filed on 6th January 2001 (as amended), the Tribunal decides that the Applicant should bear the costs of this review application.

26. Applicant's summons application dated 28 August 2001

The Applicant filed a summons application on 28th August 2001, applying for an order to be made:

"- for payment into court pending outcome of DCCJ6598/2001 (Former HCA1949/2000) action; the sum being rent for 5 months and rates demanded by Landlord during the period of rent increase;

- certain proportion of the rent should be deducted due to the damages suffered;

- future rent should also be made payment into court pending outcome of DCCJ65098/2001 action;

- alternatively, pursuant to section 8A of the Lands Tribunal Rules, to transfer the said sum and future rent to District Court (DCCJ6398/2001)"

27. The summons application was fixed to be heard on 29th August 2001, the date scheduled to hear the Applicant's review. On 29th August 2001, the Tribunal advised the parties that the summons by both parties would only be heard after the completion of the review hearing. During the hearing of this summons application on 30th August 2001, the Applicant applied to drop the last paragraph of her Application. This amendment was not objected to by the Respondent. The Applicant also advised the Tribunal that the summons application was made in pursuant to the provisions of section 48, section 119D , section 115A of the Ordinance and section 8(A) of the Lands Tribunal Ordinance. However, the summons application as amended was objected to by the Respondent on the grounds that this was wrong in law, the Tribunal had no power to stop the judgment sum from being paid out of court and that the quoted sections of the Ordinance and section 8A of the Lands Tribunal Ordinance did not apply to the Applicant's summons application.

28. After checking the above quoted sections of the said Ordinances and the details of the summons application, the Tribunal finds that those sections are not applicable to the Applicant's summons application. Also, the Orders given by this Tribunal on 7th December 2000 were related to the terms of the new tenancy of the Premises as determined by the Tribunal. Therefore, the summons application taken out by the Applicant does not relate to the terms of the new tenancy. In fact, the application to vary the terms of the new tenancy granted was the subject matter of this review application, which has been dealt with in the earlier part of this Judgment. Therefore, the Tribunal does not have the jurisdiction in the present proceedings to consider the Applicant's summons application (as amended). This summons application as amended must be dismissed with costs of and incidental to the application to the Respondent, to be taxed if not agreed.

29. Respondent's summons application dated 21 August 2001 as amended.

The Respondent filed a summons application on 21 August 2001 seeking an Order that:

" (I) that the Applicant do pay the Respondent arrears of rent in the sum of HK$23,250 for the period 3rd April 2001 to 2nd September 2001 at the rate of HK$4,650 per month within 7 day from the date of this Order;

(ii) that the Applicant do pay the Respondent government rates in the sum HK$1,470 for the period 1st April 2001 to 30 September 2001 at the rate of HK$735 per quarter within 7 days from the date of this Order; and

(iii) that the costs of and incidental to this application be the Respondent in any event.

30. The summons application was fixed on 29th August 2001, the date scheduled to hear the Applicant's review. On 29th August 2001, the Tribunal advised the parties that the summons by both parties would only be heard after the completion of the review hearing. During the hearing of this summons application on 30th August 2001, the Respondent stated that in view of the Applicant's summons application dated 28th August 2001, the course previously taken by the Respondent had been overtaken by events. Therefore, the Respondent applied for leave to amend the aforesaid summons in the following manner:

"(I) that the Respondent shall have leave to apply for payment HK$24,720 out of court in settlement of the arrears of rent and government rates; and

(ii) that the costs of and incidental to this application be to the Respondent in any event."

31. The Respondent submitted that despite the Judgment dated 7th December 2000 and repeated reminders, the Applicant has not paid rent from 3rd April 2001 to 2nd September 2001 in the sum of HK$23,250 or rates from 1st April 2001 to 30th September 2001 in the sum of HK$1,470 (totaling HK$24,720). There was no excuse on the Applicant's part not to pay the rent or the rates. The Respondent submitted that the Application was made pursuant to Order 22 Rule 8 of High Court Ordinance (Cap. 4) and that Applicant should pay costs of and incidental to this summons application to the Respondent.

32. The Tribunal decides that the quoted section of High Court Ordinance had no application here. Also, the original application of this case is an application by the Applicant for a new tenancy under Part IV of the Ordinance. The Orders given by this Tribunal on 7th December 2000 were related to the terms of the new tenancy of the Premises as determined by the Tribunal. Therefore, the summons application taken out by the Respondent did not relate directly to the original new tenancy application. The Tribunal does not have the jurisdiction in the present proceedings to consider the Respondent's summons application. This summons application as amended must be dismissed with costs of and incidental to the Application to the Applicant, to be taxed if not agreed.

33. Orders

1. Upon review, the Tribunal orders that the original order no. 2 of the Orders made by this Tribunal on 7th December 2000 be varied by deleting the word "Lunar";

2. Upon review, apart from above, all other terms of the Orders made by this Tribunal on 7th December 2000 shall remain unchanged;

3. The Applicant do pay costs of the Respondent for the review hearings dated 23rd February 2001, 29th August 2001 and 30th August 2001, to be taxed if not agreed;

4. The Applicant's summons application dated 28th August 2001 (as amended) be dismissed with costs to the Respondent, to be taxed if not agreed;

5. The Respondent's summons application dated 21st August 2001 (as amended) be dismissed with costs to the Applicant, to be taxed if not agreed.

	(W. K. LO)
	Member, Lands Tribunal

Representation:

Ms. LEUNG Kit Hing, the Applicant

Ms. Vanessa SIEW of Messrs. Yung, Yu, Yuen & Co., for the Respondent

LDNT000055/2000

LDNT55/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDNT No. 55 of 2000

 

BETWEEN
	Leung Kit Hing	Applicant
	AND
	Wah Foo Enterprises Company Limited	Respondent

 

Coram: Member W K LO

Dates of hearing : 25 August 2000, 9 October 2000 (Summons application by the Applicant) and 17 October 2000

Date of Judgment: 7 December 2000

 

__________________

JUDGMENT

__________________

 

Background

1. The Applicant is the tenant and the Respondent the landlord of the subject premises known as the First Floor of No. 109 Lockhart Road, Wanchai, Hong Kong ("the Premises"). The parties agreed that the building of which the Premises forms part is a building that was completed before 16th August 1945 and had never been substantially rebuilt since that date. They also agreed that the tenant has been paying an existing monthly rent of $1,400, exclusive of rates for some years.

2. The Applicant claimed that by an agreement made in about 1944 and entered into between the Respondent's predecessor-in-title, Li Po Chun, then the registered owner of the Premises on the one hand, and the Applicant's father, Leung Kwok Lung, on the other hand, the said Li Po Chun leased the Premises to the said Leung Kwok Lung for a terms of years from the date of commencement until the whole building of which the Premises forms part is demolished and rebuilt for domestic purpose. The Applicant further claimed that as the said Leung Kwok Lung died in about 1982 and the Applicant, being one of the members of the family and was at all material times residing in the Premises, the Applicant was the lawful tenant. Also, the Applicant claimed that for the Premises, Part I of the Landlord and Tenant (Consolidation) Ordinance ("the Ordinance") still applied to the lease entered between the said Leung Kwok Lung and the said Li Po Chun. By an application dated 24 February 2000 filed to the Lands Tribunal under the Ordinance, the applicant claimed:

"1. A declaration that the Lease is still subsisting for the period until the building of which the Premises forms part is demolished and rebuilt;

2. A declaration that the Form CR101 is invalid to terminate the lease;

2a Alternatively, a continued/ renewed tenancy;

3. Further or other relief; and

4. Costs."

3. The Respondent filed the grounds and particulars of opposition on 8 June 2000, stating, among other things that "the Applicant is not entitled to any declaration as claimed and further if a new tenancy of the premises is granted to the Applicant, the Applicant has to pay the prevailing market rent for the new tenancy."

4. In the hearing held on 13 June 2000, HH Judge CHOW made the following orders (translated from the original orders in Chinese):

1. Leave to the Respondent to file a notice of opposition out of time;

2. Service of the notice of opposition be dispensed with;

3. Leave to the Applicant to apply to adjourn the hearing;

4. Hearing be fixed to Court 1 on 7 July 2000 for one whole day;

5. Costs in the cause.

5. In the hearing held on 7 July 2000, HH Deputy Judge Lee made the following orders:

1. Application adjourned to 2:30p.m;

2. The suit property is now no longer under the protection of Part I, and has become a Part IV tenancy;

3. Application adjourned to 24th August 2000 at Court 3 at 10:30a.m. for Prevailing Market Rent;

4. The Applicant to pay the Respondent costs for today to be taxed if not agreed.

6. This Judgment is therefore in respect of the determination of the prevailing market rent (as defined under the Ordinance) of the Premises. Also, in the course of determination of the prevailing market rent, the Tribunal will also determine the commencement date, duration and the other terms of the new Part IV tenancy to be granted by the Tribunal. The parties have been advised of this by the Tribunal at the outset when the hearing of this application resumed on 24th August 2000. In particular, the parties have been reminded that should they be not satisfied with the orders made by the Presiding Officer, HH Deputy Judge Lee on 7th July 2000, they should apply for a review or an appeal to the Court of Appeal in the High Court. For example, there is no jurisdiction for the Tribunal to re-consider and re-determine whether the tenancy to be granted should be similar to the original Part I tenancy of the Premises. The hearing were heard on 24th August 2000 and 17th October 2000. In between, the Applicant made an interlocutory application on 3rd October 2000 which was heard on 9th October 2000.

7. The Tribunal made the following orders on 24th August 2000:

1. The Applicant to serve onto the Respondent a copy of each of marked "Exhibit A5-A12" documents on or before 31st August 2000;

2. Each party to file to the Court and to serve onto the other party a copy of each party's draft standard tenancy agreement for the suit premises on or before 14th Spetember 2000;

3. Hearing date to be adjourned to a date to be fixed by the Assistant Registrar, such date to be not earlier than 18th of September 2000; half day reserved;

4. Costs reserved.

8. As to the interlocutory application made by the Applicant and heard on 9th October 2000, the Tribunal made the following orders:

1. Application by the Applicant be dismissed;

2. Costs of this Application to the Respondent.

9. Finally, on 17th October 2000, the Tribunal at the end of the hearing made the following orders:

1. Leave granted today to the Respondent to file the draft standard tenancy agreement to the Court;

2. The Applicant to notify the Court and to the Respondent the correspondence address within 7 days from today;

3. Each party to file to the Court and to serve onto the other party written final submission on or before 21st November 2000;

4. Judgment to be handed down on 7th December 2000 (at 9:30a.m.):

5. Costs reserved.

10. Since then, the Applicant has filed the following written submissions to the Tribunal:

1. Final submission on 21st November 2000;

2. Supplement final submission on 23rd November 2000;

3. Second Supplement final submission on 30th November 2000 (including a response to the Respondent's final submission;

11. On the other hand, the Respondent filed a written submission on 20th November 2000.

12. The Applicant appeared in person for herself for the hearings from 24th August 2000 onwards. She has called Mr. Lee Chun Fat, a Registered Professional Surveyor (B.S.), an expert witness to give evidence on the existing condition of the Premises. The Respondent was represented by Ms. Vanessa SIEW of Messrs. Yung, Yu, Yuen & Co. The Respondent has called for the evidence of Mr. Tam Shiu Hong, a Registered Professional Surveyor (GP), an expert witness in valuation and Ms. Leung Siu Kwan, a staff of the Respondent responsible for the tenancy and accounting matters.

The Premises

13. The Premises is the first floor of a four storey tenement building located at No. 109 Lockhart Road, Wanchai, Hong Kong. It is a pre-war building, sharing a common staircase with the adjacent building No. 111 Lockhart Road. The ground floor of the building at Nos. 109 and 111 Lockhart Road is occupied for non-domestic purposes whilst on the upper floors, from first to third floors, there are two similar tenement units on each floor. There are some roof structures on the roof-top.

Applicant's case

14. It was the applicant's case that the long standing dis-repairs in the Premises had caused significant inconvenience, disruption and disturbance to the Applicant. To summarise, the applicant claimed that the respondent had not properly repaired and maintained the exterior and structure of the premises, despite of the applicant's repeated requests for repairs and maintenance, as well as the issuance of several Repair Orders by the Building Department over the years. As a result of this, the interior of the premises was in a very dilapidated state of repairs.

15. The Applicant in the opening claimed that since she could only utilize a space barely sufficient for an office desk and chair, which extended to only about one eighth of the floor area in the Premises, she should be paying a rental equivalent to about one eighth of the rent based upon Rateable Value of the Premises (being $62,400), i.e. a sum of $650 per month. She said that she tried to seek the advice of a valuation surveyor but was advised by the latter that no valuation estimate could be provided to her.

16. Mr. Lee Chun Fat gave evidence and produced a surveyor's report on the Premises (Exhibit A-2). According to the instructions from the Applicant, Mr. Lee and his colleague inspected the premises with a view "to investigate the general conditions of the premises and to investigate defects if found and also the cause and source of the defects in the premises." The report detailed Mr. Lee's findings, supported by a large number of photos taken inside and outside the Premises. At the end, Mr. Lee had the following conclusions:

"5.1 Based on our aforesaid findings, we are of the opinion that:-

The spalled concrete and defective plasters were commonly observed inside the subject premises which was caused by water penetration through front and side external facades. The rendering to front and side external facades were found deteriorated and cracks were found at the interfaces between the subject premises and the adjoining building which would lead to water leakage to the subject premises interior.

5.1.1 The electrical supply trunkings and conduits inside the subject premises were found rusted and damaged due to rainwater seepage from external wall surfaces. The detached fluorescent tubes was mostly caused by the rusted and corroded fixing screws enacted by rainwater deterioration.

5.1.2 The electrical supply cables were found exposed and not concealed inside metal trunkings in the common areas which would inevitably hazardous to residents. As commensurate with the building age, a thorough WR1/WR2 testing should be carried out.

5.2 We would like to conclude what our findings that the dilapidated conditions of the subject premises and electrical cables would undoubtedly endanger our client's life and properties and affected the full enjoyment of the subject premises as tenant of the subject premises."

17. The Applicant gave evidence herself, detailing the history of her own renovation works in the Premises as well as the lack of prompt and adequate response by the Respondent upon receiving "Repair Orders" from the Building Department in the past. She produced many photographs showing (i) the condition of the Premises in 1994 after the Applicant repaired and decorated the interior of the Premises as well as the interior condition of the Premises after the Applicant's decoration were ruined by the water leakage (Exhibits A-7 and A-8), (ii) the interior condition before and after the issuance of the "Repair Order" issued by the Building Department and the works by the Respondent's contractors (Exhibits A-9), (iii) the condition of the electrical wiring in the stairways (Exhibit A-10), (iv) the mini kitchen built by the Applicant at the front part of the Premises due to the poor condition of the original kitchen (Exhibit A-11) and (v) the existing concrete debris and electrical cable metal trunkings (Exhibit A-12).

18. In the final submission, the applicant asked the Tribunal to grant a tenancy on the following basic terms:

1. Tenancy of the Premises for "the term of the residue of years until the whole building of which the premises forms part is demolised; alternatively, 3 years renewable every three years until the whole building of which the premises forms part is demolished"; or further alternatively, "file the CR109 form to the Rating & Valuation Department with indications on the Original Lease being entered by the Applicant's late father sometime prior to March, 1946 and the period of 3 years renewable every 3 years until the whole building of which the premises forms part is demolished."

2. Tenancy commencing from 7th July 2000, the date that the Lands Tribunal granted a continued/renewal of the Original Tenancy.

3. Rent in the sum of $1,400 (exclusive of rates) per Solar Calendar month payable in advance on the 1st day of each and every Solar Calendar month. Tenant paying rates of $780 (payable per quarter currently).

19. In her submission, the Applicant submitted that the Comparable letting of 2nd floor of No. 109 Lockhart Road could not be used as a rental reference as that letting was a new letting commencing only a few months ago. On the other hand, the Applicant's original tenancy dated back to the time before March 1946. The Applicant's family "had already spent a lot of money in maintaining, repairing the suit premises not to mention the Applicant and her family's contribution in repairing, decorating had been frustrated due to breach of Respondent's implied duty to repair over the past years."

20. Likewise, the Applicant submitted that the other letting at the 3rd floor of No. 109 Lockhart Road could not be as a reference for three reasons: (I ) "the external wall to protect the water leakage had been repaired by the Respondent"; (ii) "squatter huts on the roof top protect the water leakage of the 3rd floor" and (iii) the 3rd floor enjoys the whole premises whereas the 1st floor's tenant is suffering by the illegal structure built on top of Ground Floor"

Respondent's case

21. Ms. Leung Siu Kwan, a staff of the Respondent gave evidence regarding the works undertaken by the Respondent in the past when the Respondent was served with Repair Orders by the Building Department.

22. Mr. Tam Shiu Hong produced a comprehensive valuation report of the Premises (Exhibit R-1) which contained 11 sections including Apendices A to I (with a large number of photographs, sketches and valuation schedules). The report included a detailed description of the internal condition of the Premises as well as the three comparable lettings in the building of Nos. 109 and 111 Lockhart Road.

23. Mr. Tam relied on the market lettings of three other tenement floors, each of same saleable area, in the subject building for the purpose of determining the prevailing market rent of the Premises under Part IV of the Ordinance. His analysis of the comparables and valuation were summed up in Appendix G of his report. At the end, his adjusted rents of the three comparables (2/F of No. 109, 3/F of No. 109 and 2/F of No. 111) were respectively $5,289, $4,960 and $4,505 per Lunar month. He finally valued the Premises at a rent of $5,000 per Lunar month, equivalent to about $61.12 per sq.m. of saleable area of the Premises.

24. Mr. Tam also attempted to check his valuation with the 2000/2001 Rateable Value (for the quarter commencing from 1st April 2000) for the Premises and the comparables (Exhibit R-1, Appendix H). He came to the conclusion that his assessed prevailing market rent of $5,000 was fair and reasonable.

Date of commencement and duration of new tenancy

25. Section 119I of the Ordinance provides-

" Where on an application under this Part the Tribunal makes an order for the grant of a new tenancy, the new tenancy shall be such tenancy as may be agreed between the landlord and the tenant, or , in default of such agreement, shall be such a tenancy as may be determined by the Tribunal to be reasonable in all the circumstances, being a tenancy for a term not exceeding 3 years, and shall begin on the coming to an end of the current tenancy or such other date as may be agreed between the landlord and the tenant or, in default of such agreement, as may be fixed by the Tribunal:..." (underline added)

26. The Applicant submitted that the tenancy should commence from 7th July 2000, the date of the orders made by HH Deputy Judge Lee. The Applicant also asked for the granting of a tenancy until the demolition of the building or alternatively, for a 3-year renewable for 3-year term until the demolition of the building. These terms are very unusual and are considered by the Tribunal to be not reasonable in all the circumstances. In particular, the alternative term of 3-year renewable for 3-year conflicts with the provisions of the Ordinance set out above. On the other hand, the Respondent submitted that the tenancy should commence from the 28th day of March Kang Sun Lunar year.

27. In the Form CR101 (Exhibit R-2), the Respondent terminated the tenancy on 28th day of March Kang Sun Lunar year. Therefore, having regard to the provisions of the Ordinance and all the circumstances of this case, it would be reasonable for the Tribunal to determine that the commencement should be the 29th day of March Kang Sun Lunar year (i.e. 3rd May 2000) being the day following the date of termination of the current tenancy under the Form CR 101 and, the duration should be for the usual two years term.

Tribunal's determination of the Prevailing Market Rent

28. Under Section 115 of Part IV of the Ordinance, "prevailing marekt rent" means-

"the rent, exclusive of rates at which the premises the subject matter of a tenancy to which this Part applies might reasonably be expected to be let, at the date on which the current tenancy would, apart from section 119N, have come to an end under section 119(1) or section 119A(5), on the terms of the new tenancy granted under this Part, but disregarding the effect of this Ordinance." (underline added)

29. The Applicant has not given any evidence to support her final estimate of the prevailing market rent for the Premises, a sum of $1,400 per month, on the basis of exclusive of rates. This differs from the applicant's estimate of the rent of $650 per month in her opening. This sum of $1,400 is the same as the existing rent of the Premises prior to the present application by the Applicant. However, there is no evidence adduced that this existing rent bears any relationship with the then prevailing market rent at certain point in the past, or to the present level of prevailing market rent for the Premises as defined in the Ordinance. Throughout the hearings, the Applicant stressed on the poor existing condition of the Premises and emphasised that that poor condition was due to the lack of appropriate action of repairs by the Respondent. The Applicant also submitted that the two comparable lettings in the same building could not be compared to the Premises.

30. The Premises is in a poor condition, yet it is very questionable if the Premises could only fetch a rent in the sum of only $1,400 in the market, bearing in mind that the Premises is conveniently located, in the busy area of Wanchai and has a saleable area of 81.8 sq.m. (about 880 sq.ft.). Some prospective tenants, who could not afford to pay a fair amount of rent elsewhere in a better quality flat, might be prepared to rent the Premises, despite of its poor condition of repairs. In the circumstances, the Tribunal should look for and rely on the market evidence in assessing the prevailing market rent of the Premises.

31. The Respondent has called for the evidence of Mr. Tam Shiu Hong, an experienced valuation surveyor. I could not find any reason to disagree with Mr. Tam's findings. In particular, Mr. Tam has compared the Premises with three recent lettings in the same building. This is obviously the correct approach in the direct comparison of valuation. What provides a better rental comparable for a pre-war flat in Wanchai? The answer is always the same: other pre-war flats in the vicinity, and if possible, other pre-war flats in the same building or in the similar pre-war buildings nearby. Therefore, in the present case, I am unable to understand the rationale of the Applicant in submitting that the other two lettings above the Premises could not be compared with the Premises. The reasons cited by the Applicant in respect of the two comparables are not sufficient for the Tribunal to discard these two comparables.

32. It is very unusual for a valuation surveyor to have the benefits of inspecting the comparable properties, in undertaking a valuation of a piece of real property in Hong Kong. At most, a valuation surveyor appearing before the Tribunal may draw his personal experience of inspecting other comparable properties at other instances. In the present case, the witness Mr. Tam had that rare opportunity as a result of which the Tribunal agrees that it should be to his advantage in executing his valuation work.

33. The Applicant raised the important question that these two comparable flats may well be maintained in a superior condition than the Premises. If this is the case, the two comparables may not serve as good comparables; or alternatively, substantial adjustments may be warranted in order to arrive at the prevailing market rent for the Premises. However, from the evidence adduced in the hearing, I cannot agree with the Applicant's argument. On the contrary, these two comparable flats are found, on a matter of findings of facts by this Tribunal, to be in a similar condition as the Premises.

34. Mr. Tam had considered a number of factors which might have a bearing on the prevailing market rent of the Premises. These were floor level, size, layout, view, aspect, timing of letting, repairs condition and the nuisance due to the rear canopy. Mr. Tam had attributed various percentage adjustments for the factors of floor level, layout, repairs condition and the nuisance due to the rear canopy. Bearing in mind that Mr. Tam is a very experience valuation surveyor and had the benefit of inspecting the Premise and all the comparables, I decide to accept all his adjustment factors and percentages, with the exception of the factor on layout differences. Based on what were described in Mr. Tam's report, I decide that no allowance should be made for this factor. Although the comparables were all partitioned into cubicles, the layouts should not adversely affect the value of the comparable flats.

35. As a result of this difference in adjustment, Mr. Tam's after adjusted monthly rents were re-calculated below:

36. Also, in the final analysis, the Tribunal agrees with Mr. Tam that greater weights should be given to the first two comparables as they all commenced in May 2000, same as the premises whilst the third comparable was let in 1997. are in view of the limited number of comparables, Therefore, having regard to the average of the two after adjusted monthly rents for Comparable Nos. 1 and 2, the Tribunal determines that the prevailing market rent of the Premises should be $4,650 per Lunar month.

37. In undertaking the valuation, Mr. Tam had assumed the following basis for other terms of the tenancy, same as before:

(1) the landlord (Respondent) being responsible for structural repairs;

(2) the tenant (Applicant) being responsible for decorative maintenance;

(3) the landlord paying Government rent and property tax;

(4) the tenant paying rates and utility charges.

38. This Tribunal was advised by the Respondent that for the comparable lettings, although the parties have not signed any written tenancy agreement, they were let on a similar basis.

Other terms of the tenancy

39. The Applicant has submitted a draft tenancy agreement which was specifically tailored made by the Applicant. The recitals in the beginning of the agreement was certainly wrong because it did not accord with the Order made by HH Deputy Judge Lee. As for the basic terms of description of premises, duration, rent and rates, the Applicant has also chosen to draft her own version, which is quite different from most of the standard form of tenancy agreement commonly adopted in the market.

40. On the other hand, the Respondent has also submitted a draft tenancy agreement. In the Respondent's final submission, the Respondent has also included three examples from the text, Hong Kong Tenancy Law (by Mr. Malcolm Merry): one used by the Hong Kong Housing Authority, another generally used by solicitors' firm and the third being available from stationers.

41. Section 119J of the Ordinance provides-

"The terms of a tenancy granted by order of the Tribunal under this Part (other than terms as to the duration thereof and as to the rent payable thereunder) shall be such as may be agreed by the landlord and the tenant, or as, in default of such agreement, may be determined by the Tribunal; and in determining those terms the Tribunal shall have regard to the terms of the current tenancy and to all relevant circumstances."

42. Having regard to the submissions by the parties, the terms of the current tenancy and to all relevant circumstances and in the absence of agreement between the parties, the Tribunal determines that it would be reasonable to adopt the following terms as to be the other terms of the new tenancy.

(1) Structural repairs- The landlord to keep the structure and exterior of the Premises in reasonable and proper state of repair and condition provided that the landlord shall not be liable for breach of this Clause unless and until written notice of any serious defect or want of repair which is not within the responsibility of the tenant has been given to the landlord by the tenant and the landlord has failed to take reasonable steps to repair or remedy the same.

(2) Internal repairs- The tenant to keep the interior of the Premises clean and tidy throughout the tenancy, fair wear and tear excepted.

(3) To view/inspect/repair the premises- The tenant to permit the landlord and all persons authorised by the landlord at all reasonable times with prior appointment during the term hereby created to enter into and upon the said premises to view the state and condition of the same and to carry out any repairs to the Premises which the landlord considers necessary or proper to be done.

(4) Tenant's peaceful enjoyment of Premises- the tenant paying the said rent and performing and observing the tenant's terms and conditions herein contained may peaceably hold and enjoy the said Premises without any interruption by the landlord or any person or persons lawfully claiming through or in trust for him.

(5) To suspend rent should Premises not fit for use and occupation- In case the Premises or any part thereof shall at any time during the said terms be destroyed or damaged by typhoon, fire, earthquake or hostilities so as to be wholly or partially unfit for use and occupation, the rent hereby reserved or a fair proportion thereof according to the nature and extent of the damage sustained shall be suspended until the same Premises shall again be rendered fit for use and occupation.

43. As to the other clauses suggested by the Applicant to be inserted as other terms of the new tenancy, I agree with the Respondent that they are very unusual and seldom found in the common forms of tenancy agreements used in Hong Kong. They either should not be included in a tenancy agreement or they impose unreasonable liabilities to the Respondent. They are not to be included in the new tenancy agreement for the Premises.

Costs

44. In the parties' submission, they have also addressed the Tribunal on the issue of costs. The Applicant however has made submissions regarding all the hearings connected with this new tenancy application, from 13th June 2000 onwards. As explained in the beginning of this judgment, the Tribunal will not have the jurisdiction to go back and decide on the issue of costs in the hearings held on 13th June 2000 and 7th July 2000 before HH Judge Chow and HH Deputy Judge Lee respectively. The order made on these dates already included the appropriate costs orders. Similarly, for the applicant's interlocutory application made on 3rd October 2000 and heard on 9th October 2000, the Tribunal already made a cost order on 9th October 2000 when the matter was decided. Therefore, I will only decide on the issue of costs for the hearings held on 24th August 2000 and 17th October 2000.

45. For the hearing held on 24th August 2000, the Applicant submitted that the costs should be borne by the Respondent because "the respondent's solicitor did not prepare, arrange any surveyor report nor expert witness" and "the respondent's solicitor informed the Court that she had another witness" towards the end of the hearing as a result of which the hearing had to be adjourned to 17th October 2000.

46. For the hearing held on 17th October 2000, the Applicant submitted that the Respondent should bear the costs because the Respondent's solicitor had wasted the court time. The Applicant alleged that the witness from the Respondent had unnecessarily repeated the same matters that had been presented to the Court many times during the previous hearing. Similarly, the Applicant claimed that "the Respondent's valuation surveyor gave evidence which the Applicant and the Applicant's Building Surveyor had already raised, answered and recorded in court during the hearing on 24/8/2000 many many times. The Respondent's Valuation Surveyor repeated the same issues over and over again."

47. The Respondent agreed that in a normal Part IV application, there should be no order as to costs. However, the Respondent submitted that in this case, the Respondent would ask for a costs order against A for the following reasons:-

"(1) Applicant has conducted the proceedings in an oppressive and unreasonable manner. She has on numerous occasions (on less than 20 times) addressed to this Court matters and her view regarding the hearings held on 13 June and 7 July 2000. Despite repeated attempts from the Court to stop her, Applicant has chosen to ignore and continue her own way of conducting proceedings.

(2) Applicant has advised this Court time and time again Respondent's alleged failure to comply with building orders..... The present proceedings have no relevance whatsoever to her allegations....

(3) Applicant's draft tenancy agreement has included terms previously rejected by this Court. Her inclusion as such displays her utter ignorance and frivolous attitude in the subject proceedings. ....Applicant is testing the Court's and Respondent's limites. Both the Court and Respondent have been very tolerant.

(4) ....."

48. In view of the above, the Respondent is claiming costs against the Applicant for her vexatious way of conducting the action.

49. The Tribunal disagrees with all the allegations by the Applicant that the Respondent's solicitor and witnesses had been wasting the Court's time by repeating the same issues that were the subject matter of other witnesses or other prior hearings (some of which were not heard by this Member of the Tribunal). It was mainly because the Applicant had stressed so much the poor state of repairs of the Premises that the Respondent's surveyor witness, like the Applicant and the Applicant's building surveyor witness, had spent considerable time in describing and illustrating with photographs and sketches the existing condition of the Premises. This is nothing wrong. This is most appropriate for any witness who give evidence to assist the Court, particularly when there are some seriously contested disputes as to the facts and opinion in connection with the subject matter of the application, which, in this case, is the determination of the prevailing market rent for the Premises.

50. On 24th August 2000, the hearing ended at 5:10p.m. At that time, the Respondent had finished the cross examination of the Applicant who gave evidence in person. The Respondent had not even started the process of giving evidence by the Respondent's witnesses. The Respondent solicitor applied to the Tribunal that Respondent would instruct a valuation surveyor to prepare a report and to give evidence in the adjourned hearing. Also, the parties have not yet given final submission regarding the rental assessment and their views on other terms of the new tenancy. The matter had to be adjourned anyway. It was certainly not the Respondent's fault that led to the adjournment. Similarly, the Tribunal finds that the Respondent's conduct in the hearing held on 17th October 2000 is very normal and reasonable.

51. On the contrary, the Tribunal concurs with the Respondent that the Applicant had conducted the proceedings on 24th August 2000 and 17th October 2000 in an oppressive, unreasonable, and vexatious manner. The Tribunal agrees with the reasons set out by the Respondent in the latter's final submission (which were extracted above) and that a cost order should be made against the Applicant.

52. This is because under Section 119R of the Ordinance, it was provided that "In any proceedings under this Part, The Tribunal shall not make any order as to costs against a party unless that party has conducted has case in a frivolous or vexatious manner."

53. However, having carefully assessed the time that were wasted in the hearings as a result of the Applicant's vexatious conduct in the hearings, the Tribunal determines that the Applicant should be responsible for one third of the Respondent's costs for these two hearings, to be taxed if not agreed.

Orders

1. New Tenancy for 2 years from 3rd May 2000;

2. New rent at $4,650 per Lunar calendar month (exclusive of rates); leave to the Applicant to pay the Respondent the arrears of rent within 1 month;

3. The other main terms of the tenancy, above from the rent, commencement date and the duration are as follows:

(1) The landlord to keep the structure and exterior of the Premises in reasonable and proper state of repair and condition provided that the landlord shall not be liable for breach of this Clause unless and until written notice of any serious defect or want of repair which is not within the responsibility of the tenant has been given to the landlord by the tenant and the landlord has failed to take reasonable steps to remedy the same.

(2) The tenant to keep the interior of the Premises clean and tidy throughout the tenancy, fair war and tear excepted.

(3) The tenant to permit the landlord and all persons authorised by the landlord at all reasonable times with prior appointment during the term hereby created to enter into and upon the said premises to view the state and condition of the same and to carry out any repairs to the Premises which the landlord considers necessary or proper to be done.

(4) The tenant paying the said rent and performing and observing the tenant's terms and conditions herein contained may peaceably hold and enjoy the said Premises without any interruption by the landlord or any person or persons lawfully claiming through or in trust for him.

(5) In case the Premises or any part thereof shall at any time during the said terms be destroyed or damaged by typhoon, fire, earthquake or hostilities so as to be wholly or partially unfit for use and occupation, the rent hereby reserved or a fair proportion thereof according to the nature and extent of the damage sustained shall be suspended until the same Premises shall again be rendered fit for use and occupation.

4. The Applicant do pay one third of the Respondent's costs for the hearings dated 24th August 2000 and 17th October 2000, to be taxed if not agreed.

 

 

 

Representation:

Ms. LEUNG Kit Hing, the Applicant

Ms. Vanessa SIEW of Messrs. Yung, Yu, Yuen & Co., for the Respondent