KWOK HON SHING AND OTHERS v. HAPPY TEAM (CHINA) LTD

KWOK HON SHING AND OTHERS v. HAPPY TEAM (CHINA) LTD

On the facts the respondent had committed both an alteration (once-and-for-all) and user (continuing) breach; absence of expert evidence meant electricity overloading allegation failed; the alteration breach was waived by the applicants' acceptance of rent prior to the forfeiture application but the continuing user breaches were not waived; because the breaches had been rectified before the hearing and proceedings were commenced shortly after receipt of rent, the appropriate remedy was to grant relief from forfeiture under section 58 of the Conveyancing and Property Ordinance while allowing recovery of interim rent and costs on a partial basis.

Citation
KWOK HON SHING AND OTHERS v. HAPPY TEAM (CHINA) LTD
Parties
Applicant / Landlord: Owners of 11th Floor, Rainbow Factory Building, 149 Wai Yip Street, Kowloon; Respondent / Tenant: Respondent (tenant)
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
30 September 2015
Case Number
LDPE145/2015
Procedural Posture
Recovery of Possession and Costs (landlord and Tenant) / Judgment (lands Tribunal, 30 September 2015)
Outcome
Relief from forfeiture granted to the respondent; applicants entitled to possession in principle but relief granted under s58 to avoid immediate forfeiture given breaches rectified
Legal Topics
Forfeiture, Relief From Forfeiture, Waiver, Breach of Covenant, Mesne Profits, Costs
Source Language
EN
Landlord and Tenant Property Law Conveyancing Forfeiture Relief From Forfeiture Waiver Breach of Covenant Mesne Profits +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Owners of 11th Floor, Rainbow Factory Building, 149 Wai Yip Street, Kowloon

Applicant / Landlord

Respondent (tenant)

Respondent / Tenant

Procedural Posture

Recovery of Possession and Costs (landlord and Tenant) / Judgment (lands Tribunal, 30 September 2015)

Legal Issues

  1. 1 Whether splitting electricity meters overloaded the electricity system and breached the tenancy
  2. 2 Whether external wall was altered/demolished and whether it was reinstated
  3. 3 Whether the tenant permitted residential use contrary to user covenant and whether breaches were remedied

Ratio Decidendi

On the facts the respondent had committed both an alteration (once-and-for-all) and user (continuing) breach; absence of expert evidence meant electricity overloading allegation failed; the alteration breach was waived by the applicants' acceptance of rent prior to the forfeiture application but the continuing user breaches were not waived; because the breaches had been rectified before the hearing and proceedings were commenced shortly after receipt of rent, the appropriate remedy was to grant relief from forfeiture under section 58 of the Conveyancing and Property Ordinance while allowing recovery of interim rent and costs on a partial basis.

Court Disposition

Relief from forfeiture granted to the respondent; applicants entitled to possession in principle but relief granted under s58 to avoid immediate forfeiture given breaches rectified

Orders

  • Respondent granted relief from forfeiture under section 58 of the Conveyancing and Property Ordinance
  • Interim payments of HKD 187200 paid into the tribunal released to the applicants as rent for the period 1 May 2015 to 30 September 2015