CHAN NUEN HEUNG AND OTHERS v. FOREVER BRILLIANT LTD

CHAN NUEN HEUNG AND OTHERS v. FOREVER BRILLIANT LTD

Summary judgment was entered for the Plaintiff because the Defendant failed to demonstrate any triable issue: the alleged oral assurances/agreement were found not credible and unsupported by contemporaneous documents; the Tenancy Agreement contained an exclusion/no-warranty clause undermining an implied repair obligation; even if an implied term existed, the covenant to pay rent is independent and does not permit withholding of rent; the counterclaim was unparticularised and insufficient to operate as a defence to possession or to defeat summary judgment.

Citation
CHAN NUEN HEUNG AND OTHERS v. FOREVER BRILLIANT LTD
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 September 2007
Case Number
HCA722/2007
Procedural Posture
Summary Judgment Application / Application Heard on 10 August 2007
Outcome
Judgment for the Plaintiff
Legal Topics
Implied Terms, Repair Obligations, Non Payment of Rent, Summary Judgment, Set Off, Mesne Profits, Forfeiture and Reinstatement
Source Language
EN
Landlord and Tenant Contract Civil Procedure Property Law Equity Implied Terms Repair Obligations Non Payment of Rent +4 more

Case Brief

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Summary Judgment Application / Application Heard on 10 August 2007

Legal Issues

  1. 1 Whether alleged oral assurances/agreement to repair and suspend or waive rent created a triable issue
  2. 2 Whether an implied term obliging landlord to repair (including common parts) arises in these circumstances
  3. 3 Whether breach of any implied repair obligation permits withholding of rent or constitutes a defence to possession for non-payment

Ratio Decidendi

Summary judgment was entered for the Plaintiff because the Defendant failed to demonstrate any triable issue: the alleged oral assurances/agreement were found not credible and unsupported by contemporaneous documents; the Tenancy Agreement contained an exclusion/no-warranty clause undermining an implied repair obligation; even if an implied term existed, the covenant to pay rent is independent and does not permit withholding of rent; the counterclaim was unparticularised and insufficient to operate as a defence to possession or to defeat summary judgment.

Court Disposition

Judgment for the Plaintiff

Orders

  • Delivery of vacant possession of Shops B and C on the Ground Floor of Rialto Mansion, Nos.177-181, 185-191 and 191A King’s Road, Nos. 7 and 9 Fuk Yuen Street, Hong Kong
  • Payment of HK$300,000.00 being rent from 1 March 2007 to 30 April 2007