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Yu Yiu Kong Samuel v Kobylanski, Stephen Andre

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date11 July 2001
Subject MatterCivil Action
Judgement NumberDCCJ15371/2000
CourtDistrict Court (Hong Kong)
DCCJ015371/2000 YU YIU KONG SAMUEL v. KOBYLANSKI, STEPHEN ANDRE

DCCJ015371/2000

HEADNOTE

Landlord and tenant - when premises became unfit for occupation - tenant's obligation to repair - fixture or chattel - landlord's obligation to keep appliance included in demise in working order - air-conditioning unit in bedroom - assessment of damages for failure to repair - when costs do not follow event

FOR REFERENCE

DCCJ15371/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 15371 OF 2000

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BETWEEN
YU YIU KONG SAMUEL Plaintiff
AND
KOBYLANSKI, STEPHEN ANDRE Defendant

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Coram: H.H. Judge Andrew Cheung in Court

Dates of Hearing: 18, 19, 20 and 21 June 2001

Date of Handing Down of Judgment: 11 July 2001

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J U D G M E N T

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1. The Plaintiff is the registered owner of Flat C, 35th Floor, Tower T-1, Miami Beach Towers, No. 268 Wu Chui Road, Tuen Mun, New Territories, Hong Kong. By a written Tenancy Agreement dated 28th January 2000, the Plaintiff let the flat to the Defendant for domestic purposes for a fixed term of 2 years commencing on 1st February 2000 and expiring on 31st January 2002 at the monthly rent of $6,200 (inclusive of rates and management fee). The Tenancy Agreement contained a break clause which could be exercised by the tenant upon the expiry of a period of 12 months after the commencement of the term.

2. Attached to the Tenancy Agreement was a list of furniture included in the demise. Amongst other things, a bedroom (called No. 1 Bedroom on the list) was said to be equipped with an air-conditioning unit of Hitachi make. Likewise, the living and dining room was also equipped with an air-conditioning unit of the same make.

3. The Tenancy Agreement also contained the following material terms. Under the caption "Tenant's rights, Obligations & Prohibitions" in Part II of the Tenancy Agreement, Clause 3 provided thus:

"At the Tenant's own expense to keep the interior of the said premises including window frames, glass panes, sinks, drains, pipes, water taps and other sanitary equipment all fixtures and additions thereto in good and tenantable state of repair and condition."

4. Clause 17 of Part II read:

"On the determination of the tenancy hereby created forthwith to deliver up vacant possession of the said flat to the Landlord and to yield up the said flat together with all the Landlord's fixtures and fittings therein in good tenantable repair and condition."

5. Clause 4 in Part IV of the Tenancy Agreement read:

"Should the said flat or part thereof be rendered unfit for occupation by any cause not attributable to the negligence or default of the Tenant, the rent or part thereof proportioned to the damage suffered by the said flat shall abate and cease to be payable until the said flat shall have been again rendered fit for occupation: Provided always that the Landlord shall not be required to reinstate the said flat if by reason of the condition of the premises or any local regulations or other circumstances beyond the control of the Landlord it is in the opinion of the Landlord not practicable or reasonable so to do."

6. The dispute in this case arose basically this way. The Defendant says that prior to the renting of the premises, he only had a very brief and superficial inspection of the condition of the premises. But soon he moved into the premises, he and his girlfriend, DW2, discovered that the condition in the flat was not as satisfactory as they originally thought. In short, the problems included loose paint flaking from the kitchen ceiling, the kitchen sink base unit deteriorating in condition and becoming rotten and mouldy, leak to the toilet cistern, and poor and inefficient air-conditioning to the living/dining (or lounge) area and bedroom. According to the Defendant, he mentioned all these to the Plaintiff over the telephone but at that time he thought that he could live with the condition. But as summer approached, he became worried about the air-conditioning units' efficiency. Thus he wrote to the Plaintiff by a fax dated 31st May 2000. Apart from setting out the condition in the premises complained of, which the Defendant said was of a pre-existing nature, he invited the Plaintiff to come and visit the premises as soon as possible.

7. Apparently the landlord, the Plaintiff, did not take the matter very seriously initially. But eventually in early July, it would appear that the Defendant, at the suggestion of the Plaintiff, contacted the manufacturer of the two air-conditioning units, Hitachi, for an inspection of the air-conditioning units. By a misunderstanding, the Hitachi technician who went to the premises for inspection only inspected the air-conditioning unit in the living/dining area. According to an "invoice" issued by Hitachi and apparently prepared by the technician, he commented that the compressor of the air-conditioning unit in the living/dining area had broken and its repair/replacement would cost approximately $4,000. No examination of the air-conditioning unit in the bedroom was, however, done by the technician. This result was duly conveyed by the Defendant to the Plaintiff. This, coupled with the continued complaints made by the tenant to the landlord about the condition in the premises, as well as the failure of the tenant to pay the rent for the month of July, probably prompted the Plaintiff and his wife, together with a Miss Cheuk, the estate agent who first brought about the Tenancy Agreement between the parties, to visit the premises in the evening of 19th July 2000. During the visit, the Defendant pointed out to the visitors all the complaints on site. According to the Plaintiff and the evidence of Miss Cheuk, they found the efficiency of the 2 air-conditioning units to be acceptable. But Miss Cheuk, in her evidence, did accept that even at that relatively early stage, she had been seeking to persuade the Plaintiff to replace the air-conditioning unit in the bedroom with a new one. It should be noted that the 2 units had been purchased by the Plaintiff in 1993. In other words, by the summer of 2000, the 2 units were already 7 years old.

8. After the visit, correspondence followed between the parties. The Plaintiff arranged for a general contractor/technician (Master Yau) to inspect the property on 22nd July 2000. Master Yau took a brief look at the various complaints and left. There was apparently an argument between the Plaintiff's wife and the Defendant's girlfriend, who were at the premises at the time, as to whose fault it was which led to the poor condition observed in relation to the kitchen sink and cupboard.

9. In any event, on 29th July 2000, the Plaintiff instructed Master Yau to visit the premises again and carried out repair. According to the Plaintiff, so far as the air-conditioning units were concerned, he only asked Master Yau to dismount the air-conditioning unit in the living/dining room, cleaned it (at his own shop) and reinstalled it. He initially said he did not ask Master Yau to do anything to the air-conditioning unit in the bedroom. But eventually, the Plaintiff accepted that he did ask Master Yau to inspect the air-conditioning unit in the bedroom as well. This is consistent with a fax written by the Plaintiff dated 24th July 2000 where he said "the contractor would check [this air-conditioning unit] later." So on 29th July 2000, Master Yau did some minor repairs to the leakage problems complained of, and refixed the cupboard doors in the kitchen that had fallen off. He also cleaned the air-conditioning unit in the living/dining room. As to the air-conditioning unit in the bedroom, it could not be pulled out completely from its case due to the way it was mounted on the wall, and not much could be or was done by Master Yau.

10. What happened next led directly to the dispute in the present case. At around 3 a.m. on the following day, 30th July, the air-conditioning unit in the bedroom broke down. Quite understandably, the Defendant blamed it on the Plaintiff and his contractor, Master Yau, and demanded immediate repair or replacement of the air-conditioning unit. The breaking down of the unit to some extent vindicated his complaint in this regard.

11. Further faxes were exchanged between the parties, and the atmosphere became increasingly hostile, emotional and personal. But it is quite clear from the correspondence as well as the evidence given that on 1st August 2000, the Plaintiff agreed to replace the air-conditioning unit in the bedroom. Initially, he said that he was waiting for the dimensions of the air-conditioning unit to be supplied by the Defendant, and that delayed the matter by a few days. At this juncture, it should be noted that by then, the complaint relating to the air-conditioning unit in the living/dining room had faded away. This was because after the cleaning of the unit by Master Yau, even the Defendant accepted that the unit was in an acceptable working condition. But that notwithstanding, the parties still argued amongst themselves then, as well as before me at the trial, as to whether the invoice written by the Hitachi technician was "doctored" by the Defendant and his girlfriend who, according to the Plaintiff, in effect, told the technician what to write on the invoice. In this regard, the Plaintiff produced a letter written by a sub-manager of the service department of Hitachi dated 16th February 2001 in support of his belief although the manager was not called as a witness at this trial.

12. But returning to the replacement of the air conditioning unit in the bedroom, after the dimensions of the unit were supplied by the Defendant to the Plaintiff on 3rd August 2000, the Plaintiff still did...

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