ON SUCCESS DEVELOPMENT LTD. v. MIRACLE LTD. T/A CAN DO RESTAURANT

HCA000056/1999

HCA 56/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 56 OF 1999

BETWEEN
ON SUCCESS DEVELOPMENT LIMITED Plaintiff
AND
MIRACLE LIMITED trading as
CAN DO RESTAURANT
Defendant

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Coram : Hon. Godfrey, J.A. in Chambers (sitting as an additional Judge of the Court of First Instance)

Date of hearing : 30 July 1999

Date of judgment : 30 July 1999

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J U D G M E N T

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1. This is an appeal from an order of Master Muttrie giving summary judgment in favour of a landlord in respect of arrears of rent,etc. The tenant asks for leave to defend the action, claiming to have a counterclaim for damages against the landlord for breachof the latter’s covenant for quiet enjoyment and for derogation from its grant. This complaint is based on the fact that the landlordhas approved plans which show a second entrance to the tenant’s premises, being an entrance which has long been used by the tenant’scustomers for access to and egress from the car park in the building.

2. But the tenant cannot point to any grant to it of a right to use the second entrance in this way (which has been subjected to somerestrictions, apparently for security reasons), and I am satisfied that there is no evidence of any breach of covenant or derogationfrom the grant on the part of the landlord. There is nothing in the point that the landlord approved the plan showing this secondentrance, for this comes nowhere near to entitling the tenant to a right to the unrestricted use of that entrance when no such rightis granted by the lease. I shall therefore dismiss this appeal.

3. The landlord’s costs of the appeal are to be taxed if not agreed and paid by the tenant to the landlord. By consent, the order ofthe Master will be amended so as to substitute 5 January 1999 for 1 February 1999.

(Gerald Godfrey)
Justice of Appeal

Representation:

Mr. Daniel Wan, instructed by Messrs. Johnson, Stokes & Master, for the Plaintiff

Mr. Simon S.M. Yip, instructed by Messrs. Gary Mak, Dennis Wong & Chang, for the Defendant