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small claim tribunal case against hotel

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  1. #1

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    Aug 2019
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    small claim tribunal case against hotel

    hi

    we moved to HK 6 months ago. before arriving we booked a serviced apartment (from the uk) for a duration of1.5 month (time we gave ourselves to find a place to live). we paid 1month rent and 1 month of deposit upfront.

    we arrived and it turned out that the place was not really looking like the pictures on the website, it was not modern as described on the website. it was basically a tiny flat with no windows in the living room (1 window in the kitchen, one window in the bedroom) and old furniture. we left 2 days after arriving. (not the type of place I would have kept my family in for 1.5months)

    we never received a contract from them (they said they would send one but never did) and the whole communication was on whatsapp. furthermore we agreed by chat to have an apartment on the 3rd floor (2nd floor was booked apparently) they gave us an apartment on the 4th floor (without lift).

    anyway they charged us the full amount (1.5months) and categorically refuse to refund anything else.

    I spoke with a lawyer (the free legal advise) who told me it's a case of false advertising and misrepresentation and that I should bring that case to the small claims tribunal, which I did.

    on the day of the hearing, for some reason, the serviced apartment representative didn't make it to court but it was not their fault so the case was adjourned. I still sat in the court with the judge who listened to my case and told me few interesting things which left me confused and pessimistic :
    - even though he agrees that the pictures we took from the apartment and the pictures on the website differ, he said that pictures on website are just pictures and therefore opened to interpretation , same conclusion regarding the description of the flat online, it's all opened to interpretation.... (I was a bit surprised by that one to be honest, how can pictures and black on white words be open to interpretation is beyond my naive brain)
    - also he said that WhatsApp chat is not legally binding the same way as a contract is and therefore in absence of a contract, the cancellation and refund policies are whatever the website says. in that case, not refundable.

    the next hearing is in 2 weeks and I feel a bit lost here. I i went to court feeling optimistic based on my conversation with the lawyer but the judge seems to think otherwise.

    i guess any advice or anyone with similar experience would be helpful. fundamentally I've nothing to lose when I go to the hearing, It seems I can only hope for the hotel to do a gesture of goodwill but that genuinely surprises me that an hotel can get away with that.

    thanks


  2. #2

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    The law has no soul. If the other party made specific statements on things not true, whether on e mail, whatsapp or any other written medium, then it could be argued that that formed a promise not kept. The only way to be sure is to search for precedents which you can do on the court website or search for in the central library.

    Either way you can only win on prior law and not common sense. In any other country you who have the Better Business Bureau or Citizens Advice / Trading Standards but not here. Welcome to Hong Kong.

    FYI - a lawyer will tell you anything you want to hear because they win whether you loose of win. They get your cash. Note they never tell you you WILL will because that is a promise of performance and lawyers can't do that because they could get sued. They say it in such a practiced way that you get a positive impression but they make sure to keep your money.

    gigglinggal and ArrynField like this.

  3. #3

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    - If the guy doesn't turn up again force the magistrate to close the case and give you the victory by default. After that they will be informed by the court to refund you. So that is your best chance. If they guy still doesn't pay you can give the judgement to the bailiff office and they will got an collect your money.

    If the guy turns up, you will be sent out to discuss a settlement. It will be upto you to negotiate, threat or what ever you need to do.

    shri likes this.

  4. #4

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    it is framed the as misrepresentation, in my view, the hotel does not need to attend, misrepresentation is very subjective so difficult to prove. I have probably said it a thousand times, but I will say it again, It does not matter what was said, what was promised, what they said on WhatsApp, only the exact text in the contract matters. the OP should not have paid without reading the contract.


  5. #5

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    If he reads this thread he'll probably turn up. Wouldn't that be an ironic and unfortunate twist?


  6. #6

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    Aug 2019
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    thanks everyone


  7. #7

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    Quote Originally Posted by JAherbert:
    what they said on WhatsApp, only the exact text in the contract matters
    I have posted a case on here where a rental agreement was deemed as a "verbal contract" due to what was said on Whatsapp. Cannot be relied upon, but might provide some relief.

  8. #8

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    I have not read the OP's post .. TL;DR.

    Just chiming in on the whatsapp issue .. might be worth checking some of these cases where the word whatsapp has been used in judgements... there might be some clues in the judgements on the context of whatsapp conversations becoming verbal contracts / proving intentions or bad faith...

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    https://legalref.judiciary.hk/lrs/co...selDatabase=JU


  9. #9

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    Quote Originally Posted by shri:
    I have not read the OP's post .. TL;DR.

    Just chiming in on the whatsapp issue .. might be worth checking some of these cases where the word whatsapp has been used in judgements... there might be some clues in the judgements on the context of whatsapp conversations becoming verbal contracts / proving intentions or bad faith...
    most of those HKSAR vs..... are criminal cases, I only read one loan case, the content of WhatsApp messages didn't change the terms or conditions of the contract.

    EDIT: to amend a contract typically requires the original lawyer, signatures from different parties, witnessed/countersigned, etc. most firms will not pay lawyers to amend an existing contract.
    shri likes this.

  10. #10

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    Quote Originally Posted by Fenix2:
    - If the guy doesn't turn up again force the magistrate to close the case and give you the victory by default. After that they will be informed by the court to refund you. So that is your best chance. If they guy still doesn't pay you can give the judgement to the bailiff office and they will got an collect your money.
    Not quite true. They still have a right to dispute the verdict. I think it must be filed within so many days (14?) if memory serves.

    Even if they DO turn up, the parties can still dispute it and go back. Even if the petitioner wins it is not automatic to get any money. You have to pay for enforcement and be aware of assets to seize ( easy here you just seize the properties you are aware of. )

    In any case it's never black and white just a balls ache bureaucratic bog.

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