Arotamas International (HK) Ltd v. Melofield Nursery and Landscape Contractor Ltd

DCCJ 309/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.309 OF 2015

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JUDGMENT

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1.This trial involves 7 Podocarpus (羅漢松) and 2 Camellia (茶花) (collectively “the 9 plants”). The plaintiff sued the defendant in detinue or conversion for their return, or alternatively, for damages to be assessed. The defendant defended on the basis of lien and counterclaimed unpaid fees of $10,000 for tree cutting works and $48,000 for transplanting works.

Background

2.The following facts are admitted on pleadings, not disputed or admitted on the evidenceand I find them proven.

3.Thedefendant carried on a business of, inter alia, landscaping, horticulture and arboriculture. Its majority shareholder and director was one Mr Lau Sum Yan (“Mr Lau”) who testified before me in punti.

4.The defendant was incorporated as early as in 1981. Its annual business was, Mr Lau said, worth several tens of millions and it was one among the 18 largest government contractors of its kind.

5.In about Feb 2010, the plaintiff purchased the property atNo.6 Lincoln Road, Kowloon (“the property”). Its director and shareholder was one Mr Nugroho Sonny (“Mr Sonny”).

6.Mr Sonny was born, and he grew up, in Indonesia. His mother tongues are Putonghua and Indonesian. He studied English up to primary level. But he insisted on giving his evidence in English before me. He has been a garment manufacturer for 40 years.

7.Prior to the events in question, Mr Lau did not know Mr Sonny or the plaintiff. Defendant had no previous dealing with plaintiff.

8.In or about end Oct 2010, trees and plants, including the 9 plants, were grown on the property and they belonged to the plaintiff. The plaintiff decided to demolish an old 3-storey building at the property (“the old building”) and rebuild thereon a new 3-storey building (“the new building”). Construction contractors were engaged by plaintiff for this purpose.

9.In about late Oct/about 1 Nov 2010, Mr Lau visited the property. He described it as roughly over 5,000 square feet in area, with a garden enclosing the oldbuilding. Mr Lau met Mr Sonny and they discussed in Putonghua. As a result,the plaintiff and the defendant came to an oral agreement (“the agreement”).

10.It was at least agreed in the agreement that the defendant would(1) cut away trees at the property and dispose them away (“the tree cutting works”); (2) remove the 9 plants from the property to its nursery for temporary storage and maintenance until the new building was completed; and (3) charge the plaintiff a fee of $40,000.

11.For about 3 to 4 days in or about end Oct 2010/about 1 Nov 2010, trees at the property werecut down and disposed of by defendant’s staff, including Ms Lau Yin Hung (“Ms Lau”) who gave evidence in punti before me. On the same occasion, the 9 plants were carried away in defendant’s lorry to defendant’s nursery in Yuen Long (“defendant’s nursery”) for storage and upkeep. The defendant’s nursery was said by Mr Lau to be 20,000 square feet in area.

12.An invoice dated 1 Nov 2010 was issued by the defendant to the plaintiff (“the invoice”). Under its descriptions, it was headed “in respect of transplantation of Podocarpus at the property”[1] with particulars of “transplanting Podocarpus to nursery for temporary upkeep and return after completion of works”[2]。“One”[3] was put under unit price and the amount was $40,000. First payment of $30,000 & 2^nd payment of $10,000 were put down, with $30,000 due as the total sum.

13.The plaintiff arranged for its associated company, Allwell Business Centre (HK) Ltd (“Allwell”), to pay $30,000 for 1^st payment under the invoice and the defendant issued a receipt to Allwell dated 20 Nov 2010.

14.Between late 2010 and 2012, plaintiff’s assistant, Ms Lam Choi Leng (“Ms Lam”), who gave evidence in punti before me, visited defendant’s nursery on at least 4 occasions.

15.On her 1^st visit (about Nov 2010) and her 2^nd visit (about Mar – Apr 2011), Ms Lam found the 9 plants at the same location of defendant’s nursery. She had hung up markers in form of paper tags to the 9 plants and had taken their photos, which are produced before me (“plaintiff’s photos”)[4].

16.On her 2^nd visit, Ms Lam noticed some of the leaves of 2 Podocarpusturned yellow while the rest of the 9 plants remained in good shape. She called Mr Lau to enquire. Mr Lau told her not to worry and said the matter would improve with time.

17.On her 3^rd visit (about Jun – July 2011), Ms Lam found the 9 plants at the same location of defendant’s nursery.

18.On her 4^th visit (about Feb – Mar 2012), Ms Lam no longer found the 9 plants at the same location of defendant’s nursery. She called Mr Lau, who told her that they had been relocated to other part of defendant’s nursery.

19.Landscaping drawings dated July 2013 in respect of the new building was given to the defendant. It submitted a quotation to Allwell dated 17 Feb 2014 in sum of $500,290 for landscaping service to be provided. At the end, another contractor than defendant was chosen for the new building.

20.In about Dec 2013, plaintiff’s staff had called Mr Lau saying that the new building was about to be completed and urged defendant to get ready to return the 9 plants to plaintiff. In Dec 2013, the new building was completed.

21.By an email dated 18 Jun 2014 (“the email”), Ms Irene Lai of the plaintiff (“Irene”) required Mr Lau “to return the plants of the property and to advise the related fees”[5].

22.On 19 Jun 2014, a quotation (“the quotation”) was by way of email sent from defendant to Irene in response to her enquiry. The quotation charged the plaintiff for maintenance fee at $12,000 per year from 2010 to 2014, making a total of $48,000 and it was said to be valid for 14 days[6].

23.On the next day i.e. 20 Jun 2014, a notification of payment of maintenance fee signed by Mr Lau was emailed and posted to Irene (“the notification”).On top of $48,000 calculated and demanded in the quotation, the defendant further demanded $500 maintenance fee per day from the date of the letter on the basis that maintenance period was over. Settlement of the maintenance fee was urged so as to arrange for return of the 9 plants to plaintiff.

24.On 28 July 2014, Allwell took proceedings at Small Claims Tribunal (“SCT”) against the defendantto recover $30,000 on the basis that it had not returned the 9 plants since 18 June 2014.

25.By its Defence dated 11 Sept 2014 before SCT, the defendant indicated it would counterclaim for $48,000 for 4 years’ maintenance as said by its letter dated 20 Jun 2014.

26.The said proceedings before SCT were given leave to discontinue on 12 September 2014.

27.On 19 Sept 2014, plaintiff’s solicitors wrote to the defendant, pointing out the charges of $48,000 and $500/day at the quotation and the notification respectively were beyond parties’ contract in the invoice and demanded return of the 9 plants by 30 Sept 2014.

28.On 26 Sept 2014, defendant’s solicitors wrote to plaintiff’s solicitors claiming a total fee as much as $98,000[7]. It was said that the defendant was willing to return the 9 plants provided that plaintiff was willing to settle the outstanding balance of $10,000 plus $48,000 maintenance fee.

29.On 23 Oct 2014, plaintiff’s solicitors wrote to defendant’s solicitors accusing defendant of misappropriation[8] of the 9 plants by reference to Ms Lam’s previous visits. Defendant’s solicitors denied by its letter dated 20 Nov 2014.

30.On 22 Jan 2015, these proceedings were commenced by the plaintiff against thedefendant. The 9 plants have so far not been returned to the plaintiff by the defendant.

Analysis

31.Before me, Mr Billy Ma (“Mr Ma”) appeared for the plaintiff and Mr Val Chow (“Mr Chow”) appeared for the defendant. I have fully and carefully considered all evidence, submissions and authorities before me.

32.In assessing the credibility of the witnesses, in particular the 2 protagonists of Mr Sonny and Mr Lau, before me, I do bear in mind such proper approach identified by Chung J. at para 17 of his lordship’s judgment in Hui Wai Shing v. Sze Wai, unreported, HCA 1348 of 2009, 22 July 2011 referred to by Mr Ma.

33.I also bear in mind that Ms Lam, on top of being plaintiff’s assistant, is a relative of Mr Sonny. And, of course, Ms Lau is an employee of defendant.

Other terms of the agreement

34.This is the crux of disputes between the parties.

Plaintiff’s case

35.The plaintiff’s pleaded case[9] is that the said $40,000 was for removal of the 9 plants to defendant’s nursery, their temporary storage and maintenance there pending completion of the new building, theirreturn from nursery to the property, and their replanting at the property(“the transplantation works”).

36.As for the tree cutting works, Mr Sonny said in his supplemental witness statement[10] that Mr Lau had offered, and agreed, to perform the same on a complimentary basis.

Defence case

37.By way of comparison, the defence pleaded case[11] is that the said $40,000 was solely agreed for the tree cutting works. By subsequent telephone on or about the day after completion of such works, Mr Sonny proposed (and Mr Lau agreed[12]) to settle it by 2 payments i.e. $30,000 upfront and remaining $10,000 upon completion of new building and return of the 9 plants, expected to be around end Oct or early Nov 2011 (“the anticipated completion date”).

38.It was further pleaded[13] that the plaintiff agreed to pay separately for the removal of the 9 plants to its nursery, their storage and maintenance for one year until the anticipated completion date, and, thereafter, for plaintiff to collect them from defendant’s nursery. The defendant will not charge for the said one year but, after that, the plaintiff will have to pay a reasonable amount for their storage and maintenance for each additional year.

$40,000 all-inclusive package

39.Mr Chow submitted that, as a matter of common sense, it is inherently improbable that businessman like Mr Lau would provide tree-cutting works for free, all the more unlikely as it involved cutting down as many as 20 trees by a team of 5 inclusive of Ms Lau as she said.

40.Further, it also makes, Mr Chow added, no commercial sense for Mr Lau to agree to analleged fixed fee of $40,000 for the transplantation works given the uncertainty over the length of constructions period of the new building.Despite Mr Sonny’s disagreement in the box, defendant’s expenses in maintaining the 9 plants would increase with the passage of time.

41.However, the fallacy of Mr Chow’s submissions came, I think, quickly with Mr Lau’s own evidence in the box that he had then thought of short period of time for construction of the new building to complete and that he was ready to agree, on that basis, to a fixed sum of $40,000 for all services rendered.

42.In his box, Mr Lau referred to words of “一年半載” spoken by Mr Sonny in Putonghua to describe the length of time it was impressed upon him that constructions of the new building would take. He also spoke of seeing on his visit to the property that demolition work of the old building was about to finish. Coupled with his seeing 3-storey village houses built  in New Territories quickly and his own experience involved in a project of 3-4 storey house built at Shouson Hill Road quickly as disclosed by him, he apparently, I think, underestimated the time required to complete the new building this time.

43.What is significant is, I  note, Mr Lau’s own admission under cross-examination that if the new building was indeed completed within “一年半載” as he was told, there was “every chance” for him “not to charge extra” for maintenance fee but to accept the sum of $40,000 “all inclusive” (“包晒”).

44.In considering the inherently probabilities of the matters, I think one needs to take further into account that (a) the costs of the tree cutting works relative to the size of defendant’s business; (b) defendant could make use of some of the trees so cut down instead of disposing them away; and (c) defendant had its sight focused on more lucrative landscaping contract for the new building.

45.On (b) above, unlike Ms Lau who claimed that all trees cut down from the property were sent to landfill, Mr Lau admitted more than once under cross-examination that 2 Bougainvillea (勒杜鵑) were taken away for defendant’s own use.

46.On (c) above, notwithstanding Mr Lau denied that he visited the property at the introduction of plaintiff’s construction contractor, he admitted that hehad discussion with Mr Sonny about landscaping service to be provided for the new building (indeed, he claimed in his witness statement that the two had come to an “agreement” to engage defendant for that but he retracted it under cross-examination by explaining it as “bluffing” “吹水”only).

No separate fee for the 9 plants

47.Had the sum of $40,000 been agreed solely for the tree cutting works, which was, in Mr Lau’s words, “wholly different” (“兩件事”) from maintenance of the 9 plants, there was, one thinks, no reason for him to agree to plaintiff paying balance of $10,000 later despitefull completion of tree cutting works in end Oct/1 Nov 2012, or, if he was minded to give credit to a new customer like plaintiff at all, to “link” such payment with the completion of the new building and return of the 9 plants and no other times, save and except the payment of the said sum had something to do with the 9 plants in the first place.

48.Had Mr Lau allegedly agreed with Mr Sonny separate fee for removal, storage and maintenance of the 9 plants, it makes, I think, no commercial sense for defendant not to send interim bill(s) to plaintiff for the same as each individual year passed over time but to quote its annual maintenance fee of $12,000, and charge $48,000 for 4 years in one goal (which Mr Lau admitted is different from 1^st year free of charge pleaded), when plaintiff enquired about 4 years later with email.

49.It is true that, under cross-examination of Mr Chow, Mr Sonny once agreed that he had agreed with Mr. Lau that reasonable fee should be paid for the transplantation works. But I note he soon reverted to plaintiff’s case of $40,000 inclusive on re-examination. I believe that he gave this mistaken answer in cross-examination due to his limited English ability.

50.Also, I do not think Mr Sonny was changing his evidence by answering with his limited English in the box that the tree cutting works were within the “package” covered by the said $40,000 fee for the transplantation works. This is in substance, I think, no different with the tree cutting works being “complimentary” as was put by him in his English witness statement.

51.That no separate “reasonable” fee was agreed upon for the transplantation works was, I think, further proven by Mr Lau’s own abandonment of the same in the box. He claimed instead “nominal (象徵式)” fee was agreed upon. Mr Chow tried to salvage that by claiming that Mr Lau meant “reasonable” using the word “nominal”. But Mr Lau never said he so meant in the box or in his witness statements where only the word “reasonable” was put down. On cross-examination, he also admitted that the 2 words are different.

The invoice

52.The purpose for which the invoice was issued to plaintiffis also seriously disputed.Plaintiff’s case is that defendant issued it for the transplantation works, whereas defendant claims that the same was issued for the tree cutting works, albeit entered with wrong descriptions by its employee Ms Hung Yan Yan (“Ms Hung”).

53.It is true that, as Mr Chow pointed out, there was no mention of Camelliaor its number, or the number of Podocarpus, or the tree cutting works on the face of the invoice. But it spelt out the process of transplantation works of Podocarpus from the beginning to the end and that was, on plaintiff’s case, why the amount of $40,000 was charged for in the main, with tree cutting works being “complimentary” or within this “package” price.

54.Reading the invoice as a whole, this important piece of document contemporaneous with the agreement is, I think, more supportive of plaintiff’s case than that of defence case.

55.It is, I think, implausible for Mr Lau to claim that he left Ms Hung to ask Ms Kim Chan (secretary of Mr Sonny) what to put down on the invoice. Rather, it was incumbent for Ms Hung’s superior i.e. Mr Lau himself to instruct her what to put down on the invoice and what the invoiced amount was for.

56.One finds it unbelievable on defence case that the invoice, and its invoiced amount, was for the tree cutting works and yet no reference was made to it at all. Such alleged mistake was, I note, never corrected by defendant’s solicitors in pre-action correspondences when plaintiff’s solicitors relied on the invoice to show that no additional maintenance fee was agreed upon.

57.I believe the invoice recorded accurately the gist of the agreement and I give it full weight.

The email & the quotation

58.Mr Chow sought support from the words “and to advise the related fees” in the email to submit that they contradict plaintiff’s case that fees payable for the transplantation works had been agreed at the sum of $40,000 as alleged by Mr Sonny.

59.However, the quotation defendant provided in response to the email expressly prescribed for its 14-day validity period for plaintiff to accept. Upon being cross-examined, Mr Lau claimed it was still open for plaintiff to “negotiate” the fee. That equally contradicts, I think, defendant’s case that a binding fee, albeit reasonable in amount, had been agreed upon separately for the maintenance of the 9 plants.

60.Moreover, the email demanded for defendant’s “return (搬回)” of the 9 plants to the property. That is consistent with plaintiff’s case than defence pleaded case of plaintiff “collecting” them.

61.While the maker of the email i.e. Irene was not called at trial when plaintiff could do so, having regard to the 4-year long lapse of time between the email and the agreement, I do not feel able to attach as much weight to the email as I did with the invoice.

Plaintiff’s case of the agreement proven

62.In spite of other discrepancies of Mr Sonny’s evidence highlighted by Mr Chow in his submissions, having regard to all evidence relevant to this crucial issue of the terms of the agreement, including their inherent probabilities, I am satisfied that Mr Sonny’s evidence on this point is truthful and accurate. I accept Mr Sonny’s evidence, and also Mr Lau’s own admissions, on this point and reject such contrary evidence of Mr Lau on the same.

63.I find on the balance that the two of them did orally agree in the agreement that the said total fee of $40,000 was for the transplantation works and that tree cutting works was to be within this “package” price, and in effect, complimentary.

Implied terms unnecessary

64.In view of my findings on the express terms of the agreement above, there is no need to for me to consider such issue of implied terms on the pleadings.

No lien for $58,000 unpaid fee

65.On my findings of the terms of the agreement above, the outstanding sum under it for plaintiff to pay defendant upon return of the 9 plants to, and their replanting at, the property is only $10,000 balance stated on the invoice.

66.As such, there is, I find, no basis for defendant to demand plaintiff to pay additional maintenance fee of $48,000 ($12,000 per year), or further daily fee of $500, as it did.

67.Accordingly, it was, I find, wrongful for the defendant to assert or claim any lien, if any is available at law, over the 9 plants, or not to return the 9 plants to plaintiff, for alleged unpaid fees totaling $58,000 (or other sums than $10,000) as it had claimed.

68.For, as Srutton LJ made clear in Albemarle Supply Co v Hind & Co [1928] 1 KB 307, 318-9, an owner may be excused from tendering the amount claimed by a person claiming a lien if the latter person for a wrong amount makes it clear that he will not release the goods unless his full is satisfied, and that claim is wrongful.

69.For the above reasons, grateful as I am to both counsels’ industry on this point of law, I do not find it necessary to decide whether an element of “improvement” (or mere “maintenance” as plaintiff contended) was involved in defendant’s works for the 9 plants and thus at law enabled it to assert a particular lien.

Detinue & conversion proven

70.For the foregoing, all elements of plaintiff’s causes of action in detinue and conversion in respect of the 9 plants had been proven and I find both established.

Identification issue of the 9 plants

71.Before moving on to relief for plaintiff’s claim, another issue before me is whether the 9 plants are still properly taken care of by defendant today, or that they had been misappropriated, be they sold or died, such that those shown in such photos defendant produced at trial are not the 9 plants belonging to plaintiff.

72.Mr Sonny went so far to say in his witness statements that the 9 plants were never at defendant’s nursery since Mar 2012 and that the plants intended to be returned are different plants.

73.Mr Lau explained that as the lease of defendant’s nursery was about to expire, the 7 Podocarpus and 2 Camellia were in turn moved to defendant’s other nursery in 2014 and/or 2015. The 9 plants are, he said, shown in photos exhibited as “LSY-2” to his witness statement in March 2016 and in photos exhibited as “LSY-11” to his 2^nd supplemental statement in Oct 2016 (“defence photos”). But Mr Sonny denied that those plants shown were the 9 plants.

Plaintiff opted for delivery of the 9 plants

74.On the basis that the 9 plants were not shown in defence photos, Mr Ma informed this court that the plaintiff opted for delivery of the 9 plants and not damages as assessed. Mr Chow for his part made clear that defendant is willing to return plaintiff the 9 plants as identified in defence photos if the court so orders.

Mr Lau’s identification evidence

75.On this issue of identification, I agree with Mr Chow that, given that Mr Sonny had no training or expertise over plants, that he last saw the 9 plants in 2010, that he had not visited defendant’s nursery, it is most doubtful that he could, as he claimed, recognize the 9 plants today after they have grown up for years. Indeed, save for two each hanging a tag with the Chinese words of “Lincoln Road”, he cannot recognize the 9 plants when the plaintiff’s photos were shown to him. I decide to place no weight on his identification evidence.

Ms Lam’s identification evidence

76.As for Ms Lam, she also denied in the box that those plants in defence photos were the 9 plants. She fared, I think, no better than Mr Sonny in terms of training or expertise; she had none either. She, however, had the advantage of periodic visits to defendant’s nursery viewing the 9 plants for 3 times and hanging tags on them herself during a period of 2 years. She must have, I think, taken efforts to observe the 9 plants before she raised query with Mr Lau about yellow leaves on her 2^nd visit.

77.In particular, Ms Lam emphatically denied that 2 Camellia[14] shown in “LSY-2” came from the 9 plants because they did not havelarge trunk (“頭”) as she observed and drew exhibit “P-8” to describe. On this, she is, I think, corroborated by one of plaintiff’s photos capturing 1 Camellia[15] having big trunk. Her evidence cannot, I think, be disregarded as one did with that of Mr Sonny.

Mr Lau’s identification evidence

78.In contrast, Mr Lau, with his wealthy 33-year experience in the trade and with plants, maintained in the box that those plants in defence photos were the 9 plants. Regarding the 2 Camelliashown in “LSY-2”, he tried to explain by saying that changes might have occurred due to treatment and/or surgery in the transplantation process. Yellow leaves observed by Ms Lam on her 2^nd visit were, he also explained, not uncommon natural occurrence.

79.Nevertheless, the partiality of his identification evidence can be illustrated from the fact that Mr Lau saw fit to deny when Mr Ma put to him that the few Podocarpus shown in photo of exhibit “LSY-10” to his supplemental statement in July 2016 were not from the 9 plants (they were in fact recent purchase of Podocarpus of comparable size made by Mr Lau himself from the Mainland).

Insufficient evidence of death or sale

80.I should add here that plaintiff’s case that the 9 plants had died or had been sold does not, I think, come up to proof.

81.On cross-examination by Mr Chow, Ms Lam conceded, while she allegedly observed all leaves turning yellow for the same 2 Podocarpus(which was denied by Mr Lau) on her 3^rd visit[16] to defendant’s nursery, she had no expertise to tell if these 2 plants had really or actually died.

82.Ms Lam further claimed in the box calling Mr Lau on her 3^rd visit and received reply from him: “they will come back to life later. It is no big deal they had died. We will return similar to you”. That materially, I think, differs from her statement which recorded a different reply: “No problem. If they die, we will find similar Podocarpus for plaintiff (emphasis added)”. That casts doubt on Ms Lam’s evidence on this point. Again, Mr Lau denied all such allegations.

83.As for alleged sale of the 9 plants, there was no such evidence from either side.

Defendant not discharged its burden

84.At the end of day, on this difficult issue if the plants in defence photos were the 9 plants as alleged by the defendant, having carefully considered everything before me, including comparing them myself against the plaintiff’s photos, I think the defendant failed to discharge its burden on the balance.

85.I do not think the bare assertion of Mr Lau (not to mention discrepancies in various other aspects of his evidence) is sufficient to tilt the balance. Having taken the 9 plants belonging to the plaintiff into its possession with the obligation to return them, it was, I think, incumbent on the defendant to keep good record(s) of their whereabouts and growth, be it by way of documents, photos and/or signs hanging on them, so as to distinguish them from other plants of defendant and to satisfy the owner at the end of the day that the plants intended to be returned are the original ones.

86.No such above records were produced at trial, if any was kept at all. One begs to ask how defendant distinguished its other plants from the 9 plants and, if by location as alleged by Mr Lau, any written record was kept or not. As Mr Lau conceded, defendant did not even bother to tell plaintiff the new whereabouts of the 9 plants after they were removed away from defendant’s nursery. One begs to ask if replacement tags were put on the 9 plants after those put up by Ms Lam could no longer be used. One begs to ask if regular photographic records were kept of the growth of the 9 plants.

87.Finally, in absence of above records, such staff of defendant, if any, in daily care of the 9 plants over the years can also be called to give evidence but, unfortunately, none was called.

Delivery of the 9 plants to plaintiff

88.To avoid any doubt, notwithstanding the aforesaid, on all the evidence before me, I remain of the view that the 9 plants remain with the defendant today.

89.Mr Chow rightly reminded me that the power of the court to order delivery up of a particular chattel is discretionary and ought not to be exercised where the chattel is an ordinary article of commerce and of no special value or interest, and not alleged to be of any special value to the plaintiff and where damages would fully compensate. In equity, where a plaintiff alleged and proved the money value of a chattel, it was not the practice of the court to order its specific delivery: Whiteley v Hilt [1918] 2 KB 808, 819 & 824.

90.All things considered and balanced, including possible future enforcement dispute, I am minded to exercise my discretion to order the return of the 9 plants to plaintiff.

91.The transplantation works itself in the first place supported, and I find, that Mr Sonny valued the 9 plants, as opposed to other trees cut down and disposed of. They must be of special interest or unique to him such that he paid for their preservation and replanting to the property after the new building was built.

92.The 9 plants must mean, I accept, a lot to Mr Sonny as he said in evidence. Were it not so, he could have purchased replacement in the market as Mr Lau explained and sued the defendant for the loss. Apparently, the 9 plants are no ordinary article of commerce to him and they deserve to be returned to their rightful owner.

$10,000 fee payable upon return & replanting

93.As said above, upon delivery of the 9 plants to the plaintiff as ordered by me and replanting them at the property, the plaintiff is then required to pay the defendant the remaining balance of $10,000 under the agreement.

94.As such, it is premature for me at this stage to order plaintiff to pay defendant the said sum of $10,000 now. One needs to wait to see if defendant complies with my order of delivery and also replant them at the property in line with the agreement. And Mr Ma on behalf of the plaintiff is prepared to offer an undertaking to make such payment of $10,000 upon redelivery and replanting of the 9 plants.

95.In any event, the defendant pleaded no alternative case in its counterclaim for $10,000 balance due and payable to it upon completion of the transplantation works on plaintiff’s case of the terms of the agreement for me to enter judgment. Notwithstanding Poon Hau Kei v Hsin Chong Construction Co Ltd (2004) 7 HKCFAR 148, cited by Mr Chow, I do not see fit to do so as the counterclaim was, I note, last amended on 25 Oct 2016 (i.e. not long before this trial started) but such alternative case was not introduced on such occasion.

Damages, if awarded

96.For the sake of completeness, in case I am wrong to order return of the 9 plants to the plaintiff, I would assess damages payable to plaintiff as follow.

97.There is no documentary, market or expert evidence as to the value of the 9 plants adduced by plaintiff. Mr Sonny’s evidence of $200,000 on this point is, I agree with Mr Chow, speculative and cannot be acted upon.  I am left with Mr Lau’s admissions in his respect, if not to award nominal damages to plaintiff.

98.Mr Lau in effect repeated in the box such evidence of his at para 14 of his witness statement and para 11 & 12 of his supplemental witness statement. Had it been necessary, I would have awarded damages to plaintiff in total sum of $7,500 (i.e. $2,000 x 2 larger Podocarpus and $500 x remaining 5 Podocarpus and 2 Camellia).

Disposition

99.I allow plaintiff’s claim and order the defendant to return the 9 plants as pleaded in para 5 of the Statement of Claim to the plaintiff forthwith. And I dismiss defendant’s counterclaim.

Costs

100.By way of order nisi, I order defendant to pay plaintiff costs of the claim and of the counterclaim (including all costs reserved, if any), to be taxed if not agreed, with certificate for counsel. If none applies by summons to vary the aforesaid costs order within 14 days of this judgment, the same shall become absolute.

101.Lastly, it remains for me to thank both counsels for their ableassistance.

Mr Billy N.P. MA, instructed by Tse Yuen Ting Wong, for the plaintiff

Mr Val CHOW, instructed by Zhong Lun Law Firm, for the defendant