Sure Win Inc. Ltd v. Gp Motors Ltd

HCA 861/2016

[2018] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.861 OF 2016

_________________________

_________________________

Before: Master Catrina Lam in Court

Date of Hearing: 29 May 2018

Date of Judgment: 1 June 2018

______________________________

ASSESSMENT OF DAMAGES

______________________________

Introduction

1.This is the assessment of the plaintiff’s claim for damages caused to a luxury motor vehicle made by Maybach (“Vehicle”) while in the defendant’s possession and control.

2.Interlocutory judgment on liability was entered on 7 June 2016 upon the defendant’s default in entering any appearance.  The defendant was still absent at the hearing for the assessment of damages.  Upon being satisfied that the defendant had been given proper notice of the hearing, this court proceeded with the assessment in its absence.

Background

3.The plaintiff is and was the registered owner of the Vehicle.  The defendant is and was at all material times engaged in the business of selling luxury motor vehicles.

4.By a written vehicle consignment agreement dated 3 November 2014 (“Agreement”), the plaintiff agreed to consign the Vehicle to the defendant for onward sale.  By clause 2 of the Agreement, it was confirmed as between the parties that the Vehicle had been delivered to the defendant.  It was further agreed that the defendant would be responsible for all liabilities and damages caused to the Vehicle for the duration of the consignment.

5.The Vehicle was severely damaged while in the possession and control of the defendant.  The defendant did not dispute its liability for the damages caused to the Vehicle.  The parties agreed to engage an independent surveyor and loss adjustor, Anderson & Ashe Motor Survey and Adjusters Company (“Loss Adjustor”), to survey the Vehicle.

Expert Reports

6.Pursuant to leave previously granted, I received the written survey reports prepared by the Loss Adjustor dated 21 December 2015 and 5 January 2017 into evidence without the need for the Loss Adjustor to give oral evidence.  The Loss Adjustor opined that the replacement cost of the necessary parts and labour would exceed $1.5 million and the market value of the Vehicle prior to the accident was in the region of $1.1 million to $1.2 million as at November 2014. The Loss Adjustor concluded that the Vehicle was a “total loss” and put the salvage value at $25,000.

Assessment

7.The plaintiff claims the sum of $1.2 million being the market value of the Vehicle prior to the accident and $900 for the costs of engaging the Loss Adjustor.

8.The principle for assessment of damages flowing from a breach of bailment was summarized by Lord Denning in Building and Civil Engineering Holidays Scheme Management Ltd v Post Office [1966] 1 QB 247 at 261E-262B as follows:

“At common law in a case of bailment, the general principle is restitutio in integrum, which means that the party damnified is entitled to such a sum of money as will put him in as good a position as if the goods had not been lost or damaged. This is subject, however, to the qualification that the damages must not be too remote, that is, they must be such damages as flow directly and in the usual course of things from the loss or damage…When goods are lost or damaged in transit, the damage ordinarily produced is, in the case of loss, the cost of replacement; or in the case of damage, the cost of repair. That is the amount which, in the absence of contract, the bailor can recover.”

9.The burden of proof in an assessment of damages is on the party seeking to establish its entitlement to damages.  Where the assessment is unopposed, the court is not simply a rubber stamp and is not bound to accept the evidence and argument of one party.

10.In the present case, I accept the Loss Adjustor’s evidence that the market value of the Vehicle was between $1.1 million to $1.2 million as at November 2014 and that the Vehicle had become a complete a write-off rendering its reinstatement wholly uneconomic.  I am also satisfied the sum of $900 claimed for engaging the Loss Adjustor has been reasonably incurred.

11.Proceeding on the basis that the market value of the Vehicle was $1.15 million (being the average of the range provided by the Loss Adjustor), I award damages in the total sum of $1,125,900, with interest thereon at the rate of 8% from the date of the Writ to the date of judgment, and thereafter at judgment rate until payment. This is calculated as follows:

Market Value of Vehicle	$1,150,000
Costs for Loss Adjustor	$900
less
Salvage	$25,000
Net Award:	$1,125,900 (plus interest)

Costs

12.I make an order that the defendant do pay the costs of this assessment to the plaintiff, summarily assessed at $145,500.

Mr Matthew Ngai, instructed by S.T. Poon & Wong, for the plaintiff

The defendant was unrepresented and absent