Tang Tak Sum and Another v. Tang Kai Fong
Read the full judgment text of HCA 2089/2009 on BabelCite. This High Court CFI judgment was delivered on 20 March 2020.
1. On 28 November 2014, the Court of Appeal ordered ( “CA Order” ):
Cited by 5 cases · Cites 8 cases
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HCA 2089/2009 [2020] HKCFI 349 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2089 OF 2009 ________________________
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_________________________________ JUDGMENT _________________________________ A. Introduction 1.On 28 November 2014, the Court of Appeal ordered (“CA Order”):
2.The Court of Appeal’s Judgment is reported as Tang Tak Sum v Tang Kai Fong [2015] 1 HKLRD 286 (“CA Judgment”). I shall adopt the abbreviations and nomenclature used in the CA Judgment. 3.This is the hearing for an account and inquiry as directed by the Court of Appeal. D gave 6 affirmations and viva voce evidence in Court. Ps filed two notices of objections to D’s accounts. I also received and considered submissions from Mr KM Chong and Mr Aidan Tam (acting for Ps) and from Ms Candy Chan (acting for D). 4.The difference in principle between the parties, which I need to resolve first before moving on to deal with the actual account and inquiry, is Ps’ claim, which D disputes, that the account for rent should be calculated not on the basis of rent actually received by D but based on market rent of the Land regardless of whether D had actually rented out the Land and the rent he received. More specifically, the bases of Ps’ claim are first, D’s alleged wilful default and second, that D ought to pay occupation rent[1] for his sole occupation of the Land. 5.In my view, this dispute is primarily resolved by reference to the terms of the CA Order read in the context of the CA Judgment, to which I presently turn to. B. CA Judgment 6.Ps and D are tenants in common of the Land (i.e. a piece of land in the New Territories known as Lot 581 in Demarcation District 130). Ps hold ¼ share in the Land whereas D holds the remaining ¾ share: CA Judgment §1. 7.The Land had been let out by D as a car park which was against its authorized use. D has been collecting the rent of the Land without accounting to Ps: CA Judgment §2. 8.Ps’ claim against D for an account of the income and expenditure of the Land was put on two bases: they said D was liable to account qua trustee to beneficiaries or alternatively qua co-owner of the Lot appointed as bailiff of other co-owners: CA Judgment §42. 9.Both the trial Judge and the Court of Appeal rejected the first basis for the reason that Ps had failed to establish the alleged ancestral worship trust such that D had no duty qua trustee to render an account of income and expenditure in respect of the Land: CA Judgment §§43-45. 10.On the other hand, the Court of Appeal, differing from the trial Judge, held that the authority of D’s father and subsequently of D to collect rent from the Land came from the Division of Family – whereby the clear wording provided that D’s father was assigned to collect rent from the Land – and therefore D must account qua bailiff of other co-owners of the Land: CA Judgment §§7-9, 11, 45, 49. 11.In this regard, Ps’ contention[2] that the Court of Appeal “did not make any finding as to the basis (agent or bailiff) upon which the account should be rendered.” is plainly wrong. 12.The Court of Appeal allowed Ps’ appeal and set aside the judgment below. More specifically, it held at CA Judgment §51:
C. Wilful default 13.I reject Ps’ claim that D is liable to account for the market rent of the Land on the basis of wilful default. 14.As shown above, the CA Order (and CA Judgment §51) specifically provided that there should be an account and inquiry for the income received by D of the Land. In my view, what is being directed is an account and inquiry in common form as opposed to an account and inquiry on the footing of wilful default. Nor did the CA Order make any provision that Ps may later apply for the account to be taken on the latter basis. Ps did not appeal against the CA Order. Accordingly, it seems to me the CA Order precluded Ps’ claim for an account on the basis of wilful default. 15.Even supposing I were wrong, I would reject P’s present claim for an account on the basis of wilful default for the following reasons. 16.The leading texts on the subject are clear that a plaintiff who wishes to obtain an account on the footing of wilful default must specifically plead and prove the alleged wilful default: Snell’s Equity (34th Ed), §20-026[3]; Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th Ed), §26-095[4]; Lewin on Trusts (19th Ed), §§39-048 & 39-050[5]. The two passages from Lewin are particularly illuminating:
17.Ps did not plead a case of wilful default against D nor prayed for an account on that footing. Therefore, the Court of Appeal, in allowing Ps’ appeal, only granted an account and inquiry in common form. Further, the CA Order did not make any provision that Ps may later apply for the account to be taken on the basis of wilful default. Accordingly, Ps cannot now claim an account on the basis of wilful default, which was neither pleaded nor proved. 18.But even leaving that aside, the alleged wilful default by D that Ps presently rely on at the hearing before me (i.e. that D had knowingly and blatantly failed to render any account for over 30 years)[6] would not be sufficient to ground a claim for an account on the footing of wilful default. 19.Wilful default in the context under discussion refers to a default whereby an accounting party, in breach of duty, failed to obtain a benefit, which should have been obtained, for the fund: Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681 at §170 (Lord Millett NPJ); Agricultural Land Management Ltd v Jackson (No 2) (2014) 48 WAR 1 at §347 (Edelman J). 20.Therefore, a default in rendering an account per se is inadequate to ground a claim for an account on the basis of wilful default: Snell’s at §20-026 citing Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 at §66 (Giles JA). 21.The three authorities that Mr Chong refers me to do not assist.
22.That said, I should say at once that it does not follow that the present account and inquiry is in common form that the principle of omnia praesumuntur contra spoliatorem, relied on by Mr Chong to criticize what he perceived to be inadequacies in D’s accounts, must have no application in this case. I shall return to this issue below. 23.I should also say I do not agree with Ms Chan’s contention[7] that a tenant in common as bailiff (such as D) is only liable to account for rents actually received but not rent which would have been received but for the bailiff’s wilful default. Wheeler v Horne (1851) Willes 208, which she cites, actually contradicts her contention. At page 210, Willes CJ held:
D. Occupation rent 24.I also reject Ps’ claim for occupation rent. 25.In the first place, the CA Order did not direct that D should account to Ps for occupation rent for his occupation or use of the Land. Ps did not appeal and are thus bound by the CA Order. 26.Second, I reject the various bases put forth by Mr Chong to ground Ps’ claim for occupation rent. In particular, for reasons discussed below, I consider that none of the authorities that Mr Chong cites to me are applicable to the present case. 27.More specifically, the Court of Appeal held that there was no ouster: CA Judgment §39.[9] Therefore, Biviano v Natoli (1998) 43 NSWLR 695 and Kong Colin Chung Ping v Kong Wing On (CACV 69/2015, 11 November 2015) are readily distinguishable as occupation rent was payable in those two cases as there had been ouster of the other tenants in common. 28.In respect of Forgeard v Shanahan (1994) 35 NSWLR 206[10], at pages 297 (line 10) to 298 (line 45), Meagher JA (with whom Mahoney JA agreed) held that in equity, an occupation rent may be extracted in at least two scenarios: first, in partition suit or related litigation where there has been exclusion; and second, in partition, administration or statutory sale cases where the owner in occupation who claims an allowance in respect of improvements effected by him will only be permitted to do so if he is accountable for an occupation rent. Neither scenarios apply to our present case. 29.I also consider Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre (IO) [2014] 4 HKLRD 52 to be inapplicable. In that case, the incorporated owners counterclaimed against the developer (who retained an undisposed interest in the building) for marking out an area designated as common area for its own enjoyment in breach of the deed of mutual covenant that no one should convert common areas for their own use or interfere with common areas. Godfrey Lam J held that there was liability to pay occupation rent or an equivalent sum in damages. More specifically:
30.For clarity of exposition, it is necessary to look more closely at the two “old cases” that his Lordship referred to. In M’Mahon v Burchell (1846) 2 Ph 127, 41 ER 889, an executor was sued for payment of a legacy and in answer, the executor alleged that the plaintiff had for several years occupied a house, that was part of an estate of which the executor and others were tenants in common, and the rent due from the plaintiff in respect of the occupation exceeded the amount of the legacy. The question was whether Vice Chancellor Wigram was correct in directing the Master to inquire, inter alia, whether the plaintiff was in occupation as pleaded and, if so, whether he ought to be charged with occupation rent, and, if so, the sum chargeable. Lord Cottenham LC answered the questions in the negative. For present purposes, I need only state two of the reasons given: first, the executor’s pleaded case that the plaintiff’s occupation of itself made him liable to his co-tenants for rent was unsustainable as a matter of law[11]; and second, the executor’s argument that there was an agreement that the plaintiff would pay rent to his co-tenants for his occupation was unsupported by the evidence. 31.In Henderson v Eason (1851) 17 QB 701, 117 ER 1451, Robert and Edward were co-tenants of certain farmlands, which were occupied and worked by Edward during his lifetime. After Edward’s demise, Robert, relying on the Administration of Justice Act 1705 (4 & 5 Anne c 16), sued Edward’s executor for an account for the rent and profit received by Edward that were more than his just share and proportion. Parke B held that on the evidence Edward did not receive more than his just share within the meaning of the Act. Relevant for present purposes, the learned Judge held (at page 720 of the former report) that:
32.It seems to me that these two cases demonstrate that where there is an agreement that a co-owner in sole occupation of the property would pay occupation rent to the other co-owner, it may, depending on the circumstances, be equitable to order the former to account to the latter for occupation rent. However, this proposition does not assist Ps as they have not pleaded any agreement between Ps and D that D would pay occupation rent for his occupation and use of the Land. Nor am I aware of any evidence supporting the existence of any such agreement. 33.Further, unlike the Wing Ming case, Ps are not alleging that there is any agreement between them and D marking out a common area in the Land, which D has breached. Hence, the analogy drawn by Godfrey Lam J, with reference to the two old cases, has no application in this case. 34.For these reasons, I reject the various bases advanced by Mr Chong to ground his clients’ claim against D for occupation rent. The order of Master H Au-Yeung of 16 January 2015, where D was directed to “file and serve an account of the income and expenditure received and incurred by him of and for the use and enjoyment of...the Land, inclusive of the letting, use and enjoyment thereof...”, does not detract from the analysis. It was a procedural order for the further conduct of the present account and inquiry, where the question of whether a particular item (such as occupation rent) should be accounted for or paid to Ps would be determined. In any case, while I am not privy to what transpired before the learned Master, Ps informed me that the order was made pursuant to the CA Judgment[12] so it seems to me that the learned Master could not have intended to deviate from the CA Judgment or the CA Order. E. Account E1. Law 35.I bear in mind the guiding principles on the taking of an account and inquiry in common form: Snell’s at §§20-014 to 20-022. In particular, I highlight the following points. 36.The beneficiary carries the burden of proving surcharges and the accounting party bears the burden of proving discharge. The accounting party must therefore be prepared to document each item, and presumptions may be made against them if they have not kept proper records or have destroyed them. The court will lean particularly hard against a professional who has kept inadequate records or anyone who destroys records in bad faith. At the other extreme, a non-professional fiduciary who has acted in good faith may be granted fair and reasonable allowances despite having neglected to keep proper accounts: Snell’s at §20-018. 37.In Libertarian at §174, Lord Millett NPJ held that:
38.In Malhotra at 322 (right column), Morritt LJ (as his Lordship then was) explained the application of the principle of omnia praesumuntur contra spoliatorem in the context of taking an account:
39.Similarly, in Kao, Lee & Yip (a firm) v Donal Koo Hoi Yan (HCA 8847/1993, 7 June 2007) at §§13-15, Reyes J held that the presumption against an accounting party in favour of the beneficiaries where there is a lack of proper records cannot be the Court’s sole consideration. Whilst expedient, the presumption is not a licence to draw any inference against the accounting party however unreasonable or disproportionate. The Court must approach a disputed issue with a measure of realism and pragmatism and must always ask whether the result of any application of the presumption accords with common sense. E2. Between June 1984 and 31 March 1990 40.D was ordered to render an account since he “has been in control and/or management” of the Land. There is no dispute that the period began in June 1984. 41.D claims the rental income received in respect of the Land between June 1984 and 31 March 1985 was HK$3,000 and thereafter HK$3,000 per financial year from 1 April 1985 to 31 March 1990. According to him, the Land was leased under an oral tenancy and there were no rental receipts. He does not claim any expenses. 42.Whilst Ps initially complained about the lack of evidence on the rental income, they are now prepared to accept (see §43 of their Closing Submissions) D’s figures. 43.Accordingly, I find that the net income between June 1984 and 31 March 1985 was HK$3,000 and thereafter HK$3,000 for each of the 5 financial years from 1 April 1985 to 31 March 1990. E3. Between 1 April 1990 and 31 March 1995 44.D claims he did not receive any rental income nor incurred any expense because the Land was not leased out during the period. 45.Ps complain that D failed to produce any evidence. They contend that D should account for the market rent either on the basis that he should pay occupation rent for his sole occupation of the Land or on the basis of his wilful default. For reasons explained in Sections C and D above, those two grounds are not open to Ps in the present account and inquiry. 46.On balance, and bearing in mind the following factors, I find that the net income for the period is nil.
E4. Between 1 April 1995 and 31 March 2004 47.It is common ground that the annual rental income D received from the Land was HK$120,000 for each of the 9 financial years. 48.As for expenses, it is not in dispute that:
49.In the circumstances, the net income for the period was:
E5. Between 1 April 2004 and 31 March 2015 50.D’s account for this period is, to say the least, confusing and wholly inadequate. 51.For instance, on actual rental income received alone, he produced 3 different versions of accounts. Each later version is said to be an updated version of the earlier, taking into account matters discovered in the intervening period.[14]
52.But a different picture emerges if one considers the assessable value of the Land as shown in the various Property Tax Assessment Demanding Final Tax for the Land (“Tax Demands”) for the period.
53.“Assessable value” is defined in section 5B(2) of the Inland Revenue Ordinance (Cap 112) (“IRO”) as follows:
54.Therefore, one would have thought the “assessable value” shown in the Tax Demands for the period represents the rental income in respect of the Land during that period. 55.Further still, on D’s own admission, the annual rental income from the Land since 1 April 1995 was HK$120,000. In particular, D claims that the present tenant has been leasing the Land since around 1997 or 1998 for a monthly rent of HK$10,000. This is reinforced by:
56.Notwithstanding the aforesaid, D claims that the actual amount of rent received during the 11 financial years under discussion was, as shown in the 4th Account, much lower because:
57.I reject D’s claim (as shown in the 4th Account) for the following reasons. 58.First, any irrecoverable rent is deductible if it is proved to the satisfaction of the assessor that it has become irrecoverable. In re-examination, D said he had tried but failed to obtain a deduction. However, there is no documentary evidence of D’s attempt. Had D really tried, he should have no difficulty producing application letter(s), with supporting evidence showing rent was irrecoverable, and response(s) from the Inland Revenue Department. 59.Second, beyond D’s bare assertion, there is no documentary evidence that rent during this period is in fact irrecoverable. On D’s own evidence, he successfully sued the tenant in the District Court (in DCCJ 2777/2011) for HK$70,000 rent in arrears, and the tenant eventually paid up. There is no further documentary proof of D having made further claims or demands against the tenant for unpaid rent. I should also say it seems to me that D’s successful District Court action also militates against his claim that he is wary of taking action against the tenant (who he claims is a triad member). 60.Third, D’s bankbooks are difficult to follow. I have tried, but am unable, to decipher how it is said that the bankbooks confirm the actual amounts of rent received by D are the amounts reported in the 4th Account. The bankbooks only show sums deposited and withdrawn from the bank account with no explanation at all what the deposits and withdrawals are for. D has highlighted in the bankbook the entries he claims represent the actual rent received but he has failed to explain how he is able to identify those entries, particularly after so many years. On his own admission, there are no rental receipts evidencing the amount he has received from the tenant. 61.Fourth, I am not at all convinced by D’s assertions in relation to the filing of tax returns. In his first response to Ps’ objections, he attributed the alleged mistakes in the tax returns to his daughter misreading the bankbooks. But in his second response, he explained (in relation to the financial year between 1 April 2004 and 31 March 2005) that neither he nor his daughter checked the bankbooks and his daughter filled in the tax return based on his erroneous recollection of the amount of rent he had actually received. However, when asked during cross-examination what documents did his daughter have when filling in the tax returns, D said he cannot say and does not know. Leaving all this aside, D has not given a good explanation as to why he has not asked his daughter to give an affirmation to support his account of what had happened. This is surprising bearing in mind he has had the benefit of legal advice throughout the present proceedings for an account and inquiry. 62.Fifth, having regard to the reasons above and also the fact that it is entirely D’s own doing for failing to produce cogent evidence to support his claim of the amount of rent received, but giving due allowance that D is not a professional accountant or bailiff, I think I am entitled to apply the legal presumptions or assumptions, described in the authorities cited at §§36-39 above, against D and disregard his claim (as shown in the 4th Account) as to the amount of rent he has received for the period under discussion. 63.Mr Chong invites me to add back the rates paid to the assessable value shown in the Tax Demands. He relies on D’s second response to Ps’ objections where D explained that for the financial years 1 April 2004 to 31 March 2005 and 1 April 2009 to 31 March 2010, the assessable value was derived after deducting the rate from the annual monthly rental of HK$120,000. 64.The effect of Mr Chong’s submission would be:
65.Having considered the Tax Demands and the demands for rates and Government rent carefully, it appears to me that what had happened was that the person filling in the tax return thought that assessable value meant, contrary to the statutory definition of the term, the annual rental income of a financial year less the rates payable.
66.In the circumstances, I am unable to accept Mr Chong’s submission to the extent that it would result in the annual rental income for 5 out of the 11 financial years under discussion exceeding HK$120,000. It is true that the Court may, in in an appropriate case, make various legal presumptions or assumptions against an accounting party who fails to produce evidence to support the account put forth. But these legal presumptions or assumptions are tools that the Court may deploy in order to arrive at a result that is just and accords with common sense on the facts of each case. Notwithstanding that D’s accounts have fallen short of the standards that the law expects of an accounting party, I consider it inappropriate to accept Mr Chong’s submission to the extent mentioned particularly when it is tolerably clear, as I have sought to demonstrate, what the annual rental income was and how the corresponding assessable value shown in the Tax Demand was arrived at. 67.An additional reason for my conclusion is that there is no evidence that D received anything from the tenant over and above the monthly rent. Indeed, there appears to be no dispute that D (and not the tenant) was responsible for paying rates. 68.For all these reasons, I find that, on the balance of the evidence, the annual rental income for the Land for each of the 11 financial years under discussion was HK$120,000 per year. 69.Turning to expenses incurred, the parties are in agreement:
70.In respect of property tax, section 5(1) of the IRO provides that it is charged on the net assessable value of land or buildings or land and buildings wherever situate in Hong Kong and section 5(1A) defines net assessable value as the assessable value less (a) the rates where the owner agrees to pay them and (b) an allowance for repairs and outgoings of 20% of the assessable value after deduction of any rates. 71.Given the way in which the tax returns were apparently compiled, particularly when it seems that rates deductible were not deducted, there may be some discrepancy between the amount of property tax paid and the amount of property tax that ought to be paid. That said, the parties have not taken issue. In addition, I have no means to ascertain whether there was in fact any discrepancy, bearing in mind that the actual property tax paid was computed under personal assessment, which may or may not have reduced the tax liability. Accordingly, I shall adopt the figures agreed by the parties. 72.In the circumstances, I find that the net income for the 11 financial years under discussion was:
E6. Between 1 April 2015 to 31 March 2018 73.In the 2nd Account, D reported that the annual rental income for the 3 financial years was HK$120,000 per year. The reported figures, at least for the 2 financial years ended 31 March 2016 and 2017, are supported by the Tax Demands for those 2 years. 74.In the 3rd Account, D amended the annual rental income for the financial year ended 31 March 2016 to HK$110,000 and for the 2 financial years ended 31 March 2017 and 2018 to HK$100,000 per year. The claim was maintained in the 4th Account. D explained in his second response to Ps’ objections that the amended figures were the actual amount received according to his bankbooks. He also said the figures in the Tax Demands for the 2 financial years ended 31 March 2016 and 2017 were wrong because he had filled in the tax returns without checking the bankbooks. 75.For the first, second third and fifth reasons identified at §§58-60 & 62 above, which are applicable here mutatis mutandis, I reject D’s claim. 76.Mr Chong submits that the rates for the 3 financial years under discussion should be added to the annual rental income. I reject that submission because:
77.Accordingly, I hold that the annual rental income for each of the 3 financial years under discussion was HK$120,000 per year. 78.The parties are ad idem in respect of the expenses incurred.
79.In the premises, the net income for each of the 3 financial years under discussion was:
E7. Other expenses claimed by D 80.D claims legal costs and disbursements in relation to DCCJ 2777/2011 (totalling HK$171,005) and for costs of fencing the Land (in the sum of HK$20,000). D claims the fencing work was later abandoned. 81.During cross-examination, D confirmed he does no request for the legal costs to be included in the account as a discharge. He said his solicitors took care of the matter and he did not request them to include the legal costs in the account. In respect of the fencing costs, he also agreed when cross-examined that he would not claim the same. 82.Ms Chan complains that the answers were “unfairly extracted” from D.[16] I do not agree. The cross-examination was conducted in Punti, which D has no trouble understanding or speaking. Mr Chong was entitled to ask the questions he did. 83.Ms Chan then submits that the supporting documents concerning the claim “can hardly be disputed” and it is clear that “payment was made”.[17] I am not sure she is right either. I have only been shown fee notes from D’s solicitors (the same firm of solicitors presently acting for him), which are plainly not receipts, and a document from a construction company recording the labour and material costs for erecting a fence, which does not appear to be a receipt. In other words, there is no evidence of payment or that D has incurred such expenses. 84.For these reasons, I consider D is not entitled to claim the legal costs and the fencing costs. 85.As for the rates and Government rent for the Land for the financial year ended 31 March 2019, I agree with Mr Chong’s submission that it is not appropriate to deal with them now bearing in mind D has not yet accounted for any income received for that year. In this regard, for financial years that D claims there was no rental income, he would put nil in his account. However, in the 4th Account, D left the relevant box empty but did not put nil thus suggesting that he has yet to account for any income received that year. E8. Summary 86.Taking into consideration all my findings made above, the account of the income and expenditure received and incurred by D of the Land is set out at Annex 1 to this Judgment. 87.Mr Chong seeks an order, and I so order, that D do pay Ps the sum due to them in respect of their share of the Land, which represents one quarter of the total net income. Based on the account in Annex 1, the total net income is HK$2,357,266 and ¼ of that is HK$589,316.50. F. Interest 88.Ps claim both pre-judgment and post-judgment interest on the sum found to be payable by D to them. 89.Insofar as pre-judgment interest is concerned, Ps’ claim is predicated on section 48 of the High Court Ordinance (Cap 48) or in equity.[18] Mr Chong asks for either compound interest, on the basis that D had allegedly wrongfully profited from his misconduct, or simple interest at 1% over prime. 90.Ps’ claim is fatal as they have not pleaded any claim for interest in either the statement of facts in the body of their Statement of Claim or in the prayer. See Order 18 rule 8(4); Tai Ying Fat v Many Harvest Construction Co Ltd (HCCT 47/2009, 21 November 2011) at §§17-18 (Saunders J); Hong Kong Civil Procedure (2020), Vol 1, §18/8/8. 91.Further, the CA Order did not order or award any pre-judgment interest on the sum found to be payable by D to Ps, presumably precisely because Ps did not plead such interest. 92.The case that Mr Chong cites, i.e. Lee Yuk Shing v Dianoor International (in Liquidation) (CACV 185/2015, 23 May 2016), is distinguishable because although the plaintiff in that case did not plead breach of contract, the material facts pleaded in his pleading supported such a claim and the prayer asked for a declaration that the plaintiff is entitled to return the purchase price and commission paid. 93.It should also be said that notwithstanding that Ms Chan had already taken the pleading point in her Opening Submissions (at §§29-33), Mr Chong never applied to amend Ps’ pleadings. 94.Insofar as post-judgment interest is concerned, I will make the usual order for post-judgment interest on the sum payable by D to Ps at judgment rate from the date of this Judgment until full payment. G. Conclusion 95.For all the above reasons, I order that D do pay Ps the sum of HK$589,316.50, as their share of the net income from the Land for the period between June 1984 and 31 March 2018, together with interest thereon at judgment rate from the date of this Judgment until full payment. 96.There is no reason why Ps should not get their costs. I make a costs order nisi that D is to pay Ps’ costs of and incidental to the present application for an account and inquiry, including all reserved costs and any costs not covered by previous orders, to be taxed if not agreed with certificate for one counsel. 97.Mr Chong invites me to give liberty to apply to cater for eventualities and to correct any mistakes in my calculations. Insofar as there are any clerical or calculation mistakes, there are redress mechanisms under the Rules of the High Court that parties may resort to in an appropriate case. That said, I see no reason in principle against ordering liberty to apply, and I so order.
Mr K M Chong and Mr Aidan Tam, instructed by Arthur Au & Co, for the 1st and 2nd plaintiffs Ms Candy S H Chan, instructed by Wong, Hui & Co, for the defendant HCA 2089 of 2009 Annex 1
[1] Sometimes known as an occupation fee. In this Judgment, I shall use the term “occupation rent”, which was the term used by Ps. [2] P’s Opening Submissions at §33(1). [3] Citing Re Tebbs [1976] 2 All ER 858 at 963 (Slade J, as he then was); Re Stevens [1898] 1 Ch 162 at 170 (Lindley MR, as he then was). [4] Citing Job v Job (1877) 6 Ch D 562 at 564-565 (Sir George Jessel MR); Mayer v Murray (1878) 8 Ch D 424 at 426-427 (Sir George Jessel MR); Re Symons (1882) 21 Ch D 757 at 761 (Fry J). [5] Citing Lord Kensington v Bouverie (1855) 7 De GM & G 134 at 156 (Knight Bruce LJ); Barber v Mackrell (1879) 12 Ch D 534; Smith v Armitage (1883) 24 Ch D 72; Sleight v Lawson (1857) 3 K & J 292; Coope v Carter (1852) 2 De GM & G 292; Askew v Woodland (1873) 28 LT 465. [6] See P’s Closing Submissions §§4-8, 80(3). [7] See D’s Opening Submissions §22. [8] The statute in question was Administration of Justice Act 1705 (4 & 5 Anne c 16), which was repealed in Hong Kong in 1966 and does not apply to the present case: Chen Yu Tsui v Tong Kui Kwong [2006] 1 HKC 23 at §88 (Deputy Judge Barnabas Fung, as he then was). [9] In fact, Ps’ pleaded case was that there was no ouster: §10(b) of the Re-re-Amended Reply and Defence to Counterclaim. [10] Which was approved in Chen Yu Tsui at §§96 & 103. [11] This is a well-established principle: Wing Ming at §213; Chen Yu Tsui at §105; Forgeard at 296 (lines 20-30). [12] See Ps’ Opening Submission §14. [13] §8(e) of the Amended Defence and Counterclaim. [14] The numerical identifications of the accounts used are those adopted by the parties at the hearing. The underlined figures are the changes made by D. [15] There is no dispute on the rates paid. [16] D’s Closing §27. [17] D’s Closing §27. [18] Ps’ Opening Submissions §§37-40. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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