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HCA 210/2018
[2022] HKCFI 317
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 210 OF 2018
________________________
| BETWEEN |
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|
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AU CHOK LAM (歐作霖) |
Plaintiff |
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and |
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| |
AU KA HING (歐家慶) |
1st Defendant |
| |
AU KA MEI LINDA (歐嘉美) |
2nd Defendant |
________________________
| Before: |
Master Phoebe Man in Court |
| Date of Hearing: |
13 December 2021 |
| Date of Closing Submissions: |
11 January 2022 |
| Date of Judgment: |
28 January 2022 |
________________________
TAKING OF ACCOUNT
________________________
Introduction and background
1.This action was commenced in 2018 where the plaintiff originally claimed against the 1st defendant and the 2nd defendant for, amongst other things:
i) A declaration that the 1st defendant holds the property situated at 1/F, Section B of Lot No 338 in DD 253, Sai Kung, New Territories, Hong Kong (the “Property”) on trust for the plaintiff;
ii) Damages for assigning the Property to the 1st defendant instead of the plaintiff pursuant to a settlement agreement dated 25 November 2012;
iii) An account of what is due to the plaintiff from the 1st defendant and/or the 2nd defendant as rental and/or mesne profits by reason of the 1st defendant and/or the 2nd defendant’s dealing with and/or occupation of the Property for such period and that the 1st defendant and/or the 2nd defendant do pay such sum found to be due upon taking of such account.
2.By consent, judgment on liability was entered for the plaintiff and it was ordered/declared (amongst other things) on 26 April 2021 (the “Order”) that:
i) the Property is held by the 1st defendant on trust for the plaintiff absolutely;
ii) subject to the Director of Legal Aid’s First Charge, the 1st defendant do transfer the Property with vacant possession to the plaintiff by executing and delivering to the plaintiff an assignment for the Property to be prepared by the plaintiff’s solicitors;
iii) the 1st defendant and the 2nd defendant are liable to account to the plaintiff what is due to the plaintiff from the 1st defendant and/or the 2nd defendant as rental and/or mesne profits by reason of the 1st defendant’s and/or the 2nd defendant’s dealing with and/or occupation of the Property for the period from:
1) 26 November 2012 (date of the settlement agreement) to 30 November 2019;
2) from 31 November 2019 to 20 July 2021 (the date of the assignment of the Property to the plaintiff)
and it is ordered that the 1st defendant and the 2nd defendant do account to the plaintiff for the amounts certified due to the plaintiff upon taking of such account;
iv) The aforesaid accounts and inquiries be by consent remitted to and taken before a Master.
3.It is pursuant to the Order that this taking of account exercise arises. There is no dispute as to the applicable procedure, which is provided in Order 43 of the Rules of the High Court.
Issues
4.Counsel agreed that the following are the issues to be determined:
a) The deposits issue: whether the deposits of former tenants: Mr Kristopher, Miss Lo, Mr Yuen and Ms Li, had been forfeited or repaid to the respective tenants upon the expiry of their leases?
b) The payment issue: whether the defendants have paid all rentals received from the various tenants since 25 November 2012?
c) The property tax issue: whether the property tax alleged to have been paid by the 1st defendant should be included in the taking of account exercise?
d) The mesne profits issue: the amount of mesne profits payable (if any) for the periods when the Property was not leased out, i.e. between
i) 4 January 2013 and 14 March 2013,
ii)15 November 2015 and 19 January 2016 and
iii)1 July 2020 to 19 July 2021.
Credibility of the Witnesses
5.The stance of the plaintiff on the one hand and the stance of the 1st defendant and the 2nd defendant on the other hand are diametrically opposite: originally, the plaintiff’s stance was that the 1st defendant and the 2nd defendant had paid none of the relevant sums to him, whereas the 1st defendant and the 2nd defendant say that (save for HK$57,400 yet to be paid by the 1st defendant), they had already paid all of the relevant sums to the plaintiff. As such, the credibility of the witnesses come into issue.
6.Counsel for parties do not dispute the applicable principles in assessing a witness’ credibility. In Star Glory Investment Limited v Kai You (H.K.) Technology Company Limited & Ors [1], Chung J adopted the following test:
“There are two objective tests for assessing a witness’ credibility regarding a matter to which he has testified: -
a) Whether that part of his testimony is inherently plausible or implausible;
b) Whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).
Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or just determination of the litigation may affect his interest.”
7.In M.A (HK) Limited & Anor v Yeung Yuk Sing & Ors [2], Deputy High Court Judge Marlene Ng (as she then was) observed that:
“… because an individual is not credible in relation to one issue that does not mean his/her evidence will be rejected in relation to other issues in the case. It is all a matter of assessment and degree.”
8.I agree with the above principles and will adopt them when assessing the credibility of the witnesses in relation to the different issues.
The deposits issue
9.After production of certain documentary evidence at the hearing, the deposits issue is narrowed down to:
a) Whether the HK$14,000 deposit had been returned to Ms Lo upon the termination of the tenancy.
The 1st defendant testified that the $14,000 deposit was carried forward from the first tenancy to the second tenancy with Ms Lo. Ms Lo then terminated the second tenancy in November 2015 before the break clause became effective in March 2016, which meant that the 1st defendant could have forfeited the entire HK$14,000 under the tenancy agreement. However, the 1st defendant gave evidence that as he had had a harmonious landlord and tenant relationship with Ms Lo and since Ms Lo helped find Mr Yuen as a new tenant to start a new tenancy in January 2016, he agreed to return the HK$14,000 deposit in full to Ms Lo.
I accept the 1st defendant’s explanation that he did not deduct Ms Lo’s deposit for early termination and returned the entire sum to her, as she had helped him find another tenant to lease the Property. The 1st defendant was able to recount that he repaid the deposit to Ms Lo at her school in Yau Tong.
Although the 1st defendant has failed to produce documentary evidence of the return of the deposit (as it was repaid in cash), and there is some inconsistent recollection on whether:
i) the 1st defendant returned the deposit to Ms Lo after Mr Yuen paid his deposit, or
ii) Mr Yuen paid his deposit to Ms Lo and the 1st defendant held the original HK$14,000 paid by Ms Lo as deposit paid by Mr Yuen,
I take into consideration the fact that:
i) Ms Lo must have negotiated with the 1st defendant on the return of her deposit upon having helped him find the next tenant (Mr Yuen), and
ii) the 1st defendant is not a professional trustee and had lost some of the documentation,
I am of the view that his account of having returned the HK$14,000 deposit is inherently credible.
b) Whether the HK$3,500 deducted from Mr Yuen’s deposit (deducted for early termination) had been paid to the plaintiff
There seems to be no dispute that out of the HK$14,000 deposit, HK$3,500 was not returned to Mr Yuen (for early termination) and that such amount was not paid to the plaintiff. The 1st defendant, who collected the deposit and withheld the HK$3,500 therefrom produced no evidence of having paid such sum to the plaintiff. There is also no argument put forward that explains why the 1st defendant does not need to pay this sum to the plaintiff.
10.There being no dispute that the 1st defendant was the one who received the deposit from Mr Yuen, the 1st defendant is liable to account to the plaintiff for HK$3,500 on the deposits issue.
The property tax issue
11.The defendants say that as part of the expenses of the Property a sum of HK$14,208 had been paid as property tax. The plaintiff in effect puts them to strict proof.
12.The documentary evidence provided by the defendants in support of such payment are:
a) a letter from the Inland Revenue Department reminding the addressees that payment for property tax is due.
b) An EPS slip and a Hong Kong Post slip indicating that a payment of HK$14,208 for property tax had been made.
13.Mr Ng for the plaintiff challenged that neither of the EPS slip nor the Hong Kong Post slip had any reference to the Property. The only reference to the Property is a hand-written note of “井欄樹物業” (namely, the Property) written down by the 2nd defendant.
14.Likewise, the letter from the Inland Revenue Department also did not refer to the Property, and was addressed to both the 1st defendant and the 2nd defendant at an address at “Peony Height” in Kowloon City and not at No 51 Tai Po Tsai Village where the 1st defendant was residing at.
15.Mr Ng queried why other invoices for payments such as Government rent/rates had been mailed to the 1st defendant’s address at No 51 Tai Po Tsai Village, but the invoice for the property tax had to be sent to another address. The suggestion was that the relevant documents did not relate to the Property.
16.I have considered the queries raised by Mr Ng and conclude that on a balance of probabilities, the HK$14,208 was payment of property tax made by the 1st and/or the 2nd defendant in relation to the Property for the following reasons:
a) The plaintiff agreed at cross examination that property tax for the Property had to be paid by someone, and he had not made such payment.
b) The 2nd defendant testified that the Peony Height address in Kowloon City was where she lived. Her evidence was that from time to time she assisted the 1st defendant, her brother, in various matters as the 1st defendant was not a sophisticated person who could properly take care of all his own affairs. That is why the property tax payment advice was sent to her address instead of the 1st defendant’s address. The Chinese words “井欄樹物業” was written down by her although she did not remember when she wrote it down. Her evidence was that other than the Property, she did not jointly own any other property with the 1st defendant. I find the 2nd defendant to be a truthful, straightforward and credible witness who only gave evidence on the matters she remembered, and not on matters that she had no recollection of, even though it might have been to her or to the 1st defendant’s benefit if she had done so. I accept her evidence.
c) The plaintiff has not put forward any evidence to support the bare allegation that the HK$14,208 was paid for another property owned by the 1st defendant and/or the 2nd defendant. Nor has the plaintiff put forward evidence that someone else had paid the property tax for the Property instead.
d) Taking the above into account, I am of the view that on a balance of probabilities, the evidence shows that the 1st defendant and/or the 2nd defendant have paid property tax for the Property in the sum of HK$14,208.
17.The expense of HK$14,208 ought to be deducted from the amount to be accounted for as property tax paid for the Property.
The mesne profits issue
18.Several matters are not in dispute:
a) The Property was not leased out for the following periods:
i) 3 January 2013 – 7 March 2013 (period between two tenancies);
ii) 4 November 2015 – 20 January 2016 (period between two tenancies);
iii) 1 July 2020 – 20 July 2021 (the date of assignment of the Property back to the plaintiff).
together, the “Said Periods”
b) There was no express term or obligation imposed on the 1st defendant and/or the 2nd defendant that the Property was to be leased out continuously even where there was a change of tenants.
c) In the plaintiff’s affirmation in opposition, he has not sought mesne profits for the Said Periods.
19.I accept the submissions of Mr Poon for the defendants that the Court should not entertain the plaintiff’s claim for mesne profits for the following reasons:
a) Paragraph 43/3/1 of the Hong Kong Civil Procedure 2022 provides the practice on taking an account:
i) The accounting party will generally be directed to lodge his account (which the defendants have done by way of affidavits).
ii) The opposing party will then file a notice of objections, or an affidavit setting out their contentions with regard to the account, so that it can be seen what issues require determination by the court (emphasis added).
b) In their respective affidavits, the defendants did not provide for mesne profits by way of account. However, in his affirmation in opposition, not only had the plaintiff not mentioned that the defendants should be liable for mesne profits as well, he made a positive statement that: “第一及/或第二被告人還尚欠本人HK$539,641.00 (641,800 – 10,064 – 5,095 – 87,000)。” This sum only relates to the rental amount and the relevant expenses. This clearly indicates that he plaintiff did not think at the time he swore the affidavit that the defendants’ account ought to include an amount for mesne profits, which was missing.
c) Mr Ng tried to argue that a plea for mesne profits was included in the statement of claim and therefore the plaintiff ought to be allowed to include it in his claim for an account, despite not having raised it in his affirmation in opposition. I cannot accept this submission. The trial of the action did not take place upon the parties agreeing for judgment to be entered on the terms as set out in the Order. Thereafter the procedure or taking of account as provided for in Order 43 took over. The 1st defendant and the 2nd defendant were not notified of any intention of the plaintiff to argue for the inclusion of mesne profits in the account and thus did not provide any evidence in reply. To allow the plaintiff to raise the issue of mesne profits by way of opening submissions and at the hearing would be procedurally unjust to the 1st defendant and the 2nd defendant, as they had had no chance to provide evidence in rebuttal.
d) In any event, it is accepted that the 1st defendant and/or the 2nd defendant had not undertaken to keep the Property leased out continuously, even in-between tenancies.
e) As at 1 July 2020, parties’ relationship had worsened such that litigation was already in progress. There was already a settlement agreement stipulating the transfer of the Property back to the plaintiff. This was reinforced by the Court order in April 2021. It would have been unreasonable for the 1st defendant and/or the 2nd defendant to continue leasing out the Property when the transfer was imminent.
f) The plaintiff has not put forward any evidence to show that the 1st defendant and/or the 2nd defendant had deliberately left the Property vacant, or had used the Property for their own benefits during the Said Periods.
20.The plaintiff’s claim for mesne profits thus fails. Therefore, the amount that the 1st defendant and the 2nd defendant are liable to account to the plaintiff as mesne profits is HK$0.
The rental payment issue
21.This is the most contentious issue, with the plaintiff alleging (after oral and documentary evidence at the hearing) that he is entitled to payment amounting to HK$538,607. The 1st defendant on the other hand maintained that he had already paid all sums due to the plaintiff save for HK$57,400.
22.The plaintiff, the 1st defendant and the 2nd defendant each gave oral evidence on the rental payment issue.
23.After the conclusion of all the evidence, there is no dispute between the plaintiff, the 1st defendant and the 2nd defendant (as confirmed by counsel) that:
a) the 2nd defendant was responsible for the leasing of the Property from 4 September 2011 to 12 November 2013 (the “2nd Defendant’s Relevant Period”); after that the 1st defendant took over the responsibility (the “1st Defendant’s Relevant Period”);
b) the 2nd defendant had provided a satisfactory account for the 2nd Defendant’s Relevant Period upon filing of her affidavit dated 16 June 2021.
c) The 2nd defendant had duly paid all rental received by her to the plaintiff for the 2nd Defendant’s Relevant Period.
d) Any remaining sums that had to be accounted for relate to the 1st Defendant’s Relevant Period and such sums had only gone into the hands of the 1st defendant only.
24.As the 2nd defendant had duly paid all rental received by her to the plaintiff for the 2nd Defendant’s Relevant Period, the remaining disputes on the rental payment issue should only be in relation to the 1st Defendant’s Relevant Period and is thus only between the plaintiff and the 1st defendant.
25.Mr Ng tried to argue that as the 2nd defendant and the 1st defendant were both legal owners of the Property, the 2nd defendant should be jointly liable for any sum that has to be accounted for now. However, Mr Ng could not provide any basis or authority that the 2nd defendant should still be liable for the rest of the sum that ought to be accounted for by the 1st defendant, when it was agreed that:
a) the responsibility of the 1st defendant and the 2nd defendant were separate and distinct;
b) the 2nd defendant has fulfilled her obligation under the taking of account exercise by providing a full account for the 2nd Defendant’s Relevant Period, which the plaintiff is satisfied with; and
c) the 2nd defendant has already duly paid all amounts due for the 2nd Defendant’s Relevant Period that she was responsible for.
26.More importantly, the 2nd defendant had ceased being a joint legal owner of the Property from 12 November 2013 onwards upon the deed of gift dated 12 November 2013 whereby the 2nd defendant gifted the Property to the 1st defendant such that the 1st defendant became the sole legal owner of the Property. Any legal responsibility of the 2nd defendant to account for the Property would have ceased by then.
27.As the 2nd defendant has satisfactorily fulfilled her obligation under the taking of account exercise, the disputes on the rental payment issue is only between the plaintiff and the 1st defendant.
28.After hearing oral evidence from the parties, the following are my observations of the various witnesses and the effect of their evidence:
a) the relationship between the plaintiff (the father), the 1st defendant (the son) and the 2nd defendant (the daughter) were once upon a time harmonious, or at least civil.
b) although there is no dispute that the 1st defendant was liable to account to the plaintiff for the rental he has collected, the plaintiff had acquiesced to the 1st defendant using part or all of such rental payments for a certain period, to pay for the rental of the accommodation in which they lived together and other living expenses.
c) The plaintiff admitted that when the relationship between him and the 1st defendant (his son) was harmonious, he did not mind the 1st defendant not paying him the entirety of the rental payment, and he was happy to subsidise his son’s costs of living as the 1st defendant did not earn much.
d) Neither the plaintiff nor the 1st defendant is a credible witness in relation to the rental payment issue:
e) the 1st defendant’s stance that he has paid the plaintiff all of the rental proceeds for the 1st Defendant’s Relevant Period (except for HK$57,400) is unsustainable:
i) Despite the submission of Mr Ng for the plaintiff, the 1st defendant is anything but a “meticulous record keeper”. If he were, he would have been able to produce a much better record or any record of all the alleged cash payments. All it can be said is that the 1st defendant had kept most of the tenancy agreements in relation to the Property.
ii) The 1st defendant admitted that he had kept no records of the cash payment that he alleged to have made to the plaintiff.
iii) the 1st defendant said he would withdraw money from his account and keep cash at home in a safe for personal use and for paying the plaintiff. Such cash payment to the plaintiff was not always paid personally by the 1st defendant, as he did not know in advance when the plaintiff would return to Hong Kong from mainland China. His girlfriend would pay the plaintiff when he was not at home when the plaintiff returned. However, the 1st defendant could not explain how his girlfriend would know how much to pay the plaintiff. The only conclusion that could be reached from the 1st defendant’s evidence is that there was simply no regular pattern on how much and how often he paid the plaintiff in cash. This is contrary to his assertion that he had always paid the plaintiff every 3 to 4 months in cash in full, or that he would pay the plaintiff at least HK$12,000 every month.
iv) The 1st defendant admitted that he had mingled his own funds with the rental payments he received on behalf of the plaintiff, as they are all put into the same account where he regularly withdrew funds for his own use.
v) Upon questioning by this Court, the 1st defendant accepted that there is simply no way of ascertaining or proving how much he had paid to the plaintiff by way of cash in satisfaction of his obligation to account for the rental payments throughout the 1st Defendant’s Relevant Period.
f) The testimony given by the plaintiff likewise is unreliable:
i) Despite the plaintiff’s original position that the 1st defendant had paid none of the rental payments to him, the plaintiff had to concede that the 1st defendant had at least paid him the HK$81,000 by way of bank transfer as they were supported by documentary evidence.
ii) Further, at the hearing, the plaintiff admitted that the 1st defendant had from time to time used part of the rental payments to pay for the rent of No 51C, Tai Po Tsai Tsuen, where both of them were living in. Such use of the rental was agreed by the plaintiff. It would be unfair to the 1st defendant for the plaintiff to now change his mind and demand such sum be returned to him in full.
iii) The plaintiff also admitted that the 1st defendant had previously paid some of the rental payments to him in cash.
iv) The plaintiff admitted that he could not remember how much rental payment in total the 1st defendant had paid to him in cash.
29.It is thus clear from the evidence of the plaintiff, the 1st defendant and the 2nd defendant, that for the 1st Defendant’s Relevant Period:
a) The 1st defendant could not have paid ALL of the rental receipts (except for the HK$57,400) to the plaintiff.
b) Similarly, the plaintiff could not have received NONE of the rental receipts in cash other than the HK$81,000 by way of bank transfer.
c) Other than the HK$81,000, the 1st defendant had paid some of the rental receipts to the plaintiff in cash, the exact amount is unknown, as there is no record kept by the 1st defendant.
d) The plaintiff had agreed to the 1st defendant having used some of the rental payment to pay for their joint living expenses, including rental payment for No 51C of Tai Po Tsai Tsuen until their relationship broke down irretrievably.
30.At the hearing of the closing submissions, counsel for the plaintiff accepted that the plaintiff had agreed with the 1st defendant having utilised the rental payments received for his own use or for payment of rent for No 51C Tai Po Tsai Tsuen where they lived together, up to a certain point in time. As a result, the plaintiff will not seek for repayment of rental payment before that particular point in time.
31.On the other hand, counsel for the 1st defendant accepted that after that particular point in time, the 1st defendant was obliged to account in full for the rental payment received, less any sum that had been paid by way of bank transfer.
32.Mr Ng for the plaintiff submitted that that point in time was up to June 2013. The plaintiff said that the 1st defendant had ousted him from the Property and ceased contact with him after June 2013.
33.The 1st defendant on the other hand said that the relationship between himself and the plaintiff remained harmonious until the plaintiff filed a report with the police against the 1st defendant and the 2nd defendant around 2016 to 2017.
34.For the following reasons, I come to the conclusion that the relationship between the plaintiff and the 1st defendant broke down only after September 2016:
a) As mentioned above, I find the plaintiff and the 1st defendant to be unreliable witnesses. On the other hand, the testimony of the 2nd defendant had along been straightforward and reliable.
b) In view of the different positions of the plaintiff and the 1st defendant on which point in time did their relationship break down: June 2013 (as alleged by the plaintiff) or September 2016 (as alleged by the 1st defendant), the Court re-called the 2nd defendant who gave evidence on this point. According to the 2nd defendant, the plaintiff and the 1st defendant lived together until the 1st defendant moved to a new address within the same village in September 2016. She candidly admitted that although she thought the plaintiff had continued to live with the 1st defendant at the new address, she had actually never seen the plaintiff when she went over to the new address to drop off groceries for the 1st defendant.
c) The plaintiff did not provide any explanation or incident which triggered the breakdown of the relationship between him and the 1st defendant in June 2013. He only insisted on the date. Without any specific incident as an aide memoir, I find it difficult to accept that the plaintiff is able to independently remember the date of break-down of their relationship as June 2013 with such conviction and specificity, when it is obvious that the plaintiff’s memory is faulty in relation to some of the other aspects of the case.
d) It is not disputed that the plaintiff had not sent any written demands to the 1st defendant or the 2nd defendant for the payment of outstanding rent, until the commencement of the present action in 2018. Documentary evidence suggests that the plaintiff applied for legal aid in July 2017. If the 1st defendant had really ousted the plaintiff from where they lived and had since then (June 2013) ceased all communication with him, it is difficult to understand why the plaintiff never took action to demand regular account and full payment from the 1st defendant after he was ousted in June 2013, and only applied for legal aid in 2017.
e) On the other hand, parties agreed that the plaintiff reported the 1st defendant and the 2nd defendant to the police in 2016 or 2017. Parties agreed that after that, the relationship between them would have completely broken down. This timing largely matches the time when the 1st defendant moved to a new address – September 2016.
f) Uncontested evidence shows that the 2nd defendant was responsible for collecting rent from 2011 to November 2013. Thereafter it was the 1st defendant who collected the rent of the Property. The 1st defendant’s evidence is that as the relationship between the plaintiff and the 2nd defendant completely broke down around 2012, the plaintiff had asked him to take over the management of the Property and the collection of rent from November 2013 onwards. The plaintiff admitted that the 1st defendant had paid him rent by way of cash before the relationship broke down between him and the 1st defendant.
g) If the relationship between the plaintiff and the 1st defendant had broken down in June 2013, as alleged by the plaintiff, it is inconceivable that the plaintiff would have asked the 1st defendant to take over the management and the collection of rent of the Property. It is also unlikely that the 1st defendant would have paid the plaintiff anything after he took over the rent collection obligation from November 2013 onwards. The plaintiff seems to have confused the time when his relationship with the 2nd defendant broke down, as opposed to when his relationship with the 1st defendant broke down.
35.I thus conclude that the plaintiff had agreed with the 1st defendant’s way of managing the Property and handling of the rental proceeds (partially paid to the plaintiff and partially used by the 1st defendant for his own use or for the joint use of the 1st defendant and the plaintiff), until their relationship broke down, in September 2016.
36.There is little dispute that as a trustee, al beit not a professional one, bears the duty to keep accounts and produce them when required, and presumptions may be made against him if he fails to do so.
37.As the 1st defendant is unable to produce any record of cash payment from 1 September 2016 to 20 July 2021, the presumption that he has not paid the plaintiff any amount by way of cash will be made against the 1st defendant, especially against the finding that the relationship between him and the plaintiff broke down from September 2016 onwards.
38.Therefore, the amount that the 1st defendant is liable to account for is from 1 September 2016 to 20 July 2021:
Payment |
Period |
Amount |
| Rental by Mr Yuen |
1/9/2016 – 19/8/2017
(at HK$7,000 per month for 11 months and 19 days) |
HK$81,290 |
| Rental by Ms Li |
1/9/2017 – 30/6/2020
(at HK$8,200 per month for 34 months) |
HK$278,800 |
| Deposit withheld from Mr Yuen |
|
HK$3,500 |
| Mesne Profits |
|
HK$0 |
| |
Total: |
HK$363,590 |
| |
Minus |
|
| Undisputed amount received by the plaintiff by way of bank transfer |
|
- HK$81,000 |
| Undisputed expenses incurred |
|
- HK$15,159 |
| Property Tax |
|
- HK$14,208 |
| |
Amount to be accounted for by the 1st defendant: |
HK$253,223 |
Determination on the issues
39.To conclude, I find that:
(a) the 2nd defendant had complied with accounting for what is due to the plaintiff after the filing of her affidavit dated 17 June 2021.
(b) The 1st defendant is liable to account to the plaintiff in the sum of HK$253,223.
Costs
40.Mr Ng for the plaintiff and Mr Poon for the 2nd defendant agreed that since the 2nd defendant had duly complied with the Order to the satisfaction of the plaintiff after the filing of her affidavit, she should only be responsible for costs incurred by the plaintiff from 26 April 2021 (the date of the Order for taking of accounts) to the date of her affidavit on 17 June 2021.
41.Mr Poon for the 1st defendant agreed that unless the ultimate amount held to be accounted for by the 1st defendant is less than or equal to HK$57,400, the 1st defendant should be liable for the plaintiff’s costs of the taking of accounts exercise.
42.As a result, I make a costs order nisi (to be made absolute within 14 days from the date hereof) that:
(a) The 1st defendant shall pay the plaintiff costs of the taking of accounts, with certificate for counsel, on a party and party basis, to be taxed if not agreed.
(b) The 2nd defendant shall pay the plaintiff costs of the taking of accounts, with certificate for counsel, on a party and party basis, from 26 April 2021 to 17 June 2021, to be taxed, if not agreed.
43.I thank counsel for their assistance.
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(Phoebe Man)
Master of the High Court |
Mr Alan Ng, instructed by Kwok, Ng & Chan, for the plaintiff
Mr Ryan Poon, instructed by T C Wong & Co., for the 1st and 2nd defendants
[1] Unreported, HCA 3523/2002, 13 August 2005
[2] Unreported, HCA 1641/2010, 31 October 2017
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