Wong Chun Kwong and Another v. Wong Hon Too and Others
Read the full judgment text of HCA 7353/1993 on BabelCite. This High Court CFI judgment was delivered on 13 March 1995.
1. This assessment of damages arises out of a judgment dated 8th September l993, against the third defendant, ordering vacant possession of the premises, and further ordering that the defendants pay the plaintiffs:-
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HCA007353/1993 1993, No.A7353 IN THE SUPREME COURT OF HONG KONG HIGH COURT ____________
____________ Coram: Master Cannon in Court Date of hearing: 22nd February 1995 Date of Assessment of Damages: 13 March 1995 ___________________________ ASSESSMENT OF DAMAGES ______________________ 1. This assessment of damages arises out of a judgment dated 8th September l993, against the third defendant, ordering vacant possession of the premises, and further ordering that the defendants pay the plaintiffs:-
2. Notice of appointment of assessment of damages was filed on 7th July, l994, with the date for assessment fixed for 29th September, l994. 3. By hearsay notice dated l7th September, l994, the plaintiff listed eight documents, including a valuation report of Francis Lau & Co. (Surveyors) Ltd.. No counter notice was filed by the third defendant. 4. Wong chung wong for the plaintiff gave evidence at the assessment of damages. The premises were delivered to the plaintiffs on l6th June, l994. After vacant possession had been given, the plaintiff arranged for the valuation report to be carried out in respect of the open market rental value of the property. 5. The third defendant Lai yu wai appeared in person at the assessment of damages on 29th September and cross examined the plaintiff. 6. At the resumed hearing on l3th December, l994, the third defendant was represented. At that hearing, the plaintiff made the following concessions:
At the resumed hearing on 22nd February, l995, counsel addressed the court. 7. With the concessions made by the plaintiff, the only issue between the parties was the construction of paragraph 2(b) of the judgment which reads "mesne profits at the rate of $53,000.00 per month from the lst of August l993 until vacant possession of the said premises is delivered up." The third defendant submitted that the terms of the judgment precluded the plaintiff from seeking damages for mesne profits on the basis of the open market rental value of $l06,000.00 per month from l/8/93 to 3l/l/94, and the open market rental value of $lll,000.00 per month from l/2/94 to l0/6/94, as set out in the valuation report. 8. Counsel for the plaintiff referred to Hill and Redman's Law of Landlord and Tenant at page A lll4, note 6, states:-
9. A reading of this case shows that in November l946, the plaintiffs brought an action claiming possession and mesne profits. The action was heard on 13th January, 1947, and Henn Collins J. gave judgment for possession forthwith and for mesne profits at the rate of GBP l50 a year up to date. A stay of execution pending appeal on the validity of the notice to quit was granted and the tenants did not give up possession. In May l947 the Court of Appeal affirmed the decision of the court below, and the plaintiffs brought an action for mesne profits. Denning J. in his judgment said:-
10. Counsel also referred to Malcolm Merry's Hong Kong Tenancy Law (2nd Ed.) at page l56 where it is noted that:-
11. While these excerpts, and the case referred to, provide some helpful guidelines for the assessment of damages in tenancy cases, they are not on the point taken by the third defendant that the form of the judgment is final and precludes an assessment of damages. 12. I accept the third defendant's submission on this issue. I am satisfied that the form of the judgment is final with the specific reference to the sum of $53,000.00 per month. This issue cannot now be re-visited as an assessment of damages. The form of judgment precludes any claim for damages based on the open market rental value from lst August, l993, until delivery up of vacant possession. 13. Counsel for the third defendant submitted that if I were to find against him on the form of the judgment, then damages should be assessed on the monthly rental provided for in the renewal clause. The renewal clause provides for a right of renewal for a further term of two years from the expiration of the term at a new monthly rental of $63,600.00 (exclusive of rates), on the giving notice in writing not more than six months or less than three months before the expiration of the term. Since I have accepted that this is a final judgment, it is not necessary for me to come to any conclusion on this second point. However, for the sake of completeness, if I were required to reach a conclusion on this point, I would take the view that the defendants had not exercised the right of renewal and were in fact illegally occupying the property, and on an assessment of damages the open market rental value would be the appropriate basis for such an assessment and not the monthly rental in the renewal clause. 14. In consequence of my findings, I am satisfied that the plaintiff is entitled to an award of damages in the following sums -
Accordingly, I make an award of damages in the sum of $59,748.70. 15. The sums due under the final judgment, minus the deposit held by the plaintiff, will need to be added to this award of damages in the sum of $59,748.70, as follows:-
16. Provided my arithmetic is accurate, the sum of $578,046.88 is owed by the defendant to the plaintiff under the judgment dated 8th September, l993. 17. Costs of the action have been provided for in the judgment, and I make a costs order nisi, to be made absolute in 2l days, under the provisions of Order 42 r.5B, providing that costs of the assessment be to the plaintiff.
Representation: Mr. C.K. Wong instructed by Messrs. Charles Yeung Clement Lam & Co. for the Plaintiffs Mr. W.K. Lo instructed by Messrs. Lam, Lee & Lai for the Defendants |