Keep Point Development Ltd. v. Chan Chi Yim and Others

HCMP006550C/1998

HCMP 6550/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6550 OF 1998

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Coram: Deputy High Court Judge Woolley in Court

Date of hearing: 22 January 2001

Date of ruling: 2 February 2001

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R U L I N G

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1. On 20 June 2000 I gave judgment for the defendants against the 2nd Third Party for damages to be assessed, and the costs of those third party proceedings. The parties now ask for clarification on a number of issues which were not adequately dealt with in that judgment.

Rental income/expenses

2. In my judgment I ordered that, in assessing damages against the 2nd Third Party, there should be deducted from the value of the units that the defendants had lost, sums which they had received from the 1st Third Party in respect of their agreements with the latter by way of compensation, rental reimbursements, and payments made upon cancellation of the agreements. Mr Lee now asks for clarification as to whether they should also be able to claim rental expenses after moving out of their units and unpaid rental reimbursements.

3. Neither of these was intended by the judgment. There was no claim for loss of rental income at trial, and if I allowed the unpaid rental reimbursements, I would in any event also order that they be deducted in the same way as those paid, so the two would balance out.

Removal expenses

4. In the same way I did not intend removal expenses to be claimed.

Stamp Duty payable on option agreements

5. It is certainly fair that those defendants who registered their option agreements, which precipitated these proceedings, should recover the stamp duty paid in so doing, although this was not made clear in the judgment.

Legal costs of D36 in other proceedings

6. In my judgment I awarded D32 the costs of her action, but appear to have overlooked the matter of the other defendant who brought proceedings against Full Country. As a matter of fairness it must be right that D36 also recover those costs. However, I agree with Mr Wong that there was insufficient opportunity at trial to investigate the costs, and I accordingly consider that the 2nd Third Party should be able to do so fully at the hearing of the assessment of damages with proper discovery as to how those costs were incurred.

Security deposit of D12

7. This defendant received a sum of $400,000.00 from Full Country as security for the agreement being completed. Mr Lee asks me to treat this in the same way as the loans to the other defendants and not order it to be deducted, as it may be repayable to Full Country.

8. I cannot agree with this. As it was security against completion of Full Country's commitments under the agreement, to be forfeited if they were not carried out, it must now be considered forfeited, and an outright payment, as Full Country cannot now complete the agreement. There is no possibility that it might be recovered as the loans.

Mortgage redemption of D15

9. This was in the nature of a payment to D15, albeit used to discharge their mortgage, and must be deducted in the same way as other payments.

Price difference paid to D32

10. Similarly, this was a sum paid to this defendant and must be deducted under the terms of my judgment.

Representation:

Mr Martin Lee, SC and Mr Jeremy Cheung, instructed by Messrs Joseph Li & Co., for the defendants

Mr Ronny Wong, SC, instructed by Messrs P C Woo & Co., for the 2nd Third Party