Hollywood Palace Co. Ltd. v. Nichio International Group Ltd.
Read the full judgment text of HCA 18460/1998 on BabelCite. This High Court CFI judgment was delivered on 9 December 2002.
1. The plaintiff was and is the registered owner and landlord of the premises known as Unit 1007, 10th Floor, Chinachem Golden Plaza, 77 Mody Road, Hong Kong ("the Premises"). By a lease dated 13 May 1998, the plaintiff let the Premises to the defendant for commercial purpose for 2 years from 1 March 1998 to 29 February 2000 at a monthly rent of $40,655.00 payable on the 1st day of each calendar month. The defendant was responsible for paying the rates, air-conditioning charges and management fe
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HCA018460/1998 HCA 18460/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 18460 OF 1998 ____________________
____________________ Coram: Master J. Wong in Court Date of Hearing: 20 September 2002 and 1 November 2002 Date of Handing Down: 9 December 2002 ___________________________ ASSESSMENT OF DAMAGES ___________________________ Background 1.The plaintiff was and is the registered owner and landlord of the premises known as Unit 1007, 10th Floor, Chinachem Golden Plaza, 77 Mody Road, Hong Kong ("the Premises"). By a lease dated 13 May 1998, the plaintiff let the Premises to the defendant for commercial purpose for 2 years from 1 March 1998 to 29 February 2000 at a monthly rent of $40,655.00 payable on the 1st day of each calendar month. The defendant was responsible for paying the rates, air-conditioning charges and management fees. There was a rental deposit paid under the tenancy in the sum of $136,497.00. 2.Time went on until the defendant failed to pay rent and rates from July 1998 and further unilaterally surrendered the lease by surrendering possession of the Premises to the plaintiff on 21 September 1998. By their solicitor's letter dated 20 October 1998, the plaintiff accepted the repudiation and reserved the rights to claim damages. 3.The proceedings herein were commenced on 31 October 1998 by the plaintiff against the defendant in respect of the aforesaid matter. On 19 May 1999, default judgment was obtained by the plaintiff against the defendant, including
The Assessment 4.Pursuant to 3(c) above, the plaintiff proceeded with its assessment of damages. The matter went on its usual course, including exchange of lists of documents, witnesses statements, and so forth. Messrs. Simon Ho & Co. were and still are the solicitors acting for the defendant on record. However, they were instructed not to appear in both the hearings before me on 20 September 2002 and 1 November 2002 to oppose the application. 5.The assessment of damages was therefore conducted only by Mr. Chong Tin Chun of Counsel, instructed by the plaintiff's solicitors. Having carefully considered the evidence adduced before me, including the testimonies of Mr. Tam Wai Koon and the valuation report by DTZ Debinham Tei Leung Ltd, on balance of probabilities, I am satisfied that the plaintiff had tried its best endeavours to re-let the Premises from 22 September 1998 to 29 February 2000 including putting up advertisements, asking the estate agents for assistance and lowering the asking price. However, because of the downturn of the economy and slump of the property market including that of the office, the Premises were left vacant throughout the remainder of the Lease. Nonetheless, the plaintiff did fulfil its duty of mitigation. 6.Save that I have altered the cut-off date to 20 October 1998, I allowed Mr. Choy's suggestion in full. Since the defendant's repudiation was accepted by the plaintiff on 20 October 1998, the legal position of the parties became crystallized on that date. All payment to be recovered by the plaintiff after that date would become damages. Anyway, practically speaking, it does not have any difference in terms of the amount of money. The plaintiff suffered the following damages as a result of the said repudiation on the part of the defendant:
7.There will also be interest for the plaintiff for the items 5(a) to (d) at the contractual rate of 3.5% per month from their respective due dates to the date of judgment, thereafter at judgment rate until payment. As to interest on items 5(e) to (h), interest shall carry at 13% per annum from the date of writ herein on 31 October 1998 until today, thereafter at judgment rate until payment. 8.Costs of the assessment of damages be to the plaintiff, with certificate for counsel for the hearings on 20 September 2002 and 1 November 2002.
Representation: Mr. T.C. Chong instructed by Messrs. Ford, Kwan & Co. for the Plaintiff. Messrs. Simon Ho & Co. for the Defendant being absent. |