Golden Place Investments Ltd v. Dragon Leading Investment Ltd and Another

HCA002676/2003

HCA 2676/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2676 OF 2003

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Coram: Deputy High Court Judge Saunders in Court

Dates of Hearing: 28 June 2004

Date of Judgment: 28 June 2004

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J U D G M E N T

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1.The Plaintiff (Golden Place) is the owner of part of a commercial building at Fortress Tower, 250 King's Road, Hong Kong. The 2nd Defendant (Fortune Club) is the occupier of the 2nd floor of the building where it carries on the business of a restaurant. Golden Place, as owner of part of the building, has the rights to advertising signage on the ground floor, the canopy and the external walls of the building.

2.On or about 19 June 2003, Fortune Club, without the consent of Golden Place or any other consent at all, placed a total of 8 signs at the canopy of the building and on the external walls. Golden Place brought proceedings seeking a declaration that Fortune Club was in breach of the Deed of the Mutual Covenant and had trespassed on Golden Place's property.

3.By consent, declarations in those terms were made on 17 May 2004, and the matter adjourned for the assessment of damages.

4.The normal measure of damages in a case of trespass is the market rental value of the property occupied or used for the period of wrongful occupation or use: see McGregor on Damages 17th ed. Paragraph 34-041. There is no suggestion that there has been any physical damage or injury to Golden Place's property, other than that its rights have been breached by the placement of the signs without consent.

5.Golden Place seeks damages at the rate of $1,500 per day from 19 June 2003 to 15 May 2004, when the declarations were made. In support of the claim for damages a surveyor's report has been put before me setting out an assessment of what would be charged by way of monthly rental for each of the 8 signs. The surveyor's report merely sets out the location of each sign and assesses a sum for monthly rental. The surveyor does not give any indication of the basis upon which he has arrived at these sums.

6.The usual method of valuation of real estate, whether it be rental real estate or capital purchase, is by way of comparison with other rentals or purchase prices of similar property in the same or similar locations. When such comparables are provided by a valuer, the recipient of the valuation, be it a private client or a court, can see the basis upon which the valuation is made and make an assessment of the opinion given. In this case there is no evidence of comparables at all. It is also the normal practice when expert evidence has been called and presented to the court, for the basis of the expertise of the maker of the opinion, to be put before the court in order that the court can assess whether or not the person giving the opinion should be allowed to give opinion evidence. No basis of the expertise of the surveyor is given.

7.Ms Leung, for the Plaintiff recognised these difficulties, but did not seek an adjournment to deal with the matter,, and was content for me to deal with the issue on the basis of the evidence as is stood.

8.In the complete absence of any evidence as to comparable I am not willing to place full weight on the opinion of the surveyor, in the sense that I would otherwise have accepted his opinion had a proper basis being provided.

9.Doing the best I can, and having regard to all of the evidence before me as to the nature of the signs and the photographs of them, in the circumstances I fixed damages in respect of the 8 signs at a sum of $1,000 per day, a total of $30,000 per month for the 11 month-period.

10.The damages fixed therefore amount to $330,000.00 The plaintiff will have judgment for that sum together with costs to be taxed on the party and party basis.

Representation:

Ms Pauline Leung, instructed by Messrs Chan & Cheng, for the Plaintiff

Mr Wong Yiu Kwong, of Messrs Francis Kong & Peter Lau, for the 2nd Defendant

2nd Defendant, absent