Hang Tak Co Ltd v. Chu Ying Lun and Others

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1493 OF 1964

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Coram: J.R. Oliver, Deputy Registrar, Supreme Court, in Chambers.

Date of Judgment: 21st January, 1970

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ASSESSMENT OF DAMAGES

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1.Mr. Justice Blair-Kerr in his judgment of the 17th of July, 1965 has referred the assessment of the second head of damages in this action to me. I have been asked to assess what consequential damages (if any) the Plaintiffs have suffered as a result of the unlawful holding over by the Defendants at 184, Queen's Road Central from the end of November, 1964 to June, 1965.

2.The exact location of these premises is right at the end of Queen's Road Central. It would be fair to say that this places the premises on the perimeter of the area known as the Central District of Hong Kong.

3.The declaration asked for in the terms of paragraph 13 of the amended Statement of Claim reads:-

"DECLARATION

The Plaintiffs have suffered damage and continue to suffer damage as a result of the wrongful holding over of the said Defendants and/or the said company.

PARTICULARS OF DAMAGE

Damages resulting from relay in commencing and effecting the re-development of Nos. 184, 184A, 186, 188, 190 and 192 Queen's Road, Central, namely:-

(a) Any fine premium or penalty which may be imposed by the Hong Kong Government.

(b) Loss of rents and profits from the buildings to be constructed on the above said properties at $73,193.00 per month?"

4.The declaration actually made in the judgment was in slightly different terms - I reproduce what is set out at the top of page 13 of the Judgment:-

"I therefore declare that the first, second and third Defendants are liable in respect of breach of covenant and wrongful holding over to pay to the Plaintiffs such damages as may be assessed by the Registrar upon completion of the new building."

5.Although the point was not taken, it may have been open to me to refuse to hear the reference as the building which Mr. Justice Blair-Kerr had in mind when he made the declaration in 1965 was a 16 storey skyscraper which was to be erected in the manner described in evidence. In fact these plans were scraped and a 24 storey building was built in its place and instead of it being finished in July 1966 it was not ready for occupation until October 1968.

6.Having heard the evidence and listened to counsel for 4 days, I propose to do my best to assess damages. I do so, however with some misgiving. It may well be that a strict interpretation of the declaration which Mr. Justice Blair-Kerr made restricts the reference to a 16 storey building, and as it was not built, it is not open to me to assess damages now that a different building has been erected.

7.I do have some authority on the point that I am free to give a wider interpretation to the reference by paragraph 995 of Mayne & McGregor on Damages XII^th Edition.

" (1) Province of judge and jury: law and fact

Where an action is heard by a judge and jury, it is a general rule that matters of law are for the judge and matters of fact for the jury. This rule applies equally to the issue of damages: the only difficulty lies in ascertaining when an issue of damages presents a question of law and when a question of fact.

The matter has received most attention in relation to remoteness of damage. For a long time the question of remoteness was regarded, according to the prevailing dicta, as a question of law. Later it was suggested that the question of remoteness was one of fact. This apparent conflict was neatly resolved by McNair J. in Mehmet Dogan Bey v. Abdeni⁽¹⁾ where he laid down an all-embracing rule. He said:

"It is the function-of the judge to direct the jury as to the meaning of the terms 'natural and direct consequences' or 'reasonably foreseeable consequences' and whether a particular head of damage is capable in law of being a consequence falling within these phrases, and to direct them whether there is any evidence that a particular consequence is a consequence falling within these phrases; it is then for the jury to find as a fact whether a particular head of damage is such a consequence and the jury's conclusion on that point (subject to there being evidence to support it) is final"⁽²⁾

He added that in his opinion the matter had been so treated in Weld-Blundell v. Stephens⁽³⁾ and that his view was in accord with Devlin J. 's judgment in Royal Greek Government v. Minister of Transport ⁽⁴⁾.

It would seem that other issues in relation to damages should be treated in the same way. Thus while both Bankes and Scrutton L.JJs. said in Paysu v. Saunders⁽⁵⁾ that the question of mitigation of damage is a question of fact, it is clear that they were referring to the question of whether a plaintiff under an admitted duty to mitigate his loss, has satisfied that duty⁽⁶⁾. But whether the circumstances are such as to give rise to a duty to mitigate must surely be a question of law".

8.I interpret my position as that of an assessor who has been directed by a judge that the wrongful holding over was capable of giving rise to a claim for damages, and it is now for me as assessor to find as a fact whether particular heads of damage have in fact arisen and further what damage has been suffered.

9.A similar division of responsibility can also be made in the case of mitigation of loss and remoteness of damage.

10.Indeed the circumstances which govern both the contingencies of remoteness and mitigation cannot in many cases be seen, or if seen cannot be appreciated to their full extent until after an adjudication has been made on the question of liability.

11.I understand that in assessing the loss of the Plaintiffs I should take into consideration any steps by way of mitigation of loss which I feel the Plaintiffs should reasonably have taken and secondly if damage has been occasioned which was not foreseeable and which is thereof too remote, then I should not take that into consideration.

12.By the same taken, if collateral steps are taken to mitigate loss then a question of fact also arises as to whether the end result mitigates the loss or is too collateral to it thus giving rise to a res inter alios acta.

13.In approaching my task it is also necessary that I should make a finding of fact based upon the evidence of what has happened in the years which have passed since the reference was made especially on the vital question of whether damages should be assessed on the loss of rent or the loss (if any) suffered by the Plaintiffs as a result of a six months delay in their being able to sell off the16 storey building unit by unit.

14.The declaration for consequential damage given by the Judge was clearly given on the evidence led before him that the premises to be erected would be 16 storeys in height and he was further told that they would be LET OUT in their entirety.

15.The now 24 storey building became ready for occupation in October 1968.

16.Units in the new building have been partially rented out and partially sold off. Out of 97 units 32 units have been sold and 23 units have been rented out: Of the 23 rented out 9 have been rented to a firm in which the Plaintiffs' company is substantially interested. 42 units have neither been rented nor sold.

17.Most of these sales and lettings took place in the latter part of 1969 and it is true to say that for most of the time since the premises were ready for occupation they have been empty.

18.The impact of the bank run which started on the 9th of February, 1965 was known to Mr. Justice Blair-Kerr when he made the declaration but it had not made itself fully felt upon the world of real estate at the time judgment was given on the 17th of July, 1965.

19.To compound my difficulties the Plaintiffs' principal witness at the hearing before Mr. Justice Blair-Kerr, who was also the principal at the hearing before me, was less than truthful in informing the trial judge of his companies' intentions. This witness Mr. Chen Tsang Hsi said:-

(1)	That 100% occupancy could be assured when the building was completed in July 1966. With the advantage now at hand of hindsight this statement must be accepted as being recklessly optimistic.
(2)	That the Plaintiffs intended to rent out the whole building. Evidence before me, and indeed the sales in the new building do not bear this out. The evidence shows that the Plaintiffs are more interested in selling than in letting.
(3)	That the building could be rented out at the prices set out by Mr. Justice Blair-Kerr in his judgment and that prices would not drop for the next 12 months. Hindsight again shows that such evidence was reckless.

20.Before I turn to summarizing the arguments of counsel I will tabulate the relevant dates and events important to this action to which I will have to refer from time to time. Spread out as these events are over 10 years it will be of assistance to all (certainly to myself) if I first make this summary before I deal further with the facts.

21.The Plaintiffs' leading counsel in opening the case for his clients invited me to assess the damages which he considered his clients were entitled to receive upon the following basis:-

22.He first contended that had vacant possession been surrendered on the 30th of November 1964 the 16 storey building would have been ready to receive tenants in July 1966.

23.Evidence was given, to which I will refer in greater detail later, that rental values would by July, 1966 have come down to a figure of approximately 45% from the market figure which existed at the date of judgment.

24.Indeed it was suggested that the calculations which the Plaintiffs had made and which were accepted by Mr. Justice Blair-Kerr at page 12 of his judgment would need to be recalculated and Mr. Cheung suggested figures and called an expert witness, Mr. de Ville, who gave evidence to the effect that I should take the sums of $4.50; $1.20; $1.20; and $1.20 instead of the figures $10.00; $2.00; $2.00 and $2.00 given to Mr. Justice Blair-Kerr.

25.If these figures are summarised the following comparison is shown:-

26.All these figures are based upon 100% occupancy and I will deal with this very important point at greater length later.

27.Mr. Cheung pointed out with some vigour that his clients were not claiming damages from the decrease in rentals which had occurred as a result of the Bank run or the Communist confrontation in 1967 as these losses clearly did not directly flow from the wrongful holding over.

28.Furthermore he made it quite clear that no claim was being put forward for figures based on the new scheme of a 24 storey building.

29.The damages which Mr. Cheung suggested I should find are therefore six months rent at $40,477.00 per month, save that occupancy was now placed at 95% and not 100%. In all this would make a claim of almost $231,000.

30.Mr. Cheung cited a number of legal authorities to support his clients' case.

They were:-

Henderson v. Squire.⁽¹⁾

Clifton Securities Ltd. v. Huntley & Others.⁽²⁾

31.Mr. Cheung quite correctly pointed out that the Defendants by their failure to give up possession of the premises in addition to being in breach of contract committed a trespass in respect of the time for which they wrongfully held over and on the ordinary principles of tort they are liable in damages for what they ought reasonably to have foreseen would be the consequence of their wrongful act.

32.He also referred to Mayne & McGregor on Damages XIIth Edition Paragraph 162. This passage deals with the proposition that there is no recovery for loss which the Plaintiff has avoided, unless the matter is collateral. It was Mr. Cheung's case that as the erection of the 24 storey building owed its genesis to the drop in market prices occasioned by the bank run and not to the wrongful holding over, the mitigation effected by the erection of a larger and a more profitable building was res inter alios acta. As the profit would be collateral to the wrongful act, the Defendants could not plead the advantage which flowed from a better investment to absolve them from their reponsibility to pay damages due and arising out of their wrongful act.

33.In particular, he cited the final part of paragraph 162:-

"Viscount Haldane's formulation of this rule, with its reference to steps taken in the ordinary course of business, is geared to contract rather than to tort: this is understandable since British Westinghouse Co. v. Underground Ry.⁽¹⁾ was a case of breach of contract. A wider formulation, which more readily includes tort, is that matter completely collateral and merely res inter alios acta cannot be used in mitigation of damage. (This expression was praised by Lord Reid in B.T.C. v. Gourley⁽²⁾). This has the great merit of stating the rule at once concisely and completely; but it gives no indication of how the rule operates and of what solutions would be reached when applying it to particular circumstances. Indeed the line between those avoided consequences which are collateral and those which are not is an exceedingly difficult one to draw."

34.The Plaintiffs called only two witnesses: Mr. Chen Tsang Hsi, a director of the Plaintiffs' company, and Mr. M.I. de Ville, F.R.I.C.S. and a Fellow of the Institute of Arbitrators who gave expert evidence on the subject of values.

35.Mr. Chen gave evidence that units in the new building had either been sold or let out to tenants. Full details are set out below in the form of the particulars tendered in evidence by Mr. Chen as Ex. P.2, and which I now reproduce in tabular form.

HING LUNG HOUSE     QUEEN'S ROAD, C., H.K.                        EXHIBIT NO.   P2.

36.Mr. Chen also said that he was a director of many companies which had developed sites and that in 90% of all cases the companies had sold off the ...(illegible) to individual buyers.

37.The years have shown that very little of what Mr. Chen old Mr. Justice Blair-Kerr has proved to be exact or truthful and having listened to his evidence for two days, I am not prepared to attach great weight to propositions advanced by him unless they are supported by independent testimony of proven worth.

38.The evidence of intention which Mr. Chen gave of the renting out of units can of course, as has happened in this case, be conveniently dropped once the case is over without persons like Mr. Chen being obliged to make any great personal sacrifice at the altar of truth.

39.Time is the witness in this case to corroborate that whilst the evidence which Mr. Chen gave to Mr. Justice Blair-Kerr of his intention to rent these premises out many have been true in form it was not so in substance and I find as a fact that in so far as it might be possible and commercially viable to sell units, then that was the intention of the Plaintiffs whether the building to be constructed was 16 storeys or 24 storeys. I also find as a fact that if any renting was to be done this would only take place as an operandi desperandum. Mr. Chen's omission to inform Mr. Justice Blair-Kerr that his company had 3 months before the trial submitted plans for a different building altogether of 24 storeys is a particularly sinister feature of this case, and the act of concealment from the Court was cynically dishonest.

40.The Plaintiffs chose before me to base their claim upon the damages which they say they have suffered by their being deprived of rents for six months.

41.I disbelieve the evidence given by Mr. Chen both before Mr. Justice Blair-Kerr and myself that it was the Plaintiffs' intention to rent out the premises which they contemplated building at the time the declaration was made.

42.That being so, what damages have the Plaintiffs suffered by the six month wrongful holding over of the Defendants?

43.This now takes me on to the Defendants' case which was devoted to establishing:-

(i)	that the Plaintiffs by erecting a 24 storey skyscraper instead of a 16 storey skyscraper have mitigated their loss to such a degree that if all the units are sold at present day prices, there will be no loss at all.
(ii)	that all the evidence before me points to the fact that in contradiction to what Mr. Chen Tsang Hsi told Mr. Justice Blair-Kerr it was not the intention of this company to rent out premises at all but to sell them unit by unit; and
(iii)	that all the evidence before me points to the fact that if the premises were rented out in 1966 the figures of occupation by tenants would have been much lower than 100% or 95%.

44.The Defendants called two witnesses:-

(1)	Mr. Cheng Yan Tak, a clerk from the Tenancy Tribunal who produced the official file of Exemption Proceedings applications HE 111 and 123 of 1963 in respect of the premises in question; and
(2)	Mr. F.P. Roe, a building surveyor.

45.There is one feature of this case that is not open to argument: The Defendants wrongfully held over. They caused the Plaintiffs a twofold wrong. First in relation to the premises they occupied and secondly and consequentially in relation to the scheme which their wrongful holding over put into balk.

46.As Mr. Zimmern has said damages have already been awarded and paid for the first wrongful act.

47.The second wrong can only give rise, other than nominal damages, if a loss can be proved. This is so whether the cause of action is framed in contract or tort.

48.On the question of res inter alios acta, I have to ask myself did the Plaintiffs decide to build the 24 storey building as a result of the wrongful holding over or as a result of some other reason such as the bank run. The Plaintiffs say the bank run. The Defendants suggest that the intention was there before the bank run started and that if any decision was consciously made to alter the plans, it was triggered off by the wrongful holding over.

49.In making a finding on this point I am thrown back on the evidence of Mr. Chen and elusive as he was in coming to the point on any question put to him, I find as a fact that the Plaintiffs, as so frequently happens in the would of real estate were and are at all times opportunists. The minds of the Plaintiffs at the end of 1964 and the beginning of 1965 were open to be conditioned by the ebb and flow of events.

50.One would have been the wrongful holding over, a second would have been the bank run, a third the possible relaxation in the restrictions of the Buildings Ordinance, and I have no doubt that a fourth was that wave of optimism which at all times moves so strongly in the breasts of developers to reap the maximum profit obtainable from a site freed from the provisions of the Landlord and Tenant Ordinance.

51.The dividing line which separates the reason which prompted the decision to build the 24 storey building is now so blurred by the events of late 1964 and early 1965 that I hold that the birth of the idea to change the plans cannot be laid entirely on one event and certainly not fairly and squarely on the Defendants wrongful holding over.

52.I am satisfied, though my mind is not entirely free of doubt, that the erection of a 24 storey building instead of a 16 storey building is a case of res inter alios acta and for this reason I reject the submission made by Mr. Zimmern on this leg that as a greater profit will accrue to the Plaintiffs from this building than from a 16 storey building, the end result is that his clients are absolved from paying damages.

53.In seeking to distinguish the British Westinghouse⁽¹⁾, the Wertheim v. Chicoutimi⁽²⁾ and the Erie County Natural Gas & Fuel Co. & others⁽³⁾ cases which Mr. Zimmern has cited to me to support the contrary view, I can only say that in each of the three cases cited the profit which gave rise to the mitigation sprang in each case more directly from the wrongful acts proved than is the case on the facts before me today.

54.Before I move on to any calculation of figures I propose to make the following findings of fact.

(i)	I first hold that if the res inter alios acta in the shape of the 24 storey building had not intervened a 16 storey building would have been built by July, 1966:
(ii)	I find that in July, 1966 there was a buyer's market in the shop and office world of real estate.
(iii)	I find that the Plaintiffs were in 1966 in a sound financial position and would like so many other property developers of affluence have left most of the building empty. Corroboration is given to this assumption by reason of the fact that the 24 storey building has been left empty for so long.
(iv)	I find that part of the building would have been rented out on short term leases simply so that a total loss could in some measure be mitigated by rents received until the price of units rose again in the market.
(v)	I find that even in 1966 the renting of shops and offices was difficult and the market was very much (if such an expression can be used for tenancies) a buyer's market.
(vi)	I find that this opportunity to rent out has been lost to the Plaintiffs for the six months which passed whilst the Defendants held over.

55.At this stage of my reasoning it can still be argued on behalf of the Plaintiffs (1) that their clients are still out of pocket (2) that it is partly as a consequence of the Defendants wrongful holding over that this consequential damage has been occasioned, and (3) that they still hold a declaration that I assess the damages which have been occasioned.

56.Now I must consider the loss which the Plaintiffs have suffered or are likely to suffer by a six months delay in being unable to sell off the units in a new 16 storey building (if it had been built).

57.The measure of damages is prima facie to be ascertained by the difference between the market price of the units at the time they ought to have been sold (July 1966) and the price which will be received when they are sold or will be sold later.

58.Here at last the quicksands of speculation do give way to solid facts upon which I can work - namely the evidence contained in Tenancy Tribunal File HE 111-123 of 1963, in the Report of the Commissioner of Rating and Valuation, in the evidence of Mr. de Ville and of Mr. Chen.

59.At the Tenancy Tribunal hearing, (1) Mr. Thomas Tsang-Tso Chen, a Director of the Plaintiff company said:-

(a) The premises 184/184A Queen's Road Central had been purchased on the 1st of February 1963 for:-

(b) Numbers 186/188/190 and 192 Queen's Road central were purchased on the 2nd of January 1963 for:-

(c) The estimated cost of the new building of 16 storeys was:-

(ii) The Tenancy Tribunal awarded compensation of:-

(iii) These figures amount to:-

60.At the time the premises were exempted the Plaintiff company had according to Mr. Thomas Tseng-Tso Chen the sum of $516,210.84 in their current account with the Hang Song Bank.

61.If I were to assume that they had to borrow $700,000.00 for 18 months to complete the scheme the interest at a market rate of 1.2% per month (which at that time was approximately the market rate) would have come to:-

$151,200.00

62.Finally, I propose to add a further sum of $100,000 for architect fees, legal expenses, etc.

$100,000.00

63.In all therefore I estimate the total cost of the scheme at:-

$3,136,434.00

==========

64.In his evidence in chief Mr. do Ville said that he had compiled an estimate of what would have been a reasonable sale price for units in a 16 storey building in January 1965 if construction had commenced at that time.

65.I reproduce what he said in this regard verbatim:-

"Q. And what did you estimate then would have been a fair sale price in January 1965 for ground floor shops in that neighbourhood?

A. $700 per sq. ft.

Q. And on the basis of the area for the ground floor under the old scheme, what was the total sale price which could have been achieved in January 1965?

A. $1,603,000.

Q. Now, did you form an estimate of the sale price for the upper storey office accommodation?

A. Yes.

Q. In January 1965 for the building?

A. $200 per sq. ft.

Q. And the total sale price?

A. $5,028,600."

66.These two figures amount to:-

$6,631,600.00

67.This would mean that if my cost figure of $3,136,434.00 is taken as reasonably accurate, the overall profit on the 16 storey building would have worked out at over $3,000,000.00.

68.Mr. de Ville was then asked what similar units would sell for in July, 1969.

69.He said the shops would sell for half the figure of the January 1965 valuation, that is to say:

$812,950

70.He went on to value the office accommodation in July 1969 at $120.00 a square foot as opposed to the January 1965 valuation of $200.00 a square foot. This gives a sum of:-

$3,017,160.00

The two figures taken together amount to:-

$3,830,110.00

71.It is significant that on these notional figures taken as at July 1969 there would still be a profit on the 16 storey building of just under 700,000.00.

72.In comparing the sale price in 1969 with that in previous years Mr. de Ville said earlier on in his evidence that these figures had been prepared by him in a report which he had prepared, as I understood it, on the 3rd of July, 1969.

73.Finally to get the comparison of pries between the period January, 1965 and now into perspective, I reproduce the last two questions asked of Mr. de Ville in examination in chief and the first two in cross examination.

"Q. Now, in February 1965 was the Bank Run, and did prices for the purchase and sale of this type of accommodation drop thereafter.

A. Well, all property deals deteriorated. In fact, there was a sort of standstill, and people couldn't have funds and they tailed off.

Q. So January '65 was a sort of peak for prices.

A. Yes, you've come to that. We had a sort of starting building up again from there and then it dropped.

XXN. BY MR. ZIMEERN:

Q. Mr. de Ville, would you say prices are better today than it was in January 1965?

A. I would not say better, but as good as.

Q. As good as.

A. Today, we are talking about this very month?

Q. This very moment.

A. Yes.

Q. Have you any personal experience of that area at all?

A. To be quite frank, no."

74.I have set out details of the evidence given of the values as at January, 1965 and for 1969 but what of the values for July 1966.

75.Mr. de Ville estimated ground floor rentals in mid 1966 at $4.50 a square foot per month exclusive of rates; and the upper floor office accommodation at $1.20 a square foot per month exclusive of rates.

76.He backed up his estimate by reference to the Annual General Reports of the Director of Rating and Valuation for the years 1965/66 and 1966/67 which were put in evidence by him as exhibits. These Reports said that the prices which had risen to a then all time peak in January 1965 had after the bank run fallen away and that in the case of shops the demand generally was not very good and a number of shops in the Central District remained vacant for most of the year.

77.In the case of offices the large amount of new office accommodation being developed in the center of Victoria seemed likely to result in a surplus and rents appeared to have passed their peak.

78.The decentralization of offices, despite the comparatively small size of Hong Kong, appeared to be very difficult to achieve and only in times of a shortage of space in Central Victoria did firms seem inclined to move out.

79.During the year 1965/66 office accommodation became available in the Central district in Prince's Building, International Building and in the year 1966/67 office accommodation became available in Realty Building, New Henry House, the Hong Kong Chinese Bank Building, the China Underwriters Life Building, Che Sang Building, Canton House, Lok Yew Building, Wang Kee Building, and a number of others along Queen's Road Central and Des Voeux Road Central.

80.Towards the end of his evidence Mr. de Ville said that he thought that a selling figure of $200.00 per square foot for office accommodation in July 1966 was exaggerated and that the figure should be $150.00 per square foot. Mr. de Ville was not pressed to give a valuation for shop premises in July 1966 but in view of the fact that he reduced the office figure by 25% it must be presumed that shop premises would also see a reduction.

81.In any event I think the July 1965 sale prices which Mr. de Ville gave of $150.00 per square foot for office accommodation and by implication a lower figure then his 1965 figure for shop premises are grossly inflated. On his own admission he was not in Hong Kong at that time and he did not personally know the area of these premises. I found him a most unconvincing witness.

82.It is quite apparent that at July 1966 there would not only her have been a shortage of office premises in the central district but a glut. As the premises, the subject matter of this assessment, are right out on the perimeter of the central district I hold as a fact that to sell units in a 16 storey building at that time whether as offices or as shops, it would have been necessary to compete with all the buildings which I have just mentioned, all of which were more central than these premises.

83.I further old as a fact that had the 16 storey building been ready for selling off in units in July, 1966, they could only have been sold at "give away" prices.

84.It is true that the Plaintiffs could have mitigated their loss by renting out parts of the premises but this again could, in relation to the competition they were experiencing, only have been done once again at give away prices.

85.The Plaintiffs have by the Defendants wrongful holding over been deprived of the opportunity to receive this rental income (whatever it might have been) for six months.

86.If circumstances had been different, it might have been necessary for me to make an assessment of the 6 months rent the Plaintiffs would have lost had they been able to rent out units in the building. This would have posed some difficulty because I would have had to make a finding on what portion of the building would at that time have been let out and what rent would have been received.

87.However, I have found as a fact that any letting would only have been an operandi desperandum and that the Plaintiffs would with a 16 storey building have done what they have now done with their 24 storey that is to say waited until not only a seller's market appeared but a good seller's market.

88.The figures given by Mr. Chen showing the sale price of units in the new 24 storey building indicate that since the first unit was sold prices have hardened and continue to go up.

89.Any loss which the Plaintiffs have experienced by the loss of rents (which I have already held would only have been on a temporary basis) is entirely offset by the undoubted gain they must make on the sale of the units at current day prices or on higher prioes as the market hardens when weighed against July 1966 prices which I have already held must have been well below the figures which Mr. de Ville gave of $150.00 a square foot for office premises with the price of shops correspondingly down as well.

90.In his final submission Mr. Cheung suggested that if I accepted that the measure of damages had to be assessed on any loss sustained in selling units I should take into consideration the investment loss occasioned by the scheme being held up for six months by the Defendants' wrongful act.

91.Whatever merit there is in this suggestion is again met by the fact that whilst a wrong has been occasioned and some loss sustained that loss is wholly offset by the undoubted profit which the Plaintiffs must have or will succeed in making by selling off units in the new building (i.e. a 16 storey building had it been built).

92.I find in this case that the Plaintiffs have suffered no loss. They have, however, been wronged. They are entitled to damage for this, but as no loss has been sustained, the damages can only be assessed at a nominal amount and this I now do and so certify in the sum of $1.00.

(1) Mehmet Dogan Bey v. Abdeni [1951] 2 K.B. 405.

(2) Ibid. 411.

(3) Weld-Blundell v. Stephens [1920] A.C. 956.

(4) Royal Greek Government v. Minister of Transport (1950) 83 Li. L.R. 228; see 236-237.

(5) Paysu v. Saunders [1919] 2 K.B. 581, 588, 589 (C.A.), respectively. See too British Westinghouse Co. v. Underground Ry. [1912] A.C. 673, the leading case on mitigation, where Viscount Haldane L.C. declared that "the quantum of damage is a question of fact": ibid 688.

(6) Bankes L.J. talked of " the question what is reasonable for a person to do in mitigation of his damages": [1919] 2 K.B. 581, 588 (C.A.)

(1) Chenderson v. Squire 1868-69. LR. Vol. IV Q.B. Cases page 170.

(2) Clifton Securities Ltd. v. Huntley & Others 1948 2 AER 283.

(1) British Westinghouse Co. v. Underground Rly. (1912) A.C. 673.

(1) British Westinghouse Co. v. Underground Rly. 1912, A.C. 673.

(2) B.T.C. v. Gourley (1956) A.C. 185, 214.

(2) Wertheim v. Chicoutimi Pulp Co. 1911 A.C. 301.

(3) Erie County Natural Gas Co. Ltd. v. S.S. Carroll & Another 1911, A.C. 105.