Cheung Wai Leung and Another v. Kung Ngai Cheung

DCCJ 1083/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1083 OF 2006

BETWEEN

Coram: Deputy District Judge Anthony Chow in Chambers (open to public)

Date of Hearing:  20^th July 2006

Date of Handing Down Judgment: 24^th July 2006

---------------------------------------

ASSESSMENT OF DAMAGES

---------------------------------------

1.This is a claim for damages for breach of contract in an aborted sale of a property.

2.The plaintiffs were at all material times the registered owners of Flat D, 40/F, Tower 8 Albany Cove, No. 1 Kin Tung Road, Caribbean Coast, Tung Chung, Lantau Island, New Territories, Hong Kong (the “Property”).

3.On or about 15/8/2005, the defendant and the plaintiffs entered into a provisional agreement of purchase and sale of the Property at the price of HK$2,838,000.00. Upon signing of the provisional agreement, the defendant paid an initial deposit of HK$141,900.00. On or about 30/8/2005, the parties entered into a formal sale and purchase agreement (the “Agreement”).

4.Completion was scheduled for 27/1/2006, however, the defendant failed to complete as scheduled. Pursuant to clause 12 of the Agreement, the deposit was forfeited.

5.To mitigate their damages, the plaintiffs immediately re-listed the Property with an estate agent for re-sale on the open market. On or about 4/2/2006, the Property was resold for $2,200,000.00. The resale transaction was completed on 8/4/2006.

6.The Plaintiffs claimed HK$532,772.00 as damages from the defendant.

7.On or about 21/3/2006, the Plaintiffs applied for summary judgment against the Defendants.

8.On or about 10/4/2006, Master Chan entered judgment against the defendant on liability and assessment of damages was adjourned to a date to be fixed.

9.On or about 25/4/2006, the plaintiffs hired Messrs. Ian Cullen & Associates, Chartered Surveyors – Valuers, to complete a valuation report of the Property. Although by comparison the property was valued at HK$2,290,000.00, because the difference was only 4%, Mr. Ian Cullen accepted HK$2,200,000.00 as the market value of the Property.

10.Prior to this hearing the plaintiffs amended their claim for damages to the following:

a. Damages representing the original sale price and the resale price, less deposit received from the defendant in the sum of HK$496,100.00;

b. Unpaid rates and rents from 28/1/2006 to 12/4/2006 in the sum of HK$1,021.00; and

c. Unpaid management fees from 28/1/2006 to 12/4/2006 in the sum of HK$3,000.00.

11.Having heard the testimony of Mr. Ian Cullen, I accept his explanation that HK$2,200,000.00 was the market price of the Property at the time of the resale.

12.The defendant being absent and having reviewed all of the documentary evidence submitted by the plaintiffs, I assess the plaintiffs’ damages at HK$500,121.00.

Order:

Miss Shannon Leung instructed by M/s Kong & Chang for the Plaintiffs.

The Defendant, unrepresented, absent.