The Incorporated Owners of Yan on Mansion v. Leung Yun and Another

DCCJ2223/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2223 OF 2004

BETWEEN

Coram:  Deputy District Judge S.T. Poon in Court

Date of Hearing: 13 July 2006

Date of Delivery of Judgment: 13 July 2006

J U D G M E N T

1.This is an assessment of mesne profit awarded under the judgment of her Honour Judge Yuen given on 17 August 2005.  Neither of the solicitors for the Defendants on record, Messrs T.C. Lau & Co., nor the Defendants themselves appear for today's hearing. 

2.I am informed by Mr Fung, solicitor representing the Plaintiff, that he has contacted Mr T.C. Lau this morning by phone but was told by Mr Lau that they have no instructions to appear this morning.  This is an utterly irresponsible attitude on the part of the Defendants' solicitors.  I regret that as officers of the court they do not even show the slightest respect by filing an application for ceasing to act or at least writing to indicate that they are not coming this morning.  In any event, the Plaintiff has filed Affirmations of Service for today's hearing and I am satisfied that Messrs T.C. Lau & Co. and the Defendants have had sufficient notice of today's hearing.

3.Mr Yau of the Plaintiff gave evidence that the subject premises, being a shop converted from public toilets located at the ground floor entrance of Yan On Mansion was repossessed by the Plaintiff from the Defendants on 16 December 2005.  Therefore, the period for the assessment is from 7 March 1998 to 16 December 2005, according to the judgment.

4.The Plaintiff submitted a valuation report of Mr Alex Chan, a chartered surveyor, giving opinion on the market rental values for every two-year period within the period for assessment.  Five comparables were given for each particular period.  In the opinion of Mr Chan, the market rental values of the premises in the period are, respectively, $25,000 for 1998, $29,900 for 2000, $18,600 for 2002 and $17,000 for 2004 onwards. 

5.Although I am satisfied that Mr Chan is a qualified person to give expert evidence in this field, I am of the view that Mr Chan failed to consider sufficiently the fact that the actual rent of the premises between the parties were $15,000 per month in 1996, which is a figure significantly lower than the market rent, as opined by Mr Chan, in 1998.

6.The overall mesne profit based on the opinion of Mr Chan amounts to $2,126,448.  Taking into account the above factor I mentioned, I will make a downward adjustment of 20 per cent to the overall amount, making it $1,701,152.  I note that this is an award higher than $1 million, which is the statutory limit of the jurisdiction of this court.  However, this case was transferred from the High Court by consent of the parties under section 44 of the District Court Ordinance, which confers jurisdiction of this court to hear and determine matters normally out of its jurisdiction because of the monetary limits.  I refer to the commentary in paragraph F3/44/1 of the Hong Kong Civil Procedure 2006, Vol. 2 where it is stated that unlimited monetary jurisdiction can therefore be conferred upon the District Court.

7.Accordingly, the mesne profit be assessed as $1,701,152.  Costs of the assessment of damages be to the plaintiff, to be taxed if not agreed.

Representation:

Mr Fung Kwok-ki of Messrs Fung & Fung, for the Plaintiff

1st Defendant, absent

2nd Defendant, absent