劉嘉熾 v. 要此廣告顧問有限公司

DCCJ827/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 827 OF 2005

BETWEEN

Coram:  H H Judge C B Chan in Court

Date of Hearing:  5 September 2005

Date of Delivery of Judgment:   5 September 2005

J U D G M E N T

1.This is an assessment of damages related to the loss suffered by the plaintiff arising from the defendant’s breach of a tenancy agreement for advertising space.  The advertising space is on a wall on the premises known as Fuk Hing Building, 180 Ma Tau Wai Road, Hung Hom, Kowloon. 

2.The tenancy agreement is adduced into evidence, produced by the plaintiff and marked Exhibit P1.  The plaintiff gave evidence to state that he relied on paragraph 8 of the tenancy agreement in relation to the damages sought.  Paragraph 8 stated in Chinese that:

“提前終止合約，租賃期間如乙方抵觸合約任何條款或甲方在本合約7(2)或除非得到雙方書面同意，否則雙方不得提前終止合約，否則，提早解約方須負責賠償對方六個月租金，即港幣一萬捌千元正作為賠償。”

3.The plaintiff stated that the reason why there was the liquidated damages clause in paragraph 8 of the tenancy agreement was because the wall advertising space needed to be restored to its original condition upon breach of the tenancy agreement by the defendant and it takes time to put up a scaffolding for this and restore the original advertisement on the wall.  Further, there is a cost involved in reinstatement.  He submitted a quotation for this in the sum of $9,500; hence, he agreed liquidated damages is a reasonable sum to compensates the plaintiff’s loss in the event of a breach of the agreed tenancy agreement by the defendant.

4.I find the plaintiff is entitled to the $18,000 liquidated damages claimed.  However, I note that in relation to the two months’ deposit paid by the tenant, there is no clause which provides for the forfeiture of the deposit upon breach of the tenancy agreement by the defendant.  The only circumstance stated in which the two months’ deposit could be forfeited is in clause 7(3).  This states that:

“乙方須於租約期滿後七天內清拆所有設施，否則甲方可沒收按金。”

And this states that should the defendant fail to reinstate the wall within 7 days after termination of the tenancy agreement, then the deposit would be forfeited. 

5.It seems that the situation herein is not a situation where paragraph 7(3) would apply.  In my view, therefore, there is no forfeiture clause that applies to the present situation.  I therefore deduct the two months’ deposit from the $18,000.  I give judgment to the plaintiff against the defendant in the sum of $12,000 together with interest thereon from date of writ to date of judgment at judgment rate and thereafter until payment at judgment rate and costs of the assessment be to the plaintiff assessed in the sum of $1,800 on a gross sum basis.

Representation:

Plaintiff, in person, present

Defendant, in person, absent