Crown Motors Ltd v. Li Tak Yin

DCCJ5427/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5427 OF 2006

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BETWEEN

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Coram : H H Judge Leung (in Court)

Date of Hearing : 23 July 2007

Date of Judgment : 23 July 2007

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J U D G M E N T

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1.The Plaintiff was and is a company carrying on the business of, amongst others, providing repair and maintenance service for motor vehicles exclusively distributed by the Plaintiff in Hong Kong.  In this action, the Plaintiff claims against the Defendant for HK$93,000 being charges for storing the Defendant’s private car which was deposited with the Plaintiff in January 2006.

2.Default judgment was entered against the Defendant on 12 January 2007.  According to the pleading, this is a claim for liquidated sum of damages.  However, there is absence of pleading of any contractual basis for the claim.  Therefore, judgment was only entered for damages to be assessed.  As made clear at the beginning of the hearing, the Plaintiff is not claiming any amount in excess of the pleaded sum.

3.The Defendant did not appear at the last hearing of the notice of appointment for assessment or at this hearing.  The affirmation of service filed by the solicitors for the Plaintiff confirms that previous directions and notice of this hearing as well as the relevant documents have been served on the Defendant at her last known address.  I see no reason for preventing the Plaintiff from proceeding with proving its case today. 

4.The background of this case was as follows.  On 13 January 2006, the Defendant’s private car was arranged to be towed to the Plaintiff’s service centre for repair.  The Plaintiff was supposed to contact a person surnamed Cheung whose mobile telephone number was given for such purpose.  On the same day, the Plaintiff’s staff at the service centre telephoned Cheung and explained the towing fee and inspection fee to be charged.  It was explained that an estimate of the repair charges would be provided to Cheung after the inspection.  Cheung confirmed the instruction to proceed with the inspection.

5.On 17 January 2006, the Plaintiff informed Cheung on the telephone of the estimated repair charges.  Cheung suggested that he needed to contact the owner of the car, who subsequently transpired to be the Defendant, before confirming the instruction to repair.  However, nothing further has been heard from Cheung since then, despite repeated telephone calls and voice messages made and left by the Plaintiff’s staff.  It transpired later that even the telephone number of Cheung given to the Plaintiff ceased to be in use.

6.The Plaintiff had its own record of the Defendant being the owner of the private car.  Therefore, by letter dated 22 February 2006, the Plaintiff urged the Defendant to confirm instruction.  The Defendant was also reminded that the Plaintiff would commence charging storage charges from 27 February 2006.

7.On 24 February 2006, the Plaintiff’s service manager, Mr Chan, personally attended the address of the Defendant.  He did not manage to meet the Defendant but the caretaker confirmed to Mr Chan that that was the Defendant’s residence.  Mr Chan left a business card at the main door of the address as well as a message with the caretaker about his purpose of calling.

8.Further letters were sent by the Plaintiff to the defendant.  In October 2006, the Plaintiff sent a demand letter through its solicitors to the Defendant.  There remained to be no reply from the Defendant.  The present action was commenced.

9.Mr Chan of the Plaintiff gave evidence today and confirmed the above background.  The documentary evidence shows that the Defendant’s licence has not been renewed and therefore registration was cancelled in 2004.  However, the Defendant has been the registered owner of the private car in question since 10 May 2001 and no change since then has been recorded by the Transport Department.

10.Miss Chang appearing for the Plaintiff today referred me to the reply by the Commissioner for Transport dated 14 June 2006 to the Plaintiff’s search.  The particulars of the owner remained those of the Defendant.  The Plaintiff therefore based its claim on that the Defendant remained to be the apparent owner of the private car in question.  In the absence of the Defendant’s appearance, I was asked to find that as a fact, and I do so.

11.The issue of storage charges was first raised in the Plaintiff’s letter to the Defendant in February 2006.  This was said to be the company policy but was in fact pursuant to clause 3 of the standard terms and conditions of the repair contract, a copy of which has been disclosed.  However, there was no signed repair contract in this case. 

12.Further, the issue of storage charges was raised after the last oral communication between the Plaintiff’s staff and Cheung.  During this last communication, confirmation to repair was yet to be made.  The fact was no confirmation has been made.  The effect was that there was no contractual basis for claiming the storage charges.  No such contractual basis has been pleaded either and Miss Chang for the Plaintiff confirmed that.

13.Miss Chang submitted that all the facts have been pleaded.  They suffice as basis for the court to assess damages as if this was a case of bailment though this has not been explicitly labelled as such.  On the basis of the proved fact of deposit of the private car with the Plaintiff which has thus suffered loss and damage in the form of storage, I agree with her.

14.This kind of loss and damage suffered by the Plaintiff should also be within the reasonable contemplation of the parties in the circumstances of this case.  The damages being claimed represent the storage charges which the Plaintiff would have charged customers contractually.  I think this is reasonable.

15.Miss Chang confirmed that the Plaintiff’s claim was confined to the amount pleaded, namely, HK$93,000, equivalent to the amount of storage charges for 310 days from 27 February 2006 up to 31 October 2006 at the daily rate of HK$300.  What has happened since November 2006 and what has become of the private car are not issues which I am invited to consider.

16.In the circumstances, I now order that the Defendant shall pay to the Plaintiff damages in the sum of HK$93,000 with interest thereon at the base rate plus 1 per cent per annum from the date of writ to today’s date and interest thereafter at the judgment rate until payment.  The Defendant shall pay the Plaintiff’s costs of and occasioned by the assessment, to be taxed if not agreed.

Representation:

Miss L Chang, of Messrs Fairbairn Catley Low & Kong, for the Plaintiff

Defendant, in person, absent