Tong Sin Lun v. Proshing Fire Protection Engineering Ltd

DCCJ3041/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3041 OF 2008

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BETWEEN

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Coram:  Deputy District Judge Frederick HF Chan in Chambers (Open to public)

Date of hearing: 17^th September 2008

Date of ruling:    17^th September 2008

Date of handing down the ruling : 18^th September 2008

RULING

1.By a writ of summons dated 15^th July 2008, the Plaintiff (Mr. Tong Sin Lun) issued legal proceedings in the District Court against the Defendant, a decoration company which was incorporated in the HKSAR.

2.The Writ of Summons was endorsed with a statement of claim. A brief recitation of the Plaintiff’s case is as follows. In gist, the Plaintiff alleges that he is the registered owner of a residential property situated at No. 6A, 1^st Street, Section M, Fairview Park, Yuen Long, New Territories, Hong Kong (“the Property”).

1.     On about 12^th June 2007, he entered into a partly oral and partly written contract for the internal decorations of the Property with the Defendant (“the Renovation Agreement”).

2.     Thereafter, the Defendant had committed various breaches of the Renovation Agreement. Despite the Plaintiff’s willingness to extend the deadline for the Defendant to perform the Renovation Agreement, the Defendant had failed to do so. Indeed, on 19^th November 2007, the Defendant wrote to the Plaintiff and indicated that they would cease to decorate the Property with immediate effect. In view of the Defendant’s repudiatory breaches of the Renovation Agreement, the Plaintiff was left with no alternative but to engage another competent contractor to complete the unfinished works. The Plaintiff put forward various heads of damages which totaled about HK$200,000.

3.According to the Plaintiff, the writ of summons and the statement of claim were duly served on the last known address of the Defendant who failed to file and serve the notice of intention to defend.

4.Hence, on 1^st September 2008, the Plaintiff succeeded in obtaining a default judgment with “damages to be assessed and costs” (“the Default Judgment”).

5.The Plaintiff acted swiftly and on 3^rd September 2008, his solicitors took the next procedural step by issuing a Notice of Appointment of Assessment of Damages (“the Assessment Notice”). The Assessment Notice was given an estimated time of 15 minutes and listed before me for a call-over hearing.

6.The Plaintiff, however, filed two affirmations to support the Assessment Notice. They were:

(a)  The lengthy affirmation of the Plaintiff filed on 11^th September 2008 which spanned the gamut of the Plaintiff’s case together with a number of documentary exhibits including, among others, quotations and correspondence between the Plaintiff and the Defendant (“the Plaintiff’s Affirmation”); it is worthy to note that the Plaintiff deposed in no uncertain terms that:

“1.        In this connection, I make this affirmation to support my claim in respect of the quantum of damages against the Defendant …

12.       … I do hope that this affirmation could assist the Court in assessing the amount of damages in this action”.

(b) The 2^nd affirmation of Cheung Lai May who deposed that the Assessment of Notice was duly served on the Defendant on 5^th September 2008 and the Plaintiff’s affirmation was served on the Defendant on 11^th September 2008.

7.Pausing here, I interpose to repeat the helpful commentary by the learned editors of Hong Kong Civil Procedure 2008 which appears in Volume 2, p. 85, paragraph C2/37/1A:

“When interlocutory judgment is entered for damages to be assessed and there is no provision under the judgment as to how they are to be assessed, a judge will assess the damages …

For the purpose of assessment of damages, when the party takes out an appointment of damages, unless the court otherwise directs, the standard directions set out in O. 23A, r. 5(1)(a) to (e), (2) and (3) will take effect automatically. There is no need for the party to take out any summons to obtain directions for the assessment of damages. When a party takes out an appointment for assessment of damages, the practice is for the case to be fixed before a judge for a short hearing to ensure that the parties have complied with the requirements of discovery and exchange of witness statements. If the parties are ready, the case will then be set down in the fixture or running list”.

8.In my view, the Plaintiff should have taken heed of the above procedural guidance. It is, therefore, clear that for the purpose of the 15-minute hearing before me on 17^th September 2008, there was no necessity for the Plaintiff to file and serve the Plaintiff’s affirmation.

9.As clearly stated in the passages quoted above, the Court, when dealing with the Assessment Notice for the first time, would be solely focusing on whether the case in question is ready for the forthcoming full-blown hearing to assess the damages under the Default Judgment. At the call-over hearing of the Assessment Notice, the Court would deal with various aspects of case management e.g. the discovery of documents, filing and service of witness statements and the filing of expert reports (if any).

10.It is well-established court practice that the hearing proper of the assessment of damages under a default judgment will have to be conducted in open court where the plaintiff will call factual testimonies to make good his/her claims and the defendant would be entitled to examine the witnesses. Parties, of course, will advance rival submissions on the quantum of damages to assist the Court.

11.In this connection, I would refer to the English case of Hesz v. Sotheby & Co. (Practice Note) [1960] 1 WLR 285. There, the plaintiff issued a writ for the return of a picture which had been lost by the renowned auctioneers to whom the picture had been entrusted to be sold. The plaintiff applied for Order 14 summary judgment and Master Lawrence entered judgment in the plaintiff’s favor for the value of the picture and damages to be assessed.

12.On 4^th February 1960, the assessment of damages duly took place before Master Diamond sitting in the Queen’s Bench Division of the English High Court. It is interesting to note that at the assessment, counsel pointed out that there were members of public present in the room.

13.Master Diamond held adroitly at p. 285:

“This is a public proceeding”.    

14.In the present case, it is obvious that the first hearing of the Assessment Notice (which was held in Chambers) was not the proper forum and occasion for the determination of the quantum of damages on paper. On the basis of the materials placed before me, I anticipate that the full hearing of the Assessment of Damages would require 1 day. 

15.On the basis of the foregoing and pursuant to my discretion on case management under O. 37 r. 1 of the Rules of the District Court (Cap. 336, Sub. Leg.), I made the following directions in this instance:

(a)  There should be mutual discovery by the Plaintiff and the Defendant of all the relevant documents within 21 days from the date hereof and inspection within 7 days thereafter;

(b) The Plaintiff and the Defendant shall exchange and serve witness statements within 28 days from the date hereof;

(c)  Subject to any directions by the Court, the said witness statements shall stand as evidence-in-chief of their respective makers;

(d) 7 days before the hearing date of the assessment of damages, the Plaintiff shall file and serve a hearing bundle;

(e)  3 days before the scheduled hearing date of the assessment of damages, the Plaintiff shall file and serve (1) a chronology of events, (2) written opening together with a list of authorities and (3) a schedule of damages;

(f)   The case be adjourned for a hearing date to be fixed in the Fixture List with 1 day be reserved;

(g)  The costs of today’s hearing be reserved.

18.     I so ordered.

Representations:

Mr. Lo Wing Cheong of Messrs. Weir & Associates, solicitors for the Plaintiff

The Defendant was absent.