Sar Developments Ltd v. Worldex Stone Cladding Engineering Ltd

DCCJ2193/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2193 OF 2007

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Coram:    His Honour Judge Chow in Chambers (Open to Public)

Date of Hearing:  10 November 2008

Date of Delivery of Decision:  10 November 2008

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D E C I S I O N

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1.This is the plaintiff’s application for interim payment for arrears of rent and/or mean profits due and payable by the defendant up to 14 May 2008 and the areas of rates (half share) due and payable by the defendant up to 31 March 2007 under Order 29 rule 12 of the Rules of the District Court in respect of the use and occupation of the land on the remaining portion of Lot No.710, a portion of Lot No.709 and a portion of Lot No.707, all in demarcation district No.114.

2.The defendant admits that the land coloured purple as depicted on page 96 of the hearing bundle is being occupied by it,and there is no dispute that this piece of land was properly rented out to the defendant.  It further claims that it is liable to pay to the plaintiff $4,560 per month for occupying this piece of land.  Both parties made an agreement on 22 September 2008 to that effect.  Under this agreement the plaintiff does not dispute on this figure.

3.The plaintiff also makes claim on other pieces of land marked indigo, green, orange on page 96 of the hearing bundle.  But even if it succeeds on these claims, there is no evidence as to how much should be paid for the defendant’s occupation of these said pieces of land, because there is no evidence to show the total areas that make up these other pieces of land for the purpose of making calculation of payment.

4.The defendant objects to an order to be made for the payment of $4,560, saying that under its counterclaim, the damages occasioned by the plaintiff are much bigger than this interim payment.  But the counterclaim appearing on page 13 of the hearing bundle makes no clear reference to the term “damages” and no figures have been pleaded in respect of damages suffered by it.  There is no evidence pleaded in the counterclaim showing that the damages suffered by the defendant exceeds the amount claimed by the plaintiff.  Therefore, the defendant’s argument must fail.

5.I order that the defendant do pay, within 21 days from today, the amount of $95,760 to the plaintiff for the period covering 15 February 2007 to 14 November 2008 with interests thereon at 50 % judgment rate commencing from 19 May 2007 up to and including today, and at judgment rate from 11 November 2008 until payment, and that from the 15th day of each month, commencing from 15 November 2008 the defendant is to pay, within 7 days from the said 15th day of each calendar month, to the plaintiff the said sum of $4,560 until trial or further order. 

6.There is no order to be made by me for payment of rates as there are disputes on the areas covered by the tenancy agreement.  Until and unless such disputes are resolved, the amount of rate still payable by the defendant cannot be ascertained. 

(Discussion re costs)

7.The plaintiff only succeeds in part of its claim in this summons and fails in the other part.  I therefore make no order as to costs in respect of this summons application.  

Representation:

Mr Kwong Ting-chung, of Messrs Leung Kin & Co., for the Plaintiff

Mr Wong Chun-fai (O5A Director), in person, present.