Chow Fu Hsien v. K Vision International Investment (HK) Ltd

HCA 2884/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2884 OF 2004

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BETWEEN

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Coram :     Before Master Lung in Chambers

Date of Written Submission in Reply :   28 December 2009

Date of Handing Down Decision  : 2 March 2010

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D E C I S I O N

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1.This is pursuant to the Decision that I had made on 17 November 2009 in relation to the order nisi on interest on the sum assessed at HK$37,787,830.40 payable by the defendant to the plaintiff. In the Decision, I decided that interest should be the prime rate of the HSBC from time to time, being the commercial rate, from 26 October 1995, the date of cause of action to 19 July 2007, the date of Judgment and thereafter at the judgment rate until payment.

2.The plaintiff and the defendant have submitted written submissions, proposing to vary my order nisi on the interest.

3.The plaintiff’s only objection is that the interest should be compound interest rather than simple basis, relying on Ma, Equity and Trusts Law in Hong Kong (2006) at 19-2000 and the presumption in Wallersteiner v Moir (No. 2) [1975] 1 QB 373. The plaintiff has no objection to the period and the rate of the interest.

4.The defendant’s only objection is the period for which the interest runs viz. from 26 October 1995. It has no objection to the other terms relating to interest.

5.Having considered the following factors, I have now decided that my order on interest should be varied to the effect that interest at the prime rate of HSBC commencing on the date of the writ until judgment and thereafter at the judgment rate, such interests shall be compounded on a yearly basis:

(1)  The plaintiff now claims against the defendant company, of which she is one of the shareholders, holding 35% beneficial interest of the defendant’s interest in the Celebrity Plaza;

(2)  Defendant company is a corporate vehicle carrying on the development of the project of construction of Celebrity Plaza;

(3)  It can be seen quite clearly that the plaintiff’s interest is in fact an investment in the development of the Celebrity Plaza project;

(4)  Ultimately, the plaintiff should be placed to the same position as if the Trust Deed, under which she is entitled to the 35% of the defendant’s interest in the project;

(5)  The time for the plaintiff’s interest in the project to be realized has to be the time when Celebrity Plaza has been completed, which is in 2004, about the time the plaintiff demanded the defendant to account for her interest and the defendant denied her entitlement.

(6)  The defendant admits [see counsel’s reply submission para.18] that it was involved, apart from Celebrity Plaza, another project, namely Sunshine Plaza.  According to the expert’s report at [B-239] paragraph 5.5, the defendant has reallocated certain of the accounts and transferred certain amounts from various accounts payable to the capital reserve.  The expert was unable to identify those accounts.  Nor was the defendant able to give evidence to those accounts.  The presumption in Wallersteiner v Moir (No. 2) [1975] 1 QB 373 shall become operative.  The defendant is unable to adduce evidence to rebut this presumption.

6.Accordingly, the order in paragraph 56 (1) of my Decision should be varied as: The defendant do pay the plaintiff HK$37,787,830.40 (35% of HK$34,324,481.25) together with interest at the prime rate of the HKBC from time to time, being the commercial rate, from the date of the writ to 19 July 2007, the date of Judgment and thereafter at the judgment rate until payment, such interests shall be compounded on a yearly basis.

7.My direction on the assessment of the costs in paragraph 56(5) shall stand.

Ms. Lisa Wong, Senior Counsel and Mr. Calvin Cheuk instructed by Messrs. Cheung & Yip for Plaintiff.

Mr. Jonathan Wong instructed by Messrs. Deacons for Defendant.