Nanyang Commercial Bank Trustee Ltd and Another v. John Ku, Tam & Ho (A Firm)

CACV 234/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 234 OF 2010

(ON APPEAL FROM HCA 1742 OF 2007)

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BETWEEN

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Before : Hon Yeung VP, Cheung and Yuen JJA in Court

Date of Hearing : 21 September 2011

Date of Decision : 21 September 2011

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1.This is the plaintiffs’ application for leave to appeal against our judgment on ‘great general or public importance’ and ‘or otherwise’ grounds.

The framed questions

2.The three questions that are framed under the great general or public importance ground are :

(1)    What is the correct approach for assessing damages in case of wrongful interference with goods?  In particular:-

(a)    Whether a defendant who has wrongfully used the plaintiff’s property for his purpose with full knowledge of the basis of the plaintiff’s charges for the use of such property can thereafter challenge the plaintiff’s claim for damages by contesting such basis of the plaintiff’s charges?

(b)    Whether a defendant who has wrongfully used the plaintiff’s property for his purpose can avoid paying damages to the plaintiff on the ground that he could have achieved the same purpose without using the plaintiff’s property?

(2)    Whether the making of an order by the Court for the appointment of an administrator of an intestate’s estate would automatically deprive the Registrar of the Court of his right and release him from his duty under Rules 5 and 6 of the Non-Contentious Probate Rules (Cap. l0A) to ensure that all his inquiries have been answered to his satisfaction before formally issuing a grant of administration?

(3)   Whether the official notarial fees prescribed by the Mainland Government under Memo No. 202 of 1991 dated 11^th December 1991 issued by the PRC Justice Department and Memo No. 549 of 1991 dated 19^th November 1991 issued by the Pricing Bureau of the PRC Ministry of Finance for the issue of notarial certificates for use in relation to the ‘succession (繼承)’, ‘bequest (遺贈)’ and ‘gift (贈與)’ of overseas properties are charged by reference only to the value of the estate, in the sense of what the deceased was beneficially entitled to and able to pass on to the beneficiaries on his death, or by reference to all assets covered by the letters of administration, including gifts in the nature of donationes mortis causa made by the deceased?

Our view on great general or public importance

3.We do not agree that this ground has been engaged.

1)   On the first question, in essence the plaintiffs are arguing, by relying on the Attorney General v. Blake [2001] 1 AC 268 line of cases, that so long as the defendant had made use of the notarised certificates, it is liable to pay compensation to the plaintiffs, irrespective of whether the certificates were actually required or not for the purpose of obtaining the grant.  This argument is said to be a facet of the principle that compensation is awarded even if the plaintiffs themselves do not make use of the converted property.

2)   We have difficulties with the application of this method of assessing damages to the facts of the case.  As Lord Nicholls of Birkenhead recognized in Blake, the general rule is that the award of damage is compensatory in nature : it is a compensation to the injured party.  Put in another way, damages are measured by the plaintiff’s loss, not the defendant’s gain.  It is only in exceptional circumstances where the plaintiff has suffered no loss that the Court uses the gain by the defendant as the yardstick for measuring damages.  In this case the plaintiffs said that they had suffered loss and had in fact received compensation of over $5.4 million for the loss it said it had suffered.  They pleaded in the Statement of Damages that

‘the Plaintiff had suffered loss and damages in the total sum of HK$5,435,742, being the remaining half of the Administrative Fees and Notarial Fees.’

3)   Further, once the general rule and the exception are recognized, it is beyond doubt that the plaintiffs, through their former counsel, had never argued that that were relying on the exception rather than the rule.  On the contrary, the position of the plaintiffs are set out in paragraph 32 of our judgment.  The point now relied upon by the plaintiffs is clearly a new point.  We agree with the view expressed by this Court in Kung Ming Tak Tong Co. Ltd. v. Park Solid Enterprises Ltd (CACV 227/2005) that it is for the Court of Final Appeal to decide whether to allow the plaintiffs to take a new point and whether that point is a matter of great general public importance. 

4)   Further if the plaintiffs are relying on the gain of the defendant as the basis of their claim, they still have not identified what was the gain of the defendant and what damages they said they should be entitled to recover under the exception after taking into account the $5.4 million.

6)   The second question concerning the role of the Probate Registrar cannot be viewed in isolation and it must be fact sensitive depending on the specific issues that arise in a case.

7)   The third question is simply a matter of construction. 

Our view on ‘or otherwise’ ground

4.We are also not satisfied that the ‘or otherwise’ ground has been engaged by reason of any exceptional circumstances or any injustice to the plaintiffs.

5.Accordingly the application is refused with costs to the defendant.

Mr. Patrick Fung SC and Mr. Anson Wong, instructed by Messrs Liu, Chan & Lam, for the 1^st and 2^nd Plaintiffs

Mr. Edward Chan SC and Ms Joyce Chan, instructed by Messrs John Ku & Co., for the Defendant