Tang Wah Leung t/a Wah Hing Plastic Factory v. Chan Mei Lim
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CACV000012/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 12 OF 1972 (On Appeal from O.J. Action No. 1221/70) -----------------
----------------- Coram: B.L. Jones, Assistant Registrar Date of Judgment: 19th March, 1973. ----------------- DECISION ----------------- 1. This is an assessment of damages referred to the Registrar pursuant to the judgment of the Full Court dated the 12th December 1972. The plaintiff's appeal was dismissed for want of prosecution and a cross appeal by the defendant against the dismissal of her counter-claim by the Hon. Mr. Justice Li was allowed. 2. The defendant by a written tenancy agreement dated the 27th April 1969 let to the plaintiff two structures in the New Territories under Lot No. 2583 for a period of eighty months from the 15th May 1969 to the 14th January 1976 at a monthly rental of $700. The land upon which the structures stood was originally held under a Crown permit which was granted for a period of one year from the 1st January 1961 to the 31st December 1961, but it has been assumed in the course of the proceedings that the permit was renewed from year to year until it was cancelled on the 1st January 1971 as a result of the plaintiff's unauthorised user of the premises. Although the structures were demolished by Government on the 25th November 1969 the plaintiff remained in occupation until the 20th January 1970. The defendant was in no position to grant a longer period than twelve months as she purported to do under the agreement with the result that both parties were at risk for neither side could guarantee completion of the term. 3. A representative from the District Office, Tsuen Wan said that it was the intention of the District Office to grant a new permit covering all existing structures to Mr. Law Chi who is the husband of the defendant which has been confirmed by a letter from the Yuen Long District Office but he was unable to give a definite answer as to when this would take effect. He said that the structures demolished by Government would now be permitted to be rebuilt. A Crown land permit is normally issued for a period of one year but it can be renewed from year to year. It is the policy of the District Office that where a tenant conforms to the permitted user a three months notice of cancellation of a permit would be given. 4. Mr. Law Chi said that the two structures were built between 1961 and 1962 at an approximate cost of $12,000 for each structure. The builder who erected the structures gave evidence that the cost to rebuild them today would be approximately $40,000.00 for each structure. However the defendant cannot in any event recover more than the sum of $30,000 claimed in the counterclaim. 5. On the hearing of the appeal Mr. Justice Huggins in his judgment said 'The Defendant had no estate in the land and, although it was not open to the Plaintiff to deny her title to let, that is a ...(illegible) which is properly to be considered in assessing damages: the Defendant was at risk of eviction at short notice and upon eviction would have lost the structures which her husband had erected. Similarly it was matter of uncertainty whether the Defendant would have enjoyed the rants for the full term of the tenancy even if there had been no breach of the conditions of the Crown Land Permit. 6. The defendant had security of tenure for twelve months under the Crown land permit so that this is the maximum period for which she is entitiled to damages for loss of rentals in addition to the damage suffered as a result of the demolition of the two structures. However, as the rent has been paid up to the date of cancellation of the agreement no damages can be claimed for loss of rentals. As the land belongs to the Crown the structures built thereon are the property of the Crown so that the defendant's claim under this head must fail. The defendant has suffered if anything only nominal damages which I assessment at $1.00. 7. Dated this the 19th day of March, 1973.
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