THE JOUSTER LTD. v. WANG KA LUENG ALBERT AND ANOTHER

HCA 5999/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5999 OF 1999

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ASSESSMENT OF DAMAGES

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1. This assessment of damages arises out of the plaintiff's claim against the defendants for possession of a flat at Kency Tower, 9-9A Chatham Court, Tsim Sha Tsui, for arrears of rent, for mesne profits and for interest. Pursuant to court order, the plaintiff obtained possession of the property on 9th November 2000. Pursuant to court order judgment was entered against the defendants for damages to be assessed.

2. At the assessment, the defendants were absent. The plaintiff's bundle of pleadings was before me at the assessment. The plaintiff was represented. Mr. Tang Kai Ming Kenneth, a director of the plaintiff company, filed a witness statement dated 10th June 2001, but he was unable to be at the hearing. He later filed an affirmation dated 10th October 2001, confirming the contents of his witness statement. I allowed this since it would save time and costs in what is a simple assessment of damages. In paragraph 4 of that witness statement, Mr. Tang sets out the calculation of the total amount of damages claimed, which is repeated in the affirmation of 10th October 2001 but with the amount of interest being up dated, being the sums of -

(i) arrears of rent and rates from 1st January 1999 to 13th April 1999 as pleaded in paragraphs 8 and 10 of the statement of claim, being $301,866.78.

(ii) mesne profits from 14th April to 9th November 2000, being 18 months and 28 days at $104,300 per month, being $1,973,150.82.

(iii) judgment interest on (i) from 14th April 1999 to 8th October 2001, being $88,226.14, and continuing.

(iv) The total amount of damages are therefore $2,363,243.74.

3. I accept the evidence of Tang Kai Ming Kenneth for the plaintiff, and I assess the damages at $301,866.78 and $1,973,150.82, together with interest in the sum of $88,226.14 up to 8th October 2001. Cost of the assessment be to the plaintiff to be taxed if not agreed.

Representation:

Ms. Y.K. Tung of Messrs. Albert Hwang & Co. for Plaintiff.

Defendants: Wang Ka Lueng Albert and Tong Pik Yin - Absent

HCA 5999/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5999 OF 1999

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J U D G M E N T

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Godfrey, J.A. :

1. This is a plaintiff's application for summary judgment for possession and payment of arrears of rent under a tenancy agreement made on 22 December 1998. The plaintiff succeeded before the master and the defendant now appeals, contending that the tenancy agreement is a sham and that, in any case, the contractual arrangements between the parties are to be found, not only in the tenancy agreement itself, but also in a supplemental agreement made between the parties on the same date, i.e. 22 December 1998, and that the arrangements are of such complexity that the dispute between the parties requires further investigation at a trial.

2. I am not impressed with the suggestion that the tenancy agreement is a sham. But it is quite clear that it does not stand alone and indeed forms only part of the arrangements made on 22 December 1998 between the parties. These arrangements are indeed quite complicated and I am satisfied that the dispute cannot properly be resolved under Order 14 of the Rules of High Court. I will set aside the master's order and give the defendant unconditional leave to defend the action. I will order that the costs of the plaintiff and of the defendant of the plaintiff's application (including the costs of its appeal) be costs in the cause. I will give directions for a speedy trial; defence to be filed by 4:00 p.m. on Friday, 3 September 1999; reply if so advised by 4:00 p.m. Friday, 10 September 1999. Discovery within 14 days thereafter; inspection within 7 days after discovery. The case is to be set down for trial as soon as discovery and inspection are complete.

Representation:

Mr. Peter T.K. Wong instructed by M/s. Albert Hwang David Chung & Co. for Plaintiff

Mr. William Au of M/s. William Au & Co. for Defendants