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DCCJ002516/2001
DCCJ2516/2001
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 2516 OF 2001
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ST. JOHANNES COLLEGE LIMITED |
Plaintiff |
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AND |
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TRACKWAY INVESTMENTS LIMITED |
Defendant |
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Coram: H.H. Judge Wong in Court
Date of Hearing: 15 & 16 March 2004
Date of Handing Down Judgment: 31 March 2004
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JUDGMENT
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1. The Plaintiff was the tenant and the Defendant was the landlord in respect of the premises known as No. 121 Boundary Street Kowloon. The Plaintiff moved out on 18 October 2000. The Plaintiff claims for return of the deposit in the sum of $430,000 and $1,691.74 being the apportionment account payable by the Defendant to the Plaintiff.
2. The Defendant set off and counter-claimed for expenses incurred for work done to reinstate the premises to its original state and for loss of rental income to be assessed.
Work done agreed by the parties
3. The parties agreed that the Plaintiff had constructed several items to the premises and had not reinstated to its original state and that the Defendant had to hire a contractor to reinstate the same.
4. Those items are:-
(1) a brick platform erected in the car park area
(2) a timber hut on the ground floor
(3) a semi circular metal cover supported by steel frame over the corridor
(4) a brick wall extension, plaster partition and windows constructed in the balcony on the 1st floor.
The issues
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(1) the amount the Defendant spent in reinstating the above items |
(2) whether the Plaintiff was liable for the painting on the outer wall of the premises
(3) whether the Plaintiff is liable for loss of rental income
(4) surveyor's fees
Costs for the agreed work done by the Defendant
6. The Defendant exhibited an invoice to show the aggregate amount it spent in respect of the aforesaid 4 items was $64,200. The Plaintiff called Mr. Au Yeung the proprietor of Sui Fung Metalware Electrical Co. to say that he estimated the work done should be in the region of $26,300.
7. Mr. Kwok a director of the Defendant said that he hired a surveyor to find out what work needed to be done and then invited tender and he had accepted the lowest tender.
8. I accept Mr. Kwok's evidence. Mr. Au Yeung only made the estimate in March 2004 without inspection of the work done. Even if it was a genuine estimation which I do not find to be so, the Plaintiff had not hired Sui Fung Metalware Electrical Co. to reinstate the premises, it is too late to complain. In any event it is doubtful whether Mr. Au Yeung is a proper contractor who had the qualification to carry out the estimation of the work.
The outer wall
9. Mr. Kwok said that he had been to the premises and saw that the name of the Plaintiff's school and the dragon painted on the wall though was painted but what was on the wall was still visible. The cost for painting that wall is $8,000. I rule that the Defendant is entitled to recover that amount.
Surveyor's fees
10. The surveyor issued 2 invoices at $10,000 each. The first one was for inspection of the premises which I am of the view that it was necessary to determine the items the Plaintiff had not reinstated. So I allow the 1st invoice of $10,000.00.
11. The second invoice was just to inspect the work done. The amount claimed is grossly excessive. I allow $3,000.00 for the 2nd invoice.
Loss of rental income
12. In the re-amended counterclaim at paragraphs 23(b) and (c) the Defendant pleaded the following:-
(b) The Defendant had in mid October 2000 secured an intended tenant, The International Centre of Sakyamunis Culture Limited ("ICS"), to rent the Premises from 1st November 2000 for operating a school.
(c) ICS required the Premises at its original state of the Lease in order to secure approval from the Education Department to use the Premises for a school which approval was in place when the Premises was at its original state.
13. The Defendant counter-claimed for damages for loss of rental income to be assessed.
14. The Plaintiff had used the premises as school premises, there is no evidence that the premises as altered by the Plaintiff did not have the approval of the Education Department.
15. Mr. Kwok has neither in his witness statement nor from his evidence in Court given evidence to the effect that there was an intended tenant. So there is no evidence to support what was pleaded.
16. The only evidence is the lease dated the 8th May 2001 by which time the Defendant had rectified and reinstated the premises.
17. In the premises the Defendant has not proved any loss of rental income.
18. There is no claim for mesne profits.
19. By reasons aforesaid the Defendant is only able to set off in the sum of $73,500 comprising of $64,200 being the amount spent by the Defendant to restore the premises to its original state, $8,000 for painting the outer wall and $13,000 being the surveyor's fees.
20. In the premises there be judgment for the Plaintiff for $(430,000 + $1,691.74) - $73,500 = $358,191.74 with interests at 1% above prime p.a. from 18 October 2000 until judgment.
21. Counter Claim dismissed.
22. Order nisi: Costs to the Plaintiff in respect of both the claim and the counter claim. Certificate for counsel.
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( Wesley Wong ) |
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District Judge |
Representation:
Mr. Raymond Lau instructed by Messrs. Woo, Kwan, Lee & Lo for Plaintiff.
Miss Jane Curzon Lo instructed by Messrs. Wong, Poon, Chan, Law & Co. for Defendant.
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