Yim Kan v. Tsang Siu Shing

HCMP 1804/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1804 OF 1998

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ASSESSMENT OF DAMAGES

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Background

1. The plaintiff is the registered owner of Flat C, 7th Floor, 48 Nullah Road, Mongkok, Kowloon ("the said Premises"). The said Premises were purchased by her in 1986, but registered in the name of her daughter, Madam Lam ("the daughter").

2. The defendant is the plaintiff's former son-in-law. He had resided rent-free at the said Premises with the daughter since its purchase in 1986. Due to deterioration in the relationship between the plaintiff and the defendant, the daughter assigned the said Premises back to the plaintiff in 1991 ("the 1991 Assignment"). In 1993, the daughter moved out of the said Premises due to marital discord. The defendant remained behind.

3. On 14th March 1994, the plaintiff's then solicitors wrote to the defendant to demand that he vacated the said Premises on or before 9th April 1994. The defendant did not.

4. On 22nd March, 1994, the daughter petitioned for divorce in Divorce Suit 1813/94 ("the Divorce Proceedings"). Protracted litigation ensued. By an Order by His Honour Judge de Souza on 26th May, 1997 in the Divorce Proceedings, the plaintiff (as Intervenor in the Divorce Proceedings) successfully warded off an application by the defendant for avoidance of the 1991 Assignment to her by the daughter. Despite that, the defendant refused to vacate the said Premises.

5. On 1st September 1997 the plaintiff entered into a Sale and Purchase Agreement with one Madam Lee Chi Kin whereby she contracted to sell the said Premises at a price of HK$1,130,000. Vacant possession was to be delivered on or before 6th October, 1997. Time was to be of the essence.

6. The plaintiff, accompanied by her then solicitors, paid 2 visits to the said Premises. A heavy chain and padlock prevented their entry. They engaged a locksmith to break open the door. Apparently the Police was involved, but took no action as it regarded it as a civil dispute.

7. The plaintiff ultimately cancelled the sale of the said Premises on 3rd March, 1998 and repaid the deposit to the purchaser. I refer to this as the "abortive sale".

8. On 1st May, 1998, the plaintiff commenced these proceedings for trespass of property, claiming recovery of possession, mesnes profits and damages.

9. On 8th June, 1999, upon hearing the plaintiff's solicitors and the defendant in person, Master Barnes ordered the defendant to deliver up vacant possession, and to pay to the plaintiff mesne profits from 9th April, 1994 to the date of delivery of vacant possession, with interest, and damages to be assessed.

10. This hearing is for the assessment of mesne profits, damages and interest under Master Barnes' Order.

Application for Adjournment

11. The defendant applied for an adjournment of the hearing alleging that he had not been served any notice of hearing or affidavits. He said that an adjournment was needed for him to take legal advice on bringing a Counterclaim, to prepare a valuation report on mesne profits, and to locate some photographs taken of the said Premises in 1990.

12. The application for adjournment was strenuously opposed by the plaintiff. She was over 72 years old with deteriorating faculties. She accused the defendant of obstructive conduct throughout the course of litigation. She was anxious to proceed on the basis of whatever evidence there was before the Court.

13. I did not allow the adjournment. The defendant had had ample opportunity during the last 10 months after Master Barnes' order, to seek legal advice and prepare his evidence. On the other hand, the plaintiff had been deprived of her property and mesne profits since 1994. Further postponement of the hearing would only aggravate the acrimonious relationship between the parties.

14. In any event, during the course of argument, the defendant did show to the Court 8 of the 24 pages of the plaintiff's affirmation dated 27th March, 2000 which he had received by fax. The plaintiff's claims were set out in those pages he received.

Evidence

15. Both parties were unrepresented at the hearing. Both gave oral evidence. Both declined to cross-examine the other.

16. The plaintiff's Affirmation of 27th March, 2000, set out her claim for the following 11 items:-

17. Out of convenience, I shall deal with the plaintiff's 11 claims in a different order.

Date of recovering vacant possession

18. Before dealing with the individual items of claim, I would first deal with the preliminary question of when vacant possession was delivered, or more accurately, recovered.

19. As set out in the background of the case, the plaintiff, instead of recovering possession through the Bailiffs, resorted to self-help. On at least 5 separate occasions, she broke open and changed the lock to the said Premises. She did not stay there, however, and on each occasion except the last, the defendant was able to reinstate himself at the said Premises.

20. The plaintiff was unable to remember when it was that she last broke in. She had done it too many times. She said that during one routine inspection of her property, she discovered that the new lock she had installed at the said Premises had remained unbroken. She then realized that the defendant had given up resisting her recovery of possession. That was in mid September, 1999, and she thus calculated mesne profits up to 17th September 1999.

21. The defendant did not accept 17th September, 1999 to be the date of recovery of possession, but he had no knowledge of the last breaking in as he was already living elsewhere, and was only using the said Premises as a storage place.

22. In the circumstances, I accept 17th September, 1999 as the date of recovery of vacant possession.

Mesne Profits (Item 9)

23. Master Barnes' order for assessment of mesne profits covered the period from 9th April, 1994 to delivery of vacant possession, which I have determined to be 17th September, 1999 ("the relevant period"). I accordingly reject the plaintiff's claim for mesne profits insofar as it relates to the period prior to 9th April, 1994.

24. Regarding the level of mesne profits, the plaintiff has no evidence to substantiate her claim of $6,000/month. In fact, her Originating Summons dated 1st May, 1998 claimed HK$5,600/month, based on an alleged oral valuation obtained by her then solicitors from an unnamed firm of surveyors (see her Affirmation of 24th April, 1998). I can give little weight to such evidence.

25. At the hearing, she gave oral evidence that in so far as she was aware, the market rents for the said Premises were as follows:-

26. The plaintiff is over 72 years old. I accept that she is unable to recall the market rent figures going back to 1994. She produced rates demand notes and was content to rely on them. These demand notes showed the rateable value of the said Premises as follows:-

27. The defendant conceded that he was liable to pay for mesne profits for the period as set out in Master Barnes' Order. He further accepted the rateable value as a starting point for the assessment. However, he submitted that the rateable value was only of general application which should be adjusted to reflect the specific conditions of the said Premises. In this regard, he pointed out that the lift was only accessible by walking up 10 steps, and that the 2nd and 3rd Floors of the building were used as motels, which meant that a large number of people (and there was an oblique suggestion of some undesirable elements) frequented the building. He was however, unable to suggest any specific figures, except to urge the Court to make a downward adjustment from the rateable value. I bear in mind that the said Premises are situated in Mongkok, and the environment described by the defendant is not uncommon to flats in the district. Such factors would no doubt have been taken into account by the Rating and Valuation Department.

28. Accordingly, in the absence of better evidence, where rateable value for a particular year is known, I have taken that as the basis for assessing the mesne profits. For the years where the rateable value is not before the Court, I have done the best I can, drawing assistance from the actual amount of rates [see under item 10] as an indication of the pattern of market fluctuation over the relevant period as follows:-

* rateable value known

29. As the plaintiff had been out of her money for a considerable period of time, I award her interest running from the end of 1994 until April 2000 at the average judgment rate for those years.

30. Because the parties are unrepresented, I calculate the interest as follows:-

Locksmith Charges (Item 3a)

31. The plaintiff claims the sum of $1,935 as expenses for breaking open 5 times. She produced a bundle of invoices from locksmiths on various dates breaking open and installing new locks. She explained that there should have been more, but she had lost some other invoices. On questioning from this Court, she admitted that she was aware of the procedure of seeking help from the Bailiffs but chose not to follow them in order to save costs. Photographs exhibited to her Affirmation showed that the metal gate to the said Premises was heavily chained up, and a Chinese notice had been posted up at the front door warning against forcible entry being a criminal offence. Her affirmation further stated that the Police had been called for on over 10 occasions arising from her seeking to recover possession in this manner.

32. The defendant claimed that the plaintiff was a vindictive woman, and he was afraid that had he simply delivered up vacant possession without waiting for the Bailiffs, the plaintiff would find all means to make him liable for expenses and loss relating to the said Premises. He claimed that the plaintiff deliberately avoided using Bailiffs in order to launch private ambush on him every now and then, instead of giving him prior appointment to vacate which the Bailiffs would have done.

33. The defendant clearly had no right to remain in occupation of the said Premises. The position under Common Law is explained like this in Clerk & Lindsell on Torts Page 846:-

34. Without appearing to encourage this kind of behaviour of the plaintiff, I hold that she is entitled to recover her locksmith expenses on the first, and even the second occasion.

35. However, in the light of the extreme circumstances in this case, I find that she had failed to take reasonable steps to mitigate her loss by seeking recovery of possession through the usual court procedures, once the defendant's resistance is known. I would accordingly allow only a sum of $1,000 as the reasonable expenses under this item, and not her full claim.

Cost of dismantling unlawful materials (Item 3b)

36. The plaintiff claimed that when she recovered possession of the said Premises, she discovered there was damage and unauthorised alterations, and had to spend $17,600 in rectifying the said Premises. In support, she produced an undated invoice from "Fai Wong Design Decoration Co." describing 6 items of work including changing the toilet bowl, drain pipes, washing basin, positions of power sockets, plastic doors, and white tiling at various places. Some photographs were exhibited showing patches and cracks in the walls, ceilings and tiles.

37. The defendant on the other hand, claimed that he carried out no alteration works to the said Premises, and what the photographs depicted were pre-existing structures, and their deterioration through natural wear and tear. He complained that had he been allowed an adjournment, he would have had the chance of locating the 1990 photographs to show the former state of the said Premises.

38. I must say that the photographs appear to me to depict more of wear and tear instead of damage. The plaintiff was vague in her evidence regarding what unauthorised structures had been installed by the defendant in the said Premises, and the undated invoice is far from self-explanatory. I find that the plaintiff has not discharged the burden on her to prove this item of her claim.

Cost of disposal of heavy metal objects of the defendant (Item 2)

39. The plaintiff produced a note from one “Kwong Tai Contractors” dated 3rd July, 1999 for $1,800 for clearing a metal shelf and one vehicle load of miscellaneous effects, which she said she had to throw away, since the defendant had trespassed her property by storing junk in the place and wilfully refused to deliver up vacant possession.

40. The defendant claimed that the plaintiff had broken into the said Premises without notice, and had thrown away his possessions which were immensely valuable. The plaintiff said that she had served him written notice to vacate the said Premises, but was vague as to the actual timing and could not produce any copies of such alleged notices.

41. I find that irrespective of any written notice, the defendant had been aware since 1994 that he was required to deliver up vacant possession. If he chose to commit a trespass by keeping his possessions (valuable or otherwise) on another person's land, he had only himself to blame. I award the plaintiff's claim under this item in full.

Cost of re-making main door, and doors for a room, kitchen, bathroom, and repair to metal gate (Item 4)

42. The plaintiff claimed $8,050 for this item. In support, she produced a note dated 14th August, 1999 by the same "Kwong Tai Contractors" listing out 5 items of work, including repairing a wardrobe door.

43. She was vague as to why these should be borne by the defendant. The defendant points to this as evidence of malice on the part of the plaintiff, to push onto him the burden of all renovation cost of the said Premises, even though caused by wear and tear.

44. In the absence of clear evidence on the part of the plaintiff as to why these items are recoverable, I do not find this claim established.

Arrears of Rates (Item 10)

45. The plaintiff claimed that the defendant should pay her back for arrears of rates from 1st January, 1994 to 17th September, 1999. I decline to make any award prior to 9th April, 1994, when the defendant's trespass commenced.

46. The defendant submitted that since he would be paying mesne profits on a market rent basis, the rates should be borne by the owner instead of him. Section 7(2) of the Rating Ordinance (Cap. 116) provides that:-

I accordingly reject the defendant's submission.

47. From the copies of rates demand notes exhibited by the plaintiff, the arrears of rates can be worked out as follows:-

48. The plaintiff is not able to produce any evidence regarding the rates from September 1998 onwards. I therefore award her the sum of $13,036.03 being the arrears of rates from 9th April, 1994 to 30th September 1998.

49. I also award her the sum of $110 which she paid as penalty on the arrears of rates when sued in the Small Claims Tribunal Claims No. 18918/98 and No. 29618/86.

Arrears of Management Fees (Item 8)

50. The plaintiff claimed the sum of $12,200 for Management Fees unpaid by the defendant from 1st March, 1997 to 17th September, 1999 and cost of being sued for them.

51. The defendant admitted that the Management Fees had not been paid by him, but submitted that since he had to pay mesne profits on the basis of an open market rent, the obligation for payment of Management Fees should be borne by the plaintiff, as if it were a tenancy situation.

52. I do not accept that there is such a practice for the landlord to pay management fees, and award the plaintiff the sum of $12,200 for this item. There is no evidence on the costs of the plaintiff's being sued and accordingly there will be no award for it.

Loss on the Abortive Sale (item 11)

53. The plaintiff submitted that as registered owner of the said Premises, she had the right to enter into the Sale and Purchase Agreement as she did to sell her property in 1997. Wilful refusal by the defendant to deliver up vacant possession despite His Honour Judge de Souza's Order, and/or to vacate his lis pendens over the said Premises caused the sale to be aborted. The downturn of the property market since October, 1997 meant that she has not been able to sell the property at the same price. By Item 11, she claimed for the loss on her abortive sale and reserved the right to claim for the difference in price between the contractual amount and the price at which she may sell the said Premises in the future.

54. This item was strongly opposed to by the defendant, who claimed that the Order of His Honour Judge de Souza was under appeal at the time of the abortive sale, and he was entitled to remain in the said Premises.

55. Quite aside from the speculative element of this claim, I reject this claim as being inconsistent with the plaintiff's claim for mesne profits. The award for mesne profits compensates the plaintiff for what she could have otherwise received had she rented out the said Premises during the relevant period when she was deprived of the use of her property. If she had indeed sold her property, she would not have been able to ask for mesne profits. Any award on item 11 would amount to a double benefit to the plaintiff. I therefore disallow this item.

Loss of legal fees on abortive sale (item 1)

56. It follows from my comments on Item 11 above that this item is also disallowed. I might just add as an observation here that the Invoice from Messrs. Solomon Chong & Co. carried a disbursement item of $5,000 described as "inspection fee". In the absence of any explanation on the matter, I would have disallowed this part of the bill in any event.

Cost of developing photographs, film negatives, and photocopying (Item 5)

57. The plaintiff claims the sum of $100 for these items. These are matters of costs rather than damages, and are disallowed.

Rushing to Police station, suit property, attending fix date, Court hearings, transportation charges, postage and photocopying charges for 6 years (Item 6)

58. The plaintiff claims a sum of $6,000 for these items which she said, she expended in the last 6 years. Again, these are clearly matters of costs and disbursements and are disallowed.

Emotional stress and loss causing high blood pressure, serious stomach ailment for 6 years (Item 7)

59. The plaintiff claims that as a result of these protracted and bitter proceedings, she had suffered emotional stress and loss. There was no medical evidence before me as to her previous or present state of health, and I hold that in any event, damages under this head to be too remote, because the defendant could not reasonably have been expected to foresee this damage to occur as a result of his act of trespass.

Summary

60. I summarise the plaintiff's award as follows:-

61. Interest will be payable by the defendant on the above award at judgment rate from 12th April 2000.

62. There will be an order nisi that the defendant should pay the plaintiff the costs of the assessment to be taxed if not agreed, to be made absolute after the expiration of 14 days from the date of judgment.