FONG IP BOR AND ANOTHER v. WIRAHARDJA RANDY MULIA

HCA 7276/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7276 OF 1998

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JUDGMENT

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1. Following interlocutory judgment, this is an assessment of the plaintiffs' damages for the defendant purchaser's repudiation of the sale and purchase agreement between the parties. The property in question is Flat D, 10/F, Tower 2, Robinson Heights, Hong Kong, and the agreed price was $12 million. The deposit of $1.2 million has been forfeited on final judgment, and the plaintiffs give credit for that amount against their damages. The hearing of this assessment proceeded in the absence of the defendant.

2. The first named plaintiff gave evidence as a joint owner of the property and adopted his witness statement. The defendant's repudiation was formally accepted by the plaintiffs on 27 April 1998, however completion of resale under clause 25 of the sale and purchase agreement did not take place until 26 November 1998 following a resale agreement dated 5 November. Mr. Fong explained that he had placed the property with many agents, but the downturn in the market made it difficult to sell. Eventually it was sold for $6.68 million, and I accept the likelihood of the plaintiffs' difficulty in reselling at that particular time, following the Asian crisis in late 1997 and the ensuing slump in property prices. I do not therefore find any failure to mitigate the plaintiffs' losses in the delay in resale.

3. Mr. G. J. Cattermoul of Multiple Surveyors Ltd gave evidence and produced his valuation report. This produced valuations of $6.7 million as at both 5 and 26 November 1998. The report is in the usual form and reached its conclusions by the use of comparables in the same development. I find no reason to doubt its conclusions and therefore accept the valuation of $6.7 million as the basis for calculating the plaintiffs' damages on the defendant's repudiation.

4. The damages calculated on the resale price, after giving credit for the forfeited deposit, will therefore be $(12m - 6.7m - 1.2m) = $4.1 million. To this will be added the sum of $39,100 representing the plaintiffs' wasted legal costs in respect of the repudiated transaction, as evidenced by the solicitors' bill at exhibit P2. The total award is therefore $4,139,100, which will carry interest at the judgment rate from writ to payment. The plaintiffs are awarded their costs with a certificate for counsel.