THE INCORPORATED OWNERS OF TAI TAT BUILDING v. LEUNG KOON

HCA1931/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1931 OF 2002

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J U D G M E N T

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Background

1. Nos. 24 and 26 Pilkem Street used to share a common staircase. The common staircase occupied part of Lot 420 Sec. E.SS.1. and K.I.L. 420 S.E.R.P. in which Nos. 24 and 26 were respectively erected.

2. K.I.L. 420 S.E.R.P. has since 1954 been incorporated into K.I.L. No. 6413. K.I.L. 420 Sec. E.SS.1. has since 1962 been re-granted as K.I.L. 8553.

3. No. 26 Pilkem Street has been demolished and in its place is built Tai Tat Building which occupies the larger site of K.I.L. No. 6413.

4. However, the common staircase has remained. It provides access to the upper storeys in No. 24. The common staircase no longer provides any access to No. 26.

5. This action concerns the space underneath the common staircase which falls within the boundary of K.I.L. 420 S.E.R.P. (now part of K.I.L. 6413).

6. The space is coloured yellow and hatched black in the plan annexed to the Statement of Claim (the space).

7. The plaintiff is the incorporated owners of the Tai Tat Building and its claim against the defendant is for possession of the space.

Vacant possession

8. The defendant, who began to act in person on 10 May 2004, no longer disputes the plaintiff's claim so far as vacant possession is concerned. It is obvious that the space falls within K.I.L. No. 6413. Indeed, by the without prejudice correspondence referred to and relied on by the defendant, the defendant's former solicitors, Messrs Johnny Tam & Lam, offered vacant possession to the plaintiff.

9. No settlement was effected prior to the hearing today (11 May 2004) because the plaintiff needed time to respond.

Damages for trespass

10. In any event, the plaintiff also claims mesne profits or an account of profit from the defendant in connection with the defendant's occupation through licensees or tenants of the space since October 2000.

11. The plaintiff's claim is that until February or March 2000, the space was occupied by a Mr Mak, who ran a shoe-repairing business at the space at a monthly fee of $1,800. The monthly fee of $1,800 had been paid since 1 January 1995. Prior to that it had been $1,500 since 1 January 1993. No fee was paid by Mr Mak prior to 1993 because it was only when the plaintiff received notice from the Buildings Ordinance Office in early 1992 that the plaintiff realized that the space belonged to the owners of Tai Tat Building.

12. The plaintiff's case is that Mr Mak moved out of the space in 2000. Since about October 2000, the defendant had denied possession of the space to the plaintiff despite the plaintiff's protests. That also is not in dispute.

13. The defendant also accepts that he had permitted知味坊and 晉桀飾物to use the space.

14. The defendant did not give evidence.

15. Mr Tang, the chairman of the plaintiff, gave evidence. His evidence regarding the rent payable or paid by知味坊and晉桀飾物is hearsay and too uncertain. I am unable to accept such evidence.

16. However, I believe I can use the sum of $1,800 payable by Mr Mak as the basis of my assessment. I therefore assess mesne profits in the sum of $1,800 per month for the period 1 October 2000 to 30 April 2004, a total of 43 months, totalling $75,600.

17. Although Ms Lam, counsel for the plaintiff, reminded me that the plaintiff also sues for an account of profit, having regard to the fact that there was evidence from Mr Tang on the "rental" value of the property, and for the saving of costs, I would not order an account to be taken.

Re-instatement

18. The plaintiff also claims reinstatement of the space. The defendant has removed a metal grille which was used to enclose the space. I order that the defendant reinstate the same by installing a similar metal grille.

Costs

19. Costs are normally payable by the loser to the winner. The plaintiff has won and should have the costs of the action.

20. The defendant argues that costs should be on the District Court scale. That was not opposed by Ms Lam, and I order accordingly.

21. The defendant further argues that today's costs should not be awarded in favour of the plaintiff. That is because of the without prejudice offer. However, by that offer, the defendant only offered $1 nominal damages. That was rejected and is inadequate. So costs of the action payable by the defendant should include today's costs.

22. I am asked by Ms Lam to indicate whether I consider this case fit for counsel. Although at a very late stage, because of concessions, the case has been rendered rather simple, it was not always so. I note that the defendant's pleadings were signed by Mr Malcolm Merry, a very experienced counsel. So my view is that this is a case fit for counsel.

Order

23. To conclude, I order :

(1) Vacant possession of the space shown coloured yellow and hatched black and attached to the Statement of Claim be delivered by the defendant to the plaintiff.

(2) That the defendant pays the plaintiff the sum of HK$75,600 as mesne profit for the period of 1 November 2000 to 30 April 2004. Interest on HK$75,600 from today until payment at the judgment rate.

(3) That the defendant do, within 28 days hereof, install a metal grille at the entrance to the space.

(4) Costs of the action to be paid by the defendant to the plaintiff, such costs to be taxed on the District Court scale, if not agreed.

(5) Certified fit for counsel.

(6) Liberty to apply in relation to the implementation of paragraph (3).