LEUNG HING CHOW v. KUAN HENG CHOI

HCA13111/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13111 of 1997

__________

__________

_______________________________________________

JUDGMENT ON ASSESSMENT OF DAMAGES

_______________________________________________

1. This assessment arises out of an agreement made between the Plaintiff and the Defendant for the sale and purchase of the property known as Flat E 3rd Floor and the adjoining flat roof, Sun Ming Court, 84-90 Castle Peak Road, Kowloon ("the Property").

Background

2. The Plaintiff is the registered owner of the Property. By a Power of Attorney dated 7 June 1997, he appointed his father, Mr. Leung Shue Wah, ("Mr. Leung") as his attorney and entrusted Mr. Leung with the sale of the Property.

3. By a provisional sale and purchase agreement dated 3 July1997, Mr. Leung agreed on behalf of the Plaintiff to sell the Property to the Defendant at the price of HK$1.18 million. An initial deposit of HK$10,000 was paid by the Defendant upon signing this provisional agreement.

4. The formal sale and purchase agreement was executed by Mr. Leung on behalf of the Plaintiff and the Defendant on 16 July 1997 ("the Agreement"). A further deposit of HK$108,000 was paid by the Defendant. Completion was agreed to be on or before 6 October 1997.

5. Clause 31(a) of the Agreement allowed the Defendant to enter the Property before completion as a licensee at will for the sole purpose of carrying out interior renovation work. Accordingly, upon signing the Agreement, the keys to the Property were handed to the Defendant. Interior renovation work was duly carried out by her.

6. The Defendant was unable to complete the sale as agreed. The keys to the Property were never returned to the Plaintiff. Indeed it is the Defendant's own evidence that sometime towards the end of September 1997 she caused the locks to the Property to be changed. There are some disputes as to when the Plaintiff managed to regain possession of the Property. I shall return to this point later.

7. The Writ herein was issued on 3 December1997. On 7 April 1998, Master Poon entered final judgment for the Plaintiff for a declaration that the Plaintiff is entitled to forfeit the deposits in the total sum of HK$118,000 together with costs of the action. Master Poon also ordered that interlocutory judgment be entered for several heads of damages and claims to be assessed together with interests.

Interlocutory Judgment

8. It will be necessary for the purpose of this assessment to set out in full the terms of the interlocutory judgment entered by Master Poon. The Interlocutory Judgment is for :-

(a) Compensation to be assessed for deficiency of price arising from the resale of the Property and all expenses attending the same or any attempted resale, pursuant to clause 20 of the Agreement ;

(b) Damages to be assessed for breach of the Agreement (over and above that compensated for by virtue of paragraph (a) hereinabove) ;

(c) Damages to be assessed for trespass on the Property ; and

(d) Value to be assessed in respect of a cabinet inside the Property which the Defendant had removed or caused to be removed without the Plaintiff's prior knowledge.

Issues

9. Under paragraphs 12 to 15 of the Statement of Claim, the Plaintiff particularized his loss and damages as follows :-

(1) Damages for breach of the Agreement

(a) Loss of bargain of the sale to be assessed;

(b) Legal and other incidental expenses thrown away in the amount of $8,094;

(c) Costs of restoring and reinstating the Property to be assessed; and

(d) Loss of use of the Property from 6th to 8th October 1997 at the daily rate of $200.

(2) Damages for trespass

(a) Costs of damage to the locks and door of the Property and of prizing open the door and replacing the locks in the amount of $2,113;

(b) Legal and other incidental expenses thrown away in the sum of $20,090; and

(c) Loss of use of the Property from 9th October to 12th November 1997 at the daily rate of $200.

(3) Damages for converting the cabinet in the sum of $2,000.

1. At the hearing for the assessment of damages, the Plaintiff had re-arranged the heads of damages in order to bring them within the terms of the Interlocutory Judgment entered by Master Poon. The heads of damages sought become as follows:-

(a) Compensation pursuant to clause 20 of the Agreement

This represents loss suffered from an expected sale of the Property as a result of the falling property market and also the costs of obtaining a valuation report on the Property in the amount of $10,000.

(b) Other damages for breach of the Agreement

Apart from those items particularized in the Statement of Claim, the Plaintiff also claims the rates, government rent and management fees for the period when the Defendant was let into possession until the Plaintiff recovered possession of the Property.

(c) Damages for trespass

The items covered by this head are the same as set out in the Statement of Claim.

(d) Value of the removed cabinet

10. The Defendant effectively challenges all the heads of damages claimed. Her objections can be summarized as follows :-

(a) The Plaintiff is not entitled to claim any deficiency of price upon resale under clause 20 of the Agreement as the Plaintiff has not resold the Property. Further and in the alternative, if the Plaintiff were to be compensated for deficiency of price, credit has to be given for the deposits already forfeited by the Plaintiff. The Plaintiff readily accepts this point.

(b) The Plaintiff has no entitlement to any alternative or other common law or equitable damages which falls outside the scope of clause 20 of the Agreement.

(c) The Plaintiff has no legal entitlement to the costs of the abortive sale, being expenses which the Plaintiff would in any event have to incur independent of the Defendant's breach and also being a head of damages falling outside clause 20 of the Agreement.

(d) The costs of reinstatement is not recoverable as the Plaintiff had not, in accordance with clause 31(b) of the Agreement, required the Defendant to reinstate the Property. The Plaintiff also failed to establish that he intends to reinstate the Property. The quantum of the quoted reinstatement costs is also disputed.

(e) On the damages for trespass, the Defendant disputed the actual date on which the Plaintiff regained possession. The Defendant also did not accept the amount of costs incurred for re-entering the Property. In respect of the quantum for the loss of use of the Property, the Defendant argued that there is no evidence to substantiate the claimed level of loss. This is because the tenancy agreement, upon which the Plaintiff relied to show the market rental of the Property, had not been stamped and is therefore inadmissible as evidence.

(f) The costs of the valuation report and the legal costs prior to the commencement of the action are not recoverable as damages, as they fall to be costs of this action or the assessment.

(g) The value of the removed cabinet is challenged as a matter of quantum.

The Evidence

11. Mr. Leung gave evidence at the assessment hearing. He testified that the Property was occupied by the Plaintiff for about 1 year until mid 1997. Before that, it was used by his mother. After the further deposit was paid under the Agreement, he handed the keys to the Property to the Defendant for renovation work to be effected. After the Defendant did not complete the purchase on 6 October 1997, he did not immediately re-enter the Property because the locks to the door and gate of the Property had been changed. He eventually regained possession sometime in November 1997.

12. Mr. Leung also gave evidence on the renovation work carried out by the Defendant on the Property. He stated that the kitchen had been moved to the balcony. By that, he meant the sink, stove, gas meter, water tap and drainage pipe originally installed at the kitchen were removed and new sink, stove, water tap and drainage piping were installed in the balcony instead. A metal ceiling was also added to the balcony and the balcony was converted into an enclosed area. In addition, the partition cabinet separating the kitchen from the living room was removed. Mr. Leung said in February 1998, he arranged for a quotation to be given on the costs for the reinstatement work. No work has in fact been carried out.

13. According to Mr. Leung, after regaining possession, he arranged for the Property to be placed for sale on the market through 2 estate agents. Although some 2 or 3 people had viewed the Property, no one expressed any interest and the Property remained unsold as at the date of the assessment. He claimed that the presence of the illegal structure erected by the Defendant (meaning the conversion of the balcony into an enclosed area with kitchen facilities) had put potential purchasers off.

14. Mr. Leung is no doubt an eager witness, but he does not strike me as being articulate and precise. His evidence on the renovation work carried out by the Defendant to the Property is a good illustration of this. Despite the aid of some photographs, it had taken quite a while and after several rounds of questions that it became clear what he meant as to the extent and details of the work effected.

15. It is also evident that Mr. Leung had difficulties recalling the details of the events, especially in relation to how and when he re-gained possession of the Property. In his affirmation in support of his application for judgment, he stated that on 8 October 1997, he found the Property vacant and its doors unlocked. He did not state whether he had done anything to the locks of the Property. He, however, said that the Defendant had on several occasions thereafter until November 1997 broken into the Property and changed the locks of the doors. In his second affirmation filed for the purpose of the assessment hearing, Mr. Leung mentioned that he had both on 8th October and 12th November 1997 engaged locksmiths to break open and change the locks to the doors of the Property. In examination in chief, he said he could not re-enter the Property in October because the locks had been changed. Then in November 1997, he engaged locksmith to open and change the lock. On the following day, he found the lock of the iron gate was prized open and removed, and he had to arrange for another lock to be installed. Under cross-examination, he mentioned that, on a date which he could not recall, he found 2 males changing the lock of the Property, so he went to call the police. Upon his return, the males were gone but the door was unlocked.

16. Mr. Lee for the Defendant had submitted that Mr. Leung was a less than truthful witness. I am not prepared to go as far as that. For one thing, I note that he is an elderly person of 69 years old. It is therefore not surprising that he does not enjoy a very clear and good memory of events that occurred more than a year ago. Further, Mr. Leung struck me as rather straightforward and fair when he recounted the discussions he had with the Defendant, after the Defendant indicated her inability to complete the purchase. He did not hide the fact that he had asked for a further deposit representing 30% of the purchase price in return for a postponement of the completion. I do not consider that Mr. Leung had been lying or dishonest in his evidence, including his account as to when and how he re-entered the Property. What I do accept is that his recollection on the events is at times confusing and has to be approached with some caution.

17. The Plaintiff has also called Mr. Cheuk Chuen, who prepared the quotation for the reinstatement work. He gave evidence that on Mr. Leung's request, he visited the Property to view its condition before making out the quotation. He considered the price he gave to be a fair and reasonable one. In my judgment, Mr. Cheuk is a truthful and fair witness whose evidence I can rely and act upon.

18. The Defendant had also given evidence. She testified that after obtaining the keys to the Property, she arranged for decoration work to be carried out. The work is mainly to convert the balcony into a kitchen. This involves moving the sink originally inside the flat to the balcony and discarding the partitioning cabinet at the living room. A stove was additionally installed at the balcony. She accepted that a plastic ceiling had been installed to the balcony. However, in her witness statement she said that a metal roof had been added on top of the existing plastic ceiling of the flat roof, which is easily removable" (paragraph 8(a)). On the other hand, she also denied having constructed any concrete structure on the roof top (paragraph 5). The witness statement was adopted by her as part of her evidence. Reading the witness statement together with her oral testimony, it would appear that the Defendant had extended the canopy of the balcony and converted the balcony into an enclosed area and then lined the canopy with a plastic ceiling. In fact, it is evident from the second photograph on p.69 of the Bundle of Documents that an additional metal roof had been erected beneath an old metal canopy in the balcony. The Defendant also accepted that she had discarded the partitioning cabinet originally on the Property, but she said that it was already rather old and was of no use to her.

19. Both the Plaintiff and the Defendant had called surveyors to give expert evidence on the value of the Property. Mr. Chan King Chuen, the Plaintiff's surveyor was of the opinion that the market value of the Property was $1.2 million as at 6.10.1997, the scheduled date of completion, and it was $1.1 million as at 12.11.1997. The Plaintiff had attempted to adduce at the assessment hearing an additional report by this expert on the latest value of the Property. This was objected by the Defendant and I had ruled in favour of the objection. I took the view that it was too late in the day to introduce the report as the Defendant would be unduly prejudiced. The latest value of the Property is also remotely relevant to the issues at the assessment, a point which I shall return to deal with later.

20. As for Mr. Lam Chun Chiu, the Defendant's surveyor, he valued the Property to be worth $1.24 million as at the scheduled date of completion. Although they had different emphasis on the factors affecting the value of the Property, the difference between the 2 experts in terms of the valuation is admittedly very small. In fact, some of the comparables they used were the same. It is Mr. Lam's evidence that the valuations given by Mr. Chan are within acceptable range.

Compensation pursuant to clause 20 of the Agreement

21. Clause 20 of the Agreement provides inter alia that :

"If the purchaser shall fail to complete the purchase of the Property in accordance with any of the terms and conditions of this agreement the deposit money shall be absolutely forfeited to the vendor who may ... rescind this agreement and either retain the Property ... or resell the same ... . Any deficiency arising from such resale and all expenses attending the same or any attempted resale shall be made good by the Purchaser as and for liquidated damages, and any increase in price realized by such resale shall belong to the Vendor. This clause shall not preclude or deemed to preclude the Vendor from taking other steps or remedies to enforce the Vendor's rights under this agreement or otherwise. ... This clause shall not prevent the Vendor recovering, in addition to liquidated damages, damages representing interest paid or lost by him by reason of the Purchaser's failure."

22. It is not in dispute that despite attempts to place the Property on the market, there is no resale of the Property and the Plaintiff remained the registered owner of the Property as at the date of the assessment hearing. It follows that there cannot be a claim for deficiency in price arising from a resale. Mr. Cheung for the Plaintiff however argued that the Court can and should assess the deficiency of price on the basis of an expected resale. I do not agree. A plain reading of clause 20 of the Agreement shows that it confers upon the Plaintiff as vendor the options of retaining or reselling the Property. Where he resells the Property, he can claim the deficiency of price or keep the increase in price, whichever is applicable. The entitlement to claim a deficiency can only arise when the Plaintiff elects to resell, hence an actual resale. There is thus no room for a deficiency based on an expected resale.

23. As there is no resale, there will also be no claim for expenses arising from a resale. The evidence also does not show that the Plaintiff or his attorney, Mr. Leung, had incurred any costs in attempting to resell the Property. The costs of the valuation report is not an item of expenses arising from a resale or an attempted resale. It is, as submitted by the Defendant, the costs of the assessment. Accordingly, the Plaintiff is not entitled to recover any compensation from the Defendant under the first head of damages directed to be assessed by the Interlocutory Judgment.

Damages for breach of the Agreement over and above deficiency of price arising from resale

(a) Loss of bargain

24. The Plaintiff had sought, as an alternative, to recover from the Defendant loss of bargain of the sale, represented by the difference between the price under the Agreement and the market value of the Property at the time of the Defendant's breach. Mr. Cheung submitted that the scheduled completion date should not be taken as the time of the Defendant's breach. This is because the parties entered into further negotiations thereafter such that the Agreement had not been rescinded. Mr. Cheung contended that the relevant date for assessing the market value of the Property should be the date of the issue of the Writ. Alternatively, it was submitted that the Plaintiff should be afforded a reasonable period of time to resell the Property so that either March or April 1998 or the date of the assessment should be taken as the relevant date for ascertaining the market value of the Property.

25. For the Defendant, it was argued that clause 20 of the Agreement provides an exhaustive mode for assessment of damages. Damages for deficiency of price having been provided for by clause 20 as liquidated damages, there is no additional entitlement to common law or equitable damages for deficiency of price by way of unliquidated damages. It was further argued that damages over and above that compensated by clause 20 can only relate to damages other than deficiency of price.

26. In my judgment, the purpose and effect of clause 20 are to enable, in the event of a resale, the deficiency of price to be recovered as liquidated damages. I do not read it as providing a comprehensive or exhaustive list of damages and remedies available to the vendor in the event of the purchaser's breach. This is obvious upon a plain reading of the clause itself. The clause does not have the effect of preventing the vendor from recovering from the purchaser other loss and damages, whether in common law or equity and be it liquidated or otherwise. The vendor may recover from the purchaser common law damages for loss of bargain arising from a falling market so long as he has not already recovered from the purchaser damages for deficiency of price. It follows that in the present case, had the Plaintiff resold the Property and suffered a loss, then the Plaintiff's claim of damages should be for deficiency of price under clause 20, being the difference between the price under the Agreement and the resale price. Where the Plaintiff had not resold the Property, but suffered a loss upon the Defendant's failure to complete because of the falling property market, he is entitled to claim against the Defendant for his loss in common law. The loss is measured by the difference between the price under the Agreement and the value of the Property as at the time of the breach : see McGregor on Damages (16th edition) para. 992. This common law remedy is not quite the same as the remedy provided for under clause 20. It is a separate and distinct head of damages capable of being assessed under the second head of damages to be assessed under the Interlocutory Judgment entered herein.

27. For the purpose of calculating this loss, the Court has to ascertain the market value of the Property as at the scheduled date of completion, which is normally when the breach occurs. In determining the market value, the Court may refer to the resale price, and, if there is no resale, to the price obtainable on a resale. According to the Plaintiff's surveyor, the Property had a market value of 1.2 million as at the scheduled completion date whereas the Defendant's surveyor valued the Property to worth $1.24 million at completion. Both valuations are higher than the price under the Agreement, namely, 1.18 million. There is therefore no loss of bargain of the sale. In this regard, it is worth noting that when Mr. Leung tried to resell the Property, his asking price was between $1.18 million and $1.28 million : see Bundle of Documents at pp. 40-41A. Although there was no successful sale, the price nominated by Mr. Leung is indicative of his perception and understanding of what the market value of the Property was around the time of completion. It also goes a long time to negative the Plaintiff's claim for loss of bargain of the sale as a result of a falling market.

28. I am unable to accept the Plaintiff's submission that the relevant date for assessing the market value of the Property should either be the date of the Writ or March or April 1998 or the date of the assessment hearing. It is clear from the letter dated 6 October 1997 from the Plaintiff's solicitors to the Defendant's solicitors (Bundle of Documents, p.37) that the Plaintiff had accepted the Defendant's breach and had elected to terminate the Agreement by asking for the return of the keys as well as delivery up of vacant possession. It is further the evidence of Mr. Leung that he had as early as 8 October 1997 first attempted to regain possession of the Property by engaging locksmiths to prize open and change the locks. There can be no doubt that the Agreement had come to an end on 6 October 1997 upon the Defendant's failure to complete. The discussions between Mr. Leung and the Defendant after that date are no more than unsuccessful negotiations for settlement and cannot serve to keep the Agreement alive or revive it.

29. Similarly, there is no basis for adopting March or April 1998 or the date of the assessment hearing as the time for assessing the market value of the Property. The material consideration is the market value of the Property at the time of the breach of contract and not whether the Plaintiff should be allowed a reasonable time to resell the Property.

30. In short, while I accept that the Plaintiff could in principle have claimed for damages for loss of bargain of the sale as a result of the Defendant's breach, I do not find that the Plaintiff has suffered any actual loss on the evidence before me. There is therefore nothing to be recovered under this item.

(b) Wasted legal costs and other expenditure

31. The amount claimed is $8,094 and this represents legal costs and disbursements incurred as a result of the abortive sale. I agree with Mr. Lee, who appeared for the Defendant, that these are not recoverable. This is because these expenses would have been incurred irrespective of whether the Defendant had defaulted; and putting the Plaintiff into the position he would have been in had the Agreement been performed still entails his having incurred these expenses: see McGregor on Damages (16th editiion) para. 995.

(c) Costs of reinstating the Property

32. As explained above, I am prepared to accept Mr. Leung's evidence that the Defendant had carried out renovation as well as alteration work to the kitchen and balcony of the Property. As such, when the Defendant failed to complete the Agreement, she is obliged under clause 31(b) of the Agreement to remove all the works done and to reinstate the Property, if so required by the Plaintiff.

33. It is unclear from the evidence of Mr. Leung as to whether or when he had asked the Defendant to reinstate the Property. However, it is plain from these proceedings that the Plaintiff does require the Defendant to reinstate the Property. It is also apparent from the supplemental witness statement of the Defendant, which had been adopted as part of the evidence, that the Defendant did not object to paying the costs of reinstating the Property. She only disagreed to the costs of removing any illegal structure and alteration on the Property which existed before she was let into possession. On this point, there can be no doubt that the Defendant's liability should not extend to alteration work not done at her instruction. The quotation prepared by Mr. Cheuk, however, is only in respect of 3 heads of work, namely, to reinstall the kitchen sink and stove at their original positions; to remove the metal ceiling added at the balcony and to reinstall the wire net at the roof top and to remove the rubbish at the site. All these relate to the work carried out to the Property at the instruction of the Defendant.

34. It is a fact that despite obtaining the quotation in February 1998, almost a year before the assessment hearing, the Plaintiff had not caused the work to be effected. The Defendant's concern that the Plaintiff might not have any intention to reinstate the Property is therefore understandable. Notwithstanding that, the fact remains that converting the balcony into a kitchen is an unauthorised alteration of the structure of the Property and may be subject to enforcement action by the Building Authority. This is a view taken by the Defendant's surveyor in his report (Bundle of Documents, p.118). This being the case, the Property will have to be reinstated in due course either by the Plaintiff or by a future purchaser but at the Plaintiff's expenses. The Defendant's surveyor had also made a deduction to the value of the Property to take into account the reinstatement costs. The costs of reinstating the Property is thus an item of expenses which the Plaintiff is entitled to recover from the Defendant.

35. On the issue of the quantum, I accept on the evidence of Mr. Cheuk that the price he quoted for the work is a reasonable one. The Defendant's surveyor had given an estimate of $30,000 as the reinstatement costs, which is to cover the removal of the ceiling at the balcony thereby restoring it into an open balcony, the restoration of the parapet wall at the roof top and of the partitioning wall between the kitchen and the living room as well as the reinstallation of the piping and drainage. It is to be noted that the expertise of Mr. Lam, the surveyor, is mainly in property valuation. He had not explained the basis of his estimate, such as the number of workmen or shifts of work required. There is also no breakdown for the items of work. His estimate had also not included work for installing the sink and stove and clearance of the rubbish. By contrast, Mr. Cheuk has been involved in decoration work and had been operating as a sole proprietor in the field for 3 years. He had justified the breakdowns in his quotation by reference to the labour, time and work required. I consider Mr. Cheuk's evidence and his quotation are to be preferred to that of Mr. Lam. The Plaintiff is therefore entitled to recover $38,000 from the Defendant as reinstatement costs.

(d) Rates, government rent and management fees

36. Clause 31(a) of the Agreement provides that the Defendant shall be responsible for paying the rates, management fees, utility charges and other outgoings in respect of the Property for the period during which she was let into possession as licensee.

37. The Defendant does not contest her liability under clause 31(a). She also does not dispute that she had not paid for the rates, government rent and management fees since being given the keys on 16 July 1997. The Defendant is therefore liable to reimburse the Plaintiff these expenses for the period between 16 July and 6 October 1997, which is the scheduled date of completion. Upon the failure to complete and the termination of the Agreement, the licence came to an end. As to the expenses for the period thereafter, that falls to be part of the damages for trespass, which is to be dealt with later in this Judgment. The calculation under this item is therefore as follows :-

(i)	Rates from 16.7.97 to 6.10.97 at $715.50 per quarter	$ 645.51
	(i.e. $715.50 x 83/92 days)
(ii)	Government rent from 16.7.97 to 6.10.97 at $429.30	$ 387.3
	per quarter (i.e. $429.30 x 83/92 days)
(iii)	Management fees from 16.7.97 to 6.10.97 at $450	$1,215
	per month (i.e. $450 x 2 months + $450 x 21/30 days)	___________
	Total :	$2,247.81

(e) Loss of use of the Property from 6th to 8th October 1997

38. Under clause 31(b) of the Agreement, the Defendant is obliged to forthwith deliver up vacant possession upon her failure to complete the purchase. It is clear from the evidence that the Defendant had not complied with her obligation. She had changed the locks to the Property, but had not handed over the keys when she did not complete the purchase.

39. According to Mr. Leung, he first regained entry to the Property on 8 October 1997. The Defendant did not contest this. The only challenge by the Defendant is the basis for computing the loss. The Plaintiff seeks to rely on the rent payable under a 3 months tenancy that he secured in March 1997. The Defendant objects to the admissibility of the tenancy agreement on the ground that it had not been duly stamped, relying on section 15(1) Stamp Duty Ordinance, cap. 117.

40. While the tenancy agreement was in fact not stamped such that it may not be admissible as evidence, Mr. Leung had given oral evidence on the tenancy agreement and its terms, including the monthly rental payable. He had also been cross-examined on the same. The rent payable under the tenancy agreement is therefore already in the evidence. The Court does not have to refer to the tenancy agreement itself to ascertain the fact.

41. Mr. Lee had also argued that the rent payable under the tenancy agreement might not be an accurate reflection of the market rent of the Property because the tenancy was a short term one. This may or may not be true, but in the absence of objective or supporting evidence, it is not for the Court to speculate that the rent payable under the tenancy agreement was inflated because it involved a short term tenancy. I am prepared to adopt the rent payable under the tenancy agreement, being the sum of $6,000, as the basis for calculating the loss under this item. The sum to be recovered under this head is therefore $6000 x 2/30 days = $400.

Damages for Trespass

(a) The costs of the locksmith

42. The Plaintiff claims $2,113 as the costs of engaging locksmiths to prize open and replace the locks to the Property. According to Mr. Leung, he had on several occasions between October and November 1997 prized open and/or replaced the locks to the door and iron gate of the Property. I had in the earlier part of this Judgment pointed out that his evidence on this part is rather confusing and had to be approached with caution. Apart from his oral testimony, there is in evidence several invoices and receipts issued by a locksmith and a metalware shop. These documents show that on 11 October 1997, locksmith had been engaged to prize open the wooden door and to change and replace the locks to the wooden door and the iron gate. They also show that on 12 November 1997, a lock or padlock and a door handle had been purchased. In my view, these invoices or receipts provide support to Mr. Leung's evidence that the Property had been broken into despite change of the locks on 8 October 1997, and that it was until after 12 November 1997 that possession was recovered without further interference. It is true that there is no direct evidence to suggest that the interference to possession was at the instigation of the Defendant. However, it would be too much of a coincidence that there was other third party attempting to gain entry to the Property during the 2 months after the scheduled completion date when admittedly Mr. Leung and the Plaintiff were engaged in discussions for reviving the transaction.

43. The total costs under these invoices or receipts come to $1,885, which is $228 short of the amount claimed. No explanation had been given by Mr. Leung in his evidence. Mr. Cheung in his final submission explained that it was because some of the invoices or receipts had been lost. Be that as it may, the Court cannot accept an explanation that came from counsel, but never alluded to by the witness(es). The Plaintiff should therefore only be entitled to recover $1,885 under this item.

(b) Legal and other expenses thrown away

44. The amount claimed is $20,090, representing legal costs incurred by the Plaintiff prior to the commencement of this action in connection with demanding the keys to the Property, return of title deeds and negotiating and corresponding with the Defendant's legal representative. The Defendant rightly observes that these are part of the costs of this action and should be recovered as such, subject to taxation, instead of being an item of loss or damage to be assessed at this assessment.

(c) Rates, government rent and management fees

45. The Defendant's main objection to this item is the date on which the Plaintiff finally recovered possession, hence the end of the trespass by the Defendant. I had, when dealing with the costs of the locksmiths, indicated that I accept that it was until 12 November 1997 that the Plaintiff managed to regain possession without further interference from the Defendant. Mr. Lee in his final submission argued that the changing of the locks by the Defendant may be a trespass to the chattel, but is not evidence of trespass to the Property. With respect, I cannot agree. By changing the locks, the Defendant had denied the Plaintiff access to the Property and had thereby interfered with the Plaintiff's possession and rights therein. The Defendant did not have to be in physical possession or occupation of the Property in order to be trespassing on the Property. It follows that the Defendant is liable for these outgoings for the period from 7 October to 12 November 1997. The calculation appears as below :-

(i)	Rates from 7.10.97 to 12.11.97 at $715.50 per quarter	$287.76
	(i.e. $715.50 x 37/92 day)
(ii)	Government rent from 7.10.97 to 12.11.97 at $429.30	$172.65
	per quarter (i.e. $429.30 x 37/92 days)
(iii)	Management fees from 7.10.97 to 12.11.97 at $450	$540
	per month (i.e. $450 + $450 x 6/30 days)	___________
	Total :	$1000.41

(d) Loss of use of the Property

46. The objections taken by the Defendant on this item are the period of trespass and the basis for computing the loss, both of which had been dealt with in the earlier parts of this Judgment. I consider that the Plaintiff is entitled to recover this item of loss as claimed, namely, at $6000 per month for the period from 9 October to 12 November 1997. The calculation is $6000 x 35/30 days = $7000.

Value of the Cabinet

47. The Defendant admitted having discarded the cabinet. Mr. Leung's evidence is that the cabinet was purchased at $4,000 2 years ago in 1995. The Defendant testified that the cabinet was old and of no value. I have no doubt that she did not think much of it, otherwise she would not have thrown it away. But that does not mean that it has no value at all when it comes to assessing the loss and damages of the Plaintiff. Mr. Lee had suggested to Mr. Leung in cross-examination that the cabinet only had a current value of $2,000, which Mr. Leung agreed. In his final submission, Mr. Lee however submitted that the value should be fixed at $1,000. There is simply no evidence before me to support such a suggestion and the basis for this estimate had also not been explained. As Mr. Leung had conceded and accepted $2,000 as the value of the cabinet and that it is reasonable to allow a 50% depreciation for a 2 years' period, I will award the Plaintiff this amount to represent his loss occasioned by the Defendant's act of converting the cabinet.

Conclusion

48. The total amount of damages which the Defendant is liable to pay to the Plaintiff is as follows :-

(1)	Compensation under clause 20 of the Agreement		nil
(2)	Other damages for breach of agreement
	(over and above that under (1))
	Loss of bargain	nil	$40,647.81
	Wasted legal costs and expenses	nil
	Costs of reinstating the Property	$38,000
	Rates, government rent & management fees	$2,247.81
	Loss of use of the Property	$400
(3)	Damages for trespass
	Costs of the locksmiths	$1,885	$ 9,885.41
	Wasted legal costs and expenses	nil
	Rates, government rent & management fees	$1,000.41
	Loss of use of the Property	$7,000
(4)	Value of the cabinet		$ 2,000
			_________
	Total :		$52,533.22

49. Accordingly, there will be judgment for the Plaintiff against the Defendant for the sum of $52,533.22, together with interest thereon at judgment rate from the date of the Writ to date of payment. As the Defendant is legally aided, I make a costs order nisi that there shall be no order as to costs of this assessment, save that the Defendant's own costs be taxed under the Legal Aid Regulation. The order nisi is to be made absolute after the expiration of 14 days from the handing down of this Judgment.