TOIVANEN TAINA SYLVIA v. OSMAN AZIZA

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The parties came before me on an assessment of damages after interlocutory judgment was entered for the Plaintiff upon the Defendant's failure to comply with an unless order.

2. The claim was one for damages for trespass, detinue and/or conversion of the Plaintiff's properties. The facts show that the Plaintiff entered into an oral tenancy agreement with the Defendant in or about August 1992, to sublet a fully furnished flat at 8C, Wing Cheung Mansion, 78, Morrison Hill Road, Hong Kong. ("the Flat") at a monthly rental of $8,000 inclusive of rates and management fees for a period of 1 year to 31st July 1993. The Plaintiff moved into the flat on or about 5 September 1992. The flat was of an area of around 700 sq. ft. and had 2 bedrooms. As it had all the requisite furniture and electrical appliances, and bed linen, she did not need to purchase anything except move in with her clothes

3. In or about mid January 1993, at the Defendant's request the Plaintiff granted the Defendant a licence to occupy one of the bedrooms of the flat temporarily on an ex gratia basis. The Licence was terminable by the Plaintiff upon reasonable notice to the Defendant. Despite the licence granted to the Defendant, the Plaintiff remained the sub-tenant of the Defendant under the terms of the oral tenancy agreement.

4. In about April 1993, the Defendant and the Plaintiff reached an oral agreement for the renewal of the Plaintiff's tenancy of the property for a period of 2 years to 31 July 1995.

5. On about 1 May 1993, the Plaintiff terminated the licence for the Defendant to occupy the Flat. Despite that the Defendant refused to leave the flat. Instead, the Defendant on the 12 May 1993 barred the Plaintiff entrance to the Flat and denied her access to the Flat and her belongs within the flat.

6. On the 17 May 1993, without any prior notice to the Plaintiff, the Defendant threw away the Plaintiff's personal belongings left within the Flat, including clothes and electrical appliances on the floor of the ground floor lobby of the said Wing Cheung Mansion.

7. The Plaintiff who gave evidence testified to the aforesaid facts. She further stated that she was a fund manager, employed as a senior investment manager at Indo Suez Asset Management Asia Ltd. When she was denied entrance into her flat she had only the clothes she wore. From 12 to 15 May she was wearing the same clothes and also had 1 borrowed shirt. As she was unable to recover her clothes from the flat and as she was going on a business trip to Europe, she needed clothes, so she went to buy clothes. She submitted a list of the clothes she bought including underwear, 4 jackets, 4 skirts, 3 T-shirts, 1 pair of shorts, 3 blouses, and 2 body suits. The total of the items of clothing with invoices shown at pages 54, 55 and 56 of the Plaintiff's bundle amount to $410 + $5900 + $9126 = $15,436. The underwear was purchased from Marks & Spencer on the 15 May and the other items of clothing was bought on the 16 May. It was only on the 17 May that the Plaintiff was informed by the management office of Wing Cheung Mansion to go to their office to collect her clothing and other property left by the Defendant for her collection.

8. The Plaintiff stated that she entered into a new tenancy agreement in respect of premises at 8, Mosque Street, 2/F, Mid Level, Hong Kong for a 2 bedroom flat of around 800 sq. ft. which was unfurnished for a term of two years at a rent of $11,000 per month exclusive of rates and management fees. She stated that she paid rates at $1,052 for the first 3 months, subsequently at $1,106 for 3 months and now pay rates at $1,258 for 3 months. She pays her share of water charges, garbage collection and other common expenses at $100 per month. She had to buy all furniture, electrical appliances, and linen to furnish her apartment.

9. The Plaintiff claimed the following items of damages for trespass:-

1. The monthly market rental value of the premises above the actual rent payable under the oral tenancy agreement with the Defendant for the period unexpired of the tenancy, namely, from 12 May 1993 to 31 July 1995. The Plaintiff's Solicitor produced a valuation report marked Exh P 1 prepared by Mr. Robert A Pendleton of Chesterton Petty, Valuers. Mr. Pendleton gave his opinion that the rental value of the Flat from May 1993 on the basis of a furnished flat at a rent inclusive of rates and management fees is $12,500 per month. The Plaintiff claimed as the 1st item of damages the difference between $12,500 and $8,000 multiplied by the period unexpired of the tenancy at the time when the trespass occurred, namely, on the 12 May 1993. This comes to 261/2 months multiplied by $4,500 making a sum of $119,250.

2. The sum of $5,500 estate agent's commission expended in looking for an alternative flat at 2nd Floor, 8, Mosque Street, Hong Kong which she rented as from 1st June 1993. A copy of the tenancy agreement in relation is at pages 47 to 51 of the Plaintiff's Bundle of documents. A copy of the receipt of the estate agent's commission is at page 46 of the same Bundle of documents.

3. The price of items of clothing that the Plaintiff bought as a result of having been deprived of the use of her clothes. This had been referred to earlier and amounts to $15,436.

10. Defendant's Solicitor challenged the method of assessing loss in item 1 of the items of damage claimed. However it is clear that the Defendant had denied the Plaintiff of the use of the property over which she had a sub-tenancy and was entitled to exclusive possession under the terms of the oral sub-tenancy. In fact the action is trespass by the Defendant or in other words for wrongful occupation by the Defendant of the premises. The normal measure of damages is the market rental value of the property occupied or used for the period of wrongful occupation or user. [see MacGregor on Damages 15th Edition. paragraph 1420 Chapter entitled Torts Affecting Land, II Occupation and User]. As the Plaintiff's entitlement to user under the oral tenancy was subject to the payment of monthly rental at $8,000 inclusive of rates and management expenses, the Plaintiff's entitlement to damages under this head would be the market value of the rent for the premises less the rent she would have to pay under the oral tenancy for the remainder of the term from date of the trespass by the Defendant. I therefore find that the Plaintiff is entitled to the 1st item of damages as claimed in the sum of $119,250.

11. The second item of damage is compensation in respect of detinue. I award the Plaintiff the 2nd item of damages claimed for clothing purchased by her. According to her evidence, she had no idea as to when the Defendant would return to her her clothing left in the Flat. She stated that she was employed as a Senior Fund Manager and was required to dress according to the level of her employment. She also stated that she was going on a business trip to Europe and required the wardrobe for the trip. I accept her evidence on this. She is entitled to be compensated for the loss suffered by her which is the additional expense she was put to, to fit out her wardrobe.

12. The 3rd item of claim is a straightforward loss flowing from the Defendant's actions, that is the requirement to pay an estate agent for commission in respect of her new tenancy. I award this to her.

13. Damages is assessed in the sum of $140,186. I make an order for costs nisi to be taxed if not agreed.