ATTORNEY GENERAL v. RUBY PROFIT COMPANY LTD.

1988 No.A4927

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. This assessment is pursuant to interlocutory judgment obtained against defendant in default of his entering appearance to defend. Notice of this hearing was duly served but defendant was absent.

2. At the outset plaintiff's counsel applied to amend the statement of claim and handed in her draft amendment. The amendment concerns a clerical mistake resulting in a mathematical error in calculating the particulars of damages. It was granted without service on the defendant Pursuant to O.65 R.9, RSC.

3. The claim involves the lease of a shop in the International Airport owned by the Government and put out to tender by the Civil Aviation Department. The plaintiff's evidence was given by Mr. Ho Tin Ching, the Department's Teasury Accountant, who said he handled the matter on behalf of the Director of Civil Aviation.

4. The proposed tenancy was for 12 months from 18th October 1985 and the terms of the tender were set out in the Government's Standard tender form. This form was completed by defendant company, which turned out to be the highest bidder at $1,760,009.00 per month. This bid was accepted by the Government: according to Mr. Ho, who produced defendant's tender as Exhibit P.1

5. Subsequent to the date of Government's acceptance as pleaded, Defendant company repudiated the agreement M Mr. Ho produced as Exhibit P.2 their letter to this effect dated 3rd October 1988. The Government evidently accepted this repudiation as the tenancy was then awarded to the 3rd highest bidder, the 2nd highest having by then withdrawn. This tender was in the sum of $1,050,000.00 per month from Leone Finance Co. Ltd., according to Mr. Ho's evidence.

6. Mr. Ho explained that the premises were vacant from the projected commencement date of 18th October 1985 upto 22nd December 1985. The damages claimed in this regard are therefore the full rental for that period in terms of defendant company's tender.

7. From 23rd December 1985 onwards, the replacement tenant paid the lower rent until the end of the tenancy on 17th October 1986. For this period the plaintiff claims as damages the difference between the rental defendant was to have paid and the rental actually paid by the replacement tenant.

8. The plaintiff also claims interest to the date of the writ on the increasing damages at the rate of 6.125% per annum. Mr. No produced as Exhibit P.3 in support of this claim a schedule in which he calculates the interest accruing month by month to the date of the writ.

9. I am satisfied that the plaintiff has mitigated its damages by leasing the premises to the replacement tenant from 23rd December 1985. The damages claimed I find to be directly attributable to defendant company's breach of its contract. I duly award the sum of $10,639,463.00 as damages in terms of the first paragraph of the prayer in the amended statement of claim.

10. I am also satisfied that the schedule of accumulating interest represents plaintiff's loss in that respect to date of writ, 12th July 1988. The. rate claimed of 6.125% per annum is reasonable and I award the sum of $1,536,687.76 under the second paragraph of the prayer.

11. Further interest on the principal sum due will run from writ to judgment at 1% over prime rate. Costs are awarded to the plaintiff.