KEEP POINT DEVELOPMENT LTD. v. CHAN CHI YIM AND OTHERS

CACV 1027/2000
CACV 322/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 1027 OF 2000 AND 322 OF 2001

(ON APPEAL FROM HCMP NO. 6550 OF 1998)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a judgment of Deputy Judge Woolley given on 20 June 2000. The judgment was in respect of third party proceedings brought by the defendants against two third parties. Since the 1st third party ("Full Country") had been put into liquidation on 4 November 1998, the reality of the situation was that the claim was against the 2nd third party, a firm of solicitors.

Background

2. The background to the matter has been set out in two judgments of the deputy judge. The first dated 14 March 2000, [2000] 2 HKLRD 145, being the judgment in the main action between the plaintiffs and the defendants and the second, [2000] 3 HKLRD 166, the judgment of 20 June. For the most part, the facts are not disputed and can be taken from the judgments.

3. There are 63 defendants. They were all owners of units, some residential units and others shops, in 5 buildings (Blocks A, B, C & D and No. 82 Sheung Fung Building) which formerly stood on 3 contiguous plots of land ("the premises") in Wong Tai Sin. The owners of those premises, including the 63 defendants, were approached on behalf of Full Country with a view to their selling their flats, so that the premises could be redeveloped. The approaches came in 1993 and, most likely, 1994. The approaches were made on the basis that instead of obtaining the full purchase price the owners could, instead, obtain equivalent or similar accommodation in the new development to be put up by Full Country (which was later to be called "Vista") or, alternatively, another of their developments "Profit Mansion".

4. Whilst the main action was against all 63 defendants and indeed all 63 defendants took proceedings against the third parties, the parties agreed to sample defendants being taken as the basis for the decisions in respect of all defendants.

5. It would appear that provisional sale and purchase agreements were signed between each of the 63 defendants and Full Country. This court has been shown translations of two of these and they are in similar form. As an example, the provisional sale and purchase agreement of Kwan Suk Ching can be referred to. It appears to be undated. It relates to flat D2 on the 5th floor and the roof of Block D of Sheung Fung Building. The transaction price is stated to be $1.2 million. The sale was to be completed by 31 May 1994. There was an initial deposit of $5,000 with a further deposit of $10,000 by the end of March 1994. A final deposit of $105,000 was to be paid on the date of completion when vacant possession was to be given. Full Country was entitled under the agreement to apply the whole of the balance of the purchase price towards the purchase by Kwan of a similar flat in the new building which would be developed by Full Country. The unit was to be similar in size to the vendor's existing premises. The balance of the purchase price was to constitute the full price which the vendor would have to pay for the new flat. In addition the vendor would be entitled to a rental allowance of $6,000 per month for 18 months commencing on the date when all owners of all 4 blocks move out from their premises and $8,000 per month thereafter until occupation of the new building. The vendor would also be entitled to a moving allowance of $10,000 and compensation of $200,000 in respect of the roof.

6. Two further matters are of note in respect of this document. In the first place, if Full Country failed to complete all the formalities regarding the purchase of the properties in Sheung Fung Street and Wan Fung Street by 31 May 1994 it would be entitled to annul the agreement but the vendor would not have to reimburse any monies already paid. In the second place, although it was stated that the formalities would be proceeded with on the transaction date and that the agreement only needed to be stamped at the Stamp Office, there is no suggestion in the document that the provisional sale and purchase agreement could not be registered.

The formal documents

7. The defendants were at various times introduced to the 2nd third party by those acting on behalf of Full Country. The 2nd third party was to act as the solicitors for the defendants. The solicitors' costs were to be paid by Full Country. It appears that, for the most part, the partner in the 2nd third party firm who had the conduct of the matter interviewed and advised the defendants in batches. A large number of cases were processed in May 1994 and others in October. A few of the cases appear to have been processed at other times, but nothing turns on that. In respect of Kwan Suk Ching, a formal sale and purchase agreement was signed between the vendor and Full Country as the purchaser on 1 October 1994. The contract price remained $1.2 million. The document expressed the deposit of $20,000 as having been paid.

8. It may be noted that there was deleted from the agreement a clause which allowed Full Country to rescind the agreement should it not be able to acquire all the units in the Wan Fung Street premises by 30 September. It is quite possible that in respect of other defendants a similar clause was operative, and possibly for other days and in respect of the other buildings.

9. On 4 October 1994, Kwan Suk Ching together with Watt Kin Shing signed what has variously been referred to as the option or swap agreement with Full Country. That provided that the sum $1,080,000 was acknowledged as received by Full Country as payment for a flat in one of the buildings which would be built on the site of the old flat or alternatively a flat in the other premises, "Profit Mansion", which was in the course of being built nearby. Although expressed as an option, it was clearly a sale since it was provided in the agreement that there would be no refund of the purchase price in the event that the new flat was not taken up by Watt and Kwan. The agreement contained a number of other clauses. In particular, there was to be a rental reimbursement starting on 1 December of $8,000 per month. This would rise to $10,000 per month from 1 June 1996. The rental allowance was to be until the completion of the sale of the new flat. There was to be a payment of $210,000. This was expressed as removal and decoration reimbursements. The agreement was said to supersede all previous agreements. Finally and importantly, there was clause 6.4 that read:

"The parties hereto agree that this Agreement shall not be registered at the Land Registry."

10. The completion statement shows that the $1,080,000 was taken from part of the balance of the purchase price of the old flat. It can be noted that although the option/swap agreement refers to $210,000 being removal and decoration reimbursement, the completion statement itemises the removal reimbursements as $10,000 and roof compensation as $200,000.

11. A question arose as to whether the 2nd third party had knowledge of the original provisional sale and purchase agreements. The judge said at [2000] 3 HKLRD 173I that it was not clear whether the solicitor who handled the matter was aware of the existence of those agreements or saw a copy at the time.

A. The first point to be noted is that in the pleadings in the third party proceedings it is pleaded by the defendants and admitted by the 2nd third party that the defendants entered into the provisional sale and purchase agreements.

B. The judge noted at [2000] 3 HKLRD 176F that some of the defendants had brought their copies of the provisional sale and purchase agreement with them when they went to the offices of the 2nd third party.

C. In the passage from paragraph 39 of the solicitor's witness statement which is quoted by the judge in the judgment, [2000] 3 HKLRD 166 at 180 C-D, the solicitor states that it was his understanding that the defendants had agreed with Full Country that their options to purchase the new units would not be registered at the Land Registry. On the basis that the solicitor understood that the defendant had already reached agreement with Full Country, it may not be reading too much into the statement to derive the implication that any such agreement must have been in writing otherwise there would have been no question of it not being registered. It might be mentioned that the paragraph in the statement refers to the provisional sale and purchase agreements stating that "the documentation in respect of the options would only need to be stamped."

D. In cross-examination just before the mid-day adjournment on the 11th day of the trial the solicitor said that although he knew that the defendants had reached agreement with Full Country he was not aware of the provisional sale and purchase agreements. He then went on to say that he came to know of those agreements "in the case of the October batch, I knew a few days before they signed the Option Agreement."

12. From this it might be concluded that the solicitor probably had not seen many of the provisional sale and purchase agreements before the documentation for which he was responsible was executed, although it appears he most probably saw some at least before the October option agreements. Nevertheless, clearly the solicitor had means of knowledge and, had full inquiries been made, he would have become aware of those agreements and, almost certainly, have been provided with copies, had he wanted them.

13. It would appear that although Full Country succeeded in obtaining ownership of the two sites and demolished all the buildings, by the end of 1995 things had already begun to go wrong. The rental allowances were not paid on time or at all.

14. As recorded by the judge, approaches were made on behalf of Full Country to the plaintiff for financial assistance. On 30 December 1996, the land was sold to the plaintiff, albeit with an option to allow Full Country to buy back the project on certain conditions. Those conditions were never met. The assignment to the plaintiff was registered in the Land Registry on 31 January 1997.

15. Following that there were newspaper reports which brought the matter to the attention of the defendants. In 1998, those of the defendants who had taken flats in Profit Mansion began to receive demands from banks and finance companies demanding repayment of mortgage loans. The judge noted that by October 1998, the defendants realised that they may well have been the victims of breach of contract, if not deception. Full Country, as noted above, was wound up on 4 November 1998. Later in November and in December 1998, the defendants registered their option agreements with the Land Registry. It was as a consequence of that that the main action was commenced.

16. Although the plaintiff in the main action sought to have the defendants' registrations vacated immediately, that was unsuccessful. It is unnecessary to recount the details of that action save to say that the basis of the defence appears to have been an attack upon the validity of the plaintiff's priority. Indeed, there appeared to have been grounds for the defence which was raised. The 2nd third party took part in that action and assisted in the defence. It was never, at any time, suggested that the defence was frivolous or should not have been mounted. The plaintiff obtained judgment against the defendants at the trial and there was no appeal. The third party proceedings followed soon thereafter.

17. On the third party proceedings the judge held that the 2nd third party solicitors were negligent. As such, of course, the defendants had a good cause of action both in contract and in tort against the 2nd third party. The judge held that the 2nd third party had failed adequately to advise or warn the defendants of the dangers inherent in the option agreements and that the solicitors had failed to advise the defendants as to alternative ways of proceeding by which their interests might be protected. It might be noted that the breaches of duty occurred at various times in relation to the various defendants in 1994. The contractual claims may therefore have been complete in 1994. The claims in negligence could not have been complete as a matter of law until damage had occurred. On one analysis, that occurred in 1996 when Full Country assigned the property to the plaintiff and thus extinguished any possibility of the defendants obtaining or having a claim to any flats in the buildings to be erected. It might indeed be said that it was not until the chance of obtaining any flat from Full Country had been extinguished that any possibility of any benefit under the agreements accruing to the defendants was finally extinguished.

18. There is no appeal against the judge's finding that the 2nd third party was negligent. The appeal in this case arises on the question of damages.

19. It is to be noted that before the commencement of the trial of the third party proceedings the defendants applied for a split trial on quantum and liability. That was objected to by the 2nd third party. As a result the application was refused. This clearly put the defendants in difficulty. This court was informed by counsel for the 2nd third party that well into the trial the defendants were still having difficulty in producing a quantification of their claims. It might be observed that it would have been sensible and appropriate in this action to have had a decision on liability first to be followed by a decision on quantum at a later date. Until it has been decided whether there has been negligence and the nature of the negligence, it is, strictly speaking, not possible to identify the damage which flowed from it. In any event, it might be noted that in this case the quantification of the claims was left over to be decided at a later date.

20. In respect of the damage which flowed from the negligence, the judge held that there would have been no deal at all between the defendants and Full Country if the defendants had been properly advised. On that basis he held that what the defendants had lost by the solicitor's negligence were their old units. Following on that it was said that what was lost was the value of those units on the dates that they were assigned to Full Country.

21. It is in respect of the basis on which that value is to assessed that the defendants have lodged their cross-appeal. The judge went on to observe that the prices offered on the option/swap basis were not less than $1.2 million. In contrast, the valuers appointed by the defendants and the 2nd third parties had agreed market values of the flats at the time (1994) of a little under an average of $700,000. This gave the price of the units on the option/swap basis a mark up of over 70%. The judge stated that the cash sums in the amounts agreed on the option/swap basis were far in excess of the market value. In those circumstances it is clear that when the judge referred to the value of the flats he was referring to the values as agreed at approximately an average of a little under $700,000 as being the appropriate amount. This was a valuation of the flats as they existed in 1994 when sold on an individual basis.

22. On this appeal Miss Eu SC on behalf of the defendants accepted that, consistent with the finding of the judge, what the defendants should be taken to have lost were the values of the flats. The point at issue was how those values were to be assessed. Her argument was founded on the basis that the market value was what a willing seller and the willing buyer were prepared to agree. The argument proceeded that the benefits under the contracts, namely the option/swap agreements taken with the sale and purchase agreements, was the best evidence of the market values of the flats.

23. It was emphasised that what was claimed was not a contractual claim, in the sense of being the loss of benefits under the contract, but a quantification of the loss using the benefits under the contract as a guide.

Assessment of damages

24. Issues of causation and remoteness of damage do not arise in this appeal and cross-appeal since it is common ground that the only question for determination is the quantification of the values of the old flats which the defendants have lost as a consequence of the 2nd third party's negligence. Although various authorities such as Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 and Banque Bruxelles Lambert SA v Eagle Star Insurance [1997] AC 191 ("the SAAMCO case") were cited, they do not assist in the quantification exercise that the present appeal and cross-appeal require.

25. Taking the judge's findings of the negligence as the starting point, it is necessary to identify precisely what damage was caused as a result of the negligence. The negligence was the failure of the solicitor to advise the clients that the sales closely followed by the option/swap agreements were fraught with danger and that the defendants might well lose all.

26. One of the owners of a unit in the old property went to another firm of solicitors. As it happens, it was the same firm that is now acting on behalf of the 2nd third party. The contractual document which was drawn up as a result included an option/swap agreement as part of the sale and purchase agreement. There was no prohibition against registration in that agreement. The agreement was registered. As is shown in the judgment in the main action at page 154 F-G, the plaintiff and Full Country contracted on the basis that that option had a potential value add up to $16 million. Eventually, that owner's rights were "bought off" for $11.76 million. Obviously, that value might well have been on the basis of the value that could be obtained by the last person holding out. It is not suggested that the sites involved could have supported such a valuation in respect of all the owners' rights.

27. All the indications point to the fact that Full Country required financing secured on the property in order to be able to proceed with the development. In those circumstances, although Full Country clearly could in one instance permit registration of interests by the former owners, it could clearly not do so in respect of all. The presence of any other registrations would have made it difficult, if not impossible, to raise finance on the basis of mortgages or charges which would have had to have been subject to the rights of those other registrations. It follows, therefore, that it is fair to assume that Full Country required clear title to the property in order to raise finance. Even if these defendants had attempted to have clause 6.4 removed prior to signing the option/swap agreements, the reasonable conclusion is that Full Country would not have agreed to it.

28. The evidence was that the option/swap agreements could have been registered at the time they were signed. Indeed, they were registered in 1998 after Full Country had gone into liquidation. Nevertheless, it would be wrong to approach the case on the basis that the result of correct advice from the solicitors would have been that the defendants would have registered the option/swap agreements despite the presence of clause 6.4. That would have constituted breach of contract. I do not see that it could be correct for a court to approach the matter on the basis that damages should be assessed on the footing that the party entitled to damages would or should have breached a relevant contract.

29. On the basis of the findings by the judge, the breach of duty of care occurred on the failure to give advice. It may be more difficult to identify the precise time when the damage resulting from their breach of duty was occasioned to the defendants. On one analysis, it would have been the time when the sale of the property from Full Country to the plaintiff took place and the assignment was registered on 31 January 1997. It was, at that stage, that any hope the defendants had of obtaining units in the new building was finally extinguished. On another basis it could be when they had signed away their rights to Full Country with no adequate safeguards. Even in 1994 it seems that Full Country was possibly in a precarious financial position.

30. Whereas the general rule is that damages are assessed as at the date of the breach, that is not necessarily the invariable rule. It is subject always to the overriding principle in the assessment of damages which, in my view, has been best expressed by Lord Blackburn in Livingstone Rawyards Coal Co. (1880) 5 App. Cas. 25 at page 39. The measure of damages is:

"that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."

31. As regards the date of the assessment, the defendants in this case argued that the relevant date for assessing damages should be 1994 when the negligent advice was given. It happened that Mr Wong SC, on behalf of the 2nd third parties, also agreed that that was the relevant date. As will be explained below, it would seem that that would be an appropriate date because of the way in which the damages should, in my view, be calculated. A calculation based on the 1994 figure may produce a lesser sum but it would include elements notably the rental allowance, in the calculation, which are relevant to 1994 but not later.

32. On the basis that the defendants lost their interests in the properties as a result of the negligent advice, it becomes necessary to identify what was the value of that which they lost.

33. On one footing, I was attracted at one stage by the notion that the defendants had lost their interests in the land and that might have been calculated by taking the value of the site with vacant possession in 1994 as the starting point. On that basis, the share of the interest in the site represented by each owner's undivided share could be valued by a simple division. I was persuaded by Miss Eu, however, that that was not the correct approach. Primarily, such an approach would not compensate the respective defendants for the difference in values of the various units. Indeed the benefits which would have accrued to the defendants under the option/swap agreements were different in the various cases. It has to be said that the approach would have had the drawback that perhaps the pleadings and respondent's notice might not have supported such an approach, but, in my view, that should not be a conclusive deterrent to a court in assessing damages if it were convinced that that was the correct approach.

34. Nevertheless, I consider that it is appropriate, when assessing what compensation is necessary to restore the defendants to the position they should have been had there been no negligence, that the court should take into account the fact that each sale of an individual unit was part of a series of transactions which led directly to vacant possession of the site and clear legal title thereto.

35. Whereas the values for the properties agreed between the valuers for the defendants and the 2nd third parties represent the estimated sale prices for the units sold individually, they leave out of account the share of the value which comes from the series of transactions leading to a site ready for development.

36. In the result, therefore, I agree with Miss Eu's assessment that the benefits contracted for, but not ultimately received, as a result of the option/swap agreements do constitute the best assessment of what compensation would be required to restore the defendants to the position in which they were. It can only be presumed that the benefits under the agreements were considered by the individual defendants to be fair in their particular case.

37. Turning to Full Country, the judge rejected the notion that Full Country would have been prepared to pay the cash option in respect of all the owners of units in the old properties. That might well have been the position because cashflow was clearly very tight. But that does not mean that the benefits under the contract do not represent fair values which Full Country was prepared to and might ultimately have been in a position of pay. There were, no doubt, to be many more units in the new development than there had been in the old buildings. Full Country, therefore, stood to gain many more units in the new premises over and above the number which they would have to provide on the basis of this option/swap agreements.

38. There has never been any suggestion that the down payment levels indicated in the option/swap agreements which were taken as the basis of the cost price of flats in the new development were in any way inflated. Indeed, on a very rough cross-check, the value of the sites has been assessed by one of the valuers as at July 1996 at $255 million. If that is divided by 119, being the number of shares in the lots comprising the site, the figure comes to approximately $2.14 million per share. Hence, as a rough cross-check, the sum total of the benefits under the agreements, including the cash value said to be allocated to the option and the rental allowances and other payments which should have been made, do not appear to me to be out of line with the value which Full Country was receiving, that is the site with vacant possession and clear title.

Other matters raised on the appeal and cross-appeal

39. Various aspects of the benefits for which the defendants sought compensation were raised either on the appeal or the cross-appeal. On the footing that the compensation for the defendants should be assessed on the basis of the benefits which Full Country and the defendants agreed under the agreements, the points raised in the appeal in relation to the deposit fall away.

40. In relation to stamp duty, it would appear that only one of the defendants, D44, paid stamp duty in respect of the option/swap agreement. That was clearly a matter of loss on his part and he should be entitled to recover in respect of it.

41. Likewise the amounts of rental allowances, removal expenses and possibly amounts allocated in respect of the roof, insofar as they were included in the agreements between the defendants and Full Country, constituted part of the value of the premises for which the defendants were entitled to recover.

42. The rental allowances in the agreements appear to have been formulated on the basis that the new units would have been ready for occupation after approximately 2 years. It seems to me that the proper way to approach the question of rental allowances and interest, is that the damages should be assessed on the basis that the rental allowances would have been paid for 2 years. The damages should then be assessed on the basis that the defendants would have been given occupation of the new units thereafter. On that footing interest should be calculated on the purchase price of the units, as expressed in the option/swap agreements, from that date. Interest on the rental and other allowances should be calculated from the dates which they should have been paid.

43. The judge also awarded the defendants an indemnity in respect of any damages which would be payable to the plaintiff as a result of the main action. In my view, he was correct to do so. Although the defendants failed in the action, there is no ground, it seems to me, to consider that the defendants acted unreasonably in attempting to mitigate their losses. Insofar as the costs are payable to the plaintiff, the same matter applies. As has been pointed out, the 2nd third parties also took an active part in the defence to the plaintiff's claim. It lies uncomfortably in their mouths now to aver that the defendants were unreasonable in prosecuting their defence.

44. It appears to me also that the defendants' own costs in defending the proceedings brought by the plaintiff will constitute part of the damages which they have suffered. Although a losing party in litigation only pays party and party costs, that does not represent the loss to the defendants caused by being a litigant. The loss to the defendants is clearly the amount in costs which they are required to pay their solicitors. In my view, the correct approach would be to assess those costs on a common fund basis thus, in effect, treating the defendants as trustees having to act reasonably in their defence insofar as they are able to recover those costs from the 2nd third parties.

45. A point was taken on behalf of the 2nd third parties that D32 and D49 had opted for units in Profit Mansion without the knowledge of the 2nd third parties and, therefore, the 2nd third parties could not be held responsible for any loss which arose from a failure to obtain good title to those units. It has to be observed that both defendants sought to register their option/swap agreements in respect of the Vista property. Their attempt to obtain units in Profit Mansion should, in the circumstances, only be looked upon as an attempt to ameliorate the position. As it happened that, too, was of no avail. Indeed, their option/swap agreements referred to the alternative of choosing a flat in Profit Mansion. In my view, there is no basis for interfering with the judge's judgment in respect of these defendants. The judge carefully assessed the situation in respect of the 32nd defendant and the action which was brought against Full Country. I see no basis for interfering with his decision in that respect.

46. In his ruling of 2 February 2001, the judge considered that it would as a matter of fairness be right that D36 should also recover costs of the action against Full Country. He went on to say, however, that since there had been insufficient opportunity at the trial to investigate the costs, the 2nd third party should be able to do so at the hearing of the assessment of damages. This would enable proper discovery to be given. I see no basis for interfering with the judge's approach in this respect.

47. Finally, there is the question of the payments received by some of the defendants to discharge mortgages. This was provided for in the option/swap agreements. The intent was that these payments would be temporary loans which would be repaid when new mortgages were taken out on the new units. The judge held that these were loans which might may well be claimed by the liquidator of Full Country in the course of the winding up. He considered that it would be wrong to make the defendants give credit for a sum which they were liable to repay and which may be claimed from them. In my view, the reality of the situation is that the defendants never will be called upon to repay those loans. The liquidator of Full Country could never recover those loans without having to compensate the defendants for what they had lost.

48. Moreover, a defendant who had a mortgage on his original unit, had a unit whose value was reduced by the amount of the mortgage. The option/swap agreements only provided for a bridging loan. The new unit in Vista or Profit Mansion was to be subject to a mortgage at the same level. That mortgage would be used to repay the bridging loan. The defendants who had had the mortgage paid by Full Country had received a benefit under their contracts. If they are to receive damages calculated on the basis of the benefits under the contract, they would have to take the benefit of the discharge of the relevant mortgages into account when calculating the value of the benefits they have lost.

49. The correct approach in respect of these payments would be for the relevant defendants to give credit for the benefit received, conditionally upon the 2nd third party providing adequate security to recompense the defendants should the unlikely event occur that they have to repay the loans to the liquidator. A compensating amount of interest in respect of these loans should be calculated from the same date as the interest on the purchase price is calculated.

50. All interest in the calculations should be on the basis of the prime rate of the HSBC plus 2%, being the reasonable rate at which the defendants could have expected to borrow money for the provision of accommodation which they did not receive.

Hon Le Pichon JA:

51. I have had the advantage of reading in draft the judgements of the Vice-President and Cheung JA. I agree with both judgments and have nothing to add.

Hon Cheung JA:

52. I agree with the decision and reasons of Rogers V.P. After the hearing the parties jointly submitted the recent House of Lords' decision of Aneco Reinsurance Underwriting Limited v. Johnson & Higgins Limited [2001] UK HL 51. The Law Lords reviewed the law on the liability of professionals in negligently advising or providing information to their clients. They affirmed the principle in Banque Bruxelles Lambert SA v. Eagle Star Insurance Co. Ltd. [1997] AC 191, which is commonly referred to as the SAAMCO principle, that a defendant is not liable in damages in respect of losses of a kind which fall outside the scope of his duty of care : see judgment of Lord Lloyd of Berwick in Aneco. As I understand the position there is no controversy between the parties on this.

53. In this case the learned judge found that the loss suffered by the owners as a result of the negligence of the 2nd Third Party is the loss of the value of their old flats which cannot be returned to them. It is now common ground that this is the basis on which the loss should be assessed. What sets the parties apart is how the value should be measured.

54. Ms. Eu S.C., counsel for the owners, relied on the contract price together with the benefits conferred to the owners under the contracts they had entered into with Full Country. On the other hand, Mr. Wong S.C., counsel for the 2nd Third Party, argued that a distinction should be drawn between the benefits the owners might receive under the contracts and the value of their old flats. If the negligence caused the owners to lose their old flats, then one should not consider the benefits that the owners might have received under the contracts. Instead, the loss should be based on the value of the old flats and the exact value should be deferred for consideration until the assessment of damages.

55. It is clear that the learned judge had set out the ambit of the assessment of damages. He had confined the value of the old flats to their bare value without taking into account their redevelopment value. He also required the owners to give credit for the money they had received from Full Country. It is essential for the purpose of the assessment to set out how the value should be measured, otherwise more difficulties would arise at the assessment stage. I agree that the purchase price and the benefits that the owners might receive under their contracts are the best indication of the value of their old flats. They represent what a willing buyer and seller are prepared to accept and pay for a particular property at a particular time in an open market. They are the market value of the old flats.

56. By adopting this approach, it is not necessary to go into the question of whether Full Country would have agreed to complete the purchase on a cash basis or had the financial ability to do so because cash payment was not what the owners (leaving aside the few exceptional ones) wished to obtain in the first place. All that they wanted in selling their old flats was to have new flats in the new building to be developed by Full Country. In my view there is no question of Full Country not being able to meet the case of the owners on this approach.

Hon Rogers VP:

57. The cross-appeal and the appeal will therefore be allowed to the extent indicated. There will be an order nisi that the defendants should have 90% of their costs. The parties should agree a draft order to reflect the decision of the court. In default of agreement, the matter should be restored.