NAN FUNG WOOLLEN MILLS LTD v. LUN YIU MING

1983 No. 144

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

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ASSESSMENT OF MESNE PROFITS, INTEREST AND DAMAGES

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1. This action arises out of a breach of an agreement for sale and purhase of property between the Plaintiff and the Defendant dated 27th November 1978. Proceedings were commenced on 5th January, 1983 and, the Defendant having failed to give notice of intention to defend, or file a defence, judgment was given for the Plaintiff on 23rd March 1983 for, inter alia, mesno profits from 1st September 1982 until delivery up of vacant possession with interest, to be assessed and further damages and interest to be assessed.

2. Two witnesses were called on behalf of the Plaintiff and a number of documents were submitted, notice thereof having previously been given to the Defendant under the provisions of Order 38 rule 21.

3. Mr. Yeung Wai Ling gave evidence and said that he was deputy manager of the leasing department of the Plaintiff's company and confirmed that the valuation of mesne profits by Mr. Lawrence Mak dated 31st January 1985 at $1,790.00 per month was in his view correct. He also said that vacant possession was obtained on 16th February 1984.

4. I accept this evidence and accordingly assess mesne profits at this figure for the 19½ months to 16th February 1984, giving a total of $34,905.00. Interest on this sum is awarded at the rate of 6.5% from 1st September 1982 to 16th February 1984, and at the rate of 13% from 17th February 1984 to the date hereof.

5. The other witness was Miss Tsang Lai Ping, an accounts clerk with the Plaintiff company. She had prepared a summary of the Defendant's account with the Plaintiff and said that the last payment made by the Defendant was on 9th March 1982 and in respect of instalments up to 31st December 1981. The balance owing to the Plaintiff under the agreement at 1st january 1982 was $200,259.87. Interest was charged at varying rates and compounded monthly thereafter, the total to date being $134,127.70. Further interest was also due from the Defendant in respect of late payments of four instalments during the currency of the agreement totalling $1,048.98. She said that the Defendant was also indebted to the Plaintiff in respect of Crown rent of $162.00, management fees of $270.00 and insurance of $980.80. The Plaintiff also had to pay the fees for a valuation of the property of $500.00.

6. I accept Miss Tsang's evidence and the figures that she has submitted as being correctly calculated and properly incurred.

7. The only other significant evidence concerned the re-sale of the property and was contained in a sale and purchase agreement dated 18th August 1984 and an assignment dated let September 1984, which showed that the Plaintiff had realised the sum of $150,000.00 on re-sale of the premises, slightly more than the valuation of $140,000.00 given by Messrs. Knight, Frank, Kan & Baillieu on 19th March 1984.

8. Mesne profits, damages and interest are therefore assessed and awarded as follows:

9. The Defendant will also pay the Plaintiff's costs to be taxed if not agreed.