DAVID KUNG KWOK WAI v. CHUI IU AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an assessment of damages pursuant to interlocutory judgment ordered on 9th August 1990. The damages claimed relate to the plaintiff's repayment under.guarantee of the 1st Defendant's debt, which repayment was in turn subject to undertakings of indemnity by both 1st and 2nd defendants. The quantum of the damages relates to the interest said to be lost on the repayment money since the payment date on 15th November 1982.

2. At the outset, Miss Yew for the plaintiff applied to adduce evidence by affidavit. Whilst such an application is usually made in advance of the hearing, it was granted in view of the absence of the two defendants after due service and the uncontroversial nature of the evidence itself. The evidence consisted of two affidavits annexing computer printouts of Wardley Ltd. as to the monthly rollover interest on the principal debt amount in U.S. dollars from 15th November 1982 to date. I am satisfied as to the provenance of these documents and find that they prove the figures they contain. The absent defendants were each served with copies, and with the notice of today's hearing.

3. In his affidavit of 11th December 1990, the plaintiff states that the money used to pay the debt under guarantee was deducted from his time deposit held by the creditor bank, the Shanghai Commercial Bank. Hence, the plaintiff's damages comprehend the lost interest on that portion of the time deposit and are calculated in annexure DKKW-12 to his affidavit at US$322,837.19 upto 29th October 1990. The plaintiff's second affidavit of 2nd February 1991 updates the figures of hypothetical interest from 29th October 1990 to the hearing date, adding a further sum of US$15,064.10.

4. I am satisfied from the evidence that the plaintiff did in fact apply a portion of his time deposit to the payment of the guaranteed debt and hence lost the prospective interest pro rata. The total interest from the date of payment on 15th November 1982 to date is US$337,901.29, of which the HK$equivalent is $2,635,630.00. Judgment is ordered to the plaintiff in this latter sum with costs and a certificate for counsel.