HANG SENG FINANCE LTD. v. TSANG TAT CHOW

HCA7221/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7221 OF 1999

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ASSESSMENT OF DAMAGES

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1. This action arises out of a breach of a hire purchase agreement between the plaintiff, Hang Seng Finance Limited, and the defendant, Tsang Tat-chow. Final interlocutory judgment was entered on 15 June 1999, no notice of intention to defend having been given by the defendant.

2. The defendant is absent today, although he has been duly served by ordinary postal service the notice of appointment of assessment of damages.

3. The plaintiff called one witness, Madam Fu Him, an officer of Hang Seng Bank, who duly adopted her affidavit evidence as her testimony in these proceedings. That document sets out the background of this case, exhibiting thereto various documentation which the court will rely on. Amongst the exhibits is a surveyor's inspection and valuation report.

4. Pursuant to the hire purchase agreement, the plaintiff had agreed to let to the defendant on hire purchase a Toyota Hong Kong and Kowloon taxi, registration No. HF 7346. The defendant agreed to and made an initial payment of $300,000 on the signing of the agreement and further agreed thereafter to pay 240 monthly instalments of $27,673.30. Clauses 1 and 2 of the schedule of that agreement set out the obligations of the defendant in full.

5. Under the agreement and upon the default of the defendant to make prompt payments or to comply with the terms of the hire purchase agreement, the plaintiff was entitled to terminate the agreement upon notice in writing.

6. The evidence established that the defendant had defaulted in making punctual payment of the monthly instalments as required under the agreement and by a letter dated 3 April 1998, written notice was served by the plaintiff upon the defendant, indicating the plaintiff's acceptance of the defendant's repudiation of the hire purchase agreement and giving notice of termination of that agreement.

7. The plaintiff repossessed the vehicle. The evidence established that proper and diligent attempts were made to fetch the highest price for the vehicle. Eventually the taxi was sold to Ka Wai Motors Limited for the sum of $1,952,000 on 18 March 1999. I am satisfied that the sale was completely above board and regular in all respects.

8. Up until the time of the defendant's repudiation, he had paid five instalments.

9. I accept Madam Fu Him's evidence as to the loss suffered by Hang Seng Finance Limited. Details of its loss are set out in paragraph 13 of her affirmation. The total hire purchase price, that is the cash price of the taxi at HK$3,100,000 plus total hire charge in the sum of $6,031,040.99 amounted to $9,131,040.99. From that must be deducted the initial cash payment made by the defendant of $300,000, the five instalments paid totalling $139,761.40, instalment due and unpaid of $29,068.20, rebate of hire charges pursuant to rule 78 of $5,756,938.24, amount paid after termination of said agreement of $120,000, and finally the proceeds of sale of the vehicle as set out under paragraph 13(v). Damages total $841,168.15. That is the amount now sought by Hang Seng Finance in today's assessment.

10. I am satisfied that the evidence fully substantiates this amount as having been incurred by way of damages by the plaintiff, who is clearly entitled to that sum of money. I award the plaintiff $841,168.15.

11. The plaintiff shall have its costs of this assessment, including any costs that may have been reserved in respect thereof against the defendant on a party and party basis, taxed if not agreed. There shall be interest at judgment rate on the amount that I have assessed from 15 June 1999 until full payment thereof.