THE INCORPORATED OWNERS OF WISDOM COURT v. THE SECRETARY FOR JUSTICE representing THE DIRECTOR OF LANDS

HCMP 1284/2023

[2026] HKCFI 2970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1284 OF 2023

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D E C I S I O N

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I.  INTRODUCTION

1.  This is my Decision in relation to how to deal with damages following from my Judgment handed down on 27 March 2026 ([2026] HKCFI 1469).

II.  THE PLAINTIFF’S POSITION

2.  The Plaintiff’s position is that there should be assessment of damages by Master. Though not clearly mentioned as such in the affirmations filed by the Plaintiff in support of the Originating Summons, the Plaintiff identifies from the affirmation four heads of damages allegedly caused by the breach of contract, namely:-

(1)  Loss of use and enjoyment of the swimming pool;

(2)  Loss of use of the Proposed Toilets;

(3)  Additional expenditure regarding the Temporary Toilets and portable toilets; and

(4)  Additional expenditure in engaging the professionals for the various applications made to the Defendant regarding the Proposed Toilets.

3.  The Plaintiff submits that the breach caused the above damages.

4.  The Plaintiff submits that while normally, no assessment of damages would be ordered unless there is an order of split trial: see Born Chief Co. v George Tsai and Another [1996] 2 HKLR 188, it is open to this Court to order assessment of damages where appropriate: see Mark Alexander Turner and Another v Hung Hok Man, HCA 2387/2004, 13 March 2007 at §§86-87 per Recorder Fok SC (as he then was). I note, however, in Mark Alexander Turner and Another v Hung Hok Man, supra, relief of “damages to be assessed” was sought, in the present case, the Plaintiff only seeks “damages” in its Originating Summons and Amended Originating Summons.

III.  THE DEFENDANT’S POSITION

5.  The Defendant’s position is that there should be no separate assessment of damages. In addition to reliance on the Born Chief Co.’s case, the Defendant draws my attention to the fact that in pursuant to the Order made by Ng J on 25 April 2024, when the parties prepared their respective summaries of case and a joint list of issues, damages were not mentioned at all, and therefore, the Defendant submits, the Plaintiff never envisaged that there would be any separate assessment of damages.

6.  On that basis, the Defendant makes submissions on the causation and remoteness as well as quantum of the four heads of damages based on the evidence available.

IV.  MY VIEW

7.  In my view, it is important to bear in mind that the present proceedings are commenced by way of Originating Summons. The main part of it is on the contractual construction, and the relief of damages is consequential. Originating Summons is appropriate only where there is no factual dispute, and for the contractual construction, the Originating Summons procedure is entirely appropriate. It is, in my view, on this basis that Ng J ordered the parties to prepare their respective summaries of case and a joint list of issues.

8.  However, causation and remoteness of loss and damage caused by breach of contract and the quantum involve factual disputes. Existence of factual dispute is made clear from the parties’ written submissions. Such factual dispute cannot be dealt with by Originating Summons procedure.

9.  It is, in my view, also on this basis that the parties file their evidence. Further, in my view, Ng J as well as the parties were alert to this procedural matter when respectively ordering and preparing their respective summaries of case and a joint list of issues. In essence, as to how to deal with the damages, the Court and the parties simply left this issue after the determination of the contractual construction.

10.  In my view, the right question to ask is not whether or not there should be assessment of damages, because when the breach was constituted, causation of the loss and damage, and quantum are still factual issues to be resolved by proper procedure and the issue is not just about assessment of the damages. Therefore, the right question to ask is what directions I should make in respect of the factual disputes relating to loss and damage.

11.  The written submissions of the parties attempt to argue on causation and remoteness and quantum, understandably without pleadings, are not easy to follow. In order to crystalise the issues over causation and remoteness and quantum so that parties can fairly know what case to meet and the Court can know what exactly are in issues, I think the proper way is to order that the relief of damages (now identified with reference to the four heads of damages mentioned at §2 above) sought in the Amended Originating Summons shall proceed as if begun by writ, with the contractual construction in my Judgment handed down on 27 March 2026 as a given.

V.  DIRECTIONS

12.  In the premises, I make the following directions:-

(1)  The relief of damages in the Amended Originating Summons shall proceed as if begun by writ;

(2)  The Plaintiff shall file and serve Statement of Claim on the relief of damages (namely, (i) Loss of use and enjoyment of the swimming pool; (ii) Loss of use of the Proposed Toilets; (iii) Additional expenditure regarding the Temporary Toilets and portable toilets; and (iv) Additional expenditure in engaging the professionals for the various applications made to the Defendant regarding the Proposed Toilets) within 28 days from today;

(3)  The Defendant shall file and serve Defence within 28 days thereafter;

(4)  The Plaintiff shall file and serve Reply, if any, within 28 days thereafter; and

(5)  Costs of the submissions on damages made pursuant to my Judgment reserved.

13.  The matter shall then proceed in the usual way in a writ action.

14.  For the avoidance of doubt, my directions at §12 above are not an order of split trial or an assessment of damages. It is more than an assessment. The Plaintiff has to plead, for example, the conduct of the breach, the time of the breach, causation, remoteness and quantum. The Defendant may also plead locus. In a word, the pleadings are about what loss and damage the Plaintiff has suffered upon the Defendant’s conduct which the Plaintiff would plead to be the breach of contract (consequential upon the contraction of the relevant contractual clause in my Judgment).

15.  Lastly, I thank counsel for their assistance.