NGAI MING PAPER PRODUCTS ENTERPRISE LTD. v. THE TEXTILE CORPORATION OF HONG KONG LTD.

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JUDGMENT

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Penlington, J.A.:

1. The background to this appeal is that industrial premises at Yip Shing Street, Kwai Chung were let by the plaintiff corporation ("the respondent") to the defendant company ("the appellant") for a period of three years the term to expire on the 25th February, 1987. The premises were in fact not vacated on that date and eventually the respondent obtained a consent order from the Lands Tribunal for delivery up on the 26th February, 1988 "in a state of good repair and condition (fair wear and tear excepted) and provided always that the defendant shall remove such additional fixture, fittings, erections, alterations or improvements at the cost and expense of the defendant".

2. The appellant was also to pay mesne profits at an agreed rate of $40,000 p.m. from the 1st May, 1987 to the 26th February, 1988. Before entering into formal lease conditions the parties had signed two agreements, one dated 15th March, 1985 and the other the 14th May, which recited that the tenants would purchase "the office partitioning" in the premises for the sum of $30,000. Much of the argument before the trial judge, Bokhary, J., was as to the meaning of the word "partitioning". This is because the false ceiling in the premises was partially removed by the appellant in order to accommodate machinery which it installed in the premises and work was required to be done to restore this false ceiling to its original condition.

3. It is not absolutely clear whether all this work was on the actual ceiling of the premises or on the false ceiling, but it is the case for the appellant that this work was done on the false ceiling and it was work for which they were not responsible because the false ceiling had been bought by it as part of the partitioning and therefore it was not liable for any work required on it. It had been removed by them so as to install machinery and they were under no responsibility to restore it.

4. The reason why this question of the false ceiling became important although the amount involved for its repair, $7,300, was not substantial was that the appellant argued that if the work on tine false ceiling was not the responsibility of the defendant then the time occupied in doing those repairs were also not their responsibility, and although the trial judge did reduce the period of time in effecting the repairs for which the defendant was responsible from two and a half months, the time actually taken, to one month, nevertheless this increased the award of damages. Money had been paid into court and if the amount for the actual repair to the ceiling plus the time taken was added together it might have reduced the final judgment to less than the amount paid into court with a considerable effect on the question of costs.

5. The trial judge was as usual not assisted by having a full shorthand report of the evidence but made his own notes which however were very fully kept. The appellant here relies for its contention that the partitioning sold included the false ceiling substantially on certain evidence given in cross-examination by a Mr. Eric Chan, a witness for the appellant. It is also clear however that Mr. Chan knew little of the negotiations which went on and was being asked to interpret a term of the agreement. I do not think he was in any position to give that interpretation.

6. The passage which the appellant relies on in the cross-examination of Mr. Chan is as follows:

This certainly could be read in the way the appellant submits as meaning that Mr. Chan was agreeing that the false ceiling was included in the partitioning. The trial judge very fairly says that at first that was the interpretation he was inclined to put on it. However, having fully considered the passage, he said this:

Having considered this passage and I certainly do not feel that I can say that the trial judge was clearly wrong in coming to that conclusion.  He was the one who had feeling of the case, he had heard all the witnesses and in relation to this particular line of cross-examination, he was perfectly entitled to find as he did. I consider that he did come to the correct conclusion as to what these answers meant.

7. The normal meaning of the word "partitioning" would not include a ceiling, false or otherwise, and while Mr. Westbrook, who has argued a difficult case very well, urges us that in the context of a Hong Kong building you cannot have a false ceiling which is independent of the partitioning, there was no evidence called as to that. Even if that was correct, it seems to me that the trial judge necessarily took a broad approach to the question of delay, which was the vital point, and even if his decision on the question of the false ceiling could be challenged, I do not think that would necessarily mean he was wrong in his assessment of the period of delay which was the responsibility of the appellant and that which was that the responsibility of the respondent. I do not consider that the appellant has shown that the decision of the trial judge, which was purely one of fact, was one with which we should interfere and I would dismiss this appeal.

Fuad, V.P.:

8. Though some of the evidence is not totally clear because there was not a proper record of the evidence, I agree that the appeal should be dismissed for I am not convinced that we can interfere with the findings of fact upon which the learned judge based his judgment.

Hunter, J.A.:

9. I agree that this Court really cannot interfere with the considered interpretation the trial judge put upon this line of questioning. I would also add that it illustrates the dangers of the inadmissible question. He was being asked questions about the meaning of a phrase in the document. The lawyers present were well aware of the significance of this question I very much doubt if the witness was. The question which he could have been asked was what was installed the question he answered. Therefore to treat his answer in those terms seems to me to be very appropriate.

10. Appeal dismissed. Respondent to have its costs.