KAISILK DEVELOPMENT LTD v. DIRECTOR OF LANDS

LDLR 1/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LANDS RESUMPTION APPLICATION NO. 1 OF 2005

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JUDGMENT

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Background

1.  The Applicant was the former registered owner of Nos. 10, 12, 14 and 16 Wan Chai Road, Wan Chai, Hong Kong, namely Inland Lot Nos. 505 sA ss1, sA ss2 sA & RP, sA ss3 and sA RP (“the Subject Property”) and the Respondent was the resumption authority. The Subject Property was resumed by the Government under the Lands Resumption Ordinance, Cap. 124 (“the Ordinance”) for the implementation of the Development Scheme H9 of the Urban Renewal Authority vide Government Notification No. 7850 dated 6 December 1999. The date of resumption was 10 March 2000.

2.  This Application was made pursuant to section 10(2) of the Ordinance for determination of the amount of compensation payable by the Respondent to the Applicant. There was no dispute that such amount shall be the open market value of the Subject Property on the date of resumption as more particularly defined in sections 10, 11 and 12 of the Ordinance. This Tribunal is therefore asked to determine the open market value of the Subject Property according to those well established statutory principles.

3.  In order to assist this Tribunal to determine the open market value of the Subject Property, the parties called for expert evidence. The Applicant called for the evidence of Mr. Gary C. K. Chung, FHKIA, RIBA, Registered Architect and Authorized Person and Mr. Patrick W. C. Lai, MRICS, MHKIS, Chartered Valuation Surveyor in support of its case. On the other hand, the Respondent called for the evidence of Mr. James Y. W. Ng, MRICS, MHKIS, Chartered Valuation Surveyor in support of its opposition to the Application.   I am satisfied that Mr. Chung, Mr. Lai and Mr. Ng were all duly professionally qualified and have sufficient experience in their own fields of expertise. I therefore accept all of them to give expert evidence in this Tribunal. Originally, the Applicant also called for the evidence of a Ir. K. C. Ng who was an Electrical and Mechanical Engineer. He gave his view that a transformer room was not needed for the redevelopment of the Subject Property. Before the trial began, parties managed to agree that no issue would turn on his evidence and I was therefore told that it was no longer necessary for me to hear his evidence.

4.  Pursuant to the directions of this Tribunal, the expert reports were filed and served on the other party before the hearing. Mr. Chung advised the Applicant on the optimum redevelopment scheme of the Subject Property and according to his advice, Mr. Lai carried out his valuation. Mr. Ng, on the other hand, formed his own opinion on the optimum redevelopment scheme for the Subject Property and based on his own view, he gave his expert opinion on the open market value of the Subject Property. Although both Mr. Lai and Mr. Ng managed to agree some valuation assumptions during the trial, they still came to a very different opinions on the open market value of the Subject Property, namely:-

	Mr. Lai’s View	Mr. Ng’s View
Open Market Value	$92,000,000	$63,093,000

5.  Upon this Tribunal’s request, Mr. Lai and Mr. Ng had some pre-trial discussion on the disparity of their professional views and parties jointly submitted a “List of Agreed Facts, Assumptions and Valuation Approach” on 22 October 2010 which helpfully set out the experts’ agreement on some of the assumptions adopted and steps taken in the valuation.

The Subject Property

6.  As at the date of resumption, there were two 4-storey and one 6-storey tenement buildings erected on the Subject Property. It was the experts’ common view that the condition of the existing buildings was poor and, in consideration of their low plot ratio, the Subject Property was ripe for redevelopment. It was not in dispute that the site area of the Subject Property was 268.50 sq.m. It was agreed by Mr. Lai and Mr. Ng that no significant restriction on the use of the Subject Property was imposed by the Government Lease. Prior to the Development Scheme H9 of the Urban Renewal Authority being implemented, the Subject Property was classified by the relevant Outline Zoning Plan as “Residential (Group A)”. According to the experts’ common view, it meant that the lower 3 floors of the redevelopment scheme of the Subject Property were permitted to be used for commercial purposes (including offices, shops and restaurants) and the upper floors for domestic purposes.

7.  Parties also agreed that the Subject Property was subject to some protected tenancies and, for some ground floor units, licences at the time of resumption.

The Valuation

8.  The date of resumption was agreed by the valuation experts as the date of valuation, namely 10 March 2000. There was no dispute that the Subject Property was under a single ownership and ripe for redevelopment. The experts therefore agreed that the valuation should be undertaken on redevelopment basis. Due to lack of comparables of redevelopment site, it was agreed that the residual method of valuation was the appropriate method for the assessment of the open market value of the Subject Property. Since this is a specialised tribunal on valuation matter, I shall not go into the technical details of this valuation method. There was no issue turning on the format of the valuation at all. In short, the concept of residual method of valuation is that the valuation experts have to assume the Subject Property to be redeveloped hypothetically. The valuation expert has to come up with a hypothetical redevelopment scheme for the Subject Property. After deducting all the necessary development costs in realising the redevelopment from the Gross Development Values (“GDV”), the residual balance would then be the open market value of the Subject Property.

9.  The valuation experts agreed that the Subject Property was to be valued on an optimal notional redevelopment scheme. It was agreed that the optimal notional redevelopment scheme was that the Ground Floor was for retail shop use, the 1^st Floor was for commercial use and the upper floors were for domestic use. The experts however could not agree for the optimal use of the 1^st Floor, whether it should be for office or shop/ restaurant.

10.  The format of the residual method of valuation was generally agreed. The valuation experts’ agreement could be summarized as follows:-

	GDV of Ground Floor Shop(s)
Add	GDV of 1st Floor Commercial Unit(s)
Add	GDV of Upper Floors Domestic Units
Less	Marketing Costs
	GDV
	(Discounted for the whole construction period)
Less	Development Costs
	(Discounted for 1/2 of construction period)
	Balance for Land and Profit
Less	Developer’s Profit
Less	Demolition Costs
Less	Tenants’ Compensation
	Clear Site Value
	(Discounted for a period for obtaining vacant possession)
	Open Market Value of the Subject Property

11.  The experts also managed to agree some important assumptions for the valuation. The notional construction period was agreed to be 1.5 year and the notional construction costs agreed to be $22,476,793. The valuation experts also agreed that on top of the construction costs, there would be professional fees for 6% and contractor’s profit for 20% both on construction costs. For the developer’s profit, it was agreed by the valuation experts to be 20% on the land value. The marketing costs was agreed to be 1% of the total market values of the completed redevelopment of the Subject Property. The costs of demolition of the existing tenement buildings on the Subject Property was agreed to be $1,000,000. And the statutory compensation payable to the tenants was agreed to be $5,136,000.

12.  During the trial, I was told by parties that the valuation experts managed to further agree the GDV of the Upper Floors Domestic Units to be $80,000,000 and therefore the parties no longer took issue of the notional redevelopment scheme regarding the suitability of providing a clubhouse for the residents of the future development.

13.  Parties also agreed that, for the notional redevelopment, the total saleable area of the Ground Floor Shop(s) was 219.46 sq.m. (excluding a disputed area called “Shop 5” with an saleable area of 8.484 sq.m.) and the First Floor Commercial Unit(s) was 231.421 sq.m.

The Issues

14.  I was told by Counsel of the parties that, with the benefit of the experts meeting and their sensible discussion at the beginning of the trial, most of the assumptions adopted and steps taken in the residual method of valuation were agreed and the issues left to be decided by this Tribunal only included the followings-

(1) GDV of the Ground Floor Shop(s) of the notional redevelopment of the Subject Property;

(2) GDV of the First Floor Commercial Unit(s) of the notional redevelopment of the Subject Property;

(3) Discount Rate; and

(4) Time required for obtaining vacant possession of the Subject Property.

The GDV of the Ground Floor Shop(s) of the Notional Redevelopment

15.  In fact the GDV of the Ground Floor Shop(s) was just the open market value of properties as at the date of valuation. For determination of the GDV, it was agreed by the valuation experts that direct comparison method ought to be adopted. Three shop transactions were agreed by the experts as comparables for this valuation, namely :-

	Address	Date of Transaction	Consideration	Agreed Effective Saleable Area (sq.m.)	Parties’ Description
S-1	Shops 1 & 2 on G/F, Nos. 56, 56A, 58 & 60 Wan Chai Road	23.8.1999	$16,838,000	58.59	"AC1/RC1"
S-2	Shop 6 on G/F, Nos. 56, 56A, 58 & 60 Wan Chai Road	29.7.1999	$6,380,000	26.20	"AC2/RC2"
S-3	Shops 3 & 4 on G/F, Nos. 56, 56A, 58 & 60 Wan Chai Road	2/7/1999	$15,600,000	66.22	"AC3/RC3"

16.  Despite the above agreement, the valuation experts disagreed whether or not, in carrying out the valuation, one should take into consideration of the suggested division of the Ground Floor of the notional redevelopment into 5 shops as advised by the architect, Mr. Chung. The Applicant’s valuation expert, Mr. Lai, was of the view that since Mr. Chung was a professional architect, his view for the division of the Ground Floor must be more appropriate than his own view. The Applicant also submitted that this could achieve greater accuracy and precision in the valuation. The Respondent’s valuation expert, Mr. Ng, however disagreed. He was of the view that the redevelopment scheme was only a notional one and therefore it would be quite meaningless to be too definitive as to how the Ground Floor was supposed to be divided. I agree with Mr. Ng. First of all, it was a common valuation practice that, in carrying out the residual method of valuation, it was not necessary for a valuation surveyor to come up with a detailed notional redevelopment scheme. It was more than sufficient for a valuation surveyor to just carry out his valuation on a broad notional development scheme. Secondly, the practical difference between the two approaches was not significant. For example, the 2 approaches resulted in only a small difference in the adjustment for quantum. I therefore find in favour of the approach adopted by Mr. Ng that it was unnecessary to rely on Mr. Chung’s advice on division of the Ground Floor. I accept Mr. Ng’s opinion that, for valuation purpose, the Ground Floor could be just notionally divided into 4 shop units of saleable area of 54.87 sq.m. each and the frontage onto Wan Chai Road was about 3.375 m each.

17.  The valuation experts also disagreed on the treatment of a small area on the Ground Floor. It was the common view of the experts that for the notional redevelopment scheme there should be an area on the Ground Floor for access to the First Floor Commercial Unit(s). For convenience, this area was called “Shop 5” by the parties. According to Mr. Lai, this was a lift lobby for the First Floor users exclusively. For valuation purpose, this should be treated as a separated and distinct shop unit on the Ground Floor. The Applicant submitted that it was wrong not to give it any value. Mr. Ng, however, said that there should not be a separated and distinct value for this “Shop 5”. Since this was the access for the First Floor Commercial Unit(s), this should be valued as part and parcel of the First Floor Commercial Unit(s). The Respondent also submitted that “Shop 5” could not be actually occupied as a shop. In my judgment, the Applicant’s and Respondent’s seemed to be looking at the matter from completely different angles. Although I agree with Mr. Lai that it was wrong not to give “Shop 5” a value, it does not necessary follow that it must be valued as a separated and distinct ground floor shop. I agree with Mr. Ng that this should be valued as part of the First Floor Commercial Unit(s). Without “Shop 5”, the value of the First Floor Commercial Unit(s) would be substantially lower. This was how the value of “Shop 5” (including the value for advertising, for merchandising and/or for using it as a reception area) was reflected in the valuation. I therefore reject the Applicant’s argument that, for the purpose of this valuation, “Shop 5” must be given a separated and distinct value to it.

The Adjustment Factors

18.  The valuation experts agreed that there should be adjustment of the comparables for factors including:- (1) Location, (2) Frontage, (3) Headroom, (4) Quantum/ Size and (5) Time but disagreed on the appropriateness of adjustment for (6) Age/ Condition and (7) Layout in this valuation.

Location Adjustment

19.  For Location, this was the much debated area of this case. The experts’ views were:-

Comparables	Mr. Lai’s View	Mr. Ng’s View
S-1	+ 10 %	- 20 %
S-2	+ 20 %	- 10 %
S-3	+ 10 %	- 20 %

20.  In my judgment, this is a very difficult area to decide. First of all, adjustment on location is rather subjective and sometimes different surveyors may have different impression even for the same factual matrix. It was therefore not uncommon in valuation dispute that it was hard to reach any agreement. Secondly, no established valuation quantitative analysis could be applied for location adjustment. This causes further difficulty to test the reasons of the experts for deciding the quantum of the adjustment.

21.  In order to assist this Tribunal to decide this difficult question, the parties arranged a site visit for this Tribunal at the beginning of the trial so that I could have some direct impression of the characteristics of the location where the Subject Property and the comparables were situated.  However, parties agreed that since the inspection of this Tribunal only took place many years after the date of resumption, many of my own observation during the site visit may not reflect the reality at the relevant time. With the above in mind, it was agreed by parties that I am entitled to look at the objective evidence including the photographs, survey sheets and, subject to the limitation above, my own observation of the area, to draw any reasonable inference from them and to decide whose opinion should be preferred.

22.  Both parties accusing the valuation experts appointed by the other parties were unreliable. Both Counsel also made submissions in substantial length in criticizing the valuation experts of the opposing parties. I do not intend to deal with them in detail, save to say that, I accept that both the valuation experts were giving their true impression of what they saw and what they knew about location but none of their evidence was helpful to my determination. The Applicant also relied on the evidence of Mr. Tsang Yuk Kiu who was a director of the Applicant. I also find Mr. Tsang’s evidence was not of much assistance to me as it was mostly his layman subjective impression which I do not find much use in the context of a property valuation.

23.  According to the undisputed evidence of the experts and Mr. Tsang, on the date of resumption, the Wan Chai Market building at the junction of Wan Chai Road and Queen’s Road East was still in operation. Opposite to that, on the other side of the Wan Chai Road, there was a temporary market also in operation. The existence of these markets was supported by the relevant survey sheets shown to me. Given a street market usually developed naturally according to the demand of customers, it would be rather difficult to put an artificial limit to it. Further, in my judgment, it was not very helpful to argue where the “hub” was and how many were there at the time of resumption. On the evidence before me, I accept that, on the date of resumption, the street market existed along Wan Chai Road from the junction at Queen’s Road East to the junction at Cross Street. I also accept that, in a broad sense, the vicinity of this area was also part of this Wan Chai Road street market. The photographs of the Subject Property provided by Mr. Lai in his report dated 22 May 2008 [Page 263-266 of the Trial Bundle C1] and provided by Mr. Ng in his report dated 14 October 2008 [Page 396-398 of the Trial Bundle C1] respectively gave me a strong impression that on the date of resumption, the Subject Property was situated in a busy part of this Wan Chai Road street market. These photographs were apparently taken before or close to the date of the resumption. By reason of the above, I therefore find that the 3 comparables, S-1, S-2 and S-3, on the date of resumption, were all situated in the same street market and locality of the Subject Property. In my judgment, there should be no location adjustment made for S-1 and S-3. Since both valuation experts had a common view that S-2 was slightly more inferior in terms of location than the other 2 comparables, and I have no reason not to accept this common view, I therefore find that + 10% adjustment was appropriate for this comparable. My determination for the Location Adjustments are:-

Comparables	Tribunal’s Determination for Location Adjustment
S-1	0 %
S-2	+10 %
S-3	0 %

24.  Before I leave this topic, I wish add some additional observation on the evidence for determination of the location adjustment generally for resumption cases. By no means, I intend to criticize any participants in this case but the present case gives me an impression that the resumption authority has once again ignored some previous observation of this Tribunal (see Paragraph 29 of the Judgment of this Tribunal in Rand Company Limited v. Director of Lands, LDLR 7 of 2001 (unreported) 7 March 2002) on disclosure of factual evidence about the location characteristics as at the date of resumption. It was common for the resumption authority to carry out investigation and to appoint valuation surveyors to collect relevant evidence for assessment of compensation well before any resumption actually takes place. Usually when a case is being heard in this Tribunal, the resumption authority would then be in possession and custody of much evidence (be that in favour of or against the potential claim) which are going to be very useful and helpful for determination of compensation. But for unknown reasons, the resumption authority did not disclose them. For example in the present case, the valuation expert appointed by the resumption authority admitted that he took many photographs around the area in question close to the resumption date but did not include them in his report nor disclose them to the Applicant. Certainly this factual information (photographs) would be more reliable than any experts’ oral testimonies in the Tribunal which only gave his own subjective impression on the location. Further this information is not protected by legal professional privilege and I do not see any reason why the resumption authority does not disclose it. Further, expert witnesses have overriding duties in assisting the Tribunal to determine the matter in a fair and informed manner. It is therefore also the duty of the experts to inform the Tribunal that all relevant evidence is either disclosed in his report or to the other party. I therefore recommend that the resumption authority should disclose materials (be that unused by its experts) to any owners who may apply for determination of compensation in future.

Frontage Adjustment

25.  The valuation experts in fact agreed that the length of frontage of each comparable and there should be + 2% adjustment for every 0.5m increase of frontage but they were unable to agree the following issues:-

(1) the length of frontage of the Subject Property along Wan Chai Road; and

(2) whether or not the frontage of the Subject Property along Stone Nullah Lane ought to be taken into account.

26.  Regarding the length of the frontage along Wan Chai Road, I accept the measurements of the Respondent as they are more favourable to the Applicant.

27.  Regarding the frontage along Stone Nullah Lane, first of all, I would like to say that although reference was made to me on some factual findings in a previous decision of this Tribunal in Rand Company Limited v. Director of Lands, LDLR 7 of 2001 (unreported) 7 March 2002, they are not binding on me. In fact, I find that these factual findings are not relevant at all for the present case. They were just the Tribunal’s factual finding based on the evidence of that case.

28.  On the evidence before me, in consideration of the photograph shown in Mr. Ng’s report [Page 396 of the Trial Bundle C1] and the location of the relevant section of Stone Nullah Lane shown in the survey sheet on Page 261 of the Trial Bundle C1, I accept the Respondent’s submissions that the frontage along Stone Nullah Lane was of minimal value. In coming to my decision, again, I place very little weight on the oral testimonies of Mr. Tsang and the 2 valuation experts. By reason of the above, I accept the adjustment of Mr. Ng in full and my determination for the frontage adjustments are:-

Comparables	Tribunal’s Determination for Frontage Adjustment
S-1	- 4.9 %
S-2	+ 0.3 %
S-3	- 5.3 %

Headroom Adjustment

29.  Regarding Headroom, parties agreed that + 2% adjustment for every 0.5m increase of headroom. In fact, parties are in complete agreement for this adjustment and they are:-

Comparables	Agreed Headroom Adjustment
S-1	+ 6 %
S-2	+ 6  %
S-3	+ 6 %

Quantum / Size Adjustment

30.  The valuation experts agreed that there should be -5% adjustment for every 20 sq.m. increase in size. Since I find in favour of the Respondent’s argument that, for the purpose of this valuation, the Ground Floor is to be notionally divided into 4 units of same saleable area of 54.87 sq.m. each, I therefore also accept the adjustment suggested by Mr. Ng in full. My determination for the Quantum / Size Adjustments are:-

Comparables	Tribunal’s Determination for Quantum / Size Adjustment
S-1	+ 0.9 %
S-2	- 7.2 %
S-3	+ 2.8  %

Time Adjustment

31.  The adjustment for time was agreed by the valuation experts as follows:-

Comparables	Agreed Time Adjustment
S-1	- 1 %
S-2	- 3 %
S-3	- 3 %

Age/ Condition Adjustment

32.  The valuation experts had different views as to whether or not there should be any adjustment for age or condition. Although I accept Mr. Ng’s view that this perhaps the least concern of any potential purchaser of a shop, it was wrong to say that there was no bearing on the open market value of it. It is common sense that older buildings require more costly maintenance and have a higher risk of building defects, for example water leakage from drainage, which may cause serious damage to the occupier of a shop. I therefore find that it is appropriate to make adjustment for age / condition of property. However, as I have said above, this usually is the least concern of any potential purchaser, a + 4% adjustment for all comparables suggested by Mr. Lai seems excessive. Based on the evidence available to me, including the photographs of the comparables, I find that + 1% is more reasonable. My determination for the Age / Condition Adjustments are:-

Comparables	Tribunal’s Determination for Age / Condition Adjustment
S-1	+ 1 %
S-2	+ 1 %
S-3	+ 1 %

Layout Adjustment for Comparable S-3

33.  The valuation experts also had different views as to whether or not there should be any adjustment for layout for comparable S-3. Mr. Lai suggested that there should be an adjustment of + 5% for comparable S-3 due to a pipe duct and a staircase underside inside the shop. Mr. Ng disagreed with Mr. Lai’s opinion. Although the Respondent submitted that the evidence did not support Mr. Lai’s opinion, I find that according to the floor plan [Page 328 of the Trial Bundle C1], it did show that there was a pipe duct and staircase underside inside the shop of comparable S-3. However I accept the submissions of the Respondent that they were situated in a less valuable portion of shop and therefore, given of the size of the shop, they should not have much significance to the market value of the comparable. In my judgment, it is not necessary to make any adjustment for layout of comparable S-3.

The Tribunal’s Findings for GDV of the Ground Floor Shop(s)

34.  By reason of the above, I find that the adjusted unit rate for each comparable and the average adjusted unit rate, respectively, are:-

	Unit Rate ($ psm)	Location	Frontage	Headroom	Size / Quantum	Time	Age / Condition	Total Adjustment	Adjusted Unit Rate ($ psm)
S-1	287,387	0%	-4.9%	+6%	+0.9%	-1%	+1%	+2%	293,135
S-2	243,511	+10%	+0.3%	+6%	-7.2%	-3%	+1%	+7.1%	260,800
S-3	235,578	0%	-5.3%	+6%	+2.8%	-3%	+1%	+1.5%	239,112
								Average	264,349

35.  I therefore find that the unit rate for the GDV of the Ground Floor Shop(s) of the notional redevelopment is $264,349 per sq.m.

The GDV of the First Floor Commercial Unit(s) of the Notional Redevelopment

36.  It was not in dispute that this should be valued at the highest and best use. However I agree with the Respondent submissions that it is not necessary for this Tribunal to decide what the highest and best use for the First Floor of the notional redevelopment scheme was. In fact, in looking for comparables, one should not be limited by just looking for transaction of first floor units for office use only or for shop / restaurant use only. The transactions will tell us what the highest and best use should be.

37.  Mr. Lai appeared to have difficulty in finding sale transactions of first floor commercial units and therefore he initially advised to adopt a “rule of thumb” approach that the value of first floor commercial unit was about 1/3 of the value of the ground floor shop. In preparing his supplemental report, he turned to use the investment method of valuation by collecting first floor commercial units rental comparables. Mr. Ng encountered a similar problem in finding sale transactions of first floor commercial units. Although he managed to find some first and second floors commercial units sale transactions in the vicinity, none of them were true comparables to the First Floor of the notional redevelopment scheme of the Subject Property. At the end, he also adopted a “rule of thumb” approach. He was of the view that, due to low demand of the first floor commercial units in that area, the value of the first floor commercial unit was only about 1/5 of the value of the ground floor shop.

38.  When both Mr. Lai and Mr. Ng gave oral testimonies in the Tribunal, I have clarified with them that since no true sale comparables could be found and the investment method was not reliable because of the sensitivity of the market yield, would they re-consider, for this particular valuation, the “rule of thumb” approach perhaps was a reasonable and acceptable method of valuation for the present case? They both gave an affirmative answer to my question but they differed on their views of how much less valuable of the first floor commercial unit than the ground floor shop should be. Mr. Lai said 1/3 and Mr. Ng said 1/5.

39.  In my judgment, due to lack of true comparables it was not reasonable to carry out the valuation by direct comparison method. I consider the investment method of valuation was unreliable in this case because of the uncertainty and sensitivity of the market yield to be applied in the valuation. Secondly, rental comparables collected by Mr. Lai were in fact not true comparables to the Subject Property. Although I agree that usually the “rule of thumb” approach was not the most reliable method, it was not uncommon in valuation of cockloft and backyard when no sufficient comparables existed, this was used by many surveyors. I therefore find that it is reasonable to use this “rule of thumb” valuation for the First Floor Commercial Unit(s).

40.  The difficult question is however what is a reasonable discount factor. After considering the evidence before me, and in particular the observation I had during the site visit, I agree with Mr. Ng that not many new developments had first floor commercial units. This shows that the demand for first floor commercial units in the area perhaps was not strong. On balance, I tend to accept Mr. Ng’s view that the value of the first floor was 1/5 of the value of the ground floor shop. I therefore find that the unit rate for the GDV of the First Floor Commercial Unit(s) of the notional redevelopment is ($264,349 per sq.m. X 1/5) $52,870 per sq.m.

The Discount Rate

41.  The valuation expert appointed by the Applicant, Mr. Lai, suggested that interest rate on building loans charged at a few points above HIBOR should be used as the discount rate. The Applicant’s director Mr. Tsang also gave evidence that he was able to secure bank loan at a similar rate. For these reasons, Mr. Lai was of he view that the discount of rate for the valuation should be this borrowing rate which represented the market cost of borrowing. Therefore he said the discount rate should be 8.79%. The valuation expert appointed by the Respondent, Mr. Ng, however, suggested that the usual practice for residual method of valuation was to adopt 2% above the prime lending rate of banks. At the relevant time, it was 10.75%. I agree with Mr. Ng’s view. In undertaking residual method of valuation, it was entirely irrelevant to consider the borrowing rate of the owner of the land. The discount rate is, in fact, the time value of money and this was usually reflected by a few percentage above prime lending rate of banks. This was also a usual approach adopted by surveyors in Hong Kong. In my judgment, I find that, for the present case, the discount rate of 10.75% is reasonable and acceptable.

Time required for Obtaining Vacant Possession

42.  It was common ground that, as at the date of resumption, the Subject Property was subject to some protected tenancies and licences. It was agreed by both valuation experts that, in carrying out the valuation, time must be allowed for obtaining vacant possession so as to facilitate the notional redevelopment.  However, they differed in their views on the length of time. Mr. Lai said that it should be 6 months but Mr. Ng said that 9 months were more appropriate.

43.  In my judgment, given not a large number of tenancies and licences involved in the present case, 6 months should be sufficient for obtaining vacant possession. It would be unnecessary to allow more time, even taking into consideration that some tenants or licensees were more difficult than others to vacate the properties.

The Residual Method of Valuation

44.  According the parties agreed assumptions and my determination above, the valuation of the Subject Property is as follows:-

GDV		($)	($)	($)
Ground Floor Shop(s)	219.46   sq.m. x	264,349 psm	58,014,032
First Floor Commercial Unit(s)	231.421 sq.m. x	52,870 psm	12,235,228
Upper Floors Domestic Units			80,000,000
			150,249,260
Less:
Marketing Costs	@  1% of GDV		1,502,493
			148,746,767
Present Value	1.5 year @ 10.75% p.a.		0.8580	127,624,726
Less:
Development Costs
Construction Costs			22,476,793
Professional Fees	@ 6% on Construction Costs		1,348,608
Contractor’s Profit	@ 20% on Construction Costs		4,495,359
			28,320,760
Present Value	0.75 year @ 10.75% p.a.		0.9263	26,233,520
Balance for Land and Profit				101,391,206
Less: Developer’s Profit	@ 20% on land			0.8333
Clear Site Value				84,489,292
Less:
Demolition Costs			1,000,000
Tenant’s Compensation			5,136,000	6,136,000
				78,353,292
Present Value for obtaining	0.5 year @ 10.75% p.a.			0.9502
Vacant Possession
Open Market Value of				74,451,298
The Subject Property
			Say	74,451,000

Orders

45.  Accordingly, I order that the Respondent do pay the Applicant compensation for the Subject Property in the sum of 74,451,000.  The matters of professional fees, interest and costs shall be adjourned to a date to be fixed, with liberty to apply for any other ancillary and consequential matters.