WONG CHICK KEUNG AND ANOTHER v. WOO MAN SANG AND OTHERS

CACV 1945/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1945 OF 2001

(On appeal from Court of First Instance No. HCMP 3490 of 1991)

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D E C I S I O N

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1. This is the taking of account of profits pursuant to an order made by the Court of Appeal dated 15 May 2002.

2. According to the said order, the plaintiffs are entitled to an account of profits, if any, made by the 2nd, 3rd and 4th defendants in respect of their dealing with the property known as Flat 3, 7th Floor, Block B, Greenview Garden, Shatin (“the Property”).

Background

3. The background of the case has been succinctly set out in the judgment of the Court of Appeal under paragraphs 2 to 10.  Briefly it can be stated as follows.

4. The 1st and 2nd plaintiffs are now husband and wife.  Back in 1991, they were colleagues working for the same estate agent company.  The 2nd plaintiff was then married to the 1st defendant.

5. In August 1991, the Property in question was purchased by the plaintiffs with their own money.  For fear of conflict of interest with their work as estate agent, and with the consent of the 1st defendant, the legal title to the Property was registered in the name of the 1st defendant.  A mortgage was also executed by the 1st defendant in favour of Hang Seng Finance Limited.

6. In about the end of September 1991, the marriage between the 2nd plaintiff and the 1st defendant fell apart.  The plaintiffs decided to sell the Property.  With the assistance of their estate agency colleagues, the plaintiffs attempted to sell the Property to the 2nd to 4th defendants.  However, the sale was aborted because by then the plaintiffs feared that they would not be able to secure the 1st defendant to execute the necessary sale documents.  However, throughout the attempted sale of the Property to the 2nd to 4th defendants, the plaintiffs had concealed their beneficial interests in the Property.

7. In November 1991, and without the authority of the plaintiffs, the 1st defendant instructed other estate agents to sell the Property.  The Property was again offered to the 2nd to 4th defendants.  On 10 November 1991, an agreement for the sale and purchase of the Property was reached between the 1st defendant and the 2nd defendant, and a provisional sale and purchase agreement of the Property was signed between the parties.  Messrs. Stevenson, Wong & Co., the third party in these proceedings was engaged as the solicitors for the 2nd to 4th defendants.  At the material times, the 2nd to 4th defendants had no knowledge that the 1st defendant did not have the authority to sell nor that the plaintiffs were the beneficial owners of the Property.

8. On 18 November 1991, and before the completion of the sale and purchase of the Property, the plaintiffs filed a claim against the 1st defendant and a lis pendens was registered against the Property at the Land Registry.  However, due to the omission on the part of the solicitors (i.e. the third party) the 2nd to 4th defendants proceeded to complete the sale and purchase in disregard of the interests of the plaintiffs registered by way of lis pendens.

9. At the trial of this action before Yam J, the plaintiffs’ claims against the 2nd to 4th defendants were dismissed.  On appeal, the Court of Appeal ruled that because of the registration of the lis pendens by the plaintiffs before completion, the 2nd to 4th defendants had constructive notice of their claim in equity.  The 2nd to 4th defendants should take the legal estates subject to that equity.  They were also ordered to account to the plaintiffs their dealing with the Property.

The undisputed facts

10. The following facts are not disputed:-

(a)    the 2nd to 4th defendants are sisters.  They became the registered owner of the Property on 5 December 1991.  They remained as owner until it was sold on 19 June 2001;

(b)    the purchase price for the Property is $1.76 million out of which $1.3 million was mortgage loan from HSBC.  The balance of the purchase price in the sum of $460,000 was paid by the 2nd to 4th defendants with their own money.  The completion money (i.e. $1.76 million) was used to discharge the mortgage of the plaintiffs (i.e. $1,206,004.74) which was executed in the name of the 1st defendant.  The rest of the proceeds of sale was pocketed by the 1st defendant who subsequently disappeared;

(c)    after the Property was acquired, the 2^nd to 4^th defendants, had incurred expenses in renovating and improving the condition of the Property.  Throughout their ownership of the Property, they had also paid for the mortgage installments, management fees, rates, government rent and the fire insurance;

(d)    the 2nd to 4th defendants lived in the Property until July 1995.  Thereafter they rented it out to a Lau Ming Kwan for the period from July 1995 to February 1996 (“the 1st letting”).  It was then left vacant for two months namely March and April 1996 (“the vacant period”).  In May 1996, it was rented out again to a Lo Mei Kuk until September 1999 (“the 2nd letting”).  The 2nd to 4th defendants had incurred expenses such as estate agent fees in connection with the two lettings.  They had also paid property tax on the rents received;

(e)    in October 1999, they moved back to live in the Property until it was sold in June 2001 at the price of $1.79 million.  Before the sale, they had incurred expenses in repainting the walls and polishing the floor to make it more saleable.  They had also paid for the costs in connection with the sale of the Property;

(f)    the parties have also agreed on the valuations of the Property relating to the period during which the Property was occupied by the 2^nd to 4^th defendants (i.e. the occupation rent which is exclusive of rates and management fees).  See the “Agreed Rental Valuations” produced by consent and marked as “exhibit D1”.

Receipts and Disbursements of the 2^nd to 4^th defendants

11. Pursuant to the directions of the Court, the 4^th defendant has filed her 3^rd affirmation (on behalf of herself and the 2^nd and 3^rd defendants) accounting for the benefits received from their occupation of the Property as well as the expenses incurred.  Various supporting documents such receipts and bank statements are also exhibited.  At the hearing, the 4^th defendant gave evidence to further elaborate on the receipts and expenses incurred.  She was cross-examined by the plaintiffs.

12. The receipts and disbursements of the 2^nd to 4^th defendants as per the account exhibited to the 3^rd affirmation of the 4^th defendant can be summarized as follows.  For the sake of easy reference, I have adopted the same numbering as appears in the account rendered.

Item	Receipts	HK$
1)	Rents received from the 1st and 2nd lettings	439,296.00
2)	Mortgage interest for periods without rental income (i.e. occupation rent)	540,002.21
3)	Proceeds from the sale of the Property in June 2001	1,790,000.00
	Subtotal:	2,769,298.21
	Disbursements
4)	Purchase price paid by the 2nd to 4th defendants in November 1991	1,760,000.00
5)	Agency fee paid by 2nd to 4th defendants for the purchase of the Property in November 1991	17,600.00
6)	Charges paid by 2nd to 4th defendants to HSBC for home loan application in November 1991	1,000.00
7)	Legal fee and stamp duty paid to Messrs. Stevenson Wong & Co. for the purchase of the Property	64,045.00
8)	Decoration fee incurred after the acquisition of the Property	74,853.00
9)	Fire insurance paid to HSBC from December 1991 to December 2001	14,300.00
10)	Government rent and rates for the Property from 1992 to June 2001 paid by the 2nd to 4th defendants (i.e. $12,096 as rent and $45,468 as rates the sum total is $57,564)	57,564.00
11)	Management fee for the various periods during which the Property was used by 2nd to 4th defendants	38,306.00
12)	Property tax paid in respect of the rents received from the 1st and 2nd lettings	9,827.00
13)	Agency fee paid for 1st letting in July 1995	4,750.00
14)	Stamp duty paid for 1st letting in July 1995	575.00
15)	Agency fee paid for the 2nd letting in April 1996	4,600.00
16)	Decoration fee incurred before the sale of the Property in June 2001	12,000.00
17)	Agency fee paid for the sale of the Property in June 2001	17,900.00
18)	Legal fees paid to Messrs. Johnson Stokes & Master in connection with the sale of the Property in June 2001	2,320.00
19)	Legal fees paid to Messrs. Jimmie K.S. Wong & Co. in connection with the sale of the Property in June 2001	7,590.00
20)	Fee paid to the Hong Kong Government in connection with the sale	450.00
21)	Interest on deposit of $450,000 @prime + 1%	405,601.00
22)	Interest on repayment of capital – say 50% of capital repayment @prime + 1%	185,821.70
23)	Mortgage interest paid to HSBC throughout the ownership of the Property by 2nd to 4th defendants	971,890.86
	Subtotal:	3,650,993.56
		2,769,298.21
		- 3,650,993.56
	Balance:	(881,695.35)

13. Based on the above account, the 2^nd to 4^th defendants contended that they have no profit to account to the plaintiffs.  On the contrary, they have suffered a loss of $881,695.35.  The plaintiffs disagreed.

14. In respect of the account, Mr. Cheung, counsel for the 1^st plaintiff, and the 2^nd plaintiff do not dispute the receipt items namely item 1 and 3 above.  They also agree that the disbursement items namely item 8 (which is adjusted by agreement to $37,426.50), 9, 12, 13, 14, 15, 17, 18, 19, 20 and 23 should be deducted from the receipts.  However, they dispute on the following items and matters:-

a)    the occupation rent under item 2;

b)    the purchase price in the sum of $1.76 million under item 4;

c)    the legal fee and related charges and expenses in connection with the purchase of the Property from the 1^st defendant in December 1991 under items 5, 6 and 7;

d)    the government rates and management fees under items 10 and 11;

e)    the decoration fee incurred before the sale of the Property in June 2001 under item 16;

f)    the interest on the deposit of $450,000 and on repayment of capital under items 21 and 22.

14. Apart from the above, Mr. Cheung also sought to claim interest on the rentals received from the 1^st and 2^nd lettings.  Initially, he also sought interest on the occupation rent under item 2 and on the proceeds of sale under item 3 above.  However, at the hearing on 13^th October 2006, he confirmed that his client would maintain the claim for interest on the rentals received only and would abandon the claim for interest on items 2 and 3.

15. The 2^nd plaintiff was unrepresented at the hearing.  However, she confirmed that she would adopt the stance and submissions of Mr. Cheung made on behalf of the 1^st plaintiff.

16. I shall now deal with the disputed items and the other matters raised by Mr. Cheung.

The disputed items

Occupation rent (item 2)

17. The only dispute under this item is whether the 2^nd to 4^th defendants should also pay occupation rent during the vacant period i.e. the two months in March and April 1996 when the Property remained vacant pending the commencement of the 2^nd letting to the said Lo Mei Kuk.  The parties agreed that if the 2^nd to 4^th defendants are required to pay occupation rent for the vacant period, the total occupation rent that they need to account for should be $509,400 (representing 65 months of occupation) and not $540,002.21 as originally claimed under item 2.  But if they need not account for the vacant period, the total occupation rent to be accounted for is $490,000 (representing 63 months of occupation).

18. On this issue, Mr. Cheung argued that although the 2^nd to 4^th defendants were not occupying the Property during the vacant period, they were nevertheless in possession of it and should therefore pay occupation rent for these two months.  He added that the plaintiffs had been deprived of the use of the Property.

19. Mr. Merry, counsel for the 2^nd to 4^th defendants disagreed.  He argued that the occupation rent is not compensation to the beneficiaries for deprivation of use of the Property, rather it is an allowance to account for the benefit received by the 2^nd to 4^th defendants from their actual occupation of the Property.  The benefit is from occupation not from possession.  I agree and accept the argument of Mr. Merry.  In my view, the said order of the Court of Appeal requires the 2^nd to 4^th defendants to account for the profit they receive from the Property.  This would naturally include the rentals they received from letting the Property out and the benefits they gained from actually occupying it.  However, the 2^nd to 4^th defendants are not required under the said order to compensate or to pay damages to the plaintiffs simply because the plaintiffs had been deprived of the use of the Property.  On this item, I agree that the 2^nd to 4^th defendants are only required to account for the benefit they gained from their 63 months of occupation of the Property which amounts to, in money terms, $490,000 as agreed by the parties.

The purchase price (item 4)

20. On this item, it is the first argument of Mr. Cheung that the purchase price paid by the 2^nd to 4^th defendants in the sum of $1.76 million should not be deducted from the receipt items.  He stated that out of the said sum of $1.76 million, $1.3 million was mortgage loan from HSBC and the balance of $460,000 was own money from the 2^nd to 4^th defendants.  However, after discharging the balance of the said mortgage loan (amounting to $881,756.86) from the proceeds of sale of the Property in June 2001, the 2^nd to 4^th defendants only suffered a net loss of $878,243.14 (i.e. $1,300,000 - $881,756.86 + $460,000).  He contended that this net loss should not be deducted from the receipt items rather the 2^nd to 4^th defendants should recoup this net loss as damages against the solicitors in the third party proceedings.  He relied on the case of Clarke v Milford (1987) 38 D.L.R. (4^th) 139 to support his proposition that a client could recover from his solicitors the purchase price and the taxes he had paid on the property and as a result of the negligence of the solicitors.

21. Mr. Cheung further submitted that in the judgment of the Court of Appeal, at paragraph 25 thereof, the Court of Appeal has expressly allowed the mortgage interest payments made by 2^nd to 4^th defendants to be deducted as expenditure, but the Court of Appeal has not stated that the purchase price paid by them could also be deducted.  Paragraph 25 reads as follows:-

“25.  In the premises this appeal must be allowed.  The plaintiffs are entitled to an account from the 2^nd – 4^th defendants in respect of their dealing with the property.  To avoid misunderstanding, it should be said that, because the 2^nd – 4^th defendants were in fact unaware of the plaintiffs’ rights at the time of purchase, there would be nothing to prevent their bringing into account all sums expended in respect of the property, including mortgage interest payments.  Since the representation of the 2^nd – 4^th defendants has been by those acting for the third party, it is assumed that the 2^nd – 4^th defendants are fully indemnified as to costs and damages by the third party.”

Relying on the above, Mr. Cheung argued that the purchase price paid by the 2^nd – 4^th defendants should not be allowed to be deducted.

22. It is the second argument of Mr. Cheung that the 2^nd to 4^th defendants should deduct the plaintiffs’ mortgage loan in the sum of $1,206,004.74 from the receipt items.  He based his argument on paragraph 14 of the judgment of the Court of Appeal.  At line H thereof, it states:-

“14.      ……In the first place, the plaintiffs were the beneficial owners of the property and by reason of the notice, which the 2^nd – 4^th defendants must be taken to have had because of the registration of the lis pendens, the 2^nd – 4^th defendants took the property subject to the same trust under which the 1^st defendant held the property.  On that basis it is said that the 2^nd – 4^th defendants had to account to the plaintiffs in respect not only of the balance of the purchase price which they paid for the property over and above the amount paid to discharge the mortgage to Hang Seng Finance Limited but, also, they had to account for the rents and other profits received in respect of the property.  As already noted, as put in the notice of appeal, that would include any profit on the sale which took place after judgment in the court below and before the notice of appeal had been filed.  However, in argument Mr. Cheung, on behalf of the plaintiffs did not argue that the claim extended to any profit made on this late sale.  It was by no means clear as to why he stopped short in this regard.  In the alternative, the plaintiffs put their claim on the basis that they should recover the excess amount paid by the 2^nd – 4^th defendants on their purchase of the property over and above the amount paid to discharge the mortgage, on the basis that the time the purchase money was paid over, they had knowledge of the plaintiff’s claim to title.”

23. Mr. Merry argued otherwise.  He submitted that the purchase price was a sum actually “expended in respect of the property” and was incurred during the 2^nd to 4^th defendants’ first dealing with the Property.  This is entirely within the meaning of the said order the Court of Appeal as per paragraph 25 cited above.  He stated that without this expenditure, there would have been no trust property, no sale and no possibility of there being any profits upon the taking of an account.  He submitted that it would be grossly unjust if no allowance is given for the purchase price as part of it had been applied to discharge the mortgage of the plaintiffs.  He disagreed that the mortgage loan of the plaintiffs in the sum of $1,206,004.74 should be deducted as expenditure.

24. In my view, and with respect to Mr. Cheung, there is no merit in the arguments put forward by him.

25. Firstly, we are not here to deal with what damages that the 2^nd to 4^th defendants could seek against their own solicitors or the loss suffered by them as a result of the negligence of their solicitors in handling the transaction.  Nor are we concerned with the assessment of the damages that the plaintiffs are entitled.  We are here to take account of the profit, if any, made by the 2^nd to 4^th defendants in their dealing with the Property.  As such, it is irrelevant as to whether the 2^nd to 4^th defendants could claim the net loss against their solicitors or not.  The case of Clarke v Milford has no application in the present case.  We are concerned with what profit that the 2^nd to 4^th defendants had made out of their dealing with the Property; that is receipts less allowable expenses.  As stated in Snell’s Equity, 31^st edition, at page 185, paragraph 7-129 that:-

“Like all equitable remedies, the account of profits is discretionary and so is fashioned to meet the circumstances of the case, but this is done in accordance with settled equitable principles.  ‘The obligation extends to the actual or net profit.’  In a simple case, e.g. one involving the purchase and re-sale of trust property by a trustee, the account of profits will take into account all moneys which the trustee has received in the impugned transaction, set against all moneys which the fiduciary paid out in respect of the transaction, including allowances for disbursements or expenses properly incurred in respect of the transaction.”

26. Secondly, and on the plain reading of paragraph 25 of the Court of Appeal judgment, I am of the view that the purchase price paid by the 2^nd to 4^th defendants must be treated as expenditure in respect of the Property and should be taken into account.  I note the argument of Mr. Cheung that paragraph 25 refers to “mortgage interest payments” only, there is no mention about the purchase price.  However, I agree with the submissions of Mr. Merry that the purchase price was not specifically referred to by the Court of Appeal because it was so obvious that it should be.  As pointed out by Mr. Merry, the Court of Appeal allows the 2^nd to 4^th defendants to bring into account “all sums expended in respect of the property”.  Indeed, when one looks at paragraph 25 in context, the purchase price should be allowed to be deducted.  By using the word “including” before “mortgage interest payment”, the Court of Appeal is only taking “mortgage interest payments” as one of the examples of expenditure.  It does not mean to exclude the purchase price as Mr. Cheung argued.

27. Further, I also disagree with Mr. Cheung’s submission that the mortgage of the plaintiffs in the sum of $1,206,004.74 should be deducted from the receipts.  I note that he relied on the said paragraph 14 of the judgment of the Court of Appeal, but in my view, paragraph 14 is not part of the reasoning of the Court of Appeal.  What the Court of Appeal has done in paragraph 14 is to relate the arguments of Mr. Cheung submitted at the hearing only.  That paragraph does not form and never forms part of the order or ruling of the Court of Appeal.  This can be seen at between lines J and K of paragraph 14 which states that:-

“On that basis it is said that the 2^nd – 4^th defendants had to account to the plaintiffs in respect not only of the balance of the purchase price which they paid for the property over and above the amount paid to discharge the mortgage to Hang Seng Finance Limited but ……” (underline provided)

28. In my view, the order of the Court of Appeal is as stated in paragraph 25 of its judgment.  And as the mortgage of the plaintiffs is not sums expended in respect of the property by the 2^nd to 4^th defendants, it should be excluded.

Legal fees and related charges and expenses (items 5, 6 and 7)

29. Mr. Cheung argued that these items namely the Agency fee, charges for home loan application and legal fees and stamp duty incurred for the purchase of the Property by the 2^nd to 4^th defendants in December 1991 should be regarded as wasted expenditure and be recoverable by the 2^nd to 4^th defendants against the negligent solicitors only under the principles of Clarke v Milford.  They should not be allowed to be deducted from the receipts of the Property.

30. Mr. Merry contended that they should be deducted as they were costs actually expended in respect of, and of dealing with, the Property.  Without them, there would have been no trust property, no account, no resale and no possibility of profit.

31. I agree with Mr. Merry that these items should be allowed to be deducted as they are sums expended on the Property.  As I have mentioned above, we are not here to deal with what damages that the 2^nd to 4^th defendants may be able to claim against their solicitors.  We are to find out the sums expended on the Property and items 5, 6 and 7 are just one of those expenses on the Property.

The government rates and management fees (items 10 and 11)

32. Mr. Cheung does not dispute that the government rent (in the sum of $12,096.00) is deductible expenses but argued that the government rates (in the sum of $45,468.00) and the management fees (in the sum of $38,306.00) paid by the 2^nd to 4^th defendants during their occupation of the Property are not deductible.  Mr. Cheung argued that they are not deductible because the rental values are exclusive of the management fees and rates and the same had all along been paid by the tenants (of the two lettings).  By the same token, as the 2^nd to 4^th defendants had to pay occupation rent for the use and occupation of the Property, they should also be responsible to discharge the management fees and rates as the tenants had done.

33. Mr. Merry again disagreed.  He submitted that management fees are for services, such as security, for the Property and to the common areas, they are not related with its occupation as such.  Likewise rates are paid for public services rather than for occupation.

34. In my view, the management fees and rates in the sum of $38,306.00 and $45,468.00 respectively should be allowed to be deducted from the receipt items.  They are recurrent expenses for the Property and are payable irrespective of who is in occupation be it the 2^nd to 4^th defendants or the plaintiffs.  They are sums expended by the 2^nd to 4^th defendants on the Property.

The decoration fee incurred before the sale of the Property in June 2001 (item 16)

35. The sum claimed under item 16 is $12,000.  Mr. Cheung conceded a sum of $6,000.  I am prepared to allow the full sum to be deducted as I fail to see how this amount, incurred by the 2^nd to 4^th defendants solely for the purpose of making the Property more saleable, is not deductible.  As I see it, the 2^nd to 4^th defendants gained no benefit out of it and the amount claimed appears to be reasonable.

Interest on the deposit of $450,000 and on repayment of capital (items 21 and 22)

36. The primary position of the 2^nd to 4^th defendants is that either party should not be allowed to claim interest against the other.  However, if the plaintiffs would like to claim interests on the rentals received or on the occupation rent etc, Mr. Merry contended that the 2^nd to 4^th defendants should be allowed to claim interest for the loss of use of the deposit of $450,000 and on the money used to repay the capital.  With respect to Mr. Merry, I do not agree.  In this taking of account exercise, we are concerned with the sums expended by the 2^nd to 4^th defendants in respect of their dealing with the Property, not with what loss that the 2^nd to 4^th defendants had incurred such as the loss of use of money.  Indeed, for the sake of argument, if the Court is to allow interest on the loss of use of money spent on mortgage repayments, does it also mean that the Court should allow interest on loss of use of money spent on other items in question such as rates, management fees or decoration fee.  In my view, that cannot be right and the claims under these two items namely for interest on the deposit and on the repayment of capital are disallowed.

The claim for interest on rentals received from the 1^st and 2^nd lettings

37. Mr. Cheung submitted that they should be entitled to interest on the rentals received from the two lettings in the total sum of $439,296.00.  He stated that interest should be assessed on this sum either at the bank savings rate or half of the judgment rate.  He relied on the textbook, Breach of Trust (2003), edited by Birks and Pretto, ‘Liability’ by Robert Chambers, at page 33 which states:-

“(e)  Interest

In A-G v Alford, Lord Cranworth LC identified three permitted bases for charging trustees with interest:

What the Court ought to do, I think, is to charge him only with the interest which he received, or which it is justly entitled to say he ought to have received, or which it is so fairly to be presumed that he did receive that he is estopped from saying that he did not receive it.

The first option, the interest the trustees did in fact receive, is simply restitution through an account of profits ……”

38. Mr. Merry disagreed.  He stated that even on the authority relied on by Mr. Cheung, payment of interest is an alternative remedy to an account.  A trustee cannot be ordered to pay over a surplus arising on an account taken and to pay interest.  He submitted that where a commercial or professional trustee uses trust money to invest, beneficiaries are entitled to an account of profits or interest upon the trust money used, as compensation but not to both.  He argued that in the case of Bartlett v Barclay’s Bank Trust Co Ltd (No 2) (1980) Ch 542, the discussion of interest concerned the compensation only not the account.

39. Mr. Merry further submitted that the plaintiffs’ request for interests assumes that the money received was all profit upon which interest could be earned.  He said that that assumption is mistaken as the rentals received had been expended by the 2^nd to 4^th defendants on mortgage repayments, management fees, rates etc.  The rentals received would be swallowed up in expenses, there would be no running surplus upon which interest could be earned or charged.

40. Having considered the authorities and the submissions, I agree with Mr. Merry that the authority relied on by Mr. Cheung does not lend support to his claim for interest on the rentals received.  Indeed, after the passage referred to by Mr. Cheung in Birks and Pretto at page 33, it continues to state as follows (i.e. on the 3 permitted bases for charging trustees with interests):-

“The first option, the interest the trustees did in fact receive, is simply restitution through an account of profits.  The second option, the interest the trustees should have received, is compensation for loss (as discussed above).  The third option, the interest the trustees are presumed to have received, is also restitution, but through an award of interest rather than an account of profits.

Beneficiaries often have an option to take an account of profits or an award of interest.  In most cases, this is a choice between restitution of profits or compensation for loss.  However, the choice can also be between two methods of restitution: an account of interest actually earned or a surcharge for interest that the trustees presumably earned.  An award of presumed interest will be chosen to avoid the expense or delay of taking an account of actual earnings and may be necessary where the actual earnings cannot be ascertained.  As James LJ said in Vyse v Foster:

If an executor or trustee makes profit by an improper dealing with the assets or the trust fund, that profit he must give up to the trust.  If that improper dealing consists in embarking or investing the trust money in business, he must account for the profits made by him by such employment in such business; or at the option of the cestui que trust, or if it does not appear, or cannot be made to appear, what profits are attributable to such employment, he must account for trade interest, that is to say, interest at 5 per cent.”

41. In view of the above, I agree that the plaintiffs could either claim profit or interest, but not both.  On this issue, I disallow the claim by the plaintiffs for interest on rentals received.

Amount of Profits to be accounted

42. After deducting all the allowable expenses from the receipt items and for the reasons stated above, I conclude that there is no profit for the 2^nd to 4^th defendants to account to the plaintiffs.  The calculations appear as follows:-

Item	Receipts	HK$
1)	Rents received from the 1st and 2nd lettings	439,296.00
2)	63 months of occupation rent	490,000.00
3)	Proceeds from the sale of the Property in June 2001	1,790,000.00
	Subtotal:	2,719,296.00
	Less Disbursements
4)	Purchase price paid by the 2nd to 4th defendants in November 1991	1,760,000.00
5)	Agency fee paid by 2nd to 4th defendants for the purchase of the Property in November 1991	17,600.00
6)	Charges paid by 2nd to 4th defendants to HSBC for home loan application in November 1991	1,000.00
7)	Legal fee and stamp duty paid to Messrs. Stevenson Wong & Co. for the purchase of the Property	64,045.00
8)	Decoration fee incurred after the acquisition of the Property (i.e. $74,853 ÷ 2) as agreed	37,426.50
9)	Fire insurance paid to HSBC from December 1991 to December 2001	14,300.00
10)	Government rent and rates for the Property from 1992 to June 2001 paid by the 2nd to 4th defendants (i.e. $12,096 as rent and $45,468 as rates the sum total is $57,564)	57,564.00
11)	Management fee for the various periods during which the Property was used by 2nd to 4th defendants	38,306.00
12)	Property tax paid in respect of the rents received from the 1st and 2nd lettings	9,827.00
13)	Agency fee paid for 1st letting in July 1995	4,750.00
14)	Stamp duty paid for 1st letting in July 1995	575.00
15)	Agency fee paid for the 2nd letting in April 1996	4,600.00
16)	Decoration fee incurred before the sale of the Property in June 2001	12,000.00
17)	Agency fee paid for the sale of the Property in June 2001	17,900.00
18)	Legal fees paid to Messrs. Johnson Stokes & Master in connection with the sale of the Property in June 2001	2,320.00
19)	Legal fees paid to Messrs. Jimmie K.S. Wong & Co. in connection with the sale of the Property in June 2001	7,590.00
20)	Fee paid to the Hong Kong Government in connection with the sale	450.00
23)	Mortgage interest paid to HSBC throughout the ownership of the Property by 2nd to 4th defendants	971,890.86
	Subtotal:	3,022,144.36
		2,719,296.00
		- 3,022,144.36
	Balance:	(302,848.36)

Costs

43. On the question of costs, I am minded to make no order as to costs of these hearings as I have found, after taken the accounts, that there is no profit to be accounted by the 2^nd to 4^th defendants to the plaintiffs.  On the other hand, I do not think it is appropriate to order the plaintiffs to bear the costs of these hearings as the taking of account exercise is ordered by the Court of Appeal.

44. As to the costs of the hearings before Master De Souza on 13 July 2005 and 14 November 2005, I am also minded to make no order as to costs for these two hearings as the adjournments were through no fault of the parties but occasioned by the discharge of legal aid certificate previously granted to the 2^nd plaintiff.  For these reasons, I make an order nisi that there be no order as to costs for these hearings including the hearings before Master De Souza on 13 July 2005 and 14 November 2005.  The order nisi is to be made absolute upon the expiration of 14 days from the date this decision is handed down.  There will be legal aid taxation in respect of the own costs of the 1^st plaintiff.