SUSAN WONG v. HONOR BUDGET CO LTD AND ANOTHER

SUSAN WONG v. HONOR BUDGET CO LTD AND ANOTHER

Court found on balance that (1) an oral agreement existed that property would be let and proceeds shared equally and the 1st defendant would manage; (2) the POA made the 2nd defendant agent with fiduciary duties to account for net rental proceeds; (3) the Assignment novated the 1st defendant's position to the 2nd defendant; (4) the 2nd defendant breached duties by failing to account for net rental income from 1 May 2008 and by wrongfully occupying Unit C1/Unit 1328; (5) quantum was fixed by expert market rent adjusted for vacancy and recurring expenses (adopted first valuation set with 15% vacancy and 40% recurring expenses) and mesne profits adopted on expert rates; and (6) order for...

Citation
[2020] HKCFI 1606
Parties
1st Defendant: Honour Budget Company Limited; 2nd Defendant: Ms Yeung Suet Wah
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 July 2020
Case Number
HCA868/2008
Procedural Posture
Civil Property/account of Profits/partition / Judgment After Trial
Outcome
Judgment for plaintiff against 2nd defendant on claims for account of profits and mesne profits; order for sale of property; costs order nisi in favour of plaintiff against 2nd defendant.
Legal Topics
Account of Profits, Mesne Profits, Partition and Sale, Oral Agreement, Power of Attorney, Breach of Fiduciary Duty, Evidence and Burden of Proof, Interest on Judgment
Source Language
EN
Property Law Trusts and Fiduciary Duties Contract Equitable Remedies Civil Procedure Tax Law Account of Profits Mesne Profits +6 more

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Parties

Honour Budget Company Limited

1st Defendant

Ms Yeung Suet Wah

2nd Defendant

Procedural Posture

Civil Property/account of Profits/partition / Judgment After Trial

Legal Issues

  1. 1 Existence and terms of the alleged oral agreement between co-owners
  2. 2 Whether the Power of Attorney created agency and fiduciary duties
  3. 3 Effect of the Assignment and novation

Ratio Decidendi

Court found on balance that (1) an oral agreement existed that property would be let and proceeds shared equally and the 1st defendant would manage; (2) the POA made the 2nd defendant agent with fiduciary duties to account for net rental proceeds; (3) the Assignment novated the 1st defendant's position to the 2nd defendant; (4) the 2nd defendant breached duties by failing to account for net rental income from 1 May 2008 and by wrongfully occupying Unit C1/Unit 1328; (5) quantum was fixed by expert market rent adjusted for vacancy and recurring expenses (adopted first valuation set with 15% vacancy and 40% recurring expenses) and mesne profits adopted on expert rates; and (6) order for...

Court Disposition

Judgment for plaintiff against 2nd defendant on claims for account of profits and mesne profits; order for sale of property; costs order nisi in favour of plaintiff against 2nd defendant.

Orders

  • 2nd defendant to pay plaintiff 50% of net rental income for period 1 May 2008 to 31 December 2018 (HKD 1,263,533) with interest at judgment rate calculated annually as specified in judgment
  • 2nd defendant to pay plaintiff 50% of mesne profits for occupation of Unit C1/Unit 1328 for period 1 May 2002 to 31 December 2018 (HKD 325,000) with interest at judgment rate calculated annually as specified in judgment