Meeting
held on the 12 Having regard to these expressious as to the
TAIPINGSHAN RESUMPTION AREF
TRATION BOARD.
Al the session of the Taipingshan Board yesteři day the award of the Board on claims 11, 13 A. c. 3, and 17 was given. The Chairman (the Acling Chief Justice) said-We have made the following awards -
Amiodat
Amount of Govt.
awarded. offer. $56,000 $10,000 $10,000
$55,514 $30,000 $35,000
Claira Claimant.
Amount
No.
dla med.
11 Cheding Sau...
15
1.B.c.
Tang Kom She...
3 The Hongkong
Fire Insurance $30,880 $13,316 $16.000 Co., Limite .....
17 Wong Ka Pat...... $5,000 $2,796 $3,500 With respect to costs, we are of opinion, looking at the sums offered and those which we have awarded, that costs should be allowed in these cases; but we regret to see that the rules which we have laid down have not been accepted or followed in some respects and we again repeat the warning that in fature in cases of oxaggerated diaims we will not grant costs, even if we award more than the Government offers. I wish also to make some remarks respecting the meaning which it was sought to place on the 5th paragraph of the interpretation clause of Ordinance 15 of 1888; respecting the words "rateable value" [ expressed myself, perhaps, somewhat too strongly at the time, but I have considered the matter, looked up some authorities, and have come to the con Elusion that there can be no doubt as to the meaning of the words. The Ordinance says:
Rateable Value.The reut at which any tene ment might reasonably be expected to let, at the time of the valuation, from year to year, if the tenant undertook to pay all nsual tenant's rates Bud takes and if the landlord undertook to pay the Crown rent and the costs of repairs and in Karande, with any other expenses necessary to Maintain the tepement in state to com-
R
mand that rent." Mr. Deacon and Mr. Wil kinson both dontended that, according to this definition, there should, from the rent paid by the tenants, be made certain dedactions for repairs and other outgoings and that the rate- able value should be the net rent received by the landlord, and, therefore, from the sum assessed by the valuator no deductions should be made, because these had already been affected by the valuator. This is wrong. It must be Borne in mind that the Ordinance does not #ise the words "annual value" or "zet annual And, value," but it expressly says "the rent." secondly, that the rates are to be borne and paid, not by the landlord, but by the occupier. It is an occupier's rate." Bee section 32 of the Ordinance. What the Ordinance says is, that the rent is to be taken as the basis, suppos- ing that the tenant pays the rates and the lind- lord the repairs. Mark the word rent. Now, supposing the rent was say $1,000, tenant to pay all taxes and all repairs, then the rateable valug would not be $1,000, bat $1,000 less taxes and plus repairs; because the rent is not $1,000 ouly, but that sua plus the cost of repairs; and, if the rent is $1,000, tenant to pay the taxes and the landlord the repairs, etc., then $1,000 is the reut and the rateable value. Take three cases that I know of; the German Club pays $4,500, rateable value $4,500. The rent of No. 3, Sey- mour Terrace is $53, and this is the rateable value; because, in addition to the $55, the ten- aut pays the taxes and the landlord the repairs; and so, moreover, No. 35. Queen's Road Con. tral: the rateable value is $3,000 and the rent the same. The meaning of the words "Rant,** "Annual Rest," and "Rateable Value" bas often been considered in England, I will oits hut one case, viz, Smith The Corporation It of Birmingham, L.B. xi. Q.B.D., p. 195. wis provided, in a Water Act, that the charge made for the supply of water should be at a rate varying according to the annual rent, and Smith, the owner, eontended that in fixing the annual Fent, in addition to certain deductions which had boou allowed him, he was entitled to a further deduction for the average annual cost of repairs. idurance, and other expenses, necessary to main- thin the premises in a state to command the rentsi then received. Several cases were cited by the Judges in the course of their judgment, augst them that of I. v. Tomlinson. 9 B. & C. p. 163, in which Bayley, J., said, “Annual rent is uat savual profit or value." And the expression net yearly rent is there held to be equivalent to the rent paid by the tenant after deducting taxes and charges of collection, and not the clear Buses reat after every deduction inclad- ing the part to be set aside for repairs. And the Court, after citing other decisions, says, at p. 208,
In:
the meaning of annual valne and to the words *Annual Raut' in section 83 of the Act of 1895 and to the construction put upon the very similar words in Sheffield Waterworks Company e. Bennett, we think it would be running counter to the ease eited and laying down a rale in consistent with them, if we were to hold the to Js 'anomal rent' are equivalent to 'rateable value' aso-rtained in the manner provided by b&7 W. IV. c. 96." Besides, the question is moreover #nally decided by what the assessor here has always done in fixing the assessed Vajus. He takes the rent paid by the tenants. and from that deducts or not the taxes, accord- ing as they are paid by the teraut or not, and then. in cass where the premises are let in Boors, in order to take provision for any of the es that might be untananted during soy period of the assessmont year, the assessor, hpon the representation of the owner, allows a duction from the not rental, and the rating value is finally fixed after such deduction.
CLAIM NO. 11. This claim, his Lordhip continued, is made by Cheung San owner of Ira Lots Nos. 422, 570,571, and 572, He claimed originally $79,100. This was amended and reduced to $56 000. Government has in erased its original offer of $25,797 to $80,000. There is a diff rence of opinion among the mem hers of the Board on two points. 1st.-The claim at is in possession of more land than The bis lease measurements give him. Chairman is of opinion that as the Govern- tout bas raised the question of the claimant's tile to the whole of the land and as the Board has no power to inquire into the questions of title, two awards should be made, one on the basis that the claimant is entitled to all the land and buildings of which he is in posses. sion, an the other on the supposition that the comp test court decides that the claimant had no title to the sucroachment. And 2nd:-As to the Son to be awarded The Chairman, taking The tals into consideration, detunting there. from $1,175, and looking at the decrease there has bon the rentals since 1892. is of opinion thst Ve son of $35,000 is a full and fair campensation for the whole, whil» $32 0 10 would be ample com- pensation if the claim wat is entitled only to the land the lease measurements give him whereas Messrs Alfri and Danby are of opinico that only one award should be made and that the land is worth more than the saw fixed by the Chair. Mr. Alford will now give the reasons for
Mr. Alford said-In this case Mr, Danby conear regret that we are able to with the Chairman. The claimant is the original lesson and has been in undisputed possession of the properly for no less than 37 years. but it is now found that though the boundaries mentioned in the leases de not differ from the existing boundaries, the ares within those boundaries in larger than the area recorded in the leases This so-called "encroach- ment" is by itself of little marketable value; it is a long narrow strip on the south side, bonaded for the greater part by a high retaining wall constructed by the Government when making Caine Road, which road is in the Crown leases stated to be the southern boundary of the lots is also "encroachment" in question. This practically without means of access thereto ex- cepting over the area admitted to be the claim- aut's property. and had he (like others bara doue) applied for amended leases the Govera- ment could scarcely bave refused the application. To avail now of the unexpooted opportunity afforded by the Resumption Ordinanca to cou- fiscate this so-called encroachment would be in onr opinion contrary to the spirit of the Ordinance, which diroots as to receive evidence of any mat- ters watara “just and fair" and to zive "fall and fair "compensation. We have to look back to 1859. a time when we believe that boundaries were usn illy" pagg doat "by the survey depart. ment and were douh less the primary indications as to limits of lots, and when records of incor rect or merely approximate measurements were not uncommɔɔ. Were we to name one award as das inclusive of the so-called "encroachment" and another award exclusive of it and so leare the matter as in our opinion doubtful, we think we should unfairly prejudice the claimant's posi tion; we should thereby practically admit that we were incapable of arriving at a decision on the merits of the cam! We think justio, will be met by an award of $4,900 and for that sun and costs we give our judgment,
snay
This decision.
ad
Flis Lordship then said-The ward will thera for bs for $10,000 as the value of the whole pro- perty claimed by Cheung Sau.
563
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