Times Square acts to stop damages suit

PUBLISHED : Friday, 11 February, 2011, 12:00am
UPDATED : Friday, 11 February, 2011, 12:00am

Times Square is trying to halt a lawsuit by the Building Authority to claim some of the profit it made over more than 15 years by leasing its public piazza.

Its lawyers argued yesterday in the Court of First Instance that the authority lacked legal status and only the government as a whole had the power to sue.

But lawyers representing the government said the authority had struck the deal with the shopping mall operator and it would make little difference whether the government or the authority, as an agent of the administration, was suing.

They accused Times Square of trying to 'buy time'.

The lawsuit arose from a 2008 writ in which the Building Authority sought damages from Times Square - a key asset of the Wharf group - for making excessive profits by renting out its 3,017- square-metre ground-level piazza, a public open space, for exhibitions and commercial events.

The authority alleges that for 15 years the company charged up to HK$124,000 a day for use of space reserved for the public. The court heard that the shopping mall had dedicated the piazza for public use as a pedestrian passage and for passive recreation and in return had been given a bonus plot ratio, or extra building area.

The court also heard that Times Square was allowed to stage exhibitions and displays in the area on condition that it charge only for use of facilities such as electricity and water, which had not been the case.

However, Ambrose Ho SC, representing Times Square, argued on a point of law that the Building Authority was not entitled to claim damages for its share of profits generated from leasing out the piazza. He said that damages were usually granted to an innocent party that suffered loss due to breach of contract by the other party, while in this case the authority had not suffered losses.

However, Benjamin Yu SC, representing the authority, insisted that it was entitled to claim more than nominal damages - a small amount awarded to a plaintiff in a lawsuit to show they were right but suffered no substantial harm.

Deputy High Court Judge Louis Chan Kong-yiu said there were conflicting opinions in Britain on the issue and the matter might have to be taken to the Court of Final Appeal for determination.

Yu said the lawsuit should go ahead and should not be further delayed in light of public concern about the use of public open space.

'It [would be] unfortunate to get a judgment or resolution five, six, seven years later,' Yu said. 'It doesn't matter who's going to win but what is determined.'

The court also heard the authority had repeatedly tried to obtain information about the rents the shopping mall charged, but received no response.

The court was told that Times Square rented the piazza according to three categories. The place was free for government, community and charitable organisations. Tenants of the shopping mall could rent the space for a preferential rate.

It usually did not rent out the open space to companies and organisations that did not have previous connections with it unless they put forward a good reason for using it.

The judge reserved his judgment.