AUGUSTINE CHAN v. CHOI SHUI HON AND ANOTHER

DCCJ 3595/2017 [2018] HKDC 1037 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3595 OF 2017 ---------------------------- BETWEEN AUGUSTINE CHAN Plaintiff and CHOI SHUI HON 1st Defendant CHAN CHING WAH 2nd Defendant ---------------------------- Before: Master Eleanor Yeung in Chambers (Open to public) Date of Hearing: 23 August 2018 Date of Assessment of Damages: 28 August 2018 -------------------------------------------- ASSESSMENT OF DAMAGES -------------------------------------------- This is an assessment of damages arising out of a water seepage dispute. Counsel Mr Wilfred Tsui represented the plaintiff at the assessment hearing. The defendants, who failed to appear in any of the prior court hearings or file any documents in the action, were not represented and were absent at the hearing. Affirmation of service had been filed by Messrs Li, Wong, Lam & W. I. Cheung to confirm that the order dated 29 June 2018 setting out the date and time of the hearing, the assessment bundle, and the plaintiff’s submissions, had all been served on the defendants. I am satisfied that the defendants had been properly notified of the hearing. Upon the plaintiff’s application pursuant to O 35 r 1(2) of the Rules of the District Court, I proceed with the hearing in the absence of the defendants. Background The plaintiff is the occupier of Flat 205 including the Flat Roof Appurtenant thereto on 2nd Floor of Block B, Kai Tin Towers, No. 61 Kai Tin Road, Kowloon, Hong Kong (“Flat 205”). The plaintiff and his wife are the directors and shareholders of Bright Life Development Limited, the registered owner of Flat 205. The defendants are the registered owners of Flat 505 on 5th Floor of Block B, Kai Tin Towers (“Flat 505”). On 9 August 2017, the plaintiff commenced these proceedings against the defendants for negligence and breach of the relevant deed of mutual covenant. The defendants had failed to give notice of intention to defend. Interlocutory judgment was entered against the defendants on 10 October 2017. The defendants were adjudged to pay the plaintiff damages to be assessed and costs. On 24 October 2017, the plaintiff issued a notice of appointment of assessment of damages. The defendants had failed to comply with the directions given by the court in relation to the filing of witness statement, and therefore were debarred from adducing any factual evidence at the assessment hearing. The plaintiff has produced an expert report made by Mr Wu Chi Cheung Raymond (“the Expert”) dated 8 May 2018 (“the Report”) in support of his case. Leave was granted to the plaintiff to adduce the Report as expert evidence on quantum in relation to the reasonable costs of remedial work of damages resulting from the water seepage in the plaintiff’s property, without having to call the Expert at the assessment hearing. The plaintiff’s case The plaintiff claims that as a result of the water seepage problem, he has suffered pecuniary loss as shown below. The amount of claim is based on a quotation from a refurbishment contractor:- Item Plaintiff’s claim Demolition Work 1. In the living room - Removal of carpet, cement sand screed, TV cabinet, red wine rack In the kitchen- Removal of tall cabinet, washing basin cabinet, partition twixt and wooden skirting HK$28,500 Construction Work 2. Repair the concrete wall including an anti-corrosion paint HK$16,000 3. A new tall wooden cabinet at the entrance door of the flat HK$17,100 4. A new red wine rack HK$7,350 5. A new TV cabinet HK$16,200 6. A new washing basin counter table HK$16,500 7. Installation of wooden skirting with painting work to the living room and kitchen HK$8,300 8. Emulsion paint to the walls and ceiling in the living room and kitchen HK$24,000 9. Plumbing and drainage work and electrical work for the kitchen HK$3,800 10. Install a new carpet to the living room HK$33,800 Repair Item 11. One speaker and an audio visual amplifier (“AV equipment”) HK$12,000 Total: HK$183,550 The plaintiff’s evidence The plaintiff gave evidence at the assessment hearing. He relied on his witness statement dated 26 March 2018 as his evidence-in-chief. The gist of his evidence is that on or about 26 December 2016, water was found seeping at the walls of the living room in Flat 205. On 27 December 2016, the problem extended to the kitchen. Photographs taken on that day showed that puddle of water was found on the kitchen floor, and water mark/stains was found at the kitchen table and kitchen cabinet located at the living room. The carpet in the living room was also found soaking with water. The plaintiff therefore reported the problem to the management office and the Food and Environmental Hygiene Department (“FEHD”). On 28 December 2016, the problem continued to escalate. Damage was done to the television cabinet, red wine cabinet, stereo cabinet and the acoustic equipment, which were all placed in the living room. Water mark/stains was also found on the television cabinet, red wine cabinet and the stereo cabinet. The affected area then extended to the bedroom. Puddle of water was found on the floor and the carpet. The staff of the management office conducted inspection and suspected that the water seepage was caused by the leakage or defect of the fresh water pipe at Flat 505. On 29 December 2016, the head and the staff of the management office informed the plaintiff that the owner of Flat 505 had temporarily switched off the fresh water supplies upon their request. The plaintiff noticed that the extent of the water seepage at his premises started to reduce and eventually ceased on the next day. However, on 31 December 2016, the plaintiff discovered that the water seepage occurred again and the condition had reverted to the condition as found 3 days ago. The staff of the management office informed the plaintiff that despite repeated demands and requests made by the management office, the defendants declined to keep the fresh water supplies shut until completion of the repairing work. On 4 January 2017, FEHD’s representative conducted test and investigation at both Flat 205 and Flat 505. By way of a letter dated 5 January 2017, FEHD concluded that the water seepage was caused by or attributed to the defect or burst of the fresh water pipe at Flat 505. On 8 January 2017, the plaintiff requested the defendants to engage contractor to repair and fix the defective fresh water pipe, and to keep the fresh water supplies switched off until completion of the repairing work. On 9 January 2017, the staff of the management office informed the plaintiff that the defendants had repaired the defective fresh water pipe and the water seepage had ceased since that day. In the Report, the Expert gives an opinion that the reasonable costs of remedial works carried out by the plaintiff would be at HK$150,250. He did not express any opinion regarding the repairing costs of the AV equipment. Decision I am of the view that the plaintiff is an honest and reliable witness. His evidence is also supported by relevant documents produced by him. I accept his evidence in its entirety. I am satisfied that items 1 to 11 in paragraph 8 above are pecuniary loss as a result of the water seepage problem caused by the defendants. I accept the expert evidence given in the Report and therefore award the sum of HK$150,250 as damages under items 1 to 10. I also accept the plaintiff’s evidence that the repairing costs incurred under item 11 was in the sum of HK$3,000. Conclusion For the above reasons, I assess the damages in the sum of HK$153,250 and award this sum to the plaintiff. As to interest, the plaintiff is entitled to interest on the award at 1% above the best lending rate of HSBC from date of writ to date of judgment, and thereafter at judgment rate until payment in full. I make a costs order that the plaintiff do have costs of the assessment, with a certificate for counsel. The costs of the action and the costs of the assessment payable by the defendants to the plaintiff is summarily assessed at HK$119,446 [HK$75,000 (sections B-E) + HK$18,000 (section F1) + HK$26,446 (section F2)]. ( Eleanor Yeung ) Master, District Court Mr Wilfred Tsui, instructed by Li, Wong, Lam & W. I. Cheung, for the plaintiff The defendants were not represented and did not appear