YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER

YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER

Defendants were owners of the Podium and liable in negligence and nuisance because the Podium lacked proper waterproofing causing serious leakage; exemption clauses in the tenancy agreement were inapplicable because the claim was in tort against the owners; plaintiff proved repair costs and loss of profit from April 2006 to Jan 2007; mitigation did not require plaintiff to commit trespass or expend disproportionate legal costs; set-off against rent arrears produced a judgment for defendants' counterclaim of HKD 101,000, and costs were awarded to plaintiff.

Citation
YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER
Parties
Plaintiff: Plaintiff; Defendants: K Pak Ling and other owners of No. 122 Fuk Wa Street
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
23 September 2008
Case Number
DCCJ90/2007
Procedural Posture
Civil Negligence and Nuisance; Landlord and Tenant Rent Dispute / Judgment After Trial
Outcome
Plaintiff's claim dismissed; judgment entered for Defendants on counterclaim in favour of Defendants in the sum of HKD 101000; costs awarded to Plaintiff
Legal Topics
Water Leakage, Repair Obligations, Exemption Clauses, Mitigation of Loss, Damages Assessment, Set Off, Injunctions, Calderbank Offer
Source Language
EN
Tort Negligence Nuisance Landlord and Tenant Contract Exemption Clauses Remedies Costs Water Leakage +7 more

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Parties

Plaintiff

Plaintiff

K Pak Ling and other owners of No. 122 Fuk Wa Street

Defendants

Procedural Posture

Civil Negligence and Nuisance; Landlord and Tenant Rent Dispute / Judgment After Trial

Legal Issues

  1. 1 Whether defendants liable in negligence and nuisance for water leakage from Podium
  2. 2 Whether exemption clauses in tenancy agreement applied
  3. 3 Quantum of damages for repair and loss of profit

Ratio Decidendi

Defendants were owners of the Podium and liable in negligence and nuisance because the Podium lacked proper waterproofing causing serious leakage; exemption clauses in the tenancy agreement were inapplicable because the claim was in tort against the owners; plaintiff proved repair costs and loss of profit from April 2006 to Jan 2007; mitigation did not require plaintiff to commit trespass or expend disproportionate legal costs; set-off against rent arrears produced a judgment for defendants' counterclaim of HKD 101,000, and costs were awarded to plaintiff.

Court Disposition

Plaintiff's claim dismissed; judgment entered for Defendants on counterclaim in favour of Defendants in the sum of HKD 101000; costs awarded to Plaintiff

Orders

  • Dismissal of Plaintiff's claim
  • Judgment for Defendants' counterclaim in the sum of HKD 101000