WING HON PRECISION INDUSTRY LTD v. MAK CHI KIN

DCCJ 3896/2008

IN  THE DISTRICT  COURT  OF  THE

HONG  KONG  SPECIAL  ADMINISTRATIVE  REGION

CIVIL  ACTION  NO. 3896 OF 2008

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JUDGMENT

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Case Summary

1.  This is an assessment of damages payable by the Defendant to the Plaintiff.

2. At the material times, the Plaintiff was the tenant and occupier of Workshop Units A and B, 10th Floor, Block 1, Wah Fung Industrial Centre at Kwai Chung (the “Plaintiff’s Premises”) and the Defendant was the registered owner of Workshop Unit A on the 11th Floor of the same building (the “Defendant’s Premises”). The Defendant’s Premises is right above the Plaintiff’s Premises.

3.  This is a claim arising out of an incident occurred on about 1 September 2006 when water was found overflowed from the Defendant’s Premises into the Plaintiff’s Premises causing damages to the fixtures, furniture, air-conditioners, office equipment and stationary of the Plaintiff (the “Incident”).

4. The Plaintiff claims $138,371.20 (being replacement costs for office contents and loss adjusters’ fee) together with interest and costs in the Statement of Claim.

5.  The Defendant failed to give notice of intention to defend. Interlocutory Judgment was entered against the Defendant for the Plaintiff’s claim on 26 May 2009 with damages to be assessed (the “Interlocutory Judgment”).

6. The Plaintiff issued Notice of Appointment for Assessment of Damages (the “Assessment Notice”) on 17 September 2009.

7. Order for substituted service of the Assessment Notice was granted on 1 December 2009 (the “1st Service Order”).

8.   The Plaintiff served the Assessment Notice to the Defendant in accordance with the 1st Service Order. Affirmation of service was filed on 4 January 2010.

9.  The Defendant did not attend the call-over hearing for the Assessment Notice on 7 January 2010. Directions were given at the said hearing for the Plaintiff to file its witness statement and for fixing the assessment of damages hearing for 17 March 2010. At that hearing, the Court also granted leave for the Plaintiff to adduce the expert report of the Plaintiff’s loss adjusters (the “Expert Report”), Miller International Loss Adjusters (H.K.) Limited, without oral evidence (the “Directions Order”).

10. Order for substituted service of the Directions Order was granted on 2 February 2010 (the “2nd Service Order”).

11.  The Plaintiff served the Directions Order to the Defendant in accordance with the 2nd Service Order. Affirmation of service was filed on 9 March 2010.

12. The Plaintiff filed the witness statement of Sha Kwong Choi (“Mr. Sha”) on 4 February 2010 with the Expert Report annexed to it.

13. The Defendant did not file any document nor take any step in these proceedings. The Defendant also did not attend the assessment of damages hearing on 17 March 2010.

14. I am satisfied that notice for the hearing scheduled for 17 March 2010 contained in the Directions Order has been duly served to the Defendant in accordance with the 2nd Service Order. I decide to proceed with the assessment of damages in this Action in the absence of the Defendant.

Evidence of the Plaintiff

15.  The Plaintiff called Mr. Sha to testify at the assessment of damages hearing.

16.  Mr. Sha confirmed the content of his aforesaid witness statement.

17. Mr. Sha is and was at the material times the Plaintiff’s Accounting Manager. He was the first one arrived at the Plaintiff’s Premises on 1 September 2006 when he found the Plaintiff’s Premises damaged by water flowed from the Defendant’s Premises.

18. Mr. Sha in his witness statement stated that the following properties of the Plaintiff were damaged in the Incident:

(a) office fixture and fittings such as false ceiling, wall papers, window blinds, carpet, lighting, wiring, sockets, etc.;

(b) office furniture such as desks, chairs, cabinets, benches, shelves, etc.;

(c) air-conditioners in the Plaintiff’s Premises;

(d) computers and other miscellaneous stationary.

19. Mr. Sha said that the Plaintiff had repaired all the damaged fixtures and replaced all the damaged items. Mr. Sha said that the costs incurred exceeded $150,000.00.

20.  The Expert Report was prepared by a Mr. Alex Tang (“Mr. Tang”) of Miller International Loss Adjusters (H. K.) Limited.

21. According to the Expert Report, the Plaintiff claimed the repair and replacement costs in the total sum of $261,884.00. Mr. Tang assessed the reasonable repair and replacement costs at $126,071.20. The Plaintiff claims this amount in this Action.

22. The Plaintiff has also produced invoice for fee and expenses of the loss adjusters in the sum of $12,300.00

Findings

23. I accept Mr. Sha’s evidence and the Expert Report and find that the Plaintiff’s properties in the Plaintiff’s Premises had been damaged by water flowed from the Defendant’s Premises in the Incident.

24.I find that repair and replacement costs for the Plaintiff’s damaged properties was $126,071.20.

25. I also allow the Plaintiff’s claim for the fee and expenses of Miller International Loss Adjusters (H. K.) Limited.

26.  I assess that the damages payable by the Defendant to the Plaintiff in this Action is $138,371.20 which includes the repair and replacement costs of the damaged properties as well as fee and expenses of the loss adjusters.

27.  I make an order nisi for the Defendant to pay to the Plaintiff interest on the said sum of $138,371.20 at half judgment rate from 4 September 2008 (i.e. date of the Writ) to date of the Interlocutory Judgment and thereafter at judgment rate until payment in full.

28.  I also make a costs order nisi against the Defendant in favour of the Plaintiff for the assessment of damages proceedings to be taxed if not agreed.

29. The above costs order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary it within this 14 days period.