CHA VIRGINIA MAY CHING also known as VIRGINA FOO v. FAIRLITE PAINT (H.K.) CO. LTD

DCCJ 2652/2017

[2019] HKDC 1231

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2652 OF 2017

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J U D G M E N T

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Introduction

1.  Madam Cha brought this action against the defendant in respect of its waterproof works undertaken on a property owned by her principal in 2009 in the wake of a water seepage problem pursuant to a service agreement. The water seepage problem recurred in 2012.  In her present claim for damages, Madam Cha alleges that the defendant breached the implied terms of the service agreement and she also seeks to enforce the 10-year warranty contained therein.

2.  The defendant was legally represented until 16 August 2019.  Its former solicitors, in their application for cessation to act, made it clear that the defendant was well aware of the trial date and in fact the defendant had previously applied to this court for an adjournment of the trial alleging that its expert would not be available for the trial.  The application was rejected by this court. Against this background, this court is satisfied that the defendant was duly informed of the trial date and it merely decided not to take part in the trial. Therefore, this court is minded to proceed with the trial in its absence.

3.  Mr Chow, counsel for the plaintiff, in his closing submissions confirms with this court that Madam Cha now no longer pursues her claim for breach of the implied terms and also abandons her claim for damages for nuisance, inconvenience, discomfort and disturbances, etc.  He also revises the figures pleaded under different heads of damages.

Madam Cha’s case

4.  For present purposes, I should first outline the relevant allegations in the Statement of Claim.  Madam Cha was and is at all material times the agent of the registered owner of the property situated at 9^th Floor and roof thereof, No 40A Kennedy Road, Hong Kong (“the Property”).

5.  The registered owner of the Property is known as Barro International Limited.  The defendant is a Hong Kong company carrying on the business of providing waterproofing services.  There is a written quotation dated 14 September 2007 (“the Quotation”) issued by the defendant to a company known as Hong Kong Resort Company Limited, another agent of Barro International Limited, in respect of the Property.

6.  Subsequently, on 26 September 2007, Madam Cha agreed to engage the defendant to carry out the waterproof work on the Property on the terms of the Quotation.  In the Quotation, there is an express warranty in the following terms: “10 years’ warranty for the waterproofing system should be provided.”  The waterproof works was commenced in or about November 2007 and was completed in or about late January 2009. Madam Cha duly paid the amount of HK$623,540 to the defendant by way of four instalments for the services rendered in accordance with the Quotation. However, it was found out that in or about September 2012 the water seepage problem recurred and caused extensive damage to the Property.  The defendant had refused or failed to carry out any remedial work despite repeated requests.

7.  Madam Cha could only engage other contractors to remedy the situation, including Building Diagnostic Consultants Limited, CME Solutions Limited, Castco Testing Centre Limited and US & Associates Consulting Company Limited.  The findings of these contractors show that there was water seepage on the walls and ceilings of the living room, one of the bedrooms, the maid’s room and the balcony of the Property and the presence of defective tiles on the roof, cracks on the curb of the roof, balcony and cracks on the internal walls and skirting.  The defendant did carry out certain rectification works as demanded by Madam Cha in October 2015 and July 2016 but they did not resolve the water seepage problem at all.  Madam Cha could only engage a new independent contractor to carry out the remedial works and incurred extra expenses.  Her loss and damage are particularised as follows: tests conducted and reports prepared by consultants throughout: HK$80,500; remedial work: HK$313,462; interior work: HK$38,000, and the grand total is HK$431,962.  Madam Cha avers that she is entitled to enforce the warranty and hence claims against the defendant the said sum of HK$431,962.

Analysis

8.  Though in the defence the defendant does not admit that Madam Cha was the agent of Barro International Limited, it did not make it an issue in the agreed statement of issues in dispute filed by both parties.  Further, throughout the defendant has not denied its contractual relationship with Madam Cha.  The fact that Madam Cha made payment pursuant to the Quotation is not in issue as well. On this basis, this court accepts that Madam Cha is the contracting party in respect of the Quotation and is entitled to enforce the warranty against the defendant.

9.  Madam Cha and her witness Mr Cheung testified and they adopted the contents of their witness statements as their evidence. Their evidence was not challenged.  Madam Cha confirms with this court that she had made payment to various contractors subsequently engaged by her to carry out the rectification works.  She also explains the relationship between Barro International Limited and her.  Mr Cheung was the general manager of projects of HKR International Limited and his evidence was confined to a very narrow compass, and I have no reason not to accept his evidence in its entirety. 

10.  Madam Cha also calls Dr Wong as her expert witness.  The parties lodged a joint expert report dated 11 July 2018.  The joint expert report was compiled by Dr Wong and the expert of the defence, namely Mr Vincent Chung.  Dr Wong adopts the contents of the joint report in respect of his observations and opinion therein as his evidence.

11.  I have duly considered all the evidence adduced by Madam Cha, including the expert evidence of Dr Wong.  The fact that the water seepage problem reoccurred in 2012 has never been an issue and was in fact admitted by the defence.  There is no reason why Madam Cha is not entitled to enforce the warranty.  The failure of the defendant prompted her to engage other contractors to remedy the defects and to solve the water seepage problem thereby incurring extra expenses, and Madam Cha should be entitled to recover such expenses from the defendant.  I accept Dr Wong’s evidence in respect of the costs of repairing the defects.  I also opine that Madam Cha has done all the necessary things to mitigate the loss and the present sum demanded is a reasonable one, having accepted that she actually made those payments to those contractors.

12.  Madam Cha’s claim is well borne out by evidence.  Her claim must succeed.  I therefore enter judgment against the defendant for the amount of HK$431,962 together with interest thereon at judgment rate from the date of writ, that is 12 June 2017 until payment.  There is no reason why costs should not follow the event.  Madam Cha should have the costs of this action, including certificate for counsel.  Lastly, this court thanks Mr Chow for his excellent submissions.