NG YIN NEI v. LEE CHICK CHOI

DCCJ 563/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 563 OF 2010

____________

--------------------

JUDGMENT

--------------------

1.  This is the trial of the defendant’s counterclaim, under which the defendant claims against the plaintiff for the following losses and damages:-

(i)	Loss of use of rental areas from 24.7.09 to 31.5.10	$16,676.74
(ii)	Extra rental to be paid by the plaintiff of $9,000 per month for the period of 1.6.10 to 24.6.11 (11 months and 24 days) for leasing an alternative accommodation	$115,200.00
(iii)	Removal costs	$6,300.00
(iv)	Estate agent’s fee	$13,500.00
(v)	Stamp duty	$812.50
(vi)	Bank charges for stopping 6 post-dated cheques (25.12.10 to 25.5.11)	$100.00
(vii)	Replacement glass over top	$1,580.00
	Total	$154,069.24

The defendant no longer pursues its claim under item (vi).  Apart from the above claims, the defendant also claims for damages for inconvenience and loss of enjoyment of the premises at Flat F, 7^th Floor, Banyan Mansion, Taikoo Shing, Hong Kong (“the Premises”).

2.  At the material times, the plaintiff was the landlord of the Premises, whereas the defendant was the tenant of the Premises.  By a tenancy agreement dated 10.6.2009 (“the Tenancy Agreement”) made between the plaintiff as the landlord of and the defendant as the tenant, the Premises were let to the defendant for 2 years, commencing from 25.6.2009 to 24.6.2011 at a monthly rent of $18,000.  There was a rent free period from 15.6.2009 to 24.6.2009.  During the rent free period, the defendant and his family moved into the Premises.  At the time of moving in, he did not notice any undulation or unlevel flooring in the Premises.  However, about 2 weeks after he had moved into the Premises, he found that the floor near the patio door had grown up and became unleveled gradually.  He rang up Mr Wan, the plaintiff’s husband, and reported to him such finding. 

The first inspection

3.  On 25.7.2009, Mr Wan inspected the Premises with a renovation contractor Mr So.  According to Mr Wan, the undulation was found near the patio door, but it was de minimis.  But according to the defendant, the area which he complained about was not the area near the patio door.  It was the area shown as photo g on p 481 of Box 2 of the trial bundle.

4.  After this inspection on 25.7.2009, there was no response from Mr Wan.  So on 30.7.2009 the defendant wrote the following letter to the plaintiff:-

“As liaised to Mr. Wan & his workman in the morning of 25 Jul 2009 that work is required to return the parquet flooring in the sitting room to a level state. At the present situation with severe undulations near the wall/slide door & main door areas, the ‘hilly’ floor has created a hazardous environment prone to accidents. Further, the main bed room has suffered same phenomenon.

So far nothing is done. Non-action will not be fair to my family. You are urged to look into the matter seriously. In the event your side is not able to carry out the repairs, I am more than willing to provide a third party supplier who can complete the repairs at your expenses …..

Do let me know your decision on or before 7 Aug 2009 as my family will have to take extreme care while walking in the sitting room.”

The second inspection on 2.8.2009

5.  On 2.8.2009, the plaintiff inspected the Premises along with her husband and a Mr Frankie Yeung and a Ms Eva Kong of the property agency which prepared the Tenancy Agreement.  According to the plaintiff, the undulation found on that day was de minimis, and the undulation did not require any remedial work.

6.  The video taken by the plaintiff secretly on that day shows what was said by Mr Frankie Yeung:

“睇吓租客、業主有冇辦法解決個問題”

(See if the tenant, landlady have any way to solve the problem)

“我睇而家個情況唔算係太嚴重”

(I see that the present situation is not too serious)

When Mr Frankie Yeung was speaking, he was referring to the problem with the flooring.  The floor had undulation.  When he said that the situation was not too serious, it must be a serious situation, although it did not reach the extent of being “too serious”.  It is a problem to be solved.  The undulation therefore cannot be said to be de minimis.

7.  Miss Irene Lau, the estate agent who showed the defendant the Premises, wrote a note (dated 8.3.2011) to the effect that there was no undulation near the patio at the viewing of the Premises on 27.5.2009.  The plaintiff agreed that there was no undulation near the patio door at the viewing as stated in Miss Lau’s note.  She has no interest in the outcome of these proceedings.  I attach weight to this note.  The evidence of the plaintiff and Mr Wan that the undulation near the patio door was already present when the Premises was put up for rental is simply not credible.

8.  In his letter dated 10.11.2009 to the plaintiff, the defendant stated:-

“The reason to request Kays International to focus on the section of the living room near the patio is for cost reasons and, in fact, the area is the most severely affected section as the variation in height is approximately 2 inches which had caused some near accidents.”

(Underlines added)

9.  On 5.12.2009, the defendant wrote to the plaintiff again:-

“Re: Undulating Flooring Quotation in Master Bedroom & jammed doors

With reference to my SMS to Mr. Wan on 2 Dec 2009 relating to the severe rising on the parquet flooring in the master bedroom, please expedite to return it to normal conditions as we are taking great risk to walk on top of it and as a result the bedroom door cannot be open or closed.

Further, the door of the wash room in master bedroom cannot be locked as it catches the wooden frame. I try to fix it using the tools I have but to no avails.

All these incidences coupled with the undulations in the sitting room as communicated to you earlier make life distressful.

(Underlines added)

Trust you would deal with the matters without delays.”

10.  On 11.12.2009, the defendant wrote to the plaintiff yet again:-

“Dear Ms. NG,

I refer to my letter addressed to you dated 5 Dec 2009 to which I do not appear to have received your response.

The concaved section of the floor in the master bed room has deteriorated to the extent that the door of the store room cannot be open now. As the matter is getting worse being hazardous and will cause any accident unexpectedly, I decide to appoint a contractor to carry out the remedy by deducting from the fore-coming rental payment if I do not hear from you after 7 days from this letter.

As last but not least, I hereby reserve my right to claim any damages from you if any accidents to be happened due to the defects already informed to you in many occasions since our taken up of the tenancy.”

(Underlines added)

Despite all these letters, the plaintiff did not do any work to solve the problem.

The third inspection

11.  On 13.12.2009, the plaintiff, Mr Wan and the renovation contractor attended the Premises for inspection.  They noticed the undulations on the wooden floor between the door of the master bedroom and its bathroom.  The plaintiff agreed to engage a renovation contractor to carry out the repairs to the floor and bathroom door on 21.12.2009.

12.  By her letter dated 13.12.2009, the plaintiff stated, “We noted that the wooden floor between the door of master bedroom and its bathroom was raised…… Given that the wooden floor was only newly installed earlier this year before the flat was put up for rental, the sudden raising of the floor would be unlikely unless there was flooding of large volume of water.”  As indicated in this letter, she agreed to repair the wooden floor. If the defects had been de minimis, she would not have agreed to do so.

13.  In the re-amended defence to the counterclaim re-re filed on 16.12.2011, the plaintiff denies that there were any defects in the Premises save for the de minimus undulation near the patio door of the Premises:-

“8. Moreover, it is denied that in between 25 June 2009 and 24 December 2009 there were any defects to the Premises save for the de minimus undulation near the patio door of the Premises. If, which it is denied, such defects did exist between 25 June 2009 and 24 December 2009, it is averred that such defects were:-

(a) de minimis; and

(b) would not have put a reasonable landlord on inquiry and/or notice to a structural defect in the Premises.”

(Underlines added)

The plaintiff’s letter dated 13.12.2009 shows that the defects in the Premises were between the door of the master bedroom and its bathroom.  These defects cannot be de minimus.  This defence to the counterclaim simply cannot stand.

14.  The evidence of the defendant is that there were severe undulations on the floor, which would cause accidents. His wife nearly slipped down and twisted her leg.  He wrote a letter dated 22.12.2009 to the contractor Kays International Property Consultants Co Ltd (“Kays”) to carry out repair work to be done to the floor.  The letter reads:-

‘I refer to your quotation dated 20^th December, 2009.

Enclosed please find my cheque numbered 299772 from DBS to “Kays International Property Consultants Co. Limited” for your immediate work to be carried out without a minute of delay. My wife was just about to slip down and twist her leg yesterday.

Your prompt attention is highly appreciated.’

The reason for him to tell Kays about the incident of his wife must be to support his request for immediate work to be carried out without delay.  This letter was addressed to Kays, and on 22.12.2009, the plaintiff had not instituted the present proceedings.  There is simply no reason for the defendant to make any lie in the letter.  This incident must have happened, and it must have happened because of the severe undulations on the floor.

15.  On 23.12.2009, Kays conducted a site inspection of the Premises.  The report of the inspection states:-

“5.6 ….. it was noticed that the conditions of the flooring were very unusual as there was a strip of uprising flooring stretching from the area near the terrace (patio) area to the end of corridor ….. and also from the entrance of the master bedroom to its bathroom respectively …..

……….

7.1 The water dirty marks and the various dampness along the borders of the bathrooms, the skirting of the master bedroom and its corridor, together with the dampness inside the storeroom are obviously caused by the immediate water seepage from the master bathroom …..

7.2 Moreover, the continuous and persistent water penetration inside the floor slab would lead to the contracting and swelling of the base plywood which in the long run may lead to the undulating pattern of the flooring and its structure.

7.3 As all the water seepage areas have been scanned by infra-red instrument, the records showed clearly that dampness are still existed in the areas as mentioned at above. Despite the test was taken in internal areas and in dry day, the persistence of dampness over a long period implied that water seeping is still continued. From the visual inspection of the damaged areas and water marks, though dried up, it is obvious that the affected premises have been suffered from moisture over a long period.

7.4     From the safety and health viewpoints, the continuous persistence of the difference in height levels up to 60 mm and 50 mm as shown in Attachment 1 Photo c and d will certainly create the potential hazards of walking safety and inconvenience within the reasonable use of internal circulation areas inside a habitable flat …..”

(underlines provided)

16.  The inspection was conducted on 23.12.2009, just about 10 days after the third inspection on 13.12.2009.  The inspection report is not challenged by the plaintiff.  Its contents must have reflected the conditions of the Premises at that time.  The conditions of the Premises on 23.12.2009 must be very similar to the conditions of the Premises on 13.12.2009, because there is only a lapse of 10 days’ time.  The plaintiff’s re-amended defence to the counter-claim that there were no defects in the Premises save for the de minimis undulations near the patio door of the Premises, and that the defects would not have put a reasonable landlord on notice to a structural defect simply cannot stand.

Source of leakage

17.  The plaintiff, Mr Wan and Mr So were adamant that there was a plan to find the source of leakage.

18.  On 16.12.2009, the defendant wrote to the plaintiff, saying that all work suggested to be done on 21.12.2009 to be ceased pending the survey report from Kays, covering the affected areas in the master bedroom and sitting room near the patio.  The suggestion of work to be carried out by the plaintiff’s contractor on 21.12.2009, without finding out the reasons for the defect, could not solve the problems in the long run.  The defendant’s suggestion contained in his letter dated 16.12.2009 is reasonable, and should have been accepted by the plaintiff.  His refusal to let the plaintiff’s contractor on 21.12.2009 into the Premises is reasonable.

19.  In response to this letter, the plaintiff wrote to the defendant on 18.12.2009, stating:

“….. we are still willing to conduct the repairs. We do not understand the need for a surveyor’s service since we have already agreed to the remedial action for the floor in the master bedroom. The repair work on 21 December as agreed will have to proceed ….. The renovator will arrive at the flat for repair at 10:00 a.m. on 21 December as scheduled.

(Underlines added)

She never informed the defendant at all that she had intended to check for water leakage on 21.12.2009.  If there had been an agreement to check the source of leakage of water, then the plaintiff should have explained in this letter that one of the purposes of the work done on 21.12.2009 was to find out the source of leakage of water.  Her letter only referred to the repair work to be done on 21.12.2009.  It is very clear that there was no agreement to check the source of leakage.  Her evidence in this respect is simply untruthful. 

20.  The plaintiff suggests that the defendant continued to deny her entry to fix the Premises.  The letters from M/S Chiu, Szeto & Cheng, Solicitors (“CSC”), which represented the plaintiff, did not specify a date as to when she wanted to enter the Premises for such a purpose.  The letter (dated 25.1.2010) of CSC states:-

“….. our client agrees to take reasonable steps to carry out the above repair work and water seepage, if any, within a reasonable time …..”

21.  In his letter dated 19.2.2010 the defendant posed the following 6 questions for CSC to answer:

“1. Is your client going to change the bath tub for us as well as to repair all defects in the Premises not only in the Master bedroom but all defects on floor happened to the entire Premises?

2. How long will be the contractor’s work to be carried out?

3. Are we going to stay in a hotel for the contractor’s work to be carried out?

4. Is your client going to bear all costs of the hotel’s charges for the contractor’s work to be done?

5. How could we be compensated for our inconveniences suffered due to the past defects happened during the tenancy and during the period for the contractor’s work to be done?

6. How should our properties be insured from damages due to the contractor’s work to be done in the Premises?”

22.  The letter of CSC dated 24.2.2010 reads:-

“….. only upon an on-site inspection by our client and client’s contractor, can our client and the contractor decide whether to change the bath tub or not. By no means will our client and her contractor be able to come up with any solution as you require, without observation.

….. Our client will take reasonable steps to conduct necessary contract work.”

(Underlines added)

This letter was written in response to the defendant’s letter dated 19.2.2010.  In its reply CSC did not answer any of the above questions.  If the plaintiff had had a genuine desire to rectify the problem, she would have answered the questions. 

23.  The above correspondences clearly show that the plaintiff had no genuine attempt to enter the Premises to do the repair works required.  The allegation that the defendant continued to deny her entry to fix the Premises is totally unfounded.

24.  The plaintiff’s counsel submits that this court should divide and consider the relevant period of alleged defects into 3 periods, namely:-

(a)  The first period: from the time of the defendant’s first written complaint on 30.7.2009 until 2.8.2009.  During this period, the Premises was not actually in disrepair.

(b)  The second period from 3.8.2009 until 5.12.2009.  During this period, there lacked the sufficient notice for want of repair.

(c)  The third period – from 5.12.2009 until 19.6.2010 when vacant possession was returned to the plaintiff.  It is the plaintiff’s case that she had all along acted reasonably and that on 21.12.2009 the defendant had wrongfully and unreasonably refused entry to Mr So and Mr Cheung.  As a result, the defendant frustrated the plaintiff’s ability to perform the repair covenant and the defendant is thus estopped from claiming under the repair covenant then and thereafter.

For the reasons hereinafter mentioned, I do not accept this submission.

The plaintiff’s breach of the Tenancy Agreement

25.  Clause 9 of the Tenancy Agreement provides:-

“The Landlord shall keep and maintain the structural parts of the Premises including the main drains, pipes and cables as well as furniture and electric appliances supplied in proper state of repair provided that the Landlord’s liability shall not be incurred unless and until written notice of any defect or want of repair has been given by the Tenant to the Landlord and the Landlord shall have failed to take reasonable steps to repair and remedy the same after the lapse of a reasonable time from the date of service of such notice.”

       (Underlines added)

26.  The plaintiff submits that a separate notice should be issued for the “second period”.  The only issue at the Premises throughout the material time was the undulations on the floor.  By the time the notice dated 30.7.209 was issued, the Premises had been in disrepair.  During the second inspection on 2.8.2009, the evidence of Mr Frankie Yeung, which I accept to be true, reveals that there were undulations on the floor which could not be de minimis.  When the defendant wrote the complaint letter on 30.7.2009, just about 3 days prior to 2.8.2009, the conditions of the floor must be quite similar to its conditions on 2.8.2009.  The conditions of the floor on 2.8.2009 was in a serious situation.  Under clause 9 of the Tenancy Agreement, one notice was required to be issued.  The defendant did comply with this requirement by writing the notice of complaint on 30.7.2009 about the conditions of the floor on that day which must be quite similar to the conditions of the floor on 2.8.2009.  Even until 2.12.2009, 4 months after the notice of complaint had been issued to her, the plaintiff did not rectify the defects in the Premises, and was therefore clearly in breach of clause 9 of the Tenancy Agreement.

27.  The water leakage and undulations in the floors caused doors of the Premises uncloseable, caused many patches of damp, unsightly stairs on the floor, caused a lot of areas of the Premises to be unusable.  Because of the undulations, it was not safe to walk on them.

28.  The defendant and his family members, during the period of tenancy, suffered nuisance, annoyance and inconvenience:

(a)  There were many dirty marks and dampness found along the borders of the bathrooms, store room, the skirting of the master bedroom and the corridor.

(b)  Between the floor boards, there was a difference of up to 60 mm which caused a safety hazard, and whist walking the defendant and his family had to exercise exceptional care.

(c)  Some floor cabinets could not be opened because of the undulations of the floor.

(d)  Some of room doors could not be closed because of the undulations of the floor.  The defendant and his family members were deprived of privacy within their own rooms.

(e)  The undulations of the floor cause some of the floor areas unusable.

(f)   Because of the undulations, the defendant and his family could not invite and entertain friends at the Premises for fear that the visitors would suffer injuries.

(g)  On 28.5.2010 the uneven floor caused the defendant’s wife to slip and fall.  Her head sustained an injury. She was admitted to the hospital and was given sick leave for 1 day.

I find that the defendant and his family members did suffer the above-said nuisance, annoyance and inconvenience.

Alternative accommodation

29.  The defendant claimed that he found alternative accommodation because of the plaintiff’s failure to repair the Premises.  The defence counsel submits that “many of the areas of the Premises were unusable and the Premises had become unsafe and inhabitable causing the defendant and his family to vacate the Premises and find new accommodation on 1 June 2010 and therefore suffered loss and damages.”  By his letter dated 20.12.2009, the defendant intimidated to the plaintiff that he decided to find alternative accommodation.  Had he moved out because of the conditions of the Premises, he should have done so shortly after 20.12.2009, and not five months later.  I find that he did not move out because of the conditions of the Premises.  The judgment delivered by Deputy District Judge Kwan on 25.6.2010 shows the reason for his moving out:-

“In fact, the defendant accepted that he decided to move when he learned that the plaintiff had commenced the present proceedings against him for, amongst other things, vacant possession of the Premises.”

(Underlines added)

So this is the reason for his moving out of the Premises.  Therefore the plaintiff should not be responsible for the extra rental, removal costs, estate agent’s fee and stamp duty relating to the claim for alternative accommodation.  She recovered vacant possession of the Premises on 31.5.2010.  Even if she is liable for the extra rental, she should only be liable for the period from 1.6.2010 to 15.6.2010.  Summary judgment was entered on 15.6.2010 in favour of the plaintiff for vacant possession of the Premises on the ground of non-payment of rents.  So from 15.6.2010 onwards, the defendant was not entitled to reside at the Premises, because the Tenancy Agreement was terminated on 15.6.2010 due to his non-payment of rents. Hence from 15.6.2010 onwards he had no right to remain in the Premises under any tenancy agreement.  Therefore he has no right to claim the payment of extra rental from 16.6.2010 to 24.6.2011. 

Replacement of gas oven top

30.  According to the defendant, on 9.5.2010 when he got up, there were many debris glasses scattered on the kitchen floor.  The glass panel of the gas stove was shattered.  He assumed that it had been broken while he and his family members were at sleep.  A technician came to the Premises on 11.5.2010 to install a new glass panel on the gas stove.  His wife was told by another gas technician who came to the Premises on 10.5.2010 that the gas stove was very old, which had been used since 2001.  The broken glass panel was due to old age of the gas stove.  An amount of $1,580 was debited in the gas bill registered under his wife’s name. It is his wife, and not the defendant, who had the locus standi to sue for this sum of $1,580.  Even if he had the locus standi to sue, he had to prove that it was not due to his fault that the gas oven top had been broken.  It is mere common sense that even if the gas oven top broke up because of old age, the glasses would not have scattered on the kitchen floor.  They would have remained on the oven.  The scattering of the glasses on the kitchen floor must have necessarily involved some force inserted on the broken glasses, as a result of which they scattered to some distances away from the oven.  The presence of force means that human intervention must have been involved.  Hence, the scattering of the glasses simply cannot be due to the old age of the gas oven top.  The gas oven top must have been broken because of another reason not known to this court.  The defendant was responsible to see that during the term of tenancy it would not be damaged.  The plaintiff cannot be responsible for the damage of the gas oven top while it was in the defendant’s possession, and the damage involved human intervention.  I therefore dismiss this item of claim.  

Damages for distress, inconvenience and loss of enjoyment of the Premises

31.  The plaintiff’s failure to rectify the water leakage and defects of the floors of the Premises caused nuisance, obstruction and annoyance to the defendant.  The defence counsel cited the case of Leung Yung Chun v Chan Wing Sang, unreported, HCA No 12235 of 1998, where the court awarded $80,000 in 2000 for damages for inconvenience caused by water leakage which lasted for nearly 2 years.  She also cited the case of Chung Che Shum v Dong Sai Ming Fernando, unreported DCCJ 21504/2001, where the court awarded $80,000 for water leakage affecting 3 bedrooms for about 2 years.

32.  The defence counsel submits that an award of $100,000 for damages for inconvenience and loss of enjoyment of the Premises would be appropriate.  When the defendant delivered back vacant possession of the Premises to the plaintiff on 31.5.2010, he then lost his capacity as a tenant of the Premises.  So the period of tenancy lasted for about 11 months.  Furthermore, the conditions deteriorated gradually.  It is not the situation that the defendant suffered the same bad conditions throughout the period of tenancy.  In the circumstances, a sum of $40,000 would be a reasonable compensation to him.  I therefore so order.  In making this award, I have not taken into account the loss of use of rental areas hereinafter mentioned.  The area covered by the award relating to loss of use of rental area is not included in the area covered by the area under the heading of damages for distress, inconvenience and loss of enjoyment of Premises.  This is to avoid duplication in the making of awards.

33.  I award the loss of use of rental areas from 24.7.2009 to 31.5.2010, as assessed in Kays report, in the sum of $16,676.74.

34.  Accordingly I enter judgment in favour of the defendant in the sum of $56,676.74 ($40,000 + $16,676.74), with interest thereon, at judgment rate, commencing from 10.10.2012 until satisfaction.  Stay of execution for 14 days.   I dismiss all the other items of claims.

Costs

35.  I make an order nisi, to be made absolute in 14 days’ time, that the plaintiff do pay the defendant 80% costs of the counterclaim, to be taxed, if not agreed, with certificate for counsel. The defendant’s own costs be taxed in accordance with Legal Aid Regulations.