How Glory Properties Ltd. and Another v. Chinpeak Investment Ltd. and Others

HCA 11133 OF 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11133 OF 1998

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages sequential upon an interlocutory judgment granted on 5 June 2000 in favour of both plaintiffs against the 1st and 2nd defendants

2. The 1st plaintiff was the registered owner of Unit A on the 24th Floor of Block 2 of Elegant Terrace at No. 36 Conduit Road in Hong Kong (hereinafter called "Flat 24-A"). The 2nd plaintiff was the director of the 1st plaintiff and was also the occupier of Flat 24-A.

3. The 1st defendant was the registered owner of Flat 25-A, which was one floor directly above that of Flat 24-A. The 2nd defendant was a director of the 1st defendant. The 2nd defendant occupied Flat 25-A from January 1997 to April 1998. The 3rd defendant, who was not a party to the present assessment, was the tenant of Flat 25-A from April 1998 to 25 April 1999.

4. The 2nd plaintiff and his family have been living in Flat 24-A since 1991. Shortly after the 1st defendant became the owner of Flat 25-A in November 1996, renovation works were carried out in Flat 25-A. The 2nd defendant moved into Flat 25-A by the end of January 1997.

5. In April 1997 water started to leak from Flat 25-A into Flat 24-A, causing water marks on the ceiling and the master bedroom toilet wall at Flat 24-A. The leakage continued. In May 1997 the plaintiff sought assistance from the Urban Services Department to ascertain the source of the leakage. Two tests were conducted by the Urban Services Department, one of which confirmed that water coming from the drainage of Flat 25-A was collected at Flat 24-A.

6. In March 1998 the plaintiffs appointed Samson Wong & Associates Property Consultancy Limited to carry out further test to confirm the source of leakage. Access of Samson Wong & Associates to Flat 25-A for the purpose of carrying out the confirmation test was denied by the defendants.

7. In the meantime the problem in Flat 24-A intensified. Sections of paint and plaster came off the wall and ceiling. Mould began to grow. The plaintiff was able to collect a daily average of 300 c.c. to 500 c.c. of water from the wall. On 20 June 1998 the water leakage caused short-circuiting to the switch of the master bedroom toilet. As the electricity supply to the switch of the master bedroom toilet was in the same circuit as the power supply to the master bedroom, the kitchen lighting and the water heater, the whole group of this power supply had to be disabled from 20 June 1998.

8. The plaintiffs sought an urgent injunction from court on 30 June 1998. By the consent of both the plaintiffs and the defendants Messrs L.C. Surveyors Limited was jointly appointed as the surveyor to investigate into the water leakage problem. It was the findings of Messrs L.C. Surveyors that water was leaking from Flat 25-A and Flat 24-A was suffering from serious water penetration which caused damage to the ceiling, the walls, light switches and embedded conduits.

9. On 14 April 1999 an injunction was granted by court to prohibit the water leakage from Flat 25A to Flat 24-A at the master bedroom toilet, pending repairs to the plumbing and drainage system. Since the injunction, water leakage from Flat 25-A diminished and stopped for a short period.

10. On 7 October 1999 the plaintiffs took out the present action to sue for damages.

11. The 2nd plaintiff further instructed Messrs C.Y. Leung Project Services Limited to report on the costs of repair necessitated by the water leakage from Flat 25-A and his loss of enjoyment of his property during the water leakage period. According to the surveyor, the repair would cost HK$48,900 and would require 15 working days. The market rental of Flat 24-A should be HK$36,400. With the water leakage problem its rental would only be HK$28,800.

12. The 2nd plaintiff and his family moved out of Flat 24-A and sought alternative accommodation for the period between 25 June 2000 and 24 August 2000 at a monthly rental of HK$30,400 to facilitate the repair work. The plaintiff also paid a sum of HK$12,480 removal fees and storage charges.

13. Damages suffered by the plaintiff as a result of the water leakage from Flat 25-A were itemized as follows:-

(a)	Costs of repair of Flat 24-A in accordance with the surveyor's report of Messrs C.Y. Leung:-
	(i) repainting	20,900
	(ii) carpentry	4,500
	(iii) plastering	5,000
	(iv) electrical work	10,000
	(v) flooring	5,500
	(vi) cleaning	3,000
		$ 48,900
(b)	Insurance coverage during renovation	$800
(c)	Loss of enjoyment of Flat 24-A from April 1997 to June 2000 (HK$36,400-HK$28,800) x 39 months	$296,400
(d)	Alternative accommodation - the repair work required 15 working days, together with one day for moving out and one day for moving back into Flat 24-A, the plaintiffs had to pay for 17 days of alternative accommodation for the repair work in respect of the water leakage. Costs of his alternative accommodation would be HK$60,800 x 17 days/61 days	$16,944
(e)	Surveyors fees incurred in establishing the plaintiffs' case:-
	(i) Messrs. Samson Wong & Associates Property Consultancy Ltd.	$12,800
	(ii) Messrs. C.Y. Leung Project Services Limited and Messrs.C.Y.Leung & Company Limited	$25,000
	(iii) Messrs. L.C. Surveyors Limited	$54,990
(f)	Moving expenses and storage charges	$12,480
	HK$ 468,314
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14. Judgment is awarded in favour of the plaintiffs against the 1st defendant in the sum of HK$468,314. As the 2nd defendant was only in occupation of Flat 25-A for a period of 15 months (between January 1997 and April 1998) out of the 39 months the 2nd defendant's joint and several liability was limited to a sum of HK$180,121 (HK$468,314 x 15 months / 39 months). Pre-judgment interest is granted at 1% above prime rate from the date of the writ to the date of judgment.

15. Order nisi for costs for the present assessment hearing is also awarded to the plaintiffs against the 1st and 2nd defendants. Quantum of costs is to be taxed, if not agreed.