YEUNG PAK MAN AND ANOTHER v. HO KAI TONG

HCA No. 4161/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4161 OF 1994

____________________

___________________________

ASSESSMENT OF DAMAGES

___________________________

Introduction

1. The plaintiffs were at all material times and still are the registered owners and occupiers of Flat E2, 4th Floor, Block E, Plover Cove Garden, No. 3 Plover Cove Road, Tai Po, New Territories, Hong Kong ("the plaintiffs' Premises").

2. The defendant was at all material times and still is the registered owner of the flat above the plaintiffs' Premises, i.e. Flat E2, 5th Floor, Block E, Plover Cove Garden, No. 3 Plover Cove Road, Tai Po, New Territories, Hong Kong ("the defendant's Premises").

3. By an Assignment dated 9th August 1990, the defendant covenanted to hold the defendant's Premises subject to and with the benefits of the covenants, terms and conditions contained in the Deed of Mutual Covenant dated 2nd August 1990 ("the DMC").

4. In breach of the DMC, the defendant had caused water leakage from the defendant's Premises to the plaintiffs' Premises, whereby the plaintiffs suffered loss and damages.

5. The plaintiffs issued the proceedings herein on 3rd May 1994 and claimed against the defendant, inter alia, for:-

1. A mandatory injunction that the defendant, his servants, agents, tenants or otherwise do forthwith carry out repair work to the water pipe(s) or drainage system of the defendant's Premises;

2. An injunction restraining the defendant whether by himself, his servants, agents, tenants or otherwise from allowing the water pipe(s) or drainage system of the defendant's Premises to fall into disrepair in contravention of the DMC; and

3. Damages.

6. On 14th July 1994, Deputy Judge Woolley entered judgment for the plaintiffs against the defendant for, inter alia, the aforesaid injunctions and damages to be assessed.

7. After the plaintiffs obtained the said judgment, the water leakage stopped some time in August 1994. The plaintiffs therefore appointed a decorator to make good the ceiling plaster and paint of the plaintiffs' Premises at the cost of $13,500.00.

8. However, in August 1995, the water leakage started again and affected the same areas of the plaintiffs' Premises as in 1993 to 1994.

9. The plaintiffs therefore applied to the Court for an order to commit the defendant to prison for contempt of Court. The application was heard before Chan J. (as he then was) on 27th March 1996, but was adjourned sine die for the defendant to carry out repair work.

10. The water leakage ceased in about May 1996. The plaintiffs therefore engaged another contractor to repair the ceiling of the plaintiffs' Premises again at the cost of $16,000.00.

11. The assessment of damages was heard before me on 6th April 2001.

The Plaintiffs' Claims

12. The plaintiffs' claims are for the costs of repair for the 2 occasions of water leakage in the sums of $13,500.00 and $16,000.00 respectively.

13. The plaintiffs also claim for the costs of the surveyors in investigating into the cause of the water leakage and for preparing 2 reports in the total sum of $18,000.00

14. The plaintiffs had claimed damages in the sum of $42,000.00 for disturbance, annoyance and inconvenience as their enjoyment of the plaintiffs' Premises had been seriously affected. However, at the request of the defendant's wife, the plaintiffs waived this claim at the hearing of the assessment. It is therefore not necessary for me to assess this item of the claims.

Evidence for the plaintiffs

15. The 2nd named plaintiff gave evidence at the hearing of the assessment. She testified the extent of the damage caused by water leakage on the first occasion by referring to the photographs produced by her and marked exhibits "P4(1) - (14)". She also testified the extent of the damage caused by water leakage on the 2nd occasion by referring to the photographs produced by her and marked exhibits "P5(1) - (4)".

16. An invoice (exhibit "P2") and a receipt (exhibit "P3") both dated 17th December 1994 and issued by Oi Mei Don Decoration Design Co. ("OMD") were produced. They confirmed that the plaintiffs had spent $13,500.00 to repair the ceilings of the living room, toilet and bathroom of the plaintiffs' Premises as a result of the first water leakage. She testified that she had in first obtained another quotation dated 9th July 1994 (exhibit "P1") from Mee Ah Design & Decoration Co. ("Mee Ah") for the repair works. The repair cost quoted by Mee Ah was in the sum of $37,000.00. She found it too expensive and hence engaged OMD to do the repair work instead. She also testified that OMD took about 2 weeks to do the repair work.

17. For the second water leakage, the 2nd named plaintiff testified that the plaintiffs spent $16,000.00 to repair the plaintiffs' Premises. She produced an invoice dated 5th June 1996 (exhibit "P8") and two receipts dated 5th June 1996 and 16th June 1996 respectively (exhibits "P9(1) - (2)") from Fu Sing Decoration & Light Co. ("Fu Sing") to confirm the repair work done and the amount spent. She also testified that Fu Sing took about 8 to 10 days to do the repair work on this occasion.

18. Two survey reports prepared by Citybuild Surveyors Limited ("Citybuild") dated 7th April 1994 and 15th January 1996 respectively (exhibits "P6" & "P7") were produced to confirm that on these two occasions of water leakage, the causes were the same. Both reports concluded that with deficiency in the fresh water piping material and/or bad workmanship, water was seeping out from the concealed water piping in the defendant's Premises and penetrated through the concrete floor slab to the plaintiffs' Premises. The reports also confirmed that the extent of the water leakage on the two occasions were quite large.

19. A letter dated 31st March 1994, an invoice dated 13th April 1994, an official receipt dated 20th April 1994, a debit-note dated 15th January 1996 and an official receipt dated 19th January 1996 (exhibits "P10" to "P14" respectively) all issued by Citybuild were produced. They confirmed that the plaintiffs had to pay Citybuild a total sum of $18,000.00 being Citybuild's professional fees for the 2 surveys and reports.

Evidence for the defendant

20. The defendant' wife, Madam Hau Chu Lan, was representing the defendant, and she gave evidence for the defendant. She also called a witness, Mr. Wong Yan Chor from Chun Fung Decoration Design Co. ("Chun Fung") to give evidence.

21. Madam Hau testified that the defendant's Premises had water leakage problem too and the defendant spent about $20,000.00 to do repair work for the defendant's Premises. She was of the view that the costs of repair incurred by the plaintiffs were too expensive because the damage in the plaintiffs' Premises was less serious than the damage in the defendant's Premises.

22. She also testified that the defendant later on spent about $200,000.00 to renovate the whole of the defendant's Premises including the change of water pipes. Photographs of the defendant's Premises were produced (exhibit "D1(1) - (7)") to show the extent of the renovation. An invoice from Chun Fung dated 18th August 1996 (exhibit "D2") was also produced to confirm that the defendant spent $210,100.00 on the renovation.

23. On the other hand, Mr. Wong from Chun Fung testified that the problem of water leakage in Plover Cove Garden was common. He had done repair work due to water leakage for 4 to 5 flats in the same development. He found that the prices in the 2 invoices, exhibits "P2" and "P8", were too expensive. He was of the view that the reasonable price for the repair work referred to in exhibits "P2" and "P8" should be $1,800.00 and $6,500 respectively.

Assessment

24. The measure of damages for nuisance is the same as that for tort generally. In Grosvenor Hotel Co. v. Hamilton [1894] 2 Q.B. 836 at 840, Lindley L.J. said this:-

"The damages are whatever loss results to the injured party as a natural consequence of the wrongful act of the defendant."

25. Having considered all the evidence before me, I find that the damage done to the plaintiffs' Premises on both occasions were caused by water leakage from the defendant's Premises, and that the plaintiffs had to spent $13,000.00 and $16,000.00 on the 2 occasions to do the repair work.

26. I find that the sums of $13,000.00 and $16,000.00 were reasonable sums incurred for the repair work. The defendant himself had incurred about $20,000.00 to do repair work for the defendant's Premises. Thus, the sums of $13,000.00 and $16,000.00 incurred by the plaintiffs can in no way be regarded as expensive. I do not accept the evidence given by Mr Wong. His estimates of $1,800.00 and $6,500.00 were far too low and do not seem to be realistic at all, particularly in view of the fact that the repair work lasted for about 2 weeks on the first occasion and 8 to 10 days on the second occasion. In giving his estimates, he was just looking at the two invoices, exhibits "P2" and "P8". He did not inspect the plaintiffs' Premises at all and would not know the exact extent of the damage done to the plaintiffs' Premises. I therefore do not find that his estimates could be relied upon at all.

27. I also find that the plaintiffs had incurred the sum of $18,000.00 for the 2 surveys and reports and the sum is reasonable in the circumstances.

28. Since the costs of repair and the fees for the surveys and reports were losses suffered by the plaintiffs as a result of the defendant's breach of the DMC, the plaintiffs are entitled to recover these expenses from the defendant.

29. In the circumstances, I assess the plaintiffs' loss and damages in the total sum of $47,500.00 as follows:-

1. Cost of repair in December 1994	$13,500.00
2. Cost of repair in June 1996	$16,000.00
3. Costs of the 2 surveys and 2 reports	$18,000.00
Total:	$47,500.00

Interest

30. The plaintiffs did not claim for any interest in the Statement of Claim. At the hearing of the assessment, Mr. Cheung for the plaintiffs also did not apply for interest. There has been a long lapse of time before this assessment was brought up for hearing. I do not think that the defendant should bear interest for this period of time. I therefore will not award any interest for the amount assessed.

Order

31. Accordingly, I enter judgment for the plaintiffs against the defendant for the sum of $47,500.00

32. I also make an order nisi that the defendant do pay the plaintiffs costs of this assessment, to be taxed if not agreed, and the order shall be made absolute after the expiration of 14 days from the date of the judgment.