TIGER LUI INVESTMENT LTD v. WONG KIT YING

DCCJ 2107 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2107 OF 2007

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

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

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

JUDGMENT

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

1.  This is the hearing of the assessment of damages for the Plaintiff’s claim against the Defendant for damages for the loss it has suffered as a result of water seepage at the ceiling of the Plaintiff’s premises.

Background

2.  The Plaintiff is the registered owner and occupier of the premises (“the Plaintiff’s Premises”) known as Ground Floor, Keysky Industrial Building (“Keysky Building”), No. 151 Wai Yip Street, Kwun Tong, Kowloon, Hong Kong.

3.  The Defendant is the registered owner of the 1^st Floor of Keysky Building (“the Defendant’s premises”) situated immediately above the Plaintiff’s Premises.

4.  In March 2007, the Plaintiff’s staff discovered that there was water seeping out from the ceiling of the toilet and storeroom of the Plaintiff’s Premises.   The water seepage had apparently damaged the ceiling and some of the furniture in the toilet and the storeroom.

5.  After the recommendation by GM Architects Ltd (“the Architects”) that the water seepage might cause structural damage to the Plaintiff’s Premises, the Plaintiff proceeded to engage Simple Construction & Design Co Ltd (‘the Contractors”) to carry out repair and remedial works at the Plaintiff’s Premises to rectify the damage caused by the water seepage.

6.  By way of the present action issued on 14 May 2007, the Plaintiff claims against the Defendant for damages in the pleaded sum of HK$85,000.00 in repairing and rectifying the damage caused by the water seepage. It is the Plaintiff’s case that the water seepage was caused by the Defendant’s negligence in failing to properly maintain the Defendant’s Premises and the Defendant’s breach of its duty under the Deed of Mutual Covenant of Keysky Building.

7.  By way of the Affirmation of Sung Sze Hang dated 5 June 2007, it was affirmed that an envelop containing a copy of the Writ of Summons with copies of the Acknowledgment of Service was inserted into the letter box of the Defendant’s Premises.

8.  The Defendant did not file any notice of intention to defend.  Interlocutory judgment on liability was entered against him on 13 June 2007, with damages to be assessed.  Hence the present hearing.

The hearing of assessment of damages

9.  For the present purpose of the assessment of damages, the Plaintiff has filed a witness statement of Mr Lok Tai Wai Jimmy, who is and was at the material time a staff of the Plaintiff and who had discovered the water seepage.

10.  The Defendant has not filed any evidence or witness statement.

11.  Apparently, albeit all the previous summons, directions and notices concerning the assessment of damages had been sent by ordinary post to the Defendant’s address, being his last known address to the Plaintiff, some (but not all) of these have in fact been returned.

12.  As such, when the hearing of the assessment of damages first came before H H Judge Simon Leung on 5 October 2007, the learned judge was not satisfied that he could proceed with the hearing in the absence of the Defendant.  He thus adjourned the matter to today.  He further gave leave to the Plaintiff to adduce the expert site report (“the Expert Report”) of the Architect dated 3 October 2007 as evidence for the assessment of damages without calling the maker.  The learned judge then directed the Plaintiff to serve his above Order (“the Order”) on the Defendant by leaving the same at the address of the Defendant’s Premises.  He has also asked the bailiff to attempt to personally serve on the Defendant a notice of hearing of the adjourned assessment of damages at the Defendant’s Premises.

13.  By way of the 6th Affirmation of Sung Sze Hang, Mr Sung confirms that he did serve the Defendant the Order by leaving the envelope containing the same at the Defendant’s Premises (which I take it to mean at its door front).  He further confirms that the said envelop or copy of the Order has not been returned to the solicitors’ office.

14.  By way of an affirmation of non-service by Mr Cheung Moon-cheong, Bailiff’s assistant, dated 10 October 2007, it is deposed that no personal service could be effected on the Defendant at the Defendant’s Premises as the premises was found to have been vacant.

15.  The Defendant is absent today for the hearing.

16.  Notwithstanding the Defendant’s absence, in light of the history of service as set out above, I am satisfied that it is just and appropriate for me to proceed to hear the assessment today as the Defendant should have had sufficient notice of today’s hearing. See:  Hong Kong Civil Procedure 2007, para 35/1/1.

The Assessment:  The Plaintiff’s case and evidence

17.  Interlocutory judgment having been entered, liability is not an issue.

18.  The Plaintiff now claims HK$80,000 as its loss and damage in the form of expenses incurred and spent by it to rectify the various damage to the Plaintiff’s Premises and furniture, caused by the water seepage.

19.  At the hearing, Mr Lok confirmed his witness statement in his evidence in chief.  In his evidence, the Plaintiff’s Premises did suffer from the damage caused by the water seepage, which had been rectified and repaired by the Contractor. He also confirms that payments had been made by the Plaintiff to the Contractor and the Architect respectively in the sums of HK$70,000 and HK$10,000.  I have no reason not to believe in him.   I therefore accept his evidence.

20.  Further, the Expert Report and photos exhibited to Mr Lok’s witness statement support and confirm the state and nature of the damage caused by the water seepage, and the necessity to rectify it.  I also accept this evidence.

21.  Insofar as the quantum is concerned, this is further supported by the following:

(1)	The quotation of the Contractor for HK$70,000 in carrying out the repair and rectification works, and its receipt confirming the payment by the Plaintiff.
(2)	The invoice of the Architect for the sum of HK$10,000.

22.  In the premises, and given that I have accepted the evidence of Mr Lok and that in the Expert Report, I am satisfied that the Plaintiff has proved that it has suffered loss and damage in the sum of HK$80,000, being the cost incurred to repair and rectify the damage to the ceiling and the furniture of the toilet and storeroom of the Plaintiff’s Premises. 

Conclusion

23.  For the above reasons, I therefore order that the Defendant do pay the Plaintiff the sum of HK$80,000 with interest at the rate of 1% above the prime rate as from time to time quoted by the Hong Kong & Shanghai Bank from the date of the Writ to the date of judgment, and thereafter at judgment rate until full payment.

24.  I further order that the Defendant should pay the Plaintiff the costs of the action, including the costs of the assessment of damages; such costs being grossly assessed at the sum of HK$22,000.00.