CHOI CHING WAI v. HU AIJIAO

DCCJ 192/2023

[2025] HKDC 2176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 192 OF 2023

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the hearing for assessment of damages of the claim of the Plaintiff arising out of water seepage. 

2.  The Plaintiff is the sole registered title owner of Flat H, 3^rd Floor, Kai King Building, No. 12 Yuet Wah Street, Kowloon, Hong Kong (“the Premises”).

3.  The Defendant is the sole registered title owner of Flat H on 4^th Floor of the same building.

4.  On 13 March 2023, in the absence of any notice of intention to defend, the Plaintiff obtained judgment against the Defendant, leaving damages to be assessed.

5.  In short, the Plaintiff alleges the Defendant to have caused nuisance by wrongfully permitting water penetrating or seeping into the Premises.  Further and/or alternatively, the Plaintiff alleges the Defendant to be negligent in failing to take adequate steps to prevent water seepage. 

6.  As shown in the Statement of Claim and Counsel’s written Opening Submissions, the Plaintiff’s damages can be summarised in 2 categories: (i)  costs of repair and reinstatement, and (ii)  loss of rental income.

7.  The Defendant was absent at the hearing on 18 December 2025.  Having read the affirmation of service filed on 17 December 2025, this Court was satisfied that notice of assessment hearing had been duly given to the Defendant prior to the hearing.  It was the Defendant’s election not to attend the assessment hearing.  This Court proceeded with the assessment of damages in the absence of her.

The Plaintiff’s case

8.  In early 2020, the Plaintiff discovered there was water seeping in the ceiling area of the bathroom of the Premises. He reported on various occasions to the management office and lodged complaint to the joint office of Buildings Department / Food and Environmental Hygiene Department.  It was found by the joint office that the waterproof facilities in the showering area of the Defendant’s unit were not in good condition which resulted in water seepage.  Despite the demands made by the Plaintiff’s solicitors, the Defendant refused to rectify the problems and failed to make any compensation. 

The Evidence

9.  In the present hearing, the Plaintiff called 1 factual witness, namely the Plaintiff himself (“Mr Choi”). Expert evidence from a surveyor Mr Wong Shun Tai, Stewart (“Mr Wong”)  is also adduced in the form of a report dated 28 January 2025.  All of the above were not subject to any challenge from the Defendant who had adduced no documentary evidence and witness evidence for the purpose of assessment of damages and was absent during the hearing.  I accept and find the evidence of witness straightforward, credible, and reliable. 

Costs of repair and reinstatement

10.  Damages for costs of repair and reinstatement is recoverable for physical damage caused to the Premises by the water seepage, and so is the damages for the chattels damaged in addition, as the learned authors observed in McGregor on Damages (22^nd Ed), at para 40-019. 

11.  The Plaintiff has produced a bundle of quotations, invoices, and receipts in support of the claim for reinstatement and replacement.  The documents can be classified into two parts: (i)  the interim repair work carried out on 23 September 2020, 22 January 2022, 29 March 2022, and 19 August 2022; and (ii)  other reinstatement works done when the Premises was not being occupied by any tenants. 

12.  The former includes re-plastering, re-painting, and replacement of light fittings, etc.  The latter includes relatively more extensive work such as scaffolding erection, replacement of aluminum windows, external wall waterproofing, and hacking off sapped concrete.

13.  While this Court noticed from the documents produced the Plaintiff has spent HK$24,700 on the former and HK$138,626 on the latter, Mr Wong opined that discounted sums of HK$22,900 and HK$125,800 are reasonable for the said two categories of work respectively. 

14.  In view of the documentary proof of expenses incurred, this Court has considered assessment and brief reasons stated by Mr Wong under each item.  This Court, with the assistance of the expert’s opinion, is entitled to examine the reasonableness of the costs spent by the Plaintiff.  This Court, being satisfied with assessment put forward by Mr Wong, will adopt the costs of repair and reinstatement assessed by him as the measure of damages, which is agreed by Counsel, and allow the sum of HK$148,700 recoverable from the Defendant. 

Loss of rental income

15.  The Plaintiff relies on McGregor on Damages, (22^nd Ed), at para 40-030 and claims for consequential loss of rent.  Such loss can be classified into two parts: (i)  loss resulting from not being able to let the Premises out; and (ii)  loss resulting from discounting the monthly rentals charged from tenants.  

16.  In respect of the former, four tenants had terminated the lease early due to the problems caused by the water seepage from the Defendant’s unit.  For the latter, given the deteriorating condition of the Premises, the Plaintiff could only lease the Premises at a lower rent at HK$6,200, HK$5,500, and HK$5,600 per month (instead of HK$6,600)  to subsequent tenants. 

17.  Mr Choi, as the factual witness, testified that tenants of Premises were being alarmed by the problems caused by the water seepage.  He appreciated the intolerable situation at the Premises and understandably consented to their respective requests for early termination without asking for any contractual remedies under the tenancy agreements from them.  

18.  Mr Choi also testified on the loss under the four tenancy agreements.  This Court has spent considerable time clarifying with Counsel for the Plaintiff on the proper calculations.  Upon repeated inquiries, this Court was orally provided with the following updated figures eventually in place of those on page 7 of  the Opening Submissions:

(i)  In respect of the lease with the 1^st tenant Mr Lam, he terminated early.  There were two months where the Premises had been left vacant, before another tenant Mr Chan took it up.  The Plaintiff seeks a sum of HK$13,200.

(ii)  In respect of the lease with the 2^nd tenant Mr Chan, the Plaintiff could only lease the Premises at a discounted rent of HK$6,200 per month.  Mr Chan could not bear with the condition and had terminated on 17 December 2021.  The Premises was left vacant until 25 February 2022 on which the next tenant Mr Cheung started his lease.  In light of vacancy loss and difference in rent (HK$400 per month), the Plaintiff seeks a sum of HK$18,109.67.

(iii)  As to the lease with the 3^rd tenant Mr Cheung (at a discounted monthly rent of HK$5,500), he had asked for early termination after having intolerably resided in the Premises for 4 days only.  The Plaintiff seeks a sum of HK$6,600 which represents one-month-rental of entire March 2022.

(iv)  In respect of the lease with the 4^th tenant Ms Ho (at a discounted monthly rent of HK$5,600), she started the tenancy on 1 April 2022 and prematurely ended the same on 22 August 2022, as she had experienced a short circuit on 19 August 2022 caused by the water seepage.  The Plaintiff seeks the rental loss of HK$21,716.13 for the period starting from 23 August to 30 November 2022 (on which the Plaintiff had finished all repair and reinstatement work and managed to lease the Premises to the next tenant).

19.  This Court has considered the tenancy agreements, photos taken at various points of time, as well as interim repair work being conducted during the aforesaid tenancy.  To put simply, but for the water seepage, the Plaintiff would have been able to lease the Premises at HK$6,600 continuously.  In my judgment, the damages claimed (after clarification)  is reasonable which properly reflects the consequential loss resulting from the wrongdoing of the Defendant.   This Court will allow the full amount of HK$59,625.80 (as revised by Counsel at the hearing)  to be recoverable from the Defendant.

20.  In addition to the above, in arranging for the re-letting of the Premises, the Plaintiff has engaged estate agents.  A sum of HK$4,175 in total was incurred as revealed in the two receipts issued by Band One Realty Limited.  This Court found such fees as reasonable and consequential loss flowing directly and foreseeably from the Defendant’s water seepage and will allow the same to be recovered from the Defendant.

Other loss

21.  It was only until at the Closing Submissions this Court was first informed by Counsel orally of her intention to seek damages for distress, discomfort and inconvenience.  While paragraph 3 of the Statement of Claim alludes to it, the prayer for relief clearly does not specifically include any damages for this head of loss, nor did the Opening written and oral in this Assessment of Damages hearing touch upon it.  This Court has gone through the pleadings, Mr Choi’s witness statement, and other evidence with Counsel who could not provide any satisfactory explanation for such a move.  Even though the Defendant was absent in the hearing, what Counsel sought to do would amount to an ambush.  As such, this Court is not prepared to make any award for such alleged loss and damage.  

Conclusion

22.  The Plaintiff is entitled to recover from the Defendant the following:

(1)  Costs of repair and reinstatement	HK$148,700.00
(2)  Loss of rental income	HK$63,800.80
TOTAL:	HK$212,500.80
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23.  I order that the Defendant do pay the sum of HK$212,500.80 to the Plaintiff with interest on the said sum at the best lending rate of HSBC plus 1% from the date of Writ, i.e. 16 January 2023 to the date of the judgment and thereafter at judgment rate to the date of full payment.

24.  Costs should follow the event in the present case.  Having considered the statement of costs, I make an order nisi for the Defendant to pay the Plaintiff’s costs, with Certificate for Counsel, summarily assessed at HK$88,358.  Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an absolute order.