RICHARD MORRIS DAVIDSON v. DECOR HOUSE LTD

DCCJ768/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 768 OF 2004

J U D G M E N T

1.  As demonstrated by the present case, contract for decoration work of domestic household can be a potential source for litigation.

2.  The Plaintiff engaged the Defendant, which carried on business as a decoration work contractor and consultant, to carry out decoration work in his flat at Flat E, Block 1, 22 Conduit Road, Mid-Levels, Hong Kong (“the Flat”).  The total contract price, including additional works, is $356,336, and it is common ground that there is an unpaid balance of $24,512.  However, the Plaintiff claims that he suffers damages exceeding $180,000 as a result of the breach of contract on the part of the Defendant, and so giving credit to the unpaid balance, the Plaintiff claims for such damages against the Defendant.

3.  The Plaintiff includes a number of complaints in the Statement of Claim, including defective grouting work, delay in the completion of work, and wrong positioning of the water pump, but as the Plaintiff is not pursuing any damages for these complaints, the issues in the present case boil down to the following 4 complaints by the Plaintiff:

(1) whether the water leakage in the false ceiling of the Flat was caused by the defective work of the Defendant;

(2) whether the water seepage near the bay window in the master bedroom of the Flat was caused by the defective window installation work of the Defendant;

(3) whether the Defendant was in breach of contract in providing the shower with inadequate water pressure;

(4) whether the Defendant was in breach of contract in failing to advise the Plaintiff to install access panel for the air-conditioning unit in the Flat.

Water Leakage in the False Ceiling

4.  My first task is to identify the cause of the water leakage in the false ceiling.  In this regard, the Plaintiff has sought the assistance of a surveyor, Mr Peter Wong, who has 20 years of experience in assessing the loss for defective building and decoration work and investigating causes for different complaints relating to decoration work including water leakage.

5.  According to Mr Wong, there might be a few causes for the water leakage:

(1) improper placement of the drainage pipe, making it difficult for the water to pass through the pipe;

(2) improper connection of the drainage pipe with the outlet unit; and

(3) backflow of water from the communal drainage system of the building.

The first two would be the responsibility of the Defendant.

6.  Mr Wong discards the third possibility as a likely cause of the water leakage.  According to the photograph taken by the Plaintiff personally, as shown in page 76 of the trial bundle, the pipe was not connected properly with the communal drainage system of the building, and so backflow of water from the communal drainage system of the building was not possible.  Even if the drainage pipe was properly connected, the dimension of the drainage pipe was smaller than that of the communal drainage pipe, as shown in the same paragraph in page 76 of the trial bundle.  As there was space between the two pipes, there would not have been sufficient pressure to cause the water to backflow from the communal drainage system back to the drainage pipe.  As there is no reason for me to doubt the opinion of Mr Wong, I accept his opinion as reliable.  Hence, I find that the water leakage was either caused by the improper placement of the drainage pipe or the improper connection of the drainage pipe with the outlet unit, both causes of which the Defendant was responsible.

7.  According to Madam Chan Yee-mai of the Defendant, she was told by her workers that the water leakage was caused by the blockage in the communal drainage system.  Unfortunately, the Defendant cannot arrange the relevant worker to testify in court.  Without an opportunity to  test the credibility of the worker concerned, I do not accept such hearsay evidence, though admissible, as the truth.

8.  The Defendant also raises one query about Mr Wong's evidence.  According to the Plaintiff's case, the water leakage stopped after the Defendant's worker came to the Flat and performed some work.  If the water leakage was caused by the improper placement or improper connection of the drainage pipe, it could only have been rectified by removing the false ceiling.  As the ceiling was not removed and the water leakage stopped after the remedial work, the suggestion put forward by Mr Wong could not have been the cause for the water leakage.

9.  In reply, Mr Wong claims that the defect, such as improper placement of the pipe, could have been rectified by different ways without removing the false ceiling, including pulling the pipe at one end.  As there is nothing for me to doubt Mr Wong's evidence, who has the relevant experience of 20 years, I accept his opinion as reliable.

Water Seepage near the Bay Window of the Master Bedroom

10.  Under the decoration contract, the Defendant was responsible for  replacing the window in the Flat and for fitting the inner window frame to the existing outer window frame.

11.  According to Mr Wong, there was a wide gap between the inner and outer window frames of the master bedroom, as shown in the photographs in pages 112 and 113 of the trial bundle.  Although he could not see the inner part of the void between the window frames, Mr Wong is of the view that the gap was probably caused by the wrong measurement of the inner window frame of which the Defendant was responsible.  The wide gap between the window frames made it very difficult for the workers to fill all the void with sealing material.  To prevent leakage, considerable sealing material would have to be used without any guarantee of success, but the point was that Mr Wong did not find the presence of abundant sealing material when he subsequently inspected the window during the dismantling work.  In the same inspection, Mr Wong also found that the void between the window frames was wet.  Hence, according to Mr Wong, there is concrete evidence to support that the water seepage was caused by the improper fitting of the inner window frame.  I accept his opinion as the truth, and the Defendant should therefore be liable for the loss resulting from the water seepage caused by such poor workmanship.

12.  During cross-examination of Mr Wong, the Defendant put forward the suggestion that the water seepage might have been caused by the defective placement of the marble top in the bay window, of which the Defendant was not responsible.  Technically, the Defendant should not be allowed to put forward a positive case for such argument, as the same has not been disclosed in previous witness statements or documentary evidence, but to test the reliability of Mr Wong's opinion, he should be asked to address such possible cause.

13.  According to Mr Wong, he had not carried out detailed investigation in respect of the marble top, but in his experience, the likelihood of having water seepage from there was minimal as:

(1) there was a big gap between the window frames;

(2) the void in the window frame was wet during the dismantling work; and

(3) there was no abundant use of sealing materials in the void between the window frames as he could observe.

Mr Wong is quite certain that the gap in the window frame was the cause of  the water seepage.  As the Defendant has not adduced any evidence to contradict Mr Wong's expert evidence, I accept his opinion as reliable.

Water Pressure of the Shower

14.  The Plaintiff also complains that the shower installed in the bathroom was defective.  As a result, there was insufficient pressure for the flow of water from the shower.

15.  In my judgment, the Plaintiff's claim in this regard should fail for a number of reasons.  I understand that the original contract made between the Plaintiff and the Defendant only provided for an ordinary shower.  Subsequently, when Madam Chan of the Defendant accompanied the Plaintiff to choose the toilet-ware, the Plaintiff watched a demonstration of a multi-headed shower.  Madam Chan then told the Plaintiff that he could have whatever he wanted, and so the Plaintiff chose the multi-headed shower.  After the installation, the Plaintiff was not satisfied with the water pressure of the shower.  The Defendant tried to install a water pump in the kitchen to improve the water pressure but without any success.

16.  The problem with the Plaintiff's case is that there was no express agreement on the standard of the water pressure of the shower, without which the court is not able to conclude that the Defendant was in breach of any duty.  Further, according to Mr Wong, he cannot say that the work of the Defendant for the shower fell below the standard of a competent contractor.  In his report, Mr Wong listed out various ways to improve the water pressure, but that does not mean that the Defendant's work fell below the standard acceptable by the trade.  In fact, it is common ground that the water pressure of a shower depends on a number of factors, some of which are beyond the control of the Defendant, such as the water supply system of the building and the height of the building.  If the Plaintiff wanted to have a powerful jet shower, more work had to be done and the Plaintiff might have to spend much more in the decoration costs.  Hence, without any evidence to show that the work of the Defendant fell below the standard of a competent contractor, the Plaintiff's claim relating to the shower cannot possibly succeed.

17.  Even if the Defendant was in breach of its duty, the Plaintiff cannot establish any recoverable loss under this complaint.  As I understand it, loss of pleasure is not a recoverable loss for such kind of claim.  The Plaintiff has not carried out any remedial work in this regard, and the Plaintiff is actually going to sell the Flat with the completion scheduled for today.  As there is nothing to show that the value of the Flat becomes lower by reason of the insufficient water pressure of the shower, the Plaintiff has no financial loss for the complaint under this head.

Access Panel for the Air-conditioning System

18.  According to Mr Wong, access panel should have been provided to the compressor unit of the split air-conditioners in the Flat, which is essential for the maintenance and repair of the compressor.  Upon the advice of the Defendant, the Plaintiff agreed not to install the access panel.  It turns out that the Defendant's advice is wrong, and so the Plaintiff claims for the cost of re-installing the access panel.

19.  In fact, the Defendant does not seek to dispute the Plaintiff's evidence in this regard, and so I allow the Plaintiff's claim for such costs.

Quantum

20.  Hence, the Plaintiff is only allowed to recover: (1) the costs of re-installing the windows in the master bedroom; (2) the costs of repairing the damage to the light panel caused by the water leakage from the air-conditioners; and (3) the costs of re-installing the access panel.  Mr Wong, who has considerable experience in this area, is of the view that reasonable costs for such remedial work is $43,800 ($26,800 for item 1 and $17,000 for items 2 and 3).

21.  In the opinion of Mr Wong, the renovation work would probably have taken 15 to 20 working days to complete, and the Plaintiff lost the use of the Flat for such period.  As the monthly rateable value of the Flat was $44,000, the sum of $10,000 claimed for the loss of use of the Flat is reasonable.  The Plaintiff should also be allowed to recover $3,000 as the costs of insurance for the remedial work.  In respect of the costs paid for the preparation of the Surveyor's Report and the attendance of the surveyor in court, I would not include those as damages.  Such costs will be dealt with separately as the costs of the action.

22.  The Defendant also has a counterclaim of $4,860 as the costs for dismantling and replacing the toilet bowl.  The Plaintiff agrees to such claim but alleges that the figure is excessive.  The problem is that there was no prior agreement between the parties for such kind of work, and there is no evidence adduced as to the market value of such work.  After listening to the Defendant's evidence, I assess the costs for such work as $3,500, after deducting $120 as the costs for investigating the shower problem and giving a further deduction of $1,240 for sending too many workers to investigate the cause of the problem.

23.  The quantum of the Plaintiff's claim can therefore be summarised as follows: 

Costs for the remedial work	$43,800
Loss of use of the flat during the remedial work	$10,000
Insurance for the remedial work	$  3,000
Less balance under the decoration contract	$24,512
Less costs of dismantling and replacement
of toilet bowls	$  3,500
Total	$28,788

24.  In my view, there is no winner in this case.  The Defendant has to pay damages to the Plaintiff and to indemnify him for the costs paid to the surveyor.  For the Plaintiff, his initial assessment of the damages is wholly unrealistic, and he would never have been fully compensated for the time and costs spent in the past few years for this litigation.  The court is also a loser.  As this case should have been dealt with in the Small Claims Tribunal, substantial judicial resources have been wasted by having this case tried in the District Court.  This sort of litigation involves expert and technical evidence, and substantial costs would have to be spent on the preparation of the case.  If the amount of the dispute is not substantial, litigants should give serious thought as to whether they should resolve their dispute through some other means.

25.  I now listen to the parties' submissions on interest and costs.

(Discussion re costs)

26.  In this case, I decide to exercise my power to make a gross sum assessment of the costs.  This case should have been heard in the Small Claims Tribunal, and the approach of the court in assessing the costs in such circumstances has been discussed by the Court of Appeal in M Beraha & Company Limited v Ng Wai Lun, unreported, CACV256/2003 (decision of the Court of Appeal on 11 June 2004).  The surveyor's costs in preparing the report and attending the court are $19,200 and $7,200 respectively.  The fees charged by the Plaintiff's surveyor are certainly higher than the market price, and the costs of preparing the report, including actual site inspection, should not be more than $10,000.  In this case, I allow $12,000 as the costs of the preparation of the report.  As the Plaintiff does not succeed in all the claims covered in the report, I make an adjustment by allowing only $10,000 for the preparation of the report.  Substantial time has been spent by the surveyor in testifying in court.  Adjusting the hourly rate to $1,000, I award $6,000 as the costs of the surveyor for court attendance.  The Plaintiff had to fly back to Hong Kong to attend the trial and the air fare was about $9,000.  However, instead of appointing an agent, the Plaintiff can save costs by actually coming to Hong Kong to complete the sale of the Flat.  In such case, I will apportion the expenses and allow the Plaintiff to recover $6,000 as the costs of the air fare.  I will also make a conventional award of $2,000 to cover the other transportation expenses incurred by the Plaintiff in attending various court hearings.  The total assessed costs are therefore $24,000.