CENTURY WAY INVESTMENT LTD v. WILLBERT LTD AND ANOTHER

DCCJ 3710/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3710 OF 2013

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DECISION

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1.  This is the 1^st and 2^nd defendants’ application for leave to appeal against my judgment dated 23 December 2016.

2.  There are three proposed grounds of appeal as set out in the written submissions of Mr Ross Yuen, counsel for the defendants. 

3.  The legal principles are well-settled.  Leave to appeal ought not to be granted unless I am satisfied that the proposed appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard: see section 63A of the District Court Ordinance, Cap 360.  I shall adopt below the defined terms in my judgment.

Ground 1

4.  Under this ground, the defendants challenge my interpretation of, and reliance on, the plaintiff’s evidence that it is neither difficult nor costly to install insulation materials at the Server Room, in particular, Mr Liu’s evidence that it would cost about $10,000 to mount a false ceiling. 

5.  Miss Queenie Ng, counsel for the plaintiff, submits that the challenge is unfounded. 

6.  I accept Miss Ng’s submissions for the following reasons. 

7.  First, Mr Liu’s evidence is hearsay in nature, but is nonetheless admissible. 

8.  Secondly, the issue of insulation was clearly a live issue in this action.  Mr Tsim, Mr Wong and Mr Li all gave evidence on it in some form or another.  Yet, the defendants did not explore the issue of false ceiling at all and such evidence must be taken to have remained unchallenged. 

9.  Thirdly, Mr Yuen challenges the weight that the court could possibly give to this piece of evidence, given that it was not even corroborated by the plaintiff’s own expert, Mr Wong. 

10.  Clearly, Mr Liu’s evidence in this regard is a piece of factual evidence.  It was an estimate given by the contractor on the spot to resolve the dampness problem.  There is no rule of law or practice to the effect that such evidence must be supported by expert evidence. Accordingly, the fact that Mr Wong omitted to mention this or comment on the effectiveness of the suggested false ceiling does not, in my view, by itself diminish the weight that the evidence would otherwise carry. 

11.  Conversely, I accept Miss Ng’s submission that if the defendants did have issues with Mr Liu’s evidence, it would have been for them to comment on or rebut it.  In the end, that part of the evidence regarding the effectiveness of the false ceiling as insulation materials and the associated costs was unchallenged either in cross-examination or in submissions.  It was legitimate for me to accept that evidence and take that into account in the weighing exercise. 

12.  Fourthly, as such, given that the issue was not explored at trial, it is not clear on what basis Mr Yuen now says that the installation of a false ceiling would necessarily require the relocation of the air-conditioning units.  Common sense does not necessarily dictate that it has to be so.  In fact, it may even be the case that the quote had already catered for that. 

13.  Fifthly, contrary to Mr Yuen’s submissions, the issue of insulation is also referred to in the pleadings, as pointed out by Miss Ng in her written and oral submissions.  Accordingly, there is no substance in the challenge under ground 1.

Ground 2

14.  Under this ground, the defendants seek to argue that it was wrong for me to make the finding that Unit A is practically unfit for occupation, since the plaintiff was able to let it out in 2016. 

15.  The challenge is misconceived and is based on a misreading of paragraph 82(c) of my judgment.  It is sufficiently clear from that paragraph that what I meant was that the unit was unfit for occupation during the two periods when there was renovation on the 17th floor.  Earlier on, in paragraph 81(b) of the judgment, I pointed out that it is a common occurrence for office units or workshops to undergo renovation.  When that happens and if water dampness appears as a result, the unit may become unhabitable and this is plainly a factor that I could legitimately take into account.

16.  Mr Yuen seeks to emphasise that not much weight should be given to the period of water dampness in 2013, as that was as a result of a large-scale renovation which is not common.  And that leaves us only with the water dampness which lasted for one day in 2016.  That means the plaintiff only had to suffer the inconvenience of water dampness for one day in three years. 

17.  I do not accept this submission.  There is no guarantee how often renovation may take place.  Even if it is not frequent, the damage that may be caused by condensation is clearly a factor that should be taken into account.

Ground 3

18.  Under this ground, the defendants argue that the plaintiff should have taken steps to improve or ensure adequate ventilation. They rely on the Code of Practice for Control of Condensation in Buildings. 

19.  Even assuming the Code is relevant, I explained in paragraph 82(f) of my judgment the weighing exercise that I had carried out, as a result of which I came to the conclusion in that paragraph.  The steps that the plaintiff could have done is part of the weighing considerations in determining what steps the plaintiff should reasonably have done. 

20.  In other words, the factor on which Mr Yuen now relies is just part of the equation.  I had taken that into account (see my reference to turning up the air-conditioning).  Therefore, there is nothing in the defendants’ present submission which will affect the legitimacy of that weighing exercise which I had carried out.  This ground has no merit.

Conclusion

21.  None of the proposed grounds put forward by the defendants have any reasonable prospect of success.  There is no other reason why the appeal should be heard. 

22.  Accordingly, I dismiss the defendants’ application.

(Discussion re costs)

23.  The plaintiff do have costs of this application, with certificate for counsel, summarily assessed in the sum of $30,000, payable within 14 days from today.