WONG CHI WING v. WONG SIU WA

DCCJ 493/2023

[2024] HKDC 2035

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 493 OF 2023

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BETWEEN

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ASSESSMENT OF DAMAGES

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A. Introduction

1.  This is the hearing for an assessment of damages instigated by the Plaintiff (“P”) against the Defendant (“D”) pursuant to the order of Master B Mak dated 31 July 2024.

2.  P had entered judgment on liability against D on 25 July 2023.

3.  There is an affirmation of service before me indicating the relevant notice, orders, hearing bundle and P’s submissions have been duly served. I am satisfied that D has been notified of today’s hearing. I shall proceed in D’s absence pursuant O. 35, r. 1 of the Rules of the District Court, Cap 336H.

B. Background

4.  The following background is salient:-

(a) The underlying dispute pertains to water seepage.

(b) P was and still is the registered owner of Shop 16 on G/F, Kwan Tak Building, Nos 13-17 & 21-25 Yuen Long Hong Lok Road, Nos 2020 Hong King Street, Yuen Long, New Territories (“Shop 16”). There is a cockloft (“Cockloft”) inside Shop 16.

(c) D was and still is the registered owner of Flat O and P on 1/F Kwan Tak Building (“Flat O” and “Flat P” respectively). Flat O and Flat P are directly above the Cockloft.

(d) P claims there has been persistent water seepage from Flat O and Flat P into the Cockloft. P had tried to fix the water seepage by hiring a renovator in around February 2022. However, the renovator could not carry out the requisite work due to the severity of water seepage.

(e) Subsequently, P engaged Mr. Stewart Wong (“Mr. Wong”) of Proficient Surveyors & Co Ltd to carry out inspections and locate the source of water seepage. Mr. Wong made a report on 9 September 2022 (“Expert Report”). The Expert Report confirmed water was seeping from Flat O and Flat P into the Cockloft.

(f) P commenced the present action on 9 February 2023 after failed attempts to contact the owners of Flat O and Flat P.

(g) The water seepage abated to some extent in September 2023. P swiftly conducted remedial works in the Cockloft in around mid-October 2023.

(h) Mr. Wong adduced a further report dated 30 April 2024 (“Updated Expert Report”). The Updated Expert Report adopts the Expert Report in its entirety, and makes some further findings on quantum of damages. P was permitted to adduce the Updated Expert Report without calling Mr. Wong pursuant to the order of Master B Mak dated 31 July 2024.

C. P’s Claim

5.  P seeks an assessment of damages in regards to the following:-

(a) Costs of reinstatement works to remedy the damage caused by water seepage into the Cockloft.

(b) Consequential loss of rentals.

(c) Costs of engaging Mr. Wong to investigate the cause of water seepage.

C1. Revised Reinstatement Works

6.  P claims the following remedial works and revised reinstatement works:-

(a) Temporary remedial work.

(b) Removing debris.

(c) Cleansing rust in the reinforced bars, applying anti-rust primer onto the rebars, filling cementitious repair mortar to level the ceiling.

(d) Replastering and repainting.

(e) Third party insurance.

(f) Cleaning.

7.  This head of damages is well-established in assessment for damages caused by nuisance: see for example Lee Ling Ling Lilian v Cheng Koon Fu [2024] HKDC 1152 at §14 (per Master Chiang) and 886HK Limited & Another v Amja Nadeem [2018] HKDC 405, §9 (per HHJ MK Liu – as he then was).

8.  P has fairly acknowledged in his written submissions that he cannot double-count items that overlap. He has retracted the same. He has also retracted the costs of future remedial work. As such, the revised amount totals HK$332,980. The revised items as above appear reasonable, and are supported by Mr. Wong’s Updated Expert Report. I shall allow the same in full.

C2. Consequential Loss of Rental Income

9.  P claims lost rental income totalling HK$458,260 (being 20.83 months at a rate of HK$22,000 per month). This was during the time when the Cockloft was forced to be left vacant up until the temporary remedial works were completed.

10.  Loss of rental income is recoverable as damages consequent upon the injury caused by nuisance: see Gwong Leung Property Holdings Ltd v 黃國才 (Wong Kwok Tsoi) [2022] HKDC 946, §21 (per Master M Lam), and China Fair Land (Qingdao) Limited v Lo Sum Sum [2024] HKDC1579, §§24-49 (per DDJ I Chan)

11.  Mr. Sit has referred me to a number of photos. These photos show extensive damage from the water seepage. P also gave evidence the water seepage was severe and persistent. Having perused the materials and hearing Mr. Sit’s submissions, I accept the Cockloft could not be rented during this time. I shall allow the same in full.

C3. Costs of engaging Mr. Wong

12.  P claims for HK$15,000 for engaging Mr. Wong to investigate water seepage. This is recoverable as reasonable investigation costs pursuant to Fong Yuen Tung Nicole v Pong Yuen Kong [2024] HKCFI 1061, §§15-16 (per Master P Siu). I accept that engaging in Mr. Wong was a reasonable step to take. I allow the same in full.

13.  I order that costs follow the event. P has submitted a summary assessment of costs dated 20 November 2024. I consider the items and amounts are generally reasonable. Taking a broad-brush approach, I would summarily assess at $115,000.

D. Conclusion and Disposition

14.  In light of the above, I order that:-

(a) D shall pay the sum of HK$806,240 to P with interest thereon at the best lending rate of HSBC plus 1% from the date of the Writ of Summons (that is, 9 February 2023) until the date of this judgment and thereafter at judgment rate until full payment.

(b) D shall pay P the costs of and occasioned by assessment of damages, including today’s hearing, summarily assessed at HK$115,000, with certificate for counsel.

15.  I thank Mr. Sit for his able assistance.