SO HON MING FRANCIS v. CHEUNG LAU SHAU CHUN AND ANOTHER

DCCJ 367/2019

[2021] HKDC 1494

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 367 OF 2019

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BETWEEN

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JUDGMENT

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1.  This is a dispute between landlord and tenant regarding the liability of the tenant to make good the damage and defects allegedly found when the rented flat was returned to the landlord after the expiry of the tenancy. The matters actually involved are trivial. I echo the opening remarks made by HHJ Lok (as he then was) in his judgment in DCCJ 5074/2002[1] that such kind of dispute could, and I would add should, have been resolved reasonably and amicably between the parties. Unfortunately, the present dispute need to be resolved in court in a 3-day trial.

Background

2.  The 1^st defendant was the owner of Flat D, 11th Floor, Block 20, Baguio Villa, No 555 Victoria Road, Hong Kong (“the Flat”). The 2^nd defendant, which was a company beneficially owned by the 1^st defendant, was the owner of Carpark Space No 382 in the same Villa (“the Carpark Space”).

3.  Strictly speaking, save that the 2^nd defendant received the Deposit (defined below) together with the 1^st defendant, the disputes of the parties do not involve the 2^nd defendant or the Carpark Space. However, as the defendants all along have not sought to differentiate, I will proceed on that basis.

4.  The Flat has 3 bedrooms and is about 1,300 square feet in saleable area. It was purchased in August 1997 and registered in the joint names of the 1^st defendant and her now late husband. After purchase, the Flat was then completely renovated. The family lived there until 2001. Thereafter, the Flat has been rented out to earn rental income. The documentations produced show that various minor renovations, maintenance and repairs were done to the Flat in 2005, 2007, 2009, 2011, 2012, 2013 and 2016.

5.  By a tenancy agreement dated made on 15 October 2016 (“the Tenancy Agreement”), the plaintiff as tenant rented the Flat and the Carpark Space from respectively the 1^st and 2^nd defendants commencing on 15 October 2016 for a term of 2 years ending on 14 October 2018 at the total monthly rent of HK$51,000 (“the Tenancy”). A security deposit of HK$102,000 was paid by the plaintiff to the defendants (“the Deposit”).

6.  In anticipation of the return of the Flat to the 1^st defendant upon the expiry of the Tenancy and in the evening of 11 October 2018, there was a thorough inspection of the Flat by the daughter of the 1^st defendant Ms Cheung Po Man Susanna (“Ms Cheung”) accompanied by one Mr Mak of the 1^st defendant’s renovation contractor IS Design Interior Design & Contracting Co (“Mr Mak” and “IS Design”). Ms Cheung was the authorized representative of the defendants.

7.  By a WhatsApp message sent by Ms Cheung next morning enclosing pictures, a list of 9 items of damage and defects were pointed out to the plaintiff to remind him to make good them (“the 12 October 2018 Message”). The wife of the plaintiff Madam Ho Yuk Wah (“Mrs So”) then performed some cleaning and remedial work the same day.

8.  On 13 October 2018, all the keys to the Flat were returned to the 1^st defendant. Ms Cheung then gave the keys to the Flat to Mr Mak for him to have access to the Flat for renovation purposes.

9.  On about 29 October 2018, Ms Cheung by a WhatsApp message listed 4 items of damage and defects (again with pictures enclosed) that she said the plaintiff has not made good and enclosed an invoice from IS Design and demanded HK$6,500 as the costs to remedy those defects (“the 29 October 2018 Message”, “the 2018 Demand” and “the IS Design Invoice”). The 4 listed items were as follows and the costs quoted in the IS Design Invoice to remedy them are put in square brackets :-

“1. Room # 2 Ceiling Painting [HK$1,400]

2. Kitchen two broads [sic] and Bottom part of wood cabinet [HK$900 and HK$2,700]

3. Guess Bathroom and Balcony’s Floor and Balcony’s Glass Door Unclean [HK$600]

4. Kitchen KDK exhaust Fan – broken [HK$900]”

10.  It was stated in the same WhatsApp message that “If you accepted this invoice, landlord will deduct from [sic] the costs from the security deposit. Landlord will return the deposit to you immediately …”. The plaintiff refused to accept the liability for the said HK$6,500. The defendants did not return the Deposit.

11.  By a solicitors’ letter dated 8 November 2018, the plaintiff demanded the return of the balance of Deposit in the sum of HK$95,500 (which was the Deposit netting HK$6,500), leaving the disputed amount of HK$6,500 to be litigated.

12.  In response, the defendants by their solicitors’ letter dated 16 January 2019 revised the costs to make good the damage and defects upwards to HK$80,421 by additionally included the costs for replacing the entire lower section of the kitchen cabinet with a new one (“the January 2019 Demand”). The return of the balance of HK$21,579 (ie. deducting the claimed HK$80,421 from the Deposit) was stated to be conditional upon the plaintiff accepting liability of the said HK$80,421.

13.  On 22 January 2019, the plaintiff issued the Writ herein together with the Statement of Claim to commence this action for the recovery of the Deposit.

14.  Mrs So gave evidence for the plaintiff and Ms Cheung gave evidence for the defendants. A Joint Expert Report was compiled by Ms Lau Shan La (“P’s Expert”) and Dr Lam Siu Shu Eddie (“Ds’ Expert”). The two experts also gave oral evidence.

The repeated increase in the defendants’ counterclaim

15.  I have already noted above the increase from the 2018 Demand of HK$6,500 to the January 2019 Demand of HK$80,421.

16.  In the Defence and Counterclaim filed on 14 March 2019, the amount of loss claimed by the defendants against the plaintiff was yet again increased to HK$287,521. The increase over the January 2019 Demand consisted of loss of rental of HK$204,000 and an increase in HK$3,100 in making good the damage and defects.

17.  By the Amended Defence and Counterclaim filed on 2 December 2019, the amount of loss claimed by the defendants was yet again increased to HK$631,210 made up of an increase in the alleged loss of rental by HK$306,000 and an addition of 3 new items of damage and defects totalling HK$37,689. The 3 items newly added were costs of (a) replacing the stove (HK$3,489), (b) replacing the kitchen faucet (HK$2,000), and (c) repainting essentially the entire flat (HK$32,200).

18.  By the Re-Amended Defence and Counterclaim filed on 11 August 2021 (almost 3 years after the Flat was returned), the amount of loss claimed by the defendants was yet again further increased to HK$1,758,310. The increase consisted of the defendants claiming an addition 22 months of loss of rental income and the addition of yet another newly added item of damage and defects in the amount of HK$5,100, being the costs of replacing the doors of the lower kitchen cabinets (in addition to the claimed costs of HK$77,521 to replace the entire lower kitchen cabinet).

Overview of outstanding disputes items of damage and defects, and the claim for loss of rental income

19.  As it was not entirely clear from the Re-Amended Defence and Counterclaim, the bench enquired and the defendants initially said that their case was that they were entitled to forfeit the Deposit and then on top to claim compensation for the damage and defects. After further exchanges with the bench, the defendants confirmed that they did not allege or claim such forfeiture and further confirmed that credit need to be given to the Deposit, to the effect that if there was a balance in the Deposit after deducting the compensation, the same need to be returned to the plaintiff.

20.  Two items claimed by the defendants were agreed at the opening of the trial to be payable by the plaintiff, namely (a) labour costs for re-installing the original ceiling lighting in Bedroom 2 at HK$300, and (b) the cost of replacing two wooden shelves for the lower kitchen cabinet at HK$900.

21.  It was only in their closing submissions that the defendants abandoned their claim for replacing the ventilation fan (HK$900) and the stove (HK$3,489), which up to that stage, was hotly pursued. Even if the claim for these two items were not abandoned, I would have no hesitation in rejecting them as Mrs So’s evidence that the 20-year-old ventilation fan was damaged during the time of typhoon Mangkhut was clearly credible and the allegation that the stove was damaged by the plaintiff was clearly unsustainable on the evidence.

22.  Those said, the outstanding disputed items of damage and defects and the amounts claimed are:-

Item	Amount claimed by the defendants
Cleaning the balcony floor	HK$600
General cleaning costs	HK$1,900
Labour costs to repaint the ceiling light spot in Bedroom 2	HK$1,400
Replacing the kitchen faucet, including labour cost	HK2,300
Repainting the ceiling and walls of the living and dining areas and the 3 bedrooms	HK$32,200
Replacing the entire lower section of the kitchen cabinet with a new one	HK$77,521
Replacing the doors of the lower section kitchen cabinet	HK$5,100
Total:	HK$121,021

23.  As mentioned, the defendants also claimed the loss of rental income for 32 months in the amount of HK$51,000 each month totalling to HK$1,632,000. In the course of trial, the defendants limited their such claim to rental income for 3 months, being the time that would be required to replace the lower section of the kitchen cabinet.

The provisions in the Tenancy Agreement and the law

24.  The parties refer me to the following provisions in the Tenancy Agreement and Schedule II thereof as being relevant:-

“6. The tenant shall during the Term of Tenancy keep the interior of the Premises in good and tenantable repair and condition except fair wear and tear and damage caused by fire and white ants (not attributable to the negligence or default of the Tenant), typhoon, earthquake, and other acts of God and shall deliver up vacant possession of the Premises in the same repair and condition except fair wear and tear on the expiration or sooner determination of this Agreement.

7. The Tenant shall pay to the Landlord the Security Deposit as set out in Schedule I for the due observation and performance of the terms and conditions herein contained and on his part to be observed and performed. Provided that there is no antecedent breach of any of the terms and conditions herein contained, the Landlord shall refund the Deposit to the Tenant without interest within 30 days from the date of delivery of vacant possession of the Premises to the Landlord or settlement of any outstanding payment owed by the Tenant of the Landlord whichever is later…

…

12. The Tenant shall not make or permit to be made any alterations in or additions to the said premises without having first obtained the written license and consent of the Landlord therefore … and to take all necessary precautions to protect the premises from damage threatened by an approaching storm depression or a typhoon.

…

Schedule II above referred to

7. The Tenant shall responsible [sic] to keep the said premises in well and clean condition during the tenancy period and return same condition [sic] to the Landlord at expiry or termination of the tenancy.

8. The tenant shall responsible [sic] to having a regular cleaning for all the electrical and appliances maintain itself being long lasting which the landlord provided [sic].

…

11. If any change or additional items [sic] at the said premises, the Tenant shall inform the Landlord and keep the original items in clean and well condition return all parts to the Landlord at expiry or termination of the tenancy period.

12. “The Furniture” In addition to the said premises above, the list of “The Furniture” noted in this agreement is also included in the rental terms. Tenant must remain [sic] and maintain all well and is all to be returned to the Landlord in clean, good and workable condition (save fair wear and tear) at expiry or termination of the lease period whichever is the earlier.

13. “The Furniture in Premises”

…

4. SMEG 5 Heads Gas Stove     1 set

…

6. LEICHT Kitchen Cabinets

…

9. Air Fan                                   4 Units”

25.  Clause 6 of the Tenancy Agreement and Clause 7 in Schedule II thereof, respectively provided that the plaintiff was to return the Flat “in the same repair and condition except fair wear and tear” and “same condition” (my emphasis).

26.  Thus and in my judgment, it is clear from the said express and clear wording that the obligation imposed on the plaintiff was to return the Flat in the same condition except fair wear and tear. Therefore, to establish a breach of these clauses, it is incumbent upon the defendants to prove, among others, what the condition of the part of the Flat complained of was when the Flat was handed over to the plaintiff. Mr Lau, counsel for the defendants, argued elaborately by reference to cases and authorities on some general covenants to repair, that in the absence of evidence to the contrary, it is assumed that the Flat was in tenantable condition when the plaintiff took possession and therefore the plaintiff bears the burden of proof of showing the contrary. With respect, the argument was misconceived in view of the said clear wording of the clauses in question, and I do not accept it.

27.  In this connection and insofar as there was any suggestion or submission by Mr Lau that the plaintiff’s obligation thereunder included “renewing” any part of the Flat, I with respect do not accept it in view of the said clear wording in the said 2 clauses.

28.  Regarding the obligation to keep and deliver premises in good and tenantable repairs, the following summary of the law given in Hong Kong Tenancy Law by Malcolm Merry, 4^th ed, at p 116 was approved and applied by HHJ Lok (as he then was) in Lee Ho Seok v Kanvest Limited[2]:-

“The standard will vary with the length of the lease, the obligations to repair undertaken by tenant and landlord in other covenants, and the age, character and location of the premises at the time the lease was entered into. In one old case it was said that”

‘good tenantable repair’ is such repair as, having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it.

This means that a higher standard of repair would be expected, for instance, in a modern flat in a middle-class district than in a flat in an old tenement block in a crowded area. The character of the district and the character of the premises may change over time, so it is important to consider the nature of the location and the premises at the beginning of the lease. Where, as is common in Hong Kong, the lease is for three or fewer years these considerations are, however, unlikely to make a difference.”

29.  Mr Ma, counsel for the plaintiff, also relied on the case of Burkeman v G E Capital Europe Limited[3], which was cited with approval and applied in Lee Ho Seok’s case. The proposition advanced is that where, particularly with “attractive” property fetching high rent, potential tenants expect near perfection, if not perfection, and as fair wear and tear are excepted and expected, re-decoration between tenancies are required and often undertaken to bring the property back to perfection (or near perfection); and consequently, the task of assessing the real loss and therefore damages to be awarded is “to identify and compensate, if anything can be identified consequent thereon, for the extra redecoration necessitated by the proven or admitted breaches”[4]. In Burkeman’s case, the learned Judge applied this measure and proceeded to assess damages by identifying and compensating only the extra redecoration work necessitated by the breaches.

30.  In my view, the measure of assessment adopted in Burkeman’s case is but one of the measures the court could adopt in approaching the question of assessment of damages if the facts of the case render such a measure appropriate and fair, as it was in the facts of that case.

Cleaning costs

31.  I find, as shown by one of the pictures taken on 13 October 2018 and not seriously disputed, that there were about 20 “white dots” on the floor of the balcony that day. As above mentioned, the keys to the Flat was returned to the 1^st defendant on 13 October 2018. I thus do not accept Mr Ma’s submission to the contrary and find that the “white dots” were on the balcony floor when the Flat was returned to the 1^st defendant. When asked, Mrs So readily answered in evidence that there were no such dots on the balcony floor when she first moved in; and I so find.

32.  While I accept Mrs So’s evidence that the plaintiff and his household has done nothing to cause the white dots, the obligation to clean under Clause 7 of Schedule II was not predicated on fault or causation. It imposed a duty on the part of the plaintiff to return the Flat in the same clean condition as when the Flat was handed over to him.

33.  I also find, and again not seriously disputed by the plaintiff, that despite and after Mrs So cleaning the Flat on 12 October 2018, there remained some dark spots of mould at the corners of one of the toilets and along the edges of the lower part of the glass panel in the master bedroom toilet as depicted in 5 photographs^[5].

34.  Mr Ma submitted that those minor dark spots fell within fair wear and tear. As the operative clause is Clause 7 of Schedule II, I find that whether they were “fair wear and tear” is irrelevant as the covenant was to return the Flat in the same clean condition.

35.  The defendants claimed 2 separate sums of cleaning costs, being HK$600 and HK$1,900 respectively. The invoice dated 19 October 2018 and its receipt showed that the defendants only paid HK$1,900 for cleaning the entire Flat, including the balcony. It is quite clear to me, and I find, that the defendants would have otherwise cleaned the Flat generally to ready the Flat for rent by the next tenant. I think it fair and appropriate, like in Burkeman’s case, to assess damages at the extra cleaning costs necessitated by dealing with the said “white dots” and mould. I would assess the extra costs at HK$900.

Labour costs to repaint the ceiling light spot in Bedroom 2

36.  It is common ground that the plaintiff had changed the ceiling light in Bedroom 2, thereby exposing the part of the ceiling originally covered by the base of the old lighting, which part was grey in colour and not as white or as clean as the remaining part of that ceiling. The plaintiff has kept the original lighting and has returned it to the 1^st defendant. When the original lighting was re-installed, the spot was covered by its base again. As mentioned, the plaintiff has agreed to pay the labour costs for the reinstallation in the sum of HK$300. I therefore find that the defendants have not suffered loss in this regard and reject this claim for HK$1,400.

Replacing the kitchen faucet

37.  I accept the following evidence of Mrs So. In about December 2017, she found rust in the water coming out from the faucet and there was profuse leakage of water from the end of the handle of the faucet, as shown by a video clip. She did not contact the landlord as on a previous occasion, it took the landlord months to change the broken glass panel of the bath, and she was wary that she might have to wait as long this time. Without informing or consulting the 1^st defendant, she changed the faucet with a new one.

38.  Such circumstances notwithstanding, I hold that under Clause 12 of the Tenancy Agreement the plaintiff was obligated to obtain the 1^st defendant’s permission before he could make any alteration to the Flat, and this was one of the matters within the Clause 12. It is not disputed that the original faucet was of the same brand as the kitchen cabinet, namely LEICHT, and, although well used and aged, was of a design and colour different from the more generic one replaced by Mrs So.

39.  In the middle of trial, Mr Ma informed the court that Mrs So had in fact kept the original faucet and would like to produce it for inspection and then return, which she could have, pursuant to Clause 11 of Schedule II. Upon the defendants’ objection, I did not allow it as it was not part of the plaintiff’s pleaded case and it was by now far too late to do so.

40.  Though P’s Expert agreed that the replacement costs of HK$2,300 (including labour) was reasonable, the defendants’ claim is limited by their pleaded case of HK$2,000[6]. I therefore award the sum of HK$2,000 to the defendants.

Repainting the ceiling and walls of the living and dining areas and the 3 bedrooms

41.  The photographs produced showed a number of scuff marks and dirty areas over the emulsion painted walls in the dining and living areas and the 3 bedrooms. The more serious and apparent ones were those located near light switches around the Flat. In my view, these more serious and apparent ones were more than “fair wear and tear”.

42.  On the other hand, as shown by photographs[7], the scuff and dirty marks in some of the other areas have been effectively cleaned by Mrs So on 12 October 2018. I accept Mr Ma’s submission that after cleaning, those areas were of “tenantable and good” condition.

43.  For those other areas not cleaned effectively and the areas near the light switches, Mrs So painted over them patch by patch (“the Paint-Over”). In oral evidence, she has helpfully identified all the walls over which she has so painted, namely, almost all the walls in the master bedroom, one wall in Bedroom 2, and 2 walls in the corridor (“the Affected Walls”). It is also accepted that certain part of the edges of the door frames was also painted over with emulsion.

44.  The defendants’ complaint now is that the Paint-Over on the Affected Walls appeared as patches that were perceivably in a slightly different colour than the rest of the walls such that aesthetically speaking it was unsightly and not commensurable with the class and level of the Flat as a residence. The other complaint is that the emulsion painted over the edges of the door frames made it unsightly.

45.  Having examined the photographs depicting the Affected Walls and door frames, I agree and hold that the Paint-Over has made in the Affected Walls and the door frames failed the standard of tenantable and good repairs aesthetically.

46.  The question then is the measure of compensation, whether the costs of repainting entirely both the ceiling and all the walls in the living and dining areas and the 3 bedrooms should be awarded.

47.  The defendants accepted that there is no evidence to show that the paint or condition of the ceiling was other than in tenantable and good condition. In my view, there is little basis to award the costs to repaint the ceiling. As observed by HHJ Lok (as he then was) in Lee Ho Seok’s case[8], the outgoing tenant’s obligation does not mean that he has a duty of redecorating the leased premises to the satisfaction of the new tenant.

48.  On the other hand, I find myself unable to accept the plaintiff’s submission that no award ought to be given under this head as the defendants would have re-decorated by repainting the Flat any way. On evidence, I find rather that while the 1^st defendant often time would cause to be performed some minor redecoration and maintenance to, and touch up of, the Flat, she did not necessarily repaint the entire Flat every time between tenancies.

49.  In the round, I find it appropriate and fair to apply the measure in Burkeman’s case to award only such portion of the costs of repainting of the walls of the Flat attributable to painting the Affected Walls and door frames. In this regard, I accept the evidence of P’s Expert that the estimated total costs of repainting the Affected Walls and the door frames would be HK$7,000.

50.  Under this head, I would award HK$7,000 to the defendants as compensation.

Kitchen cabinet and its doors

51.  The kitchen cabinet was included as one of “the Furniture” under Clause 13 of Schedule II, and therefore Clause 12 thereof was engaged. To recall, Clause 12 of Schedule II reads :

“12. The Furniture” In addition to the said premises above, the list of “The Furniture” noted in this agreement is also included in the rental terms. Tenant must remain [sic] and maintain all well and is all to be returned to the Landlord in clean, good and workable condition (save fair wear and tear) at expiry or termination of the lease period whichever is the earlier.”

52.  Therefore, apart from the obligation to return the kitchen cabinet in “the same repair and condition except fair wear and tear”, the plaintiff was also obligated to “remain and maintain all well” and to return it “in clean, good and workable condition (save fair wear and tear)”. In my view, the use of the words “remain” and “maintain” in context connoted that the plaintiff was to keep it in the same condition as it was handed to him. In any case, I would also hold that if there were any ambiguity, it should be resolved by reference to the general obligation imposed by Clause 6 of the Tenancy Agreement, which would have yielded the same construction.

53.  In this regard, insofar as Mr Lau suggested or submitted that the plaintiff was obligated to return to the 1^st defendant the kitchen cabinet in “such tenantable” condition such that, even if the kitchen cabinet was not of “such tenantable” condition when it was handed to the plaintiff, the plaintiff nevertheless was required to improve it until it attained such condition, I do not accept such suggestion or submission.

54.  It follows from my above view over the construction of Clause 12 of Schedule II that I also hold that, to establish breach, it is incumbent upon the defendants to prove, among others, what the condition of the relevant part of the kitchen cabinet was when the Flat was handed over to the plaintiff. I also reiterate what I said in paragraph 26 above and reject the defendants’ submission that it would be presumed that the lower kitchen cabinet was in “tenantable” condition when it was handed to the plaintiff and the burden lied on the plaintiff to prove the contrary.

55.  At issue is the lower kitchen cabinet, it was about 2 meters in length. It is of the LEICHT brand and was installed in 1997 or 1998. It has therefore been used by the 1^st defendant’s family, then by successive tenants, totally for about 19 years before the Tenancy. It has two main compartments, each serviced by a pair of doors. The compartment alleged to have been damaged was the one beneath the kitchen sink (“the Subject Compartment”). No complaint whatsoever has been made regarding the other compartment (“the Other Compartment”). The complaints are that the plaintiff has damaged (a) two shelves, (b) the base board, and (c) the doors of the Subject Compartment (“the Shelves”, “the Base Board” and “the Doors”).

56.  The defendants’ case for claiming the costs of replacing the entire lower kitchen cabinet is that the Base Board was damaged, it cannot be repaired by replacing it alone as the Base Board cannot be dismantled without compromising the structure; and the entire lower cabinet therefore need to be replaced.

57.  To begin with, there was no evidence proffered by the defendants regarding the condition of the Subject Compartment when the Tenancy began. The defendants only gave evidence as to the general condition of the Flat immediately before the Tenancy in paragraph 4 of the witness statement of Ms Cheung. It consists of but one short sentence: “本人於租約開始之前，拍攝了一輯照片及清潔單位，顯示該單位的狀況。”[9]. Notably and despite the fact that the lower kitchen cabinet was by far the costliest item alleged to have been damaged, Ms Cheung has said nothing in her witness statement about the condition of the lower kitchen cabinet, not to mention specifically the Subject Compartment.

58.  So far as pictures are concerned, in the trial bundles, there are numerous such pictures of various parts of the Flat taken before the Tenancy, including pictures taken by the last tenant, taken before IS Design renovated the Flat in early October 2018, and those taken after the renovation. Many of these pictures even show the condition of the inside of all the wardrobes, even the inside of the cupboards in the lavatories. However, none shows the inside of the lower kitchen cabinet.

59.  It was when answering a question put to her during re-examination, as a question following from the court’s, that Ms Cheung said for the first time in the whole action that the condition of the Base Board and the Doors was good before the Tenancy. She further added that prior to handing over the Flat to the plaintiff, she had paid attention to the condition of the lower kitchen cabinet and noticed that the condition was good.

60.  However, in the 12 October 2018 Message which was sent after the thorough inspection by Ms Cheung and Mr Mak the night before, Ms Cheung only complained about the Shelves being damaged by water thus: “廚房櫃兩塊木板，租客把櫃板放在其他櫃而damage需要賠償因為租客沒有提早通知業主有流水 [sic] 情況，所以導致今日的結果客人需要負責”[10]. There was no other complaint relating to the kitchen cabinet.

61.  Then, in the 29 October 2018 Message, Ms Cheung only wrote “2. Kitchen two wood broads [sic] and Bottom part of wood cabinet” and a picture depicting the inside of the Subject Compartment and another depicting the Shelves being placed on the balcony floor were enclosed. It can be seen from the former picture that there was no visible damage to the Base Board save that its edge was abraded. The alleged damage to the Doors was not even mentioned, or pictures about the damage to the Doors taken.

62.  In her witness statement dated 25 November 2019, Ms Cheung only said the following in relation to the lower kitchen cabinet:-

“8. ….以下列出我當天 [2018年10月11日]發現的問題:-

…

(8) 露台：我發現兩塊木板放在露台的地面上。木板的狀況是霉霉爛爛，地上還有紅紅啡啡的印。我立刻問蘇太這是什麼一回事。蘇太告訴我這兩塊是廚房裏櫃內的層板。我問她發生什麼事情。她告訴我她想打算在廚房櫃裏木板幫業主清洗木板，所以她拿到露台。…

(9) 由於廚房的兩塊木板有問題，我、麥生和蘇太走進廚房來了解情況。蘇太告訴我這是由於水龍頭漏水，她起初沒有發現直至她發現櫃邊有水流出，她才知道水龍頭漏水。而且她自己沒有告訴被告人這樣情況之下，自己更換水龍頭。我問她為什麼不知道這事及通知業主或麥先生。蘇太也沒有告訴我在何時發生的。然後我問她為什麼這兩塊層板會在洗手盆下。這兩塊原本放在哪裏。蘇太告訴我這兩塊層板是放在隔離的櫥櫃。我問她為什麼把層板轉移到洗手盆下。她告訴我她隔離邊的櫃她用來放其他東西所以她將層板轉放在洗手盆下的櫃裏。我當時對她這樣說法非常意外。蘇太當時沒有提及任何其他原因影響層板的問題。

…

16. 為了息事寧人，我跟我的裝修師傅研究，是否可以只將底層被浸濕的地方處理，可否解決櫥櫃下層的底部浸濕了。但裝修師傅認為這做法會引起問題。…”[11]

63.  Again, it was the Shelves that Ms Cheung was talking about there. Notably, in the witness statement she did not say anything further about the lower kitchen cabinet, particularly about finding, during the inspection on 11 October 2018 or subsequently, that the Base Board was damaged by water or that the Doors was damaged by the plaintiff.

64.  Pausing here, I divert to mention that the plaintiff fully accepts that the Shelves were damaged by water for which she is liable to compensate at the claimed costs of HK$900.

65.  The damage to the Doors now complained of clearly would have been very noticeable and visible as it consisted of damage to the upper corners of both Doors – the wood there expanded and bulged out, the laminated layer lost or disconnected in some areas and certain transparent plastic tapes were applied as an attempted fix[12].

66.  Therefore, if the condition of the Doors were indeed good at the beginning of the Tenancy and so visibly and noticeably damaged by the plaintiff, it would be most surprising and most highly improbable that Ms Cheung did not notice it, did not made any record, and did not complain about it on all the occasions above-mentioned. I do not find credible or reliable Ms Cheung’s evidence that the condition of the Doors was good prior to the Tenancy and I reject her such evidence.

67.  Moreover, it can be seen from photographs[13] that the doors of the Other Compartment suffered from the same type of damage as the Doors, albeit in a less serious condition than the Doors. Ds’ Expert also said that during his inspection he found plastic tapes were also applied there as an attempted fix. Yet, there was no complaint whatsoever regarding the plaintiff having damaged the doors of the Other Compartment. I find such lack of complaint completely inconsistent with the defendants’ case that the doors to the lower kitchen cabinet were all in good condition at the beginning of the Tenancy. In my view, the lack of complaint indicated that the defendants accepted that such was the condition of the doors of the Other Compartment prior to the Tenancy. Bearing in mind that at the back of the right side door of the Doors was placed the rubbish bin and therefore every time one throws garbage one has to open that door, therefore, that door would have seen much more use than the others. I therefore find the (damaged, albeit less seriously) condition of the doors to the Other Compartment indicative of the condition of that much-more-used right side door of the Doors, which as said would have been subject to much more use and wear and tear.

68.  In all, I do not find it proved that the Doors were in good condition when the Flat was handed over to the plaintiff.

69.  The parties’ experts carried out a joint inspection of the lower kitchen cabinet, among others, on 9 July 2019.

70.  On the physical condition of the Base Board, P’s Expert opined that no other damage was found save the abraded edge.

71.  Ds’ Expert opined:-

“The baseboard … shows signs of damage along the edge facing the cabinet doors. Surface of the baseboard is “chipped off” damaging both the surface finishes and the inner wooden structure…”[14]

72.  In oral evidence, Ds’ Expert confirmed clearly and expressly that (a) when he wrote in the quoted paragraph above that the surface is “chipped off” damaging the surface finishes, he referred to the abrading of the edge, (b) when he wrote “damaging … the inner structure”, he meant that at one or two spots where the edge was more seriously abraded, more than the surface but some of the wood was also chafed, and (c) there was no structural damage found to the Base Board.

73.  Ds’ Expert was also shown a picture of the lower cabinet after the defendants replaced the Doors in 2020 which depicted two plastic devices (containing magnets for keeping the doors closed) were secured by 4 screws affixed at the edge of the Base Board[15]. He accepted that it showed that the structure of the edge of the Base Board was sound.

74.  On the above evidence, I find that the physical condition of the Base Board was that it has no structural damage, whether by water or otherwise, and the only damage to it was that its edge was abraded.

75.  I prefer the opinion of P’s Expert over that of Ds’ Expert, that the said abraded edge was within the range of fair wear and tear, bearing in mind that the kitchen cabinet has been so used for 20 years.

76.  In the premises, I find not established the defendants’ claim against the plaintiff for the costs of replacing the lower kitchen cabinet or the doors thereof.

Loss of rental

77.  The latest version of the counterclaim claimed over HK$1.6 million under this head of damage. Bearing in mind the defendants’ duty to mitigate loss, there seems to me little merits in this claim. In the middle of trial, the defendants abandoned all but a claim for rental of 3 months (HK$153,000) as the time required to repair the lower kitchen cabinet.

78.  Having rejected the defendants’ claim over the lower kitchen cabinet, the said claim for loss of rental falls with it. In any event, it is clear from the evidence that the 1^st defendant would have performed, and did perform, minor renovation, maintenance and touch up to the Flat between tenancies and there is no evidence to show that the items of repairs I find for above would have taken any longer time than the usual minor renovation.

Conclusion

79.  The plaintiff is liable to compensate the 1^st defendant for the following repairs or defects, totalling to HK$11,100:-

(a) labour costs for re-installing the original ceiling lighting in Bedroom 2 at HK$300;

(b) the cost of replacing two wooden shelfs for the kitchen cabinet at HK$900;

(c) cleaning costs at HK$900;

(d) replacing the kitchen faucet at HK$2,000; and

(e) costs of repainting at HK$7,000.

80.  It is common ground that the 1^st defendant would need to reimburse the plaintiff the costs of changing the gas pipes he paid on behalf of the 1^st defendant at HK$650.

Disposal

81.  In the premises, I find for the plaintiff’s claim and enter judgment against the defendants in the sum of HK$91,550 (HK$102,000 + HK$650 – HK$11,100) with interest at Prime Rate from the date of Writ to the date of this judgment and thereafter at judgment rate until full payment.

82.  I dismiss the defendants’ counterclaim.

83.  The defendants have repeatedly over many times added new items of claim and increased the amount claimed from initially HK$6,500 to ultimately over HK$1.7 million. Many of the items were abandoned, some turned out to be unsubstantiated or unmeritorious, some of which ought never have been claimed at all, and most of them quite unreasonable. Such conducts unnecessarily and unreasonably increased costs and were oppressive. But for such conducts, this dispute could have been sensibly, reasonably and speedily resolved in the Small Claims Tribunal with minimal time and expense. This court finds such conducts an affront and presently thinks it appropriate to order costs to be taxed on indemnity basis. I therefore order, on a nisi basis, that the defendants do pay the plaintiff his costs of this action, including the costs of the counterclaim and all costs reserved, to be taxed on an indemnity basis, with certificate for counsel, to be taxed if not agreed.

84.  I thank counsel for their assistance.