Lucky Fact Garments Ltd and Another v. Kwok Chi Kuen t/a Global Interior Design and Another

DCCJ 5742/2019

[2023] HKDC 972

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5742 OF 2019

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BETWEEN

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JUDGMENT

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A. Introduction

1.The 1^st plaintiff was and is the owner of House No 27, The Riviera, No 10 Pik Sha Road, Sai Kung (“the House”). The 1^st plaintiff is owned by the 2^nd plaintiff (“Mr Wong”) and his wife. Mr Wong and his family have been residing at the House since 2000. For this action, it appears insignificant to distinguish between the 1^st plaintiff and the 2^nd plaintiff. Hence, unless the context requires otherwise, I will just refer to the plaintiffs collectively.

2.The plaintiffs now seek damages against the 1^st defendant (“Mr Kwok” or “GiD”), who was engaged by the plaintiffs to renovate the House in 2014, for losses allegedly arising out of substandard work.

3.The plaintiffs also claim against the 2^nd defendant (“B2”) for the return of $120,000.00 they paid as “supervision fees” for the renovation.

4.This trial was unfortunately truncated because a witness was tested positive for COVID-19 on the 3^rd day of trial. I am grateful to Mr Paul Wong, appearing for the plaintiffs; and Mr Ho Sing Wai, appearing for the defendants, for finishing the evidence and the closing submissions in 2 consecutive days when the trial resumed in January 2023.

B. The contracts

5.Through some introduction, Mr Wong approached B2 to come up with the design for the renovation of the House.

6.By a design quotation dated 11 November 2013^[1], which was signed by B2 and Mr Wong, B2 was engaged to come up with design drawings, sample materials, and constructions drawings, as listed from Items 1.0 to 5.0 therein. Item 6.0 was for supervision at the site, which was said to include meetings at the site, explanation of the drawings to the contractor, and progress inspection. B2 was to charge $20,000.00 per month for a maximum of 6 months for providing such supervision.

7.There is no dispute that B2 came up with the drawings as required under the Supervision Contract, and it was paid by the 1^st plaintiff’s cheques totalling $120,000.00. Although this was initially demurred, Mr Ho stated in his closing submissions that the plaintiffs’ claim for the return of the supervision fees would no longer be challenged. Hence, I need say no more as to the circumstances in which the supervision fees were paid, and the dispute formerly separating the parties.

8.After a period of seeking quotations on the basis of B2’s drawings, GiD was selected to be the contractor to renovate the House. GiD and the 1^st plaintiff signed a contract for the renovation of the House on 28 February 2014 at $3.6 million (“the Main Contract”). It was a term of the Main Contract that GiD would provide service as per the items listed in its quotation (“GiD’s quotation”). GiD’s quotation should also be read together with B2’s drawings, which were stated to be in their 6^th revision dated 27 January 2014^[2].

9.I do not see the benefit of setting out the works in GiD’s quotation in full. However, I think it is useful to outline B2’s drawings to better understand the layout of the House, and also the extent of the renovation:-

9.1 The ground floor of the House consisted of an elevated entrance, a garage, and various indoor storage area. Item 6.1.3 of GiD’s quotation referred to the resurfacing of the garage with carborundum. Item 9.0 referred to the construction of a new glass canopy covering the garage and the entrance, and various miscellaneous works around the entrance.

9.2 The elevated entrance led to the raised internal area of the ground floor, which comprised the stairs leading to the upper floors, a guest room, and a guest bathroom. This area was stated as the mezzanine floor in the quotation, the works relating to which were set out in Item 10.0.

9.3 The 1^st floor comprised the living room, and dining room, an open kitchen next to the dining room, a guest toilet, an enclosed kitchen and a garden. From the drawings and Item 11.0 of GiD’s quotation, the enclosed kitchen and the garden were to be newly constructed with sky windows in the ceiling. In the evidence, the structure enclosing the garden was described as the glass house.

9.4 The 2^nd floor comprised the en-suite master bedroom and a multi-purpose room. Item 12.0 of GiD’s quotation set out works for this floor. In particular, Items 12.1 to 12.3 stated that new cabinets and wardrobes were to be installed; and Item 12.5 referred to the construction of a new headboard for the master bed, which the plaintiffs would supply the leather materials required.

9.5 The works related to the roof of the House were set out in Item 13.0 of GiD’s quotation. The roof consisted of internal structures and an outdoor garden of around 150 sq ft. Item 15.0 referred to waterproofing works to be carried out to the floor of the roof, presumably referring to the garden area.

10.I tend to agree with Mr Paul Wong’s description in his opening that the Main Contract sought to destroy everything visible and rebuild everything afresh as a new house, save and except the fundamental structures.

11.The Main Contract provided for a warranty period of 1 year. Further, under Item 15.1 of GiD’s quotation, GiD agreed to provide 2-year free maintenance for the waterproof works to be carried out to the floor of the roof.

12.The plaintiffs paid a total of $3,240,000.00 to GiD on divers dates. The outstanding sum of $360,000.00 remains unpaid to date.

13.It is not in dispute that additional works were later requested to be included to the renovation. The plaintiffs say GiD issued the following variation orders:-

13.1 Variation Order 1 (“VO1”) dated 5 August 2014, in the amount of $49,800.00;

13.2 Variation Order 2 (“VO2”) dated 10 September 2014, in the amount of $86,395.00;

13.3 Variation Order 3 (“VO3”) dated 15 December 2014, in the amount of $138,780.00^[3];

13.4 Variation Order 4 (“VO4”) dated 10 December 2014, in the amount of $208,400.00;

13.5 Variation Order 5 (“VO5”) dated 12 February 2015, in the amount of $26,798.00.

14.The plaintiffs accept that all of the above except VO5 remain payable but unpaid. The unpaid sums come to $483,375.00.

15.GiD claims that the amount invoiced in VO5 should be $55,258.00^[4]. He further claims that there was a further Variation Order 6 (“VO6”) dated 24 August 2015^[5] in the amount of $53,000.00, which is also unpaid. Therefore, the defendants state that the outstanding sum to be paid for VO1-6 should be $564,835.00^[6]. The plaintiffs dispute the liability to pay an additional $28,460.00 under VO5, and the whole of VO6.

16.Whilst the evidence does touch on it, it is in my view not necessary to determine whether there was any delay in the completion of the renovation works. It is sufficient for me to note that Mr Wong and his wife moved back into the House on 8 December 2014. Since then, the plaintiffs complained that GiD’s craftsmanship was substandard. Also, its work allegedly caused water seepage at various places in the House, which brought about further damage and inconvenience.

17.I am now asked to decide the following matters:-

17.1 Whether, in additional to the 1^st plaintiff, Mr Wong was also a party to the Main Contract;

17.2 Whether GiD’s renovation of the House was defective as alleged by the plaintiffs; and if so, what ought to be the damages to be awarded; and

17.3 Whether GiD’s renovation caused water seepage at various places in the House in 2015 as alleged by the plaintiffs; and if so, what ought to be the damages to be awarded.

C. Whether Mr Wong was a contracting party

18.The parties ask me to adjudicate on this issue because the plaintiffs claim damages for loss of enjoyment of the House. It seems to be their considered view that, since the 1^st plaintiff is a corporate claimant, it cannot claim damages for loss of enjoyment. Thus, Mr Wong has to join in this action as an additional claimant to make such a claim.

19.As I see it, there is no need for me to adjudicate on this issue. My reasons are:-

19.1 In paragraph 33 of the Amended Statement of Claim, the plaintiffs aver that they suffered from, inter alia, loss of enjoyment of the House as a result of GiD’s negligence and/or breach of the Main Contract. The cause of action in negligence covers both the alleged defective renovation works, and the alleged water seepage caused by such works – paragraph 11 of the same pleading pleads that GiD owed a duty of care to the plaintiffs; and paragraph 15 claims that GiD carried out the renovation works negligently and in breach of its contractual duty. I do not think there is much dispute that a corporate claimant may claim damages for loss of enjoyment in tort. The issue whether a corporate claimant can also claim such damages in contract appears to me to be largely academic for this action.

19.2 In any event, I think it is not difficult to conclude that the 1^st plaintiff can claim damages for loss of enjoyment in the context of this action. Mr Wong’s family must have occupied the House as the 1^st plaintiff’s licencees. As such, the 1^st plaintiff was inconvenienced when Mr Wong could not enjoy the House allegedly because of GiD’s defective works. The court can thus award damages to compensate for the 1^st plaintiff’s inconvenience if it finds in favour of the plaintiffs.

D. The alleged defective works

D1. The alleged defects

20.It is the plaintiffs’ case that Mr Wong discovered various defects with the renovation after he moved back into the House. He engaged a surveyor to inspect the House, and came up with a Defect List in January 2015. The Defect List set out 45 items of work to be remedied by GiD.

21.It appears that GiD did try to rectify the defects identified on the Defect List, but disputes ensued. The plaintiffs then further engaged Assured Reliance (Hong Kong) Ltd, which sent Mr Eric Tsang (“Mr Tsang”) to the House for inspection on 2 April 2015. He conducted a further inspection at the House on 12 May 2015.

22.Mr Tsang prepared a survey report on 22 May 2015, in which he identified the defects that required remedy. The defects he identified during the inspection on 2 April 2015 were numbered 1 to 28. Further defects now numbered B1 to B7 were identified during the inspection on 12 May 2015. These defects become the particulars pleaded in paragraph 15 of the Amended Statement of Claim, in which the plaintiffs claim that GiD breached the Main Contract.

D2. Expert evidence on the alleged defective works

23.It is now necessary for me to set out how expert evidence is adduced in the present case. I shall first focus on the expert evidence relating to the alleged defective works. I shall set out the same relating to the alleged water seepage in the next section.

24.By way of the Consent Order dated 31 July 2017, the plaintiffs nominated Mr Tsang as their expert to comment on the alleged defective works. They also sought to adduce Mr Tsang’s report dated 22 May 2015 as evidence. The defendants nominated Mr Yu Lik Sang (“Mr Yu”) as their expert, who carried out an inspection of the House on 13 July 2016 regarding the alleged defective works. Directions were given for a joint inspection to be arranged, and the preparation of a joint expert report therefrom.

25.However, the plaintiffs found out in September 2017 that Mr Tsang passed away. This necessitated an application by the plaintiffs to nominate Ms Lau Shan La (“Ms Lau”) to replace Mr Tsang. By the Order of Master M Wong dated 23 May 2018, leave was granted to the plaintiffs to appoint Ms Lau to replace Mr Tsang. But since the plaintiffs already made repairs to the House in 2015 after Mr Tsang’s inspections, Ms Lau was allowed to adopt Mr Tsang’s report as her evidence relating to the alleged defective works.

26.By way of the Amended Order of Master Rita So dated 3 December 2020, Ms Lau and Mr Yu were directed to hold a without prejudice meeting, and to prepare a joint statement on the alleged defective works. Standard directions were also given on the content of the joint statement.

27.One would expect Ms Lau and Mr Yu would be able to produce the evidence as directed by the court. This court is presented with the following documents in relation to the expert evidence on the alleged defective works:-

27.1 Mr Tsang’s report dated 22 May 2015, which was adopted by Ms Lau^[7];

27.2 Mr Yu’s report dated 15 November 2017 (“Mr Yu’s 2017 report”)^[8];

27.3 A joint statement on the alleged defective works dated 10 June 2021 (“the Joint Statement”)^[9].

28.To describe the Joint Statement as a piece of collaborative work by Ms Lau and Mr Yu is a gross misstatement. According to Ms Lau, which I hear no substantial dispute from Mr Yu, the Joint Statement was prepared in the following manner:-

28.1 Ms Lau prepared the first draft of the Joint Statement by setting out the introductory paragraphs and the format. In paragraph 3.0, she prepared a table itemizing the defects pleaded in paragraph 15 of the Amended Statement of Claim, and entered her opinion in the relevant column. She left blank the columns for GiD’s case and Mr Yu’s opinion, and passed the draft to Mr Yu. She thought, which I find wholly reasonable, that Mr Yu would complete the 2 blank columns and pass the draft back to her for further handling.

28.2 Instead of completing Ms Lau’s table, Mr Yu prepared a “Supplemental Joint Expert Report”, in which he first reproduced Mr Yu’s 2017 report. He then prepared his own table setting out his views in response to Mr Tsang’s report. The descriptions “Supplemental” and “Joint” were, with respect, misleading, because (i) Ms Lau was not involved at all; and (ii) Mr Yu’s opinion in this part was not supplementary because he did not express any opinion in the Joint Statement to begin with.

29.Needless to say, there was a total disconnect of the evidence of Ms Lau and Mr Yu. In short, the Joint Statement has failed spectacularly to (i) allow this court to understand the expert evidence relating to the alleged defective works in a convenient manner; (ii) narrow down (if at all possible) the differences between the experts; (iii) identify the bases of the differences still separating the experts. Worse still, the way in which the expert reports and the Joint Statement scattered amongst the different box files of the trial bundles turned the preparation of the trial and this Judgment no less than an adventure in the Amazon.

30.This court shall not shy away from the fact that, because the trial judge did not case-manage the expert evidence (which is largely the norm for cases in the general list), and did not preside over the Pre-Trial Review (which is largely an administrative issue), the abysmal state of the expert evidence was not properly attended to prior to the commencement of the trial. Nevertheless, in my judgment, the parties and their legal representatives are no less to blame for the state of the expert evidence, either as a matter of substance, or as a matter of its presentation. I shall come back to the duties of the legal representatives when I consider the appropriate costs order for this action.

31.Be that as it may, I think I shall consider the following regarding the alleged defective works:-

31.1 Whether the plaintiffs have proved, on a balance of probabilities, that the alleged defects factually existed, in the manner particularized in paragraph 15 of the Amended Statement of Claim;

31.2 Insofar as the alleged defects factually existed, whether they existed because of GiD’s breach of the Main Contract;

31.3 Insofar as GiD breached the Main Contract (if at all), what ought to be the damages for each defect.

D3. Whether there were indeed defects as alleged – general matters

32.The plaintiffs rely on Mr Wong’s evidence, other contemporaneous evidence, and the expert evidence to prove that the alleged defects did exist.

33.As a general observation, it may sound incorrect in law for me to look at the expert evidence to decide the factual issue of the existence (or otherwise) of the alleged defects. But one cannot lose sight of the reality that the experts in this action expressed their respective opinion based on a set of facts that they respectively observed. In my view, the court is entitled to look at the record the experts made on the objective facts (or indeed, the lack thereof) as secondary evidence to come to a factual finding.

34.I am acutely aware that Ms Lau did not actually witness the existence of the alleged defects, because by the time she was appointed as the plaintiffs’ expert, repair works had already been carried out. Ms Lau also accepted under cross examination that she simply treated the defects identified by Mr Tsang’s report as true and accurate. GiD can certainly complain that it is disabled from testing the veracity of the facts stated and opinions expressed in Mr Tsang’s report. This goes to the weight to be assigned to Ms Lau’s evidence.

35.But insofar as GiD may suggest that the plaintiffs thus fail to prove their claim on the alleged defective works, I do not think the claim can be so disposed of summarily. Ms Lau’s reliance on Mr Tsang’s report was expressly allowed by the court. It remains for the court to consider the weight that should be assigned to the plaintiffs’ evidence, bearing in mind GiD’s inability to meaningfully test the evidence in Mr Tsang’s report, and come to a conclusion on whether the plaintiffs successfully prove their case.

36.Whilst it has never been expressly spelt out by the defence, GiD appears to also argue that the plaintiffs are somehow estopped from raising defects other than those already contained in the Defect List. Hence, GiD cannot be held liable for defects not found in the Defect List, even assuming they did exist as a result of GiD’s substandard work.

37.I must reject any attempt to limit the plaintiffs’ case to the Defect List. The Main Contract does not limit GiD’s liability to defects submitted by the plaintiffs by way of a list by certain date. There is equally no evidence to show that the plaintiffs agreed to limit their claim to the defects identified in the Defect List. I also find such argument defies common sense, as there might be latent defects which could only be discovered some time after the submission of a defect list – which plainly is what the plaintiffs claim to have happened in the present case. Mr Ho does not appear to have placed heavy reliance on the term in the Main Contract that GiD only provided warranty for 1 year after the completion of the renovation, nor do I see such an argument expressly relied on in the Amended Defence and Counterclaim.

38.I now consider each of the alleged defects as numbered in Mr Tsang’s report, which the parties also adopted in their pleadings and at trial.

D4. The alleged defects

39.Defect No 1 – the flooring of the garage was substandard; the surface was uneven at places and there were indelible patches. The plaintiffs claim $55,000.00. This was revised down to $45,500.00 as per Ms Lau’s assessment.

40.Item 6.1.3 of GiD’s quotation stated that the garage would be resurfaced with carborundum^[10] for $45,500.00.

41.It is apparent from the evidence that Mr Wong was not satisfied with the flooring shortly after he moved back into the House. In the WhatsApp messages he sent to Ms Fannya Chiu, GiD’s project manager, on 13 January 2015, he already asked Ms Chiu to rectify the flooring as soon as possible^[11].

42.One of the (undated) photos discovered by the defendants show the quality of the carborundum flooring^[12]. There were sizeable light-coloured patches towards the outer part of the garage, which appeared to me to be the result of the carborundum having weathered away. I find that Defect No 1 did exist, and GiD’s work was indeed substandard.

43.GiD resurfaced the garage with Epoxy resin some time early February 2015. There is a dispute as to whether this was done as rectification of defect (hence free of charge, as the plaintiffs submit), or as additional work requested by the plaintiffs (hence chargeable, as GiD submits).

44.GiD issued VO6 on 24 August 2015 and charged $53,000.00 for the removal of the carborundum flooring and the resurfacing by Epoxy resin. Mr Kwok was cross examined as to why he only issued an invoice months after completion of the works, and after the plaintiffs commenced this action. Mr Kwok gave multiple explanations. He first said there was not much reason to account for the delay. He thought that he would repair the carborundum for Mr Wong, but he was then requested to redo the garage floor. He then said his contractors chased him for money, but the plaintiffs had yet to fully pay up on the Main Contract, so he issued VO6 to the plaintiffs. He then said that he might have forgotten to issue an invoice earlier, so VO6 was only issued in August.

45.Upon further cross examination, Mr Kwok said that, although he told Mr Wong that he would charge extra if he had to redo the garage floor, there was no specific agreement that he could charge $53,000.00. Mr Wong was allegedly in a hurry to use the garage, so he did it for Mr Wong first.

46.I do not accept Mr Kwok’s evidence as credible. The different explanations are at odds with each other. The timing of the issue of VO6 was also at odds with how GiD charged for other variation works. Even taking Mr Kwok’s evidence to the highest, one cannot distil a complete agreement to vary the Main Contract for resurfacing the garage floor with Epoxy resin.

47.Hence, I reject GiD’s counterclaim on VO6.

48.This leaves the question whether the Epoxy resin surface was still substandard, so that it was reasonable for the plaintiffs to remedy it further. In fact, Mr Wong engaged contractors in 2015 to resurface the garage floor with ceramic tiles.

49.Mr Tsang’s report contained photos of the condition of the Epoxy resin flooring. I agree with the opinion of Mr Tsang and Ms Lau that the surface remained uneven, with patches and indelible marks scattering around. I note that Mr Yu effectively expressed no view on the standard of the Epoxy resin surface in his reports. His answers under cross examination were also unhelpful.

50.Whilst the plaintiffs spent more than $45,500.00 to resurface the garage floor by ceramic tiles, I will just award $45,500.00 based on their concession.

51.Defect No 2 – a piece of wooden slat at the garage was too short. GiD accepts liability and agrees to pay $500.00 as claimed.

52.Defect No 3 – the distribution box installed in the garage was installed at the wrong place. The plaintiffs claim $4,500.00 for the reinstallation works.

53.In Mr Tsang’s report, it was stated that Mr Wong had requested GiD to relocate the distribution box originally inside the garage, but GiD only installed a new one inside the storage room on the ground floor without removing the original one. In item 4 of the Defect List, it was stated that the distribution box should be relocated inside the storage room on the ground floor.

54.Mr Ho argues that Item 4.1 of GiD’s quotation only referred to the construction of 3 new distribution boxes, which did not include any relocation works.

55.In my judgment, it must be implicit in Item 4.1 of GiD’s quotation that the original distribution boxes would be disposed of. It did not make any commercial sense for the renovation works to double the number of distribution boxes in the House. I reject GiD’s argument.

56.Mr Yu gave no assessment on the cost of removing the original distribution box in the garage in case it was GiD’s duty to do so. I accept the plaintiffs’ claim of $4,500.00 as reasonable.

57.Defect No 4 – a piece of wooden slat at the garage was loose and partly detached. GiD accepts liability and agrees to pay $300.00 as claimed.

58.Defect No 5 – stones on the pillars at the entrance of the House were not clean. GiD accepts liability and agrees to pay $1,000.00 as claimed.

59.Defect No 6 – the number plate of the House at the entrance was not installed with lighting. The plaintiffs claim $3,500.00.

60.Item 9.1 of GiD’s quotation stated that a new stainless steel house number plate should be constructed on the marble pillar at the entrance. In fact, Mr Tsang appeared to recognize that the parties did not actually agree that lighting must be installed on the number plate. It was his view that GiD did not make any alteration to the number plate.

61.Therefore, whilst GiD is right to point out that adding lighting was never part of the Main Contract, it remains to be decided whether GiD did construct a stainless steel number plate as per Item 9.1.

62.Apart from Mr Tsang’s Report stating that no alteration was done, there is no other evidence to suggest what the number plate looked like prior to the renovation. I note that Mr Kwok’s comment in the Defect List was that confirmation was sought to replace 2 pieces of marble, and the number plate would not be kept. On a balance of probabilities, I infer that Mr Kwok accepted that the number plate then existed was at odds with the requirement of the Main Contract, and hence he agreed to remedy as per the plaintiffs’ request. On this basis, I find for the plaintiffs. Mr Yu gave no opinion on the rectification cost. I accept Mr Tsang’s assessment of $3,500.00.

63.Defect No 7 – the decorative panels covering the staircase near the entrance were not evenly installed. The plaintiffs claim $5,000.00 as the replacement cost.

64.Ms Lau was of the view that the different pieces of decorative panels were not on even levels, so it felt like a cut to the hand when one touched across 2 panels. She opined that the panels might be of incorrect sizes, so they had to be replaced.

65.In his closing, Mr Ho accepts that the panels were defectively installed, but he submits that it could be remedied, as Mr Yu opined, by adjusting the hinges of the hidden drawers within the staircase structure. This would only cost $1,500.00.

66.I prefer the plaintiffs’ evidence. Mr Yu gave no details on the structure of the hidden drawers within the staircase. It is not understood how tightening the hinges of the drawers could level the decorative panels. I think it is more likely to be the case that the panels were improperly sized or improperly constructed, such that replacement is necessary.

67.I award $5,000.00 for Defect No 7.

68.Defect No 8 – the stainless steel supporting beams of the glass canopy over the entrance and the garage were rusty. The plaintiffs claim $50,000.00 as the replacement cost.

69.The supporting beams were replaced by the plaintiffs’ contractors in 2015 at a cost of $43,200.00^[13]. By the time Mr Yu inspected the House, he could not ascertain the extent of the alleged rusting of the beams. He suggested that rust could be removed by cleaning, costing $1,500.00. However, he accepted that it was not normal for the beams to become rusty only a few months after installation.

70.Mr Wong under cross examination stated that the rust would reappear after cleaning. I accept Mr Wong’s evidence as credible in this aspect. I find that the photos included in Mr Tsang’s Report show that the supporting beams were stained with rust. I do not accept that the stains were simply dirt, as these beams ought to have been fairly well protected from the elements by the glass canopy. I conclude that the stainless steel beam supplied and installed by GiD were indeed defective, and GiD was in breach of the Main Contract for supplying substandard materials.

71.I accept that the beams should be replaced. Since the plaintiffs only spent $43,200.00, this is the sum I will award them.

72.Defect No 9 – the 1^st floor balcony was almost at even level with the living room, which might cause overflowing of water when the drainage holes in the balcony were clogged. The plaintiffs claim $8,000.00.

73.In Mr Tsang’s report, it was stated that the balcony was around ½ inch lower than the living room. In the Joint Statement, Ms Lau referred to government standards that the level of a balcony should be lower than the indoor level to prevent overflowing of water. But she stopped short of suggesting what ought to be the reasonable level difference in terms of measurements.

74.There were 2 drainage holes within the balcony. There is no evidence that the drainage holes were ineffective. Whilst there is of course a lower risk of overflowing of water if the level difference between the balcony and the living room was larger, I do not think the plaintiffs have shown on a balance of probabilities that GiD’s work was substandard.

75.I reject the plaintiffs’ claim for Defect No 9.

76.Defect No 10 – indelible stains were found in the marble floor on the 1^st floor. The plaintiffs claim $500,000.00 as the replacement cost. The marble floor was put together by marble slabs ordered from another contractor.

77.The plaintiffs aver that, before the marble slabs were laid, there was an incident of water leakage when pipes were laid under the floor of the 1^st floor. But GiD failed to ensure that the floor was sufficiently dry before the marble slabs were laid on top. As a result, the dampness under the floor penetrated through the marble slabs and left rusty stains on them^[14].

78.It was stated in Mr Tsang’s report that stains or noticeable repair marks were noted on 35 marble slabs. One can see from the photos attached by Mr Tsang that yellow stains and/or black spots could be seen on the marble slabs, which were greyish in colour. Mr Wong also complained about the existence of rusty stains in the Defect List (item 17).

79.GiD does not accept there were as many as 35 slabs with stains or marks. Mr Yu stated that he could only identify marks on 3 slabs.

80.Mr Wong sent WhatsApp messages to Ms Chiu on 9 March 2015. He stated that there were rusty stains appearing on the marble floor. On 18 March 2015, they further messaged on the quality of the marble slabs. Mr Wong said he understood that the slabs would only be changed if they could not be repaired^[15]. From these messages, one can see that GiD did try to repair the stained slabs. However, it appears that Mr Wong remained unhappy with the quality of the marble floor, as he arranged Legend to replace it for the living room, dining room and the kitchen in 2015. Legend charged him $88,200.00 as the labour cost. Although I am provided with another invoice from Legend dated 30 July 2015 stating that it charged the plaintiffs $82,405.00 as the cost for buying marble^[16], there is no evidence confirming that this was indeed the replacement marble slabs used by Legend.

81.It appears to me that Mr Yu could only identify stains on 3 marble slabs because replacement works were done prior to his inspection in July 2016. Therefore, what he could observe by then was not representative of the state of the marble floor when Mr Tsang inspected the House in April 2015.

82.Considering the evidence as a whole, I accept the plaintiffs’ evidence that there were indeed stains or indelible marks on 35 marble slabs to the extent that the slabs became defective.

83.I do not accept the plaintiffs’ case that the entire marble floor had to be replaced. Mr Wong acknowledged that slabs could be replaced individually when GiD tried to remedy the defect. Also, it is in my view unreasonable to allow damages for the complete replacement of the marble floor, as it was a matter of aesthetic taste whether the different marble slabs were matching in pattern and colour.

84.I find it reasonable for the plaintiffs to seek to replace some of the marble slabs. I assess the reasonable cost to be $160,000.00.

85.Defect No 11 – there were noticeable repair patches on the marble wall panel in the living room. GiD accepts liability and agrees to pay $500.00 as claimed.

86.Defect No 12 – there was dirt inside the tempered glass panels of the windows at the entrance. The plaintiffs claim $8,800.00 as the replacement cost.

87.Under cross examination, Mr Wong stated that there was dirt or air bubbles within the double glazed panels.

88.In his closing, Mr Ho accepts that GiD was responsible for this defect, but it disputes the cost of replacement. Mr Yu assessed the reasonable cost to be $3,000.00, as 37 sq ft of glass^[17] had to be replaced at $80 per sq ft.

89.Item 8.1 of GiD’s quotation stated the unit price for windows to be $220.00 per sq ft. Mr Yu pointed out that this unit price covered both the window frames and the glass panels. On the other hand, Ms Lau thought $3,000.00 was insufficient to cover the replacement cost.

90.I think Ms Lau is correct, as the cost for removing the defective panels and installing the replacement panels should also be included. But $8,800.00 also seems excessive, as it would only come to $8,140.00 even adopting the unit cost of $220.00 per sq ft of window. Doing the best as I can to estimate the cost, I award $5,000.00 to the plaintiffs.

91.Defect No 13, No 24 and No 27 – there were scratches and stains on sliding doors of the balcony on the 1^st floor; and there was a gap between the door and the doorframe. The plaintiffs claim $65,000.00 as the replacement cost.

92.Ms Chiu sent an email to Mr Wong on 9 February 2015 acknowledging the receipt of the Defect List. She added 3 more items to the Defect List. Item 48 added by her stated that the sliding doors of the living room (ie the sliding doors leading to the balcony) had to be repaired, and the glass panels had to be replaced. The repair schedule she enclosed in the email suggested that the sliding doors would be replaced by the end of March 2015. According to the repair schedule attached to Ms Chiu’s email to Mr Wong dated 1 April 2015, the replacement of the sliding doors remained outstanding.

93.Based on the above, I find the sliding doors were indeed defective, and it was reasonable for the plaintiffs to seek replacement. I reject Mr Yu’s opinion that the gap between the door and the doorframe could be covered up by finding the appropriate rubber seal strip. It was reasonable for the plaintiffs to expect the sliding doors to be able to seal up the living room from the outdoor area. A rubber strip covering the gap was altogether a different matter.

94.I award $65,000.00 to the plaintiffs.

95.Defect No 14 and No 15 – the glass panels of the storage room on the 1^st floor were of different colours. Some glass panels lacked decorative steel strips along their edges. The plaintiffs claim $30,000.00 as the replacement cost. GiD accepts the liability to replace the panels. Mr Yu assessed the cost to be $700.00^[18].

96.Under Item 11.0 of GiD’s quotation, the unit cost of supplying and installing the glass panel for the storage room and the guest toilet was $200.00 per sq ft. The total cost was $27,000.00 for 135 sq ft of panels. From this, it appears to me that the plaintiffs’ claim is excessive.

97.As a rough and ready estimate, I award the plaintiffs $5,000.00.

98.Defect No 16 – the marble strips on the window sill of the utility room on the 1^st floor were unevenly installed with noticeable gaps. The plaintiffs claim $2,500.00 as the replacement cost.

99.Under cross examination, Mr Wong accepted that the strips were already sanded even. I find that this was done by Legend as a matter of convenience. Hence, I do not think the plaintiffs suffered any loss.

100.Defect No 17, No 18, No 21, No B1 and No B5 – the wooden furniture throughout the House, doorframes, and headboard of the master bedroom were infested with booklice after water damage (No B1). The leather surface of the headboard was loosely mounted (No 17). The door panels of the wardrobe in the master bedroom (No 18) and in the utility room (No 21) were of uneven colours. There were stains on the display cabinet in the dining room (No B5). The plaintiffs claim $874,400.00 as the replacement cost, and $15,000.00 as the removal cost.

101.I shall deal with the wooden furniture below when I analyze the water seepage issue.

102.Defect No 19 – the drainage of the shower tray in the en-suite bathroom of the master bedroom was too slow. GiD accepts liability and agrees to pay $5,000.00 as claimed.

103.Defect No 20 – the gap between the glass panel of the shower screen and the wall was too wide. The plaintiffs claim $6,000.00 as the replacement cost. GiD submits $1,800.00 is sufficient.

104.Ms Lau and Mr Yu agreed that the gap existed because the glass panel for the shower screen was too small, and it should be replaced.

105.Similar to Defect No 12 above, I think Mr Yu’s estimate is on the low side without including the cost of labour or transportation. I assess the reasonable cost to be $4,000.00.

106.Defect No 22 – one of the glass panels covering the staircase in the sitting room was chipped. The plaintiffs claim $1,500.00 as the replacement cost.

107.Mr Wong claimed that the glass panel was already chipped when he moved back to the House. I think Mr Ho has a point when he submits that this defect ought to have appeared in the Defect List if Mr Wong was correct in his evidence.

108.I do not think the plaintiffs have proved on a balance of probabilities that this was a defect caused by the GiD in breach of the Main Contract.

109.Defect No 23 and No B7 – there were water leakage stains found near the entrance and the glass house on the 1^st floor. The plaintiffs claim $130,000.00 to redo the waterproofing works of the House, and to replace the damaged fittings.

110.Again, I will deal with these items when I analyse the water seepage issue.

111.Defect No 25 – the windows of the glass house could not be fixed in position when open. The plaintiffs claim $4,000.00. In fact, Legend replaced the hinge of the windows in 2015 for $5,500.00.

112.Ms Lau opined that the hinges were too weak for the weight of the windows. Mr Yu thought that the problem could be resolved by tightening the screws.

113.I prefer Ms Lau’s evidence. As a matter of common sense, if it was simply a matter of loosened screws, the windows might be unstable in their position. But since the windows could not be fixed in the wide-open position, it must be more likely a matter of defective hinges.

114.I award $4,000.00 as claimed by the plaintiffs.

115.Defect No 26 and No B6 – GiD accepts liability with respect to cracks found for some paintworks, and agrees to pay $1,000.00 as claimed.

116.Defect No 28 – GiD accepts liability with respect to the poor workmanship of the finishing to the edges of the window frame in the garage, and agrees to pay $300.00 as claimed.

117.Defect No B2 – there was an unwanted drainage pipe under the basin in one of the bathrooms. The plaintiffs claim $3,000.00. GiD accepts responsibility, and it relies on Mr Yu’s opinion that $1,000.00 was sufficient.

118.I prefer the plaintiffs’ case. Mr Yu suggested to cover the drainage pipe with plastic laminate. Whilst this may solve the aesthetic aspect of the problem, it remains the fact that the drainage pipe should not be there at the first place. I think the plaintiffs are entitled to a more fundamental resolution.

119.I award $3,000.00 to the plaintiffs.

120.Defect No B3 – the door of the master bedroom did not fit well to the frame, so that it could not be shut smoothly. The plaintiffs claim $4,800.00 as the replacement cost.

121.Under cross examination, Mr Wong agreed that GiD fixed the door, and since then the door could be closed smoothly. Mr Yu also recorded that the door was not problematic during his inspection in July 2016. I accept GiD’s case that this defect was resolved.

122.Defect No B4 – the wall behind the kitchen cabinets were not painted. The laminates of the 2 base panels had bubbles on them. The plaintiffs claim $30,000.00 as the replacement cost and the tiling works.

123.Item 5.1 of GiD’s quotation stated that all walls within the House would be painted. In the absence of contrary evidence, I find this to cover the walls in the kitchen that would be hidden by the cabinets subsequently. I accept what has been stated in Mr Tsang’s report as true and accurate. Thus, GiD was in breach for not painting the wall behind the kitchen cabinets. However, I do not accept that the plaintiffs can insist to remedy the defects by retiling instead of painting over the walls.

124.As to the bubbles in the base panel, the photos attached to Mr Tsang’s report show that they were found inside one of the kitchen cabinets. I do not accept Mr Ho’s assertion when he cross examined Mr Wong that the bubbles were caused by him placing hot items over them. Again, I accept Mr Tsang’s report as credible and accurately depicting the existence of the bubbles. I find the cabinets to be defective in quality.

125.The plaintiffs already demolished the cabinets and retiled the kitchen walls for a total cost of $79,200.00. This claim overlaps with the plaintiffs’ claim on water seepage. I shall consider the appropriate award (if any at all) after analysing the water seepage issue.

E. The alleged water seepage

E1. The water seepage issue in outline

126.The plaintiffs claim that there was water seepage through the roof, the walls, the glass house and at various ceilings within the House after Mr Wong moved back into it in 2015. In particular, the water seepage became serious when there was heavy rain in May 2015.

127.Mr Wong claims that he and his wife had to sleep in one of the guest rooms. The House smelled mouldy during that time. He developed cough and rashes as a result. When it became unbearable, he engaged Legend to effect some repair works to the House to at least make it habitable. Also, he engaged another contractor called Chuk Kwan Air-Conditioning Eng to move the air-conditioning units on the external wall outside the guest bathroom on the 1^st floor to the roof to abate the seepage.

128.Mr Wong further claims that, in August 2016, he engaged a surveyor to inspect the House. They found 2 metal trays, one respectively placed inside the false ceiling above the bay window of the master bedroom and of the multi-purpose room next door. A plastic tube connected each of these trays to the external wall. But when the trays were discovered, the tubes were already blocked. So water accumulated on and overflowed from the trays. This brought pungent smell and also wetted the false ceiling.

129.It is the plaintiffs’ case that, since water seepage was not observed prior to the renovation in 2014, it was caused by the negligence of GiD in renovating the House.

130.GiD denies that its work caused the alleged water seepage. Mr Kwok claims that the metal trays were placed inside the false ceiling with Mr Wong’s consent after discussion.

E2. Expert evidence on the water seepage issue

131.Again, it is useful to first set out how the parties obtained expert evidence relating to the water seepage issue.

132.Master M Wong granted leave on 23 May 2018 for the parties to adduce expert evidence relating to the water seepage issue. Master Grace Chan granted leave on 14 November 2018 to allow the experts to also cover quantum matters relating to the water seepage issue. There were again standard directions for a without prejudice meeting to be held by the experts, and a joint report to be filed afterwards. The experts were to identify issues they were of a common view, and to set out the reasons for issues they had competing views. I note that Master Grace Chan’s Order specifically limited the joint report on the water seepage issue. This apparently took into account the fact that parties already obtained directions to prepare the Joint Statement (ie on the alleged defective works) by way of the Consent Order dated 31 July 2017.

133.Ms Lau and Mr Yu produced a joint report on the water seepage issue on 25 April 2019 (“the Joint Report”). Ms Lau prepared the first draft of the Joint Report for Mr Yu to comment and elaborate.

134.The Joint Report comes in neck to neck with the Joint Statement on how disorganized and unhelpful it is.

134.1 In paragraph 3.3.1, Mr Yu stated that there was no common ground between him and Ms Lau. I find it the most surprising that experts could be so fundamentally different in their respective opinion. From my experience, and also from a perusal of decided cases relating to water seepage, this is unheard of.

134.2 Mr Yu then went on in paragraph 3.3.2 to say that there was also no common ground for issues he differed with Ms Lau. To put it as mild as I can, what Mr Yu stated is incomprehensible, and casts doubt on the genuineness of his statement that there was no common ground between the experts. When he was specifically asked to explain this under cross examination, his answer was equally unhelpful. Take, by way of example, Ms Lau’s opinion that she used visual inspection as one of the tests during her inspection. Under cross examination, Mr Yu clarified that he also used visual inspection to identify water seepage, and he did not find it correct to use other methods. But nowhere in the Joint Report could I see Mr Yu’s agreement on the utility of visual inspection, and the futility of the other tests used by Ms Lau.

134.3 Ms Lau stated her opinion about the cause of the water seepage in paragraph 3.4; she further set out the reasons she disagreed with Mr Yu’s opinion in paragraph 3.5. Mr Yu did not seek to respond to her opinion. Instead, he prepared his own table to first comment on the alleged defective works. This clearly failed to follow Master Grace Chan’s Order on how the Joint Report should be prepared. He then put in his opinion relating to the water seepage issue. Again, this rendered the Joint Report worthless as the court is not assisted in understanding what truly divided the parties.

134.4 The Joint Report ran to a total of 756 pages, because the experts simply included previous solo reports and other documents as appendices. It is difficult for a reader (like myself) to navigate around the expert evidence, because in this way the expert evidence is not presented in chronological or any other meaningful order.

135.Similar to what I set out in paragraph 31 above, I think I shall decide the following matters relating to the water seepage issue:-

135.1 Whether the plaintiffs have proved, on a balance of probabilities, that the alleged water seepage factually existed;

135.2 Insofar as the alleged seepage factually existed, whether it was caused by GiD’s fault;

135.3 Insofar as GiD should be held liable for the seepage (if at all), what ought to be the damages the plaintiffs should be awarded.

E3. Analysis and findings

136.In addition to Mr Wong’s evidence, the plaintiffs seek to rely on 3 video clips^[19] to prove that water seepage did occur as alleged. Under cross examination, Mr Wong stated that the videos WA0018 and WA0047 showed water accumulated on the floor of the glass house. The video WA0137 appears to show 2 small bugs crawling on the wooden headboard of the master bed. Mr Wong said these videos were taken in October 2015.

137.Mr Ho relied on the conversation heard in the video WA0047 to suggest that it showed the water did not accumulate because of any seepage. With respect, Mr Ho strained the meaning of the conversation. Although there is no evidence to show who was the person seen in the video WA0047, he was clearly saying that drainage ought to be installed there, as one should expect the floor to be washed with water even in the absence of seepage of water or rain. Therefore, the reference to an absence of seepage was in the hypothetical sense, rather than referencing to the actual state of the glass house. I reject Mr Ho’s submission on the video.

138.Ms Lau made 4 visits to the House on 31 January, 1 February, 3 February and 13 March 2018 to identify the existence and the cause of water seepage. She concluded there was water seepage at the following parts of the House:-

138.1 The external wall of the guest toilet on the 1^st floor;

138.2 The ceiling of the glass house; and

138.3 The floor of the roof, and the external wall of the master bedroom and the multi-purpose room on the 2^nd floor.

E3.1 External wall of the guest toilet on 1^st floor

139.On 31 January 2018, an infrared scan of the external wall of the guest toilet did not show any accumulation of water within the wall. Another infrared scan of the internal wall surface of the guest toilet also showed no abnormal low temperature zone (ie accumulation of water).

140.Ms Lau then arranged water to be sprayed on the external wall. Afterwards, another infrared scan of the internal wall surface showed a few streaks of low temperature zone. Protimeter readings also showed an increase in the water content of the internal wall surface. Ms Lau opined that the tests showed active water leakage from the external wall of the guest toilet.

141.Mr Yu inspected the House on 23 July 2018. He said he did not find any water mark on the internal wall surface of the guest toilet. And when he asked Mr Wong to identify the location of seepage, Mr Wong could not do so. He concluded that there was no water leakage.

142.I prefer Ms Lau’s opinion. Mr Yu accepted under cross examination that, apart from visual inspection, he did not carry out any other test on the external wall of the guest toilet. He said other tests would not be necessary as water seepage could not be first visually identified. In my judgment, it is almost common sense that water seepage may not happen at a rate visible to the naked eye, let alone leaving any trail or mark afterwards. Mr Yu’s analysis (or rather, the lack of it) rendered his conclusion unconvincing.

143.The plaintiffs claim that the water seepage was caused by GiD installing air-conditioning units on the external wall. Mr Kwok accepted that his contractors had to drill holes on the external wall, so as to install metal frames to house the air-conditioning units there.

144.Mr Ho submitted that the plaintiffs’ evidence was inconclusive as to whether GiD’s works did cause the water seepage, because the plaintiffs arranged contractors to remove the metal frames installed by GiD. It might have been the subsequent contractors who caused the damage to the external wall.

145.I accept Mr Wong’s evidence that water seepage was not observed prior to the 2014 renovation; and there was only water seepage after GiD housed the air-conditioning units on metal frames screwed to the external wall.

146.I reject Mr Ho’s arguments. Normally speaking, removing the metal frames ought not cause further damage to the external wall. GiD puts forward no evidence to show that the subsequent contractors did drill further holes on the external wall, or otherwise damaged it. As such, I infer that the damage to the external wall must have been done by GiD and/or its contractors. They must have been negligent in causing water seepage through the external wall.

147.As to the cost of repair, Ms Lau estimated it to be $48,984.30. Mr Yu simply said this in the Joint Report when he was asked to estimate the cost of repair:-

“The Defendants should not be liable for damages of water leakages on the relating parts claimed by the Plaintiffs as referred to my reports [sic].”

148.In short, Mr Yu did not give any estimate. I prefer Ms Lau’s estimate and award $48,984.30 for repairing the external wall of the guest toilet. I also award $13,900.00 as the cost the plaintiffs paid Chuk Kwan to remove the air-conditioning units from the external wall, and also $9,800.00 as the cost they paid Legend for constructing a new frame on the roof to house those units.

E3.2 Ceiling of the glass house

149.When she inspected the external walls of the glass house, Ms Lau observed cracks and water marks. Infrared scans showed abnormal low temperatures areas on the external walls. She opined that there were signs of water seepage.

150.Ms Lau then conducted spray test on the external walls of the glass house. Protimeter readings showed an increase in moisture content inside the external wall, which indicated water seepage. After spraying water on the ceiling of the glass house, water droplets could be observed on the walls of the glass house, the enclosed kitchen, and also the dining room.

151.Ms Lau opined that the water seepage existed as early as 2015, because cracks and marks could already be observed on the external walls of the glass house when Mr Tsang inspected the House.

152.When Mr Yu inspected the House, he also found water marks on both the external wall surface and the internal wall surface of the glass house. However, he pointed to the works done by Legend in the 2^nd half of 2015. He referred to a photo in which tarpaulin was seen covering the glass house ceiling area by way of reflection from the marble floor^[20]. He opined that the ceiling of the glass roof was removed by Legend. He concluded GiD ought not be liable for any water seepage at the glass house, because works were already done by Legend subsequently.

153.I accept Mr Wong’s evidence that water could be observed seeping into the glass house shortly after he moved back into the House in December 2014. I also prefer Ms Lau’s opinion.

154.I reject Mr Yu’s evidence as illogical and unhelpful. The photo he relied on came from the Affirmation of Wong Kam Hing dated 16 December 2016, by which Mr Wong, inter alia, explained the works done by Legend. In other words, Mr Yu only inferred that the ceiling was removed simply because of the presence of tarpaulin. Without evidence of the exact structure of the ceiling, and the position of the tarpaulin relative to the whole ceiling, I do not accept Mr Yu’s inference as correct. His evidence that GiD should be absolved from liability is also unconvincing, when he had no evidence on what sort of works was actually carried out by Legend on the glass house.

155.Under item 11.0 of GiD’s quotation, it agreed to construct the glass house, including the installation of sky windows. I find GiD to be in breach of the Main Contract as the glass house was not reasonably constructed.

156.As to repair, Ms Lau opined that the external walls and the ceiling of the glass house should be replaced. These come at a cost of $175,174.70. The seepage also damaged the plaster at the false ceiling of the dining room, which she assessed the repair cost to be $7,800.00. In the absence of any contrary assessment by Mr Yu, I find Ms Lau’s assessment reasonable. I award the plaintiffs $182,974.70 for replacing the glass house and the ancillary repair. As such, I do not think the plaintiffs are entitled to further damages for the alleged defective works relating to the glass house.

E3.3 Roof, master bedroom, and the multi-purpose room

157.I prefer Mr Wong’s evidence over Mr Kwok’s evidence as to how the 2 metal trays were placed at the false ceiling of the master bedroom and the multi-purpose room.

157.1 If this contraption was indeed installed by Mr Kwok with Mr Wong’s consent, then as a matter of common sense, an access would also have to be installed to allow any subsequent repairs to be made to the metal trays. But there is no dispute that the false ceiling was completely sealed off after the renovation. This appears to me to suggest that the contraption was done without Mr Wong’s blessing.

157.2 I do not think Mr Kwok’s evidence on this point was credible. Under cross examination, he suggested that the plastic tubes could be unclogged by cutting them up and then sealing them off with tape afterwards. Such a destructive way of maintenance sounds unrealistic.

157.3 I do not think it is overwhelmingly in favour of GiD that the plastic tubes were extended to the external wall, and Mr Wong allegedly could not have missed them, either during the renovation, or when he arranged various personnel to inspect the House prior to August 2016. There is no clear evidence on how visible the plastic tubes were on the external wall outside the 2 bay windows. There is equally no evidence showing that that part of the external wall was specifically inspected by any personnel.

158.My findings above tend to suggest that, when GiD carried out the renovating works, it already discovered water seepage problem around the false ceiling atop the bay windows of the master bedroom and the multi-purpose room. I also find Mr Wong’s evidence credible. Hence, I accept the plaintiffs’ claim that water seepage appeared after Mr Wong moved back into House in December 2014 as described by him.

159.On 31 January 2018, Ms Lau arranged a pond test on the floor of the roof by using a fluorescent dye. When she returned on 13 March 2018, the same fluorescent dye could be observed on the walls of the bay windows of the master bedroom and of the multi-purpose room.

160.Ms Lau also arranged a spray test on the external walls of the master bedroom on 13 March 2018. Water could be observed on the window sills shortly afterwards.

161.I do not think GiD seriously challenged Ms Lau’s evidence in this respect. I accept her opinion that water seeped to the walls near the bay windows of the master bedroom and of the multi-purpose room from the roof.

162.By item 15.1 of GiD’s quotation, it agreed to carry out waterproofing works for the floor of the roof. As such, I find GiD to be in breach of the Main Contract for the presence of water seepage through the floor of the roof even after its works.

163.GiD argues that it ought not be held liable because the water seepage was only discovered after the expiry of the 2-year warranty period. Mr Ho submitted that the waterproofing works at the roof was done in September 2014, but water seepage was only shown some time in 2018. Hence, GiD should not be held liable for the seepage. I reject Mr Ho’s argument, as I find that water seepage happened shortly after Mr Wong moved back into the House in December 2014.

164.Ms Lau assessed the cost of repairing the floor of the roof to be $170,194.20, and that for the walls of the master bedroom and the multi-purpose room to be $7,800.00. In the absence of contrary assessment by Mr Yu, I find Ms Lau’s assessment reasonable. I award the plaintiffs $177,994.20.

E3.4 The claim relating to the wooden furniture

165.Apart from the video WA0137, the plaintiffs also rely on a letter issued by Ecolab Limited dated 18 May 2015. It was stated in this letter that Ecolab’s representative visited the House on 13 May 2015, and discovered booklice near the wooden furniture around the House, including the headboard of the master bed, the wooden cabinets in the kitchen, and the wooden doorframes. The letter continued to state that the usual reason for their appearance would be the presence of wood wetted by flooding or water seepage.

166.Given my finding above as to the existence of water seepage at various parts of the House, I accept Mr Wong’s evidence as credible, and find that booklice indeed bred from the wooden furniture around the House. I note that the author of Ecolab’s letter has not been called as a witness by the plaintiffs, nor is there any expert evidence on how booklice could be bred. I place no weight on the part of the letter stating the usual cause of booklice. But even so, I think the evidence is sufficiently strong enough for me to infer that booklice appeared from the wooden furniture shortly after Mr Wong moved back into the House, because the wooden furniture was wetted by the water seepage.

167.I think it is tolerably clear that Mr Wong arranged fumigation for the House to get rid of the booklice. The plaintiffs do not ask for damages for such cost.

168.According to Legend’s quotation dated 20 May 2015, it agreed to demolish the kitchen cabinets, replace them with new ones, and retiled the wall for $79,200.00 ($88,000.00 x 90%). I award the plaintiffs $79,200.00.

169.Mr Wong confirmed that he continued to use the wooden furniture in the master bedroom and the wooden doorframes. There is no evidence to suggest that these items continued to be defective despite fumigation and the substantial abatement of water seepage. As such, I do not think it is reasonable to award the entire cost of replacement sought by the plaintiffs.

170.As to the headboard for the master bedroom, I do not find the finished product defective. First, there was no agreement in the Main Contract as to the standard of finish. As such, I need to apply the reasonable standard. I have seen various photos of the headboard, and they did not show any obvious defect. Whilst Mr Wong was of the view that the headboard leather was loosely fitted, it appears to me to be a question of taste. I do not think the plaintiffs are entitled to damages for replacing or repairing the headboard.

171.Under Item 12.5 of GiD’s quotation, the leather for the headboard was said to be supplied by the plaintiffs. As stated in paragraph 15 above, the plaintiffs’ version of the VO5 differs with that discovered by the defendants in that the defendants’ version had the extra item for purchasing the leather for the headboard for $28,760.00.

172.Mr Wong and Mr Kwok exchanged WhatsApp messages on the purchase of the leather on 12 February 2015. Mr Kwok told Mr Wong that the leather would cost more if the latter would like to have a proper invoice from the Mainland supplier. Mr Wong told Mr Kwok to obtain such an invoice. But the WhatsApp messages did not reveal whether Mr Wong then paid for the leather or not.

173.GiD issued a receipt on 13 February 2015 for $26,798.00 with respect to VO5. I have not seen any evidence suggesting that GiD ever chased after the plaintiffs for the $28,760.00 relating to the purchase of leather on the plaintiffs’ behalf.

174.GiD sent a letter dated 15 June 2015 to the plaintiffs’ former solicitors^[21], in response to the plaintiffs’ letter before action dated 29 May 2015^[22]. On page 3 of GiD’s letter, it sought to respond to the plaintiffs’ allegations that they paid $26,798.00 in protest. GiD stated that the $26,798.00 was listed in VO5 together with other items. Mr Wong allegedly settled the other items in VO5 by cheque, and told GiD that he would need the official receipt of the $26,798.00 for tax purpose. Mr Wong allegedly said he would settle this sum upon receiving the receipt.

175.On a balance of probabilities, I find that GiD purchased the leather for the headboard on the plaintiffs’ behalf at $28,760.00. This remained outstanding pending the invoice from the Mainland supplier. The matter was since then held in abeyance.

176.I find that GiD is entitled to recover the cost of purchasing the leather on the plaintiffs’ behalf. I assess the cost to be $28,760.00.

177.Regarding the colour defects on the wardrobe and the doors, Mr Yu was of the view that they could be replaced at $900.00 each. I think this estimate is on the low side because there may also be incidental labour or transport cost. I will just award $30,000.00 as the rough replacement cost for all other furniture affected by colour defects.

178.Therefore, the net award I give the plaintiffs for the wooden furniture comes to $80,440.00.

E3.5 Other miscellaneous claims

179.The plaintiffs also claim for cost ancillary to effecting repairs.

180.I allow $4,000.00 for cleaning, and $1,500.00 for third party insurance.

181.I do not allow $45,000.00 as the cost for alternative accommodation. Whilst the environment of the House might be disappointing to Mr Wong (and I am not saying he is not reasonable in so thinking), he confirmed that he remained living in the House since December 2014. It appears to me that he can also remain at the House whilst further repairs are carried out. I similarly disallow the claim of $12,000.00 as the storage cost for personal items. There is no evidence showing that Mr Wong required external storage at any time since 2015, despite the various problems lingering around the House. Any inconvenience that may have been brought to him should be compensated by way of general damages for loss of enjoyment.

182.I also reject the cost of replacing electrical wiring at $1,627.20. According to Ms Lau, this was the cost of hiring a competent person to check the electrical wiring inside the House to ensure it was not damaged by the water seepage. I do not think this will strictly be necessary given the various awards for the cost of repair.

F. Damages for loss of enjoyment

183.In his written opening, Mr Paul Wong submits that $300,000.00 is a reasonable sum to compensate the plaintiffs’ loss of enjoyment as a result of GiD’s breach. He submits that there is no comparable case he can refer me to, as no other cases involved a house as large as the present one.

184.Mr Ho in his written Closing refers to Cheng Chi Wing & Ors v Ho Shu Wah & Anr DCCJ 2370/2005 (HH Judge Chow; 27 July 2007), and submits that $45,000.00 should be the appropriate award. In Cheng Chi Wing, the court awarded $45,000.00 as damages for loss of enjoyment to compensate the nuisance created by water seepage to a 3-bedroom apartment for 1.5 years. The plaintiff family was troubled by insects and mould. One family member suffered from skin disease.

185.I do not agree with Mr Ho that $45,000.00 is the appropriate award in the present case. There have been substantial inflationary changes since 2007. I also agree with Mr Paul Wong that the House is much larger than the 3-bedroom apartment in Cheng Chi Wing. Also, Mr Wong and his wife faced multiple problems and not just water seepage alone. On the other hand, I note that the brunt of inconvenience was abated by the renovation and repair works arranged by the plaintiffs in the second half of 2015.

186.In Leung Yung Chun v Chan Wing Sang [2001] 1 HKLRD 456, the court awarded $80,000.00 for a water seepage incident at a newly built flat lasting nearly 2 years. In Chan Wai Shin v Pang Chung Kong [2019] HKDC 1289 (HH Judge Winnie Tsui; 27 September 2019), the court awarded $150,000.00 for water seepage affecting a bedroom and a bathroom in a flat for 4 years. Although these cases are not directly comparable to the present case, they can at least inform the court the level of damages that should be appropriate in the present circumstances.

187.I think a sum of $250,000.00 is reasonable to compensate the plaintiffs’ loss of enjoyment of the House.

G. Conclusion and orders

188.The damages payable by GiD with respect to the defective works come to $357,800.00.

189.The damages payable by GiD with respect to the water seepage come to $524,593.20.

190.The plaintiffs are also entitled to $250,000.00 as damages for loss of enjoyment as a result of GiD’s breach.

191.Setting off the above damages against the outstanding sums to be paid by the plaintiffs ($360,000.00 + $483,375.00), the net damages payable by GiD come to $289,018.20.

192.I enter judgment in favour of the plaintiffs as follows:-

192.1 The 1^st defendant do pay the plaintiffs $289,018.20 as damages;

192.2 There shall be interest on $39,018.20, at 1% above the HSBC best lending rate, from the date of the service of the Writ to the date of this judgment, and thereafter at the judgment rate to the date of payment;

192.3 There shall be interest on $250,000.00, at 2% per annum from the date of the service of the Writ to the date of this judgment, and thereafter at the judgment rate to the date of payment;

192.4 The 2^nd defendant do pay the plaintiffs $120,000.00 as the refund of the supervision fees. There shall be interest on this $120,000.00, at 1% above the HSBC best lending rate, from the date of the service of the Writ to the date of this judgment, and thereafter at the judgment rate to the date of payment.

H. Costs

193.I take into account that: (1) although the plaintiffs are the overall winner, the damages awarded to them are substantially less than what they asked for; (2) the different items of damages are divisible so an apportionment is possible; and (3) B2 only accepted at trial that it would be liable to return the supervision fees to the plaintiffs. I find it appropriate to grant an order nisi that the defendants do pay 80% of the plaintiffs’ costs in this action (including all costs reserved), to be taxed if not agreed, together with a certificate of counsel. But this costs order nisi is subject to the following matters.

194.First, as I indicated during the parties’ respective opening at trial, the legal representatives failed to properly prepare the agreed trial bundles. Documents no longer relevant to the trial are indiscriminately included in the bundles, eg Orders adjourning this action because of the General Adjournment of Proceedings in 2020; land search and company documents when the identities of the House and the parties are not in dispute; invoices and receipts of payments, insofar as the existence and the amount of which are not in dispute. Worse still, duplicates of a sizeable number of documents are included. The duty of a litigant and his/her legal representatives to assist the court is continuous. I do not accept that the parties here could not have cut down the volume of the agreed trial bundles, which ran to an eye-watering 1,800 pages, when there must be ample time at least between the Pre-Trial Review and the time by which the bundles must be lodged and served. The ability to procure suitable trial bundles is fundamental to the duty of a litigator to the court. With the greatest respect and restraint, I find such ability ought to have been rudimentary. I have not received any reasonable explanation from the parties to justify such poor work in preparing this action for trial, nor can I think of any at all.

195.Therefore, I order that as a matter of taxation (be it party-and-party, or solicitor-own client, if at all for the latter case), no costs are to be allowed for the preparation and production of the agreed trial bundles.

196.Secondly, I indicated to Mr Ho during his opening that this court might consider exercising the power under section 53 of the District Court Ordinance (Cap 336) and Order 62 rule 6A of the Rules of the District Court (Cap 336H) on its own motion to join Mr Yu as a party to this action for the purpose of ordering costs against him. As I see it, he has plainly breached Master Grace Chan’s Order dated 14 November 2018, and the Amended Order of Master Rita So dated 3 December 2020, when, because of the way he presented his opinion in the Joint Report and the Joint Statement, the court is disabled from ascertaining his reply opinion (if any) towards the opinion expressed by Ms Lau. Extra time has to be incurred to navigate through his written opinion to distill what are truly in dispute between the experts. No doubt this adds to the legal expenses. I do not accept that there is any reasonable explanation for Mr Yu to prepare the Joint Report and the Joint Statement in this way.

197.I shall leave it to the parties to make any appropriate application regarding my observations above as they may deem fit.

Mr Paul Wong, instructed by Ong & Chung, for the plaintiffs

Mr Ho Sing Wai of AH Lawyers, for the defendants