Fong Yuen Tung Nicole v. Pong Yuen Kong

HCA939/2022

[2024] HKCFI 1061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 939 OF 2022

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BETWEEN

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REASONS FOR JUDGMENT

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Introduction

1.At all material times, the Plaintiff has been the registered owner of the premises known as and situate at Flat C on 2^nd Floor, Kingsfield Garden, 1 Comfort Terrace, Hong Kong (“Plaintiff’s Premises”), and the Defendant has been the registered owner of the premises known as and situate at Flat D on 3^rd Floor, Kingsfield Garden (“Defendant’s Premises”).

2.On 29 July 2022, the Plaintiff issued the Writ of Summons in this action against the Defendant for negligence and/or breach of a deed of mutual covenants in relation to an ongoing incident of water seepage allegedly originating from the Defendant’s Premises. 

3.In default of Defence, the Plaintiff applied by way of a summons dated 28 October 2022 for interlocutory judgment.  On 24 November 2022, Recorder Sit SC granted the application and ordered, among others, that the Defendant do pay the Plaintiff damages to be assessed.  This is the consequent assessment of damages.

The hearing

4.Pursuant to the order made by Master Andy Ho on 26 October 2023, this action was set down for assessment of damages on a date to be fixed.  On 1 February 2024, the Plaintiff filed a Notice of Appointment of Assessment of Damages, whereby the assessment of damages hearing was fixed on 12 April 2024 at 14:30. 

5.At the hearing before me, the Defendant was absent.  I noted that the Plaintiff’s solicitors had served the said order of Master Andy Ho, the Notice of Appointment of Assessment of Damages and the opening submissions and hearing bundles for this hearing on the Defendant by way of ordinary post to the Defendant’s Premises as well as another address at Flat D, 2^nd Floor, Cannon Garden, No. 68 King’s Road, Hong Kong, being another usual and last known address of the Defendant.  I was satisfied that the Defendant should have had notice of this hearing and I proceeded with the hearing in his absence.

6.At the end of the hearing, I granted final judgment in favour of the Plaintiff, ordering the Defendant to pay damages in the sum of HK$115,500.00 (plus interest).  I indicated that my reasons would be handed down later, which I now do.

The evidence

7.The Plaintiff herself filed a witness statement and testified in court.  According to her, she purchased the Plaintiff’s Premises in February 2022.  On or about 13 May 2022, the renovation workers she engaged informed her that they noted water seepage at the ceiling and walls of the maid’s quarters in the Plaintiff’s Premises.

8.Upon the discovery of the water seepage, she contacted the Defendant and the owner of Flat C on 3^rd Floor, Kingsfield Garden.  They asked the Plaintiff to engage an expert to locate the source of the water seepage.  As a result, the Plaintiff engaged an architect and authorized person, Mr. Pau Chi Hoi of Tappro, to conduct testing.

9.According to the report of Mr. Pau dated 26 June 2022, the water seepage was caused by defective drainage pipe(s)  and water supply pipe(s)  at the Defendant’s Premises. 

10.The Plaintiff thus commenced this action.  After obtaining interlocutory judgment in default, which included a mandatory injunction ordering the Defendant to halt the water seepage problem and to carry out repairs, the Defendant has failed and/or refused to carry out the requisite repair work to date.

11.The Plaintiff claims that she paid a total sum of HK$18,000.00 for the expert report prepared by Mr. Pau of Tappro by way of two instalments.  

12.Further, in February 2023, she engaged a company called Eighty Three Design Group Ltd to carry out temporary repairs to the damaged areas in the maid’s quarters, such repair work including treatment for rust, plastering and painting and installation of a false ceiling.  She paid a total sum of HK$17,500.00 for the said repair works.

13.In addition to the aforesaid special damages, the Plaintiff also claims general damages for nuisance, distress, discomfort and inconvenience in the sum of HK$80,000.00.  During examination-in-chief, the Plaintiff deposed that a false ceiling was installed in the maid’s quarters to prevent falling slab caused by water seepage.  As a result, she could now only place a single bed there for one maid, instead of a bunk bed for two maids.

Assessment of damages

14.The Plaintiff claims a total sum of HK$115,500.00, comprising (1)  the fee for the expert report of Mr. Pau of HK$18,000.00; (2)  the cost of the temporary repairs done by Eighty Three Design Group of HK$17,500.00 and (3)  general damages of HK$80,000.00.

15.It is well established that reasonable investigation costs for water seepage incurred by a plaintiff before commencement of action, including costs in engaging experts and in preparing investigation reports, are recoverable as damages: see Polysoon Investment Limited v Lau Moon Kan & Anor [2022] HKDC 211 at §§219-220; Man Kwong Kau & Anor v Wong Wai Hong [2023] HKDC 664 at §§40-41.

16.I accept that engaging an expert in identifying the source of water seepage was a reasonable step to take, and the investigation cost of HK$18,000.00 paid to Tappro was reasonable.  The actual payment by the Plaintiff is supported by two receipts dated 1 June and 28 June 2022 respectively.  I would therefore allow the Plaintiff’s claim for investigation cost in full.

17.In addition, I would allow the Plaintiff’s claim for costs of the temporary repairs.  It can be seen from the photos produced by the Plaintiff that part of the ceiling and walls in the maid’s quarters were damaged by water seepage.  As shown in the quotation issued by Eighty Three Design Group Ltd,  the repair works were confined to the affected areas in the maid’s quarters.  Considering the damage to the maid’s quarters and the fact that the repairs were meant to render the quarters habitable, I agree the repairs were reasonable.  The Plaintiff’s payment of the repair costs was supported by the receipt dated 25 February 2023.  This head of claim is thus allowed in full. 

18.As to the Plaintiff’s claim for general damages, as a matter of law, such damages are recoverable as held by the Court of Appeal in So John & Anor v Lau Hon Man & Ors [1993] 2 HKC 356 at 358I.  The Plaintiff prayed reliance on Choi Man Wing & Anor v Wong Tang Hoi Alice [2018] HKDC 901; there the court awarded general damages of HK$80,000.00 in a water seepage case where the problem had affected the master room toilet and guest room toilet for over two years.

19.I agree that the scenario in this case is similar to that in Choi Man Wing (supra).  In this case, the water seepage was first discovered in May 2022 and to date the Defendant still has failed and/or refused to carry out repairs.  Moreover, as a result of the temporary repair work, a false ceiling had to be installed in the maid’s quarters, which has rendered the Plaintiff’s plan to place a bunk bed and to accommodate two maids there unworkable.  I consider general damages in the sum of HK$80,000.00 appropriate and reasonable in the circumstances.

20.In her Statement of Claim, the Plaintiff claimed other special damages including renovation work to reinstate and/or redecorate the Plaintiff’s Premises.  She has in her written opening submissions confirmed that she would not pursue those other claims.

Conclusion

21.Final judgment for the Plaintiff is entered against the Defendant in the sum of HK$115,500.00, with breakdown as follows: investigation cost of HK$18,000.00, repair cost of HK$17,500.00 and general damages of HK$80,000.

22.Interest on the sum of HK$115,500.00 is awarded at the HSBC prime rate +1% per annum from 29 July 2022 (i.e. the date of the Writ of Summons)  to the date of judgment and thereafter at judgment rate until payment.

23.Costs should follow the event.  At the invitation of the Plaintiff, I have made an order nisi that the Defendant do pay the Plaintiff’s costs of the action including the costs of the assessment of damages (and all costs reserved)  on party and party basis, with certificate for counsel, to be taxed if not agreed.

Mr Roger So, instructed by Ong & Chung, for the Plaintiff

The Defendant was not represented and did not appear