Lee Wai Fun Ida v. The Incorporated Owners of Virtue Villa

DCCJ 1569/2020

[2024] HKDC 1088

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1569 OF 2020

————————

————————

————————————————

ASSESSMENT OF DAMAGES

————————————————

Introduction

1.This is the hearing for assessment of damages of the Plaintiff’s claim for loss and damage suffered from water leakage at her premises (“the Premises”) by reason of the Defendant’s breach of mutual covenant, breach of section 34I of the Building Management Ordinance, Cap 344, nuisance, and negligence.

2.Interlocutory Judgment was entered against the Defendant on 27 June 2022. The Court ordered the Defendant to carry out all necessary works and repairs to stop the leakage from (i) the roof of Virtue Villa (“the Building”) to the ceiling of the Premises; and (ii) the external wall of the building to the internal wall(s) of the Premises at the Defendant’s own costs within 21 days from the date of Order. In addition, the Defendant is also ordered to pay the Plaintiff’s damages to be assessed.

3.The Defendant was absent at the hearing on 24 June 2024. Having read the affirmation of service filed on 17 June 2024, I was satisfied that notice of assessment hearing had been duly given to the Defendant prior to the hearing. It was the Defendant’s election not to attend the assessment hearing. I proceeded with the assessment of damages in the absence of it.

The Plaintiff’s case

4.The Plaintiff is the registered owner of the Premises at all the material times. The Defendant is the incorporated owners of the Building. The Premises is immediately below the roof floor of the Building.

5.Since or around 2005, there has been persistent water leakage from (i) the roof of the Building to the ceiling of the Premises and (ii) the external wall of the Building to the internal wall(s) of the Premises. The surveyor engaged by the Plaintiff identified the source of water leakage to be the roof and the external walls of the Building with defective or ineffective waterproof works.

6.Having obtained interlocutory judgment with an order for assessment of damages, the Plaintiff now seeks to recover costs for: (1) damages for inconvenience and discomfort, (2) cost and expense for carrying out remedial work for the Premises, (3) cost and expense for waterproofing works to be carried out inside the Premises, (4) further and consequential loss incidental to and during the Remedial works, and (5) alternative accommodation.

The Evidence

7.In the present hearing, the Plaintiff called two witnesses: the Plaintiff herself (ie Madam Lee) as the factual witness and Mr Leung Siu Hong, Ken as the expert witness on quantum. The Plaintiff adduced an expert report on quantum prepared by Mr Leung dated 21 December 2023. Their testimony was not subject to any challenge from the Defendant who had adduced no documentary evidence and witness evidence for the purpose of assessment of damages and was absent during the hearing. I accept Madam Lee’s evidence and Mr Leung as an expert in the field of surveying/water seepage as well as his findings in the said report.

Damages for inconvenience and discomfort

8.In 886hk Ltd and Another v Amjad Nadeem [1] HHJ MK Liu sets out the following principles (at paragraph 9):

“(a) In a case of nuisance which causes physical damage to the land, the damages could be measured by the cost of replacement/reinstatement or the cost of abating the nuisance.

(b) Apart from the physical damage to the land a nuisance may cause, there can also be damages for the annoyance, inconvenience, discomfort, or even illness to the claimant. Recovery in respect of these principally non-pecuniary losses is allowable and can be regarded as part of the normal measure of damages.

(c) Rules of the District Court, Order 37 rule 6 provides:-

“Where damages are to be assessed (whether under this Order or otherwise) in respect of any continuing cause of action, they shall be assessed down to the time of the assessment.”

(d) A claim of nuisance is a continuing cause of action and by virtue of Order 37 rule 6, the damages could be assessed from the date of the nuisance occurred down to the date of the assessment.”

9.According to Madam Lee’s testimony, she has been living in the Premises with her mother and younger sister. Water seepage was first discovered at the Premises in or around 2005 at the ceilings and walls. The problem persists and becomes worse when the weather is rainy. She and her family members have to bypass areas affected by water and put newspapers on the floor. They are annoyed and troubled by the water seepage which brings about daily problems such as insects, spalling of paint, and other issues.

10.There is no scientific way of translating inconvenience and discomfort into a sum of money.

11.Counsel for the Plaintiff cited Wong Hon Hung and Another v Jolly Birds Ltd [2], where the Court awarded HK$80,000 for water leakage lasting nearly 2 years, and submitted that an appropriate award for the present case is HK$80,000. In addition, this Court has also considered cases such as Cosmos Legal Consulatant Ltd v Skycherry Development Ltd and Another [3] and 蔡文榮及另一人 對 黃騰開. [4]

12.Having considered the extent, duration, and seriousness of the water leakage (which still continues to exist today), I agree with Counsel and find HK$80,000 reasonable and recoverable from the Defendant.

Cost and expense for carrying out remedial work for the Premises

13.The water leakage is shown in various photos showing the conditions of the external walls and the insects caused by the persistent leakage. There are also photos taken in September 2020 and September 2023 showing the exact situations of the leakage at different times.

14.The Plaintiff is advised to carry out substantial remedial works to rectify the problems. Hence, she obtained 3 quotations from independent sub-contractors; the quotation of their remedial works ranges from HK$109,000 to HK$179,500. It is expected the works would last for 6 to 8 weeks.

15.As opined by expert Mr Leung, the following works are necessary: (i) removing the damaged ceiling and wall finishes and re‑applying; (ii) checking and repairing damaged electrical installation; (iii) general items such as protection of existing flooring, removing debris, final cleaning, third part insurance, etc. Mr Leung estimated the above should cost HK$97,420. This Court inquired into the basis on which Mr Leung came up with this sum. Mr Leung was able to provide this Court with the relevant breakdowns and reasonable analysis. I allow HK$97,420 in full under this head.

16.The Plaintiff seeks to claim an additional amount for pest control. She sought quotation from two companies which quoted the sum of HK$2,500 and HK$9,000 respectively. Mr Leung finds the sum HK$2,500 as reasonable. As he has already included this sum in his estimation in the said HK$97,420 above, I will make no further award.

Cost and expense for waterproofing works to be carried out inside the Premises

17.In addition to the aforementioned remedial works, the Plaintiff has to carry out water-proofing work at the Premises. She obtained one quotation only from a specialist water proofing works contractor, which gave a quotation at HK$453,000 with two-year-warranty. This Court is not provided with quotations from other contractors for comparison, nor is there any explanation as to no such comparison and/or alternative is available.

18.In this regard, this Court is aware of the fact that the Defendant, as of today, still fails and/or refuses to carry out the repair works on the roof and external wall outside of the Premises. Mr Leung considers it necessary and reasonable for the Plaintiff to engage a specialist to apply a layer of waterproofing material to the ceiling and internal wall surfaces. However, Mr Leung said he has no comment on the quotation “given its specialist nature”.

19.This Court has looked closely into the 1-page-qutotation dated 1 November 2023, [5] where the exact waterproofing work and/or measures to be implemented are set out therein, including injection of certain materials into holes and applying waterproofing coating, etc. Having considered all the relevant factors, I find a sum of HK$380,000 reasonable under this head of loss.

Further and consequential loss incidental to and during the Remedial works

20.The Plaintiff claims HK$27,000 for the following loss resulting from the carrying out of the remedial works: (i) vacating the Premises, (ii) removing and transporting furniture and fittings to warehouse, (iii) returning the same to the Premises upon completion of the remedial works, and (iv) storage fee.

21.I accept that this falls within part of “the cost of replacement / reinstatement or the cost of abating the nuisance” and find HK$20,000 reasonable and recoverable under this head.

Alternative accommodation

22.Alternative accommodation is recoverable at law, as Master Raymund Chow observes in Chan Albert Koon Keung and Others v Yee Yun Tung. [6]

23.The Plaintiff’s case is that during the time when the remedial works and pest control measures are being carried out, the Premises will be unsuitable for living. I accept this will be the case.

24.Madam Lee obtained quotations for a short-term lease, the price of which ranges from HK$23,400 to HK$75,000 per month. It will also takes HK$200 for transportation to move into the alternative accommodation and to move back to the Premises, which I find reasonable.

25.Having considered the room size of the proposed alternative accommodation and that of the Premises, amount of monthly rentals of the available options, screen-captured photos showing advertisements of various units on lease as well as all other relevant considerations, I allow HK$26,000 (per month) for a period of 3 months = HK$78,000.

26.I find the sum recoverable from the Defendant is HK$78,200 under this head of loss (inclusive of the transportation costs).

Conclusion

27.The Plaintiff is entitled to recover from the Defendant the following:

(1)  Damages for inconvenience and discomfort:	HK$80,000
(2)  Remedial work for the Premises:	HK$97,420
(3)  Waterproofing work inside the Premises:	HK$380,000
(4)  Loss incidental to / during remedial work:	HK$20,000
(5)  Alternative accommodation:	HK$78,200
Total	HK$655,620

28.I order that the Defendant do pay the sum of HK$655,650 to the Plaintiff with interest thereon at the best lending rate of HSBC plus 1% from the date of the Writ of Summons (ie 11 May 2020) until the date of this judgment and thereafter at judgment rate until full payment.

29.I do not see any reasons to depart from costs following the event in the present case. Having read the Statement of Costs dated 24 June 2024 submitted by the Plaintiff, I order the Defendant to pay the Plaintiff’s costs, with Certificate for Counsel, summarily assessed at HK$180,000.

Mr Billy N P Ma, instructed by Humphrey & Associates, for the Plaintiff

The Defendant was not represented and did not appear