Yuen Kit Yee v. Great Rich Development Ltd.

HCA017748/1998

HCA17748/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.17748 OF 1998

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Coram: Hon Cheung J in Court

Dates of Hearing: 2 - 4 April 2001

Date of Judgment: 26 April 2001

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J U D G M E N T

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FACTS

1. The defendant was the developer of the building known as Welland Plaza ("the building") at No.188 Nam Cheong Street, Kowloon, Hong Kong. The defendant carried out pre-sale of the units in the building before the building was fully constructed as is usual in Hong Kong. The plaintiff was interested in buying Flat G on the 3rd floor ("the flat") and the flat roof thereof (together known as "the unit"). She was particularly interested in the flat roof because it would provide an open space for her family's outdoor activities. According to the floor plan and the information contained in the sales brochure of the building, there was no pipes laid on the flat roof. She had also attended the defendant's office and made inquiry from a sales officer at the counter whether there were pipes on the flat roof. The answer that was given to her was no.

2. The plaintiff on 1 August 1996 entered into a provisional agreement with the defendant to purchase the property at HK$3,805,340. The formal agreement was signed on 6 August 1996 ("the Formal Agreement") when she paid $380,534.00 to the defendant. The assignment was executed at about a year later on 25 July 1997. The plaintiff having executed the assignment inspected the unit and discovered gas pipes and water pipes were installed on the interior part of the parapet walls of the flat roof. These are large diameter pipes and they take up space on the flat roof. Access to these pipes on the flat roof has to be made through her flat. The flat roof is divided into the front and rear portion with the flat standing in between them. The door leading to one of the flat roof was not of full height and one had to bend to go through the door.

3. The plaintiff asked for help from her lawyers but was told that she had to resolve the matter with the defendant herself. She then entered into correspondence with the defendant. An offer was eventually made by the defendant to pay her $337,362. The plaintiff did not accept this offer as she considered the defendant had not resolved the question of access to her flat in the future in order to maintain the pipes. The defendant had since enlarged the height of the door to the flat roof and also covered the pipes with metal channels.

4. The present action was brought on the basis that the defendant had in breach of the express and implied term of the Formal Agreement by failing to give vacant possession of the unit to the plaintiff because of the presence of the pipes. Misrepresentation was also relied upon. Although one of the relief sought was for an order to remove the pipes, this is not pursued. Damages is the remedy now claimed by the plaintiff.

LIABILITY CONCEDED

5. Liability was conceded by the defendant on the first day of the hearing. What is at issue is the damages to be awarded. Mr Maurice Chan, counsel for the defendant, when opening the defendant's case submitted that although liability was conceded, there was no concession on the basis in which the defendant was to be held liable. While conceding liability based on breach of contract, there was no concession on misrepresentation. Furthermore, he referred to the evidence of the plaintiff in cross-examination and submitted that the plaintiff had not relied on the representation by the sales officer about the pipes in deciding to buy for the unit. Mr Maurice Chan stated that there was a difference in the measure of damage for breach of contract and tort.

6. When the defendant accepted liability, there was no qualification on the basis of such a concession. If there was, I would have thought that the plaintiff's approach on the evidence would be different. In my view, having made the concession without qualification, the defendant is bound by it. The causes of action of breach of contract and misrepresentation are merged in the judgment itself : see Halsbury's Laws of England, Vol.26, 14th Ed. Supp 2000 para 551. It will not be necessary nor is it permissible for me to make further findings on the causes of action specifically on the question of misrepresentation.

MEASURES OF DAMAGES

7. There obviously is a distinction between damages for breach of contract and tort :

"... In contract, however, the wrong consists not in the making but in the breaking of the contract and therefore the plaintiff is entitled to be put into the position he would have been in if the contract had never been broken, or in other words, if the contract had been performed. The plaintiff is entitled to recover damages for the loss of his bargain. In tort, on the other hand, no question of loss of bargain can arise: the plaintiff is not complaining of failure to implement a promise but of failure to leave him alone. The measure of damages in tort is therefore to be assessed on the basis of restoring as far as possible the status quo ante. ..." (McGregor on Damages, 16th Ed., Para 810)

8. However, this distinction is of little significance in this case. Because as one of the plaintiff's causes of action is contract, she is entitled to claim damages for loss of her bargain. One, therefore, does not have to be concerned with whether the misrepresentation has become part of the contractual term and the discussion on the more restricted scope of damages if it has not become part of the contractual term is irrelevant.

BREACH OF COVENANT FOR QUIET ENJOYMENT

9. Mr Maurice Chan, in his closing submission, referred to two cases on damages for breach of covenant for quiet enjoyment by reason of the presence of a right of way and argued that only nominal damages should be awarded in this case. In Sutton and Another v. Baillie (1892) 65 The Law Times 528, the court held that the measure of damages was :

(1) the difference in the value of the land free from the rights of way and fettered; and

(2) the costs by the purchaser in defending the claim by the person relying on the right of way.

10. In Child v. Stenning (1879) 11 Ch.D., it was held that the measure of damages payable by the lessor was not the permanent injury to the land, but only the damage sustained at the commencement of the action. Jessel M.R. observed that :

"... Then there is the evidence of the surveyor as to the diminished value of the land as building land, which would be available, no doubt, if the action had been on a covenant for title, that is, a covenant that the vendor was seised, or that the lessor had a right to convey, but which is not admissible in an action merely for breach of the covenant for quiet enjoyment. ..."

11. The authors of McGregor seeks to distinguish these two cases on the basis that in sale of land there is in addition to the covenant for quiet enjoyment the covenant for good title to convey. Sutton was a case on sale of land, while Child was where the landlord granted a lease to the tenant.

12. At the conclusion of the oral submissions, I directed further written submissions to be submitted by the parties. The need arose because the issue on whether substantial damage is recoverable should be fully explored. In his subsequent written submission, Mr Maurice Chan referred to Turner v. Moon [1901] 2 QB 825, in which the purchaser of land claimed damages for breach of the covenant for title impliedly contained in an indenture of conveyance in that the vendor had failed to disclose the existence of a right of way. It was held that the damages were the difference between the value of the land "as purported to be conveyed, and that which the vendor had power to convey".

13. In Eastwood v. Ashton [1913] 2 Ch. 39, the purchaser also sued for damages under the covenants for title implied by the vendor because part of the land conveyed to the purchaser had already been acquired by adjourning owners by way of adverse title. The purchaser had to make substituted arrangements to acquire other land in place of the part which it could not use. Sargant J in adopting Turner, held that the damages were the difference in value between the land as purported to be conveyed and the land as it actually passed to the purchaser.

COVENANT ON TITLE

14. The difference of the covenant for title and covenant for quiet enjoyment is succinctly set out in Halsbury's, Vol.42, 4th Ed. Reissue :

"343. Nature of the covenant. The covenant for right to convey is a covenant for title, but the covenant for quiet enjoyment is a covenant relating to possession. This distinction affects both the date when the covenant is broken and the measure of damages. A covenant for title is an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey, and it is broken by the existence of an adverse right such as a right of way, or any outstanding interest, charge or claim which may prevent the purchaser from enjoying this estate. There is also a breach where, by the vendor's omission to prevent the acquisition of an adverse title by possession, he has no title to part of the land which he purports to convey. Hence the covenant for right to convey is not a continuing covenant, but is broken once and for all at the time of the conveyance if there is then a defect in title which prevents the vendor from conveying the estate which he purports to convey. Consequently time begins to run immediately against an action for breach of the covenant. The purchaser can sue on the covenant notwithstanding that the defect in title is disclosed by a recital in the conveyance. The purchaser is entitled to a conveyance expressed to be subject to such incumbrances as are mentioned in the contract.

344. Measure of damages. The measure of damages is the difference between the value of the property as purported to be conveyed and its value as it actually passes to the purchaser. Hence a purchaser who loses the land can only recover the amount of the purchase money and not the value of subsequent improvements.

345. Covenant for quiet enjoyment. The covenant for quiet enjoyment is a future covenant. Consequently there is no breach of the covenant until the covenantee is disturbed in his enjoyment. ..."

15. Clause 16 of the Formal Agreement expressly provides that "the Vendor shall show a good title" to the unit. There is also an implied term on covenant for title under section 3, First Schedule Part II of the Conveyancing and Property Ordinance ("the Ordinance"), see also section 35(1) of the Ordinance.

16. Although the pleading referred to the defendant's obligation to give vacant possession, I think, in substance and in truth, the plead is one of breach of covenant for title. The matter can be tested in this way : without going into details, if the pipes were discovered before completion, the plaintiff would have been entitled to raise requisition on title of these pipes. These pipes would constitute encumbrance and defects in the title of the defendant which would entitle the plaintiff not to complete. Although the sale had been completed which will preclude the plaintiff from rescinding the sale, nonetheless, she is entitled to recover damages on the covenant for title :

"353. Damages, compensation or return of purchase money. After completion of the contract the transaction is generally at an end between vendor and purchaser, and no action can be maintained by either party against the other for damages or compensation on account of errors as to the quantity or quality of the thing sold, except in so far as the purchaser may be entitled to sue on the covenants for title, or on any express provision for compensation for errors of description, or in respect of any breach of a warranty or collateral agreement or for fraudulent or negligent misrepresentation. The purchaser cannot on the ground of adverse claims recover purchase money which has been paid or detain money unpaid, but must rely on the covenants for title. In the absence of covenants for title or so far as these do not apply, he is without remedy in relation to his purchase money, unless he can obtain rescission on the ground of misrepresentation or mistake. (Halsbury's Para.353)"

17. In the present case, in my view, the plaintiff is entitled to recover damages for her loss of bargain : a breach had occurred on the covenant for title by the presence of the pipes. The plaintiff is entitled to substantial damages and not merely nominal ones as suggested by Mr Maurice Chan.

TRESPASS

18. Mr Wu, counsel for the plaintiff, submitted one of the causes of action is trespass. Referring to Scutt v. Lomax (2000) 79 P & C.R. D31, he submitted that the plaintiff is entitled to diminution of the value of the flat roofs and damages. Having found for the plaintiff on the basis of the breach of the covenant for title, it is not necessary for me to deal further with this matter.

DIMINUTION IN VALUE OF THE UNIT

19. The proper measure of damage by reason of the presence of the pipes should be the diminution in value of the unit by reason of the pipes. This has two elements. First, the actual flat roof area that can be enjoyed by the plaintiff has been reduced by the pipes and second, the enjoyment of the roof has been affected by the presence of the pipes by reason of their appearance and potential hazard due to leakage. This is the view of the plaintiff's expert Multiple Surveyors Ltd ("Multiple"). This is also a view of Debenham Tie Leung ("Debenham"), the defendant's expert who referred to the area occupied by the pipes and "inconvenience caused to the owner due to the existence of the pipes on the flat roof" in assessing the diminution in value of the unit. Likewise Jones Lang La Salle ("Jones Lang"), another of the defendant's expert also take into account the presence of the pipes and inconvenience caused to the owner. The difference of the experts is in their methods in arriving at the figure of compensation.

20. A further element is the disturbance that may be caused in the future maintainence of the pipes. This will be dealt with separately.

AREA OF THE FLAT ROOF

21. The first matter to be resolved in assessing the damage is the area of the flat roof. Part III of the First Schedule of the Formal Agreement stated that the saleable area of the flat is approximately 46.11 square metre and the flat roof saleable area is approximately 87.40 square metre.

METHODS OF MEASUREMENT

22. Mr Chan Chi Yuen of Jointgoal Surveyors Ltd ("Jointgoal"), the plaintiff expert, stated 87.40 square metre should not be used in calculating the flat roof area because "saleable area" measurement has no application to flat roof. Instead he relied on the Guideline of January 1994 ("the 1994 Guideline") issued jointly by the Royal Institution of Chartered Surveyors Hong Kong Branch, The Hong Kong Institute of Surveyors and The Consumer Council. In it, it is said that the flat roof shall be measured from the interior of the boundary wall. It also stated that saleable area of a unit shall be measured from the exterior of the enclosing walls of the units. The 1999 Code of Measuring Practice issued by The Hong Kong Institute of Surveyors contains different provisions for measuring the flat roof. It stated that the flat roof shall be measured on the basis of internal floor area or salable area as the case may be. The internal floor area (內部樓面面積) is "the area contained within the enclosing walls of that unit measured to the interior face of the external wall". Saleable area (實用面積/銷售面積) means "the area contained within the enclosing walls of the unit measured up to the exterior face of an external wall". By these definitions, a saleable area measurement will include the width of an external wall as well.

23. The reason Mr Chan Chi Yuen said that the flat roof should be measured from the internal of the enclosing wall is by reference to the definition of "the saleable area" in Clause (f) of the Recital of the Formal Agreement which provides that :

"(f) 'the saleable area' shall mean:-

The floor area of the unit (which shall include the floor area of any balconies and verandahs), the subject of this Sale and Purchase Agreement (hereinafter called 'the said unit'), measured from the exterior of the enclosing walls of the said unit except where such enclosing walls separate two adjoining units in which case the measurement shall be taken to the middle of those walls, and shall include the internal partitions and columns within the said unit; but shall exclude the common parts outside the enclosing walls of the said unit Provided that if any of the enclosing walls abut onto a common area, then the whole thickness of the enclosing walls which so abut shall be included.

The saleable area shall not include:

(a) any cocklofts,

(b) any bay windows which do not extend to the floor level of the said unit,

(c) any carparking spaces, car ports, yards, terraces, gardens and roofs of any description,

but the areas of such cocklofts (which shall be measured in accordance with this clause) and of such bay windows, carparking spaces, car ports, yards, terraces, gardens and roofs shall be specified and described as additional separate items in Part III of the said First Schedule."

24. Mr Chan Chi Yuen said that under this clause, a cockloft is specifically provided to be measured in accordance with the clause but there is no similar specific provisions for areas such as "yards, terraces, gardens and roofs", hence the measurement should be made in accordance with the 1994 Guideline.

PART III OF FIRST SCHEDULE

25. Clause (f) is only a definition section. One has to look at the operative part of the Formal Agreement to see what was to be sold to the plaintiff and the measurement thereof. Clause 1 provides that :

"1. The Vendor shall sell and the Purchaser shall purchase ALL THOSE the equal undivided parts or shares more particularly described in Part II of the said First Schedule of and in the land which for the purposes of identification is shown on the Site Plan attached hereto and thereon coloured pink and of and in the Building now under construction thereto to be known as 'WELLAND PLAZA (華麗廣場)' No.188 Nam Cheong Street, Kowloon TOGETHER with the exclusive right to hold use occupy and enjoy ALL THAT the UNIT of the said Welland Plaza more particularly described in Part III of the said First Schedule and shown on the Floor Plan hereto attached and thereon coloured pink the saleable area of which is more particularly set out in Part III of the said First Schedule (which said undivided shares and the said Unit are hereinafter collectively referred to as 'the said premises') .... (emphasis added)"

26. The unit that the plaintiff bought is the flat and flat roof. This is clear from Part III of First Schedule :

"PART III : FLAT G on the THIRD FLOOR and the FLAT ROOF appertaining thereto of WELLAND PLAZA (華麗廣場) the saleable area of which is approximately 46.11 square metre.

Additional area of flat roof saleable area approximately 87.40 square metre."

27. The pink colour portion of the floor plan identifies both the flat and the flat roof (both front and rear). Clause 1 specifically refers to the saleable area of this unit that are set out in Part III. It is beyond question that the flat roof has to be measured according to the saleable area measurement.

JOINTGOAL'S MEASUREMENT

28. The saleable area of the flat roof is stated to be 87.40 square metre. Mr Chan Chi Yuen's measurement of the flat roof is 79.60 square metre. He did not measure the thickness of the enclosing wall. This is obviously wrong. He also did not measure the area below the bay windows of the flat because of its limited usage due to the height. This exclusion is also wrong because, the bay windows are not measured for the purpose of measuring the area of the flat, hence there is no question of double measurement if the area of below the bay window on the flat roof is measured as part of the flat roof. Jointgoal also excluded a small area between the bay window and the parapet wall. The exact measurement has not been specified. This is not a matter of significance. The area that should be adopted for calculating the damage should be the 87.40 square metre as stated in the Formal Agreement.

DEBENHAM

29. Debenham also deducted an unusable area on the flat roof, the plaintiff accepted that this should not be deducted.

VALUE OF THE FLAT ROOF

30. As a starting point, one has to ascertain the value of flat roof with the presence of the pipes.

1. Both Multiple and Debenham had used the set price of Unit G on the 4th floor ("4G") of the building to ascertain the value of the flat roof. 4G does not have a flat roof but the flat itself is of the same size as 3G. The set price of 4G has to be adjusted to reflect that it is one floor higher than 3G.

31. The set price of 4G is $3,119,000 x (1 - 0.005) = $3,103,405

2. The set price of 3G is $3,883,000. The difference of these two set prices will give the value of the flat roof, i.e.$3,883,000 - $3,103,405 = $779,595.

3. Multiple had used the actual sale price of 3G of $3,805,340 to work out the value of the flat roof. Debenham used the set price and not the actual sale price. I think Debenham's approach is correct because one really has to compare like with like first.

4. However, since the actual sale price of 3G is less than the set price by $77,660 (i.e. $3,883,000 - $3,805,340 = $77,660) or 2%, the value of the flat roof has to be adjusted likewise by a discount of 2% (i.e. $779,595 x 98% = $764,003).

5. The unit rate of the flat roof is $764,003 ÷ 87.40 square metre = $8,741 per square metre.

6. Multiple stated that no reasonable purchaser would pay the same price to buy a flat roof one with and the other without the pipes. To allow for the impact of the pipes, a downward adjustment of 20% of the unit price is reasonable. The defendant's experts did not comment on this adjustment.

7. In my view, since one is concerned with the diminution in value of flat roof by reason of the pipes, the proposed downward adjustment is correct, and in the absence of contrary evidence the 20% should be adopted. The adjusted unit value is :

32. $8,741 x 80% = $6,993 (rounded up from $6,992.80)

AREA OCCUPIED BY THE PIPES

33. Jointgoal measured the area occupied by the pipes and drains at 9.47 square metre. The drains are not on the wall but on the floor. Debenham measured the area occupied by the pipes only at 9.38 square metres. As the complaint is really of the gas pipes and water pipes, the area occupied by the drains should be ignored. I will adopt 9.38 square metre. This should be deducted from 87.40 square metre, (87.40 square metre - 9.38 square metre) = 78.02 square metre.

VALUE OF FLAT ROOF WITH PIPES

34. The actual value of the flat roof with the pipes is $6,993 x 78.02 square metre = $545,594 (rounded up from $545,593.86)

LOSS IN VALUE OF THE FLAT ROOFS WITH PIPES

35. The price paid by the plaintiff for the flat roof is $764,003. The actual value is $545,594. The difference is $218,409. The plaintiff is entitled to recover this sum from the defendant.

OFFERS BY THE DEFENDANT

36. The defendant had offered $337,362 to the plaintiff in settlement of her claim. This cannot be the proper basis for evaluating the diminution in the value of the flat roof. The defendant simply adopted a set of measurement which it considered to represent an unusable area of the flat roof by reason of the pipes. This area is larger than the actual area occupied by the pipes. This figure is arbitrary and merely reflects the price that the defendant was willing to pay to settle the dispute, see also the comment of His Honour Judge Cruden on such offers in Chow Chi Keung v. China Light & Power Company Limited (Lands Tribunal Miscellaneous Reference No.1 of 1982 (Decision dated 11 March 1983).

37. The defendant had also offered compensation to other units on the 3rd floor with the flat roof. This was to compensate the owners for the presence of the pipes. The figures there were offered were also arbitrary in that the defendant also adopt a set of measurement which it considered to represent an unusable area of the flat roof by reason of the pipes. This area is larger than the actual area occupied by the pipes. In relation to 3H, the offer that was eventually made included further concession by the defendant because of the demands by the owner of 3H. Despite the fact that the area of 3H is smaller than 3B, 3H received a higher settlement than 3B.

38. Based on such figures, Debenham and Jones Lang prepared valuations on the value of the flat roof by reason of the pipes. They used 3B's settlement as the basis of the calculation because 3B and 3G are of the same size. In my view there is a wrong approach because the basis on which such valuation is made is without any standard. It was the result of arbitrary determination and concession by the defendant in the process of settlement with the affected owners. A larger settlement received by the owner of a smaller unit had also been ignored. These two experts were merely trying to rationalize the offer when in fact none exists. Jones Lang said that the settlement was the reaction of the market. Surely this cannot be the basis of valuation of the loss sustained by the plaintiff. Suppose, the defendant had insisted on calculating only the actual area occupied by the pipes as the basis of compensation, and the other owners had, for reasons best known to themselves, accepted such sums, can these sums really form the proper basis for the diminution in value of the flat? The answer must be no. I am unable to accept the figures suggested by the defendant or its two experts as the proper basis for valuation.

PARTIAL EVICTION?

39. It was further submitted that there should be a further downward adjustment of the damages because unlike Eastwood, in which the purchaser was evicted from that part of land, the plaintiff was only partially evicted by the presence of the pipes. It think this is a distinction without substance. The fact that the plaintiff can use the space above the pipes is irrelevant. The pipes constituted a defective title and hindered the plaintiff in her full use and enjoyment of the flat roof. There should not be any further reduction of the damages recoverable by her.

OTHER LOSSES

1. Management fee

40. Multiple had wrongly assumed that the plaintiff had to pay higher management fees because of the flat roof. In fact this is not so as all unit G on the 3rd to 13th floors of the building are required to pay the same amount of management fees even though the upper floors do not have the flat roof.

2. Government rent and rates

41. Government rents are apportioned according to the allocation of undivided shares of the unit, but rates are assessed on the annual rental value. Multiple stated that because of the area occupied by the pipes, the plaintiff had to pay for a higher government rent and rates.

Pipe Area	9.38	square metre
Rest of the flat roof	78.02	square metre
	87.40	square metre

42. The allotted undivided shares for 3G are 373 shares while for other G units without the flat roof, except 13G, are 328 shares. The difference is 45 shares which are attributable to the flat roof.

43. The undivided shares attributed to the pipes are :

9.38	x 45 shares = 4.829 shares
87.40

44. Because Multiple had adopted a larger area for the pipes, the shares it attributed to them are 8.89 shares which are approximately double that of 4.829 shares. This is an area which is not capable of exact mathematical calculation. As Multiple's approach is correct in principle, I will simply halve the sum found by Multiple for the damages under this head:

Past payment	$280
Future payment based on years' purchase of 47 years at 5.5%	$1,650
Total:	$1,930

3. Solicitor fees and stamp duty

45. As the plaintiff paid an extra $218,409 for the flat roof, she proportionally paid a higher solicitor fee and stamp duty for the conveyance. The parties have to submit an agreed calculation of such fees because of the extra $218,409. The plaintiff is entitled to recover from the defendant these extra fees.

4. Disturbance due to the maintenance of the pipes

46. It is inevitable that the pipes would need to be serviced and maintained particularly when the building becomes older. Multiple assumed that regular inspection and annual repair will take a total of seven days a year and 329 days for the duration of the life of the building at 47 years. The defendant, on the other hand, stated that based on repairs of pipes on other buildings, the number of repairs ranged from one to seven each year. It calculated the loss on the basis of rental of the unit attributed to such repair arriving at a figure of $144,760. It further included the daily costs of a part time maid when the service took place arriving at a figure of $197,400, making a total of $342,160. In my view, this method of calculation is absurd because while disturbance will be caused to the plaintiff by access through her flat, such access and use of the flat roof during the maintenance is transitory in nature.

47. This is again an area which is not capable of exact calculation. There is no doubt that disturbance will be created for which the plaintiff should be compensated. This is a direct consequence of the breach of covenant for title. The provision in the Deed of Mutual Covenant ("the DMC") that the manager of the building can, by giving notice to the plaintiff, gain access to the flat roof to inspect the pipes, is not an answer to the plaintiff's complaint. The simple point is the plaintiff did not wish to acquire the pipes on her flat roof. Without the pipes, the provision of the DMC will simply not arise.

48. It is further said that the repair workers could simply have climbed over the railing between the flat roofs of 3G and unit 3H to enter 3G. Access to the flat roof of unit 3H does not need the workers to go through the flat itself, but by way of a light well. The fact is that railing between 3G and 3H had since been increased in height at the request of the owner of unit 3H because the area is near to its bedroom area. The plaintiff was clearly entitled to do so because she is the owner of her own unit. She had in fact during negotiation with the defendant suggested constructing a gate between the flat roofs of 3G and 3H for access. This was not taken up by the defendant.

49. In my view, the only feasible approach in this area is to award a lump sum to represent damages then may be due to the plaintiff because of the inevitable disturbance of workers going through her flat, and at different parts as well, in order to reach the front and rear flat roofs. Doing the best I can, the figure I will adopt is $80,000.

CONCLUSION

50. There shall be judgment to the plaintiff for the following sums :

1.	Diminution of value of the flat	$218,409
2.	Extra government rates and	$280
	rent	$1,650
3.	Extra solicitor fees and stamp duty	(To be agreed by parties)
4.	Future Disturbance due to maintenance	$80,000

51. The total is $300,339 plus the extra solicitor fees and stamp duty.

52. Interest at commercial rate of 9.5% per annum (best lending rate for August 1996 at 8.5% per annum plus 1%) and 9.75% per annum (best lending rate for July 1997 at 8.75% per annum plus 1%) respectively shall be awarded on $218,409 and the extra solicitor fees and stamp duty respectively from 6 August 1996 and 25 July 1997 respectively until judgment. Thereafter these two sums are to attract judgment rate until payment. The rest of the awards shall attract interest at judgment rate from the date of judgment to payment.

53. The plaintiff is to have costs nisi of the action.

Representation:

Mr Paul Wu, instructed by Messrs Susanna Wong & Co., for the Plaintiff

Mr Maurice Joseph Chan, instructed by Messrs Yam & Co., for the Defendant