Mears Investment Ltd v. Alessandra Egert and Alexander Egert

DCCJ002209/2002

DCCJ2209/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2209 OF 2002

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Coram: H H Judge H C Wong in Court

Date of Hearing: 3 July 2003

Date of Judgment: 3 July 2003

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J U D G M E N T

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1.The Plaintiff is the registered owner of the property known as 4/F 5H Bowen Road, Hong Kong (hereinafter called "the suit property"). The Defendants are the registered owners of a property above the Plaintiff's suit property, known as 5/F 5H Bowen Road, Hong Kong (hereinafter called "the Defendants' property").

2.The Plaintiff issued a writ in these proceedings for the recovery of damages done to the suit property between September and October 2001 by water leakage from the Defendants' property into the suit property.

3.Service of the writ of summons was effected on the Defendants' property, and so were subsequent services of documents filed in court to the Defendants on the same Defendants' property. No acknowledgement of service or defence has been filed, and the Defendants being in default, interlocutory judgment was entered on 11 July 2002, with damages to be assessed.

4.At today's hearing of assessment of damages, the two Defendants were absent.

5.The Plaintiff's company secretary, director and shareholder, Mrs Leung Tsang Lin-kiu gave evidence on the Plaintiff's behalf. Mrs Leung produced her witness statement and confirmed its contents to be true and correct. She set out in her witness statement the repair work done on the suit premises and on the Defendants' property, and these can be found in paragraph 11 of her witness statement on page 11 of the bundle.

6.The repair work done involved waterproofing of the roof, internal repair work and repainting of the walls and ceiling of the suit property, replacement and installation of a new air-conditioner, and further, the engagement of a company called Kimbaco Limited for the handling of the liaison work, including the consultation of two District Councillors.

7.At enquiries by me at the hearing, Mrs Leung told me that in fact the 5th floor of 5H Bowen Road - that is, the Defendants' property - consists of the rooftop and a small structure erected on the rooftop; therefore, the repair work of the rooftop area was executed at the Defendants' property. But I am told it did not involve the structure itself on the same rooftop area. The waterproofing work had to be executed on the roof area to ensure no further rainwater would damage the ceiling and the walls of the Plaintiff's suit property, which is below the roof owned by the two Defendants.

8.As the Defendants are absent and did not defend these proceedings of assessment, I shall make an assessment based solely on the evidence adduced by the Plaintiff.

9.I shall allow the costs of repair to waterproof the roof, the repair of the ceiling and walls of the Plaintiff's suit property, and the replacement and installation costs of a new air-conditioner. However, I do not accept that the Plaintiff is entitled to recover payment for engaging a service company, Kimbaco Limited, for the liaison work, particularly in consulting District Councillors, etc., which had proven to be fruitless. What is more, the person who did the work for Kimbaco Limited was in fact Mrs Leung herself.

10.I do not consider these were expenses reasonably incurred. The work of land searches would have been part of the legal costs and are recoverable under costs.

11.In conclusion, my assessment of damages is, therefore:

(1)	waterproofing of the roof	$25,600
(2)	repair to the ceiling and walls of the suit property	$6,800
(3)	replacement of the air-conditioning and installation	$11,500
	Total:	$43,900

12.Interest of the sum awarded assessed from date of the writ to date of judgment at half judgment rate and thereafter at judgment rate until payment. Costs be to the Plaintiff to be taxed if not agreed.

Representation: