Chan Yip Cheung and Another v. Fong Chow Wo and Another

DCCJ 3574/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.  3574 OF 2005

BETWEEN

Coram: Deputy District Judge Anthony Chow in Court

Date of Hearing of Assessment: 12^th July 2006

Date of Handing Down of Assessment of Damages: 19^th July 2006

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ASSESSMENT OF DAMAGES

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1.The plaintiffs were and at all times the registered owners and occupiers of the premises situated at and known as Flat D, 12^th Floor, Block 3, Wonderland Villas, No. 9 Wah King Hill Road, Kwai Chung, New Territories, Hong Kong.

2.The defendants were and at all times the registered owners and occupiers of the premises situated at and known as Flat D, 13^th Floor, Block 3, Wonderland Villas, No. 9 Wah King Hill Road, Kwai Chung, New Territories, Hong Kong.

3.Registered in the Land Registry of both premises are Deed of Mutual Covenant (Memorial No. TW335611) and Sub-Deed of Mutual Covenant (Memorial No. TW396843).

4.Since on or about the middle of 1998, in breach of the Sub-Deed of Mutual Covenant, water began to leak from the defendants' premises to the plaintiffs' premises, resulting in damages to the plaintiffs' premises.

5.Despite repeated requests and demands, the defendants have failed to stop the leakage of water.

6.Unable to cope with the deteriorating condition of their premises, on or about 1/5/2005, the plaintiffs moved out of their premises.

7.On or about 27/7/2005, the plaintiffs filed claim against the defendants for the following relief:

(a) An injunction to restrain the defendants whether by themselves, their agents or servants or otherwise howsoever from continuing to cause or permit to be caused leakage of water from the defendants' premises to the plaintiff's premises;

(b) Damages to be assessed;

(c) Loss of rental to be assessed;

(d) Interest;

(e) Costs; and

(f) Further or other relief.

8.On or about 17/10/2005 and 22/10/2005, the plaintiffs hired AA Property Services Ltd. to conduct surveys on both properties to determine the source of the water leakage. In their report dated 21/12/2005, AA Property Services Ltd. concluded the water leakages were from the defendants' premises. 

9.On 18/8/2005, the Building Authority issued an order under section 28(3) of the Building Ordinance, Cap. 123 Laws of Hong Kong, against the defendants, due to water seepage and defective drains in the defendants' premises. Letter of Compliance of the building order was issued by the Building Authority on 5/6/2006 and registered on title on 28/6/2006.

10.On 23/1/2006, Master T. Chan entered judgment for the plaintiffs against the defendants for, inter alia, damages to be assessed.

11.On or about 7/1/2006, the plaintiffs hired China Hongkong Valuers (International) Ltd. to conduct an appraisal of the damages caused by the water leakage. In their report dated 14/1/2006, the total remedial costs was assessed at HK$75,820.00.

12.In addition to the costs of remedial work, the plaintiffs also claim loss of rental for their premises from January 2005 to July 2006 at the rate of HK$9,750.00 per month or HK$185,250.00 in total.

13.The assessment of damages was heard before me on 12/7/2006. The plaintiffs were represented by Miss Cheung of Messrs. Christopher Li & Co. The 1^st defendant represented himself and the 2^nd defendant. Although the hearing was in punti, but the pleadings, the witness statements and all expert reports were in English, for convenience and with the consent of the parties, this assessment is written in the English language.

14.I will deal with the two items of damages separately.

Remedial Costs:

15.The only issue the defendants raised on quantum of the remedial costs was the fact that before 2005, the plaintiffs gave them a contractor's estimate of the remedial costs that was approximately HK$60,000.

16.The plaintiffs' reply was that the 14/1/2006 appraisal report was the latest assessment on the remedial costs.

17.The defendants seem to forget that after the first estimate was given before 2005, the water leakage had continued. In fact the leakage did not stop until June 2006. With continued water leakage, it is natural that the plaintiffs' premises would have suffered additional damages. It is natural that the remedial costs in 2006 would be higher than in 2005.

18.As it is, I have an expert appraisal report that assessed the costs of remedial work at HK$75,820.00, the burden is on the defendants to adduce evidence that this appraisal report is incorrect. The defendants adduced no such evidence and having considered all of the evidence before me, I assess the costs of remedial work to the plaintiffs' premises at HK$75,820.00.

Loss of Rental:

19.Although worded as loss of rental, since the plaintiffs were occupying their premises personally, this item of claim should more appropriately be called loss of enjoyment.

20.To support the estimated rental value of HK$9,750.00 per month, the plaintiffs submitted all sales and rental records for Wonderland Villas for the period between April 2005 and March 2006. Of all of the rental transactions, only 2 were similar in size to the plaintiffs' 850 square feet premises. On or about 8/11/2005, an 837 square feet unit was rented for $11,000.00 per month. On or about 4/9/2005, an 839 square feet unit was rented for $9,300.00 per month.

21.So far as the length of the loss of use, the letter of compliance was registered on title on 28/6/2006. Even if the plaintiffs commenced remedial work immediately, it would have taken the rest of June and July 2006 to hire competent contractor and complete the remedial work.

22.Having considered all of the evidence before me, I agree with the Plaintiffs' estimate that their premises could be rented at $9,750.00 per month and I assess their loss of use due to water leakages from the defendants' premises at HK$9,750.00 per month from January 2005 to July 2006 or HK$185,250.00.

23.Finally, the plaintiffs suffered the costs of the survey and assessment reports as a result of the defendants' breach and the plaintiffs are entitled to recover these expenses from the defendants as well.

24.I assess the plaintiffs' damages as follows:

(1) Costs of remedial work	HK$  75,820.00
(2) Loss of enjoyment	HK$185,250.00
(3) Costs of survey and assessment reports	HK$  15,500.00

25.Accordingly, the plaintiffs' damages are assessed at HK$276,570.00.

26.The plaintiffs should also recover interest against the defendants at the judgment rate from date of writ until the date of handing down of this assessment and thereafter at the judgment rate until full payment is received.

27.I also make costs order nisi that the defendants do pay the plaintiffs costs of this assessment, to be taxed if not agreed. This costs order should be made absolute after the expiration of 14 days from the date of handing down of this assessment.

Miss Cheung Wai Man of M/S Christopher Li & Co. for the Plaintiffs.

The 1^st Defendant (on behalf of himself and the 2^nd Defendant) appearing in person.