Lee Siu Yee and Another v. Global Chemicals (China) Co Ltd
Read the full judgment text of DCCJ 6065/2003 on BabelCite. This District Court judgment.
1. This is a claim by the Plaintiffs, as registered owners and landlords of the property known as Unit A2, 5 th Floor and car parking space No. 24, Nicholson Tower, No. 8 Wong Nai Chung Gap Road, Hong Kong (hereinafter called “the Premises”) against the Defendant, their former tenant for damages for breach of a tenancy agreement in writing dated 1 April 2002 (hereinafter called “the Tenancy Agreement”).
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DCCJ6065/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 6065 OF 2003 -------------------- BETWEEN
-------------------- Coram : Deputy District Judge K. Lo in Court Dates of Hearing : 9th to 12th, 15th, 18th of October 2007 and 26th to 27th of November 2007 Date of Handing Down Judgment : 30th May 2008 Judgment Background 1.This is a claim by the Plaintiffs, as registered owners and landlords of the property known as Unit A2, 5th Floor and car parking space No. 24, Nicholson Tower, No. 8 Wong Nai Chung Gap Road, Hong Kong (hereinafter called “the Premises”) against the Defendant, their former tenant for damages for breach of a tenancy agreement in writing dated 1 April 2002 (hereinafter called “the Tenancy Agreement”). 2.It was agreed under the Tenancy Agreement that Judy Lau (“Lau”) of the Defendant and her family would reside in the Premises. 3.Upon signing of and pursuant to the Tenancy Agreement, the Defendant had paid the Plaintiffs a sum of $100,000 being rental deposit securing the due performance and observance of the terms of the Tenancy Agreement. 4.The tenancy period of the Tenancy Agreement ran from 1 April 2002 to 31 July 2003. It was not in dispute that Lau and her family occupied the Premises from 15 July 2001 to 28 July 2003. 5.Lau moved in the Premises on 15 July 2001 pursuant to another earlier tenancy agreement (“the earlier Tenancy Agreement”) between the Plaintiffs as landlord and Dynasty Top Investment Ltd. (“Dynasty”) as tenant. 6.It was during the tenancy of the earlier Tenancy Agreement that the Plaintiffs were requested by Lau to terminate the same and to enter into the Tenancy Agreement with the Defendant as the tenant in place of Dynasty. 7.The Defendant moved out of the Premises in or about 29 July 2003, terminating the tenancy on 31 July 2003. 8.On inspection of the Premises, the Plaintiffs were dissatisfied with the state of the repair of the Premises. They alleged the Defendant had breached clause 2 (d) of the Tenancy Agreement, i.e. they had breached the covenant to repair. 9.They seeked to recover loss and damages suffered by them as a result of the breach. 10.At the start of the trial, the Plaintiffs had confirmed deleting 19 items from his claim (i.e. item Nos. 3, 5, 28, 32, 38, 57, 69, 72, and 1, 12, 18, 19, 26, 31, 40, 42, 45, 55 and 58 as referred to in Appendix C of the Defendant’s Surveyor Report). 11.The Defendant on the other hand had also conceded liability to pay renovation costs in respect of 38 items i.e. items 2, 7, 10, 11, 14, 15, 17, 20, 21, 22, 23, 24, 25, 29, 30, 36, 37, 41, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 59, 60, 61, 62, 63, 64, 65, 67, 70 and 71. The reinstatement costs of these items however were not agreed between the parties. 12.As the items for reinstatement under consideration in this case were voluminous, for ease of reference, counsels for both parties had prepared and produced to this Court schedules setting out their respective stances. The Law 13.An authoritative definition of what is meant by “good tenantable repair” is set out in Woodfall on Landlord and Tenant (“Woodfall”), para. 13.041, where it was said that in the leading case of Proudfoot v. Hart (1890) 25 QBD 42, Lopes L.J. defined “Good tenantable repair” as being “such repair as, having regard to the age, character and locality of the house, could make it reasonably fit for the occupation of a reasonably minded tenant of the class who would likely to take it”, and he contrasted what it would mean in Grosvenor Square with what it would mean in Spitalfields. 14.Woodfall also stated that in Fluor Daniel Properties Ltd v Shortlands Investments Ltd. [2001] 2 EGLR 103 where the landlord is required to repair, and the tenants are required to contribute, the standard of repair which the landlord is entitled to adopt at the tenants’ expense must have regard to their limited interest in the building. If the landlord wishes to carry out repairs that go beyond those for which the tenants, given their more limited interest can fairly be expected to pay, the landlord must bear the additional costs himself. 15.It was said in Woodfall that where the obligation is imposed on the tenant, the choice of methods of carrying out the repairs is a matter for him. So where air conditioning plant was working satisfactorily although close to the end of its useful life, and any defects in it were capable of remedy without completely replacing the system, the tenant was not obliged to replace it (Land Securities v. Westminister City Council (No. 2) [1995] 1 EGLR 245. 16.Para. 13.044 of Woodfall stated “It is a question of construction what liability for painting is imposed by a covenant and a question of fact whether that liability has been satisfied.” 17.On a covenant, as often as necessary, well and sufficiently to repair, uphold, sustain, paint, glaze, cleanse and scour, and keep and leave the premises in such repair, reasonable wear and tear excepted, it was held that the tenant, if he has repainted within a reasonable time before leaving, is only bound, in addition to repair of actual dilapidations, to clean the old paint etc. and not to repaint (Scales v. Lawrence (1860) 2 F.&F. 289). 18.The law is clear that the liability towards a repairing covenant is sometimes limited by the exception of dilapidations caused by fair or reasonable wear or tear. 19.In the case of Haskill v. Marlow [1928] 2 KB45, it was said that the exception of want of repair due to wear and tear must be construed as limited to what is directly due to wear and tear, reasonable conduct on the part of the tenant being assumed. He is bound to do such repairs as may be required to prevent the consequences flowing originally from wear and tear from producing others which wear and tear would not directly produce. 20.It was also said in Woodfall that when the lessee has covenanted to repair the interior of premises, “reasonable wear and tear excepted,” he will not be liable for damage caused by the bursting of an outside water-pipe which the landlord, to whom it belonged, had failed to repair after notice (Citron v. Cohen (1920) 36 TLR 560). 21.Parties agree that the burden of proof lies on the Defendant as tenant to establish that the want of repair fall within the exception of ‘fair wear and tear’. Issues 1. Was there a breach of clause 2 (d) of the Tenancy Agreement by the Defendant? 2. If there was such a breach, what was the amount of loss and damages suffered by the Plaintiffs? 1. Was there a breach of clause 2 (d) of the Tenancy Agreement by the Defendant? 22.The Premises was a middle upper class domestic unit in a building completed in the year 1991. 23.The same was occupied by the Plaintiffs and their family between year 1991 to 2001 prior to Lau moving in the Premises. 24.Under Clause 2 (d) of the Tenancy Agreement, the Defendant as tenant agreed:
25.Clause 2 (l) of the Tenancy Agreement also provided that:
26.Counsel for the Defendant submitted that since the Remarks Clause of the Tenancy Agreement stated that as the Tenant agreed to take the premises on an ‘as is’ basis, and that both agreed that the Landlord shall not provide any further, additions and/or repair work to the premises, the Plaintiffs as landlord were, at time of the Tenancy Agreement, aware of the water leakage/ seepage problem in the Premises but they did not want to assume further repair responsibility. 27.The Tenancy Agreement was made immediately after early termination of the earlier Tenancy Agreement between the Plaintiffs and Dynasty. 28.This Court is of the view that the Remarks Clause merely tried to absolve the Plaintiffs from duty to touch up and/or redecorate the Premises before commencement of the Tenancy Agreement as a landlord would normally do. On its natural reading, the insertion of such Remarks Clause does not mean that the Plaintiffs were aware of any leakage problems in the Premises. 29.In fact, this Court find the Plaintiffs were all along very anxious and concerned that the Premises was kept to the best state and condition. They would not have allowed a water leakage problem, if known, unattended. 30.In any event, whatever the state of repair of the Premises at time of the Tenancy Agreement, the Defendant as tenant was still bound under the Tenancy Agreement to deliver the Premises to the Plaintiffs on termination of the same, in good tenantable state and condition. 31.It is agreed that the fittings in the Premises were those originally provided by the developer before the Plaintiffs and their family moved in year 1991. 32.According to the Plaintiffs, just before Lau moved in the Premises under the earlier Tenancy Agreement, they had rewaxed the floor, repainted the walls of the Premises, changed the wallpaper of Room No. 2. 33.The Plaintiffs also said during the 10 odd years they lived there, they kept the Premises in good condition. The Plaintiffs said they never flooded the Premises nor were they aware of any water leakage problem in the Premises. He said the timber floor of the Premises was never damaged nor was there any bulging of the timber floor then. 34.The Premises though situate on the 5th floor, was actually just above the carpark. 35.Although Lau in her witness statement said when she moved in the Premises, there was general dampness in the Premises, she had later corrected herself in Court and clarified the condition of the Premises was fine when she first moved in. 36.Parties agree that during the tenancies, the management of the building received no complaint/report of flooding or water seepage involving the Premises nor did they notice any sign of flooding/water seepage in the Premises. 37.Shortly after the Defendant delivered vacant possession of the Premises to the Plaintiffs in late July 2003, the Plaintiffs had instructed Tse Wai Leung (“Tse”) of RHL Appraisal Ltd. to inspect the Premises on 5 August 2003 in order to prepare a surveyor report. 38.Likewise, the Defendant had also instructed Lee Chun Fat (“Lee”) of LM Group for the same purpose in December 2003. 39.According to Tse, he was and is a general Surveyor and his past experience as a surveyor mainly dealt with valuation of properties. Tse said he did testify in Court regarding cause of water seepage/ leakage problems. Further, he said during valuation of properties, these leakage/seepage problems were also factors affecting the value of the properties. 40.On the other hand, Lee was and is a building surveyor. Lee said in Court that as a building surveyor, he has knowledge of maintenance costs, costs of materials and their useful life span. He also had to monitor the development and construction process so that the buildings were constructed on time, within budget and with desired quality. Lee said he had over 23 years of working experience. In particular he had experience in face-lifting engineering works of old buildings. He said as the LM Group also operated an interior design company, under his management, he had ample experience and expertise in knowing the costs of decoration and purchase of building and decoration materials such as sanitary equipment etc. 41.Clearly Tse, as compared to Lee is more experienced in handling water leakage/seepage problem cases as well as assessment of reinstatement costs. 42.The Plaintiffs challenged the objectivity of Lee, based on the transcript of recordings taken at the site inspection by Lee. They said throughout the site inspection, the Defendant’s Solicitor had been exerting his influence on Lee and at various times did suggest to Lee the cause of the damage to the Premises etc. 43.This Court does not accept this assertion. As Lee in Court explained, people at the Premises were free to say whatever they liked but he would be totally objective and would maintain whatever conclusion he drew as a professional. 44.Defence did query if the Plaintiffs did really decorate the Premises as they said. 45.According to the Plaintiffs’ evidence, renovation work of the Premises commenced only on 31 December 2004, i.e. 17 months after Lau moved out of the Premises. 46.In support of the renovation work done, the Plaintiffs produced 2 receipts, one for the deposit payment dated 9 November 2004 and the one being receipt for outstanding payment dated May 2006, i.e. 13 months after the bill rendered by the contractor at time of completion of the renovation work. The 2nd Plaintiff explained that as the contractor believed he would pay, the contractor therefore did not chase him for payment earlier. 47.The 2nd Plaintiff when cross-examined said there was no written quotation for these works. He insisted he had just received oral quotation from the contractor. He also said that for sanitary equipments etc. bought by the contractor for use in the renovation works, the contractor had just listed the costs of purchase in the contractor’s bill and had not tendered the original purchase receipts for these items to the Plaintiffs. 48.No photos of the Premises after the said renovation works were produced or was there other independent evidence produced to Court to support that renovation work had been done. 49.This Court must say that the lack of written quotation for renovation work of such scale does not accord with normal prudent practice. Time for balance payment for these works are also very late. 50.The Plaintiffs in this case have all along impressed the Court to be very careful and alert e.g. they would use the MP3 to record the whole conversation of parties during inspection of the Premises by the Defendant’s party. Their witness statements were also prepared, covering also small details. 51.Though this Court appreciates the doubt thrown by the Defendant that the Plaintiffs’ did not actually undertake the said renovation works, the 2nd Plaintiff being a retired director of Hong Kong Observatory, this Court does not believe he would go so far as fabricating the existence of the whole renovation works. 52.This Court accepts that he did do the renovation works in question. 53.The alleged breach on covenant to repair as said by the Plaintiffs involved 72 items and the reinstatement work of these items were said, in the Statement of Claim, to worth $228,980. Disputed Items 54.We now come to the disputed items, i.e. items which the Plaintiffs said the Defendant defaulted in maintaining the same in good tenantable repair and condition when they delivered the Premises back to them whereas the Defendant said the same was due to fair wear and tear and/or due to factors outside their control. 55.It is not disputed that about 4 months after Lau moved in the Premises pursuant to the earlier Tenancy Agreement, a triangular patch of emulsion paint at the wall corner of the partition wall of the master bedroom and the master bathroom peeled off. This area was about one metre high from the floor and one metre wide at the base near the skirting board. Remedial work was done by the Plaintiff’s contractor, upon receipt of complaint by Lau to the 2nd Plaintiff. In fact, the 2nd Plaintiff did visit the Premises with the said contractor. He did enter the master bedroom, albeit only briefly. 56.According to Lau, the contractor only did 2 days works at the Premises. According to the 2nd Plaintiff, only 1 day’s work was done and Lau refused to allow the contractor to enter the Premises later. 57.The 2nd Plaintiff did admit that cause of the paint peeling incident complained by Lau was not known. The contractor merely replastered the problem area and repainted the patch. 58.Lau said shortly after the said repair, which the 2nd Plaintiff said had cost him $2,000, the same problem recurred and became worse and worse. 59.Lau admitted that she did not further complain to the Plaintiffs regarding this problem, or indeed any other conditions in the Premises. She explained the reason was because she thought the Remark Clause meant that the Plaintiff as Landlord was not obliged to effect repair to the Premises. She also said any repair would cause inconvenience to her. 60.She also explained that a lot of furniture had blocked her view on the state of the walls in bedrooms of the Premises and therefore she did not notice the extent of the damage to the walls. 61.As said earlier, the burden of proof of the fair and tear exception rests on the tenant i.e. the Defendant. 62.The Defendant is also under a duty to inform the Landlord of the want of repair of the Premises even if the duty to repair should be the responsibility of the Landlord. Should the Defendant i.e. Tenant fail to inform the Landlord of the same, with the affluxion of time, the condition of the Premises worsened and this further damage to the Premises would not fall within the ‘bear and tear’ exception. 63.Considering the state and conditions of walls and timber floor of the Premises when the Defendant delivered possession of the Premises back to the 1st Plaintiff, it is apparent that the condition of the walls and the floor has subsisted for a period of time. The damage to the walls and the timber floor definitely must have worsened over time and the same also surely did not fall within the normal wear and tear exception. 64.It is therefore immaterial whether the said damages did result from surface flooding as suggested by the Plaintiff’s expert or the poor water proof cement/sand plastering at the master and guest bathroom and/or the pipe duct leakage and/or external wall cracks and/or the previous leakage of iron pipes in hallway cabinet, as suggested by the Defendant’s expert. 65.It should be borne in mind that Lau had admitted not having relayed any of these problems to the Plaintiffs (except for the said first complaint). 66.However, for the sake of completeness, this Court will deal with the cause of these phenomenons. 67.Counsel for the Plaintiffs had prepared Closing Table 1 setting out the evidence of the Plaintiffs and the Defendant, her analysis of their evidence. Closing Table 2 also sets out evidence of the Plaintiff’s expert and the Defendant’s expert and his analysis of the evidence. 68.This Court would not repeat the evidence of the parties and their experts here. 69.As the Plaintiff’s expert did examine the Premises shortly after the hand over of the Premises, photos taken by him during the inspection of the Premises and his evidence as to the state of the Premises then is preferred to that of the Defendant’s expert, who only inspected the Premises few months later. 70.As far as timber floor was concerned, both experts agreed that the area outside the Guest bathroom, Bedroom No. 2 and Master bedroom as well as Master bedroom and Bedroom No. 2 were affected by dampness and were of darkened colour, though to various degree and to different extent. 71.The Plaintiff’s expert said there are bulging in the hallway although none of the photos did show this bulging. The Defendant’s expert said there was no bulging at time he inspected the Premises. 72.Lau said at no time was there flooding within the Premises. 73.It is also undisputed that the management did not receive complaint of water flooding/seepage nor was there any suspicion of water flooding in the Premises. 74.Lau admitted the floor condition in the Premises when she moved out was worse than the condition when she moved in. 75.The timber floor area most seriously affected by the dampness was the area outside Master bedroom, Bedroom No. 2 and the Guest bathroom. It therefore tended to exclude the leakage of water into the Premises through the cracks on the external wall or the defective water proof cement/sand plastering at the Master bedroom bathroom or Guest bathroom as water would flow downwards. The dampness in timber floor adjoining the external wall or the partition walls of the 2 bathrooms should be most serious if they were in fact the cause of the dampening of timber floor. 76.The Defendant’s expert also said that the darkened timber floor in this area was possibly due to previous leakage of iron pipes, prior to the same being changed to copper pipes in year 1999, underneath the hallway. This is not accepted by the Court in view of the long time lag. 77.It should be noted however that if one was to accept the sketch map as being the full position of the floor condition of the Premises at time of handover, as recorded by the 1st Plaintiff and confirmed by the Plaintiff’s expert i.e. extremely large area of the Master bedroom was affected and yet relatively smaller area of Bedroom No. 2 was affected, why? As water will find its own level, and if there were surface flooding, the effect of the flooding should be similar. 78.The Plaintiff’s expert explained and said it might be due to the tilting flooring of the Master bedroom, i.e. the flooring of no. 2 Bedroom and that of Master bedroom was not level. However, the Plaintiff’s expert never recorded this finding in any of his reports. 79.Next, coming to the damaged timber floor in the Master bedroom and No. 2 Bedroom, whilst the same might result from surface flooding coming from either Master bedroom or Guest bathroom, the same might also partly result from a combination of other causes e.g. defective water proof cement/sand plastering at the Master bedroom bathroom or Guest bathroom. 80.At the time Lau made her complaint shortly after she moved in regarding the triangular patch on the wall, no one noticed anything wrong with any other walls or timber floor. The cause of such ‘triangular patch’ did not result from surface flooding as now alleged by the Plaintiff’s expert. Further, the contractor had merely replastered and repainted the patch and therefore the cause of the ‘triangular patch’ had not been cured. 81.In any event, the Plaintiff’s expert said the surface flooding should have only occurred in year 2003. 82.According to the Plaintiffs, after Lau moved out and before the Defendant’s expert inspected the Premises, the condition of the Premises improved. 83.They also said subsequent to Lau moving out, there was no repair works on external walls done and yet the condition of the walls did not worsen, in fact, as time went by, they improved. They said the Premises was not occupied during this period. 84.The Plaintiff’s expert said the night before he inspected the Premises, there was heavy rainstorm and yet when he touched the watermarks inside the Premises and they were dry. He said this excluded existence of any cracks in the external wall. 85.This Court does not agree to such conclusion. This Court accepts the Defendant’s expert’s contention that depending on the extent of the crack, the direction of the wind, the wind speed, the duration of the rainfall and the extent of the rainfall, the rainwater might not penetrate into the Premises within so short period of time. 86.Nevertheless, the observation of the Plaintiffs as aforesaid seem to suggest the same was not result of leakage of water through cracks in the external wall. 87.The Defendant’s expert said in his report, there were dampness plagues and water marks found on the marbles of the window sills and the walls adjacent to the bathtub in the Master bedroom. 88.There was also an exposed hole next to the water pipes serving the water heater and shower water could therefore escape through the hole into the inside of this partition wall between the Master bedroom and No. 2 bedroom. 89.Watermarks found on the lower parts of the walls at the corner of the Master bedroom immediately adjacent to the Master bedroom and the external walls, according to the Defendant’s experts were due to seepage of rainwater from external walls or the absence/defective water proof cement/sand plastering at the master bedroom. 90.This Court accepted the latter was the most probable cause for the conditions of the walls. This explained why the condition of the Premises improved when no one occupied the Premises as no one would use the showers in the bathrooms. 91.The same reasoning applied for the dampness of the walls near the window bay of the Master bedroom. 92.This Court does not accept view of the Plaintiff’s expert saying that due to surface flooding, capillary force brought the water up the walls of the 2 bedrooms, leading to peeling off of plaster or wall coverings. As the affected areas went quite high up, had the flooding been so serious with such long reaching effect, there was no reason why the management would have missed it. 93.Further, why would the reverse ‘V’shape big triangle area only existed at one place in the Master bedroom and nowhere else? 94.Water by capillary action ‘sucked’ up the wall also would not form a reverse ‘V’ shape. In fact, this Court finds the apex of the triangle was where the source of water surfaced on the wall and water flowed downwards through the minute pores in the cement, forming the reverse ‘V’ shape. 95.This Court is also not persuaded by the Defendant’s expert that there had been water leakage of iron pipes/ducts inside the Premises. 96.As for Bedroom No. 2, the peeling of wall covering on the corner portion of the wall and the dampness on the walls was said by the Defendant’s expert to be due to the reasons that there was cracks on external walls leading to water seeping and permeating the internal wall surfaces and/or due to defective water proof cement/sand plaster in both the Master bedroom and the Guest bathroom resulting from seepage of shower water through the internal walls. I accept these are most probable causes for the phenomenon. 97.As for the water mark found on the walls under the air conditioner in Bedroom No. 2, the cause of which probably was as said by the Defendant’s expert, as being due to cracks in the external wall as they were quite high up the wall and not likely to be due to shower water or the capillary action of any surface flooding. 98.Regarding the wooden skirting of the Master bedroom and the Guest bedroom which came off the wall, this Court finds it more probable that the same was due to surface flooding rather than other causes. 99.As said earlier, although the wall conditions were due to want of repair, originally not the responsibility of the Defendant as a tenant, failure of the Defendant in making known these problems to the Landlord i.e. the Plaintiffs, led to the worsening of these conditions. The Defendant therefore failed to prove the ‘wear and tear exception’ in these cases and therefore was liable for their reinstatement. 2. If there was such a breach, what was the amount of loss and damages suffered by the Plaintiffs? Timber floor Items 9, 16, 43 100.Coming to the issue of quantum, i.e. the Plaintiffs’ expert said the whole timber floor and skirting of the Master bedroom and No. 2 bedroom and the hallway need be changed, for reasons that the unaffected timber floor being adjacent to the wet timber flooring might still be affected, white ants problem might result. He said sometimes the floor actually affected could not be detected visually. Further, for cosmetic and hygiene reasons, the Plaintiffs’ expert opined it necessary to change all timber flooring of these areas/rooms. 101.Looking at the photos in Plaintiffs’ expert reports, and considering the sketch map by the 1st Plaintiff, this Court does not agree that all skirting, flooring of these bedrooms need be changed, bearing in mind the Tenant’s limited interest and his covenant to deliver the Premises in good tenantable state and condition only. 102.For the Master bedroom, this Court finds 2/3 of the flooring need be changed whereas for Bedroom No. 2, only ½ of the flooring need be replaced. This Court finds it reasonable however that for practical purpose, all skirting need be changed for these 2 rooms. 103.This Court accepts the timber floor area of the Master bedroom, Bedroom No.2 and hallway as 215 sq. ft, 144 sq. ft and 61 sq. ft respectively as assessed by Lee. 104.Lee, the Defendant’s expert had been cross-examined in detail regarding costs of replacement of timber floor. 105.Lee said initially $80 per sq. ft is reasonable costs for labour and materials for timber floor. Later, he said $88 is the average costs for the same if shirting is also included. This Court accepts therefore on average $88 per sq. ft is reasonable (including labour and material costs for skirting and flooring). 106.Accordingly, 215 sq. ft x 2/3 = 143.3 sq. ft for the Master bedroom plus 144 sq. ft x ½ = 72 sq ft. for Bedroom No.2 plus 61sq. ft. for the hallway. 107.Total reinstatement costs reasonable in the circumstances would be $88 x (143.3 + 72 + 61) = $24,314.4 108.This Court does not find floor waxing fee should be included because invariably when a landlord recovers premises from the tenant, he would rewax the floor before renting it out again, as the Plaintiffs did before they rented out the same to Dynasty in this case. In any event, the Defendant as Tenant was only required to return the premises in tenantable state and condition. Walls Items 9, 16 109.In this case, the Plaintiffs had finally repapered the whole walls of the bedrooms. The 2nd Plaintiff said in Court he was told by the contractor that the costs for wall papering and wall painting was the same. The Plaintiffs’ expert further said the wall of the Premises originally in half papering and half wall painting was more expensive than all papered. This Court could not agree to this assertion. 110.This Court agreed with the Defendant’s expert that the cost of papering is more expensive than wall painting, the extra cost being cost for purchase of the wall paper (even taking into consideration of the costs of the paint) and that the cost of half wall paper and half wall painting was still cheaper than cost of full wall papering. 111.This Court agreed with the Defendant’s expert that in this case, having regard to the extent of the damage (having reference to photos to the reports), the painted walls needed only repainting on a touch up basis and where the paper was damaged, only touch ups were reasonable and necessary to discharge the Defendant’s duty as a tenant. Similarly, wall paper should be used to replace the damaged area as suggested by Lee. There was no need to repaper the whole wall. The repapering of the whole walls undoubtedly amounted to improvement works and the Defendant should not be obliged to pay the price for the same. 112.The Plaintiffs should bear in mind that under the law, the Defendant was only required to reinstate the premises to tenantable repair and condition. With this touch up as aforesaid, the Court is of the view that a reasonably minded tenant would be willing to take up the Premises. (consideration to the Premises being a domestic unit in upper middle class area in Hong Kong was made). 113.In fact, the Plaintiffs did not repaint all walls of Master bedroom for Lau when they did the repainting for the ‘triangular patch’ subsequent to Lau’s complaint. Lau did not ask for repainting of all walls. 114.The Court found in the circumstances, having regarded to the estimates by the parties’ experts, the sum of $18,000, being a reasonable reinstatement costs for items 9 and 16. Ceiling 115.This Court found the claim by the Plaintiffs in connection with moulds on ceiling of Bedroom No. 2 and damage to the ceiling in Bedroom No. 3 caused by removal of broken lampshade unwarranted. 116.Firstly, moulds occur frequently in Hong Kong. Very often they are possibly due to water seepage from upper floor. This Court does not see any evidence of improper use and want of repair. The said ceiling was also not severely ‘mouldy’. In my view, this falls squarely in the ‘wear and tear’ exception. 117.In any event, it was easy to clean such moulds without much costs anyway simply by wiping with clothes. 118.Further, any shade left on the ceiling of Bedroom No. 3 clearly was normal and reasonably expected after the ceiling lamp was used for long. There should be no damage done to the ceiling resulting from the removal of the lampshade, if properly done. There was also no evidence to show that the lampshade was not there since year 1991 i.e. 12 years ago. 119.The suggestion that the cause of mould was due to serious flooding in Bedroom No. 2 was not logical as the damage to timber flooring of Bedroom No. 2 was less severe than that of the hallway but there was no evidence of mould existing in ceiling of hallway. 120.Likewise, the fact that the Plaintiffs said during their 10 years of stay, there was no mould on the ceiling was neither here nor there, the Premises was a newly completed property then. Wardrobe/Storage 121.The wardrobes existed since the year 1991. The 1st Plaintiff said he only changed the damaged part of the wardrobe. 122.The Plaintiffs’ expert said he did touch the darkened part of the wardrobe during the inspection and found the same wet. 123.The photographs to the Plaintiffs’ surveyor report and the sketch map of the 1st Plaintiff depicting the water affected area showed the wardrobe in Master bedroom and the cabinet in Bedroom No. 2 were fronted with the water affected timber flooring. This supported the Plaintiffs’ contention that the footing of wardrobe/cabinet were or might be affected by surface flooding. This Court is not satisfied that damping had also affected any other areas of the wardrobes. Any repair should be limited to the part only. 124.This Court considered $2,000 as a reasonable sum under this head. Aluminium windows/Venetian blinds Items 6, 27 125.This Court accepted Lau’s evidence and the view of the Defendant’s expert that the damage to the window latch was due to normal wear and tear and accordingly the Defendant should not be liable for the said repair costs, i.e. item 6. 126.As for item 27, this Court found the Defendant did not keep this western side of the window in tenantable state and this Court accepted the Plaintiff’s estimate of $300 as the repair cost of this item. Room Doors 127.Liability issue in respect of the repair to room doors had been agreed by the parties and quantum would be dealt with separately under the section Items Conceded by Defendant. Electrical works 128.This Court finds that the Defendant should pay the repair costs of item 16f, the damaged wall socket, in sum of $550. The estimate costs suggested by the Defendant’s expert was too low in this case. 129.The opinion of the Defendant’s expert that the cost for check for the electrical system in the Premises was not warranted is also agreed. The electrical system in the Premises had been used for 12 years and as a prudent home owner, such check should be undertaken anyway. Item 39 130.Although the cover of the water heater was damaged, according to the Defendant’s expert, the same was seriously rusty and corrosion was found on the case. As a result, he said there was loosening and displacement of the case. This Court accepted this as normal wear and tear and the Defendant should not be held liable for such repair. Bathroom works Items 1, 4, 33, 34, 35, 68 Item 1 131.The Defendant’s expert agreed that the colour of the toilet bowl cover, unlike the other sanitary equipment in the Master bedroom was of light yellow, not light pink. He said this was due to a change of toilet bowl cover. This Court agrees, as the Defendant’s expert said, that the same could be replaced with a matching same light pink toilet bowl cover easily. Cost of $200 is awarded to the Plaintiffs. Item 4 132.This Court found the bathtub not being kept in a tenantable state by reason of the peeling of the surface coatings. 133.Parties estimated the reinstatement costs of the same as $1,500 and this Court accepted the same as reasonable. Item 33 134.The whole set of sanitary equipment were found to be free of any colour stain or plague. There is no abnormal change of colour coating. 135.The dirt around the bathtub on the surface of the sealant at the edges of the bathtub could not be considered damage. 136.This Court agreed to the Defendant’s expert’s view that such dirt could be easily removed by application of domestic bleaching agent at negligible cost. No award was made under this head. Item 34 and Item 35 137.Lee had tested the flushing system without removing the sealing of the hole at the other side of the flush handle of the toilet tank and found the same in order. 138.On the other hand, Tse had tested the same after removing the sealing of the other hole and found water spilling onto the ground through the hole on the other side of the flushing handle. It was found that the incoming water could not stopped by flushing mechanism and could only be stopped by turning off the water inlet valve. 139.As the sealing of the hole was not to be expected in the normal working of the flush system, the flushing mechanism of the toilet tank was therefore not working properly and the Defendant was obliged to reinstate the same. 140.Parties did agree that the two items would cost in total $200 and the same is awarded. Item 68 141.Although the Plaintiffs’ expert alleged the flush system in maid’s toilet was damaged with water dripping at all times, the same was denied by the Defendant’s expert. 142.This Court does not find the same proved. 143.It should be noted that when the Defendant’s expert made the inspection of the Premises, he already had the benefit of reading of the Plaintiffs’ expert’s first report and would have directed his attention to the issues raised in the Plaintiffs’ expert report. 144.By reason of the findings, the total repair/reinstatement costs awarded to the Plaintiffs for the disputed items are $47,064.40. Items conceded by the Defendant 145.In respect of the costs of reinstatement for ‘items conceded by the Defendant’, counsel for the Plaintiffs submitted a schedule prepared by him setting out the costs estimate by Plaintiff’s expert, costs estimate by Defendant’s expert (as per report) and costs estimate by Defendant’s expert (new estimate). 146.Before reaching any decision on the costs of repair attached to each item, this Court had the benefit of the surveyor reports by Tse and Lee. Apart from the literal description of the state and condition of the Premises, the photographs taken at the Premises at the time of inspection of the Premises by Tse and Lee also offered much help. 147.Though this Court agrees the state of the Premises, when inspected on 5 August 2003 was not one that a landlord would readily expect and/or accept, the same was not as appalling as the Plaintiffs suggested. 148.This Court must also say at the outset that for reasons said, this Court attaches more weight to evidence of Lee than Tse. This Court finds Lee much more experienced by reason of him being a building surveyor (as compared to Tse being a surveyor in general practice) and his past job experience involving assessment of renovation costs (labour costs and material costs). This Court also accepts that his professional opinion had not been undermined by his instructing solicitor or indeed anyone else when he prepared his surveyor report and/or when he gave his evidence in Court. 149.The reinstatement cost findings of ‘Items conceded by Defendant’ by this Court are as follows:-
150.Total sum assessed under ‘Items conceded by Defendant’ is $20,920. 151.As for the claim by the Plaintiffs for cost of the surveyor’s report and travelling expenses, the same should be covered in the costs issue of the proceedings and should not form subject matter of the claim. 152.As for the loss of rent and incidental management fees and government rates, the Plaintiffs claimed loss period of 2 months and 8 days. 153.According to the 2nd Plaintiff, the total decoration/reinstatement work took more than 2 months. 154.In the present case, the Plaintiffs had, for reasons unknown to this Court, delayed over one year to reinstate the Premises. In fact, they had renovated the Premises to a standard well exceeding the standard required of the Defendant as tenant in reinstating the Premises. There were, on the 2nd Plaintiff’s own admission, also extra works done on the Premises at the same time these ‘reinstatement’ works were undertaken. 155.This Court found, accepting the opinion of the Defendant’s expert, that one month was reasonable for preparation and actual reinstating the Premises to tenantable repair and condition. 156.This Court must say that although the Plaintiffs did claim for loss of rental, this Court had reservation that the Plaintiffs had really intended to let the Premises after the Defendant moved out. 157.The 2nd Plaintiff gave different versions on this point, both in Court and in the witness statement . He did say the Plaintiffs had intention to let out. He also said the Plaintiffs were later indecisive whether to let the same, in view of the conduct of the Defendant as their tenant etc. 158.The 2nd Plaintiff also said in Court they had moved back to the Premises for sometime. 159.Strangely, when asked when the family moved back, he said he could not really remember. This was quite puzzling as he had all along been able to remember the other details of the case. 160.He also said at one time they lived in both the Ma On Shan residence and the Premises. 161.Further, the 2nd Plaintiff in his witness statements filed as late as July 2007 still claimed his residence as the Ma On Shan address. 162.Nevertheless, the Plaintiffs ought to be entitled to damages for loss of use of the Premises during the reinstatement works. 163.Accordingly, loss under the loss of rent/use would be $45,000 (i.e. market rental for the month of August 2003). Loss of management fee and government rates for the said period is $3,850 per month and $1,774.66 per month respectively($7,986.00 being fees for 4.5 months government rates). Total Award 164.Total Award to the Plaintiffs are therefore $20,920.00+$47,064.40+$45,000.00+$3,850.00+$1,774.66=$118,609.06 Costs 165.In this case, the Plaintiffs in their Statement of Claim dated 23/10/03 originally claimed the sum of $ 370,137.00, including inter alia, $228,980 renovation costs, 2½ months loss of rental and management fees and rates for the same period. 166.In the skeleton written submission of the opening of the Plaintiffs’ case, they claimed $265,114 renovation costs and 4½ months loss of rental and incidental loss of management fees and rates. 167.On 12/10/2007i.e. the 1st day of the trial, they again amended their claim to include $214,605 renovation costs and 2 months and 8 days loss of rental, incidental management fee and rates. 168.The Plaintiffs were all along legally represented and therefore had the benefit of legal advice. 169.During the course of trial, it transpired that quantum of damages for substantial number of items claimed by the Plaintiffs were made on a totally unreasonable basis, e.g. the Plaintiffs insisted on changing all the sanitary equipments in the bathroom when only the water tap to the water basin needed be changed, and even though their own expert said that the water fosset was a separate piece of accessory to the water basin. 170.The 2nd Plaintiff insisted that the water basin could be damaged in the course of changing the water tap and therefore the whole water basin needed be changed and as the water basin was only one piece of sanitary equipment in the washroom, for the purpose of conformity of colour tone, and in view of the difficulty in matching colour tone of the sanitary equipments in the same bathroom, all sanitary equipment in the whole washroom need be changed. 171.Likewise the 2nd Plaintiff on behalf of the Plaintiffs insisted that in order to remedy the defects i.e. scratches or holes on the wall, the walls in the same room need be replastered and repainted, otherwise the 2nd Plaintiff said the other walls in the same room would be of different shades (though of the same colour). The Plaintiffs’ claim were based on all the walls need be repainted and replastered. 172.The Plaintiffs here claimed for 4½ months’ loss of rental and incidental management fees and rates, when the surveyor’s report of the Plaintiffs was actually prepared after inspection of the Premises by the surveyor lasting for less than 1 day and the renovation of the Premises even on the Plaintiff’s own admission(including a lot of other improvement works) only took 2 odd months. 173.In this case, the Plaintiffs did succeed on part of the claim, either by concession by the Defendant at trial or by findings of this Court, but a lot of costs had been incurred unnecessarily by the Defendant in defending the unsuccessful claim regarding liability to reinstatement items or unreasonable quantum pursued by the Plaintiffs, whether in preparation of the trial and during the trial. This Court finds it just recognising this fact, to make an order nisi that the Defendant shall only pay the Plaintiffs 80% of the costs of this action, the same to be taxed if not agreed. There is no certificate for counsel in this case in view of the amount of the award and the simple nature of the case, this order to be made absolute on the expiration of 14 days from today.
Representation: Ms. Elsie Yiu instructed by Messrs. Thomas Li & Yu, for the Plaintiff Mr. Paul K.N. Wu, instructed by Messrs. J. Chan, Yip, So & Partners, for the Defendant |
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