Tse Chit Sang and Another v. Ho Mei Ling and Another

DCCJ 2404 / 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2404 OF 2005

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BETWEEN

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Before: His Honour Judge Thomas Au in Court

Dates of Trial: 25, 26, 27 & 29 May 2009

Date of Handing Down Judgment: 19 June 2009

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J U D G M E N T

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A.  Introduction

1.The Plaintiffs have since 1996 been the registered owners and occupiers of Flat 26B (“the 26B Flat”) of King’s View Court at King’s Road.   The Defendants have since May 2002 been the registered owners and occupiers of the Flat 27B(“the 27B Flat”) of King’s View Court, which is directly above the 26B Flat.

2.This is the trial of the action, where the Plaintiffs claim that there had been water leakage from the 27B Flat to the 26B Flat, which resulted in causing various damage to the ceilings of the master bedroom and the master bathroom of the 26B Flat. 

3.In their pleading, the Plaintiffs originally seek various injunctions against the Defendants effectively to remedy the water leakage at the 27B Flat, and damages for (a) the cost to repair the damage caused to the 26B Flat ceilings and (b) inconvenience.

4.At the first day of trial, Counsel for the Plaintiffs however confirmed that as the water leakage had already ceased, they no longer pursued any remedy in injunctions.  They now only pursued the claim in damages.

5.Further, the Plaintiffs’ Counsel also confirmed that it was the Plaintiffs’ case that the water seepage or leakage observed at the 26B Flat’s ceilings was caused by the following defects located at the 27B Flat:

(1)  Water leakage of the common flushing water pipes located behind one of the walls at the 27B Flat.

(2)  Defective water proofing surface of the floor of the master bathroom of the 27B Flat.

6.In relation to the first cause (i.e., the leakage of the common flushing water pipes), Mr Lau (counsel for the Plaintiffs) says the cause of action would be in relation to the Defendants’ alleged breach of clause 6(b)(v) of the Deed of Mutual Covenant (“the DMC”) in unreasonably refusing the Plaintiffs or the Manager of King’s View Court (as the Plaintiffs’ agent) to enter into the 27B Flat to carry out timely investigation and inspection to find out the cause of water leakage. 

7.In relation to the second cause (ie., defective water proofing surface), the causes of action relied on by the Plaintiffs are in (a) breach of clause 6(b)(v) of the DMC, (b) negligence on the part of the Defendants, and (c) nuisance.

8.The Defendants deny liability and quantum.  In relation to the first cause, although accepting that there was leakage found in the common flushing water pipe (which was subsequently repaired by the Manager), the Defendants deny that they had unreasonably refused either the Plaintiffs’ or the Manager’s entry into the 27B Flat for inspection.  In relation to the second cause, the Defendants deny that there was any defective water proofing surface of the floor of the 27B Flat’s master bathroom.

9.In light of these contentions, the issues for trial are as follows:

(1)  Whether the Defendants were in breach of clause 6(b)(v) of the DMC in relation to the leakage of the public flushing water pipe.

(2)  Whether the water proofing surface of the 27B Flat’s master bathroom was defective resulting in water leakage to the 26B Flat.

(3)  If the answer to (2) is affirmative, whether the Defendants were liable to the Plaintiffs under breach of clause 6(b)(v) of the DMC, in negligence and/or in nuisance.

(4)  Quantum of damages.

B.  Background

10.Unless otherwise stated, the following are the undisputed or uncontroversial background facts leading to the present dispute.

11.The Plaintiffs bought and moved into the 26B Flat in 1996.  Some time in 1998, they started to notice some minor water seepage problems at the ceiling of the master bedroom and bathroom with some water stains.  There was also occasional minor scale of plasters falling from the master bedroom ceiling.    They had made complaints to the then owner of the 27B but to no avail.   They had also made complaints to the Manager, who had sent some staff to their home to take pictures of the water seepage problems.

12.However, the problems seemed to be still bearable for the Plaintiffs.  Thus, other than making some complaints, they had not taken the matter any further at that stage.

13.In about 2002, the Defendants bought and moved into the 27B Flat.

14.Apparently, the water leakage problems gradually got worse.  According to Ms Lai (the 2^nd Plaintiff) (which is not challenged), the water leakage situation became quite serious in the summer of 2004, with water starting to drip down from the ceiling of the master bathroom, and the ceiling plaster of the master bathroom and bedroom had started to pop up more and more, and to have more and larger pieces falling down. 

15.In a morning in the summer of 2004, Ms Lai managed to speak to Ms Ho (the 1^st Defendant) at the building lobby, informing Ms Ho about the water leakage problems.  Ms Lai said Ms Ho asked her to give her some time to deal with it, as she had moved in not for long.  Ms Lai said this was the first time she spoke to Ms Ho about the water leakage problems.  Ms Ho had also indicated that she would stop using the bathtub of the master bathroom of the 27B Flat.

16.Nothing much seemed to have happened between September and December 2004.  Ms Lai said, given what Ms Ho had said, she decided to wait awhile to see whether the water leakage problems would improve.

17.However, the water leakage problems in fact got worse. 

18.As a result, on about 15 December 2004, Ms Lai made a complaint to the management office.  The Manager then arranged a staff to go to the 27B for inspection on 19 December 2004, but the inspection was not fruitful.

19.On 21 in December 2004, Ms Lai contacted Ms Ho again, complaining about the situation.  Again, nothing fruitful resulted.

20.During this time, the water dripping from the ceiling of the master bedroom and bathroom was getting more and more serious.

21.Seeing that she was not getting any results from dealing with Ms Ho, on 29 December 2004, Ms Lai made a complaint to the Food and Environmental Hygiene Department (“FEHD”) about the water leakage problems.

22.On 6 January 2005, a Mr Shea of the FEHD with his colleagues conducted a colour dye water test at the bathrooms of the 27B Flat by putting some dye materials into the drainage pipes of the bathtubs and hand washing basins. 

23.The results of the dyed water test conducted by the FEHD were however negative.  Ms Ho also learnt about the negative results when she called Mr Shea herself about 2 weeks after the tests were conducted.

24.The water dripping problems in the 26B Flat however continued.

25.Between February and May 2005:

(1)  The Plaintiffs had engaged their own surveyors Building Diagnostic Consultants Ltd (“BDCL”) to conduct investigations in the 26B Flat. 

(2)  The Plaintiffs continued to ask the management office and the Chairman of the IO to assist in resolving the problems.

(3)  Ms Lai had called Ms Ho personally asking Ms Ho to solve the problem.

(4)  The Plaintiffs through their solicitors sent a letter to the Defendants on 10 March 2005 asking them to remedy the water leaking problems. 

26.As before, nothing fruitful however resulted.    The water dripping from the ceilings of the master bedroom and bathroom of the 26B Flat continued.

27.Finally, in response to a request made by the management office staff sometime in May 2005, on 30 May 2005, Ms Lai allowed the management staff and their technician (a Mr Cheng) to go into the 27B Flat to carry out further investigations and inspection.    She was then informed that there was water seepage from the public “PVC” pipe housed inside the inspection window of the master bathroom of her flat.

28.Remedial works were then carried out of the PVC pipe by Mr Chen in that afternoon.

29.That seemed to have improved the water leakage problems to  a certain degree but not completely.  Then, by September 2005, the problems continued to get worse with greater and greater severity.

30.Eventually, at the management office’s repeated requests, Ms Lai allowed their staff and technicians to go into the 27B Flat to carry out further investigations by digging up holes at the wall between the master bathroom and the living room.  They finally identified that there was water leakage from the public flushing water pipe housed within the wall.

31.Actual remedial and repair works were carried out of the public flushing water pipe on 24 and 25 September 2005.

32.According to Ms Lai, there were no more water leakage problems that could be visually observed by her since the end of September 2005.

C.  The issues

C1.  Whether the Defendants were in breach of clause 6(b)(v) of the DMC in relation to the leakage of the public flushing water pipe

C1.1  The construction of clause 6(b)(v) of the DMC

33.Clause 6(b) of the DMC provides as follows:

“[E]ach owner [of King’s View Court] shall hold his part of [the Building] subject to and with the benefit of …

…

(v)  The right for the owner or occupier for the time being of any part of the Building with or without servants, workmen and others at all reasonable times on notice (except in case of emergency) to enter into and upon other parts of the Building and the common parts thereof for the purposes of carrying out any work necessary for the maintenance and repair of the Building or any part thereof causing as little disturbance as possible and making good any damage caused thereby.”

34.Mr Lau for the Plaintiffs submits that on a proper construction, this clause imposes an obligation on an owner of say a flat of King’s View Court (such as the Defendants as an owner of the 27B Flat) to allow another owner or occupier of the King’s View Court (such as the Plaintiffs as the owner of 26B Flat) or his agent to enter into the first mentioned owner’s flat on reasonable notice to carry out inspection or investigation (as a necessary work) for the maintenance and repair of say the common flushing water pipes embedded inside one of the walls of the 27B Flat. 

35.Ms Gwilt for the Defendants does not appear to be contending against this construction, which I accept to be correct.

36.Under this construction, the Plaintiffs say in relation to the water leakage found at the common flushing water pipe, the Defendants had unreasonably refused their requests or the Manager’s requests (made as the Plaintiffs’ agent) to enter into the flat to carry investigation and inspection.   The Defendants deny these allegations.

37.These are the questions that I will now turn to.

C1.2  Had the Defendant unreasonably refused the Plaintiffs’ own requests to enter into the 27B Flat for investigation or inspection<</p>

38.It is common ground that the water leakage in the common flushing pipe in the 27B Flat was identified and found by the Manager’s inspection (with the technicians) of the 27B Flat made on 22 September 2005, after digging holes at the wall between the master bathroom and the living room.

39.The question is thus whether there is evidence to show that before this date, the Plaintiffs themselves had made requests to go into the 27B Flat to inspect and investigate for the cause of water leakage, but had been unreasonably refused by the Defendants.

40.As far as I can see, the only evidence which prima facie provides such suggestion is found at paragraph 5 of Ms Lai’s witness statement which stated as follows:

“5.  I contacted the 1^st Defendant on 21^st December 2004 for allowing me and the 1^st Plaintiff to conduct further investigations into the source of the water seepage problems existing inside the 26B Flat.  But she refused to cooperate.  Because of the 1^st Defendant's uncooperative attitude, I had no alternative but to lodge a complaint to the Food and Environmental Hygiene Department.  On 29^th December 2004, a Mr. Shea who is an officer of the Food and Environmental Hygiene Department came to our flat to investigate the problem.  He wanted to do a dye test inside the 27B flat on the same day but could not do so because nobody was inside the 27B flat.”

41.However, under examination-in-chief, Ms Lai gave a more detail account of this contact on 21 December 2004.  In substance, she said on this occasion, she asked Ms Ho to go to the 26B Flat to check out the extent of the water leakage and the damage to the ceilings.  Although Ms Ho initially agreed to go after work, she never went.  As a result, Ms Lai called Ms Ho at night again asking Ms Ho to come down to have a look.  According to Ms Lai, Ms Ho said she would not do so and that she did not care.  In reply Ms Lai said in which case she would have to go to look for a lawyer, and Ms Ho just asked her to go ahead.  That ended the conversation.

42.Given Ms Lai’s above elaboration of the evidence, I am not satisfied that there is any evidence to show that the Plaintiffs had themselves ever requested to enter into the 27B Flat to carry out investigation or inspection.  In the premises, there is no question of the Defendants unreasonably refusing any such requests.

43.For these reasons, the Plaintiffs have failed to prove that the Defendants were in breach of clause 6(b)(v) of the DMC in unreasonably refusing the Plaintiffs’ own requests to enter into the 27B Flat for investigation and inspection.

C1.3  Had the Defendant unreasonably refused the Manager’s requests (made as the Plaintiffs’ agent) to enter into the 27B Flat for investigation or inspection

44.In relation to the Manager’s requests to carry out the relevant inspection at the 27B Flat, Ms Ho’s own evidence can be summarized as follows:

(1)  Between 20 January and 26 February 2005, given the Plaintiffs’ repeated complaints about the water leakage problems, the management office’s staff had requested 3 to 4 times to go into the 27B Flat to carry out further inspection.   Mr Wong of the management’s office suggested the potential need to dig up some holes at the walls of the 27B Flat to investigate for the cause of the water leakage.

(2)  Ms Ho refused these requests, as she told them that the FEHD’s results were negative and there was nothing wrong with her flat.  Ms Ho also said the management staff could not tell her what exactly were the things that they could have looked for in her flat.

(3)  Then there followed by a month whereby the management office staff had not asked to go into the 27B Flat for inspection.

(4)  When it came to late April or early May 2005, the management staff again requested to carry out inspection at the 27B Flat in light of the continued complaints made by the Plaintiffs about the water leakage problems.  They again suggested the need to dig up some holes at the walls of the 27B Flat to carry out the investigations.   These again were refused by Ms Ho.

(5)  However, later in May, Ms Ho eventually agreed to allow the management staff to carry out the inspection with the compromise that holes would not be dug up at her walls.  The inspection was done on 30 May 2005, about a month after the latest request was made.  According to Ms Ho, it took that long to find a mutually convenient Saturday or Sunday when she was not at work to allow the management staff to carry out the inspection.   As mentioned above, on 30 May 2005, the PVC pipe was fixed by Mr Cheng.

(6)  Finally, in late September 2005, further investigations with the digging up of the wall at the 27B Flat was carried out by the management office’s staff, and the leakage of the public flushing water pipe was identified and remedied.

45.The above evidence was not challenged at trial and I accept the same.

46.In my judgment, Ms Ho’s refusal to allow the management’s office staff repeated requests to enter her flat between January and late April or early May to carry out inspection with the need to dig up the wall to find ascertain the cause of the water leakage problems was unreasonable.   The mere fact that the FEHD’s results were negative hardly provides a good reason for Ms Ho to reject their requests to carry out those further investigations at the 27B Flat.  As Ms Ho confirmed and accepted in her own evidence, there could well be many possible causes of the water leakage problems, and the FEHD’s results only negate one such possible cause relating to the drainages of the bathtubs and washing basins.  It is thus clear to me that the further investigations requested by the Manager were reasonable and necessary in all the circumstances of this case to ascertain the true cause of the water leakage problems.

47.Further, in my view, the Manager’s said requests to enter into the 27B Flat to carry out those investigations were made also as an agent of the Plaintiffs (in addition to their independent capacity as the Manager).  I have come to conclusion for the following reasons:

(1)  It is Ms Lai’s unchallenged evidence that, having failed to get any positive results by talking to Ms Ho and feeling frustrated, she had repeatedly asked the management office’s people to assist to carry out investigations to resolve the problems.

(2)  It is Ms Ho’s own evidence that the management office staff had been telling her that it was because of the Plaintiffs’ repeated complaints that they were requesting Ms Ho’s permission to enter into the 27B Flat to carry out investigations to find out the cause of the water leakage problems.

(3)  In the circumstances, the management office staff were initiating the requests to carry out inspection at the 27B Flat predominantly and principally because of the Plaintiffs’ demands and insistence.  They had also reported the development of their requests to the Plaintiffs from time to time.  This is underlined by the fact that the chairman of the IO, also at the request of the Plaintiffs, had assisted the Manager to attend a meeting with Ms Ho in February 2005 to ask for her permission to allow the management office’s staff to enter the 27B Flat to carry out the investigations by digging up some holes at the wall, which was refused by Ms Ho[1].

(4)  Looking at this in the round, I am satisfied that the management office staff were requesting permission to enter into the 27B Flat both acting in their capacity as the manager of Dragon View Court as well as the agent of the Plaintiffs to try to find out whether the cause of the water leakage problems could be located in the 27B Flat. 

48.Given my above findings, I conclude that the Defendants were in breach of clause 6(b)(v) of the DMC in unreasonably disallowing the Plaintiffs’ agent (i.e., the Manager) to enter into the 27B Flat to carry out investigations and inspection to find out the cause of the water leakage problems between January and late April or early May 2005.

C2.  Whether the water proofing surface of the 27B Flat’s master bathroom was defective resulting in water leakage to the 26B Flat

49.Only the Plaintiffs have called Mr Ronald Chan as an expert to testify on the cause of the water leakage.   The Defendants have decided not to call their expert to give evidence and not to rely on their own expert report.

50.Mr Chan’s expertise was not challenged at trial.

51.However, as the case developed at trial, the only relevance of Mr Chan’s evidence was whether it amounted to sufficient proof that the water proofing surface of the 27B Flat’s master bathroom was defective and was also a cause of the continued water seepage problems^[2].

52.After hearing the evidence and reading the filed expert reports, I am not satisfied that the Plaintiffs have proved the same.  My reasons are as follows:

(1)  In his first expert report dated 8 March 2005, Mr Chan (after only inspecting the 26B Flat) set out a number of possible causes of the water leakage problems observed at the ceilings of the 26B Flat’s master bedroom and bathroom. In relation to some of the water stains identified, it was stated that they were most likely originated from the “walls and floors of bathrooms of” the 27B Flat, and “branch drainage pipe serving the sanitary filtments of bathrooms of 27B Flat, and etc”.

(2)  In his oral evidence, Mr Chan confirmed that, this opinion, coupled with the locations and the shape of those identified water stains on the ceilings in fact amounted to his view that the more than probable cause of the water leakage problems was from the defective water proofing surface of the floor of the bathroom at the 27B Flat.

(3)  However, he accepted that (as he had also set out later in this report), this opinion would have to be scientifically verified by a water flooding test of the floor of the 27B Flat’s master bathroom. 

(4)  He further confirmed that if the flooding test provided negative result, and if between his first report and the flooding test, no repair works had been carried out for the water proofing surface, it would rebut his preliminary opinion and show that the water leakage problems were not caused by any defective water proofing surface of the 27B’s master bathroom.

(5)  As a matter of fact, a water flooding test of the 27B Flat’s master bathroom (amongst others) was carried out in April 2008 by the Plaintiffs through their contractor BDCL.  The test was carried out pursuant to a court order successfully applied for by the Plaintiffs.   The test results were negative and were set out in BDCL’s report dated June 2008. 

(6)  When presented with these negative results of the water flooding test under cross-examination, Mr Chan questioned the accuracy and reliability of the test.  He was of the view that the 45 minutes duration used for the flooding test and the apparent lack of photos showing the actual flooding of the floor of 27B Flat’s master bathroom led him to doubt whether the test was in fact carried out, and even if so, whether it was done for a sufficiently long time (which in his view should last for about 2 hours).

(7)  I reject Mr Chan’s evidence on questioning the reliability and effect of these test results.  I find Mr Chan’s said comments and opinion unreliable:

(a)  It is his own evidence that BDCL possessed the necessary expertise in the design and carrying out of the flooding test.  He also accepted BDCL’s expertise and professionalism.  I have no reason to find that BDCL had not properly and professionally carried out the subject flooding test.

(b)  The evidence shows that Mr Chan was fully aware of the 45 minutes design of the proposed water flooding test, when he prepared an expert report dated 26 December 2007 to support the Plaintiffs’ application to carry out the said very test.  There was nothing in his report to suggest that the 45 minutes design of the test was inadequate.

(c)  The BDCL report which contained the flooding test results was provided to Mr Chan previously, and he had read and incorporated it when he prepared his own report dated also June 2008.  He had never raised any doubts about the BDCL’s report until when he was asked of it under cross-examination.  I find it incredible that, if he had genuine doubts about the accuracy and reliability of that report, he would not have so commented on it previously but have instead allowed it to be incorporated into his own report for use at trial.  

(d)  The BDCL’s report and results are the Plaintiffs’ own evidence.  Mr Lau, counsel for the Plaintiffs, confirmed in his closing submissions that the Plaintiffs would not challenge or disown the flooding test results.

(8)  For the above reasons, I accept the negative flooding test results as accurate and reliable. 

(9)  I also find that there is no evidence to show that any repair works had been carried out for the water proofing surface of the 27B Flat’s master bathroom between Mr Chan’s first report (i.e., March 2005) and the time of the flooding tests (April 2008).

(10)  In the circumstances, I conclude that the Plaintiffs have failed to prove that the water proofing surface of the 27B Flat’s master bathroom was defective, and was a cause of the water leakage problems.

C3.  If the answer to (2) is affirmative, whether the Defendants were liable to the Plaintiffs under breach of clause 6(b)(v) of the DMC, in negligence and/or in nuisance

53.Had if found that the water leakage problems were caused by the defective water proofing surface of the 27B Flat’s master bathroom, I would have also found that the Defendants were liable for it in negligence and/or nuisance.   This is so as it would be within the duty of the Defendants’ to take reasonable care and to maintain reasonable repair of the water proofing surface of their master bathroom floor to prevent or avoid any water leakage into the 26B Flat below.  Ms Gwilt for the Defendants has not sought to contend otherwise.

54.I would have also found that the Defendants were in breach of clause 6(b)(v) of the DMC.   This is so because the Plaintiffs only managed to carry out the water flooding test at the 27B Flat after successfully obtaining a Court Order to compel the Defendants to allow that to be done. 

C4.  Quantum

C4.1  The contentions

55.The Plaintiffs claim the following damages:

(1)  HK$50,800.00 for repair cost.

(2)  HK$20,000.00 as damages for inconvenience.

56.It is common ground that since when the Plaintiffs first noticed the water seepage problems and the plaster of the master bathroom and bedroom started to experience damage in 1998, no repair works have ever been carried out even until now.   The claimed cost of HK$50,800.00 represents only a quotation for works to be carried out to rectify the defects identified and caused by water leakage problems as at 12 May 2005.

57.The Defendants dispute the quantum on the following basis:

(1)  Insofar as the cost of the repair is concerned, it covers the period before the Defendants had moved in the 27B Flat and before their breach of clause 6(b)(v) of the DMC.  The Defendants should therefore not be held liable for that part of the damage and loss.  Since there is no evidence at trial to support any apportionment between the extent of the damage caused before and after the Defendants had moved in, the Plaintiffs (Ms Gwilt argues) have failed to prove the exact and proper quantum. 

(2)  There is no evidence to support any inconvenience caused to the Plaintiffs by reason of the water leakage problems.

C4.2  Damages for cost of repair

58.I reject Ms Gwilt’s submissions in relation to the claim for repair costs for the following reasons:

(1)  Although it is correct to say that the repair works set out in the quotation cover the defects caused to the ceilings before the Defendant’s liability arose, it does not necessarily mean that the Plaintiffs are not entitled to clam damages (if shown) in the cost to rectify all these defects, as long as it could be shown that any cost they would have had incurred to rectify the previous defects would have been wasted by reason of the new defects caused by the Defendants’ subsequent breach.  This is usually known as the recovery for expenses rendered futile by the subsequent breach:  McGregor on Damages(7^th ed), paras 2-018 – 2-022.

(2)  There is unchallenged evidence before the court that:

(a)   between 1998 and the summer of 2004, the water leakage problems experienced by the Plaintiffs were bearable and the damage caused to the ceilings of the master bedroom and bathroom was not serious, with some minor propping up of the ceiling plaster in the bathroom and some small scale falling of plasters from the ceiling of the bedroom. 

(b)  the water leakage problems had however got worse and worse at around the same areas of the ceilings of 26B Flat’s master bedroom and bathroom after December 2004 until it was substantially rectified in September 2005. 

(3)  Given the above evidence, and on the balance of probabilities, I am entitled to infer by way of common sense that the defects that had been caused by the water leakage problems to the ceilings of the master bedroom and bathroom of the 26B Flat after December 2004 were more likely to be more extensive and serious than the defects that had been caused before that time. 

(4)  In the premises, I am satisfied that any cost of repair that would have been incurred to rectify any defects caused to the ceilings of the 26B Flat before the Defendants’ liability arose would have been wasted by reason of the new defects caused to these ceilings after the Defendants’ breach.

(5)  I therefore accept that in principle the Plaintiffs are entitled to recover the cost of repair of defects up to the end of September 2005.

59.However, the Plaintiffs’ claim for damages in the sum of HK$50,800.00 still runs into a difficulty:  this quantum has not been incurred and thus proved, as the works have not been carried out and that sum has not been paid. 

60.There is also no alternative plea for an indemnity of repair cost in the Statement of Claim. 

61.In the premises, the Plaintiffs are not entitled to damages in the sum of HK$50,800.00 as claimed, and I would only give nominal damages in the sum of HK$100.00 under this head.

C4.3  Damages for inconvenience

62.There is evidence before me to show that the Plaintiffs have suffered inconvenience, as she had to frequently clean up the falling paint and plaster as a result of the water leakage problems.  This is set out in paragraph 23 of Ms Lai’s witness statement (which is not challenged) as follows:

“Because of the frequent times for me to clean up the falling paint and plaster, I developed a tennis elbow at my right arm and have seen 2 specialists for medical treatment…”

63.Given the nature of the inconvenience caused, and that it had lasted for about 5 months by reason of the breach (between January and September 2005), I am of the view that damages in the sum of HK$15,000.00 is reasonable, and I so order.  In coming to this conclusion, I have considered the authorities cited by the Plaintiffs, namely:  So John v Lau Hon Man [1993] 2 HKC 356; Wong Hon Hung v Cheung Hing Mei (unrep., DCCJ 5341/2006, 24 June 2008, Deputy District Judge J Ko), paras 123-126; Lam Po Chun v Leung Wai Chun (unrep., DCCJ 1085/2003, 16 February 2004, H H Judge L Chan), paras 35-40.

D.  The witnesses

64.Ms Lai and Ms Ho both gave evidence at trial. I find them both to be honest witnesses.  

65.However, given the development of the case, most of their evidence is either uncontroversial or irrelevant. 

66.For the evidence which I believe is relevant to my determination, I have already set out my views on it above.

67.In relation to any differences (or conflicts) in their evidence which is unrelated to the determination of the issues, I will attribute the differences more to innocent faulty memories by reason of passage of time or honest confusion.   Subject to the above, insofar as necessary and in case of conflict, if I had to express an view, I would have preferred Ms Lai’s evidence to that of Ms Ho.  This is so because Ms Lai gave her evidence in a more consistent and unshaken manner, while Ms Ho on her own account frequently indicated under cross-examination that she could not remember many of the matters and events well.  I would therefore have found Ms Lai’s evidence, if different from Ms Ho’s, more reliable.

E.  Conclusion

68.For the above reasons, the Plaintiffs succeed in the present claim, and I give judgment in favour of the Plaintiffs in HK$100.00 as nominal damages and HK$15,000.00 as damages for inconvenience.   The Plaintiffs are also entitled to interests at the rate of 1 % above the prime rate as from time to time quoted by the Hongkong and Shanghai Bank from the date of the writ to the date hereof, and thereafter at judgment rate until payment. 

69.Ms Gwilt for the Defendants has specifically asked me to adjourn the arguments on costs when I hand down my judgment if the Plaintiffs succeed, as she says there are various features of this case relevant to costs that she would have to address me.  Mr Lau raises no objection to that suggestion.

70.I would thereforefurther direct that the parties should write to the Court to fix a hearing date to argue on costs.

Mr. Roland LAU, instructed by Messrs Johnnie Yam, Jacky Lee & Co. for 1^st & 2^nd Plaintiffs.

Ms. GWILT, Angela Davina, instructed by Messrs Tang, Wong & Cheung for 1^st & 2^nd Defendants.

[1]  See the IO's letter dated 25 April 2005.

[2]  Notwithstanding Ms Lai's evidence that, insofar as the Plaintiffs could visually observe, the water leakage problem has ceased since late September 2005, I accept Mr Lau's submissions that the expert evidence shows that there was continued minor water seepage problems detected by Infra-red thermography tests at the ceilings of the 26B Flat master bedroom and bathroom. These seepage problems only stopped by June 2008.