Wong Kang Kwong v. Tung Shu Kwan and Another
|
DCCJ 1117/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1117 OF 2008 -------------------- BETWEEN
-------------------- Coram : Deputy Judge Osmond Lam in Court Dates of hearing : 13th July 2009, 14th July 2009, 16th July 2009 Date of handing down Judgment : 6th August 2009 JUDGMENT 1.This is a water seepage from the Defendants’ premises to the Plaintiff’s premises down below. The Plaintiff claimed for damages in the total sum of HK$228,000.00 and his cause of action was that of tort of nuisance and/or breach of Deed of Mutual Covenant. 2.The Plaintiff is at all material times the registered owner of Unit 3, 3/F Shun Fat Industrial Building, 17 Wang Hoi Road, Kowloon Bay, Kowloon. (“the 3rd Floor premises”), whereas the Defendants the registered owners of the 4th Floor premises directly above the Plaintiff’s. 3.The issues before me, like in most other similar cases, are simply what caused the water seepage and whether it came from the Defendants’ 4th Floor premises. If the Defendants were responsible for the water seepage, then what were the damages suffered by the Plaintiff, if any. 4.There was complaint concerning water seepage onto the Plaintiff’s 3rd Floor premises and as a result on or about 31st October 2006 (or according Mr. S.T. Wong the registered structural engineer who attended the inspection the date was 1st November 2006), a joint inspection took place at the 3rd Floor premises to inspect the defective floor slab (at toilet area) at the ceiling of 3rd Floor. The exact date of the inspection does not really matter. There were also photographs taken as to the condition thereat. Mr. Wong had this to say :
5.Thus, it was a warning from a professional structural engineer that the ceiling of the 3rd Floor was in serious deterioration and that it had to be repaired, otherwise the ceiling might even collapsed. 6.The Defendants were quick to respond. The letter from S.T.Wong & Partners Ltd. did not reveal any cause nor did it say that any water seepage came from the Defendants’ 4th Floor premises onto the 3rd Floor premises. Mr. Tung the 1st Defendant had this to say:
7.The Defendants did not reject the Plaintiff’s claim out of hand, and to be fair to them, they asked for evidence that they were responsible. 8.On the other hand, on 13th November 2006, the Plaintiff instructed solicitors to issue a letter before action and demanded HK$70,000.00 as the estimate of costs of repair of the 3rd Floor premises and also demanded maintenance works to be done at the Defendants’ premises. No doubt by threatening legal action, it did not enhance cordial neighbourhood relationship. 9.Meanwhile, on 6th November 2006, the managing company Hang Yick Properties Management Ltd. carried out a special check for the common used drainage pipe and water pipe by their technical staff and found that “there was no any leakage or seepage from the common used pipe.” This information was related to the Defendants on 14th November 2006. 10.On 20th November 2006, S.T. Wong & Partners Ltd. wrote another letter dealing with the cause of the water seepage addressed to the Plaintiff. Mr. Wong said this :
11.This letter tried to address the Defendants’ concern as to evidence or proof that the water seepage problem was originating from their 4th Floor premises. However, the Defendants in a letter also dated 20th November 2006 still insisted that “professional documents to verify the share of responsibilities of the subject matter should be properly prepared and submitted, should you need any assistance from my end. I will then evaluate the case accordingly.” 12.Thus, it can be seen that the Defendants were still not accepting any responsibility. Nor were they convinced by this latest letter of Mr. S.T.Wong as to the cause of water seepage. As to what the Defendants required by way of “professional documents”, they did not specify. Thereafter, government departments became involved. 13.On 5th December 2006, the Joint Office of Building Department and Food and Environmental Hygiene Department went to the premises to carry out a colour pigment test but they could not identify the cause at that time. However, the department promised to do further testing in future. 14.On 5th February 2007, the department sent some staff to carry out a ponding water test on the 4th Floor of female toilet. In a letter dated 13th April 2007, it said that “the test revealed that the source of water seepage at the ceiling of Unit 3 on 3/F should be defective water-proofing material on the floor of toilet. In this regard, we have informed you and the complainant of the identified source of water seepage on 14th February 2007.” The letter also recorded that a Nuisance Notice was issued to the Defendants on 3rd April 2007 requiring them to repair satisfactorily the toilet at your premises by providing proper water-proofing material to prevent water seepage to Unit 3 on 3/F. 15.Pausing here and by this juncture, it must seem to any reasonably objective bystander that the evidence was quite conclusive. Mr. Lawrence Cheung for the Defendants has done a remarkable job in attempting to persuade me that there must have been some doubt as to the cause of the water seepage since the first letter of S.T.Wong did not specify the cause came from the 4th Floor premises, the first test by the government department could not identify the cause and that if there had been any problem it had nothing to do with the Defendants. 16.There are the attacks on phrases used, for example “water dripping down” which was not seen by the structural engineer and that Mr. Wong was not in any position to comment on water seepage since he was only a structural engineer and that as I have mentioned already in the first inspection by the government departments staff no cause could be identified, let alone the fact that water seepage came from the Defendants’ premises. I have considered all those and other points taken by Mr. Cheung in this aspect. 17.Realistically, water is elusive. Different tests have to be taken and once it was confirmed that there was no leakage from the common pipes adjacent or in-between the 3rd and 4th Floor premises, it is difficult to see where else could the water have originated from. Of course, there would be some cases where the true cause could not be found. Further, I note that there was no expert report on the side of the Defendants to point to other causes for water seepage other than from their 4th Floor premises. When that being the case, I am left with the government staff pointing to the cause being from the 4th Floor premises, even if I were to disbelieve Mr. S.T.Wong, which I have no valid reason to do so. 18.In addition, the evidence of Mr. Tung of the Defendants who also pointed to some water on the toilet floor of the 4th Floor premises at different times. Of course, Mr. Tung insisted that such water as there was present did not cause any problem. But I am not convinced. I have no doubt and I do find that the water seepage did come from the 4th Floor premises and onto the 3rd Floor premises causing damages thereat. 19.That is not the end of the story here. 20.The Defendants also dispute the quantum and said that the Plaintiff’s claim for damages were exaggerated, excessive and he failed to mitigate the losses. 21.At the earliest stage of cross-examination by Mr. Lawrence Cheung for the Defendants, the Plaintiff withdrew his claim for the rental losses (for the sum of HK$105,000.00), once it turned out that the Plaintiff’s claim here could not really stand. The reason being, as it was rightly pointed out by Mr. Cheung for the Defendants that, the original sitting tenant’s monthly rental was less than the new tenant and thus begs the question how could the Plaintiff managed the increased rental of HK$35,000.00 per month suddenly and that Lap Kei Engineering Company Ltd. (“Lap Kei”) was in fact controlled by the Plaintiff. After the Plaintiff abandons his rental claim, then, it begs the question as to whether the rest of the Plaintiff’s claim i.e. the HK$120,000.00 repair costs by Ka Tai Decoration Engineering Co. (“Ka Tai”) and HK$3,000.00 being the costs of ST Wong’s expert report also stands. 22.The Defendants also counterclaim for a sum of HK$168,000.00 as damages suffered for reduced rental from their tenants due to the trouble and nuisance caused as a result of this water problem. The Defendants also claimed that the delay/conduct of the Plaintiff contributed to increase of the renovation costs in the sum of HK$45,000.00. In other words, if repair could have been carried out earlier, it would have cost much less than what the Defendants eventually paid. 23.In short, firstly I have to ask myself whether the Plaintiff having lost his credibility on nearly half of his original claim affects the remainder of his claim. 24.For that, I have to examine the Plaintiff’s claim here. 25.For the HK$3,000 paid to ST Wong & Partners Ltd., I see there is an invoice in the file that the money was paid by Lap Kei to ST Wong & Partners Ltd. It is already established that Lap Kei was a company controlled by the Plaintiff. It is not surprising that it was Lap Kei who paid since the letters from ST Wong & Partners Ltd. were all addressed to Lap Kei and I have heard evidence that the water seepage problem was dealt with by the Plaintiff’s manager Mr. Leung from Lap Kei. I have no reason to doubt that evidence. Thus, I find that the Plaintiff did pay the sum of HK$3,000.00 which was a direct loss arising from the water seepage problem. 26.Then the Plaintiff claims the costs of rectification in the sum of HK$120,000.00. It arises from an invoice of Ka Tai dated 3rd January 2008. It only gave a total figure in the sum of HK$120,000.00. The description on this invoice is far from adequate. There is paucity of information such as breakdown as to how much each type/unit of construction works cost and the detail of what did it involve, or for that matter the payment terms and any deposits so on which are usually apparent on any such quotations or invoices. 27.Then, I have to contrast the amount of repair costs eventually paid by the Defendants which only amounted to some HK$51,500.00 from one Shun Ming Construction Co. Ltd.. There seems to be some dispute between the Defendants and their contractors as to quality of works and the Defendants have not paid them in full yet. From Exhibit D2, only HK$46,350.00 was paid. Of course, the two different premises and their works to be undertaken would not be the same. The areas would be different and the extent would also vary, especially when I see the photographs of the damage to the ceiling of the 3rd Floor premises. Thus, the costs of the Defendants could only be a reference point and no more than that. 28.Nonetheless, I see that there were receipts from Ka Tai for cash payments made by the Plaintiff respectively for HK$50,000.00 on 3rd January 2008, HK$35,000.00 on 29th January 2008 and HK$35,000.00 on 28th February 2008 in relation to the works done. In absence of any other cogent evidence to the contrary, I am not prepared to simply reject these receipts which would signify some bigger conspiracy. Nor do I have some other independent evidence to say that the sum was totally out of normal proportion. 29.I remind myself that the standard is only on balance of probabilities and as a result, I find that this sum of HK$120,000.00 proven and I allow this sum. 30.I now turn to the Defendants’ counterclaim. 31.I first deal with the increase in renovation costs as claimed by the Defendants. 32.The Defendants point to some conduct of the Plaintiff, for example his solicitors threatening injunction to enter the Defendants’ premises for repair works to be done and then during the Defendants’ renovations threatening injunction to stop them. Such was the reason for the delay and subsequent increase in renovation costs. 33.However, all such matters happened because parties sadly could not work in harmony. When the Defendants started renovation on top, slabs fell from the ceiling in the 3rd Floor premises. It had to stop to prevent injury. Of course, thing would have turned out differently, if both parties carried out their renovations and repair works at the same time. That could not be achieved. But I do not find the conduct/delay caused the increase in renovation costs. 34.When I compare the two quotations (the original and the increased costs), they covered somewhat different works. In addition, the costs of HK$51,500.00 from Shun Ming was quite reasonable. Thus, I reject this counterclaim by the Defendant. 35.Insofar as the reduction of rental claim by the Defendants, it is really quite incredible. What the Defendants are saying is simply since there were so much trouble to the tenant, they agreed with the tenant a reduction from the market rate of HK$35,000.00 to HK$28,000.00 for a period of 24 months for 15th November 2007 to 14th November 2009; making it a total loss of HK$168,000.00. 36.I have no hesitation in rejecting this claim. Firstly, the Defendants’ stance throughout was that there was no problem in the toilet area of the 4th Floor premises. If there was, it was only a slight one. If that was their case from the outset and maintained at trial throughout, then, the reduction of rent had nothing to do with the nuisance. Secondly, I can well understand some reduction for any trouble caused during the renovation period or before, but not for an extra two years after all was well and repaired. That must be stretching the imagination too much. For these reasons, I also reject this counterclaim of HK$168,000.00. 37.As a result, I enter judgment for the Plaintiff for the sum of HK$123,000.00 (being HK$120,000.00 + HK$3,000.00). As to costs, I make an order nisi for the allowance of half of the Plaintiff’s costs only with certificate for counsel, as nearly half of his claim failed. At the same time, I dismissed the Defendants’ Counterclaim. The interests of the sum of HK$123,000.00 at half of judgment rate from the date of writ to date of judgment and at full judgment rate thereafter until payment. Needless to say, I thank both counsel for their comprehensive and excellent work and assistance in this matter.
The Plaintiff : represented by Mr. Lam Chin Ching Gary instructed by Messrs. Chak & Associates, Solicitors. The Defendants : represented by Mr. Lawrence Cheung instructed by Messrs. K. H. Yiu & Associates, Solicitors. |