Ip Sing Basil v. Cyberage Holdings Ltd
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DCCJ 5735/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVL ACTION NO. 5735 OF 2007 -------------------------------- BETWEEN
-------------------------------- Coram: HH Judge E. Yip in Court Dates of Hearing: 29th January 2010 and 1st February 2010 Date of Handing Down of Judgment: 11th March 2010 -------------------------------- JUDGMENT -------------------------------- Background 1.The Plaintiff was the landlord of a flat. He rented it to the Defendant. Shortly after moving in, the Defendant’s director, Kwok Ching, who actually occupied the flat, complained about the high temperature of the floor tiles in the corridor whenever the ceiling lights of two bedrooms were switched on for an hour or so. (Kwok Ching and the Defendant can be regarded as a single entity in the present proceedings. I shall refer “Kwok Ching” also as the Defendant for simplicity’s sake.) The Plaintiff’s surveyor found that it was due to electricity leakage in the wiring under the floor tiles. It proposed disconnecting the internal electrical wiring and using external electrical wiring encased in plastic tube to run along the wall and the ceiling (“Option 1”). He refused such proposal and, as advised by his own surveyor, counter-proposed to open up the floor tiles to inspect before deciding on any solution. The Plaintiff refused such counter-proposal. Later on, he agreed to Option 1 on condition that the Plaintiff would admit liability at the same time. The Plaintiff agreed to carry out Option 1 but not admit liability. He refused to let the Plaintiff implement Option 1 simpliciter. He refused to pay rent and eventually moved out. The Plaintiff sued him for outstanding rent accrued before moving out. He counterclaimed loss and damage due to the problem and the Plaintiff’s failure to carry out Option 1. 2.After the commencement of the respective proceedings, he paid up all outstanding rent. The present trial concerns only the counterclaim. 3.Two days before trial, it was formally agreed by both parties that there was high temperature on the floor tiles and that Option 1 was an acceptable solution to the problem (“Pre-trial Agreement”). The authorities cited in the parties’ written opening with a view to defining the appropriate standard of repair had become academic. Defendant’s case in short 4.To avoid safety hazard and high temperature on the floor tiles, he had to switch off part of the electricity supply. This had caused loss of convenience in use and loss of quiet enjoyment to him. This is his first batch of claim. 5.Further, shortly after he had moved in, the Plaintiff’s wife admitted prior knowledge of the high temperature on the floor tiles. Before signing the Tenancy Agreement, the Plaintiff had represented that the Flat had always been rented out and there had been no problem at all. He alleges that, taking the Plaintiff’s wife’s subsequent admission, the Plaintiff had misrepresented to him that there had been no problem at all. He seeks damages for misrepresentation. This is his second batch of claim. Plaintiff’s case in short 6.The Plaintiff had been quick to appoint an electrician to see to the Defendant’s complaint. It then let him choose between various options, including termination of the Tenancy Agreement, slight reduction of rent, or external electrical wiring. The Pre-trial Agreement has done away with the legalistic argument as to what standard of repair has to be implemented. It remains for him to show that he suffers loss and damage due to the Plaintiff’s failure in implementing Option 1. 7.On the issue of misrepresentation, the Plaintiff’s wife denied having told him that the Plaintiff had been aware of the problem beforehand. Correspondences between the parties 8.Most facts can be gathered from the correspondences between the parties shortly after the Tenancy Agreement was signed up to the time of the present trial. The parties do not dispute these facts but their effects and meanings. I shall refer to only those facts relevant to the present trial. Survey reports between the parties 9.As will be seen hereinafter, each side appointed its surveyor. Each surveyor made a report. The findings in the reports are not in dispute. The surveyors are not required to give evidence. Facts not in dispute (unless specified otherwise) 10.On 1 October 2007, the Defendant signed a tenancy agreement (“Tenancy Agreement”) with the Plaintiff relating to Flat B, 16/F., Block 4, Riviera Gardens, Tsuen Wan, N.T. (‘Flat”) for the period from 1 October 2007 to 30 September 2009. The rent was $8,000 per month. 11.After some basic repainting and cleaning which he carried out with his family members, he moved in with his wife and 2 children, aged 2 and 6 respectively. Within a few days, he discovered that the floor tiles in the corridor would become very hot, up to about 60 °C when the ceiling lights of the 2 children’s bedrooms were on for some time. He inquired from the floor below and the management office but no one could give any explanation. 12.On 12 October 2007, he complained to the Plaintiff about the problem. The Plaintiff’s wife, Law Cheuk Wai Shirley (“Law”), was in charge of the tenancy matters. According to his evidence, which is disputed by the Plaintiff, she told him that her parents, who were from Canada, had resided there for some time. They used to go barefooted in the Flat and soon felt the heat. The estate agent advised that the same problem was affecting other Flats of the same estate. As a solution, they could wear slippers. 13.On 27 October 2007, Law contracted an electrician, Ip, to inspect the Flat to try to find out the problem and the solution. After the inspection, Ip advised that the heat was emanated from mislaid electrical wiring under the floor tiles. That section of power should be switched off to avoid safety hazard. 14.On 31 October 2007, Messrs. Raymond Cheung & Chan (“RCC”) acting for the Defendant wrote to the Plaintiff demanding compensation for the high temperature on the floor tiles and the misrepresentation that there had been no problem beforehand [106 – 107]. 15.On 8 November 2007, Messrs. S. H. Chan & Co. (“SHC”) acting for the Plaintiff wrote to deny the problem and the misrepresentation. The Plaintiff proposed to re-wire the wire on the surface of the wall to be covered by plastic tube, and provide two vertical lamps for the 2 bedrooms in question to replace the ceiling lights whose wiring caused the heat, namely “Option 1”. Alternatively, he might early terminate the tenancy with a refund of the rental deposit [108 – 109]. According to Law [47 para. 10], the repair would only take 3 hours. 16.On 16 November 2007, RCC referred to Ip’s comment of a case “90%” probable of electricity leakage during the joint inspection. RCC proposed that he could elect to move out temporarily at the Plaintiff’s expense until the problem was resolved upon appointment of independent surveyor to investigate the problem and contractor to fix it up. Alternatively, he could elect to terminate the Tenancy Agreement on the following terms:
17.On 28 November 2007, SHC wrote to deny that Ip had made such comment. SHC complained about his repeated unexplained refusals to let the Plaintiff inspect the Flat for a solution to the problem. The Plaintiff regarded his insistence on appointment of independent surveyor as a means to default in paying rent and to claim unreasonable damages. The Plaintiff requested to attend the Flat on 2 December 2007 (Sunday) at 11:30 a.m. for inspection [113 – 114]. 18.Between 30 November and 1 December 2007, it was agreed between the parties that the Plaintiff’s wife and the Plaintiff’s contractor could inspect the Flat at the requested date and time [115 – 117]. 19.On 8 December 2007, SHC wrote to put on record that the Defendant had not allowed the Plaintiff’s wife and the Plaintiff’s contractor to touch or repair anything and asked them to leave after 7 minutes. As a result, the inspection was incomplete [118 – 120]. 20.On 13 December 2007, RCC wrote to state that he had already allowed the Plaintiff to look at the portion of the floor under complaint. He insisted on appointment of independent surveyor to inspect the Flat and make a report [120]. 21.On 3 January 2008, SHC wrote to reject his request of appointment of independent surveyor [124 – 125]. 22.On 15 January 2008, RCC wrote to contend that the Plaintiff’s liability for the high temperature on the floor tiles would have to be established by appointment of independent surveyor. He rejected Option 1 for its different outlook [126 – 127]. 23.On 22 January 2008, SHC wrote to reiterate Option 1 together with other options including reduction of rent from $8,000 to $7,500 per month or immediate termination of the Tenancy Agreement [128 – 130]. 24.On 31 January 2008, RCC wrote to reject all options [132]. 25.On 11 February 2008, RCC wrote to, inter alia, propose that if the Plaintiff admitted liability for the high temperature on the floor tiles, no independent surveyor would be required. He reiterated the request for compensation [133 – 135]. 26.On 12 February 2008, SHC wrote to reiterate the Plaintiff’s stance [136 – 137]. 27.On 23 February 2008, RCC wrote that the Defendant might have to consult his own contractor to solve the problem [138]. 28.In February and March 2008, his surveyor, Proficient Surveyors & Co. (“Proficient Surveyors”), inspected the Flat and made a report that the heat, up to 65.7 °C [63] was abnormal and the cause was “a heated coil or heater … installed in the embedding in the concrete floor slab of the corridor … a fitting not fit nor safe for the use of a general tenant”. Proficient Surveyors did not put forward any solution [64]. The report was submitted to SHC. 29.On 9 May 2008, RCC wrote to, inter alia, accept Option 1 and propose reduction of rent from $8,000 to $6,000 per month for the whole period of tenancy [94 – 95]. 30.On 11 June 2008, Hang Seng Real Estate Management Limited (“Hang Seng Management”) wrote to notify him that it was appointed by the Plaintiff to deal with, inter alia, the high temperature on the floor tiles. It requested him to call its staff to solve the problem [191]. 31.On 19 July 2008, Hang Seng Management wrote to him to put on record that the Defendant had refused to allow Hang Seng Management to inspect the Flat to solve the problem [192]. 32.On 12 August 2008, Hang Seng Management wrote to request him to allow its surveyor, Tru-tight & Associates Limited (“Tru-tight”), to inspect the Flat to solve the problem [193]. 33.On 14 August 2008, Tru-tight inspected the Flat. It advised that the faulty wiring for the ceiling lights in the 2 bedrooms under the floor tiles in the corridor had led to the high temperature on the floor tiles. In practical terms, it proposed Option 1 [92]. The report was submitted to RCC. 34.On 26 August 2008, RCC wrote to request the Plaintiff to implement Option 1 and admit liability for damages [171 – 172]. 35.On 29 August 2008, Hang Seng Management wrote to remind him of calling its staff to implement Option 1 [196]. 36.On 19 September 2008, SHC wrote that the Plaintiff would implement Option 1 but not admit liability for damages [173 – 174]. 37.He refused to pay the rent before the problem was solved. The Plaintiff claimed the outstanding rent. He counterclaimed loss and damage due to the problem and the misrepresentation. He paid up the outstanding rent. Evidence from Defendant 38.Kwok is the only witness in the counterclaim. His witness statements [41 – 45, 50 – 53] stand for part of his evidence in chief. His evidence is consistent with his witness statements and correspondences written for and on his behalf. Evidence from Plaintiff 39.Law is the only witness in the Plaintiff’s defence to the counterclaim. Her witness statement [46 – 49] stands for part of her evidence in chief. Her evidence in Court is consistent with her witness statement and correspondences written for and on the Plaintiff’s behalf. Loss of convenience in use and of quiet enjoyment of the Flat 40.This is the Defendant’s first batch of claim. On 12 October 2007, he complained to the Plaintiff about the problem. On 8 November 2007, the Plaintiff, through SHC, wrote to propose “Option 1” or alternatively early termination of the Tenancy Agreement by him with a full refund of the rental deposit. He had refused to have Option 1 implemented all along. It was only until 26 August 2008 that he, through RCC, had written to request the Plaintiff to implement Option 1. However, he made it a concurrent requirement for the Plaintiff to admit liability for damages before Option 1 could be implemented [171 – 172]. 41.He moved in on 1 October 2007. He soon discovered the problem and complained to the Plaintiff. Option 1 was proposed to him on 8 November 2007. His claim for loss of convenience in use can be divided into two periods, namely from 1 October 2007 to 8 November 2007 (“1st Period)” and from 8 November 2007 to moving out (“2nd Period”). 42.In the Statement of Damages [54 – 60], he referred to a variety of complaints, some of which are not relevant to the present trial. Of relevance may be the incident of his child’s leg burned by the floor tiles while not wearing slippers. But he made no specific claim for it. He rather based his claim on a generalized account of how his family life was adversely and gravely affected as the lights of all three bedrooms had to be switched off for safety reason. For both Periods, his claim, among other items not relevant to the present trial, was virtually $2,000 per month, which was a quarter of the rent due to loss of use of the three bedrooms for they stood for half of the floor area of the Flat for half a day when the lights had to be switched off. 43.I do not believe that he would not immediately complain to the Plaintiff about the problem with the floor tiles. I find him a person quick and unhesitant in making his own views known. He had no reason to wait until 12 October 2007 to complain. I find his alleged extent of loss of use grossly exaggerated. I am not inclined to put it any higher than a nominal figure of $500 for the 1st Period. 44.I come to consider the 2nd Period. Instead of getting Option 1 implemented promptly, he had insisted on the concurrent requirement of admission of liability for damages by the Plaintiff. He cannot recover any loss of convenience in use for this period. 45.In the Statement of Damages [55 – 56 para. 6]. he also claims, for the period from August 2008 to 31 May 2009, loss of quiet enjoyment for 3,000 per month. It stemmed from a power leakage of all plugs in the three bedrooms and the washroom. As a result, the relevant power main had to be switched off. He had to use an extension power cord to lead electricity from the sitting room to the washing machine in the washroom. The children had been tripped by the extension cord. So he could only use the extension cord at night after the children had slept. The facts did not feature in the correspondences or his witness statements. I do not find such loss proved. Damages for misrepresentation 46.This is his second batch of claim. He says that Law had told him that her parents from Canada had lived there and found the problem as well. Law says that her parents were from Australia and that not only had they never lived there but the preceding tenancy had also ended only a week before he took up the present tenancy. As I see it, there could be no concealment of the problem once he moved in. It would be a pointless exercise for the Plaintiff to tell this lie before signing the Tenancy Agreement and then shortly afterwards offer to let him terminate the Tenancy Agreement with a full refund of deposit. I prefer Law’s evidence to Kwok’s evidence. Conclusion 47.Based on para. 43 hereinbefore, the Defendant shall get a nominal damage of $500 in the counterclaim. I order costs nisi to the Plaintiff. It shall become absolute after 28 days from today.
Representation: Mr SIN Ping Ho, of M/s. S. H. Chan & Co for Plaintiff. Mr Henry FUNG, instructed by M/s. Raymond Cheung & Chan for Defendant. |