Fong Po Shan Eunice and Another v. Chung Wing Cheung Vincent and Another

DCCJ 4063/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4063 OF 2009

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BETWEEN

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Coram : Her Honour Judge Mimmie Chan in Court

Dates of hearing : 13 & 14 December 2010

Date of handing down Judgment : 26 January 2011

JUDGMENT

Background

1.It is not disputed that as a result of renovation works carried out at the premises of the Defendants between September and December 2008, cracks appeared on the ceilings and the upper parts of the walls in the premises of the Plaintiffs which were situated below the Defendants' flat. The Plaintiffs claim that the cracks were formed as a result of vibrations caused by the renovation works. The Defendants agreed to carry out repair works, but the parties were not able to agree on the extent of the repair works required and the costs involved.

2.The Plaintiffs finally instituted proceedings in September 2009 to seek unliquidated damages. The Defendants filed notice of their intention to contest the proceedings in October 2009, but on 5 December 2009, pursuant to Order 13A rule 6 (2), they filed notice of their admission of liability to pay $50,000 as damages in satisfaction of the Plaintiffs' claim.

3.The Plaintiffs were not prepared to accept the sum of $50,000 offered by the Defendants, and pursuant to Order 13A rule 7(9) and (10), interlocutory judgment was entered against the Defendants on 17 December 2009 for damages to be assessed. Directions were given for discovery and for witness statements on facts to be exchanged.

4.According to the evidence filed on behalf of the Plaintiffs, photographs of the damaged areas in the Plaintiffs' flats, namely Flat G of Miss Fong and Flat H of Miss Chan, were taken by the staff of the Management Office of the building in November 2008. The Plaintiffs' flats were inspected on 22 September 2008 by Mr. Choi, who was in charge of the renovation works in the Defendants' flat. Both Mr. Choi and Mdm. Chung (the 2nd Defendant) informed the Plaintiffs on 22 September 2008 and 21 November 2008 that the Defendants would remedy the situation by carrying out "touching up" work in respect of the cracked parts of the Plaintiffs' flats. The Plaintiffs did not regard such offer of "touching up" to be acceptable, and on 9 December 2008, they demanded payment of a total sum of $121,020, representing their total costs of making repairs to and repainting the affected areas of their respective flats, their moving and cleaning charges, their costs of renting serviced apartments for one month and furniture storage charges for one month.

5.The hearing in December 2010 was for the Court to determine the amount of damages to be paid by the Defendants to the Plaintiffs as a result of the damage caused by the renovation works carried out in the Defendants' flat.

Applicable legal principles

6.According to the Statement of Claim, the Plaintiffs' causes of action lie in negligence, nuisance and breach of the provisions of the Deed of Mutual Covenant ("DMC"). Clause 9 of the Third Schedule to the DMC prohibits the Defendants to do or cause or permit any act which may become a nuisance or annoyance to or cause damage or inconvenience to the other owners and occupiers such as the Plaintiffs. Clause 20 of the Third Schedule to the DMC provides that the Defendants shall not produce or permit any vibration or other acts in their premises so as to cause a nuisance to the Plaintiffs. Under Clause 12 of Section E of the DMC, the Defendants are to pay all costs, charges and expenses incurred in repairing or making good any loss or damage caused by the act, neglect or default of all persons using the Defendants' premises with their consent.

7.It cannot be disputed that whether for negligence, nuisance or breach of the DMC, an award of damages made by the Court aim at restitutio in integrum, and only such damages as are "fair reasonable and just" are to be awarded (para 29-06, Clerk & Lindsell on Torts, 18^th Edition). In relation to physical damage to property, the cost of repair has become established as, prima facie, the claimant's loss. To be recoverable, the costs of repair must be reasonable, both in that the work must be necessary and the charges must not be extravagant (para 32-006, McGregor on Damages, 18th Edition).

Damages payable

Cost of repairs

8.The Defendants claim that from the time their contractor had inspected the Plaintiffs' premises in September 2008, they had made it clear to the Plaintiffs that the Defendants' contractor would carry out repair works for the Plaintiffs and that the Defendants would bear all the costs of such repairs. Mdm. Chung's evidence is that her repeated offers made to the Plaintiffs, in October 2008, December 2008 and March 2009, to make arrangements for repair works to be carried out by the Defendants' contractor were all rejected by the Plaintiffs. Mdm. Chung explained that she in turn rejected the Plaintiffs' demand for the sum of $121,020 because the sum sought was unreasonable. The sum of $121,020 was demanded on the basis of repair costs being $25,000 for each of the Plaintiffs' flats, and repair works requiring 20 working days, such that the Plaintiffs had to seek one month's accommodation in serviced apartments.

9.Mdm. Chung relies on her own contractor ("Whizzy Design")'s quotation to carry out the required repair works for the sum of $5,500 and completing the repair works within one day. Whizzy was able to quote a low price as it was already doing the Defendants’ renovation works. Mdm. Chung further relies on the quotations obtained from 2 other contractors, Yick Sing Design Engineering Co. ("Yick Sing") and Ka Wah Furniture Trading Co. ("KW"), in relation to the execution of the repair works in question. Yick Sing's quotation was for $9,000, requiring 3 days to complete the work, whereas KW's quotation was for $8,500, also requiring 3 days for the work. The Defendants therefore claim that it was unreasonable for the Plaintiffs to instruct their contractors to carry out the repair works at the cost of $21,840 for Miss Fong and $21,000 for Miss Chan. They claim that the Plaintiffs had incurred the expenses in order to carry out renovation works which were unrelated to the cracks or damage caused by the vibration complained of, and were unnecessary.

10.The Plaintiffs sought to distinguish the repair work offered by the Defendants and the work actually carried out on their behalf, on the basis that the Defendants had only offered to have their contractor execute "touching up" work, which was rejected by the Plaintiffs on the basis that touching up the cracks was insufficient or inadequate to rectify the damage to the Plaintiffs' flats. According to the Plaintiffs, the work which was actually carried out by General Design Project ("General Design") for Miss Fong and by Man Chi Decoration and Furniture Company ("MC") for Miss Chan involved removing the existing paint, plastering, and applying new paint for the entire flats.

11.When the Plaintiffs made demand for the sum of $121,020 on 9 December 2008, they had relied on a quotation which had been given to them by the contractor recommended by the Management of the building, Contemporary Home Services Centre ("Contemporary"), to carry out the required plastering and repainting work for $25,000, over a period of 20 days.

12.On the face of the quotation submitted by KW, the work proposed to be carried out by KW at the cost of $8,500 for each flat of the Plaintiffs includes removing the existing paint of the entire ceiling and the walls of the entire flat of the premises affected, applying new paint to the ceiling and the walls of the entire flat, as well as repairing, plastering and making even the damaged parts of the wall. Such work required 3 working days, and KW indicated that there would be plastic covers provided for the whole flat in the course of the execution of the works, such that removing the items would not be required.

13.On the face of the quotation submitted by Yick Sing in March 2009, the work proposed to be carried out at the cost of $9,000 for each flat of the Plaintiffs includes adding plaster to the cracked areas and applying new paint to the ceiling and walls of the entire flat, with plastic cover for all the furniture and the floor. The work required approximately 3 working days for each flat.

14.On the face of the quotations submitted by KW and Yick Sing to the Defendants, and the quotations obtained by the Plaintiffs from General Design and MC, I can see no distinction in the work covered, save for MC's additional provision for the application of a coat of moisture-proof oil.

15.No expert evidence has been adduced in this case on the extent or effect of the damage caused by the vibrations made in the course of the renovation works executed in the Defendants' flat. In the absence of leave having been granted by the Court for the parties to adduce any expert evidence, I declined leave to the Plaintiffs to refer at trial to a survey report which had been made by surveyors engaged by the Plaintiffs. The photographs adduced at the hearing do not clearly show the cracks which are alleged to have been present on the ceiling and the walls of the Plaintiffs' premises, but from the available evidence including that of Miss Lo, the Assistant Estate Manager of the estate where the parties' flats are situated, the majority of the cracks do not appear to be very serious with the one exception in the living room which extended across the ceiling and which, according to Miss Lo, was about 3 or 4 inches long.

16.In the absence of any evidence as to the necessity of any particular manner of repairing the cracks in question which might require higher costs, I am not satisfied that the work covered in the quotations of KW and Yick Sing are inadequate, or that the charges of General Design and MC are reasonable or necessary. I bear in mind that the Defendants are only liable in law for the reasonable, and not extravagant, costs for work which is reasonably necessary and which is caused by the vibrations or the works carried out at the Defendants' premises.

17.In my judgment, it is unnecessary to refer to the transcript of the recording of the telephone conversation conducted by Mdm. Chung with the representatives of MC and General Design. They are in parts incomplete, and the estimates made by MC and General Design on whatever information provided by Mdm. Cheung have little probative value.

18.In relation to the costs of the repair works, I will only allow $9,000 to each of the Plaintiffs.

Miscellaneous costs

19.According to the quotation submitted by Yick Sing and KW, the plastering and repainting work for the entire flats could be carried out without items of furniture being moved out, and the work could be completed within 3 working days. Bearing in mind that the Plaintiffs' flats are less than 700 sq. feet in gross area, I consider that it would not be reasonably necessary for the Plaintiffs to move their items of furniture out of their flats for the purpose of having the repair works carried out. The moving and storage costs are therefore disallowed.

20.I will, however, allow the Plaintiffs' claim for procuring alternative accommodation for the period of time during which the repair works are carried out. Making allowance for cleaning, and (as the Plaintiffs argue) for the time required to properly ventilate the flats after the painting and plastering work, I will allow reasonable accommodation costs for a total period of 6 days. On the evidence produced by the Plaintiffs, the actual cost of Miss Fong's accommodation for 6 days is $3,465 and the actual cost of Miss Chan's accommodation for 6 days is $4,200.

Award

21.I award to Miss Fong the total sum of $12,465, representing the cost of the repair works to her flat and the cost of 6 days accommodation for the period of time when the repair works can be carried out.

22.I award to Mr. Chan the total sum of $13,200, representing the cost of the repair works to her flat and the cost of 6 days accommodation for the period of time when the repair works can be carried out.

23.There will be interest on the sums awarded, at judgment rate from the date of this Judgment.

24.I accept that prior to the institution of these proceedings, the Defendants had only offered to pay for "touching up" works and had not made it clear that these would involve repainting the entire flat. However, bearing in mind (as I am entitled to, under Order 62 rule 5(1)(g)) that the total sum awarded to the Plaintiffs is less than the sum of $50,000 which the Defendants had admitted liability for and had offered to pay to the Plaintiffs on 5 December 2009, I will make an order nisi that the costs of the action are to be paid by the Defendants to the Plaintiffs, save that the costs incurred after 5 December 2009 are to be paid by the Plaintiffs to the Defendants, to be taxed if not agreed.

25.After the Civil Justice Reform, the parties to any proceedings and their legal representatives have the duty to assist the Court to further the underlying objectives of the Rules of the Court: to increase the cost effectiveness of any practice and procedure in relation to proceedings before the Court, to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings, to facilitate the settlement of disputes and to ensure that the resources of the Court are distributed fairly. The Defendants had offered 3 months after the commencement of these proceedings to make payment of the sum of $50,000 to the Plaintiffs. By October 2010 at the latest, the Defendants had produced in evidence the quotations of KW and Yick Sing. The Plaintiffs and their legal advisers should have seriously considered accepting the offer of $50,000 instead of pursuing trial, which has produced an award not only below the sum offered by the Defendants but below the ceiling of the jurisdictional limit of the Small Claims Tribunal.

26.Having considered all the circumstances of this case, the further order nisi on costs that I make is that the costs to be paid by the Defendants to the Plaintiffs are allowed only on the scale applicable to the Small Claims Tribunal, but the Plaintiffs have to pay to the Defendants the costs awarded to them on the District Court scale of costs.

27.The costs orders nisi which I make will become absolute upon the expiry of 21 days unless either party applies to the court to vary the orders.

Mr. Simon Chan, of Messrs. Simon Chan & Co., for the Plaintiffs

Mr. Wong Charn Hung, Andrew, of Messrs. Huen & Partners, for the Defendants