Legent Ceramic Ltd v. Rainbow Choice Investment Ltd and Another

DCCJ 2434/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2434 OF 2008

____________

Coram: His Hon Judge Leung in court

Date of hearing: 2, 3, 4, 7 March 2011

Date of judgment: 10 June 2011

J U D G M E N T

1.During a heavy rainstorm in the evening of 19 April 2008, the shop premises of the Plaintiff (“Legent Ceramic”) on the Ground Floor of Hang Tat Mansion at Lockhart Road, Wanchai, Hong Kong (“the Building”), was flooded. Legent Ceramic holds the owner of Unit A on the 1^st Floor of the Building and its former landlord, the 1^st Defendant (“Rainbow Choice”), responsible for causing the flood to overflow into its shop. Rainbow Choice denies liability. It blames it on the Incorporated Owners of the Building (“IO”); and joined the IO as the Third Party. Legent Ceramic then joined the IO as the 2^nd Defendant as well.

The Building

2.From the Ground Floor, the Building rises up to the 22^nd Floor and the Roof.  There are 2 canopies occupying the whole width of the external wall of Building facing Lockhart Road (“the Road”).  They were outside the 1^st Floor and the 3^rd Floor respectively.  There were 2 shops on the Ground Floor, Shops A and B.  The shops were right under the canopy outside the 1^st Floor (“the Canopy”).  There was an entrance to the main lobby of the Building and a staircase from the street level leading to the 1^st Floor.

3.Rainbow Choice became the owner of the Ground and the 1^st Floors in 2005.  Prior to that, the Ground Floor and the 1^st Floor had been used by their previous owner or occupier to run a business as a bar for years.  Upon the acquisition of the premises, Rainbow Choice engaged contractor to carry out works both on the Canopy and the interior of the 1^st Floor.

4.In 2007, Rainbow Choice let Shop A on the Ground Floor to Legent Ceramic.  Legent Ceramic built a cockloft and a staircase inside the shop.  Later in the same year, Rainbow Choice sold Shop A on the Ground Floor subject to the tenancy.

5.At the time of the incident, Unit A on the 1^st Floor retained by Rainbow Choice was vacant.  The entrance to the staircase on the street level leading directly to the 1^st Floor was closed with a roller shutter.

6.The above facts are not in dispute.

The flood

7.The evening of 19 April 2008 was affected by exceptional heavy rain.  The yellow, red and eventually black rainstorm signals came into effect.  At about 6:30 to 7:00 pm, the cockloft and the front of the shop of Legent Ceramic on the Ground Floor were flooded.  So was the main lobby of the Building.  The water was found to be coming from the 1^st Floor.  Both the 1^st Floor and the Canopy were found to be flooded.

8.The parties confirmed that it was a drain hole at the Canopy, rather than the drainage pipe as pleaded, that was blocked by debris.  With the assistance of floor plan annexed to the title deeds, the photographs and the drawing submitted in court, the layout of the 1^st Floor and the Canopy became clear during the trial. The exact position of the drain hole in question was also identified.

9.The flood in the Canopy indeed subsided after the removal of the debris that had blocked the drain hole. It was discovered that the water in the Canopy had seeped into the 1^st Floor through various gaps, which in turn seeped into the premises of Legent Ceramic below through a hole on the floor of the 1^st Floor (and therefore the ceiling of the premises of Legent Ceramic).

10.How the flooding incident occurred in that evening is not really in dispute.  On the evidence, I find the above to the facts in any event.

The pleaded cases

11.Legent Ceramic now claims against Rainbow Choice and the IO for the alleged loss and damage to its shop premises and properties inside as a result of the flood.  The sole cause of action against both defendants is the tort of negligence.  Against Rainbow Choice, the major complaint is about the existence of the hole on its floor through which the flood water seeped into the shop.  Against the IO, the major complaint is about its alleged failure to maintain the drainage which was a common part of the Building.

12.Rainbow Choice contends that Legent Ceramic was aware of the existence of the hole upon the commencement of the tenancy in respect of the shop in 2007; and is now estopped from alleging negligence against it on this basis.  It also avers that the cockloft erected inside the shop contributed to the overflow of flood water.  As mentioned above, it also blames it on the IO for failing to maintain the drainage that led to the flood.

13.Rainbow Choice and the IO claim against each other for contribution or indemnity in the event that they are found liable to Legent Ceramic.  Hence the Third Party proceedings. By the order of the court, the question of the liability in the Third Party proceedings will be tried at the same time.

Issues

14.Considering how the incident happened and the pleadings, I find there are the following major issues in dispute:

(1)  Whether Rainbow Choice and/or the IO was responsible for the blockage of the drain hole at the Canopy;

(2)  Which party or parties was responsible for the overflow of the water from the Canopy to the shop of Legent Ceramic; and

(3)  the alleged loss and damage suffered by Legent Ceramic.

The blockage of the drain hole at the Canopy

15.There is no dispute that the flood originated from the Canopy; and it came about as a result of the blockage of the drain hole on the floor of the Canopy by the debris there. Central to the issue of whether Rainbow Choice or the IO was responsible for the blockage of the drain hole are the following questions:

(1)  Whether Rainbow Choice and/or the IO was responsible for causing the debris there at the time.

(2)  Whether the Canopy and the drain hole were common parts of the Building that the IO had the duty to maintain.

(3)  If yes, whether the IO has failed to maintain the Canopy and the drain hole.

Whether Rainbow Choice and/or the IO was responsible for causing the debris at the Canopy at the time

16.Rainbow Choice contends that the debris at the Canopy at the time came from the renovation work on the external wall of the Building in progress.  The IO contends that the debris was there as a result of the work carried out on the Canopy and the interior of the 1^st Floor by Rainbow Choice.

17.Mr Kwan (“Kwan”) of Fai Hung Construction Company (“Fai Hung”) was summonsed to attend the scene at about 7:30 to 8:00 pm after occurrence of the flood.  Fai Hung was the subcontractor of the project of renovation of the Building at the material time.  By the time of his arrival at the Building, the flood on the 1^st Floor and the Canopy reached a few feet deep.

18.It was Kwan who found the drain hole in question; and removed the debris that had blocked it.  After the removal of the debris, the flood gradually subsided.  Kwan found that the Canopy was covered with a lot of debris consisting of mud, brick fragments, rubbish and some bamboo sticks for erecting scaffoldings.  The situation was actually depicted in the photographs taken at the time.

19.According to its director, Mr Wong (“Wong”), when Rainbow Choice acquired the 1st Floor in about June 2005, metal frame structures had already existed and protruded outside the external wall of the 1^st Floor and the Canopy.  The fact was that an order was issued by the Building Authority in July 2006 whereby Rainbow Choice was required to remove (i) a structure erected in the Canopy at the front; (ii) a cage attached to the external wall; (iii) a metal frame attached to the external wall; and (iv) the door opened on the external wall for access on to the Canopy.

20.The evidence shows that Rainbow Choice engaged a contractor to carry out various works in June 2007.  According to the quotation from the contractor, the works included, among other things, the demolition of walls, the dumbwaiter and the illegal structures mentioned in the building order mentioned above.  According to Wong, all the works were completed by November 2007.  The evidence shows that the building order was withdrawn in January 2008.

21.The quotation mentioned above indeed contained an item of site clearing and cleaning charges.  Wong claimed that his company’s contractor had duly removed all the debris and materials from the Canopy and the 1^st Floor after the completion of work.  However he did not witness how the work was carried out.  He explained that he once went to the 1^st Floor with a Government official to inspect the completed demolition work.  On that occasion, he viewed the Canopy from the 1^st Floor through the window and discovered no debris.

22.Mr Poon (“Poon”) was the caretaker of the Building.  On the day of the incident, he was on leave.  According to him, the previous owner or occupier of the Ground and the 1^st Floor used to run a business of a bar there.  The front of the Canopy outside the 1^st Floor facing the Road was then used by the bar to put up a large advertisement signage.  The signage is depicted in a couple of photographs produced.  He recalled that after the bar had been closed, the owner of the 1^st Floor engaged a contractor to carry out interior renovation at the Canopy and the 1^st Floor in 2007.

23.By the time of the incident, Poon noticed that the main door on the 1^st Floor had been removed and was still covered by a plywood board.  The workmen were seen come to work every now and then.  He therefore believed that the renovation works on the 1^st Floor was then yet to finish.  He distinctly recalled that the construction materials and debris were only removed from the 1^st Floor about a week after the flood on 19 April 2008.  In the absence of instruction from the IO, he believed that that was carried out not by the IO’s contractor.  Kwan confirmed that it was not his company that did that.

24.There is no dispute that major renovation work on the external wall of the Building was then in progress.  The photographs taken then also depict the scaffoldings that were erected all over the external walls of the Building.  Some bamboo sticks for erecting the scaffoldings could also be seen from the photographs.

25.Yet according to Kwan, only 3 stages of the major renovation work of the Building had been performed by the time of the flooding incident.  The work progress timetable evidences that.  The first stage was general procedure.  The second stage was erection of scaffoldings.  The third stage involved the removal of the existing damaged mosaic surface of the external wall.  The third stage of work admittedly brought about debris, but the same would be collected by workers working as a team.

26.More importantly, Kwan explained that by the time of the flooding incident, the nearest spot of the external wall that had been so worked on was between the 2^nd and the 3^rd Floor of the other side of the Building, not the side in question which is facing the Road.  The fact was that no such work had been carried out on the external wall of the 1^st Floor, the Canopy or anywhere near them.

27.A diagram of the external wall of the Building facing the Road corroborates Kwan’s evidence.  On the diagram, the damaged areas of the external wall that required such work were actually identified and numbered by the consultant of the renovation project.  Indeed the only spot between the 1^st and the 3^rd Floor that required removal of damaged mosaic was at the other far end of the Canopy away from where the drain hole in question was located.  The debris that would have been created as a result of such work could hardly be substantial in any event.

28.Debris could be created from the work on the other damaged areas of the external wall above the 3^rd Floors.  However, such debris would have fallen onto the 3^rd Floor canopy.  Judging from the diagram and the photographs of the external wall of the Building facing the Road prior to the erection of the scaffoldings, I am not convinced of any probability that such debris could have fallen into the Canopy below.

29.The photographs taken during and after the flood also cast light on the components of the debris at the Canopy at the material time.  Among the debris, there was large canvas or plastic banner that which was believed to be what used to be the advertising signage on the front of the Canopy put up by the bar.  A beer advertisement leaflet or board was seen.  These could only have come from the work carried out in relation to the Ground and the 1^st Floors by Rainbow Choice. The debris also comprised broken electrical conduits, junction boxes and substantial amount of red brick fragments.  They could not have come from the work on the mosaic on the external wall of the Building.  Kwan confirmed that. Kwan admitted that some bamboo sticks were left on the Canopy after the erection of the scaffolding.  But there is no suggestion that they were instrumental to the blockage of the drain hole at all.

30.On balance, I find that by the time of the flooding incident, the Canopy was far from cleared of the debris created from the work to the Canopy and the 1^st Floor carried out by Rainbow Choice’s contractor.  In this respect, I reject Wong’s evidence to the contrary.  I find that it was such debris that blocked the drain hole and thus causing the flood at the Canopy.

Whether the Canopy and the drain hole were common parts

31.During the trial, the IO, through counsel, accepted that the Canopy and the drain hole formed part of the common parts of the Building.  Notwithstanding the lack of pleading of the statutory (i.e., the Building Management Ordinance, Cap.334) or the contractual basis (i.e., the deed of mutual covenant) by Legent Ceramics and Rainbow Choice, the IO fairly accepted during the trial that it was its duty to maintain the Canopy and the drain hole.  The issue is whether the IO has failed such duty.

Whether the IO has failed to maintain the Canopy and the drain hole

32.Mr Hemmings for the IO submitted that the duty on the part of his client to maintain the common parts including the Canopy and the drain-hole was a reasonable one.  I agree.

33.In view of the above finding of how the Canopy came to be flooded on the day in question, I say the real question to be answered is whether the IO should and could have prevented the debris from accumulating at the Canopy that eventually blocked the drain hole during the heavy rain.

34.Kwan admitted that he noticed the debris on the Canopy in the course of erecting the scaffolding on the external wall of the Building.  Report of the condition was made to his company. Lum explained the IO dealt with the consultant rather than the contractor directly. According to him, the IO was never informed of the existence of the debris there.  Nor was Poon aware of the debris there.

35.Whilst question may be raised as to whether the consultant engaged by the IO or its contractor had taken reasonable steps to inform the IO of the existence of the debris on the Canopy, the case against the IO is not vicarious liability of the IO for any negligence of its contractor in this respect.  The case against the IO is that the IO had the primary duty to maintain the Canopy as a common part; and to see that the debris should not be there.

36.Poon explained that the only access to the Canopy is from the 1^st Floor.  The 1^st Floor had been occupied as a bar for years, during which no one from the IO including Poon had access to the Canopy.  He recalled having accompanied the deliveryman to the bar on the 1^st Floor once.  He observed that the bar used the Canopy to store the drinks.  As mentioned above, the bar also put up an advertisement signage on the front of the Canopy facing the Road.  In reality, the bar occupied the Canopy.

37.It was suggested that the IO could have demanded the occupier of the 1^st Floor for access to the Canopy for the purpose of carrying out maintenance.  I agree in principle.  Suggestion was also made that alternatively access to the Canopy could be made by way of a ladder from the street level.  I have reservation as to the feasibility of the suggested method of gaining access to the Canopy.  As the caretaker, Poon also questioned the safety of such suggested method during his evidence.

38.In any event, what was required of the IO was to take reasonable steps in the circumstances.  Of course, rainstorm and therefore risk of flooding is not unusual.  However, there is no suggestion of any blockage of the drain holes at the Canopy, not to mention flooding, due to lack of maintenance of the condition of the Canopy during the years of occupation by the bar.  After the bar had moved out and Rainbow Choice had stepped in, substantial renovation works had been carried out to the Canopy; and that on the 1^st Floor apparently had yet to complete by the time of the incident.  It was followed by the major renovation work of the Building.  In these circumstances, it cannot be said that the risk of an incident like that on 19 April 2008 was readily contemplated.  I do not find that the IO ought to be criticised for failing to take steps to prevent such risk.

Which party or parties was responsible for the overflow of the water into the shop of Legent Ceramic

39.Even assuming that the risk of flooding of the Canopy due to blockage of the drain hole there was reasonably foreseeable, flooding of the Ground Floor premises was not.

40.Kwan and the Chairman of the IO, Mr Lum (“Lum”) attended the 1^st Floor and the Canopy when the flood occurred.  They testified as to their observation of the condition of the 1^st Floor.  From the photographs of the interior condition of the 1^st Floor taken then, one can see that the 4 windows were left without any frames and open.  One door leading to the Canopy was shut while another door opening was barely covered by some plywood board.  According to Lum, flood water from the Canopy seeped into the 1^st Floor through the bottom gap of the closed door and more so through the gaps of the door opening covered by the plywood board.  Rain water, according to him, also came through the window openings into the 1^st Floor.  Considering the situation revealed by the photographs, I would not be surprised.

41.But for the fact that the window and door openings on the 1^st Floor had been left far from being water tight, the 1^st Floor would not have flooded or certainly not to such an extent.  More importantly, but for the hole on the floor of the 1^st Floor, water would not have seeped into the shop premises of Legent Ceramic.  This could be illustrated by the fact that the neighbouring Shop B on the Ground Floor, which was also immediately below the 1^st Floor and the Canopy, has made no complaint about flooding from above during the incident.

42.Mr Hemmings made reference to various provisions of the deed of mutual covenant stipulating the duty of the owner to keep the interior of his or her premises in good repair and maintenance so as not to cause damage to others.  The provisions were not actually pleaded and I say no more on them.  Nevertheless, I find such duty on the part of Rainbow Choice to be a matter of common sense. 

43.As between Rainbow Choice and the IO, the former cannot be heard to complain about the failure of the IO to keep the Canopy clear of the debris when it was Rainbow Choice that was responsible for causing the debris there in the first place.

44.In the circumstances, I do not find that the IO is liable for causing the flood and the damage to Legent Ceramic.  If the IO could in any way be liable to Legent Ceramic, there should be full indemnity against such liability by Rainbow Choice in any event.

45.As between Legent Ceramic and Rainbow Choice, there is the dispute as to which of them was responsible for causing or allowing the hole to exist between the 1^st Floor and the shop premises on the Ground Floor.  Wong admitted that after the incident on 19 April 2008, he arranged the hole to be filled up.  But both parties deny knowledge about the existence of the hole prior to the incident.

46.No doubt it was Rainbow Choice which was responsible for the condition of the 1^st Floor and the Ground Floor after it had acquired them.  As the photographs reveal, the hole would have been visible, if one had cared to see.  As mentioned above, the duty to keep the interior of the 1^st Floor in good repair was on Rainbow Choice.  Whether Legent Ceramic was aware of the existence of the hole did not change that, as the risk of any consequence flowing from the existence of the hole was for Rainbow Choice to take.

47.Whether Legent Ceramic might also have taken its risk by remaining silent upon discovering the hole is strictly not in issue.  Rainbow Choice has not pleaded contributory negligence on the part of Legent Ceramic on such basis.  Rather, its pleaded case is that Legent Ceramic is said to be estopped from claiming negligence against it in relation to the hole.  I reject that.

On liability

48.I find that Rainbow Choice is liable for causing the flood and the loss and damage to Legent Ceramic.  Legent Ceramic’s claim against the IO however fails.  So does Rainbow Choice’s third party claim against the IO for contribution or indemnity.

The alleged loss and damage to Legent Ceramic

49.In court, a video recording of the situation of the shop of Legent Ceramic under the flood was played.  It suffices for me to say that the flood was substantial.

50.According to the pleading, as adjusted in court, Legent Ceramic claims damages for the following loss and damage to its shop premises and properties:

51.Legent Ceramic relied on the expert report of Messrs Zenno & Pieme Co Ltd, Quantity Surveyor (“ZP”) dated 14 May 2008.  This met with the objection on behalf of the IO on the basis that the report contained materials beyond the ambit of the court’s leave in August 2010 for adducing expert evidence on quantum.  Specifically, the report contains what is apparently opinion on the cause of the flood.  During the trial, I ordered those parts to be expunged from the report.  Unfortunately, the problem with the expert evidence does not end there.

52.As stated in the report, it was on 23 April 2008 when Mr Wong of ZP attended the shop of Legent Ceramic.  He subsequently compiled the expert report.  As indicated in the report and confirmed by him in court, he was given a loss summary by Legent Ceramic setting out the items of alleged damage.  Except for the wooden cabinets, plywood flooring and 4 ceiling lamps that he actually saw on that day, he was not given any of the other allegedly damaged items for inspection.  Surprisingly, he said he was not requested to verify the items as stated in the loss summary. He then reproduced the summary in the report.

53.Perhaps except for the items that he actually saw during his only visit on 23 April 2008, what Wong of ZP did was no different from making a record of the loss claimed by Legent Ceramic instead of compiling a report of his expert opinion on the actual loss of the shop.  The value of the so called expert report prepared in May 2008 is next to nil.

54.On 28 February 2011, i.e., just before the trial, ZP gave what is labelled as an assessment of the above items of claim. This accounted for the last minute adjustment when the trial began; and hence the above quantification.  According to Wong of ZP, it was done pursuant to the request of Legent Ceramic in January this year.

Damaged stock

55.This item of claim used to amount to HK$33,624, which was reduced to HK$28,239.82.  They mainly consisted of tiles that were allegedly damaged by the flood water.  Documents such as invoices in relation to their cost were produced.  But Wong of ZP confirmed that most of them were said to have already been disposed of when he visited the shop of Legent Ceramic just 4 days after the incident.

56.Mr Ho of Legent Ceramic (“Ho”) gave evidence and explained that once the tiles had been soaked, their quality of grabbing the cement and therefore adhesiveness to the wall became compromised.  His company concluded that those tiles have become useless. He was informed by the account staff that those had been written off.

57.The allegation that the tiles, some of which could be used in wet environment such as bathroom, would become unusable even if dried after the flood.  Wong of ZP had no chance of inspecting any of the allegedly damaged tiles for verification of the claim. But he did agree that if he had had the opportunity to inspect the tiles, he should be in a position to tell whether any of them had any re-sale value.

58.Further, Wong of ZP was never provided with any opportunity to verify the allegation of Legent Ceramic by administering test on the types of tiles in question.  Now all that was left was the evidence of Ho.  Yet in his position as a salesman at the shop, his explanation could hardly be accepted as expert evidence or fact.

59.Having said that, I do not rule out on the evidence that some tiles were damaged beyond rescue during the flood.  In the absence of satisfactory proof, I award a nominal sum of HK$1,000 for this item of claim.

HID lamps

60.32 HID lamps at HK$850 each were originally claimed as damaged in the flood.  This was now reduced substantially to 4 lamps at HK$442 each.  Wong of ZP explained that those were precisely the 4 lamps that he saw were soaked with the flood water.  I accept this item of claim.

Signage

61.The signage above the entrance of the shop was designed in the form of a light box.  The evidence, including the photographs, shows that water had seeped inside the light box. Ho explained that apart from draining away the water, nothing else was or could have been done.  The result was that stain developed inside the light box.

62.No doubt the signage is situated right under the Canopy.  However there is really no evidence that the flood water seeped from the Canopy other than into the 1^st Floor which in turned affected the shop through the hole on the 1^st Floor.  The suggestion that the flood water further travelled to the front of the shop into the signage is not easy to accept.  One should also not lose sight of the fact that the rain at the material time was exceptionally heavy so that it is at least equally probable that the rainwater from elsewhere managed to enter the signage through the joints.

63.In any event, the amount of this item of claim is not justified.  The fact is that the signage was still in use even as at the date of the trial.  I do not accept that the signage could not be cleaned or repaired, if necessary.  When asked, Wong of ZP did not rule out feasibility of cleaning or partial repair.  The claim for the costs of the signage is not justified.

64.This item of claim is not proved.

Plywood flooring

65.This item of claim used to be HK$4,300 which was reduced at the commencement of the trial to become HK$4,000.  Wong of ZP saw the affected plywood flooring during his visit on 23 April 2008.

66.However, the fact was that they had not been replaced; and Legent Ceramic arranged to have new display tiles to be put on them.  In other words, the plywood was not visible. It was suggested that the quality of flooring has been compromised.  It may well be true; but such concern did not seem to cause the shop to actually replace the plywood flooring, notwithstanding that the tiles are supposed to be displayed for business.

67.On balance, it is not proved that replacement of the plywood flooring is reasonably required.  I do not allow this item of claim.

Painting

68.According to Ho, the ceilings of the shop were extensively stained after the flood.  The video recording and the photographs tend to support that.  The painting has yet to be carried out.  Unlike the plywood, which is invisible underneath the tiles, I accept that it is reasonable for Legent Ceramic to paint the ceiling, though the same is yet to be carried out.  However, there is the issue as to how much ceiling should be taken into account in the assessment.

69.The point was raised on the basis that as a result of the apparently 2 levels separated by the cockloft erected by Legent Ceramic inside the shop, more ceiling space had been created.  The cockloft was said to be an illegal structure.  Indeed by letter in February 2008, Rainbow Choice complained and demanded Legent Ceramic to remove the cockloft.  In the trial, there was no actual denial by Legent Ceramic that the cockloft was an unauthorised building work.

70.Considering that an award should not reflect the court’s condoning of the extra ceiling space created as a result of an unauthorised structure, I allow a lump sum of HK$5,000 for this item of claim.

Wooden cabinets

71.The amount claimed was reduced from the original HK$4,200 to HK$3,900 when the trial began.

72.These were the wooden cabinets erected at the cockloft.  According to Ho, it was right under the hole in the ceiling where the flood water from the 1^st Floor seeped into the shop during the incident.  The cabinets were said to have been soaked.  One could see that from the video recording.

73.In court, Ho explained that after the cabinets had been dried, there was still some resulting odour. Wong of ZP saw the cabinets during his visit on 23 April 2008.  Yet all he could comment on was that whether they needed replacement would depend on the degree of tolerance of the user.  The fact was that the cabinets had not been replaced or even repaired.  It was still used as at the date of the trial.

74.In the circumstances, I am not prepared to allow this item of claim.  It would have been different, had there been a claim for diminution in value of the cabinets as a result of the water damage.

Computer transformer

75.According to Ho, the transformer of a computer was damaged in the flood.  No replacement was purchased; but a substitute from the office was used.  I see no real dispute over this item.  The amount appears to be reasonable and I allow it.

Power cable

76.An amount of HK$9,500 is claimed.  In court, Wong of ZP explained that this item actually included sockets, switches and power box.  But he had not actually tested any of these items for its function.  There is therefore no basis for suggesting that they had to be replaced.  There is no evidence that any of them, let along power cables of the shop, had been replaced after the flood.

77.I do not allow this item of claim.

Conclusion

78.In conclusion, Legent Ceramic only manages to prove to this court’s satisfaction that an amount of HK$(1,000 + 1,768 + 5,000 + 300) = HK$8,068 should be allowed.

Conclusion

79.For the above reasons, there should be an award of damages in the sum of HK$8,068 in favour of Legent Ceramic against Rainbow Choice.

80.There would be interest on the above sum at half judgment rate from the date of incident (19 April 2008) until today.  However, I notice that there was a substantial period of inaction of the parties between discovery on 17 September 2008 and the summons for unless order dated 19 September 2009.  During the interim, nothing happened except for the filing of a notice of change of address of solicitors and change of solicitors.  My award of interest shall exclude this period.

81.As to the incidence of liability for costs, Legent Ceramic should have the costs of this action against Rainbow Choice.  Failing the claim against the IO, Legent Ceramic should bear the costs of the IO in defending this action.  The claim against the IO is pleaded on a different basis; and is not really an alternative to the claim against Rainbow Choice.  Therefore there should be no basis for Legent Ceramic to pass its liability as to costs of the IO onto Rainbow Choice as well.  In respect of the Third Party Proceedings, Rainbow Choice should bear the IO’s costs of defence.

Order

82.I therefore make the following order:

(1)  There will be judgment in the sum of HK$    8,068 in favour of Legent Ceramic against Rainbow Choice together with interest as aforesaid.  Interest from judgment until payment shall continue to run at the judgment rate.

(2)  Legent Ceramic’s claim against the IO is dismissed.

(3)  Rainbow Choice’s claim against the IO as the Third Party is dismissed.

(4)  Legent Ceramic shall pay the IO’s costs of defending the action.

(5)  Rainbow shall pay Legent Ceramic’s costs of action against it and the IO’s costs of defending the third party action.

(6)  Costs shall be taxed, if not agreed, with certificate for counsel.

(7)  Costs order under (4), (5) and (6) above are nisi; and shall become absolute in the absence of application within 14 days for variation.

Mr Samuel CHIEN instructed by Messrs Huen & Partners for the Plaintiff

Mr CHAK Man Lai of Messrs Chak & Associates for the 1^st Defendant

Mr John HEMMINGS instructed by Messrs Massie & Clement for the 2^nd Defendant/Third Party