Ng Yin Nei v. Lee Chick Choi
Read the full judgment text of DCCJ 563/2010 on BabelCite. This District Court judgment was delivered on 10 October 2012.
1. This is the trial of the defendant’s counterclaim, under which the defendant claims against the plaintiff for the following losses and damages:-
Cites 2 cases
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DCCJ 563/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 563 OF 2010 ____________
Before: H H Judge Chow in Court Hearing dates: 26-29 June, 24 July and 7 August 2012 Date of Judgment: 10 October 2012 -------------------- JUDGMENT -------------------- 1.This is the trial of the defendant’s counterclaim, under which the defendant claims against the plaintiff for the following losses and damages:-
The defendant no longer pursues its claim under item (vi). Apart from the above claims, the defendant also claims for damages for inconvenience and loss of enjoyment of the premises at Flat F, 7th Floor, Banyan Mansion, Taikoo Shing, Hong Kong (“the Premises”). 2.At the material times, the plaintiff was the landlord of the Premises, whereas the defendant was the tenant of the Premises. By a tenancy agreement dated 10.6.2009 (“the Tenancy Agreement”) made between the plaintiff as the landlord of and the defendant as the tenant, the Premises were let to the defendant for 2 years, commencing from 25.6.2009 to 24.6.2011 at a monthly rent of $18,000. There was a rent free period from 15.6.2009 to 24.6.2009. During the rent free period, the defendant and his family moved into the Premises. At the time of moving in, he did not notice any undulation or unlevel flooring in the Premises. However, about 2 weeks after he had moved into the Premises, he found that the floor near the patio door had grown up and became unleveled gradually. He rang up Mr Wan, the plaintiff’s husband, and reported to him such finding. The first inspection 3.On 25.7.2009, Mr Wan inspected the Premises with a renovation contractor Mr So. According to Mr Wan, the undulation was found near the patio door, but it was de minimis. But according to the defendant, the area which he complained about was not the area near the patio door. It was the area shown as photo g on p 481 of Box 2 of the trial bundle. 4.After this inspection on 25.7.2009, there was no response from Mr Wan. So on 30.7.2009 the defendant wrote the following letter to the plaintiff:-
The second inspection on 2.8.2009 5.On 2.8.2009, the plaintiff inspected the Premises along with her husband and a Mr Frankie Yeung and a Ms Eva Kong of the property agency which prepared the Tenancy Agreement. According to the plaintiff, the undulation found on that day was de minimis, and the undulation did not require any remedial work. 6.The video taken by the plaintiff secretly on that day shows what was said by Mr Frankie Yeung:
When Mr Frankie Yeung was speaking, he was referring to the problem with the flooring. The floor had undulation. When he said that the situation was not too serious, it must be a serious situation, although it did not reach the extent of being “too serious”. It is a problem to be solved. The undulation therefore cannot be said to be de minimis. 7.Miss Irene Lau, the estate agent who showed the defendant the Premises, wrote a note (dated 8.3.2011) to the effect that there was no undulation near the patio at the viewing of the Premises on 27.5.2009. The plaintiff agreed that there was no undulation near the patio door at the viewing as stated in Miss Lau’s note. She has no interest in the outcome of these proceedings. I attach weight to this note. The evidence of the plaintiff and Mr Wan that the undulation near the patio door was already present when the Premises was put up for rental is simply not credible. 8.In his letter dated 10.11.2009 to the plaintiff, the defendant stated:-
9.On 5.12.2009, the defendant wrote to the plaintiff again:-
10.On 11.12.2009, the defendant wrote to the plaintiff yet again:-
Despite all these letters, the plaintiff did not do any work to solve the problem. The third inspection 11.On 13.12.2009, the plaintiff, Mr Wan and the renovation contractor attended the Premises for inspection. They noticed the undulations on the wooden floor between the door of the master bedroom and its bathroom. The plaintiff agreed to engage a renovation contractor to carry out the repairs to the floor and bathroom door on 21.12.2009. 12.By her letter dated 13.12.2009, the plaintiff stated, “We noted that the wooden floor between the door of master bedroom and its bathroom was raised…… Given that the wooden floor was only newly installed earlier this year before the flat was put up for rental, the sudden raising of the floor would be unlikely unless there was flooding of large volume of water.” As indicated in this letter, she agreed to repair the wooden floor. If the defects had been de minimis, she would not have agreed to do so. 13.In the re-amended defence to the counterclaim re-re filed on 16.12.2011, the plaintiff denies that there were any defects in the Premises save for the de minimus undulation near the patio door of the Premises:-
The plaintiff’s letter dated 13.12.2009 shows that the defects in the Premises were between the door of the master bedroom and its bathroom. These defects cannot be de minimus. This defence to the counterclaim simply cannot stand. 14.The evidence of the defendant is that there were severe undulations on the floor, which would cause accidents. His wife nearly slipped down and twisted her leg. He wrote a letter dated 22.12.2009 to the contractor Kays International Property Consultants Co Ltd (“Kays”) to carry out repair work to be done to the floor. The letter reads:-
The reason for him to tell Kays about the incident of his wife must be to support his request for immediate work to be carried out without delay. This letter was addressed to Kays, and on 22.12.2009, the plaintiff had not instituted the present proceedings. There is simply no reason for the defendant to make any lie in the letter. This incident must have happened, and it must have happened because of the severe undulations on the floor. 15.On 23.12.2009, Kays conducted a site inspection of the Premises. The report of the inspection states:-
16.The inspection was conducted on 23.12.2009, just about 10 days after the third inspection on 13.12.2009. The inspection report is not challenged by the plaintiff. Its contents must have reflected the conditions of the Premises at that time. The conditions of the Premises on 23.12.2009 must be very similar to the conditions of the Premises on 13.12.2009, because there is only a lapse of 10 days’ time. The plaintiff’s re-amended defence to the counter-claim that there were no defects in the Premises save for the de minimis undulations near the patio door of the Premises, and that the defects would not have put a reasonable landlord on notice to a structural defect simply cannot stand. Source of leakage 17.The plaintiff, Mr Wan and Mr So were adamant that there was a plan to find the source of leakage. 18.On 16.12.2009, the defendant wrote to the plaintiff, saying that all work suggested to be done on 21.12.2009 to be ceased pending the survey report from Kays, covering the affected areas in the master bedroom and sitting room near the patio. The suggestion of work to be carried out by the plaintiff’s contractor on 21.12.2009, without finding out the reasons for the defect, could not solve the problems in the long run. The defendant’s suggestion contained in his letter dated 16.12.2009 is reasonable, and should have been accepted by the plaintiff. His refusal to let the plaintiff’s contractor on 21.12.2009 into the Premises is reasonable. 19.In response to this letter, the plaintiff wrote to the defendant on 18.12.2009, stating:
She never informed the defendant at all that she had intended to check for water leakage on 21.12.2009. If there had been an agreement to check the source of leakage of water, then the plaintiff should have explained in this letter that one of the purposes of the work done on 21.12.2009 was to find out the source of leakage of water. Her letter only referred to the repair work to be done on 21.12.2009. It is very clear that there was no agreement to check the source of leakage. Her evidence in this respect is simply untruthful. 20.The plaintiff suggests that the defendant continued to deny her entry to fix the Premises. The letters from M/S Chiu, Szeto & Cheng, Solicitors (“CSC”), which represented the plaintiff, did not specify a date as to when she wanted to enter the Premises for such a purpose. The letter (dated 25.1.2010) of CSC states:-
21.In his letter dated 19.2.2010 the defendant posed the following 6 questions for CSC to answer:
22.The letter of CSC dated 24.2.2010 reads:-
This letter was written in response to the defendant’s letter dated 19.2.2010. In its reply CSC did not answer any of the above questions. If the plaintiff had had a genuine desire to rectify the problem, she would have answered the questions. 23.The above correspondences clearly show that the plaintiff had no genuine attempt to enter the Premises to do the repair works required. The allegation that the defendant continued to deny her entry to fix the Premises is totally unfounded. 24.The plaintiff’s counsel submits that this court should divide and consider the relevant period of alleged defects into 3 periods, namely:-
For the reasons hereinafter mentioned, I do not accept this submission. The plaintiff’s breach of the Tenancy Agreement 25.Clause 9 of the Tenancy Agreement provides:-
(Underlines added) 26.The plaintiff submits that a separate notice should be issued for the “second period”. The only issue at the Premises throughout the material time was the undulations on the floor. By the time the notice dated 30.7.209 was issued, the Premises had been in disrepair. During the second inspection on 2.8.2009, the evidence of Mr Frankie Yeung, which I accept to be true, reveals that there were undulations on the floor which could not be de minimis. When the defendant wrote the complaint letter on 30.7.2009, just about 3 days prior to 2.8.2009, the conditions of the floor must be quite similar to its conditions on 2.8.2009. The conditions of the floor on 2.8.2009 was in a serious situation. Under clause 9 of the Tenancy Agreement, one notice was required to be issued. The defendant did comply with this requirement by writing the notice of complaint on 30.7.2009 about the conditions of the floor on that day which must be quite similar to the conditions of the floor on 2.8.2009. Even until 2.12.2009, 4 months after the notice of complaint had been issued to her, the plaintiff did not rectify the defects in the Premises, and was therefore clearly in breach of clause 9 of the Tenancy Agreement. 27.The water leakage and undulations in the floors caused doors of the Premises uncloseable, caused many patches of damp, unsightly stairs on the floor, caused a lot of areas of the Premises to be unusable. Because of the undulations, it was not safe to walk on them. 28.The defendant and his family members, during the period of tenancy, suffered nuisance, annoyance and inconvenience:
I find that the defendant and his family members did suffer the above-said nuisance, annoyance and inconvenience. Alternative accommodation 29.The defendant claimed that he found alternative accommodation because of the plaintiff’s failure to repair the Premises. The defence counsel submits that “many of the areas of the Premises were unusable and the Premises had become unsafe and inhabitable causing the defendant and his family to vacate the Premises and find new accommodation on 1 June 2010 and therefore suffered loss and damages.” By his letter dated 20.12.2009, the defendant intimidated to the plaintiff that he decided to find alternative accommodation. Had he moved out because of the conditions of the Premises, he should have done so shortly after 20.12.2009, and not five months later. I find that he did not move out because of the conditions of the Premises. The judgment delivered by Deputy District Judge Kwan on 25.6.2010 shows the reason for his moving out:-
So this is the reason for his moving out of the Premises. Therefore the plaintiff should not be responsible for the extra rental, removal costs, estate agent’s fee and stamp duty relating to the claim for alternative accommodation. She recovered vacant possession of the Premises on 31.5.2010. Even if she is liable for the extra rental, she should only be liable for the period from 1.6.2010 to 15.6.2010. Summary judgment was entered on 15.6.2010 in favour of the plaintiff for vacant possession of the Premises on the ground of non-payment of rents. So from 15.6.2010 onwards, the defendant was not entitled to reside at the Premises, because the Tenancy Agreement was terminated on 15.6.2010 due to his non-payment of rents. Hence from 15.6.2010 onwards he had no right to remain in the Premises under any tenancy agreement. Therefore he has no right to claim the payment of extra rental from 16.6.2010 to 24.6.2011. Replacement of gas oven top 30.According to the defendant, on 9.5.2010 when he got up, there were many debris glasses scattered on the kitchen floor. The glass panel of the gas stove was shattered. He assumed that it had been broken while he and his family members were at sleep. A technician came to the Premises on 11.5.2010 to install a new glass panel on the gas stove. His wife was told by another gas technician who came to the Premises on 10.5.2010 that the gas stove was very old, which had been used since 2001. The broken glass panel was due to old age of the gas stove. An amount of $1,580 was debited in the gas bill registered under his wife’s name. It is his wife, and not the defendant, who had the locus standi to sue for this sum of $1,580. Even if he had the locus standi to sue, he had to prove that it was not due to his fault that the gas oven top had been broken. It is mere common sense that even if the gas oven top broke up because of old age, the glasses would not have scattered on the kitchen floor. They would have remained on the oven. The scattering of the glasses on the kitchen floor must have necessarily involved some force inserted on the broken glasses, as a result of which they scattered to some distances away from the oven. The presence of force means that human intervention must have been involved. Hence, the scattering of the glasses simply cannot be due to the old age of the gas oven top. The gas oven top must have been broken because of another reason not known to this court. The defendant was responsible to see that during the term of tenancy it would not be damaged. The plaintiff cannot be responsible for the damage of the gas oven top while it was in the defendant’s possession, and the damage involved human intervention. I therefore dismiss this item of claim. Damages for distress, inconvenience and loss of enjoyment of the Premises 31.The plaintiff’s failure to rectify the water leakage and defects of the floors of the Premises caused nuisance, obstruction and annoyance to the defendant. The defence counsel cited the case of Leung Yung Chun v Chan Wing Sang, unreported, HCA No 12235 of 1998, where the court awarded $80,000 in 2000 for damages for inconvenience caused by water leakage which lasted for nearly 2 years. She also cited the case of Chung Che Shum v Dong Sai Ming Fernando, unreported DCCJ 21504/2001, where the court awarded $80,000 for water leakage affecting 3 bedrooms for about 2 years. 32.The defence counsel submits that an award of $100,000 for damages for inconvenience and loss of enjoyment of the Premises would be appropriate. When the defendant delivered back vacant possession of the Premises to the plaintiff on 31.5.2010, he then lost his capacity as a tenant of the Premises. So the period of tenancy lasted for about 11 months. Furthermore, the conditions deteriorated gradually. It is not the situation that the defendant suffered the same bad conditions throughout the period of tenancy. In the circumstances, a sum of $40,000 would be a reasonable compensation to him. I therefore so order. In making this award, I have not taken into account the loss of use of rental areas hereinafter mentioned. The area covered by the award relating to loss of use of rental area is not included in the area covered by the area under the heading of damages for distress, inconvenience and loss of enjoyment of Premises. This is to avoid duplication in the making of awards. 33.I award the loss of use of rental areas from 24.7.2009 to 31.5.2010, as assessed in Kays report, in the sum of $16,676.74. 34.Accordingly I enter judgment in favour of the defendant in the sum of $56,676.74 ($40,000 + $16,676.74), with interest thereon, at judgment rate, commencing from 10.10.2012 until satisfaction. Stay of execution for 14 days. I dismiss all the other items of claims. Costs 35.I make an order nisi, to be made absolute in 14 days’ time, that the plaintiff do pay the defendant 80% costs of the counterclaim, to be taxed, if not agreed, with certificate for counsel. The defendant’s own costs be taxed in accordance with Legal Aid Regulations.
Mr Lester Lee, instructed by Chiu, Szeto & Cheng, for the plaintiff Ms Angela Gwilt, instructed by Huen & Partners, assigned by Director of Legal Aid, for the defendant Please refer to HCMP1131/2013 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 563/2010