Knorr Bremse Asia Pacific (Holding) Ltd v. Ng Lai Ching Lucia
Read the full judgment text of DCCJ 3796/2011 on BabelCite. This District Court judgment was delivered on 4 December 2013.
1. This case is about a tenancy dispute of a high end 4-storey terrace house situated in Stanley. The Plaintiff tenant is a limited company and the actual occupant of the premises is its expatriate personnel and his immediate family. The Defendant purchased the house from the former landlord subject to the tenancy. Upon expiry of the original extended tenancy, the tenancy extended on the same term and eventually the parties entered into another written tenancy agreement for a year. The Plaintiff
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DCCJ 3796/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3796 OF 2011 --------------------
Judgment 1.This case is about a tenancy dispute of a high end 4-storey terrace house situated in Stanley. The Plaintiff tenant is a limited company and the actual occupant of the premises is its expatriate personnel and his immediate family. The Defendant purchased the house from the former landlord subject to the tenancy. Upon expiry of the original extended tenancy, the tenancy extended on the same term and eventually the parties entered into another written tenancy agreement for a year. The Plaintiff has rented the house for a period of 4 and a half year in total. 2.The Plaintiff claimed for the return of deposit in the sum of HK$190,000 and damages for the breach of an implied condition that the property should be in a fit state for habitiation. The Defendant counterclaimed for damages for missing furniture and fixtures, and loss and damages done to the property, furniture and fixture, and loss of use of the property. Background 3.The Plaintiff is a company registered in Hong Kong and the Asia head office of its German mother company. In 2006 the Plaintiff was required to provide accommodation for his expatriate personnel, Mr Bell and his immediate family, which includes his wife and two adolescent children. Being the actual occupants, Mr Bell and his wife were the persons who looked for the suitable premises, at the end they decided to rent House No.8, Carmel Hill, No.12 Carmel Road (the property). 4.The Plaintiff and the former landlord Win’s Trading Limited (WTL) entered into a Tenancy Agreement to rent the property for a term of 2 years from 15 August 2006 to 14 August 2008 at the rent of HK$95,000 per month; and the letting was of a fully furnished property, but only some of the furniture was listed in the Fourth Schedule annexed to the Tenancy Agreement. The Bell family moved in the property with their maid after the former landlord completed the works as per the Fifth Schedule annexed to the Tenancy Agreement. 5.The landlord’s representative Loretta Au has direct communication with Mrs Bell over the remedial works as per the Fifth Schedule and their direct communication on matters related to the tenancy continued until WTL sold the property to the Defendant. 6.The tenancy was extended for a further 6 months on the same term upon expiry and during this period, on 15 January 2009 WTL sold the property to the Defendant subject to the tenancy. Upon the expiry of the extended period, the tenancy extended on the same term and eventually on 15 February 2010 the entered into a written renewed tenancy (the Renewed Tenancy) on the same term (save and except Clause 4(e) of the Tenancy Agreement which was deleted and a break clause was added) for a year from 15 February 2010 to 14 February 2011. 7.Upon expiry of the Renewed Tenancy, the Plaintiff vacated the property and delivered vacant possession to the Defendant. Mr Bell and his wife were the ones who responsible for the handover on 14 February 2011 and the Defendant was represented by her fiancé Mr Justin Cheung (The First Handover). 8.At the First Handover there was disagreement between the parties as to the state of the property and missing furniture. Matters could not be resolved, and time being a complaint of theft was made to the Police by the Defendant. 9.Margaret Wong of the Plaintiff who involved in the administrative work of the expatriates’ tenancies helped to mediate; eventually another handover was arranged on 26 February (the Second Handover). Mr Bell arranged a number of furniture to be returned to the house on the second handover. Yet the parties still held diverse views as to the state of the property and matters related to furniture. 10.The Plaintiff after a couple of unsuccessful requests and demands for the return of the deposit issued the present proceedings in December 2011. In response the Defendant filed her Defence and Counterclaim. The property was examined by the Defendant’s expert Mr Lau and Plaintiff’s expert Mr Tse on 26 April 2012 and 30 April 2012 respectively, which was over 14 months since the First Handover. Several amendments were made to the pleadings, the parties were granted leave to adduce expert evidence, three PTRs were held and the trial is finally heard in November 2013. 11.During the hearing of the closing submission, I sought counsels’ assistance as to the right and duty of the parties in relation to the condition of the chattels before the assignment of the Property on the assumption that it is not provided for by the Tenancy Agreement. Upon parties’ request, time was allowed to submit supplemental written submission on the law. Mr Hui for the Defendant enclosed a copy of the Assignment in his Supplemental Written Submission and followed by his 5th Supplementary List of Document to include the same in evidence (Mr Hui indicated he has no objection that the Plaintiff be allowed to reply), the Plaintiff contested and requested to reply, leave was granted to the Plaintiff to file her Reply. Issue in dispute 12.The Plaintiff alleged that there is an implied condition that the property is in a fit state for habitation, and in breach of the implied condition, the Defendant has failed to keep in repair the external fresh water supply pipe drains resulting in tainted yellow and contaminated water to the property; in consequence the Plaintiff suffered loss in the enjoyment of the property and claimed damage with reference to the difference between the rental value of the property with no defective pipes and their value consequent upon the breach from February 2009 to 14 February 2011. The Defendant denied. 13.The parties hold different view as to whether there is any contractual term in relation to the state of condition of the chattels upon expiry of the lease agreement, where there is no contractual term, the parties agreed that the tenant owed a duty to take reasonable care of the chattels. 14.The Plaintiff conceded it was required to return the items listed in the Fourth Schedule but alleged that during the tenancy, Loretta Au on the part of WTL and Mrs Bell on the part of the Plaintiff entered into an oral agreement that the non-listed furniture was at the disposal of the Plaintiff, thus the Plaintiff was not required to handover the non-listed furniture to the Defendant. The Defendant denied such oral agreement ever existed and averred that the sale of the property included all the furniture therein. 15.On a without prejudice basis the Plaintiff returned a number of furniture and fixture to the Defendant on the Second Handover. The Defendant alleged that there are still missing items:
The Plaintiff does not consider it is liable to the above items. 16.For the furniture and fitting that were handed over, the Defendant alleged that the Plaintiff has caused varies degree of damage on the items and claims replacement with new items; the Plaintiff averred that the damage either existed at time of the commencement of the tenancy or is the result of fair wear and tear over time, and submitted that in any event the Defendant has no right to sue for any damage done to the chattels before she became owner. 17.Further, the Defendant alleged that the Plaintiff has damaged the interior walls, floors, ceilings of the property and removed the wall lights from the staircase area and as a result of the act of the Plaintiff the Defendant has loss of use of the property till 3 April 2011. The Defendants claimed the costs of renovation of the property and loss of use till 3 April 2011. The Plaintiff denied causing any damage and averred that this is the result of fair wear and tear over time and in any event his obligation to repair and maintain only limited to Clause 3(d) of the Tenancy Agreement, referring to the interior of the house; whereas it was the Defendant’s obligation to repair and maintain the exterior and structure of the property pursuant to Clause 4(c) of the Tenancy Agreement. 18.There is no dispute that the deposit has not been returned. During the trial the parties entered into agreement for certain minor items, by which the Plaintiff will pay HK$ 200 for the damaged Ground Floor cubicle, HK$200 for a scratched stainless steel grab bar, HK$825 for a damaged cushion stool, HK$250 for a shower head and HK$500 for 2 set of ripped curtain; by which the Defendant ceased to claim for garden spot lights, staircase painting, a bed replaced and a piece of headboard. In broad terms there are only 10 issues to be determined, namely:
Finding The Property 19.Carmel Hill comprises 21 blocks of terrace house and the property is a 4-storey terrace house of reinforced concrete construction with tiled elevations. Floor levels of the property are accessible via an internal staircase. However, the roof top of the property cannot be reached by the internal staircase. Instead, it can only be accessible via a wall mounted ladder. The property having a gross floor area of approximately 2,378 square feet, saleable area of approximately 1,974 square feet, terrace area of approximately 318 square feet and garden area of approximately 405 square feet. 20.There is a split level between each flight of stair. Ground floor is used as living room with a garden, accessible from one flight of stair down from ground level main entrance. First floor is used as dining room with a flight of stair up linking to a guest lavatory, a kitchen, a balcony, utility area and a maid lavatory. Second is used as master bedroom with bathroom suite with a flight of stair up linking to a bedroom (the son’s room) with a bathroom suite. Third floor is used as a flat roof with a flight of stair up linking to a bedroom (the daughter’s room) with a bathroom suite. The Tenancy Agreement 21.The tenancy commencing from 15 August 2006, with two extensions and one renewal in between and the Plaintiff delivered vacant possession of the property to the Defendant on 14 February 2011, thus the Plaintiff has occupied the property for 4.5 years. Before the Plaintiff took possession of the property, the following works as set out in the Fifth Schedule were done:
22.The Tenancy Agreement and the subsequent Renewed Tenancy contained the following relevant clauses:
23.It is suffice to state that the Fourth Schedule contains a list of appliances, furnishings and fixtures; and the description of the items is general without any specification. The items listed in the Fourth Schedule are referred as listed items during the trial, and the rest provided by WTL are referred as non-listed items. 24.There is no evidence as to who drafted the Tenancy Agreement. The Plaintiff submitted further correspondence related to the preparation of the Tenancy Agreement (Exhibit P2), which shown that the communication was between the estate agent and the Plaintiff, and by 17 July 2006 the Letter of Offer from the estate agent on behalf of WTL only referred to the remedial works to be carried out by WTL and to remove all ornaments and picture, but all furniture to remain, which is equivalent to the Fifth Schedule. And a copy of handing over record dated 15 August 2006 which shown it was Mrs Bell who attended the handover. 25.As to the background of the Fifth Schedule, according to Mr Bell’s evidence, he has visited the house twice, and one of which his wife was with him, it was him and his wife who requested the works as per the Fifth Schedule to be carried out and the request was communicated to the estate agent, he was not clear if his wife visited the house again before they moved in. Apart from remedial works, the Bell couples also requested all furniture to remain (item 3). Apparently WTL was informed by the estate agent and accepted the request. 26.It is common ground that the house was furnished for marketing, and the number of furniture handed over by WTL was more than that listed in the Fourth Schedule. By clause 11 of the Tenancy Agreement, WTL was required to hand over at the commencement of the tenancy the furniture listed in the Fourth Schedule. Miss Chan for the Plaintiff submitted in the closing submission that the Fourth Schedule could be a formality to satisfy the Commissioner of the rating and valuation, but the question remained who suggested which specific items of furniture to be included in the Fourth Schedule. 27.It is common ground that in the First Handover, the Bell couples did not return all but only sufficient number of furniture that could match the general description of the Fourth Schedule yet majority of which was not the specific item meant to be. The unpleasantness developed in the First Handover was partly because of the wrong and insufficient items returned, partly because the Defendant mistaken some of the tenant’s furniture to be provided by WTL, and partly because different views upon the cause of the deteriorated state of the property. 28.Mr Bell gave evidence that his wife took care of all the household arrangement, she arranged packing of the family furniture of their home in Singapore, and the arrangement of furniture for their home in Hong Kong. Towards the end of the tenancy, his wife arranged for the removal, she put stickers on the furniture to indicate how it should be handle:
Mr Bell said he did not know how the Fourth Schedule came about, a copy of the Fourth Schedule was only given to Mr Bell on the day of the First Handover, apparently Mrs Bell had knowledge of the content of the Fourth Schedule otherwise she would not be able to prepare for the removal and handover. 29.I consider the evidence as a whole and find that the only possible inference is that the items listed in the Fourth Schedule were requested by Mrs Bell to remain in the house, and accepted by WTL when this request was passed to it, which did not think much about the furniture and was prepared to leave all at the house for the use of the tenant at time it accepted the content of the Fifth Schedule. In any event Mrs Bell was the person who responsible for the handover at the commencement of the lease, and she should have gone through the Fourth Schedule by that time. Condition of the property 30.Mr Hui submitted that it was unchallenged during cross-examination that before the property was put up for rent WTL had spent HK$2 mills to renovate the place before the property was put on the market. The position of the Plaintiff was that it has no knowledge and the Defendant also did not confirm this hearsay with WTL. In any event even WTL has engaged any contractor to renovate the property after it became the owner in 2004, the condition of the property was such that a list of remedial works including repainting were required before the Bells family moved in, and this supports Mr Bell’s observation that the property was occupied by others before they took it up and the previous occupant did not look after the property reasonably. And it is noted that WTL was pleased to have the Bell family to be its tenant. 31.The Defendant was satisfied with the overall condition of the property in late 2008, by then the Bells family has moved in the property over 2 years. Mr Bell gave evidence that they are very good and responsible tenant and kept the property in good condition, and it was his wife who had direct communication with Loretta on matters related the tenancy and Loretta was very accommodating and would respond to their request for repairing positively. I consider and accept Mr Bell’s evidence in this regard. In my view, to keep and maintain the overall condition of the property it requires the co-operation of the tenant and the landlord. 32.According to Justin, after the Defendant became the Landlord of the property, they inspected the property again in January 2009, the Bell couples requested a set of curtain, he attended to this, and then around March 2009 the Bells informed him that a shutter broken down, he arranged the repairing but 3 months later it broke down again and they did not consider that to be their obligation, apparently he doubted the cause of the shutter failure. When Miss Chan put to Justin that by June 2009 they were already fed up with the requests from the Bells and wanted a termination, Justin replied that there had been 4 to 5 repairing since June 2009 and the Bells had made certain requests including new heater, new washing machine, curtain, and cleaning air-conditioner. 33.The shutter mentioned above is actually windguards of the Master Bedroom, ultimately after a few exchange of e-mails, the problem of the motor was not attended. Drainage blockage was also another ongoing problem during the tenancy, and Justin considered the requests for plumbing services were excessive, unreasonable and unrelated to the aged pipe. Margaret in her e-mail to Justin dated 16 December 2010 has informed the Defendant the following problems:
34.Justin considered the above list was only used to negotiate for a renewal at a lower rent. Yet it also indicated that by the end of 2010, the Bell family still minded to remain, and I see no reason for them to change their domestic habits and the way they kept and maintained the property. I consider and accept Mr Bell’s evidence that all along their family kept the property in good condition generally, however as a result of time and nature operating the property was bound to suffer further dilapidation due to normal human use and normal action of the elements. 35.The property was first handed over to the Defendant on 14 February 2011, since then the property was not occupied for over a year. It is the Defendant’s case that Justin and the Defendant would make regular day visit to the property in alternate weeks for one hour or so to do basic maintenance, including toilets flushing, water pipes checking, turning on the air-conditioners occasionally and there was no material difference between the First Handover and the Surveyors’ inspection in April 2012. 36.In between the First Handover in February 2011and the surveyors’ inspection in April 2012, apart from the regular visit by Justin and the Defendant, there are also police investigation, lighting installation and PCCW visit. Further approaching to the surveyors’ inspection, since 16 June 2012, Justin has arranged his 90 pounds Rottweiler lived in the property, he kept the dog company during the day, walked the dog twice daily through the carpeted landing at the entrance, and caged up the dog at night. 37.The Defendant might want to preserve the condition by having the minimum human activities inside the property, but the house has seepage problem and situated in a relatively high humidity neighborhood, with the activities described by Justin, dust would came in through opened doors or windows and accumulated, further the dog’s hair however short would be another problem , without a maid to look after the house, the condition of the house, in particular the carpet and wall painting, would inevitably get worse gradually without being noticed by Justin or the Defendant. 38.Mr Bell was asked to comment on the condition of the property by reference to the photos taken in April 2012, there are certain areas depicted in the photos which he said looked worse (Exhibit P3: the Defendant’s expert report dated 11 June 2012 marked by Mr Bell). Those areas mainly related to those affected by water seepage, humanity or those exposed to direct sun and rain, and certain marks either existed before they moved or developed after they moved out. 39.Mr Bell said photo 26 of Exhibit P3 looked worse from memory, according to Justin the condition of the wall surrounding the electric and telephone line socket was worse because PCCW once had opened the socket to fix the phone line but he said there was no material difference, I considered and accept Mr Bell’s evidence that the condition of the wall surrounding the sockets was worsen after that PCCW visit. 40.Further, according to Mr Bell, they had cleaned the carpet before they moved out, and commented that the carpet depicted in the photos was much dirtier, the video taken on the Second Handover also supported his evidence, the condition of the carpet at the entrance as shown in the video was in a much more better condition than that depicted in the photo (photo (a1) of the Plaintiff’s expert report), in particular no black mark was seen from the video. I consider and accept Mr Bell’s evidence as to the condition of the property at time of the First Handover with reference to Exhibit P3. What is the Plaintiff’s duty to the chattels provided by WTL? 41.The only clause in the Tenancy Agreement that deals with the handover of furniture etc is Clause 11. However, Clause 11 is badly drafted, it does not state clearly who handed over to whom. In my view Clause 11 imposes a duty to WTL to handover the Property with the listed items to the Plaintiff on the commencement date of the tenancy. Not until the items were handed over to the Plaintiff, it would not have any duty to return the same. Clause 11 and the Fourth Schedule served as the provision of evidence that certain appliances, furnishings and fixtures have been provided to the Plaintiff at the commencement of the lease. Whether Clause 11 also imposes a contractual duty to the plaintiff to return the listed Chattels is not relevant in the present, in any event the Plaintiff has a duty under tort to return the chattels, whether listed in the Fourth Schedule or not, to the Landlord upon expiry of the lease. 42.Section 16 of theConveyancing and Property Ordinance Cap.219 (“the CPO”) is a deeming provision, which provides that:
43.By the operation of section 31 of the CPO the benefit of the lessee’s covenants to run with the reversion, there is no dispute that the benefit of the covenant to repair as stated in the Tenancy Agreement runs with the reversion to the Defendant, thus the issue being whether there is a convent to repair in relation to the furniture and appliances (hereafter referred as chattels). Initially Miss Chan for the Plaintiff stated in her opening submission that there is no provision in the tenancy agreement for the return of the listed items, and by her written supplemental opening submission concedes that by reason of clause 11 of the tenancy agreement, the Plaintiff had the contractual obligation to return the listed items, yet she submitted there is no provision related to the condition of the chattels upon expiry of the lease. 44.Mr Hui for the Defendant stated in his opening submission that the scope of Clause 3(d) expressly provides that the duty to repair extends to the “flooring” and “fixtures and additions”, and he submitted that the word “additions” in the phrase “fixtures and additions” must means something more that “fixtures”, and includes the furniture and chattels of the Property. 45.Clause 3(d) provides that “ At the Tenant’s expenses to well and sufficiently repair, maintain and keep in proper and tenantable state of repair and condition the interior of the said premises including the lavatories and water apparatus thereof, flooring, drains, sewers and all fixtures and additions thereto including all electrical installations and non concealed wirings (fair wear and tear and inherent defects excepted)” . The meaning of the clause should be considered objectively as a whole, giving effect to the natural and ordinary meaning of the words, in my view, the clause deals with wring, piping, drainage and the like, it is clear that this clause concerns fixtures and additions to the land and nothing to do with the chattels. I agree with Miss Chan that there is no provision in the Tenancy Agreement as to the duty of the Plaintiff to the condition of chattels. The situation being there is no covenant to repair the chattels in the present case. 46.The chattels whether listed or unlisted belonged to WTL and were provided by WTL as landlord to the Plaintiff tenant for the use of the occupant in the Property during the term of the tenancy, and because of their relationship the Plaintiff is under a duty of care to the chattels it took possession. Miss Chan submitted the duty of care should be considered in light of their contractual relationship and where the damage is only fair wear and tear the Plaintiff has discharged its duty, Mr Hui also supported fair wear and tear should be the test and the burden is on the Defendant to prove negligent. The ownership of the chattels remained with WTL until it passed on to others. The Plaintiff owed the same duty under tort to the Defendant after she became landlord and the owner of the chattels. Whether the Defendant has any right to damages of the chattels? 47.By paragraph 22 of the Re-Re-Amended Defence and Counterclaim, the Defendant claimed damages for breach of contract and or conversion. The Plaintiff in its Re-Amended Reply and Defence to Counterclaim denied the said paragraph 22 and avers in paragraph 5 that:
48.There was no dispute that the Defendant has right to sue for damages to the property and fixture done before the assignment, and right to sue for damages to the Defendant’s chattels done after the assignment, save that the Plaintiff submitted where the damage was minor the Defendant cannot rely on the tort of conversion. The issue being whether the Defendant has right to sue for damages to chattels done before the assignment. 49.Mr Hui conceded that the Defendant has no locus to sue for the damage done to the chattels before she became their owner, unless WTL assigned the right to sue to her. But he submitted the Assignment of the Property covered the assignment of WTL’s right to sue for the damage to the chattels. He enclosed with his Supplemental Written Submission a copy of the Assignment which was not submitted before. Whether the right to sue had been assigned was raised by me during stage of closing submission, as such I would allow the production of the Assignment, and leave be granted to the Defendant to produce this piece of document as evidence. Miss Chan submitted in her Written Reply that even this piece of evidence was allowed at this late stage, it would not assist the Defendant. 50.The clause Mr Hui relied on being clause 1 of the Assignment, which reads:
51.By Paragraph 10 of his Supplemental submission on Law Mr Hui submitted that “(the) phase “with the benefit of is drafted very widely and does not only cover the terms of the Tenancy Agreement. If the parties intended that WTL was only to assign the rights and obligations under the terms of the Tenancy Agreement, the words “subject to” will suffice, and one does not need the extra phrase “with the benefit of” in the assignment clause. It is submitted that WTL’s right to sue in tort for the damage to the chattels is one of the benefits of the tenancy, because WTL allowed (Plaintiff) to have the use of the chattels as part of the fully furnished lease, and any damage to the chattels could be deducted from the rental deposit.” 52.Clause 11 and the Fourth Schedule are provisions of evidence that certain items were provided to the Plaintiff, even with the concession of the Plaintiff, whether making it rightly or wrongly, only deals with the return of the items upon expiry of the lease. For the reasons mentioned above, there is no covenant to repair the chattels, and the duty in relation to the condition of the chattels the Plaintiff owed to the owner is one under tort. As such the right to sue for damages done to the chattels is under tort and not based on any provision of the Tenancy Agreement. 53.Miss Chan submitted that upon proper construction clause 1 of the Assignment said nothing more than that the conveyance of the Property was subject to the existing tenancy. The true effect of Clause 1 was that apart from assigning the Property, the Assignment also operated to assign the Tenancy Agreement. On an assignment of a lease, the covenants in the lease that may pass with it are limited to those that touch and concern land. Thus rights to chattels do not pass with assignment of a tenancy. 54.Miss Chan further submitted that the use of the words “subject to and with the benefit of the existing lettings and tenancies” in Clause 1 could not be interpreted as carrying an intention contrary to section 16 of the CPO since the Tenancy is an interest affecting the Property. If the “benefit” were to include the right to sue in tort for damages to chattels, such right being a right inconsistent with the statutory rights contained in section 16 would need to be expressly stated in the Assignment or the provisional agreement. The words “with benefit” do not add anything to section 31 of the CPO. If it was intended by WTL and the Defendant that the Assignment were to assign more benefit of the lease than were provided by section 31, such additional benefits would need to be clearly spelt out. 55.I agree with Miss Chan that the phase “subject to and with the benefit of the existing lettings and tenancies” plainly refers to the terms of the Tenancy Agreement. In my view the scope of Clause 1 of the Assignment does not cover the right to sue for damages done to the chattels before the assignment. 56.A plant pot listed in the Fourth Schedule was broken before the execution of the Assignment, the Defendant was aware of this when she inspected the Property in 2008 prior to the sale. It was not disputed that the plant pot depicted in the photograph was beyond repair. According to Mr Bell’s evidence the Plaintiff has replaced it with the consent of Loretta of WTL and there is no evidence to the contrary, I consider and accept Mr Bell’s evidence. Thus the broken plant pot listed in the Fourth Schedule has been replaced with the consent of WTL well before the Provisional Sale and Purchase Agreement of the Property. However, the Defendant claimed replacement to the original plant pot. 57.I agree with Miss Chan that at the time the plaint pot was broken, the Defendant was not even an equitable owner of the item, as the Provisional Agreement was not yet entered into. The Defendant therefore does not have the right to make any claim in conversion in respect of the damaged plant pot. In any event at time of the Assignment one of the two large plant pots of “the existing lettings and tenancies” had been broken and replaced with another one with consent of WTL, WTL has been compensated and there should not be any outstanding claim related to the broken plant pot. At time of the Provisional Agreement and the subsequent Assignment, by selling the property with furniture including those listed in the Fourth Schedule, it was the legal title of the replaced plant pot which WTL had at the time that was passed to the Defendant. The ownership of the chattels 58.Mr Bell gave evidence that an oral agreement was made between Loretta Au on the part of WTL and his wife on the part of the Plaintiff, that they could move around and dispose of the furniture as they wished, and drill holes for bathroom/kitchen accessories, TV, shelves and pictures without the needs to make good them upon expiry of the tenancy. And he learnt from his wife that when the two ladies discussed about this matter, they did not differentiate between listed and non-listed furniture. This further supported that the purpose of the Fourth Schedule was only to ensure the listed item as requested remained in the house for the benefit of Mrs Bell, once this was done, no further reference to the Fourth Schedule was necessary, from that point onwards when the two ladies referred to furniture they referred to “the furniture” WTL had in the house for the use of the tenant. And where any items provided by WTL required replacement, the Bells would get consent from Loretta, for example, the plant pot broken in September 2008 and the bed mentioned below that the Bells wanted to discard in August 2008. 59.Mr Bell gave evidence that there were only two beds provided by WTL, when they moved into the house, they moved the beds provided by WTL one floor up respectively for the use of their children and moved in their own bed from Singapore into the master bedroom. This arrangement must have been communicated to Loretta otherwise the e-mail dated 23 August 2008 to Loretta for the request to disposal of the bed in the top floor would not have made sense to her. It would appear that Loretta was very accommodating as to the arrangement and disposal of the furniture upon request but this did not necessary meant WTL has passed the ownership of the furniture in the house to the Plaintiff or the Bell couples. The communication between the Bells and Loretta about the broken plant pot also supported no ownership of the furniture was passed to the Plaintiff or the Bell couples. 60.Mr Bell was only told by his wife what was said between her and Loretta, Mrs Bell and Loretta were not called, we do not know the exact exchange between the two ladies but any suggestion that WTL has passed the ownership of her chattel in the house would be difficult to reconcile with the behavior of the two ladies during the material time. As Mr Bell’s understanding no differentiation was made to the furniture as listed or non-listed when the ladies reached the “oral agreement”, should that oral agreement went so far as to passing the ownership, no further communication would be required for any disposal of such, no furniture including lighting would be required to return and the property could not be sold with any furniture to the Defendant. 61.Further, it would also be difficult to reconcile with the Plaintiff’s pleaded case as stated in paragraph 5(3) of the Re-Amended Reply and Defence to Counterclaim that “it was verbally agreed with the Landlord WTL that for the Non-listed Items, the Plaintiff has the right without the Landlord’s prior consent to remove, deal with and/or in any way replace them as the tenant so wishes since the Landlord WTL no longer wished to retain those items”; Mr Bell’s evidence that there was no differentiation between listed and non-listed items was simply contrary to the Plaintiff’s pleaded case. 62.The Defendant was of the opinion that the Bell couples with the belief that she being the succeeding landlord did not have firsthand knowledge of the furniture and the particulars of the items referred in the Fourth Schedule, attempted to take advantage on her, by only returning items with inferior quality just enough to match with the Fourth Schedule. A significant part of the cross-examination was focused on the improbability of such oral agreement, its inconsistency with Mrs Bell’s preparation for the First Handover, the reaction of the Bell couples during the First Handover and the contemporary documentary evidence. 63.Towards the end of the cross-examination on the oral agreement, Mr Bell gave evidence that he had no intention to take away things that did not belong to them, and the oral agreement was not to throw everything away but that they could deal with the furniture to make the house comfortable to them. His wife was supposed to return those items referred in the Fourth Schedule and the lighting but the packer mistaken the orange and the red sticker, therefore some of the items supposed to stay were moved to the storage. 64.Mr Bell’s evidence was far from cogent to prove that WLT passed the ownership of any chattel to them, the evidence as a whole shown that WTL retained the ownership and in the subsequent sale agreement between WTL and the Defendant, there was a term that the sale included all the furniture and fittings in the property including that listed in the Fourth Schedule. As Miss Chan put in her written Reply, the Defendant’s right over the chattels was derived from the provisional agreement and her landlord and tenant relationship with the Plaintiff which commenced from 15 January 2009. 65.Further, evidence as a whole also shown that the Bell Couples would get consent from Loretta before they disposed and replaced furniture and fitting provided by WTL and obtained consent from Loretta before they drilled holes for specific purposes. The fact that no complete list of furniture was provided in the sale supported Mr Bell’s evidence that Loretta has been very accommodating in relation to the furniture in the house, and certain items have been replaced or disposed during the tenancy without formal record. 66.For the reason mentioned above, WTL only passed the legal title of the chattels to the Defendant at time of the Assignment, and the Defendant took the condition of the chattels as they were at the time of the Assignment. The tenancy was extended and renewed basically on the same term, and there was no provision as to the condition of the chattels upon the expiry of the tenancy. The duty owed by the Plaintiff was one under tort. Any missing items still under the Bells’ possession? 67.After the First Handover, the Defendant made a complaint of theft to the Police. To resolve the matter, Mr Bell prepared a list of disputed furniture to be returned to the Defendant, the finalized list could be seen in his e-mail to Justin dated 18 February 2011. Mr Bell gave evidence that after the First Handover, Margaret from the Plaintiff exerted pressure on him to have the matter settled as soon as possible. Margaret even requested him to redraft his e-mail to Justin dated 18 February 2011, to include furniture in the entrance hall and to redraft the paragraph about the plumbing charge paid by him, he did so accordingly. Undoubtedly Mr Bell also wanted to settle the matter amicably and have the matter settled as soon as possible, and there was no differentiation of listed and non-listed item in his e-mail. 68.Mr Bell said the chattels went with the house were used items, the fact that WTL did not take a full inventory list supported Mr Bell’s evidence; I consider and accept his evidence. Further, the absence of a full inventory list and inventory check at the commencement of the tenancy suggested that the items were not of great value to WTL. I see no reason for Mr Bell to retain any furniture or lighting provided by WTL if the same was still existed. Eventually the Second Handover took place on 26 February 2011, items belonged to the property were returned to the house. However, matters related to the tenancy could not be settled there and then. 69.During the Second Handover, the outstanding specific items referred in the Fourth Schedule were returned. The items still claimed to be missing by the Defendant including:
According to the evidence of Mr Bell, he has returned all the furniture belonged to the property that was still existed at time of the Second Handover. I consider and accept the evidence of Mr Bell that he has returned all the furniture and lighting, thus the Plaintiff is not liable for the two wall lamps that were not provided. But the question remained the cause of the depletion and worn out of the items and whether the Bell couples were entitled to dispose the same without notifying the Defendant. 70.It appeared that whenever items provided required replacement or disposal, Mrs Bell would communicate with Loretta, but this was no longer the case after the Defendant became the owner of the Property. The evidence shown that Loretta was very accommodating with the requests from Mrs Bell and never turned down her requests, yet the Defendant took a suspicious attitude towards the Bells’ requests, this may be the reason why the Bells, with the belief that the Defendant did not have firsthand knowledge of the furniture and fitting, chose not to communicate with the Defendant for any replacement or disposal of the worn out chattels provided to them. Plaintiff’s liability towards chattels under tort 71.As mentioned in paragraph 47, the Defendant’s pleaded case was based on breach of contract and conversion. However during the trial evidence did touch upon particulars of damages found on the chattels and WTL sold the property together with the furniture and fittings, and during the closing submission I did invite counsels to assist me on law related to duty of care and both Miss Chan and Mr Hui did make submission on duty of care, the standard of care and the burden of proof directly. Accordingly, I proceed to consider the Plaintiff’s liability under tort including that under conversion and duty of care. Dehumidifiers 72.The Defendant claimed replacement for 3 missing dehumidifiers in the sum of HK$14,840 and 1 broken down dehumidifier in the sum of HK$5,480. As per the Fourth Schedule, 4 pieces of dehumidifier were provided to the Plaintiff at the commencement of the tenancy. Mr Bell gave evidence that he has replaced the dehumidifiers gradually because of their deterioration in efficiency and as they reached the end of their mechanical life, the Mitsubishi left was provided by WTL and it was still working but very at the end of its working life by the time the tenancy expired in 2011. During the 2008 inspection, the Defendant noticed 3 pieces of Mitsubishi dehumidifier and one Hitachi dehumidifier. Justin gave evidence that at the First Handover, one Mitsubishi dehumidifier was not functioning, the other two Mitsubishi and one Hitachi being replaced by Loyola. 73.It was never Mr Bell’s evidence that all the four dehumidifiers broken down at the same time. That the 4 dehumidifiers were used items when provided to the Plaintiff at the commencement of the tenancy in 2006 is not challenged. Mr Bell gave evidence that because of the high humanity inside the property, all the dehumidifiers were switched on overnight. After considering the size and the layout of the property, I accept his evidence. 74.The Defendant suggested that the Bells took away the 3 functioning dehumidifiers and replaced them with 3 lesser quality, but with the unchallenged evidence a more probable inference is that, the four dehumidifiers broken down one after the other due to normal wear and tear, and the Bells replaced three of them during the tenancy and because the remaining Mitsubishi dehumidifier was still functioning by the time the lease was due to expire that one was not replaced but soon that one also stopped working due to fair wear and tear. I consider the evidence as a whole and accept Mr Bell’s evidence, and I find the Plaintiff has discharged its duty of care in relation to the dehumidifiers and is not liable for the dehumidifiers. 75.May be it would be better for the Bell couples to inform the Defendant before they discarded the dehumidifiers provided by WTL but a dehumidifier broken down due to normal wear and tear was worthless, whether or not the Bell couples notified the Defendant, thus the Plaintiff is not liable for any damage claimed by the Defendant under this head. In the present case the Defendant was better off with three working dehumidifiers left behind by the Bell family. Table lamps 76.From the photographs provided by the parties, the table lamps concerned were for decoration and illumination. According to Justin the four table lamps were placed inside the property when he inspected the property in 2008, and according to Mr Bell’s evidence, these were discarded because the paper shades thereof became faded and deteriorated over the few years and the wire contact at the metal base became loose with paint coming off, I consider and accept his evidence. The function of illumination might have gone, but even with Mr Bell’s description, whether the function of decoration was also the case is a matter of opinion, this should be decided by the owner, and the Bells should have notified the Defendant before they discarded the lamps. The Defendant was deprived of her table lamps, and the Plaintiff is liable for conversion. Sideboards 77.The Defendant claimed replacement of two sideboards in the sum of HK$164,800. The two sideboards in question were used furniture when first provided to the Bell family by WTL, the two sideboards were returned to the Defendant in the Second Handover. The video taken during the Second Handover shows the general physical condition of the two sideboards respectively at 00:47 second (ground floor living room sideboard) and 00:57 second (first floor living room sideboard) of the video. In my view the Bells has taken reasonable care of the two sideboards 78.After the workmen unloading the returned items into the property, the Defendant and Justin went through the returned items and recorded what was returned on the Inventory Check List for the Second Handover. Defects of the items were also noted on the same Check List, for the two sideboards the defects marked were scratches/chips, and a burn mark. Mr Bell did state at the margin of the Check List that he did not agreed with the burn mark. The photographs used during the trial did not show any burn mark but cup marks, Justin said he meant cup marks when he stated burn mark, I consider his explanation unconvincing. 79.During the trial further photographs depicted cup marks (Exhibit D4) were produced, Justin said Exhibit D4 was taken right after the Second Handover, this is in direct conflict of what he stated in the Check List, should the cup marks so conspicuous why would he miss that out at the time? In any event more cup marks are depicted in the photographs prepared for the trial. The existence of more cup marks suggested that the Defendant failed to preserve the condition of the returned furniture. 80.According to Mr Bell’s evidence the two sideboards were used furniture and they did not mark out all the scratch marks on them when they moved in. Scratch marks could be done to them in the normal course of moving items on top or underneath it or by the hoover line rubbing against their sides or legs. I consider and accept Mr Bell’s evidence. I consider the Defendant failed to prove the cup marks on the ground floor living room sideboard as depicted in photograph 1 to 10 of Exhibit D3 were caused by the Bells. 81.Taking into account that these are used furniture and have been used by the Bells for 4.5 years, for the rest of the scratch/chips marks, in my view these amount to fair wear and tear. Accordingly, I find the Defendant failed to prove the Plaintiff has breach its duty of care in relation to the sideboards and the Plaintiff is not liable for the sideboards. Chandelier 82.The Defendant claimed for a replacement of the chandelier in the sum of HK$30,300. It was agreed that the minor glass chip in question could not be seen in the photograph or when hung up in the ceiling. According to Mr Bell’s evidence they have handled it with care, the alleged chip might have been in existence before they moved in the property, and there was no particular incident during their occupation of the property by which damage was caused to the lamp, I consider and accept his evidence. 83.The chandelier was presently being hung up and used by the Defendant, and the minor chip complained of did not affect its function of decoration or illumination, the chip was not easily noticeable. I agree with Miss Chan the chip could have been there before the Bell family moved in. Accordingly, I find the Defendant failed to prove the Plaintiff has breach its duty of care in relation to the chandelier, and the Plaintiff is not liable for the chandelier. Wall lights 84.The Defendant claimed replacement for 4 wall lights in a total sum of HK$11,520. Similar to the chandelier, those were used items, and no inventory check was made before the Bells moved in. According to Mr Bell’s evidence he did not recall any particular incidents in the course of their occupation by which damage were caused to the wall lights, these damages might have been done before they moved in. Mr Bell gave evidence how he handled the lighting in the property with care and arranged professional mover to handle the removal and returned of the items. I consider and accept Mr Bell’s evidence. Accordingly, I find the Defendant failed to prove the Plaintiff has breach its duty of care in relation to the wall lights, and the Plaintiff is not liable for the wall lights. Lower TV drawer unit 85.The Defendant claimed replacement for the TV drawer unit in the sum of HK$61,400. The damage complained of is at one corner, at the footer and a chip in the middle surface. This piece of furniture was left behind in the First Handover, and the damage noted by Justin on the Check List was bottom wood chipped. The general physical condition of this furniture can be seen at 00:56 and 01:27 second of the video, I agree with Miss Chan, contrary to what Mr Hui submitted in his closing submission, the damages are not highly visible. 86.According to Mr Bell’s evidence this was old furniture when they moved in, no inventory check was made, and the damage could be there before his family occupied the property. He was very sure that the chipped mark in the middle layer must have been there before my family moved in because he did not recall any significant incident during the time his family occupied the property by which such damage could have been caused. I consider and accept Mr Bell’s evidence, there is no evidence that the chipped mark in the middle layer was caused by the Bells. 87.Miss Chan submitted that the relevant photos are photo 317 of Exhibit P3 and the photo at p.820-75 of the trial bundle. This furniture was being used by the Defendant and Justin as shown in photo 317. The furniture was left in the house in the First Handover and only the bottom damage was mentioned in the Second Handover check list. The age of the furniture is not known, the damage at the bottom was consistent with the furniture being aged. There was deterioration of the condition of the furniture after the Bell family left the house. The Plaintiff is not responsible for the replacement of this furniture. I consider and agreed with Miss Chan. Accordingly, I find the Defendant failed to prove the Plaintiff has breach its duty of care in relation to the Lower TV drawer unit, and the Plaintiff is not liable for this item. One leg screw of a bed 88.The Defendant claimed the replacement cost of a bed in the sum of HK$9,228. It is noted by Justin on the Second Handover Check List that a screw on one of the legs loosen/broken. The Plaintiff’s case is that the leg was there on 15 August 2006 and the leg screw became loose owing to wear and tear over time. 89.Miss Chan submitted that the broken leg screw would be result of many years reasonable use of it. If repair is required, all is needed is to replace the screw of the leg. The repair costs should be minimal. Mr Hui on the other hand submitted that the damage to that bed as depicted in the photograph being one leg screw broken and the side scratched. In my view the scratches on the corner of the bed after usage of 4.5 years are considered to be fair wear and tear. 90.For the broken leg screw noticed in the Second Handover, Mr Bell gave evidence that the leg wasn’t broken just that the screw was not screwed in, it could be replaced by another screw and that would be the situation if this were to be used by his son, I consider and accept his evidence. In my view the loosen screw leg is also fair wear and tear over time. Accordingly, I find the Defendant failed to prove the Plaintiff has breach its duty of care in relation to the loosen screw leg, and the Plaintiff is not liable for this item. Sink/basin cabinet side panel 91.The damages referred are drill holes. As Mr Hui stated in his closing submission, the issue is whether the Bells were given consent to drill the holes by WTL. For reasons mentioned above, I consider and accept Mr Bell’s evidence that they were permitted to do so and were not required to make good upon the expiry of the tenancy by WTL. Thus the Plaintiff is not liable for these drill holes. Lighting installation and curtain rail 92.For the wall lights, according to Mr Bell’s evidence they had permission from WTL to move around the items provided, with this permission Mr Bell took off the wall lights at different stages and replaced with their own light fittings. But unlike the drill holes, there was no cogent evidence that WTL did not require the wall lights be installed back upon expiry of the tenancy. 93.The Plaintiff conceded to be responsible for the installation of the two ceiling lights as they were listed items. For reasons mentioned above I see no different between whether the particular light fitting is listed or not, the Plaintiff is obliged to return all the lighting because these were belonged to the Defendant and all the light fittings were installed and ready for use when the Bells moved in, and they were under a duty to return the light fittings in a state ready for use, without any waiver from WTL, they should be re-installed and ready for use when the Bells moved out. Thus the Plaintiff is responsible for the installation of the light fittings. 94.As per Joint Statement dated 30 August 2012 and his Statement dated 17 July 2012, Mr Tse agreed the Plaintiff is liable for the damage to the curtain rail. Thus the only outstanding issue for these two items is quantum. Bathroom items 95.The Plaintiff conceded that the mirror cabinets, toilet paper holders, shower rods, towel rods are at law fixtures. The Tenancy Agreement contained expressed provisions relating to fixtures:
But the Plaintiff averred that the toilet paper holders, shower rods and towel rods were tenant’s fixture belonged to the Bells family and so they were entitled to remove those upon the expiry of tenancy. Mirror cabinets 96.This will be discussed under The Plaintiff’s liability related to the property and fixture. Toilet-paper holders, shower rods and towel rods 97.The Defendant claimed HK$2,600 for 4 toilet paper holders, HK$347 for 2 shower rods, and HK$1,442 for 2 towel rods. By Clause 3(s) the Plaintiff is obliged to yield up the Property together with all the Landlord’s fixtures and additions in good condition. As put in the Defendant’s closing submission, the issue concerned is whether these items were provided for by WTL or subsequently purchased by Mr Bell. The Plaintiff said these were tenant’s fixture installed with the consent of Loretta. The only direct evidence related to these items were that from Mr Bell, he was adamant that he purchased these items, the hearsay evidence produced by the Defendant simply was not able to contradict his evidence. I consider and accept Mr Bell’s evidence, thus the Defendant has no right over these items. Accordingly, the Plaintiff is not liable for these items. Bathroom faucets and shower sets 98.The Defendant claimed HK$14,616 for 3 shower sets, HK$14,980 for 4 basin faucets, HK$4,406 for 2 bath tub faucets. The damages were depicted in page 312, 318 of the trial bundle (the grab bar is excluded as it has been disposed of between the parties by agreement). The age of these faucet were unknown, even if they were installed after WTL purchased the property they were used items when provided to the Bells. Further the scratches as depicted in the photographs were minor, in my view these were fair wear and tear. Accordingly, the Plaintiff is not liable for these items. The Plaintiff’s liability related to the property and fixture 99.As far as the damage to the property and fixture concerned, the Defendant’s case was that the damage to the property and fixtures constituted a breach of the covenants of repair in Clause 3(d), (e), (f), (q) and (s) of the Tenancy Agreement. 100.The Plaintiff was obliged to keep in tenantable repair the interior of the property with fair wear and tear and inherent defects excepted (Clause 3(d)). Miss Chan referred to the leading authority Proudfoot v Hart (1890) 25 QBD 42 as per Lord Esher MR:
101.Mr Hui submitted that as to the standard of repair, the legal test is to keep the premises in “substantial repair”. “Good tenantable repair” means “such repairs as, having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would likely to take it”. The factors in determining what is “substantial” include the length of the term, the character, class and location of the property, as well as the original condition of the property. And he further submitted that Clause 3(d) is subject to the “fair wear and tear” exception. This exception excludes dilapidations caused by friction of air, by exposure and by ordinary use. While the tenant is responsible for repairs necessary to maintain the premises in the same state as when he took them, yet if wind and weather had a greater effect on the premises, having regard to their character, than if the premises had been sound, the tenant was not bound by so to repair as to meet the extra effect of the dilapidations so caused. 102.By fair wear and tear both parties referred to the definition in Haskell v Marlow (1928) 2 KB 45. It is common ground between the parties that to bring itself within the fair wear and tear exception, the Plaintiff must show:
103.In Lee Ho Seok v Kanvest Limited DCCJ 5074/2002, HH Judge Lok in considering whether the tenant was liable to damages related to repairing to the walls of leased premises, referred to the summary of the law on this area that found in the book of Hong Kong Tenancy Law by Malcolm Merry 4th ed., at p116:
And the judge went on to say that:
And the judge is with the view that:
104.Miss Chan also referred to Burkeman v G E Capital Europe Limited (2002) EWHC 2863 (QB), in that case, the learned judge was asked to assess the damages for breach of covenant to repair on the part of the tenant. The lease involved an “attractive” property with high rent. The learned judge in that case stated that:
105.Miss Chan submitted that in the case of a high end rental properties the co-existence of the tenantable repair requirement and the fair wear and tear exemption in a tenancy agreement must necessarily mean that the landlord would have to redecorate the property in order to satisfy the next tenant. I consider and agree with Miss Chan. 106.Miss Chan further submitted by referring to Lister v Lane & Nesham (1893) 2 QB 212 at 217that a tenant would not be responsible for things which had gone beyond repair as a result of time and nature operating on the Property and the original faulty design of it. It should be noted that the defence available under Clause 3(d) not only covers fair wear and tear but also inherent defects. The interior of the property 107.As provided by Clause 4(c), the duty to repair the structure and the exterior of the property was with the Defendant. Mr Lau was with the opinion that water damage from the exterior caused to the inside of the exterior wall should not be the responsibility of the Plaintiff and I considered this to be a fair comment. The water damage in the ceiling at top of the staircase and in the left side of the window of the daughter’s room were discounted by Mr Lau. 108.The contentious area was the right side of the same window in the daughter’s room, according to Mr Lau water could have come through the holes in the window and the damage now depicted in the photograph could have been caused 3 to 9 months before he inspected the property and during the re-examination he said the damage on the left side of the window could have been over 3 to 6 months, when it was first discovered it would be smaller in size and for the damage on the right side might have been happened for several months. 109.According to Mr Bell’s evidence the holes on the window frame referred by Mr Lau were not drilled by them, but were there before they moved in. He said the holes looked like those used for some old fashion security alarm system or for safety chains used to prevent windows from fully opening so as to mitigate hazards for young children falling out of window. There was no evidence to contradict Mr Bell’s evidence in this regard. The holes that were existed before the Bells family moved in should not be the responsibility of the Plaintiff, and the Plaintiff was only required to keep the condition of the windows subject to fair wear and tear. 110.Mr Bell also gave evidence that the sign of water damage was not noticeable during the time of their occupation; this was consistent to Mr Lau’s opinion. Further should any rain came through the holes of the window frame during the time of the Bells occupation, it could have looked after right away, however after the First Handover, according to Justin’s evidence, they only came around the property to check up on intervals and there was no mention of covering up the holes of the window in question. I considered and accepted Mr Bell’s evidence in this regard. Accordingly, I find the Plaintiff is not liable to the water damaged complained. Interior painting Walls 111.The Defendant claims the repainting of all the wall surfaces of the property (but not the staircase paint stain by the agreement of the parties mentioned above). Mr Lau was in the opinion that the Plaintiff should not be responsible for the damage because of water seepage from external wall. Mr Hui submitted the Bells should have notified the Defendant of the seepage problem, as mentioned above the problem was not noticeable before the First Handover. For the painting that was damaged by water as mentioned above and shower water from the maid lavatory discussed below, in my view is not the Plaintiff’s responsibility. 112.Mr Lau is in the opinion that the wall cracks, stain marks, holes and peeled off paint were not caused by normal wear and tear but due to the misuse of the tenant during the course of the residence such as punching holes and putting stickers on the wall. Mr Bell gave evidence that for the holes drilled by him he had obtained prior consent from Loretta, I consider and accept his evidence. Mr Lau failed to give explanation for cracks on painted wall, according to Mr Tse the hair cracks appeared on the painted walls should not be caused by the act of the Bell family, a possible cause of that was uneven paint thickness and improper surface preparation before painting; I consider and accept Mr Tse’s opinion. 113.As to the stain marks, taking into account that a family of two adults and two adolescent children with a maid living in the property for 4.5 years, I agreed with Mr Tse the stain marks on the painted walls are fair wear and tear having considered that they are minor scuff marks or stains without damaging the bedding layer. 114.Mr Lau agreed that a general repainting of 1 base and 2 layers of paint on top would have removed all the defects on the wall. As to drilled holes, as shown by the photographs taken for marketing the property submitted by the Defendant, the property came with a number of drilled holes for hanging pictures. According to Mr Bell’s evidence, they have asked for consent to drill holes including that for bathroom/kitchen ironmongery and TV, Loretta was very accommodating and said they did not need to make good upon the expiry of the tenancy. 115.The fact that WTL repainted the premises before the commencement of the tenancy, suggested that it would do the same for the next tenant; the Defendant wanted the removed bathroom ironmongery to stay and it is likely that the next tenant would also made request to drill holes for bathroom/kitchen ironmongery. This was probably why WTL did not require the Bells to make good the holes upon expiry of the tenancy. I consider and accept Mr Bell’s evidence in this regard, if not because of this consent and waiver the Bells could have arranged the bathroom/kitchen ironmongery and the TV in a different way, and it is with this background the tenancy was extended for another six months upon expiry of the original tenancy. The Defendant purchased the property subject to the then Tenancy Agreement between WTL and the Plaintiff, by the time she purchased the property, consent has been given to the Bells to drill the holes, and it was on this basis the tenancy was extended/renewed before and after the Defendant became the Landlord. 116.As HH Judge Lok observed in Lee Ho Seok “(even) if the Plaintiff was in breach of the covenants under the Agreement, there are other obstacles barring the Defendant from claiming any damages in the present case. Firstly, leaving aside the larger and the more noticeable dirt marks, some of the minor dirt marks in the walls were undoubtedly “fair wear and tear”. According to the Defendant’s case, it was not possible to repaint part of a wall because of the shading problem. Hence, even with some minor marks, the Defendant would have had to repaint the walls in any event in order to place the Premises for lease again in the market. That was exactly what the Defendant did before it leased the Premises to the Plaintiff. As the Defendant was expected to incur such costs in removing the “fair wear and tear” defects to the satisfaction of the new tenants, the presence of the larger marks did not make a difference as far as the Defendant’s costs are concerned. In other words, the Defendant has suffered no real loss in this regard.” 117.Leaving aside the drill holes, which the Plaintiff was not required to make good for reasons mentioned above, in my view the other cracks, scuff and stain marks at time of the First Handover are fair wear and tear, even if one or two scuff or stain marks could be said not within fair wear and tear, the Defendant would need to repaint the house after the 4.5 years occupation by the Bells family in any event. And the repainting would have removed all the defects on the wall including the drill holes made by the Bells. In other words, the Defendant has suffered no real loss in this regard. Accordingly, the Plaintiff is not liable for the re-painting of the wall surfaces. Ceiling 118.The Defendant claimed the re-painting of all the ceiling surface of the property. However only two area of damage were referred, the first one being the ceiling damage found to that on the Third Floor due to water leakage, the Defendant complained the Bells did not inform her in good time therefore the Plaintiff should be held liable for the damage. That could not be right, the Bells has notified the Defendant about the leak of the roof, in any event the structure and the exterior maintenance was the responsibility of the Defendant, there was no duty for the Plaintiff to inform the problem under the Tenancy Agreement, Clause 4(c) provided the Defendant’s duty under this clause only arisen upon written notice of want of repair from the Plaintiff. There was nothing to stop the Defendant to request annual inspection of the property to ascertain whether any repairing and maintenance was required for the structure and exterior of the property. 119.The other damage was depicted in photograph 154 of Exhibit P3, Mr Lau said that it was caused by brushing against this part by some long object but this was not supported by any evidence. Mr Tse said it could be due to poor workmanship, because that part of the ceiling did not have plastic bedding, the painting material affected by humidity and peeled off. I consider and accept Mr Tse’s opinion. Accordingly, the Plaintiff is not be liable for the damage to the ceiling painting. Timber doors 120.The Defendant claimed the repair and repainting of the timber door of Main Entrance, Kitchen, Utility, Master Bedroom, Son’s room, Son’s bathroom, Daughter’s room and Daughter’s bathroom. Mr Tse in his supplemental statement after his formal report stated that stain marks, pencil writing (only on inner face of door of Daughter’s room and repair marks were found on painting of doors of Master Bedroom, Son’s room, Son’s bathroom, Daughter’s room and Daughter’s bathroom. Mr Tse agreed that the Plaintiff should be responsible for these 5 doors. 121.For the other timber doors, Mr Tse was of the opinion that the scuff marks found are fear wear and tear. The condition of these doors was depicted in photograph 267, 268, 311 - 313, I agree with Mr Tse the damages were result of fair wear and tear. Accordingly, the Plaintiff should not be responsible for these doors. Maid lavatory 122.The Defendant claimed the replacement of the damaged door and door sill. The maid lavatory door was seriously damaged as a result of the water spray on the timber internal surface, and the water also affected the door frame the wall painting outside the lavatory. Evidence shown that the maid lavatory has been designed as a shower room with shower facilities installed by the Landlord, but there was no barrier between the timber door and the shower area within the maid lavatory. Due to the small size of the room and the lack of barrier between the shower area and the timber, the timber door (especially the lower part of it) would inevitably contact with shower water and might even immerse in shower water pool if shower water was not drained away fast enough. 123.Mr Hui submitted that the maid’s lavatory and the utility room were the original layout design from the developer and that the problem could be avoided by proper positioning of the shower head but given the limited area inside, in my view this could not be the solution of the problem. Mr Hui further submitted the Plaintiff should either have requested the landlord to rectify the situation, or have stopped using the maid’s lavatory as shower room; however, it was the landlord who let the property to the Plaintiff and provided that as a shower room for their maid. 124.According to Mr Tse, this problem should have been noticed in the first shower, the landlord should be taken to have knowledge of this, the Defendant inspected the property in 2008 before the sale, and common sense tells the design of that shower area was defective. I agree with Miss Chan the damages to the maid lavatory door, door frame and the wall painting outside were caused by inherent defect of the design. Accordingly, the Plaintiff should not be responsible for the damages. 125.As for the lavatory door still, Mr Bell gave evidence that the sill was discoloured by the water overflowing during shower and by flooding of the kitchen utility area from drainage problem, there was no evidence to contradict his evidence. The Bells had informed the Defendant of the drainage problem and made requests for repairing, even the Defendant’s plumber stated in his note the drainage had aging problem. I consider and accept Mr Bell’s evidence. Accordingly, the Plaintiff should not be responsible for such damage. Interior timber floor 126.The Defendant claimed the replacement damaged timber floor boards and re-waxing the whole timber floor. There was no evidence when the timber floor was last waxed; re-waxing was not one of the items in the Fifth schedule. The photographs in Exhibit P3 shown dents, marks and stains on the timber floor at various parts of the premises. Mr Bell stated in Exhibit P3 that certain floor marks could have been there before they moved in (photograph 79 – 82, 113 – 114 of Exhibit P3), and he said he did not remember there were marks as depicted in photographs 249 and 250 in Exhibit P3. Photograph 249 and 250 depicted the area near the window of the Master Bedroom, over this area where the Bells placed a rug on which a stool was put, and this ccould explain why Mr Bell did not have much memory of this part of the timber floor. 127.The existence of such marks depicted in photograph 79 – 82, 113 – 114, 249 and 250 of Exhibit P3 was not disputed but there was no admission from the Mr Bell that those were caused by them. Mr Bell had no memory of any of those marks was not evidence of admission; this could simply because those marks did not affect the enjoyment of the property. Given that the previous occupant did not take care the property reasonably, certain floor marks existed before the Bell family moved in was probable, there was simply no evidence to prove that the marks now depicted in photo 79 – 82, 113 – 114, 249 and 250 of Exhibit P3were caused by the Bells, where the marks existed before the Bells moved in the Plaintiff should not be responsible for those. 128.Mr Lau opined some of the marks were too deep to be fixed by sanding; these can be found in photograph 81, 82, 114, 249 and 250, 301, 302, 303, 309, 339 of Exhibit P3 which could not be covered by re-waxing. At one point Mr Lau even said the marks in photograph 310 could not be covered by re-waxing but on further clarification he corrected himself. In my view, those marks depicted in photograph 301 to 303 were clearly fine marks, I have reservation to the opinion of Mr Lau and his opinion to photograph 301 to 303 casted doubts on his opinion that all the remaining marks depicted in the photographs mentioned above required replacement of timber boards. But in any event this should not be the Plaintiff’s responsibility. 129.With the condition in April 2012, Mr Tse was in the opinion that only light and superficial indents were found on some locations of the timber floors within the property, especially those areas subject to frequent abrasion from heavy furniture, tables, chairs or footsteps. These indents were considered by Mr Tse to be fair wear and tear and are normally found on timber floor having no surface re-waxing for prolonged period. Taking into account of the total floor area with timber board, I consider and accept Mr Tse’s opinion. 130.As in the case of the wall painting, in my view the marks on the timber floor caused by the Bells by time of the First Handover were fair wear and tear, even if one or two marks could be said not within fair wear and tear, the Defendant would need to re-wax the house after the 4.5 years occupation by the Bells family in any event. In other words, the Defendant has suffered no real loss in this regard. Accordingly, the Plaintiff is not liable for the interior timber floor. Carpet 131.The Defendant claimed the costs for cleaning of the carpet of the whole premises. As mentioned above according to Mr Bell’s evidence, they cleaned the carpet before they moved out, and he commented that the carpet depicted in the photographs of Exhibit P3 was much dirtier, the video taken on the Second Handover also supported his evidence, the condition of the carpet at the entrance as shown in the video was in a much more better condition than that depicted in the photograph (photo (a1) of the Plaintiff’s expert report), in particular no black mark was seen in the video. 132.I agree with Miss Chan the video shown the carpet was at a much better condition at the Second Handover. I consider and accept Mr Bell’s evidence that the carpet depicted in the photographs was much dirtier than that at the First Handover and that the Bells had taken reasonable care to the carpet. In my view the Plaintiff should not be responsible for the costs for cleaning the carpet now claimed by the Defendant. Ceramic wall tiles in bathrooms 133.The Defendant claimed for the replacement of ceramic wall tiles in various bathrooms. The damages were drilled holes which the Bells had permission to do for the bathroom ironmongery. The Defendant purchased the property subjected to the Tenancy Agreement, by then WTL already given the permission to the Bells to drill holes for the ironmongery and agreed that they do not need to make good of the holes, this is part of the Tenancy Agreement. Accordingly, the Plaintiff is not liable for this head. 134.Further the fact that the Defendant wanted the ironmongery to stay suggested that the position of the ironmongery suited her; in such case the Defendant could have made use of the holes. In my view the Defendant has suffered no real loss in this regard. Window frames 135.The Defendant claimed HK$2,000 for fixing the drill holes on the window frames. There was simply no evidence to contradict Mr Bell’s evidence that the drill holes were there back in 2006. I consider and accept Mr Bell’s evidence. Accordingly, the Plaintiff should not be responsible for this. The wooden shutter 136.The Defendant claimed HK$10,950 for the replacement of a new wooden shutter. The Plaintiff conceded that wooden shutter installed in the property was fixture. Miss Chan submitted that the dent was a minor one. This could have been caused by brushing anything against it without noticing it. It could have been caused by the Defendant or Justin. Both surveyors did not observe such damage during their inspection. 137.Mr Hui submitted that any suggestion that it was caused by Justin or the Defendant should be refuted because in between the First Handover and the surveyors’ they had not lived in or used the property. However as mentioned above in between that period of time there were a number of activities within the premises, thus such a possibility could not be excluded and most important there was no evidence that that was caused by the Bell family. Accordingly, the Plaintiff is not liable for this. Mirror cabinets 138.The Plaintiff conceded that the mirror cabinets were fixture but purported to rely on the defence of inherent defect and fair wear and tear. The Plaintiff stated in the Re-Amended Reply and Defence to Counterclaim that the three mirror cabinets deteriorated through time with hinges loosened and warping of doors which caused cracking of mirrors, and the Plaintiff has substituted them with replacement wall mirrors.139.According to Mr Bell’s evidence, he would from time to time tightened up the hinges of the mirror cabinet in the master bathroom but he did not inspect the three mirror cabinets installed in the children’s bathroom and the guest washroom regularly, he depended on others to inform him the condition of the hinges, those in the children’s bathroom had hinges gave way, the door fell and cracked the mirror. 140.By Clause 3(d) Mr Bell was obliged to keep the mirror in proper and tenantable state of repair. Although the mirror cabinet in the master bathroom was of different design, with his experience of the one in the master bathroom, he should carry out regular inspection to avoid hinges gave way. I agree with Mr Hui that the Bell family has been negligent and failed to keep the mirror cabinets in tenantable repair. The Plaintiff is liable for the Bell family’s negligence and breach of covenant. By Clause 3(e) the Plaintiff is required to replace the mirror cabinets, simply replaced them with wall mirror is not enough. The exterior of the property 141.By Clause 4(c) the Defendant was obliged to repair within reasonable time the structure and the exterior of the building in a proper state of repair upon received written notice of want of repair from the Plaintiff. “Exterior” was not defined in the Tenancy Agreement. At common law, the “exterior” of a building will generally include all external parts of that building including the windows and window frames. In most cases the walls which enclose the premises will form part of the “exterior” of those premises even if they are not themselves exposed to the air: thus, basement walls may form part of the “exterior” of the premises of which they form part (Hill & Redman’s Law of Landlord and Tenant para. A3250). 142.Miss Chan submitted the oft adopted definition of “the external part” of premises could be found in Pembery v Lamdin [1940] 2All ER 434 at p.440, namely “the external parts of premises are those which form the inclosure of them, and beyond which no part of them extends: and it is immaterial whether those parts are exposed to the atmosphere, or rest upon and adjoin some other building which forms no part of the premises let”. And she submitted that the terraces, whether on the ground floor or the third floor were outside the sliding doors which were part of the external wall of the house; thus the terrace floor were therefore the responsibilities of the Defendant. 143.It is common ground that the roof top is the exterior of the house, applying the same principle, in my view, the terrace walls and floors which exposed to the atmosphere is the exterior of the house. By Clause 3(d) the Plaintiff was only obliged to repair and maintain the interior of the house and all the fixture and additions thereto. There is no contractual obligation upon the Plaintiff to repair the terrace wall and floors. By Clause 3(q) the Plaintiff was only covenanted not to cause any damage to the floor or wall thereof (fair wear and tear except). Garden (patio) floor tiles 144.The Defendant claimed HK$32,000 for relaying the tiles of the garden. As noted from an e-mail by Margaret to Justin dated 16 December 2010, the need for repair of the cracked and broken tiles on the patio has been given to the Landlord well before but not attended. The patio was outdoor area and subjected to direct weather impact, and the photographs as per expert reports shown the deteriorated situation in April 2012 which was over 14 months since the First Handover in February 2011. 145.Mr Lau said the cracks seen on the garden (patio) tiles were all the result of hard hitting on the surface or falling of hard objects from height (shown by blue arrow on photo 2 and photo 5 on Exhibit D6). As demonstrated by his drawing on the photographs the number of impact to cause the cracks were numerous. It would mean that the Bell family was frequently damaging the floor tiles. 146.Miss Chan submitted that Mr Lau did not convincingly explain the buckled tiles in photograph 2. His view that buckled tiles were caused by one single impact from one end of the two tiles did not appeal to common sense. It did not explain how such impact would have caused two tiles to lift up from the cement in the shape of a bridge. One would also expect such an impact would have caused some crack on the tiles at the point of the impact. Mr Lau tried to indicate such crack but the crack was invisible. His explanation of the crack in the triangular piece next to the buckled tiles was also shifty. At one time he was saying the crack was caused by the same impact that caused the buckled tiles, at another time he said it could be caused by being stepped on afterwards. 147.As stated above the patio tiles were exposed to direct sun and rain. I agree with Miss Chan that the effect of elements taking toll on the tiles was something expected, the only question was the extent. Mr Tse said the cracks were caused by their natural expansion when responding to the heat of the sun or water seeping under the tiles. Miss Chan submitted that the buckled tiles being situated at the end of the longest row of tiles in the garden is consistent with Lau’s evidence that 7 meters was the limit beyond which expansion joint would be recommended. 148.Both experts said tiles would expand because of temperature difference and look for space while expanding. When there was not enough room for expansion, they searched for the weakest point to release the tension. This explained the many forms and shapes of the cracks. Mr Tse’s evidence was that workmanship could be a factor causing early cracks on the tiles. On this point Mr Lau also agreed that when laying the screed between cement and tiles, bubbles or air space might be formed, further the bonding between the cement and the tiles would give way when the screed aged and then the tiles or part of it would then detached from the screed, should this happen this would allow water to seep into the gap, in my view the detachment from the screed layer also explains how one impact would have caused two tiles to lift up from the cement in the shape of a bridge, and according to Mr Lau stepping could be a cause of the impact. 149.It is common ground that the Bell family was looking after the property well since the commencement of the tenancy, and they would let Loretta knew anything require repairing, both working together to make the property in a satisfactory condition, after the Defendant became the Landlord, the Bells initially had tried to do the same but the Defendant was slow to response to the request for repairing, yet the Plaintiff was minded to negotiate an extension of the lease, I see no reason for the Bells to change the way they used the property. 150.Mr Bell gave evidence that during the tenancy the tiles gradually lifted and cracked since about end of 2009 and was further deteriorated during the time elapsed between the First Handover and the inspection by the surveyors and the seals found on old floor tile crack were not done by them, his evidence was consistent to the opinion of Mr Tse and that of Mr Lau’s relating to the detachment of tiles due to aging of the screed layer. I consider and accept Mr Bell’s evidence. Accordingly, I find the Plaintiff has proved that the damages related to the patio tiles now complained by the Defendant were fair wear and tear and the Plaintiff is not liable for the patio tiles. Wooden plank on the wall 151.The Defendant claimed HK$6,000 for the damaged timber planks. The wooden plank complained were glued onto the metal frame because those planks could not be screwed on the metal frame, as the metal frame was mounted onto the wall by screws at that particular levels. Mr Hui submitted that the drill holes on the metal frame at that particular rows indicated that screws were originally used to attach the planks to the metal frame simply against the evidence of his expert, who said there was no hole on the planks and even on further clarification by Mr Hui, he said he has no impression there was any hole on the planks. Mr Lau’s opinion that the adhesive should be strong enough to last for 8 to 10 years was made without knowing the kind of adhesive used by WTL, I placed no weight on it. 152.Mr Hui also submitted that it is likely that the metal frame was screwed to the garden wall at 3 places; the 4th row from bottom, the middle row and the 4th row from top. His submission again is not supported by any evidence. During the trial the complaint was the detachment of the wooden pranks from the metal frame. 153.I agree with Miss Chan that planks glued to the metal frame must fell off more easily than those screwed on, and the fallen off of the planks is consistent to that due to fair wear and tear of the glue. Accordingly, I find the Plaintiff has proved that the damages related to the wooden planks on the wall now complained by the Defendant were fair wear and tear and the Plaintiff is not liable for the wooden planks complained. Timber floor on Third Floor flat roof 154.The Defendant claimed HK$6,000 for the replacement of the damaged timber floor planks. At least half of the floor planks were installed in place of the plastic grass immediately before the Bell family moved in (item 13 of the Fifth Schedule). Mr Tse said there were only a few loose floor planks. Mr Tse was of the view that due to the design of the decking system, the planks were fixed to the rails by bottom-to-up screwing instead of top-to-bottom, which caused the loosening of the planks. Mr Lau on the other hand was of the view that such damage was caused by hard hitting on the surface or pulling hard objects over the surface but this was not supported by evidence. 155.Mr Bell gave evidence that while they were living in the house, they did not cause any damage to the timber floor. The wooden flooring was laid at their request at the beginning of the tenancy; however by the end of the tenancy, they showed signs of wearing. Justin and Mr Lau confirmed that the floor planks were not detached but were loosen on one end. They said there were warp floor planks that titled up about 10mm and Mr Lau also referred to minor chips shown in photographs. I agree with Miss Chan the damage described by the Defendant was consistent with fair wear and tear of the wooden planks being exposed to the sun for more than 5.5 years. Accordingly, I find the Plaintiff has proved that the damages related to the wooden flooring now complained by the Defendant were fair wear and tear and the Plaintiff is not liable for the timber floor planks. The awning 156.The Defendant claimed HK$6,000 for the damaged flat roof retractable awning. For this third floor flat roof retractable awning, the Plaintiff argued that it was not a fixture. Fixture and chattels are distinguished by (a) the degree of annexation and (b) object or purpose of annexation. The awning was affixed to the external by bolts and operated by an electrical motor and the switch of which was installed indoor. That particular one was a replacement requested by the Bells couple to cover the entire width of the terrace (item 12 of the Fifth Schedule, and the extent of its coverage was shown in orange in Exhibit P1). 157.In TSB Bank plc v Botham and others [1996] EGCS 149, the Court of Appeal was required to decide whether various items within the flat are fixtures where the mortgagee bank could sell those items as mortgagee and give a good title thereto to a purchaser. The Court of Appeal held that in deciding whether items were fixtures, two prime factors had to be taken into account: (1) the method and degree of annexation; and (2) the object and purpose of the annexation. The issue whether functional articles in a house or flat, such as those in this case, had become fixtures depended on the intention with which they were brought into the flat and fixed in position. If the article, viewed objectively, was intended to be permanent and to afford a lasting improvement to the building, the thing would have became a fixture. If the attachment was temporary and was no more than was necessary for the item to be used and enjoyed, then it would remain a chattel. 158.The awning in question was requested by the Bell couples, but that was a replacement apparently to a smaller one. After considering the method and degree of annexation and the purpose of the annexation, viewed objectively, it was intended to be permanent and to afford a lasting improvement to the property. In my view the awning was fixture. 159.Miss Chan submitted that if the awning was a fixture, its condition of return was specified under Clauses 3(d), (e) and (q) subject to the exception of fair wear and tear and inherent defect. 160.The property was first handed over to the Defendant on 14 February 2011, and the Defendant had more than 10 days since the first handover to inspect the damages done to the property. In the second Handover List, the damage to this retractable awning was said to be broken motor by Justin, but this was not agreed by Mr Bell (see the hand written notes by the parties in the margin of the Inventory Check List dated 26 February 2011). Mr Bell gave his comment on the normal life span of the type of motor used by the retractable awning in his supplemental witness statement. 161.Justin, however, in his supplemental statement dated 29 May 2013, said at the First Handover, he noted that the retractable arms were warped and the fabric of the retractable awning became worn if so why the damage was described as broken motor? The alleged warped arm(s) was not captured by any photograph. Mr Bell said the fringe of the fabric became frayed from normal wear and tear and because of the height of the awning, and it was beyond the reach of any of his family. Mr Bell gave evidence that they did not use this awning too often, and never when it was windy; towards the end of the lease, it was not working on one side and once they noticed that they stopped using it. I consider and accept Mr Bell’s evidence. According, I find the Plaintiff has proved that the damages related to the awning now complained by the Defendant were fair wear and tear and the Plaintiff is not liable for the awning. The wind guards 162.The Defendant claimed HK$50,000 for a new motor for the Master Bedroom wind guard and HK$20,000 for the scaffolding required for the replacement of the new motor, and HK$30,000 for the repairing cost of the Living Room wind guard. The Plaintiff argued that the wind guards mounted on the exterior wall in front of windows or sliding doors of the house is the responsibility of the Defendant under the Tenancy Agreement, apparently the Plaintiff’s case was that the wind guards were part of the exterior of the house; while the Defendant put it under the heading of chattels and furniture in the closing submission and does not argue that they are fixtures. 163.Like the awning, the wind guards were mounted outside the house and operated by switches inside the house. For those outside the windows (the Master Bedroom’s was one of them), they could not be fiddled by human hands. For those which were outside the sliding doors of the patios, the motor was in a case mounted high up on the wall. 164.The wind guards were for protection against strong wind and could be used as a security door. After considering the method and degree of annexation and the purpose of the annexation, viewed objectively, it was intended to be permanent and to afford a lasting improvement to the property. In my view the wind guards were as much fixtures as the awning, according to Miss Chan’s submission the condition of return was specified under Clauses 3(d), (e) and (q) subject to the exception of fair wear and tear and inherent defect. 165.The Defendant said the wind guards of the Master Bedroom and the Ground Floor living room were defective. In Justin’s quotation for repair in 2012, he described the damage to one of the Master Bedroom as one requiring motor replacement and mis-alignment of the metal plates in the screen to the one on the Ground Floor. The age of the wind guards was unknown, and they were there before the Bell family took possession of the premises. 166.The motor problem has been notified to the Defendant in 2009 but she chose not to deal fully with it. Mr Lau accepted that using wind guards once or twice a day would not be excessive, I agree with Miss Chan the motor problem could not have been caused by the use of Bell family, and it was due to the Defendant’s failure to remedy the fair wear and tear of the wind guard that subsequently led to its unsatisfactory state. 167.Mr Bell gave evidence how the wind guards were used while his family was in occupation of the house; I consider and accept his evidence. I consider there was no excessive use by the Bell family. Typhoon is a common phenomenon in Hong Kong, the mis-alignment of the metal plates on the Ground Floor terrace was consistent with damage caused by typhoon, and the installment of the wind guards is for protection against damage in particular to the glass during strong wind. The human activities that would have caused the mis-alignment as suggested by the Defendant’s expert were no more than speculations by him, who basically ruled out act of nature. In my view the Plaintiff has proved that the damages related to the wind guards now complained by the Defendant were fair wear and tear. Accordingly, the Plaintiff is not liable for the wind guards. Quantum 168.For the reasons mentioned above, the Plaintiff is liable for: a) 4 pieces of table lamps b) 3 pieces of mirror cabinets c) 5 pieces of timber doors d) Repairing curtain rail e) Lighting installation Table lamps 169.There was no evidence as to the place of origin, the manufacture, the brand, the value and the age of the discarded table lamps. These are used items when provided to the Bells, as mentioned above the function of illumination have gone but with residual reduced decoration value. WTL was the original owner of these table lamps, for reasons mentioned above, these table lamps did not appear to have great value to WTL. 170.The Defendant only became owner of these table lamps after the sale in January 2009, thus these were second hand items to her. In this case the Defendant invariably claimed for replacement of new items. It is for the Defendant to prove her damage, in my view the Defendant’s claim of HK$16,376 for replacement of 4 new high quality table lamps was simply not supported by the evidence. 171.Mr Lau attempted to support the Defendant’s claim by saying that he based his opinion on the style and quality of the original items depicted in photographs and said he has made enquiry about the replacement, Miss Chan challenged his alleged enquiry in cross-examination and her closing submission, I also have reservation how Mr Lau able to tell the table lamps provided by WTL were of high quality; in any event Mr Lau has no knowledge and no enquiry was done by him as to any of the particulars of the original items referred above, his opinion was of no assistance to the court, I place no weight on it. It is for the Defendant to prove her damage. 172.The only evidence for quantum left was that tendered by the Plaintiff, from the quotation enclosed in Mr Tse’s report for quantum, the replacement cost for 4 new table lamps are HK$3,200, the table lamps sourced by him looked similar to the discarded ones depicted in photographs. It was the Plaintiff’s case that should it be held liable for liability, the quantum should not be more than HK$3,200. Mr Tse stated in his report that there was no second hand table lamp available in the market. Accordingly, the Plaintiff is liable for damages of conversion in the sum of HK$3,200. Mirror cabinets 173.These were fixture of the property and were used items when provided to the Bells. The Plaintiff failed to keep the mirror cabinets in tenantable repair and is liable for the Bells’ negligence, and the replaced wall mirror is not enough to discharge its liability. 174.The Defendant claimed HK$29,250 for the replacement of 3 new mirror cabinets. Mr Tse stated in his report that second hand mirror cabinet was not available for replacement, the replacement quoted by him however in no way close to the style and function of the mirror cabinets in question. 175.In my view the quotation relied on by Mr Lau is more comparable to those provided to the Bells by WTL. For installation of any mirror cabinet, the removal of the wall mirror is necessary; I consider and accept the opinion of Mr Lau. If not for the breach of the Plaintiff, the Defendant would not be required to install new mirror cabinets. Accordingly, I find the Plaintiff is liable for the costs of replacement and incidental removal and delivery/installation costs in the sum of HK$29,250. Timber doors 176.There were all together 8 timber doors included in item 3 of the experts’ Joint Statement. The Plaintiff is only liable for 5 out of the 8 doors discussed by the experts, and this was conceded by the Plaintiff. 177.Mr Lau stated in the Joint Statement that for the 8 timber doors discussed, the total repairing cost being: (1) material costs $2,300, (2) carpenter 5 mandays @HK$1,000 and (3) painter 3 mandays @ HK$900, making a total of HK$10,000. 178.Mr Tse stated in the Joint Statement that for the stain marks, pencil writing (only on inner face of door of the Daughter’s room and repair marks were found on painting of doors of Master Bedroom and the Son’s Bedroom and Bathroom and the Daughter’s Bedroom and Bathroom. The costs for filling up the holes and repainting the surfaces of the 5 timber doors are estimated at HK$3,500 (being 5 doors @HK$700). Having considered the damages as depicted in the photos related to the said 5 timber doors, I consider the opinion of Mr Tse to be fair and reasonable, and I prefer his opinion in this regard. Accordingly, the Plaintiff is liable for HK$3,500 for the 5 timber doors. Curtain rail 179.Mr Tse agreed the Plaintiff is liable for the damage to the Ground floor and dining room curtain rail. That was depicted in photograph 334 of Exhibit P3. 180.Mr Lau stated in the Joint Statement that the repairing cost of the rail is HK$8,000, being 8 mandays @HK$1,000. Mr Hui only submitted that the HK$8,000 repairing cost is reasonable but there was no explanation why 8 days is required to repair the curtain rail. It is noted that Mr Lau also stated his estimated installation cost for the missing internal lighting fittings to be HK$8,000 in the Joint Statement, which again is equivalent to 8 mandays @HK$1,000; and his estimation became HK$2,420 in his report on quantum after he referred to the actual cost spent by the Defendant for the re-installation of some of the light fittings. 181.Mr Tse stated in the Joint Statement that the cost for fixing the damaged curtain guard rail was estimated at HK$1,000, and that would be equivalent to the cost of one manday as quoted by Mr Lau. I consider the opinion of Mr Tse to be fair and reasonable, and I prefer his opinion in this regard. Accordingly, the Plaintiff is liable for HK$1,000 for the damaged curtain rail. Lighting installation 182.The Defendant averred in paragraph 20(vii) of her Re-Re-Amended Defence and Counterclaim that on 3 April 2011that she engaged a builder to re-install 10 lights in the stairwell and 4 ceiling light fixtures. In her Voluntary Particulars of Loss and Damage, the lighting installation is one of the repairing miscellaneous damage under paragraph 1(xi), the total repairing costs of all miscellaneous items being HK$40,000. The Defendant now claimed HK$2,420 for the lighting installation. 183.In the experts’ respective latest report on quantum, Mr Lau estimated the costs to be HK$2,420 while Mr Tse estimated that to be HK$1,700. The Defendant has installed 10 wall lights and 4 ceiling lights on 3 April 2011 which cost her HK$1,200; according to Mr Lau, further installation of the remaining 15 wall lights required HK$1,220 (being the first installation HK$100, the subsequent installation HK$80 each). Mr Tse estimated the installation cost for the wall lights to be HK$60 each. 184.I agree with Mr Hui that the difference between the experts was not much, and taking into account of the actual installation cost spent by the Defendant on 3 April 2011, I consider the estimation of Mr Lau to be fair and reasonable. Accordingly, the Plaintiff is liable for HK$2,420 for the re-installation of the light fittings. The Defendant’s claim for loss of use 185.By paragraph 20 of the Re-Re-Amended Defence and Counterclaim, the Defendant averred that:
186.And further by paragraph 22.1 of the Re-Re-Amended Defence and Counterclaim the Defendant claimed loss of potential rental income for the period of 15th February 2011 to 3 April 2011 (during which time the property was unlivable, as pleaded in paragraph 20 above), amounting to HK$152,000. 187.Mr Hui submitted in his closing submission that the liability would arise if the Court is of the view that the Plaintiff has breached the repair covenants in the Tenancy Agreement and/or committed conversion. The Defendant’s claim was based on her inability to make use of the Property during the claimed period. There were 2 principal reasons why there was loss of use of the Property, namely (i) safety of the property due to the lack of adequate lighting, dangling electrical wires and damaged terraces, and (ii) police investigation. 188.As mentioned above the only breaches were related to minor items which did not affect the use of the property. The discarded table lamps only with residual reduced decoration value, the mirror cabinets were replaced with wall mirror, the defects on the timber doors did not affect the function as doors, the curtain rail is not an essential item, and there were light bulbs installed to the living room, the dining room, kitchen, all the bathrooms and bedrooms, only the staircases were without wall light for temporary measure in my view movable light could be used for safe passage in the staircase area, and installation could be arranged in between the First and the Second Handover. 189.However, it was also the Defendant’s case that the police instructed them not to tamper with the evidence at the scene. The report to the police was triggered by Bells’ removal of the Defendant’s furniture and light fittings, but the complaint of the Defendant was theft of various items of furniture and light fitting, all these were returned on 26 February 2011, with the return of the items, the scene would inevitably be tempered, the Second Handover was fixed to suit Justin’s diary, I failed to see any reason not to arrange the installation of the lighting on or before the Second Handover. 190.In my view the handover related to the tenancy of this fully furnished property only completed on the Second Handover, the Defendant was deprived of the use of many of her furniture and light fittings due to the fault of the Plaintiff, the report to the police is not unreasonable, this prevented the Defendant and Justin to move in the property before the Second Handover. Thus for the period in between the First and the Second Handover, I agree with Mr Hui the Defendant was not able to make use the property; the Plaintiff should compensate the Defendant for loss of use for this period with reference to the monthly rental in February, namely 12 × HK$95,000 ÷ 28 = HK$40,714.30. The Plaintiff’s claim for yellowish water 191.By paragraph 9 and 10 of the Statement of Claim, the Plaintiff averred that:
192.The Plaintiff’s case was based on Mr Bell’s evidence that he had complained about the problem in 2009 when he first met Justin but Justin dismissed the problem as being normal phenomenon for Stanley inhabitants. Further complaints in writing were made in December 2010 and January 2011; one had to turn the tap on 10 minutes every day to get clear water and the situation was worsen after return from holiday. 193.Mr Hui submitted that the implied condition of fitness for habitation would only be breached if there were substantial defects in the drainage, or if the house or any part of it was so infested with vermin as to be a source of serious inconvenience to the occupants, or if there has been recent infectious illness, and the house has not been properly disinfected, but not if there were merely ordinary defects of repair which might be easily remedied (Halsbury’s Laws of Hong Kong (2007 Reissue) Vol. 17(1) at para.235.294.) 194.The problem of yellowish water was only one of the many matters raised by the Plaintiff in the e-mail dated 16 December 2010 (which is referred in paragraph 33 above), in negotiating for a lower rent upon renewal of the Tenancy Agreement and in that e-mail there was no mention that the need for repair of the yellowish water has been informed before. 195.The original tenancy expired on 14 August 2008 and then extended for 6 months between the Plaintiff and WTL. After the sale the Defendant and Justin came around the property in early 2009, according to Mr Bell’s evidence the problem was complained but it is disputed by Justin, in any event with the yellowish water complained and dismissed, the tenancy was extended in February 2009 on the same term, and then further renewed in February 2010, it must have been accepted by the Plaintiff that the rental was justified for the property. 196.Further, as Mr Hui submitted the incoming water pipe was located in the exterior of the property, pursuant to Clause 4(c) of the Tenancy Agreement, the Defendant’s obligation to repair did not arise until a written notice of any want of repair was given by the tenant to the landlord. Therefore, the Defendant would at most only be liable, if any, after a reasonable time after 16 December 2010, not from February 2009 as pleaded. The complaint relied on by the Plaintiff in early 2009 clearly was not in writing. In my view the Plaintiff simply failed to establish its claim under this head or suffered any damage related to the yellowish water complained. Conclusion 197.By paragraph 4 of the Re-Re-Amended Defence and Counterclaim, the Defendant admitted she has refused to return to the Plaintiff the rental deposit in the sum of HK$190,000 but she averred that she was entitled to apply the deposit towards payment of her costs for remedying the Plaintiff’s breaches pursuant to Clause 9 of the Renewed Tenancy, which entitled her to deduct from the said deposit for costs remedying the breach of the Plaintiff of any term and condition of the Tenancy Agreement without prejudice her right to claim for any further damages. 198.For reasons mentioned above, the total damages liable by the Plaintiff are as follow:
As the Plaintiff is only liable for the minor items claimed by the Defendant, even taken into account of their agreement for certain minor items during the trial, in my view the Plaintiff should not be responsible for any insurance contribution for the renovation of the property. 199.Not all the above items related to a breach of the terms and conditions of the Renewed Tenancy, and in any event the total damages liable by the Plaintiff are less that the deposit retained by the Defendant. After setting off the sum liable by the Plaintiff, the Defendant is required to return HK$109,915.70 to the Plaintiff with interest at judgment rate from the date of the Statement of Claim until payment. Costs 200.Much time has been spent on whether there was an oral agreement between WTL and the Plaintiff with the effect that the ownership of the non-listed chattel passed to the Plaintiff before the sale of the property to the Defendant, and the Plaintiff failed on this issue. The Plaintiff also failed to establish its claim for breach of implied condition of fitness for habitation. 201.Likewise much time has been spent on the condition of the property and whether the damages/defects complained by the Defendant were beyond fair wear and tear; and the Defendant failed on all major items. As to the claim for loss of use, the Defendant was only successful for the limited period between the First Handover and the Second Handover. 202.In light of the circumstances of this case, I consider it is appropriate to make no order as to costs. I therefore grant a costs order nisi to be made absolute within 14 days that there be no order as to costs, including all the reserved costs. Order
Miss Winnie Chan instructed by Messrs Joseph P.K. Pang & Co for the Plaintiffs Mr John Hui instructed by Messrs Paynes Clermont for the Defendant | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 3796/2011