YIP KIN HO v. CHAN KWOK LEUNG AND ANOTHER

DCCJ 3203/2021

[2025] HKDC 210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3203 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  On 15 November 2024, after the trial for assessment of damages caused by water seepage that originated from the Defendants’ Property[1] affecting the Plaintiff’s Property[2], I gave Judgment for the Plaintiff for the sum of HK$94,822 (“the Judgment”). I also made an order nisi that save for the costs of the application by the Plaintiff made during the trial to adduce further evidence, the costs of the assessment of damages be to the Plaintiff, such costs to be taxed if not agreed, with certificate for counsel (“the Costs Order Nisi”).

2.  The 1^st & 2^nd Defendants subsequently applied by summons dated 27 November 2024 for an order that the Costs Order Nisi be varied as follows:

(a) The 1^st and 2^nd Defendants do pay the costs of the Plaintiff on a party to party basis on liability up to the date of admission of liability on 1 September 2021;

(b) The costs of these proceedings, including all costs previously reserved (if any), incurred by the 1^st and 2^nd Defendants after 30 September 2021, being the last day on which the Plaintiff could have accepted the sanctioned payment of the 1^st and 2^nd Defendants without leave, be paid by the Plaintiff to the 1^st and 2^nd Defendants on an indemnity basis, to be taxed if not agreed, with certificate for counsel;

(c) The Plaintiff do pay enhanced interest at 3% per annum above judgment rate on the 1^st and 2^nd Defendants’ costs and disbursements (to be taxed on an indemnity basis if not agreed) from 30 September 2021 to 15 November 2024, and thereafter at judgment rate until full payment;

(d) Leave to release the remaining balance of the sanctioned payment together with accrued interest to the 1^st and 2^nd Defendants through their solicitors; and

(e) That the costs of this application be paid by the Plaintiff to the 1^st and 2^nd Defendants on an indemnity basis, to be taxed if not agreed.

3.  As could be discerned from the summons and the affirmation filed in support, the 1^st and 2^nd Defendants are making this application on the basis of the sanctioned payment made by them. There is no dispute that on 1 September 2021, Interlocutory Judgment on liability against the Defendants was entered by consent. On the next day, that is 2 September 2021, the Defendants filed and served their Notice of Sanctioned Payment in the sum of HK$150,000.

4.  The Defendants subsequently filed and served a Notice of Increased Sanctioned Payment on 17 October 2023 for a further sum of HK$91,000, adding up to a total of HK$241,000 in terms of sanctioned payment.

5.  According to the inter-solicitors correspondence produced by the Defendants, the Defendants had subsequently on 22 April 2024 further increased their offer to settle the case up to the amount of HK$300,000, although the time of accepting the sanctioned payment had long expired. This offer was rejected by the Plaintiff.

6.  There is also no dispute that further negotiations had been conducted on the 1^st day of the trial, but to no avail.

7.  The Defendants say that since the Court has now awarded an amount of HK$94,822 as damages, which is an amount way below the sanctioned payments made by the Defendants and the further offer subsequently made, this application should be allowed.

8.  In respect of costs consequences where a plaintiff fails to do better than a sanctioned offer or payment, Order 22 rule 23(2) to (4) of the Rules of the District Court, Cap 336H provides that:

“(2) The Court may by order disallow all or part of any interest otherwise payable under section 49 of the Ordinance on the whole or part of any sum of money awarded to the plaintiff for some or all of the period after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(3) The Court may order the plaintiff to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(4) The Court may also order that the defendant is entitled to—

(a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment or offer without requiring the leave of the Court; and

(b) interest on the costs referred to in paragraph (3) or subparagraph (a) at a rate not exceeding 10% above judgment rate.”

9.  Rule 23(5) provides that where this rule applies, the Court shall make the orders referred to above unless it considers it unjust to do so. Further, under rule 23(6), in considering the order to be made, the Court shall take into account all the circumstances of the case including:

“(a) the terms of any sanctioned payment or sanctioned offer;

(b) the stage in the proceedings at which any sanctioned payment or sanctioned offer was made;

(c) the information available to the parties at the time when the sanctioned payment or sanctioned offer was made; and

(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the payment or offer to be made or evaluated.”

10.  In this case, as expounded in the Judgment, the Plaintiff’s initial pleaded case was for damages in the total amount of HK$800,000, but this was increased to HK$1,345,000 during his testimony, whereas the amount he stated in his witness statement was HK$1,000,000. In any event, for the reasons set out in the Judgment (which I shall not repeat here), only an amount of HK$94,822 was eventually awarded after trial.

11.  The Defendants submit that, first of all, the Plaintiff has failed to do better than the sanctioned payments (which was first made as early as September 2021, and increased in October 2023), and the subsequent offer made by them. Further, they submit that the Plaintiff has always been in the best position to evaluate and assess his claim based on the available evidence, especially when he has all along been represented by his solicitors. At the trial, the Defendants had called no witnesses, and only relied upon their cross-examination of the Plaintiff to attack his case on quantum. Obviously, that succeeded in leading the Court to make its final assessment which is way below the claimed amount. The Defendants submit, which I accept (for the reasons set out in detail in the Judgment), that the claim was largely exaggerated.

12.  The Defendants also seek an order for enhanced interest of 3% above judgment rate, referring to the case of Imran v Intrafor Hong Kong Ltd [2024] 1 HKLRD 1066 at paragraph 12 where Deputy High Court Judge Simon Leung (as he then was) stated:

“12. Extreme cases involving complete lack of merits, untruthful account, egregious character and manifest exaggeration have attracted award by the court of enhanced interest rate near the top end of the range: see for instance Grupo Pacifica Incorporada v Worldwide Marine Product Ltd & Ors[2018] HKCFI 2584 at §§17, 19; Wong Giles v Donowho Simon Christopher & Anor[2020] HKCFI 1053 at §27; Yeung Ho Man v Shum Kin Leung & Anor[2020] HKCFI 2781 at §§17, 23; Angbuhhang Netra Jang v Laing O’Rourke Construction Hong Kong Limited & Anor[2021] HKCFI 232 at §§11-12; Thapa Hari Bahadur v Paramount Engineering & Manpower & Anor[2022] HKCFI 1305 at §11.”

13.  The Defendants submit that as the Plaintiff was only awarded an amount of HK$94,822, which is at the most about 11.85% of the initially claimed amount of HK$800,000. Certain heads of claim were completely disallowed or substantially cut down. It is obvious that the Plaintiff has exaggerated his claim by a large extent, and therefore an enhanced interest rate should be adopted.

14.  The Plaintiff on the other hand submits that firstly, the initial sanctioned payment was made at such an early stage that the Plaintiff had no information from the Defendants concerning assessment of damages. The Defendants have not filed any defence or witness statements, and only provided an expert report dated 6 March 2023 (which was later not relied upon). The Plaintiff was therefore robbed of the opportunity to assess the Defendants’ position.

15.  Further, the Plaintiff submits that notwithstanding I have dismissed his application to adduce further necessary evidence during the trial to prove that he had actually paid a total amount of HK$313,000 to Li Kwan Construction Co for the repair and renovation of his property[3], the Court did have the chance to consider that there were indeed bank documents showing that the Plaintiff had paid the sum to Li Kwan Construction Co, although he admits that he has overlooked to adduce those documents.

16.  It is also submitted by the Plaintiff that the provisions of Order 22 rules 23 and 24 are designed to provide incentive to parties to settle, in order to achieve a fair result, as opposed to being penal in nature, referring to Qvist Henrik v Clatronic Far East Limited and Another [2020] 1 HKLRD 703. In that case, the learned Recorder said at paragraphs 21 and 22:

“21. While I do accept that a defendant should not be required to make a decision whether to accept or to reject a sanctioned offer without a careful review of the case with proper information (and this is made clear by Order 22, rule 24(5)(b) to (d)), it is a question of fact in each case as to whether a defendant is able to do so when the sanctioned offer is made, depending on the nature and complexity of the case and the issues involved. Further, on receiving a sanctioned offer which a defendant considers he is unable to evaluate properly because of insufficient information or evidence, he should seek further information if possible. A balance must be struck between fairness to the defendant in that he should not be required to make a decision whether to accept a sanctioned offer without proper information to assess the merits of the case, and the spirit behind the sanctioned offer regime of encouraging settlement of actions as early as possible. The principle that a defendant ought to be allowed to make a decision with proper information must be applied with circumspection because it is always open to a defendant to say that the proper assessment cannot be made with only the pleadings, without full discovery and the exchange of witness statements. That is, on this argument, it can be said that no sanctioned offer ought to be made or accepted until quite an advanced stage of the proceedings are reached, which would be quite contrary to the whole intent behind the sanctioned offer regime.

22. A defendant ought to make reasonable efforts to settle the matter as early as possible, and a defendant who does not react to an early sanctioned offer at all but simply sits on his hands without attempting to seek any further information required will need to convince the Court that he has not been acting unreasonably.”

17.  Having considered the above principles, and the circumstances of this case, I do not accept the Plaintiff’s submissions.

18.  Firstly, the burden has always been on the Plaintiff to prove the damages suffered. It is neither here nor there as to what the Defendants may have to say about the details of the claimed amount, whether by way of their pleadings or witness statements, as the Plaintiff must have been in the position from the commencement of the action to ascertain his loss and damage. The fact that the Defendant has eventually indicated that they would not rely on the expert report filed on their behalf does not assist the Plaintiff, as no admission or acceptance has ever been made in respect of the Defendants’ expert report. In other words, this is not a case where the Plaintiff would require information from the Defendant before he would be put in a fair position to consider whether to accept the sanctioned payment, or the subsequent increased offer. Further, the Plaintiff’s reference to the negotiations on the first day of the trial does not assist him either, as the offer(s) made had not been accepted in any event.

19.  Secondly, the Plaintiff’s argument that he did seek to produce further documents at the trial concerning the payment of HK$313,000 to Li Kwan Construction Co for the repair and renovation of his property[4] but such application was disallowed is misplaced, as this is an application for variation of the Costs Order Nisi. There is no application for leave to appeal against the Judgment in this regard before me. In any event, as the application to adduce further evidence was dismissed, the documents had not been considered in reaching the Judgment, and should not be re-considered in this application. It has remained the duty of the Plaintiff to make discovery of all relevant documents well before the trial. Obviously, that was not done. It is not fair to the Defendants to allow the Plaintiff to rely on such documents now for the purposes of this application.

20.  For the above reasons, I do not find any reason to hold that it would be unjust to the Plaintiff to make the orders sought. I would allow this application.

21.  As for enhancement of interest, I take note that the court has awarded relatively lower enhanced interest rates despite findings of exaggeration or dishonesty ranging from 4% to 6%, and further lower enhanced rates for less serious cases – see paragraphs 13 to 14 of the Judgment in Imran v Intrafor Hong Kong Ltd. In the present case, I am of the view that 3% above judgment rate per annum should be appropriate.

22.  I therefore vary the Costs Order Nisi and make an Order in terms of what has been set out in paragraph 2 above.

Ms Wendy Lau Chui Ling, instructed by Bill Tong & Co, for the Plaintiff

Mr Kevin Wong Cheuk Hei, instructed by Lo, Wong & Tsui, for the Defendants

DCCJ 3203/2021

[2024] HKDC 1923

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3203 OF 2021

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JUDGMENT

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INTRODUCTION

1.  This is the trial for the assessment of damages caused by water seepage that originated from the Defendants’ property situate at Flat C on 20^th Floor of Tower 2, Tai Hing Garden Phase I, No 11 Tsun Wen Road, Tuen Mun, Hong Kong (“the Defendant’s Property”), which affected the property of the Plaintiff situate at Flat C on 19^th Floor of Tower 2, Tai Hing Garden Phase I, No 11 Tsun Wen Road, Tuen Mun, Hong Kong (“the Plaintiff’s Property”).

2.  Interlocutory Judgment on liability against both defendants was entered by consent on 1 September 2021.

THE PLAINTIFF’S CLAIM

3.  Insofar as the Plaintiff’s pleaded case is concerned with particulars of the water seepage, it is alleged that on 23 February 2019, the Plaintiff observed there was water seepage at the structural ceiling at the Plaintiff’s Property. Upon referring the matter to the management office of the building, a report was made to the Joint Office of the Buildings Department and Food and Environmental Hygiene Department (“the Joint Office”).

4.  An inspection was then carried out by the Joint Office on 13 March 2019, followed by a water ponding test at the Defendant’s Property. Dye additives were applied during the ponding test but the source of the water seepage could not be identified.

5.  On 13 March 2020, the Joint Office informed the Plaintiff that they had appointed one Modern Testing Consultants Ltd to conduct further inspections and water ponding test at both the Plaintiff’s Property and the Defendant’s Property. The Plaintiff’s case is that upon such further inspection and testing, it was found that the source of the water seepage was at the Defendant’s Property, due to, in particular, the deteriorated waterproofing of floor slabs or bathtub sealants. The Joint Office thus issued a Nuisance Notice to the Defendants on or about 2 June 2020, requesting the Defendants to undertake remedial works pursuant to section 127(1) of the Public Health and Municipal Services Ordinance, Cap.132.

6.  There is no dispute in this case that the Defendants did undertake remedial works thereafter.

7.  On 13 November 2020, the Joint Office informed the Plaintiff that as the Defendants had complied with the Nuisance Notice, and that the water seepage has stopped upon inspection on 21 October 2020, the Joint Office would not follow up on the matter any further.

8.  On the basis of the above facts, the Plaintiff thus claims against the Defendants for negligence, nuisance and/or breach of statutory duty under Section 34H of the Building Management Ordinance, Cap 344.

9.  In his Statement of Claim, the Plaintiff claims for HK$800,000 as damages for the cost of repair and renovation, replacement of damaged items, rental incurred during the period of renovation, and medical expenses for the Plaintiff and his family. On the Further and Better Particulars of the Statement of Claim provided by the Plaintiff on 10 August 2021, the items of claim can be summarised as follows:

Item	Amount
Repair, renovation and/or re-decoration of the following damage of the Plaintiff’s Property: (i)  Extensive cracking hollowing, blackening and spalling of render and concrete at the ceiling and the walls of the bathroom, the corridor and the master bedroom;   (ii)  The exposure of reinforcing bars as well as the electricity cords at the ceiling and the walls of the bathroom, the corridor and the master bedroom; and   (iii)  The collapse of the false ceiling at the bathroom.	HK$313,000
Replacement of the damaged items in the Plaintiff’s Property, namely furniture and electric appliances.	HK$345,000
Rental payment for residing at a flat rented at Hong Kong Gold Coast during the period of renovation from April to July 2020 at a monthly rental of HK$23,000.	HK$92,000
Medical expenses for the Plaintiff and his family.	HK$50,000
TOTAL:	HK$800,000   =========

10.  Thereafter, as mentioned above, by consent, Interlocutory Judgment on liability was entered against the 1^st and 2^nd Defendants, with damages to be assessed.

THE PLAINTIFF’S EVIDENCE

11.  At the trial, the Plaintiff himself testified, confirming his case set out above, save that he then went on to say that his claim should be increased to HK$1,345,000 with particulars set out in a letter dated 30 March 2022 from his solicitors to the Defendants’ solicitors, the difference being represented by two additional items of claim, namely:

(i)  “Mental/psychological disturbances” of the Plaintiff and his family members, in the sum of HK$270,000; and

(ii)  Reduction in the value of the Plaintiff’s Property, being 5% of the market value, in the sum of HK$275,000.

12.  However, the Plaintiff further mentioned in his witness statement dated 10 July 2023, which he adopted as part of his evidence, that his claim should now be HK$1,000,000. However, he has not sought to explain how the amount of his claim should be adjusted to HK$1,000,000. He also refers to the valuation report dated 10 May 2021 produced by the building surveyor appointed by him, Mr Leung Ka Chun of Silver Consultants Engineering Ltd, who estimated the costs of repairs and renovation, including the costs of related insurance and safety measures involved in the repair works, to be in the sum of HK$165,504.80. He also seeks to claim for the cost of the preparation of the valuation report in the sum of HK$50,000.

13.  I should however also mention at the outset that in both her opening submissions and closing submissions, Ms Lau for the Plaintiff argued that the Plaintiff’s claim should now be further adjusted to HK$1,650,000 instead. I shall return to this in due course, suffice for me to say at this stage that the further adjustment includes an increased sum of HK$520,000 (instead of HK$270,000) for the item of “mental/psychological disturbances”, and a further sum of HK$55,000 being the fees of the Plaintiff’s expert. For the latter, the Plaintiff subsequently and rightly accepts that this should be an item of costs and should not form part of the claim for damages.

THE PLAINTIFF’S EXPERT

14.  As mentioned above, the Plaintiff also called Mr Leung Ka Chun (“Mr Leung”), a building surveyor and managing director of Silver Consultants Engineering Ltd. In his report dated 10 May 2021, Mr Leung based his assessment on visual inspection and on the Nuisance Notice issued by the Joint Office on 2 June 2020, and recommended that the follow works should be undertaken:

Item	Nature of repair work
1.	Cut away the concrete structures in the areas affected by the leakage in the bathroom, corridor and master room ceiling of the unit to the depth of the steel bars.
2.	Carry out anti-rust work for the steel bars. If the steel bars are seriously damaged (that is, the cross-section area of the steel bars was reduced by 10%) or broken, they need to be replaced or new steel bars would need to be added.
3.	To use “Renderoc HB25” or similar materials to repair the cutouts.
4.	Re-patching and re-painting the affected parts of the walls.
5.	It was also recommended that a contractor be engaged to inspect and repair the electrical system.

15.  For undertaking the above works, including the cost of related insurance cover, Mr Leung opined that a total sum of HK$165,504.80 would be required as particularised in his report.

THE DEFENDANT’S CASE

16.  The Defendants have not called any witness at the trial. Mr Wong for the Defendants indicated that the Plaintiff is put to strict proof of the amounts claimed, and the Defendants no longer rely on the expert report of Hong Kong Survey Limited dated 6 March 2021 that has been included in the trial bundles.

17.  The Defendants also take issue with the Plaintiff’s claim for “mental/psychological disturbances” and reduction in the value of the Plaintiff’s property as mentioned above, on the ground that such heads of claim do not form part of the Plaintiff’s pleaded case.

DISCUSSION

Nuisance/“Mental/psychological disturbances”

18.  Although a claim for nuisance has been pleaded in the Statement of Claim, there is no particular head of claim for “mental/psychological disturbances” pleaded. For the amount now purportedly claimed by the Plaintiff in the sum of HK$520,000, according to the Plaintiff, such amount is arrived at by adopting a yearly amount of HK$90,000 for a total of 6 years[1]. This sum, according to the Plaintiff’s submissions, represent his claim for nuisance, although it is also described as a claim for “mental/psychological disturbances”.

19.  The starting point is that a party’s case should be defined by his pleadings, and one cannot add new claims without seeking first to amend his pleadings. It is trite that an opposite party should be given to know the exact case he has to meet, and what the issues are. In this respect, the Defendants rely on Kwok Chin Wing v 21 Holdings Ltd and Another (2013) 16 HKCFAR 663 where Ma CJ said at paragraphs 21-22:

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-

“(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.”

22. …… one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings ……”

20.  Considering the pleaded case of the Plaintiff, it is obvious that there is no such head as “mental/psychological disturbances”. Neither is this item included in the Further and Better Particulars of the Statement of Claim. The Plaintiff is not allowed to go beyond his pleaded case and introduce by way of a letter from his solicitors an item that has not been included in the pleadings.

21.  I accept, however, that a claim for general damages for nuisance has been pleaded. It is only on that basis that I shall consider the evidence and decide on the appropriate award.

22.  In Lam Ting Kwan & Another v Teamwell Corporation Limited, DCCJ 17 of 2016, 26 November 2019; [2019] HKDC 1593, HH Judge Andrew Li said at paragraph 141:

“In my judgment, the damages should reflect the length, the degree and the extent of the water seepage. It should also reflect the lack of response and action on the part of the defendant over the years because they have aggravated the distress, inconvenience and discomfort experienced by the affected party…”

23.  In that case, the period of the nuisance lasted for 8 years, during which time the plaintiff had to use containers and buckets to catch water leakage within the shop premises affected by it, and that the unsightly scene of plastic covers and buckets had affected the business image of the plaintiff. The continuous seepage of water had also affected the enjoyment of the plaintiff’s property. The learned judge awarded an amount of HK$100,000 as general damages for nuisance.

24.  The present case is much less serious. There is in fact scant evidence from the Plaintiff describing the effect of the water leakage on himself and his wife. The extent of the damage caused to the Plaintiff’s Property can only be discerned from the photographs attached to the Plaintiff’s expert report, and the description of such damage predominantly in the report and the Nuisance Notice. From the photographs made available, it could be seen that there were indeed cracks and dampened patches on the ceilings and walls of the bathroom and the corridor. There is no evidence of water dripping necessitating the use of buckets to hold the water as in the case of Lam Ting Kwan.

25.  Also, the undisputed case of the Plaintiff is that the water leakage was first discovered in February 2019, and remedial works were then carried out by the Defendants after they had received the Nuisance Notice in June 2020, and the water leakage has already ceased by the end of October 2020.

26.  In another case referred to by the Plaintiff, namely Yeung Chiu Wing & Another v Ho Chi Ming, DCCJ 3244 of 2015, 17 November 2017, Deputy District Judge SP Yip, there was seepage of water causing paint to peel off at the ceilings of the balcony, toilet and kitchen of the plaintiffs’ flat since August 2014. There was also a foul odour casued by the water seepage. The court awarded HK$50,000 as general damages for inconvenience and discomfort, where the nuisance has not yet abated by the time of the Judgment in November 2017 (i.e. more than 3 years), and that a mandatory injunction was granted requiring the defendant to carry out all necessary repairs or remedial works.

27.  In the present case, there is no complaint of odour as in the case of Yeung Chiu Wing, and the water seepage has ceased approximately 20 months after the time when it was first discovered.

28.  Considering the above, given the fact that there is little evidence from the Plaintiff as to the inconvenience caused, in my judgment, I am of the view that an award of HK$10,000 representing a conventional sum would be appropriate as general damages for nuisance.

Reduction in value of the Plaintiff’s Property

29.  In her final submissions, Ms Lau for the Plaintiff has not further dealt with or explained to the court the proper basis of the claim for a reduction in the market value of the Plaintiff’s Property.

30.  In fact, there is no factual or expert evidence showing that the water seepage problem has caused such an alleged reduction in value. I therefore decline to make any award for this head of claim.

Repair, renovation and/or re-decoration

31.  The Plaintiff claims for HK$313,000 under this head, being the alleged actual amount spent, while the Plaintiff’s expert has stated in his expert report dated 10 May 2021 that the estimated amount for renovation and repair was $165,504.80.

32.  From the documents provided by the Plaintiff, there is a quotation from Handmade Interior Design Workshop Limited (“Handmade Interior”) and 2 receipts in the amounts $66,360 and $36,240 respectively, totalling HK$102,600. There are also bank transfer records to reflect the transfers of the two sums on 4 June 2021 and 20 July 2021 respectively to Handmade Interior.

33.  In cross-examination, the Plaintiff confirmed that items 5.1 to 5.3 of the quotation from Handmade Interior concerning furniture in the living and dining rooms are not related to the water seepage claim. These items, amounting to HK$40,425, should not be included in this claim.

34.  The same would apply to item 2.3 concerning the painting of the walls and ceilings of the dining room, the entrance door and the corridor, as there is no evidence to suggest that these areas were damaged by the water seepage. As such, on a mathematical discount, I agree with the Defendants’ contention that at least HK$8,333 should be taken out from the total amount of HK$25,000 for items 2.1 to 2.3 related to paining of the walls and ceiling. The total amount that the Defendants should be liable for is thus HK$53,842 (i.e. HK$102,600 - HK$40,425 – HK$8333) under this quotation paid for by the Plaintiff.

35.  The Plaintiff has also produced a quotation from Li Kwan Construction Co (利君工程公司) (“Li Kwan”) for $258,000, and a hand-written receipt dated 5 January 2022 showing the same amount. However, the Plaintiff has not produced any other documentary evidence of the actual mode of payment or transfer of the sum to Li Kwan, although the quotation from Li Kwan did refer to the name of the addressee if payment was to be made by cheque, or the bank account number of the bank account of Li Kwan held at the Bank of China, if payment was to be made by bank transfer.

36.  Further, the quotation from Li Kwan also stated that the total fee of HK$258,000 was to be paid in 3 instalments, that is 40% for the initial stage, 40% for the interim stage and the remaining 20% for the final stage. When being cross-examined, the Plaintiff alleged that he had made 3 payments according to the quotation, two of which were by cheque and one by bank transfer. However, no such documentary evidence has been produced by him as he did for his payments made to Handmade Interior. On the contrary, only one receipt for the entire amount of HK$258,000 was produced, which did not refer to 3 separate payments.

37.  In light of that line of cross-examination, it was not until the Plaintiff and Mr Leung (the Plaintiff’s expert)have completed their evidence that the Plaintiff then took out a summons dated 25 April 2024 for leave to file new evidence of three separate payments made by Ng Shan Shan to Li Kwan. This was objected to by the Defendants. After hearing the parties, I disallowed the application and awarded costs on an indemnity basis to be paid by the Plaintiff to the Defendants, to be taxed if not agreed. The primary reason for my dismissal of this extremely late application was that the Plaintiff had all along been legally represented, and it is not an excuse for the Plaintiff to explain the delay in disclosing the payment records by relying on the fact that he is a “layman” and was not experienced in litigation. The late disclosure of the documents would almost certainly disrupt the trial, not to mention that such disclosure is made after completion of the witnesses’ testimony. The Defendants would definitely require time to consider the new documents, and if necessary make applications for further discovery or lay interrogatories. Further witness statements may be required. The evidence will have to be re-opened and the trial will have to be adjourned. Time, costs and judicial resources will be wasted and these are against the objectives of the Civil Justice Reform. All these will impose an unfair burden and cause prejudice to the Defendants. Although the Plaintiff submitted that the overall consideration should be that of the justice of the case, after balancing the considerations, I decided to take a robust approach and disallowed the application. As Wilson Chan J has said in Tao Soh Ngun v HSBC International Trustee Limited, HCA 3246 of 2016 & HCA 355 of 2018, 14 November 2018; [2018] HKCFI 2543 at paragraph 6(5)[2], if the new evidence sought to be adduced at a late stage could derail the trial dates or prolong the trial beyond the time allocated for the case, the court may refuse leave, even if that means the applicant would have great difficulties in establishing his case.

38.  Going on to other points, when being cross-examined on the invoice dated 1 May 2021 and the receipt dated 5 May 2021 issued by Li Kwan for preparation of the expert report for the Plaintiff, the Plaintiff has confirmed that he did not contact Silver Consultants Engineering Limited himself, but it was through his friend, who was the proprietor of Li Kwan. In this respect, the Defendants highlighted to the court that when the expert, Mr Leung gave evidence, he confirmed that the correct professional fees received by Silver Consultants Engineering Limited should be HK$20,000 for preparing the report and HK$16,000 for attendance at the trial, which is obviously below the invoiced amount of HK$55,000 by Li Kwan. As a starting point, therefore, the Defendants submitted that this casts doubt on the credibility or reliability of the evidence coming from Li Kwan, including its quotation. The Plaintiff also said this receipt might have been a re-issued one but proffered no further explanation for that.

39.  As for the contents of the quotation, the Defendants pointed out that a number of items related to the floor slab, washing basin and the water faucet, as well as examination of the external wall are not relevant to the damage caused by the water seepage, as the expert report of the Plaintiff has not referred to these items.

40.  Also, the quoted fee of (i) HK$8,500 by Li Kwan for the costs of insurance for a project that, according to the expert, should last for 15 to 20 days with 5 workers, and (ii) that for clearance and cleaning of dirt and garbage in the sum of HK$38,000 are much higher than the costs estimated by the Plaintiff’s expert (ie HK$2,000 and HK$3,000 respectively).

41.  The Defendant also highlighted that the Plaintiff’s expert has commented that it was not necessary to submit the work plans to the government for this project, whereas Li Kwan has quoted (and allegedly received as part of the payment) for HK$60,000 for this item.

42.  The Defendants also pointed out that the receipt issued by Li Kwan for the alleged repair works (No 2174849), the receipt for the costs of the expert (also issued by Li Kwan) (No 2174843), and the receipt dated 8 August 2021 for the Plaintiff’s purchase of furniture from one “Fuji Square” (No 2174845)[3] are not only identical as to format and layout, but are also in sequentially close numbering. This, the Defendants say, would cast serious doubt on the reliability of such receipts. The claim by the Plaintiff that they just happened to be in such numbering is not believable.

43.  For the reasons stated above, I do not accept that the quotation and receipt issued by Li Kwan as reliable evidence of the Plaintiff’s claim. As such, the amount I would allow under this head is HK$53,842 as mentioned in paragraph 34 above, and a sum of HK$5,000 for taking out necessary insurance and for clearance of dirt and garbage as mentioned in paragraph 40 above, totaling HK$58,842.

Replacement of damaged items

44.  The Plaintiff claims $345,000 under this head, but as the Defendants stated, he has produced very limited evidence on such a claim.

45.  First of all, the Plaintiff merely mentioned that furniture and electric appliances were damaged in his pleaded case without providing further details. Neither did he set out the details of such purchases in his witness statement, not to mention any account of the extent of the damage caused to such items that were required to be replaced.

46.  The Plaintiff has merely provided a hand written receipt dated 8 August 2021 issued by “Fuji Square” mentioned above, for a lump sum of $242,400 without particulars. As the Defendants have pointed out, if the Plaintiff had truly purchased $242,400 worth of furniture in one go, surely there will be some other evidence such as credit card statements or bank statements or other payment records to reflect the same. The Plaintiff has not produced any other supporting documents save for the hand-written receipt.

47.  The Defendants further pointed out that under the quotation issued by Handmade Interior, furniture has already been included under items 5.1 to 5.5. Apparently, the Plaintiff is seeking to double claim for the alleged need for replacement of furniture.

48.  As such, I do not accept the alleged payment to Fuji Square as part of the damages suffered by the Plaintiff.

49.  There is also a photograph showing a receipt dated 26 July 2021 issued by “IKEA” which the Plaintiff claims is for the purchase of a replacement wardrobe. One cannot tell from the receipt if this was really for a wardrobe, but in any event, according to the Plaintiff’s expert, the wardrobe was still in a usable condition. As such, the Plaintiff ought not to be allowed this item.

50.  For electric appliances, the Plaintiff produced a receipt from Shun Hing Electronic Trading Co, Ltd for the sum of HK$2,980 for the purchase of a replacement thermal ventilator. The Defendants do not dispute this item.

51.  By reason of the foregoing, I will therefore only allow a sum of HK$2,980 under this head of claim.

Rental payment during the period of renovation

52.  The Plaintiff claims for $92,000 under this head, being four months’ rental at HK$23,000 per month from April to July 2020 because of the need to move out from the Plaintiff’s Property during the period of repair and renovation, to reside in Flat D, 25/F, Block 6 of Hong Kong Gold Coast.

53.  A letter addressed to someone named Ms Ng Shan Shan, who the Plaintiff said in cross-examination is his wife, from  Sino Real Estate Agency Limited dated 6 July 2021 shows the payment of HK$23,000 per month from April to July 2021 (instead of 2020 as claimed.)

54.  The period covered in the said letter does not tally with the period claimed by the Plaintiff in his pleaded case. The Plaintiff explained that this was due to a clerical error in his Further and Better Particulars of the Statement of Claim. In any event, the Defendants says that the Plaintiff’s own expert has estimated that the renovation and repair should last only about 15 to 20 working days. Thus, even if this head of claim is allowed, the claimed amount should not be allowed in full.

55.  Also, when questioned that there were in fact other flats near his own estate that was asking for a monthly rental of HK$17,000 only, the Plaintiff replied that such flats were not available for short-term rental. I accept that explanation from the Plaintiff.

56.  Whilst I accept that the Plaintiff would have needed to secure alternative residence during the period of the repair works, I am of the view that this ought not to be for a period exceeding one month, to be consistent with the time estimated by the Plaintiff’s expert for the repair works. Obviously the alleged repairs and renovations discussed above covered more than what was considered necessary by the Plaintiff’s own expert. As such, I would only allow an amount of HK$23,000, being rental for 1 month, under this head.

Medical expenses for the Plaintiff and his family

57.  I have already dealt with the head of claim for nuisance above. Other than that, as the Defendants have pointed out, there is no medical evidence to prove that the Plaintiff or his wife has suffered any medical condition by reason of the water seepage problem.

58.  The receipts and prescriptions for Chinese medicine produced by the Plaintiff do not support the Plaintiff’s claim in terms of causation. Neither do the several receipts issued by the HKSH Healthcare (Central) Limited spanning from 10 June 2021 to 10 August 2021 issued to Ng Shan Shan showing a diagnosis of “Urticaria” (a skin condition) upon her medical consultation thereat prove that she has suffered such condition as a result of the water seepage problem. In my view, the Plaintiff’s claim under this head does not take off the ground. I would disallow his claim under this head.

Other miscellaneous receipts

59.  For completeness, I should also mention that there are other miscellaneous receipts produced by the Plaintiff[4], but the Plaintiff has not sought to explain the receipts himself, which were not issued to him nor his wife, but to a Mr Lo, Marko Liu or Mr Liu, the names of whom correspond with the responsible persons whose names appear at the top of the quotation issued by Handmade Interior. Despite this, there is no evidence from the Plaintiff explaining that these receipts were additional to the items already included under the quotation issued by Handmade Interior. As the Defendants have pointed out, Item (9) of the terms of the quotation reads:

“The materials included are designated by our company. If the owner has special request which go beyond our quotation, the owner has to pay for the reasonable price difference.”

60.  As I have mentioned, there is no evidence coming from the Plaintiff explaining whether these were items that he had paid for in addition to the sum paid to Handmade Interior under its quotation. In the circumstances, I will not allow the sums under these miscellaneous receipts additional to what had been paid to Handmade Interior under its quotation.

JUDGMENT

61.  For the above reasons, I would allow the following amounts of the Plaintiff’s claim:

General damages for nuisance	HK$10,000
Cost of repair and renovation	HK$58,842
Replacement of damaged item	HK$2,980
Rental incurred	HK$23,000 __________
TOTAL:	HK$94,822 =========

62.  I therefore give judgment for the Plaintiff in the sum of HK$94,822. Interest is awarded on the judgment sum at half judgment rate from the date of the issue of the writ until the date of this Judgment, and thereafter at judgment rate until payment.

63.  Save for the costs of the application by the Plaintiff made during the trial to adduce further evidence, I make a costs order nisi that the costs of the assessment of damages be to the Plaintiff. Such costs shall be taxed if not agreed, with certificate for counsel. This order nisi shall become absolute after 14 days from the date hereof.

64.  Lastly, I thank counsel for their assistance.

Ms Wendy Lau Chui Ling, instructed by Bill Tong & Co, for the Plaintiff

Mr Kevin Wong Cheuk Hei, instructed by Lo, Wong & Tsui, for the Defendants