WONG CHI WING v. WONG SIU WA

DCCJ 493/2023

[2024] HKDC 2035

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 493 OF 2023

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BETWEEN

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ASSESSMENT OF DAMAGES

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A. Introduction

1.  This is the hearing for an assessment of damages instigated by the Plaintiff (“P”) against the Defendant (“D”) pursuant to the order of Master B Mak dated 31 July 2024.

2.  P had entered judgment on liability against D on 25 July 2023.

3.  There is an affirmation of service before me indicating the relevant notice, orders, hearing bundle and P’s submissions have been duly served. I am satisfied that D has been notified of today’s hearing. I shall proceed in D’s absence pursuant O. 35, r. 1 of the Rules of the District Court, Cap 336H.

B. Background

4.  The following background is salient:-

(a) The underlying dispute pertains to water seepage.

(b) P was and still is the registered owner of Shop 16 on G/F, Kwan Tak Building, Nos 13-17 & 21-25 Yuen Long Hong Lok Road, Nos 2020 Hong King Street, Yuen Long, New Territories (“Shop 16”). There is a cockloft (“Cockloft”) inside Shop 16.

(c) D was and still is the registered owner of Flat O and P on 1/F Kwan Tak Building (“Flat O” and “Flat P” respectively). Flat O and Flat P are directly above the Cockloft.

(d) P claims there has been persistent water seepage from Flat O and Flat P into the Cockloft. P had tried to fix the water seepage by hiring a renovator in around February 2022. However, the renovator could not carry out the requisite work due to the severity of water seepage.

(e) Subsequently, P engaged Mr. Stewart Wong (“Mr. Wong”) of Proficient Surveyors & Co Ltd to carry out inspections and locate the source of water seepage. Mr. Wong made a report on 9 September 2022 (“Expert Report”). The Expert Report confirmed water was seeping from Flat O and Flat P into the Cockloft.

(f) P commenced the present action on 9 February 2023 after failed attempts to contact the owners of Flat O and Flat P.

(g) The water seepage abated to some extent in September 2023. P swiftly conducted remedial works in the Cockloft in around mid-October 2023.

(h) Mr. Wong adduced a further report dated 30 April 2024 (“Updated Expert Report”). The Updated Expert Report adopts the Expert Report in its entirety, and makes some further findings on quantum of damages. P was permitted to adduce the Updated Expert Report without calling Mr. Wong pursuant to the order of Master B Mak dated 31 July 2024.

C. P’s Claim

5.  P seeks an assessment of damages in regards to the following:-

(a) Costs of reinstatement works to remedy the damage caused by water seepage into the Cockloft.

(b) Consequential loss of rentals.

(c) Costs of engaging Mr. Wong to investigate the cause of water seepage.

C1.Revised Reinstatement Works

6.  P claims the following remedial works and revised reinstatement works:-

(a) Temporary remedial work.

(b) Removing debris.

(c) Cleansing rust in the reinforced bars, applying anti-rust primer onto the rebars, filling cementitious repair mortar to level the ceiling.

(d) Replastering and repainting.

(e) Third party insurance.

(f) Cleaning.

7.  This head of damages is well-established in assessment for damages caused by nuisance: see for example Lee Ling Ling Lilian v Cheng Koon Fu[2024] HKDC 1152 at §14 (per Master Chiang) and 886HK Limited & Another v Amja Nadeem[2018] HKDC 405, §9 (per HHJ MK Liu – as he then was).

8.  P has fairly acknowledged in his written submissions that he cannot double-count items that overlap. He has retracted the same. He has also retracted the costs of future remedial work. As such, the revised amount totals HK$332,980. The revised items as above appear reasonable, and are supported by Mr. Wong’s Updated Expert Report. I shall allow the same in full.

C2.Consequential Loss of Rental Income

9.  P claims lost rental income totalling HK$458,260 (being 20.83 months at a rate of HK$22,000 per month). This was during the time when the Cockloft was forced to be left vacant up until the temporary remedial works were completed.

10.  Loss of rental income is recoverable as damages consequent upon the injury caused by nuisance: see Gwong Leung Property Holdings Ltd v 黃國才 (Wong Kwok Tsoi) [2022] HKDC 946, §21 (per Master M Lam), and China Fair Land (Qingdao) Limited v Lo Sum Sum[2024] HKDC1579, §§24-49 (per DDJ I Chan)

11.  Mr. Sit has referred me to a number of photos. These photos show extensive damage from the water seepage. P also gave evidence the water seepage was severe and persistent. Having perused the materials and hearing Mr. Sit’s submissions, I accept the Cockloft could not be rented during this time. I shall allow the same in full.

C3.Costs of engaging Mr. Wong

12.  P claims for HK$15,000 for engaging Mr. Wong to investigate water seepage. This is recoverable as reasonable investigation costs pursuant to Fong Yuen Tung Nicole v Pong Yuen Kong[2024] HKCFI 1061, §§15-16 (per Master P Siu). I accept that engaging in Mr. Wong was a reasonable step to take. I allow the same in full.

13.  I order that costs follow the event. P has submitted a summary assessment of costs dated 20 November 2024. I consider the items and amounts are generally reasonable. Taking a broad-brush approach, I would summarily assess at $115,000.

D. Conclusion and Disposition

14.  In light of the above, I order that:-

(a) D shall pay the sum of HK$806,240 to P with interest thereon at the best lending rate of HSBC plus 1% from the date of the Writ of Summons (that is, 9 February 2023) until the date of this judgment and thereafter at judgment rate until full payment.

(b) D shall pay P the costs of and occasioned by assessment of damages, including today’s hearing, summarily assessed at HK$115,000, with certificate for counsel.

15.  I thank Mr. Sit for his able assistance.

Mr. Bache Sit, instructed by C F Lee & Co, for the Plaintiff

The Defendant was not represented and did not appear

DCCJ 493/2023

[2023] HKDC 1143

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 493 OF 2023

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DECISION

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BACKGROUND

1.  By an inter partes summons filed on 18 May 2023, the plaintiff is seeking default judgment against the defendant, pursuant to O.19, r.7 of the Rules of the District Court. The plaintiff is claiming against the defendant for mandatory injunctive relief and damages for loss and damages arising from water seepage allegedly originating from the defendant’s flat.

2.  The plaintiff is the owner of shop 16 on the ground floor of Kwan Tak Building, Nos 13-17 and 21-25, Yuen Long, Hong Lok Road, Nos 2‑20 Hong King Street, Yuen Long, New Territories. At all material times, shop 16 was horizontally subdivided into two individual units, the lower one being a unit with shop front and the upper one being a cockloft.

3.  The defendant is the owner of flat O and flat P on the 1^st floor of the same building. The defendant’s flats are used by the defendant’s tenant to run a short-stay hotel known as Lok Kun Villa (樂宮別墅 / 樂宮賓館). The defendant’s flats situate directly above the plaintiff’s cockloft.

4.  In or around 2018, the plaintiff discovered signs of water seepage into the cockloft. Water was seen dripping from the ceilings of the cockloft, causing extensive water stains and mould with dampness in the premises. The plaster on the ceilings and the walls of the cockloft have bulged and peeled off because of the moisture. Some parts of the ceilings have been corroded to the extent of exposing the reinforced steel bars. The plaintiff left the cockloft vacant since February 2022 because of the water seepage problem.

5.  It is pleaded in paragraph 7 of the statement of claim that the plaintiff has engaged building surveyors of Proficient Surveyors & Co to carry out inspections of flat 1O and flat 1P on 27 June 2022 and 12 July 2022 with the permission of the defendant’s tenant. The result of the tests showed that the water seeping into the cockloft was fresh water and the source of water seepage was from flat 1O and flat 1P.

6.  The plaintiff’s surveyor also found the water proofing membrane on the floor of the bathrooms and/or kitchen in flat 1O and flat 1P was defective and there was water leakage from fresh water pipes inside flat 1O and flat 1P.

7.  The plaintiff has made repeated complaints against the defendant but the defendant has failed to take any effective measure to abate the water seepage. Therefore, the plaintiff commenced the present action relying on the following three causes of action:

(a)  negligence;

(b)  breach of DMC; and

(c)  nuisance.

LEGAL PRINCIPLES

8.  It is trite law that the court cannot receive any evidence but can only give judgment according to the pleadings of the plaintiff in determining an application for default judgment under O.19, r.7 (Hong Kong Civil Procedure 2023, Volume 1, paragraph 19/7/11).

9.  The plaintiff cited Ma Tor Fuk Dick and Yip Wai Ling v Wong Kwok Wah, DCCJ 2183/2015 (unreported), 29 January 2016 and Victory Success Trading Limited v Cheung Kin Ying, DCCJ 714/2020 (unreported), 4 September 2020, as authorities in support that the court may make order against the defendant to carry out repairs and remedial work to stop water seepage in a default judgment application.

DISCUSSION

10.  I am satisfied that the plaintiff has established his case against the defendant of an alleged water seepage case. According to the pleadings, the source of water has been confirmed by the building surveyor engaged by the plaintiff.

11.  I am also satisfied that the plaintiff has established that the defendant has been in breach of his duty to properly maintain his properties to avoid water seepage to the property of the plaintiff.

12.  The defendant is in breach of clause 9 of the DMC by allowing his flats to be the source of water seepage, adversely affecting other occupiers of the building like the plaintiff. As such, the water seepage caused by the defendant constituted private nuisance.

13.  The plaintiff has also established he has suffered loss and damages as a result of the aforesaid breaches of the defendant.

CONCLUSION

14.  For the above reasons, I make the following order:

(1)  Judgment in default of defence to the plaintiff’s claim as stated in the statement of claim herein be entered into against the defendant in the following terms:

(a)  A mandatory injunction that the defendant shall take measures to abate the nuisance and prevent further water seepage from his flat 1O and flat 1P to the plaintiff’s cockloft.

(b)  An order for damages to be assessed against the defendant as per paragraph 16 of the statement of claim.

(2)  The costs of this action in relation to liability issue, including costs of this application with certificate for counsel, be to the plaintiff in any event to be taxed if not agreed.

Mr Bache Sit, instructed by C F Lee & Co, for the plaintiff

The defendant was not represented and did not appear