Tsang Hing Fung And Another v Miu Yin Chi Paul

DCCJ4017/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4017 OF 2001

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JUDGMENT

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1. The Plaintiffs are the registered owners of the premises known as Flat C on 9th Floor of Block 1 together with Car Port No. 70, Welcome Gardens, No. 39 Broadcast Drive, Kowloon, Hong Kong. By a Tenancy Agreement dated 16th September 1997 written in Chinese, the Plaintiffs as landlords let the flat and the car-parking space to the Defendant for a term of 2 years commencing from 1st October 1997 to 30th September 1999 at a rent of HK$22,000 per calendar month exclusive of rates and management fees payable in advance on the first day of each and every calendar month.

2. The Defendant is an architect by training. He works as an in-house architect for one of the two electricity companies in Hong Kong. He rented the premises as a residence for himself and his family, comprising his wife and two children who were 2 years old and 3 months old at the material time. According to the Defendant whose evidence in this regard I accept, starting from early January 1998, water began to drip or leak from the ceiling of the flat during or after rainfall. This resulted in several complaints made by the Defendant to the first-named Plaintiff (Mr. Tsang) over the telephone. In fact, the leakage problem was not restricted to Flat 9C which is situated on the top floor of Welcome Gardens. Similar leakage problems were also discovered in Flat A, Flat B and Flat D on the same floor. A neighbouring flat owner actually complained to the Incorporated Owners of Welcome Gardens about the problem. And the matter was discussed in a meeting of a management sub-committee of the Incorporated Owners on 20th February 1998. The sub-committee agreed that the leakage problem in the top floor flats was due to the want of repair of the main roof of the building, and agreed that immediate remedial action should be undertaken. But before it would recommend the Incorporated Owners to do so, it had to clarify the ownership of the roof first. So nothing was done in the meantime to alleviate the leakage problem. The problem in Flat C deteriorated in around the end of April and beginning of May 1998 when the raining season began. According to the Defendant, there was a serious leakage problem in the premises affecting the kitchen, the living room, and the 3 bedrooms. It is clear from the expert reports and the photographs before me that in the kitchen, there was a damp patch with paint peeling off on the ceiling, from where water dripped. Moreover, according to the Defendant and his expert (Mr. Allan Lam), the problem was not restricted to the kitchen. In the living room as well as the bedrooms, very thin layers of water moisture were found on the ceiling soffit, and moulds were also found on the walls and ceiling. The impression of the Defendant's expert who had visited the premises on 18th June 1998 was that the whole premises was in a very 'damp condition'. According to the Defendant, during heavy rainfall or immediately thereafter, the walls in the bedrooms were damp and wet, and since the beds were placed next to the walls, the beds and those sleeping on the beds were wetted due to capillary action of the water. According to the Defendant, his children got sick allegedly as a result.

3. Starting from 12th May 1998, the Defendant wrote various letters of complaint to Mr. Tsang regarding the condition of the premises. He held Mr. Tsang as the landlord liable for the condition of the premises and required Mr. Tsang to carry out immediate remedial action. He said Mr. Tsang had agreed to do so over the telephone, but nothing much or effective was done.

4. It is common ground that Mr. Tsang together with three other owners of the 9th floor flats instructed a surveyor, Mr. Dennis Wong, to inspect the 4 flats as well as the roof on 1st June 1998. So far as Flat C was concerned, Mr. Wong visited the flat, asked the occupants the location where water leaked, and was told that the problem existed in the kitchen. He went to look at the kitchen and observed that there were water drips and damp patch with paint peeling off on the ceiling in the kitchen. He did not, however, inspect the other parts of the premises. According to Mr. Wong's report made following his inspection, the leakage problem occurred after rainy days. The leaking locations were mainly found at the kitchens of the affected flats. According to Mr. Wong, rainwater most likely penetrated directly or by capillary action through the defective waterproof system beneath the tiles and the concrete slab on the main roof. Sometimes, water might seep into the weak points of the roof and could travel long distances before finding its way out even through the minutest cracks. The weakest points as revealed were the cracks at the concrete kerb, joints of the tiles, cracks at the surface channels, the defective areas of the waterproofing layer, the cracked and porous area of the cement sand screeding and concrete slab etc. Mr. Wong recommended either partial re-roofing of the leaking areas or better still, a total re-roofing.

5. It is also common ground that on 15th June 1998, Mr. Tsang instructed a contractor to apply a thin layer of waterproof coat on that part of the roof tiles immediately above the kitchen of Flat C. This, according to the Defendant and his expert, was not effective in alleviating the difficulty experienced in Flat C. As I said, Mr. Allan Lam, the Defendant's expert, inspected Flat C on 18th June 1998. Unlike Mr. Dennis Wong, he carried out a thorough inspection of the whole premises including the bedrooms. As I said, he observed that there were very thin layers of water moisture on the ceiling in the bedrooms and the living room. He observed areas of mould growth in the bedrooms and the living room. He found the flat to be in a very damp condition. He commented that he himself would not have wanted to live in such a flat. He was of the view that the temporary waterproof coating applied on the roof tiles on 15th June 1998 was not effective at all. By and large, he agreed with Mr. Wong's analysis of the cause of the leakage in the present case, but he took the view that the problem could only be solved by complete re-roofing.

6. It is clear from the correspondence that the Defendant was not satisfied with the result of the temporary remedial work done on 15th June 1998. He continued to press Mr. Tsang for taking further and more permanent remedial action.

7. According to the correspondence and the minutes of the Incorporated Owners, a notice had already been put up by the Incorporated Owners on 25th May 1998 that some remedial site action would be taken once the weather was fine. That was done pursuant to a resolution passed in a meeting of the Incorporated Owners back in April. At that time, they had also obtained a tender for carrying out the remedial work. But for some technicality, they required to obtain several more tenders. That apparently delayed the work. Moreover it should be noted that according to the evidence the weather in June 1998 was bad and no effective remedial work could be carried out under those circumstances.

8. Apparently towards the end of July, Mr. Tsang was advised by the Incorporated Owners that re-roofing to remedy the water-leaking problem would be carried out in the coming one or two weeks. This is evidenced by a letter written by Mr. Tsang to the Defendant on 28th July 1998. In fact according to the minutes of the management sub-committee of the Incorporated Owners held on 1st August 1998, they were still seeking further tenders from interested contractors, with a view to obtaining the best price for carrying out the work.

9. In the meantime, the Defendant felt that he could tolerate the situation no more, and decided to vacate the premises. This he and his family did on 27th July 1998. By a letter dated 4th August 1998, he so informed Mr. Tsang. By a separate letter dated 6th August 1998, he returned the keys to Mr. Tsang. The Plaintiffs did not accept the unilateral termination of the tenancy by the Defendant. They regarded it as a wrongful repudiation of the same. By a letter dated 12th August 1998, the Plaintiffs through their solicitors wrote to the Defendant to accept his wrongful repudiation of the tenancy agreement. The parties could not resolve their dispute, and this action was commenced.

10. In this action, the Plaintiffs claim for the arrears of rent and management fees from 1st July 1998 to 11th August 1998 when the (alleged) wrongful repudiation was accepted. The Plaintiffs also claim for various sundry expenses in arrears. Moreover, at one stage, the Plaintiffs commenced distraint proceedings against the Defendant for recovery of arrears of rent for the month of July. However, before the bailiff proceeded to distrain the premises, it came to the notice of the Plaintiffs (on 10th August 1998) that the Defendant had already vacated the premises. A sum of $4,000 being legal costs and disbursements for the distraint proceedings was incurred by the Plaintiffs. The Plaintiffs claim against the Defendant this sum of money.

11. Further, the Plaintiffs say they have incurred a sum of $3,500 to repair and repaint the wallpaper and doors which were in need of repair after the Defendant vacated the flat. The Plaintiffs also spent a sum of $6,500 on the wooden flooring, the kitchen door and the clothes drying...