DCCJ3552/2019 MAN KWONG KAU AND ANOTHER v. WONG WAI HONG - LawHero
DCCJ3552/2019
區域法院（民事）Deputy District Judge B Mak18/5/2023[2023] HKDC 664
DCCJ3552/2019
A A
B B
DCCJ 3552/2019
C
[2023] HKDC 664 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CIVIL ACTION NO 3552 OF 2019
F F
G ------------------------ G
BETWEEN
H H
MAN KWONG KAU 1st Plaintiff
I WONG KA LO 2nd Plaintiff I
and
J J
WONG WAI HONG Defendant
K K
------------------------
L L
M Before: Deputy District Judge B Mak in Court M
Dates of Hearing: 29-30 November 2022, 1-2 and 22 December 2022
N N
Date of Judgment: 19 May 2023
O O
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P P
JUDGMENT
Q ------------------------ Q
R R
S S
T T
U U
V V
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A A
B B
Introduction
C C
1. This is a water seepage case.
D D
E 2. The plaintiffs are the registered owners of Flat G, 9 th Floor, E
Block 6, No 2 Mei Tung Street, Tung Chung Crescent, Tung Chung,
F F
Lantau Island, New Territories, Hong Kong (“the plaintiffs’ flat”).
G G
3. The defendant is the registered owner of the flat immediately
H H
above the plaintiffs’ flat, ie Flat G on 10th Floor (“the defendant’s flat”).
I I
4. It is the plaintiffs’ case that the water seepage was originated
J J
from the defendant’s flat, which, however, is denied by the defendant.
K K
5. In the amended defence, the defendant raised a point that the
L L
plaintiffs discontinued a claim against the defendant in the Small Claims
M Tribunal on 29 April 2019. A court clerk told the plaintiffs that they could M
not file a second claim nor to appeal.
N N
O 6. This point was not, in my view wisely, pursued by the O
defendant at the trial. To my mind, what was allegedly said by the court
P P
clerk is illogical and without legal basis.
Q Q
Legal principles
R R
S 7. There is no presumption that the source of the water seepage S
must be coming from the flat immediately above: see the speech of
T T
U U
V V
-3-
A A
B B
Leong, JA (as he then was) in 張秀玲 訴 鄭禮莊 , CACV 268/1998,
C unreported, 9/4/1999 at para 9. C
D D
8. The onus of proof is on the plaintiff to establish, on a balance
E of probabilities, that the source of water was the defendant’s flat: see Hui E
Ling Ling v Sky Field Development Ltd, HCA 35/2007, unreported,
F F
8/5/2012 at para 23.
G G
9. It is not for the defendant to identify the source of the water
H H
leakage or to prove that its origin did not come from his property: see 張
I 秀玲 (supra) at para 9 and Hui Ling Ling (supra) at para 23. I
J J
Expert evidence
K K
L 10. Understandably, the expert evidence adduced by the parties L
are heavily contested.
M M
N 11. Miss Lau Shan La was engaged as the plaintiffs’ expert. Mr N
Chung Wai Hoi was the expert engaged by the defendant.
O O
P 12. Both experts attended the plaintiffs’ flat and the defendant’s P
flat to conduct joint inspections and tests on 30 September 2020 and 30
Q Q
October 2020.
R R
13. A joint expert report dated 8 January 2021 was compiled by
S S
Miss Lau and Mr Chung.
T T
U U
V V
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A A
B B
The main contention
C C
14. Both experts are of the common opinion that the external wall;
D D
the external pipes and the water supply pipes of the defendant’s flat are not
E the source of the water leakage. E
F F
15. The issue remains for determination is whether the water was
G originated from the defendant’s flat or from the flat or flats above the G
defendant’s flat.
H H
I 16. Miss Lau was of the opinion that the water leakage is related I
to the damage to the waterproof membrane of the defendant’s master
J J
bathroom. She could not rule out that the connection point between the
K plastic drainage pipe and the metal drainage pipe (“the connection point”) K
underneath the washbasin cabinet of the defendant’s master bathroom (“the
L L
defendant’s washbasin cabinet”) was leaking.
M M
17. Miss Lau found that the area affected by water leakage in the
N N
plaintiffs’ flat was directly below the defendant’s washbasin cabinet. The
O body of the plastic drainage pipe of the washbasin in the defendant’s master O
bathroom was leaking. Darkness and water marks in the area in the
P P
defendant’s washbasin cabinet around the leaking plastic drainage pipe
Q were observed. Miss Lau stated that as the connection point was concealed Q
underneath the defendant’s washbasin cabinet and it could not be opened
R R
up for inspection, she could not rule out that the connection point was
S leaking. S
T T
U U
V V
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A A
B B
18. Mr Chung observed that water marks and bulging of paint
C
were seen at the wooden false ceiling in the plaintiffs’ master bathroom C
(“the false ceiling”). The infra-red scan showed suspicious low-
D D
temperature in the area around the said false ceiling. Wetness which was
E spreading downward was observed in the wall in the plaintiffs’ master E
bathroom close to the corridor where a white PVC pipe was embedded
F F
(“the PVC wall”).
G G
19. However, after the dyed colour water test, not only no dye was
H H
observed in the false ceiling, there was no expansion of the aforesaid low-
I temperature area too. Also, no dye was observed in the PVC wall. The I
electrical conductivity sensing showed no obvious rise in moisture level
J J
and the infra-red scan showed no obvious expansion of the low-
K temperature area in the PVC wall. Mr Chung was of the opinion that there K
was no evidence to show that the water leakage in the PVC wall was caused
L L
by the defective waterproof system or the drainage system of the
M defendant’s flat. M
N N
20. In relation to the concrete ceiling of the plaintiffs’ master
O bathroom, Mr Chung did not see obvious signs of water damage. No dye O
was observed after the coloured water test. No low-temperature area was
P P
recorded before and after the coloured water test. However, the microwave
Q scan did show that there was moisture in the concrete ceiling but there is Q
no indication that such moisture originated from the defendant’s flat.
R R
S 21. Upon inspecting the defendant’s flat, Mr Chung observed that S
there was water stain and peeling off of plaster in the ceiling of the
T T
defendant’s master bedroom close to the master bathroom. The paint of the
U U
V V
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A A
B B
wooden false ceiling of the defendant’s master bathroom was bulging with
C
water marks. The mercury in the mirror of the defendant’s master bathroom C
showed signs of vanishing. The wooden mirror frame was enlarged with
D D
loosen paint. Mr Chung said in the joint expert report that although no
E obvious wetness was seen in the upper part of the wall close to the corridor, E
he could see signs of water originating from the flat above the defendant’s
F F
flat passing through the wall of the defendant’s master bathroom which
G spread downward. He could not rule out that there was water passing G
through the wall of the defendant’s master bathroom internally and
H H
spreading downward. As water was coming out from the PVC wall, it
I showed that a conduit of water was already established. I
J J
22. There is no doubt that water was emanating from the PVC
K wall. The plaintiffs had placed a funnel at the spot where water was coming K
out to divert the water to the drainage. Miss Lau measured that about 2
L L
litres of water were so collected from the time of the 1st joint inspection on
M 30 September 2020 to the 2nd joint inspection on 30 October 2020. M
N N
23. Miss Lau observed that the body of the plastic drainage pipe
O of the washbasin in the defendant’s master bathroom was leaking. O
Darkness and water marks in the area in the defendant’s washbasin cabinet
P P
around the leaking plastic drainage pipe were seen. Such darkness and
Q water marks are apparent from Fig 19 and 20 in Miss Lau’s report. There Q
can be no doubt that the base of the defendant’s washbasin cabinet was
R R
affected by water. It is Miss Lau’s evidence that she could not further
S examine the space underneath because the base of the defendant’s S
washbasin cabinet was not opened up. She also had not dug out the
T T
concrete in order to inspect the connection point. That is why her
U U
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A A
B B
conclusion is that it cannot be ruled out that the connection point was
C
leaking. C
D D
24. Mr Chung placed heavy emphasis on the fact that no dye was
E seen in the plaintiffs’ flat after the coloured water test; the infra-red scan E
and the electrical conductivity sensing showed no obvious change after the
F F
test.
G G
25. The validity of Mr Chung’s findings depends on whether the
H H
coloured water of the ponding test had reached the entire floor of the
I defendant’s master bathroom. I
J J
26. It seems that it was not the case.
K K
27. As noted by Miss Lau, the base of the defendant’s washbasin
L L
cabinet was not opened up for inspection. This can be confirmed by Fig 19
M and 20 in Miss Lau’s report which were taken on the date of the 1st M
inspection on 30 September 2020. A close look at Fig 19 shows that there
N N
was a skirting under the defendant’s washbasin cabinet. The same skirting
O was also shown in Fig 272 (and the enlargement of the same picture in Fig O
272A) in Mr Chung’s report. Notably, Fig 19 shows the right hand side of
P P
the skirting which was extended to the wall whereas Fig 272 shows the
Q other end all the way up to the wall. In other words, when coloured water Q
was poured on the floor of the defendant’s master bathroom, it could not
R R
have reached the area under the defendant’s washbasin cabinet.
S S
28. In my view, this has a significant bearing on the validity of
T T
the coloured water test, the infra-red scanning and the electrical
U U
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A A
B B
conductivity sensing which were done before and after the ponding
C
because the coloured water did not reach the area which was directly and C
immediately above the PVC wall. This is particularly so because the base
D D
of the defendant’s washbasin cabinet had signs of water damage. It is more
E likely than not that the space thereunder was also affected by water. The E
fact that no coloured water was ponded in this area has compromised the
F F
validity of the findings of Mr Chung.
G G
29. It is trite that the defendant is under no duty to identify the
H H
source of the water leakage or that its origin did not come from his
I property. Nevertheless, Mr Chung put forward a theory that the water was I
coming from the flat or flats above the defendant’s flat by mere visual
J J
observation. No test of any kind was done to verify his theory.
K K
30. The fact that the defendant’s master bathroom was itself
L L
affected by water leakage is no proof that such water leakage is also the
M cause of the water leakage in the plaintiffs’ flat. Common sense dictates M
that if Mr Chung’s theory is correct, the degree of water damage in the
N N
defendant’s master bathroom must be more serious than that suffered by
O the plaintiffs’ master bathroom. But this is not the case here. O
P P
31. In my judgment, Mr Chung’s theory is unsupported by
Q scientific evidence and does not sit well with logic. It must therefore be Q
rejected.
R R
S 32. The remaining question is whether the plaintiffs have proved, S
on balance of probabilities, that the water leakage originated from the
T T
defendant’s flat. As I do not accept that the flat or flats above the
U U
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A A
B B
defendant’s flat is the source of the water leakage in the plaintiffs’ flat, and
C
all other possible sources have been eliminated by the common opinion of C
the 2 experts, the only probable cause of the water leakage must be from
D D
the defendant’s flat. The answer to the question, in my judgment, is in the
E affirmative. E
F F
33. By reasons of my findings aforesaid, the defendant is liable to
G the plaintiffs for breach of clause 7 of the Deed of Mutual Covenant and G
Management Agreement of the Development 1 for failing to keep the
H H
defendant’s flat in good and substantial repair and condition; for
I negligence in failing to keep his flat in proper repair and condition thereby I
causing damage to the plaintiffs’ flat and for causing nuisance to the
J J
plaintiffs.
K K
Injunctive relief
L L
M 34. The plaintiffs seek the following injunctive reliefs: M
N N
(1) The defendant doth within 28 days at his own costs and
O expenses carry out all necessary repair works of the O
defendant’s flat for the purpose of stopping and
P P
preventing water leakage from the defendant’s flat to
Q the plaintiffs’ flat; and Q
R R
S S
1
which provides: “Each Owner, at his own expense, shall keep: (a) the interior of each Unit (other than
a Carparking Space) of which he is for the time being the Owner and of any other part of the Development
T the exclusive use, occupation and enjoyment of which has been assigned to him; the doors and windows T
thereof, and of the fixtures and fittings, plumbing, electrical and other installations therein; and … in
good and substantial repair and condition and shall preserve and maintain the same in a manner consistent
with the preservation of the Land and the Development as a high quality residential/commercial estate.”
U U
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A A
B B
(2) an injunction to restrain the defendant, whether by
C
himself, his servants or agents or otherwise howsoever C
from causing or permitting nuisance by permitting or
D D
allowing water to come into and about the plaintiffs’
E flat. E
F F
35. Mr Brian Lo, counsel for the defendant, submitted that they
G are extremely wide and imprecise, citing Chiu Hung Shun Paul v So Ka G
Tai, CACV 136/2005, 5/12/2005 (unreported) in support.
H H
I 36. In my view, a mandatory injunction requiring the defendant I
to do repair in the defendant’s flat in order to rectify the water leakage is
J J
sufficient relief. Once the cause of the water leakage is cured, I see no risk
K that the breach will remain. For this reason, I do not think a permanent K
injunction restraining the defendant from causing water leakage to the
L L
plaintiffs’ flat is justified.
M M
General damage
N N
O 37. The plaintiffs said that because of the water leakage problem, O
they spent a lot of time and energy to deal with the matters arising from it,
P P
including placing a funnel at the correct position in order to divert the water
Q to the drainage; putting the electrical wires on the false ceiling to a higher Q
position so that they would not be affected by the water; going through the
R R
complaint procedure vis a vis the management office and the Joint Office;
S employing expert to conduct inspection and tests and finally engaging S
lawyers to commence legal proceedings. Their normal life and works were
T T
therefore disrupted.
U U
V V
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A A
B B
C
38. Mr Lawrence Ngai, counsel for the plaintiffs, asked for C
$20,000, citing Chau Chung Mei v Leung Ying Ngai, DCCJ 4062/2012,
D D
29/9/2104 (unreported) and Wen Shek Tun v Chan Wai Fong [2002] HKDC
E 856 in support. E
F F
39. I have no doubt that the plaintiffs’ normal life had been
G disturbed and inconvenienced by the water leakage. I would accordingly G
award $20,000 under this head.
H H
I Expert report fee I
J J
40. The plaintiffs engaged Miss Lau to prepare a survey report
K before action in 2019. They paid $15,000 for the report. K
L L
41. But for the water leakage, the plaintiffs would not have
M incurred such fee. I would allow the plaintiffs’ claim under this head. M
N N
Loss of rental income
O O
42. The plaintiffs said when the tenancy agreement ended in
P P
February 2017, they discovered the water leakage in the master bathroom.
Q They had to complain to the management office and the Joint Office, and Q
to arrange tests to be done in order to find out the source of the leakage.
R R
Therefore, they could only rent out the plaintiffs’ flat again on 1 August
S 2017 at the monthly rent of $19,300, which was 10% below the market S
rent. The said tenancy was renewed for another 2 years on 18 July 2019 at
T T
the same rent until 31 July 2021. They said in the normal course of event,
U U
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A A
B B
they should be able to rent out the flat within 2-3 months. They therefore
C
claim loss of rental income for 3 months at $21,500 per month, ie $64,500. C
D D
43. Mr Ngai further submitted that the plaintiffs are also entitled
E to loss of rental income (being the 10% difference) during the currency of E
the subsequent tenancy agreements for 72 months from August 2017 to
F F
July 2023 in the sum of $154,800.
G G
44. Mr Lo submitted that no amount on rental loss was
H H
particularised in the statement of claim. The plaintiffs have also failed to
I adduce any evidence showing the market price of the plaintiffs’ flat. It is I
only the bare allegation of the plaintiffs that they could not rent the flat out
J J
due to the water leakage.
K K
45. Paragraph 11 of the statement of claim is pleaded in the
L L
following terms:
M M
“11. Not until July 2017 did the Plaintiffs manage to rent out
N the Plaintiffs’ Premises for a tenancy of 2 years with a rent below N
the prevailing market level.”
O O
46. Although the amount of loss was not stated in the statement
P P
of claim, I accept that the facts pleaded are sufficient to raise the claim.
Q Q
47. Nevertheless, no expert evidence was adduced to prove the
R R
then market rent of the plaintiffs’ flat. Apart from the word of mouth of the
S 2nd plaintiff, there is no other evidence (eg of the new tenant or the estate S
agent) to substantiate such claim. I am not satisfied that the plaintiffs have
T T
discharged the burden of proof that the then market rent was $21,500.
U U
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A A
B B
C
48. Having said that, however, I accept that due to the discovery C
of the water leakage, the plaintiffs had to do remedial works and to take
D D
follow-up action. Such actions had delayed the renting out of the flat.
E E
49. I find the claim of 3 months’ loss of rental income reasonable.
F F
I would therefore award $57,900 ($19,300 x 3 months) under this head.
G G
Repair costs and cleaning fee
H H
I 50. The 2nd plaintiff said that in or about 8 March 2017 she I
employed a contractor to do the remedial works (including replacing the
J J
tiles, the mirror and repainting) and to install a device diverting the water
K to the drainage at the costs of $8,000. K
L L
51. The 1st plaintiff said that after the remedial works, it was
M necessary to employ cleaners to do the cleaning works for 8 hours at $200 M
per hour.
N N
O 52. Miss Lau estimated that the costs of repair works to be done O
in the plaintiffs’ flat would be $23,065.30.
P P
Q 53. Mr Lo pointed out that comparing Miss Lau’s 2019 report and Q
her 2020 report, the assessment of reparation costs rose from $7,471.80 to
R R
$23,065.30 There is an additional $8,000 claimed for the wooden false
S ceiling with lights. Mr Lo submitted that Miss Lau’s assessment is inflated S
and the assessment of Mr Chung in the sum of $15,500 is more reasonable.
T T
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A A
B B
54. The wooden false ceiling was damaged by water and has to
C
be replaced. The estimated costs of $8,000 is inclusive of materials and C
labour. I do not think it is inflated. Moreover, repair works have to be done
D D
to the damaged ceiling and wall. I accept the estimation of Miss Lau is the
E reasonable costs of repair. E
F F
55. I also accept that the costs of the remedial works done in 2017
G were reasonably incurred. G
H H
56. However, I do not accept that 8 hours were required to do the
I cleaning works in 2017. In my view, 3 hours would be sufficient. I
Therefore, I would only allow $600 ($200 x 3 hours).
J J
K 57. Accordingly, I would award $31,665.30 ($8,000 + $600 + K
$23,065.30) under this head.
L L
M Conclusion and order M
N N
58. By reasons of the aforesaid, I would grant the following
O mandatory injunction that: O
P P
“The defendant doth within 42 days at his own costs and
expenses carry out all necessary repair works in the defendant’s
Q flat for the purpose of stopping and preventing water leakage Q
from the defendant’s flat to the plaintiffs’ flat.”
R R
59. I would also enter judgment against the defendant for the sum
S S
of $124,565.30 ($20,000 + $15,000 + $57,900 + $31,665.30).
T T
U U
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A A
B B
Interests
C C
60. Interests shall be calculated at 1% above the best lending rate
D D
of HSBC from the date of the writ (ie 10 July 2019) to the date of judgment
E and thereafter at judgment rate until the date of payment. E
F F
Costs
G G
61. I make a costs order nisi that the defendant shall pay the
H H
plaintiffs the costs of this action (including all costs reserved) with
I certificate for counsel, to be taxed if not agreed. I
J J
62. In the absence of any application by letter for variation within
K 14 days from the date of this judgment, the costs order nisi shall become K
absolute.
L L
M M
N N
( Brian Mak )
O
Deputy District Judge O
P P
Mr Lawrence LK Ngai, instructed by CL & Co, for the plaintiffs
Q Mr Brian TY Lo, instructed by KC Ho & Fong for the defendant Q
R R
S S
T T
U U
V V
A A
B B
DCCJ 3552/2019
C
[2023] HKDC 664 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CIVIL ACTION NO 3552 OF 2019
F F
G ------------------------ G
BETWEEN
H H
MAN KWONG KAU 1st Plaintiff
I WONG KA LO 2nd Plaintiff I
and
J J
WONG WAI HONG Defendant
K K
------------------------
L L
M Before: Deputy District Judge B Mak in Court M
Dates of Hearing: 29-30 November 2022, 1-2 and 22 December 2022
N N
Date of Judgment: 19 May 2023
O O
------------------------
P P
JUDGMENT
Q ------------------------ Q
R R
S S
T T
U U
V V
-2-
A A
B B
Introduction
C C
1. This is a water seepage case.
D D
E 2. The plaintiffs are the registered owners of Flat G, 9 th Floor, E
Block 6, No 2 Mei Tung Street, Tung Chung Crescent, Tung Chung,
F F
Lantau Island, New Territories, Hong Kong (“the plaintiffs’ flat”).
G G
3. The defendant is the registered owner of the flat immediately
H H
above the plaintiffs’ flat, ie Flat G on 10th Floor (“the defendant’s flat”).
I I
4. It is the plaintiffs’ case that the water seepage was originated
J J
from the defendant’s flat, which, however, is denied by the defendant.
K K
5. In the amended defence, the defendant raised a point that the
L L
plaintiffs discontinued a claim against the defendant in the Small Claims
M Tribunal on 29 April 2019. A court clerk told the plaintiffs that they could M
not file a second claim nor to appeal.
N N
O 6. This point was not, in my view wisely, pursued by the O
defendant at the trial. To my mind, what was allegedly said by the court
P P
clerk is illogical and without legal basis.
Q Q
Legal principles
R R
S 7. There is no presumption that the source of the water seepage S
must be coming from the flat immediately above: see the speech of
T T
U U
V V
-3-
A A
B B
Leong, JA (as he then was) in 張秀玲 訴 鄭禮莊 , CACV 268/1998,
C unreported, 9/4/1999 at para 9. C
D D
8. The onus of proof is on the plaintiff to establish, on a balance
E of probabilities, that the source of water was the defendant’s flat: see Hui E
Ling Ling v Sky Field Development Ltd, HCA 35/2007, unreported,
F F
8/5/2012 at para 23.
G G
9. It is not for the defendant to identify the source of the water
H H
leakage or to prove that its origin did not come from his property: see 張
I 秀玲 (supra) at para 9 and Hui Ling Ling (supra) at para 23. I
J J
Expert evidence
K K
L 10. Understandably, the expert evidence adduced by the parties L
are heavily contested.
M M
N 11. Miss Lau Shan La was engaged as the plaintiffs’ expert. Mr N
Chung Wai Hoi was the expert engaged by the defendant.
O O
P 12. Both experts attended the plaintiffs’ flat and the defendant’s P
flat to conduct joint inspections and tests on 30 September 2020 and 30
Q Q
October 2020.
R R
13. A joint expert report dated 8 January 2021 was compiled by
S S
Miss Lau and Mr Chung.
T T
U U
V V
-4-
A A
B B
The main contention
C C
14. Both experts are of the common opinion that the external wall;
D D
the external pipes and the water supply pipes of the defendant’s flat are not
E the source of the water leakage. E
F F
15. The issue remains for determination is whether the water was
G originated from the defendant’s flat or from the flat or flats above the G
defendant’s flat.
H H
I 16. Miss Lau was of the opinion that the water leakage is related I
to the damage to the waterproof membrane of the defendant’s master
J J
bathroom. She could not rule out that the connection point between the
K plastic drainage pipe and the metal drainage pipe (“the connection point”) K
underneath the washbasin cabinet of the defendant’s master bathroom (“the
L L
defendant’s washbasin cabinet”) was leaking.
M M
17. Miss Lau found that the area affected by water leakage in the
N N
plaintiffs’ flat was directly below the defendant’s washbasin cabinet. The
O body of the plastic drainage pipe of the washbasin in the defendant’s master O
bathroom was leaking. Darkness and water marks in the area in the
P P
defendant’s washbasin cabinet around the leaking plastic drainage pipe
Q were observed. Miss Lau stated that as the connection point was concealed Q
underneath the defendant’s washbasin cabinet and it could not be opened
R R
up for inspection, she could not rule out that the connection point was
S leaking. S
T T
U U
V V
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A A
B B
18. Mr Chung observed that water marks and bulging of paint
C
were seen at the wooden false ceiling in the plaintiffs’ master bathroom C
(“the false ceiling”). The infra-red scan showed suspicious low-
D D
temperature in the area around the said false ceiling. Wetness which was
E spreading downward was observed in the wall in the plaintiffs’ master E
bathroom close to the corridor where a white PVC pipe was embedded
F F
(“the PVC wall”).
G G
19. However, after the dyed colour water test, not only no dye was
H H
observed in the false ceiling, there was no expansion of the aforesaid low-
I temperature area too. Also, no dye was observed in the PVC wall. The I
electrical conductivity sensing showed no obvious rise in moisture level
J J
and the infra-red scan showed no obvious expansion of the low-
K temperature area in the PVC wall. Mr Chung was of the opinion that there K
was no evidence to show that the water leakage in the PVC wall was caused
L L
by the defective waterproof system or the drainage system of the
M defendant’s flat. M
N N
20. In relation to the concrete ceiling of the plaintiffs’ master
O bathroom, Mr Chung did not see obvious signs of water damage. No dye O
was observed after the coloured water test. No low-temperature area was
P P
recorded before and after the coloured water test. However, the microwave
Q scan did show that there was moisture in the concrete ceiling but there is Q
no indication that such moisture originated from the defendant’s flat.
R R
S 21. Upon inspecting the defendant’s flat, Mr Chung observed that S
there was water stain and peeling off of plaster in the ceiling of the
T T
defendant’s master bedroom close to the master bathroom. The paint of the
U U
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A A
B B
wooden false ceiling of the defendant’s master bathroom was bulging with
C
water marks. The mercury in the mirror of the defendant’s master bathroom C
showed signs of vanishing. The wooden mirror frame was enlarged with
D D
loosen paint. Mr Chung said in the joint expert report that although no
E obvious wetness was seen in the upper part of the wall close to the corridor, E
he could see signs of water originating from the flat above the defendant’s
F F
flat passing through the wall of the defendant’s master bathroom which
G spread downward. He could not rule out that there was water passing G
through the wall of the defendant’s master bathroom internally and
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spreading downward. As water was coming out from the PVC wall, it
I showed that a conduit of water was already established. I
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22. There is no doubt that water was emanating from the PVC
K wall. The plaintiffs had placed a funnel at the spot where water was coming K
out to divert the water to the drainage. Miss Lau measured that about 2
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litres of water were so collected from the time of the 1st joint inspection on
M 30 September 2020 to the 2nd joint inspection on 30 October 2020. M
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23. Miss Lau observed that the body of the plastic drainage pipe
O of the washbasin in the defendant’s master bathroom was leaking. O
Darkness and water marks in the area in the defendant’s washbasin cabinet
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around the leaking plastic drainage pipe were seen. Such darkness and
Q water marks are apparent from Fig 19 and 20 in Miss Lau’s report. There Q
can be no doubt that the base of the defendant’s washbasin cabinet was
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affected by water. It is Miss Lau’s evidence that she could not further
S examine the space underneath because the base of the defendant’s S
washbasin cabinet was not opened up. She also had not dug out the
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concrete in order to inspect the connection point. That is why her
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conclusion is that it cannot be ruled out that the connection point was
C
leaking. C
D D
24. Mr Chung placed heavy emphasis on the fact that no dye was
E seen in the plaintiffs’ flat after the coloured water test; the infra-red scan E
and the electrical conductivity sensing showed no obvious change after the
F F
test.
G G
25. The validity of Mr Chung’s findings depends on whether the
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coloured water of the ponding test had reached the entire floor of the
I defendant’s master bathroom. I
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26. It seems that it was not the case.
K K
27. As noted by Miss Lau, the base of the defendant’s washbasin
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cabinet was not opened up for inspection. This can be confirmed by Fig 19
M and 20 in Miss Lau’s report which were taken on the date of the 1st M
inspection on 30 September 2020. A close look at Fig 19 shows that there
N N
was a skirting under the defendant’s washbasin cabinet. The same skirting
O was also shown in Fig 272 (and the enlargement of the same picture in Fig O
272A) in Mr Chung’s report. Notably, Fig 19 shows the right hand side of
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the skirting which was extended to the wall whereas Fig 272 shows the
Q other end all the way up to the wall. In other words, when coloured water Q
was poured on the floor of the defendant’s master bathroom, it could not
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have reached the area under the defendant’s washbasin cabinet.
S S
28. In my view, this has a significant bearing on the validity of
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the coloured water test, the infra-red scanning and the electrical
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conductivity sensing which were done before and after the ponding
C
because the coloured water did not reach the area which was directly and C
immediately above the PVC wall. This is particularly so because the base
D D
of the defendant’s washbasin cabinet had signs of water damage. It is more
E likely than not that the space thereunder was also affected by water. The E
fact that no coloured water was ponded in this area has compromised the
F F
validity of the findings of Mr Chung.
G G
29. It is trite that the defendant is under no duty to identify the
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source of the water leakage or that its origin did not come from his
I property. Nevertheless, Mr Chung put forward a theory that the water was I
coming from the flat or flats above the defendant’s flat by mere visual
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observation. No test of any kind was done to verify his theory.
K K
30. The fact that the defendant’s master bathroom was itself
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affected by water leakage is no proof that such water leakage is also the
M cause of the water leakage in the plaintiffs’ flat. Common sense dictates M
that if Mr Chung’s theory is correct, the degree of water damage in the
N N
defendant’s master bathroom must be more serious than that suffered by
O the plaintiffs’ master bathroom. But this is not the case here. O
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31. In my judgment, Mr Chung’s theory is unsupported by
Q scientific evidence and does not sit well with logic. It must therefore be Q
rejected.
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S 32. The remaining question is whether the plaintiffs have proved, S
on balance of probabilities, that the water leakage originated from the
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defendant’s flat. As I do not accept that the flat or flats above the
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defendant’s flat is the source of the water leakage in the plaintiffs’ flat, and
C
all other possible sources have been eliminated by the common opinion of C
the 2 experts, the only probable cause of the water leakage must be from
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the defendant’s flat. The answer to the question, in my judgment, is in the
E affirmative. E
F F
33. By reasons of my findings aforesaid, the defendant is liable to
G the plaintiffs for breach of clause 7 of the Deed of Mutual Covenant and G
Management Agreement of the Development 1 for failing to keep the
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defendant’s flat in good and substantial repair and condition; for
I negligence in failing to keep his flat in proper repair and condition thereby I
causing damage to the plaintiffs’ flat and for causing nuisance to the
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plaintiffs.
K K
Injunctive relief
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M 34. The plaintiffs seek the following injunctive reliefs: M
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(1) The defendant doth within 28 days at his own costs and
O expenses carry out all necessary repair works of the O
defendant’s flat for the purpose of stopping and
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preventing water leakage from the defendant’s flat to
Q the plaintiffs’ flat; and Q
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S S
1
which provides: “Each Owner, at his own expense, shall keep: (a) the interior of each Unit (other than
a Carparking Space) of which he is for the time being the Owner and of any other part of the Development
T the exclusive use, occupation and enjoyment of which has been assigned to him; the doors and windows T
thereof, and of the fixtures and fittings, plumbing, electrical and other installations therein; and … in
good and substantial repair and condition and shall preserve and maintain the same in a manner consistent
with the preservation of the Land and the Development as a high quality residential/commercial estate.”
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(2) an injunction to restrain the defendant, whether by
C
himself, his servants or agents or otherwise howsoever C
from causing or permitting nuisance by permitting or
D D
allowing water to come into and about the plaintiffs’
E flat. E
F F
35. Mr Brian Lo, counsel for the defendant, submitted that they
G are extremely wide and imprecise, citing Chiu Hung Shun Paul v So Ka G
Tai, CACV 136/2005, 5/12/2005 (unreported) in support.
H H
I 36. In my view, a mandatory injunction requiring the defendant I
to do repair in the defendant’s flat in order to rectify the water leakage is
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sufficient relief. Once the cause of the water leakage is cured, I see no risk
K that the breach will remain. For this reason, I do not think a permanent K
injunction restraining the defendant from causing water leakage to the
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plaintiffs’ flat is justified.
M M
General damage
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O 37. The plaintiffs said that because of the water leakage problem, O
they spent a lot of time and energy to deal with the matters arising from it,
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including placing a funnel at the correct position in order to divert the water
Q to the drainage; putting the electrical wires on the false ceiling to a higher Q
position so that they would not be affected by the water; going through the
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complaint procedure vis a vis the management office and the Joint Office;
S employing expert to conduct inspection and tests and finally engaging S
lawyers to commence legal proceedings. Their normal life and works were
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therefore disrupted.
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B B
C
38. Mr Lawrence Ngai, counsel for the plaintiffs, asked for C
$20,000, citing Chau Chung Mei v Leung Ying Ngai, DCCJ 4062/2012,
D D
29/9/2104 (unreported) and Wen Shek Tun v Chan Wai Fong [2002] HKDC
E 856 in support. E
F F
39. I have no doubt that the plaintiffs’ normal life had been
G disturbed and inconvenienced by the water leakage. I would accordingly G
award $20,000 under this head.
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I Expert report fee I
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40. The plaintiffs engaged Miss Lau to prepare a survey report
K before action in 2019. They paid $15,000 for the report. K
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41. But for the water leakage, the plaintiffs would not have
M incurred such fee. I would allow the plaintiffs’ claim under this head. M
N N
Loss of rental income
O O
42. The plaintiffs said when the tenancy agreement ended in
P P
February 2017, they discovered the water leakage in the master bathroom.
Q They had to complain to the management office and the Joint Office, and Q
to arrange tests to be done in order to find out the source of the leakage.
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Therefore, they could only rent out the plaintiffs’ flat again on 1 August
S 2017 at the monthly rent of $19,300, which was 10% below the market S
rent. The said tenancy was renewed for another 2 years on 18 July 2019 at
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the same rent until 31 July 2021. They said in the normal course of event,
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they should be able to rent out the flat within 2-3 months. They therefore
C
claim loss of rental income for 3 months at $21,500 per month, ie $64,500. C
D D
43. Mr Ngai further submitted that the plaintiffs are also entitled
E to loss of rental income (being the 10% difference) during the currency of E
the subsequent tenancy agreements for 72 months from August 2017 to
F F
July 2023 in the sum of $154,800.
G G
44. Mr Lo submitted that no amount on rental loss was
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particularised in the statement of claim. The plaintiffs have also failed to
I adduce any evidence showing the market price of the plaintiffs’ flat. It is I
only the bare allegation of the plaintiffs that they could not rent the flat out
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due to the water leakage.
K K
45. Paragraph 11 of the statement of claim is pleaded in the
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following terms:
M M
“11. Not until July 2017 did the Plaintiffs manage to rent out
N the Plaintiffs’ Premises for a tenancy of 2 years with a rent below N
the prevailing market level.”
O O
46. Although the amount of loss was not stated in the statement
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of claim, I accept that the facts pleaded are sufficient to raise the claim.
Q Q
47. Nevertheless, no expert evidence was adduced to prove the
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then market rent of the plaintiffs’ flat. Apart from the word of mouth of the
S 2nd plaintiff, there is no other evidence (eg of the new tenant or the estate S
agent) to substantiate such claim. I am not satisfied that the plaintiffs have
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discharged the burden of proof that the then market rent was $21,500.
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B B
C
48. Having said that, however, I accept that due to the discovery C
of the water leakage, the plaintiffs had to do remedial works and to take
D D
follow-up action. Such actions had delayed the renting out of the flat.
E E
49. I find the claim of 3 months’ loss of rental income reasonable.
F F
I would therefore award $57,900 ($19,300 x 3 months) under this head.
G G
Repair costs and cleaning fee
H H
I 50. The 2nd plaintiff said that in or about 8 March 2017 she I
employed a contractor to do the remedial works (including replacing the
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tiles, the mirror and repainting) and to install a device diverting the water
K to the drainage at the costs of $8,000. K
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51. The 1st plaintiff said that after the remedial works, it was
M necessary to employ cleaners to do the cleaning works for 8 hours at $200 M
per hour.
N N
O 52. Miss Lau estimated that the costs of repair works to be done O
in the plaintiffs’ flat would be $23,065.30.
P P
Q 53. Mr Lo pointed out that comparing Miss Lau’s 2019 report and Q
her 2020 report, the assessment of reparation costs rose from $7,471.80 to
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$23,065.30 There is an additional $8,000 claimed for the wooden false
S ceiling with lights. Mr Lo submitted that Miss Lau’s assessment is inflated S
and the assessment of Mr Chung in the sum of $15,500 is more reasonable.
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54. The wooden false ceiling was damaged by water and has to
C
be replaced. The estimated costs of $8,000 is inclusive of materials and C
labour. I do not think it is inflated. Moreover, repair works have to be done
D D
to the damaged ceiling and wall. I accept the estimation of Miss Lau is the
E reasonable costs of repair. E
F F
55. I also accept that the costs of the remedial works done in 2017
G were reasonably incurred. G
H H
56. However, I do not accept that 8 hours were required to do the
I cleaning works in 2017. In my view, 3 hours would be sufficient. I
Therefore, I would only allow $600 ($200 x 3 hours).
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K 57. Accordingly, I would award $31,665.30 ($8,000 + $600 + K
$23,065.30) under this head.
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M Conclusion and order M
N N
58. By reasons of the aforesaid, I would grant the following
O mandatory injunction that: O
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“The defendant doth within 42 days at his own costs and
expenses carry out all necessary repair works in the defendant’s
Q flat for the purpose of stopping and preventing water leakage Q
from the defendant’s flat to the plaintiffs’ flat.”
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59. I would also enter judgment against the defendant for the sum
S S
of $124,565.30 ($20,000 + $15,000 + $57,900 + $31,665.30).
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Interests
C C
60. Interests shall be calculated at 1% above the best lending rate
D D
of HSBC from the date of the writ (ie 10 July 2019) to the date of judgment
E and thereafter at judgment rate until the date of payment. E
F F
Costs
G G
61. I make a costs order nisi that the defendant shall pay the
H H
plaintiffs the costs of this action (including all costs reserved) with
I certificate for counsel, to be taxed if not agreed. I
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62. In the absence of any application by letter for variation within
K 14 days from the date of this judgment, the costs order nisi shall become K
absolute.
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M M
N N
( Brian Mak )
O
Deputy District Judge O
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Mr Lawrence LK Ngai, instructed by CL & Co, for the plaintiffs
Q Mr Brian TY Lo, instructed by KC Ho & Fong for the defendant Q
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