Wong Ping Chun v. Giant King Corporation Ltd

HCMP 1509/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1509 OF 2016

(ON INTENDED APPEAL FROM DCCJ NO. 4020 OF 2012)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

Introduction

1.The plaintiff is the registered owner of 7^th Floor, No. 223 Shau Kei Wan Road, Hong Kong.  The defendant is the registered owner of 8^th Floor and the roof of the same building.  The plaintiff complained that since October 2010 water had been seeping from the defendant’s flat into one of the three rooms in his flat (“the Damaged Room”).  As a result plaintiff’s tenant moved out of his flat on 27 February 2011.  The Damaged Room had since been rendered uninhabitable and the plaintiff had suffered loss of rental income.

2.In the proceedings below, the plaintiff sued the defendant for an order directing the defendant to rectify the water seepage problems on the defendant’s flat at its own costs; and for the costs of repair of the Damaged Room and loss of rental from March 2011 to the date of judgment.  The defendant denied liability contending that the water seepage into the Damaged Room was from other sources, that the water did not originate from his flat but came through the windows of the Damaged Room and the external walls.

3.After trial, Deputy District Court Judge Loh handed down her judgment on 16 March 2016 (“the Main Judgment”).  She found that the water seepage into the Damaged Room came from the bathroom in the defendant’s flat and that the cause of the water seepage was the defective waterproof membrane in the bathroom.  She entered judgment for the plaintiff against the defendant as follows with costs :

(1)  An injunction order compelling the defendant to carry out works to the defendant’s flat to rectify the water leakage problems of the Damaged Room at its own costs within 42 days from the date of judgment, that is, 16 March 2016;

(2)  Payment of damages in the sum of HK$156,750.00, consisting of repair and renovation costs of the Damaged Room in the sum of HK$27,300, and loss of rental income from March 2011 up to March 2016 in the total sum of HK$129,450.00; and

(3)  Payment of further damages for loss of rental income at the rate of HK$2,460.00 per month from April 2016 until such time when the defendant has complied with and carried out the rectification order above.

4.The defendant had carried out the rectification work in his flat as ordered by 30 April 2016.

5.The defendant applied for leave to appeal against the Deputy Judge’s order.  By her decision handed down on 1 June 2016 (“the Decision”), the Deputy Judge refused to grant leave, holding that there was no reasonable prospect of success in the intended appeal.  The defendant now renews its application for leave to appeal before this Court.

Discussion

6.Pursuant to section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the appeal should be heard.

7.On liability, the defendant argued that the Deputy Judge erred in finding that the water seepage into the Damaged Room originated from the defendant’s flat because:

(1)  No sufficient consideration had been given to the two letters from the Buildings Department/ Food and Environmental Hygiene Department Joint Office dated 25 October 2012 to the plaintiff and 15 January 2013 to the defendant respectively (“the two Joint Office’s letters”) which were to the effect that the source of seepage could not be confirmed as a result of tests conducted on 9 May 2012 in the defendant’s flat;

(2)  The defendant’s expert conducted dye water ponding on the Roof on 14 October 2014 and did not find dye water seeping into the plaintiff’s flat, nor at the Damaged Room; and

(3)  The plaintiff’s expert conducted dye water ponding on 30 November 2014 in the bathroom in Room B of the defendant’s flat (which was directly above the Damaged Room) but did not find dye or eosin yellowish water at the ceiling of or in the Damaged Room.

8.What was the cause of the water seepage into the Damaged Room is a question of fact.  The Judge’s findings on this question and the related matters are all findings of fact.  It is trite that the Court of Appeal will not disturb findings of fact by a trial court unless they are shown to be plainly wrong.

9.We have considered the Main Judgment.  The Deputy Judge had carefully considered all the evidence of the factual and expert witnesses before coming to her conclusions on the disputes and the findings of fact.  In particular, she had considered the two Joint Office Letters.  She had also explained why she preferred the plaintiff’s expect evidence to that of the defendant’s expert.  We see no proper basis to flaw her findings.  We are not satisfied that her findings are plainly wrong.  Quite to the contrary, we think her findings are well supported by the evidence and are plainly correct.

10.In the Decision, the Deputy Judge had dealt with the defendant’s contentions on liability in paragraph 7 above at [10] to [16].  We agree with her reasoning and conclusion.  We too find that there is simply no merit in any of the contentions on liability.

11.Turning to quantum, the defendant argued that the Deputy Judge erred in her award of damages because :

(1)  Damages for loss of rental income should not be allowed as the plaintiff had failed to prove liability; alternatively, such damages should be reduced in that plaintiff had failed to mitigate his loss by carrying out prompt and necessary repairs to the Damaged Room, or renting it out at a reduced rent on account of the damaged condition;

(2)  No loss of rental income should be allowed for the period from 9 May 2012, when the Joint Office conducted tests but could not confirm the source of water seepage, up to 30 November 2014, when the plaintiff’s expert conducted tests but could not find any dye water seeping from the bathroom in Room B of the defendant’s flat to the plaintiff’s flat, or for any shorter period in between when water seepage had stopped;

(3)  The $27,300 award for repair and renovation cost of the Damaged Room was based on a quotation the breakdown of which was neither reliable nor credible, and there was no expert evidence substantiating that all the damage was caused by the water seepage problems; and

(4)  The causation of loss of rental income was not proved in that the plaintiff failed to prove that the water seepage problems in the Damaged Room had caused the tenant to move out.

12.We have considered the Deputy Judge’s reasoning and findings for the assessment of damages in the Main Judgment.  We do not think she has erred in any way.  The Judge had dealt with all the defendant’s above complaints in the Decision at [17] to [25].  We agree with her entirely. We can see no substance whatsoever in any of the complaints.

13.In sum, there is no reasonable prospect of success in the intended appeal.  There is also no other reason in the interests of justice why the appeal should be heard.

Conclusion

14.We refuse to grant leave to appeal and dismiss the defendant’s application.  Costs should follow the event.  We order the defendant to pay the plaintiff the costs of the application and summarily assess the costs at HK$15,000.00.

15.As this application is entirely without merit, we further make an order under Order 59 rule 2A of The Rules of the High Court that no party may request our determination to be reconsidered at an oral hearing inter partes.

Mr David Fong, instructed by Huen & Partners, for the plaintiff

Mr Lawrence Cheung, instructed by W. L. Yuen & Co., for the defendant