Mohan Selvaraj v. Grace Ka Man O'Brien

DCCJ 3872/2018

[2019] HKDC 1365

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3872 OF 2018

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Coram: His Honour Judge Harold Leong in Chambers

Date of Hearing: 16 September 2019

Date of Decision: 14 October 2019

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DECISION

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1.This is an application for leave to appeal against a summary judgment and an application for stay of execution of an injunction by the defendant.

2.This is a water leak case and the background has been discussed in details in my judgment dated 21 March 2019 (the “Judgment”).

3.The legal principle of allowing leave for appeal is trite and need not be repeated here.

The grounds of appeal in the draft Notice of Appeal

4.According to the Notice of Appeal, the grounds of appeal was based on dispute on the court’s factual findings, namely, as I summarised), that the court has erred in:

i)  the degree of reliance on the two “inconsistent” water leak reports (Grounds 1 and 2);

ii)  that the mandatory injunction was necessary when the bathroom was not in use and that this application has been abandoned by the plaintiff (Ground 3);

iii)  that leave should be granted for proper expert evidence (Ground 4);

iv)  that no weight was placed on the defendant’s “rain storm hypothesis” (Ground 5);

v)  that no weight was placed on the defendant’s assertion that there was no consumption of water from her flat (Ground 6).

5.I would think that Grounds 1, 2, 5 and 6 are a rehashing of all the arguments already raised in the summary judgment hearing. The factual findings of the court and the reasons thereof (including the alleged “inconsistencies” of the water leak reports) have already been addressed in the Judgment.

6.As for Ground 3, although it was not specifically mentioned in the Judgment that the plaintiff had abandoned the mandatory injunction, it was a finding of fact, as supported by the MTC report, that the defendant’s claimed effort of “water-proofing” her bathroom was entirely ineffective and I cannot see why the court, in the interest of fairness and justice, and in exercising common sense, should not reinstate the mandatory injunction. Such reasoning was clearly explained in the Judgment.

7.Ground 4 is a “hybrid” argument rehashing the alleged “inconsistency” of the two water leak reports and arguing that “proper” expert evidence should be allowed to be adduced. The court was drawing a distinction between, on one hand, a pure lay hypothesis advanced by someone with no experience and who has carried out no test in support of that hypothesis, and on the other, reports of investigations under controlled conditions by experts in the field.

8.I agree with Mr. Brown, counsel for the plaintiff, that the purpose of Order 14 application is to stop those proceedings where the defendant’s claim is sufficiently weak that there is simply no point requiring parties to go to the time and expenses to produce expert’s reports and proceed to trial for cross examination of experts and other witnesses. It is wrong to propose that, regardless how strong the plaintiff’s case is, if one can claim that expert evidence is required, Order 14 cannot be granted. 

9.The citing of Li Ching Har & Anor v Wong Suk Kit [2019] HKDC 150 in the Judgment was not a general proposition that “the party who proposed a hypothesis must produce supportive expert evidence” at the summary judgment application stage. The passage, when read with the next paragraph (paragraph 20 of the Judgment), was to provide a background to the defendant’s behaviour, what effort she has done to “satisfy the court that she has a fair or reasonable probability of showing a real or bona fide defence”, and why no weight should be placed on this “rain storm hypothesis”. These paragraphs have already dismissed the argument (which Mr. Hughes, counsel for the defendant, rehashed in the current hearing) that the defendant did not have enough time to seek expert report.

10.I also think that Good Century Investments Limited v Yim Kin Kuo & Anor [DCCJ 4980/2013] does not assist the court. In that case, there was competing expert evidence so clearly Order 14 application was not suitable. Here, there was ample time for the defendant to “satisfy the court that she has a fair or reasonable probability of showing a real or bona fide defence” by perhaps conducting her own tests or instructing her own expert in support of her lay hypothesis, but she failed to do so. The court was drawing an inference from such behaviour as so how much weight one should place on that lay hypothesis.

Further grounds raised at the hearing

11.Mr. Hughes, during the hearing, raised 2 new triable issues (out of 5 triable issues: the remaining 3 are already addressed in the Notice of Appeal), namely, that the Judgment did not address the defendant’s contention that the water leak could be from the external wall, and whether the water-leakage into parts of the plaintiff’s flat other than the bathroom ceiling was caused by this external wall leakage.

12.I would think that the “water leakage from external wall” was the “rain storm hypothesis” which I have addressed in the Judgment.

13.Mr. Hughes placed a lot of emphasis on the existence of a complaint of external wall water leak during an incorporated owners’ committee meeting on 29 August 2018 from flats 16C and 17C.

14.These were not the flats involved in the current case and there was no further information as to what investigations and remedial measures, if any, were done. I fail to see how that has any relevance to the defendant’s “rain storm hypothesis”.

15.In fact, the only argument raised by Mr. Hughes with any persuasive strength was, as I paraphrased, whether all the damages claimed by the plaintiff was caused by the water leak from the defendant’s bathroom given that the MS Report only identify the plaintiff’s bathroom ceiling as the location of water seepage in the “Inspection Record of the Affected Premises” (page 70 of hearing bundle 2) and no other areas of water damage were reported.

16.Firstly, this is a “causation” argument which was neither raised in the summary judgment hearing nor in the Notice of Appeal. Mr. Brown, quite rightly, argued that this issue needed not be addressed at all.

17.Nevertheless, for the sake of completion, I will proceed to address this.

18.The plaintiff’s case, as stated in the Statement of Claim, has always been that the source of the water seepage was from the defendant’s flat onto the ceiling of the bathroom of the plaintiff’s flat, but the damage caused was not restricted to only the ceiling of the bathroom, but “the ceiling, wallpaper, and paintwork of the bathroom, bedroom and living room.” (see paragraphs 4 and 18(1) etc. of the Statement of Claim, pages 29 and 33 of the hearing bundle 1).

19.Mr. Hughes has suggested that, since there was a complaint of water leakage in the bedroom wall of two other flats in the building, this necessarily meant that there was a triable issue that the water damage to the bedroom and the living room of the plaintiff’s flat could also be from the external wall.

20.Firstly, this was another attempt to re-introduce the “rain storm hypothesis” which I have addressed already.

21.Secondly, regarding the MS Report: it is important to note that the purpose of the report is to investigate the source of water leakage: the title of the report is “Testing Services for Water Seepage Investigation Inspection Report” (page 66 hearing bundle 2).

22.This is a water leakage investigation report, not a surveyor’s report on water damages in the entire flat. In other words, the report is never intended to be a comprehensive documentation of all areas damaged by the water after it had entered the flat.

23.The section referred to by Mr. Hughes is titled “location of water seepage”, that is, to show the location where the water has entered into the plaintiff’s flat (and moisture content etc. has been measured to verify such). The section is titled “location of water seepage” and not “location of water damage”.

24.As such, the fact that the MS report does not mention the ceilings of the bedroom or living room etc. could not be taken as to mean that there was no sign of water damage there, or that any water damage there was not related to the source of the water seepage from the bathroom ceiling: areas not mentioned were simply areas not identified as the locations of the source of water entry into the plaintiff’s flat.

25.It is clearly open for the court to look at all evidence, including the Affidavit of the plaintiff and all the exhibits, to come to a view whether all such damages claimed by the plaintiff were caused by the water first entered from the bathroom ceiling and not from any other sources (like the “rain storm / external wall hypothesis”).

26.The court finds no confusion regarding the sites of the water damage. Paragraph 11 of the plaintiff’s 1^st Affidavit clearly describe that the signs of water damage were in the ceiling of the living room, bathroom and bedroom and these were “the living room and the bedroom directly adjoining the bathroom” (page 64 of hearing bundle 1). The diagram attached clearly showed where the affected areas were (page 31 of hearing bundle 2) and these were entirely consistent with the description in the affidavit.

27.Further supportive evidence is from the letter from the management office which stated that their staff found signs at the “living room and bedroom of unit 14C…When our staff open the false ceiling of the bathroom…we found water dripping on the roof (presumably they meant again “ceiling”), suspect that it was due to water leakage problem of some facilities in unit 15C…” The signs in these areas were found at the same time.

28.I also note that the quote for the damage repair (page 111 of the hearing bundle 2) was for (as I translate): “1. Bathroom remove ceiling, remove and repair plaster… 2. Remove and re-do wall paper on living room ceiling and on wall near bathroom wall…5. Replace wall paper in master bedroom wall near the bathroom 6. In addition, replace master bedroom ceiling wall paper…” These are also consistent with the areas of water damage alleged by the plaintiff.

29.The court has clearly come to the decision after assessing such evidence that all such damages claimed by the plaintiff were caused by the water seepage from the bathroom ceiling, and not from the “rain storm / external wall hypothesis”.

30.In passing, Mr. Hughes also submitted that there is a discrepancy in the plaintiff’s case: in the General Indorsement of Claim, it was stated “The Plaintiff’s claim is for damages…suffered by the Plaintiff including, but not limited to, repair costs, distress…as a result of water seepage since June 2017 onwards emanating from the Defendant’s premises…”; in the letter before action dated 21 August 2018 (page 43 of Hearing Bundle 2), the plaintiff’s lawyer stated “You have been aware of the water seepage problem emanating from your flat since early June 2017…”; and yet in the Statement of Claim, it was stated under paragraph 4 (page 29 of Hearing Bundle page 29): “On or about June 2016, the Plaintiff first noticed dark spots and dampness in the ceiling…”

31.I do not see any problems with the pleadings.

32.The General Indorsement of Claim clearly stated that the claim for damages includes but not limited to the water seepage since June 2017. The letter before action only refers to the date that the defendant was aware of the water seepage. Paragraphs 4 to 8 of the Statement of Claim explained all this: the plaintiff first noticed dark spots on or about June 2016 and has notified the management office. But the management office was unable to obtain any response from the plaintiff. The water leakage worsened by June 2017 and the defendant finally responded to the management office this time, thus it was correct (and fair) to state (in the letter before action) that the defendant must be aware of the problem since then.

Conclusion

33.In conclusion, I see no reasonable prospect of success of an appeal and I also see no reason in the interest of justice for an appeal to be heard.

34.I would order that the defendant’s applications for leave to appeal and for stay of execution be dismissed with costs to the plaintiff to be taxed if not agreed, with certificate for counsel.

Mr Toby Brown, instructed by Ince & Co, for the plaintiff

Mr Sebastian Hughes leading Mr Joseph Wong, instructed by Khoo & Co, for the defendant