Pong Wai Fong and Another v. Chan Pak Lam and Another

DCCJ 4740/2019

[2022] HKDC 986

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4740 OF 2019

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BETWEEN

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Before: Deputy District Judge B Mak in Court

Date of Hearing: 30 August 2022

Date of Judgment: 15 September 2022

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JUDGMENT

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Introduction

1.This is a water seepage case which the defendants have taken half-hearted effort to contest.

2.After the filing of a defence, the defendants took no further step in the proceedings. They have not complied with the case management directions of the court including the filing of list of documents and witness statements. Nor did they nominate an expert pursuant to the directions of Master Maurice Lam dated 19 February 2021.

Notice of trial

3.Despite the attitude of the defendants, the plaintiffs did comply with all the directions of the court which led to the setting down of the case for trial on 11 June 2021 (“the setting down order”).

4.The setting down order was served by the plaintiff’s solicitors on the defendants on 20 August 2021 by prepaid ordinary post to their address for service.

5.A notice of trial dated 15 September 2021 was also sent to the defendants at their address for service by the court.

6.The hearing bundle for the pre-trial review was served by the plaintiffs’ solicitors on the 1^st named defendant personally on 13 June 2022; the order of court dated 29 June 2022 and other documents were served on the 1^st named defendant personally on 19 July 2022 and the opening submission and list of authorities of the plaintiffs were served on the 1^st named defendant on 11 August 2022 personally.

7.I am satisfied that the defendants have had notice of the present trial but have chosen not to appear.

The plaintiffs’ case and evidence

8.The plaintiffs are the registered owners of Flat H, 21^st Floor, Block 7, Belvedere Garden Phase 2, No 620 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (“the plaintiffs’ flat”). The defendants are the registered owners of the flat immediately above the plaintiffs’ flat, ie Flat H, 22^nd Floor, Block 7, Belvedere Garden Phase 2, No 620 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (“the defendants’ flat”).

9.Water seepage was discovered since about June 2017 at the ceiling of the master bathroom and the guest bathroom of the plaintiffs’ flat.

10.Complaint was made to the Food and Environmental Hygiene Department. As a result, P2H Design Associates Ltd (“P2H”) was engaged to conduct investigation. Ponding test was done at the master bathroom and guest bathroom of the defendants’ flat in February 2018. It concluded that there was water infiltration from the floor slab of the master bathroom of the defendants’ flat.

11.The plaintiffs appointed Mr Chiu Chi Pun Edmund of PWL Building Surveying & Adjustors Limited to be the plaintiffs’ expert. Mr Chiu conducted inspection at the plaintiffs’ flat on 20 March 2019. He found that the ceiling of the master bathroom and guest bathroom were intensely spoiled with water marks and with painting peeled off.

12.When Mr Chiu testified in court, he clarified that he saw green water marks at the ceiling of the master bathroom of the plaintiffs’ flat which were the result of test conducted by the previous consultancy company assigned by the Food and Environmental Hygiene Department, ie P2H. Such water marks corresponded with the ponding test done by P2H at the master bathroom of the defendants’ flat. It showed that the waterproof membrane of the master bathroom of the defendants’ flat was compromised and/or the drainage pipes thereof were leaking.

13.Further, as the colour pigment of the water dye might be absorbed by the concrete of the floor slab, the water marks that appear at the ceiling of the floor downstairs might become colourless. Therefore, it cannot be ruled out that apart from master bathroom of the defendants’ flat, its guest bathroom may also be leaking.

14.Infrared thermographic survey and moisture measurement survey at the ceiling of the master bathroom and the guest bathroom of the plaintiffs’ flat also showed the ceiling area near the wall between the 2 bathrooms and the external wall at the master bathroom suffered serious seepage problem.

15.Mr Chiu again attended the plaintiffs’ flat on 26 August 2022 to update the present condition thereof. He found the spalling of the ceiling concrete of the master bathroom and guest bathroom. Also, more cracks are seen to the tiles of the wall than before. All these show that the water seepage is continuous and there is no sign of improvement.

16.Mr Chiu was of the opinion that repair works have to be done in the defendants’ flat in order to achieve a complete cure of the water seepage problem. If not, damage would be done to the steel bars, concrete and plastering of the plaintiffs’ flat very soon.

17.In view of the present condition of the water damage and the increase in the costs of labour since the last report, Mr Chiu has adjusted the repair costs to $232,298.30.

The defence

18.Each of the defendant has filed a one-page defence which are identical in contents.

19.By the defence, they alleged that on visual inspection, no water leakage was found on all utensils and pipes in the bathrooms.

20.They also alleged that the Food and Environmental Hygiene Department has conducted ponding test and colour water test. In the middle of 2108, they received letter informing them that there was no sign of water seepage in the plaintiffs’ flat.

21.Finally, they alleged that they have converted the use of the master bathroom to storage.

Findings

22.I have considered the evidence adduced by the plaintiff and find them logical and credible.

23.The defendants are barred from adducing documentary evidence and expert evidence by order of the court dated 17 June 2020 and 19 February 2021 respectively. They have not filed any witness statement.

24.In the circumstances, I see no merits in the defendants’ defence.

25.I find as a fact that the water damage in the plaintiffs’ flat was caused by the water leakage from the floor slab of the master bathroom of the defendant’s flat.

26.Clause 14 of the Sub-Deed of Mutual Covenant dated 5 January 1990 (“the Sub-Deed”) which governed Phase 2 of Belvedere Garden has the following provisions:-

“14. Each owner hereby further covenants with the other owners as follows:-

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(20) To be responsible for and to indemnify the Manager and all other owners and occupiers for the time being of the said premises against all actions proceedings claims and demands whatsoever arising out of or in respect of any loss or damage to any person or property caused by or as the result of the act default or negligence of any occupier of any unit of which he is the owner or any person using such unit with his consent express or implied or by or through or in any way owing to the overflow of water therefrom.

…

(23) To repair and keep all taps baths washbasins water closets sinks cisterns water heaters and waste and other internal pipes in or connected with his own unit clean and open and in good order and repair and to keep in good order and repair all other pipes and all wires conduits fittings and apparatus within or exclusively serving his own unit and used for or in connection with the services of water gas or electricity in his own unit and to make good all damage occasioned to his own unit and to make good all damage occasioned to his own unit or to any other part of the Estate through any breach of this obligation or through improper use by or the negligence of such owner or the servants or agents of such owner or of any person for the time being in or using his own unit in connection with any of the things aforesaid or through the stopping up bursting overflowing or leakage of any of the said taps baths washbasins water closets sinks cisterns heaters pipes fittings or apparatus due to the negligence of such owner or of any such person as aforesaid and to carry out any works required to the internal water pipes taps fittings and apparatus of any kind whatsoever for compliance with any notice served by the statutory water suppliers or the local sanitary or other competent authority.”

27.Further, water leakage from the upper floor constitutes nuisance: see Sum Wing Sung v Kwok Wing Yan Vivian [2021] HKDC 766.

28.I am satisfied that the defendants are in breach of the Sub-Deed and are liable to the plaintiffs for the sum of $232,298.30 being the reasonable costs of reinstatement to the plaintiffs’ flat due to the water leakage from the defendants’ flat to the plaintiffs’ flat.

29.In the closing submission, Mr Kong asked for judgment for the costs of the expert report in the sum of $22,000.

30.The expert report was adduced pursuant to the order of Master Maurice Lam dated 19 February 2021. The costs thereof fall with the ambit of costs of the action.

31.Based on the cause of action of nuisance and breach of Deed of Mutual Covenant, the plaintiffs are entitled to the injunctive relief sought: Victory Success Trading Ltd v Cheung Kin Ying [2020] HKDC 753.

32.The plaintiffs’ are therefore entitled to an order requiring the defendants to carry out all the necessary remedial works to the defendants’ flat in order to stop the water leakage and an injunction restraining the defendant from allowing water to leak to the plaintiffs’ flat.

Judgment and orders

33.Accordingly, I give judgment for the plaintiffs for the sum of $232,298.30 and make the following orders:-

(a) an order that the defendants do forthwith carry out such repair or remedial works to stop or prevent the water seepage from the defendants’ flat to the plaintiffs’ flat; and

(b) an injunction restraining the defendants, whether by themselves or their agents, tenants or occupants, from causing, permitting or continuing the water seepage affecting the plaintiffs’ flat.

Interest

34.Interest shall be calculated at 1% above the best lending rate of HSBC from the date of writ of summons to the date of judgment and thereafter at judgment rate until payment.

Costs

35.Costs to follow the event. I order that the defendants shall pay the plaintiffs’ costs of this action including all costs reserved, if any, to be taxed if not agreed.

Mr W Kong, instructed by Anthony Kwan & Co, for the plaintiff

The defendants were not represented and did not appear