Wong Wai Ping and Another v. The Incorporated Owners of Mount Parker Lodge

DCCJ 5891/2020

[2023] HKDC 249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5891 OF 2020

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JUDGMENT

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1.This is a water seepage dispute.

2.The plaintiffs were and still are the owners and occupiers of the duplex unit known as Flat B5 on the 33^rd Floor and Portion of Flat Roof and 34^th Floor and Portion B5 of the Roof of Block B, Mount Parker Lodge, No 10 Hong Pak Path, Hong Kong (“the Duplex”; separately, Portion B5 of the Roof “Roof B5”, Flat B5 on the 34^th Floor “Flat 34B5”).

3.When the plaintiffs commenced this action in the Court of First Instance (HCA 1379/2017) in June 2017, they claimed against the defendant the Incorporated Owners of Mount Parker Lodge (“the IO”) for, among others, a mandatory injunction to enjoin the IO to carry out repair works to redress the water seepage from Roof B5 to Flat 34B5. The IO counterclaimed for a similar injunction to enjoin the plaintiffs to carry out the repairs or for indemnity from the plaintiffs concerning such repair costs.

4.In December 2018, the plaintiffs carried out the remedial works themselves and now claims against the IO reimbursement of the repair costs at HK$213,988 and damages for discomfort and inconvenience. In October 2020, HCA 1379/2017 was transferred to this court to become this action.

5.At trial, the plaintiffs were represented by Mr Vincent Li (with him Mr Owen Tsoi) and the IO by Mr Vincent Chen, all of counsel. The 1^st plaintiff (“Dr Wong”), who is a retired government medical doctor, gave evidence for the plaintiffs’ case. Mr Lo Gon Fai Stephen (“Mr Lo”), the Chairman of the IO, who is a structural engineer by profession, gave evidence for the IO. Both parties adduced reports from their respective experts who gave oral evidence.

Background

6.The background matters are straight forward and largely uncontroversial.

7.The estate known as Mount Parker Lodge consists of 5 residential blocks. They were completed and first occupied around 1990. The IO was incorporated in July 1994.

8.Dr Wong and his wife the 2^nd plaintiff purchased the Duplex as joint owners in February 1997. After the purchase they renovated the Duplex before occupying it as their residence.

9.According to Dr Wong, not disputed by the IO, when the plaintiffs purchased the Duplex, there were already certain works performed on Roof B5 by the previous owner. The works consisted of, among some others, alteration of the floor tiles on Roof B5 from the original 300 mm x 300 mm concrete tiles to certain black and white ceramic tiles, and the construction of a roof top structure with window enclosures covering a substantial part of Roof B5 (“Alteration Works” and “the Roof Top Structure”). It is common ground that the Roof Top Structure was unauthorized.

10.By Order No C/TB/003687/11 dated 30 November 2011, the Building Authority ordered the demolition of the Roof Top Structure (“the Demolition Order”). Sometime in 2012, the plaintiffs complied with that Order. A letter of compliance dated 17 October 2012 was issued by the Building Authority.

11.According to the plaintiffs, they discovered seepage of water from Roof B5 to the ceiling of Flat 34B5 in mid-2014. The plaintiffs said that at the time they had reported the seepage to ISS Eastpoint Property Management Limited (“the Manager”), the estate manager of Mount Parker Lodge. The IO said that no record of such a report could be found. The precise date of the plaintiffs’ first report to the manager was not said by either party to be particularly material.

12.In the ensuing 2 years between May 2015 to late May 2017, there were numerous correspondence[1] exchanged between the plaintiffs and the Manager, between the plaintiffs and the IO, and between the former solicitors of the plaintiffs and the former solicitors of the IO, concerning, among others, the plaintiffs’ demand for the IO to repair the waterproofing membrane, various related matters and making the arrangements regarding an examination and investigation by the IO’s expert.

13.During this period in around July 2016, the plaintiffs’ engaged their expert Dr C K Lau who compiled a short report dated 31 August 2016 (“Ps’ Expert” and “Lau 1^st Report”), in which he opined that “the waterproofing membrane should have been damaged as a result of aging and/or physical interference done to it”.

14.Eventually by the letter of its former solicitors dated 23 May 2017, the IO formally stated its stance that it was the Alteration Works that had caused damage to the waterproofing membrane and that the IO was not responsible for the seepage problem or its repairs.

15.The lengthy time taken before the IO gave that formal response and the IO’s initial refusal to disclose to the plaintiffs the report of its expert Mr Simon Cheung Wai Sum dated 28 February 2017 (“D’s Expert” and “Cheung 1^st Report”) based on purported privilege (which report was only disclosed in July 2017), unfortunately but understandably, engendered much dissatisfaction and distrust on the part of the plaintiffs. At trial, the plaintiffs adopted a rather aggressive stance and were keen to find fault and criticize the IO over different facets in relation to how the IO handled the matter. However, these alleged faults and criticisms have little relevance to the determination of the main issue on liability. Some of these criticisms that relate to the expert evidence will be mentioned in their context.

16.As have mentioned, in June 2017 the plaintiffs commenced HCA 1379/2017 which was transferred to become this action; and that in around December 2018, the plaintiffs undertook the repairs themselves and now claim for the costs of repairs and damages.

The issues to be resolved

17.It is apparent that after the first round of examination by the respective experts that they agreed that the water seepage (which I will identify and describe later) has been caused by the damage to the waterproofing system or membrane in the floor slab of Roof B5. This is a common ground between the parties.

18.The IO does not dispute that the said waterproofing system or membrane is a common facility of Mount Parker Lodge and that it has therefore been their responsibility under Clause 12 of Sub-Section B of Section V of the Deed of Mutual Covenant of Mount Parker Lodge (“the DMC”) to repair and to keep the same in good condition. The IO also does not dispute that if the waterproofing membrane failed because of natural aging, it is their responsibility to make good. However, it is the IO’s case that if it was damaged by the Alteration Works, it is the plaintiffs’ own responsibility. The IO also confirmed at trial that as the repairs had been performed by the plaintiffs, it need only to pursue its case as a defence and the Counterclaim therefore has been rendered otiose and it would no longer pursue it as such.

19.On the plaintiffs’ part, they do not dispute that under Clause 4 of Section IV of the DMC (“Clause 4”), they as owners covenanted thus:-

“4. No owner shall make any structural alterations to any part of the Estate owned by him which may damage or affect or interfere with the use and enjoyment of any other part or parts of the Estate … nor will any owner use, cut, injure, damage, alter or interfere with any … part or parts of the Estate’s Common Areas or any of the Estate’s Common Facilities …”.

20.At trial, the plaintiffs accepted, and I think rightly, that if the water seepage was caused by a breach of Clause 4, then even though the Alteration Works were not performed by the plaintiffs, the plaintiffs, by having continued to use the Roof Top Structure and Roof B5 with the Alteration Works, would be liable for the continuing breach of Clause 4, which is a negative covenant.

21.The parties therefore are agreed that the main issue is whether the waterproofing system or membrane of the floor slab was injured, damaged or otherwise interfered with (in the language of Clause 4) by the Alteration Works, which has caused the water seepage; and if it was, then the plaintiffs’ claim would fail; if it was not, then the IO would be liable.

22.Mr Li submitted for the plaintiffs, and I accept, that as the default position is that the IO is liable to repair and to keep in good condition the waterproofing system or membrane, the burden lies on the IO to prove on balance of probabilities that the continuing breach of Clause 4 has caused the seepage.

23.The only other issue in respect of liability is that the IO pleaded that the exemption clause in Section V(D) of the DMC (“the Exemption Clause”) would exempt the IO from liability in respect of any act or omission save those involving criminal liability, dishonesty or wilful negligence, though the clause expressly refers to “the manager” and “the Owners’ Committee” as the subjects whose liability is exempted and not the IO. Despite an invitation from the bench to drop this contention, Mr Chen on behalf of the IO indicated that it would continue to pursue it.

24.As to quantum, the IO does not seriously dispute the amount of the repair costs in the sum claimed, namely HK$213,988. Regarding the amount of damages for discomfort and inconvenience, the plaintiffs have not set out any figures in their pleadings, nor have they addressed the court thereon at trial in their opening and closing submissions, whether written or oral.

The seepage occurred at the location on the ceiling of Flat 34B5 where the supporting poles of the Roof Top Structure were anchored on Roof B5

25.Before Lau 1^st Report was compiled, Ps’ Expert carried out 2 site inspections of the Duplex. The first inspection was on 31 July 2016. Ps’ Expert observed water damage at 4 locations on the ceiling of the master bedroom of Flat 34B5. As shown by the pictures annexed to Lau 1^st Report[2], and confirmed by Dr Wong in oral evidence by reference to those pictures, that the 4 locations were very close to each other, with the main patch of water damage being the largest by far, and which was situated outside the doorway of the toilet inside the master bedroom as depicted in the photograph marked “Photograph E” at page 138 of the Trial Bundles (“the Main Seepage Area”). The second inspection took place on 19 August 2016, which was a rainy day. Leakage of water was observed at the Main Seepage Area[3], and not the other 3 close-by locations.

26.Importantly, it is common ground that:-

(a)  the Main Seepage Area was located directly beneath the spot of floor slab where Supporting Pole A (defined below) was anchored, and the Main Seepage Area extended from there to the location beneath where Supporting Pole B was anchored[4];

(b)  the seepage problem only occurred at and near the Main Seepage Area and in no other location on the ceiling of Flat 34B5.

27.I would mention that when D’s Expert first inspected the Duplex on 24 December 2016 (for the purpose of compiling Cheung 1^st Report), he noted that there were in the Duplex other areas of water damage suggesting seepage in areas apart from the Main Seepage Area, including areas near and below the windows on the wall of the stair hood of the staircase leading from Flat 34B5 to Roof B5 and inside the master bedroom bathroom and the guest bathroom. In Cheung 1^st Report, he also opined on the possible causes of these other seepage areas. However and by now, it is common ground that the seepage in these other areas was either the result of another cause wholly unconnected to the dispute in this action or they were actually areas of water damage caused by condensation rather than seepage. I would therefore not deal with various matters and the experts’ opinions expressed in their reports on these other areas.

The Alteration Works and the Roof Top Structure

28.Before Dr Wong’s oral evidence, little was known about the details of the Alteration Works, particularly in respect of the Roof Top Structure.

29.Though it was stated in the pre-action letters and pleaded in the IO’s Defence and Counterclaim that it was the IO’s contention that the Alteration Works (including the Roof Top Structure) have caused the seepage, and therefore the Alteration Works (including the Roof Top Structure) were brought into issue, little information or evidence was provided by the plaintiffs in relation to them.

30.There was no document or picture produced by the plaintiffs in relation to or showing the Roof Top Structure, whether prior to its demolition in 2012 or in respect of its demolition.

31.In Dr Wong’s witness statement, not a word was said about the Alteration Works and the Roof Top Structure.

32.Before Dr Wong’s oral evidence, the only pieces of information available about the Roof Top Structure were:-

(a)  An Inspection Report dated 17 June 2011 attached to the Demolition Order (“the Inspection Report”). It was obtained by the IO and produced as Appendix VI to Cheung 1^st Report[5]. The Inspection Report only consisted of one page showing 2 photographs of the Roof Top Structure taken at 2 different locations with a few annotations.

(b)  The base plates of the 2 Supporting Poles (“the Base Plates”) were still embedded in the floor slab when this dispute occurred. According to Dr Wong, which is not disputed, when the Roof Top Structure was demolished in 2012, the 2 poles were cut off at floor level without digging out and removing the Base Plates.

33.The following are common grounds between the 2 experts and the parties which were gauged from the said 2 photographs in the Inspection Report and from the locations of the Base Plates:-

(a)  The Roof Top Structure consisted of 2 canopies, one much larger in coverage (“the Main Canopy”) and another much smaller, sitting on either side of the Upper Roof (which was the roof top of the stair hood). Together with the Upper Roof, the 2 canopies formed a continuous rectangular shape canopy structure covering the half of Roof B5 adjacent to Block 6. The long edge of the canopy opened up to the other uncovered half of Roof B5.

(b)  The two Supporting Poles were attached along the long edge of the Main Canopy (together “the Supporting Poles”). One of the 2 Supporting Poles situated close (1.4 meters) to the wall between Roof B5 and the common area of the building housing the lifts and other utilities (respectively “Supporting Pole A” and “the Common Wall”). The other Supporting Pole situated closer to the Upper Roof (“Supporting Pole B”).

(c)  In the area covered by the 2 canopies and where there were parapet walls, windows were installed sitting on the top of the parapet walls and apparently extended up to the base of the canopies. There was no window, wall or any enclosure built along the long edge. Thus, the side of the Roof Top Structure along the long edge was open with only the 2 Supporting Poles erected.

(d)  The precise locations of the 2 Base Plates are depicted in 2 plans drawn by D’s Expert[6]. For ease of reference, I attach to this Judgment D’s Expert’s plan at p 368 of the Trial Bundles annotated thereon the measurements agreed by the parties and a dotted line showing where the long edge of the Main Canopy was. (“the Annexed Plan”).

(e)  It can be seen there that the long edge of the Main Canopy is 5.18 meters in length, while the square-shaped part of the Main Canopy was measured 3.08 meters x 3.63 meters.

(f)  Apart from the support that the Main Canopy might have obtained by being attached to the Common Wall and the walls of the stair hood, and possibly also from the support offered by the windows (which apparently connected the top of the parapet walls and the base of the canopies), the 2 Supporting Poles were the only structural supports built along the long edge of the Main Canopy.

(g)  As the smaller canopy on the other side of the Upper Roof is not of relevance to the present dispute, it is not described here.

The expert reports, the credibility of D’s Expert and other matters agreed by the experts

34.As mentioned, Ps’ Expert compiled Lau 1^st Report dated 31 August 2016, he then further compiled another report dated 29 July 2019 (“Lau 2^nd Report”) and another supplemental report dated 4 December 2019 (“Lau 3^rd Report”) (together “Lau Reports”).

35.D’s Expert compiled Cheung 1^st Report dated 28 February 2017, he then further compiled another report dated 13 September 2019 (“Cheung 2^nd Report”) and another supplemental report dated 26 March 2020 (“Cheung 3^rd Report”) (together “Cheung Reports”).

36.The 2 experts compiled a Joint Statement dated 28 May 2020 (“the Joint Statement”).

37.After the respective experts’ first reports were compiled and on 6 December 2018, the plaintiffs’ constructor opened up the black and white tiles on the floor of Roof B5 and the sand screeding and the waterproofing membrane underneath in the presence of the IO’s representatives and D’s Expert. At trial, there was much criticism and complaint by Dr Wong (in his evidence) and also by Mr Li concerning, among others, how and why D’s Expert only observed from a distance and did not join Ps’ Expert in discussion at the site upon the latter’s invitation. By a very late application made just days before the trial commenced, which application I heard on the first day of trial and allowed as it was not disputed by the IO, the plaintiffs adduced, among others, a video footage taken that day. Upon the plaintiffs’ request, the footage was shown at trial showing essentially what I described above. Upon my enquiry, the plaintiffs confirmed that there were no directions obtained or made as to how that investigation was to be conducted. Therefore, D’s Expert’s such conduct has not breached any directions made, and it follows that as to how that inspection was to be conducted by D’s Expert was a matter within his own judgment.

38.Mr Li submitted that as D’s Expert only observed at such a distance, it showed that he had “an indifferent attitude” as to the true state to be revealed by the opening up of the floor slab, and he further submitted that, together with his other criticisms, it showed that D’s Expert was acting as an advocate for the IO rather than an impartial expert giving fair opinions to assist the court.

39.I do not accept that submission.

40.Firstly, against the backdrop that no information whatsoever was provided by the plaintiffs to D’s Expert about the Alteration Works at the time prior to compiling Cheung 1^st Report (or any thereafter), the investigation by D’s Expert had to involve a certain degree of probing and hypothesizing. In such circumstances, Dr Wong’s and Mr Li’s criticisms against various steps taken and methods employed by D’s Expert on that occasion are, in my view, unwarranted and unjustified.

41.Secondly, Cheung Reports are relatively detailed and organized. They contain a number of close-up photographs taken on 6 December 2018 depicting the state of the open-up floor slab to illustrate his opinion. They also contain a number of well-illustrated plans which are very helpful. His opinions are reasoned. I do not agree that D’s Expert has an indifferent attitude to the truth. I find that criticism unfounded.

42.Thirdly and on the contrary, I am favourably impressed by D’s Expert as an expert witness when he was giving oral evidence. He answered questions directly and almost invariably with articulated reasons. It seems to me that he was also fair in that over some of his opinions that were not as well founded, he merely stated his basis and did not further press them or dodge challenging questions.

43.Therefore, and though for reasons expressed in due course I am unable to find in favour of some of his opinions, I find D’s Expert generally a fair, impartial and credible expert witness.

44.D’s Expert opined essentially that the water seepage was caused by the Alteration Works:-

(a)  Based on his observation that 10 mm anchor bolts were drilled into the external walls of the stair hood but were cut and plastered with poor workmanship, and as the majority part of the floor of Roof B5 was covered by a grey waterproofing paint, he deduced that similarly anchor bolts might have been installed and removed with poor workmanship which punctured/damaged the waterproofing membrane (Cheung 1^st Report §§5.3.13-15)(“the Other-Anchor-Bolts Cause”);

(b)  Since the floor of Roof B5 had been raised higher than it originally was and new ceramic floor tiles replaced the original concrete tiles, he opined that the original waterproofing system might have been fully removed (Cheung 1^st Report §5.3.10 and §5.3.16). He maintained the same opinion in Cheung 2^nd Report and added that the original waterproofing system was replaced by a private waterproofing system installed when the Alteration Works were performed (Cheung 2^nd Report §5.3.17). He opined that in the opening up inspection, no 300 mm x 300 mm original concrete tile was found (Cheung 3^rd Report §3.3)(“the Private-Water-Proofing-System Cause”);

(c)  The installation of the Base Plates damaged the waterproofing system and membrane; the contractor was negligent in the installation (Cheung 2^nd Report §5.3.17 and §5.3.29)(“the Negligent-Installation-of-Base-Plates Cause”); and

(d)  As the floor of Roof B5 was raised and thickened up to 75 mm, the added loading would accelerate material deterioration and shorten the lifespan of the waterproofing membrane made of asphalt felt, while the typical life expectancy of the asphalt felt waterproofing membrane was at least 30 years subject to no external physical impact (Cheung 2^nd Report §5.3.17, §6.1, §6.4(f) and Appendix XI (being a study of Improvement Center in UK of Life Expectancy of Roofing Materials))(“the Shortened-Lifespan-By-Added-Load Cause”).

45.The Lau Reports are relatively short in contents and to the point. They essentially dispute the various causes opined by D’s Expert. It would be convenient for me to set them out in the sections when I am discussing the above causes.

46.I am also favourably impressed by Ps’ Expert as an expert witness. I think he is also fair, impartial and credible.

47.The 2 experts are also in agreement as to the following:-

(a)  As found by D’s Expert, the floor of Roof B5 was thickened and raised by 50-75 mm, which was not disputed by Ps’ Expert.

(b)  The original waterproofing membrane embedded in the floor slab of Roof B5 was made of asphalt felt[7].

(c)  The Base Plates were steel plates measuring 124 mm in length x 50 mm in width x 5 mm in thickness. On each of them had been welded the Supporting Poles which were metal pipes of 42 mm in diameter and of 4 mm in thickness. The Base Plates were each anchored by two 6 mm bolts (see Figure 1 in the Joint Statement).

(d)  The construction details of the Roof B5 floor slab when the floor was opened were those as depicted in Figure 1 of the Joint Statement : with the waterproofing membrane as “Layer 0”, beneath it were “Layer-1” - 45 mm thick screeding with polystyrene beads of 3 mm in diameter and “Layer-2” which was the concrete slab; while above the waterproofing membrane were “Layer +1” - sand screeding of 40 mm thickness, “Layer +2” - cement tiles or blocks of about 30 mm thick, “Layer +3” - sand screeding and “Layer +4” – 9 mm ceramic tiles, and the last 2 layers together measured 41 mm in thickness.

(e)  The Base Plates sat on the surface of Layer +2 and they were therefore buried in the floor of Roof B5 and covered by Layer +3 and Layer +4 and were at the depth of about 41 mm beneath the surface of the floor.

The evidence of the factual witnesses

48.Mr Lo filed a 7-page witness statement setting out succinctly the key events, which are in any case not disputed. He was however cross-examined in some length on certain alleged discrepancies in the Management Committee minutes, on exactly when D’s Expert was first engaged and on the precise ambit of work instructed to D’s Expert and such. I find them totally irrelevant but a mere attempt at vindicating certain grievances the plaintiffs personally had over certain suspicions they harboured. I would also mention that Mr Lo explained in oral evidence why the IO took such a long time and only gave a formal response in May 2017 - that time was taken in trying to liaise with an owner of another roof top duplex unit to open up his roof top floor slab to inspect to provide a baseline for comparison, but eventually to no avail. His explanation was not disputed by the plaintiffs.

49.Dr Wong filed a long 20-page witness statement narrating events and correspondence since 2014, as well as setting out in length the duties of the IO and its alleged breaches and other legal matters on the pretext that he has been so advised, despite the fact that it is trite that witness statements should not contain legal contentions and matters. However and as mentioned, not a single word was said about the Alteration Works. He also filed a supplemental witness statement exhibiting, among others, the video footage taken on 6 December 2018 and photographs of the post-up versions of certain minutes of the Management Committee. As can be gathered from my narrative and various matters set out above, most, if not all, of what Dr Wong said in his 2 witness statements are not probative to the resolution of the main issue.

50.I therefore do not propose to take up time to further deal with these matters.

51.There are however 2 very important pieces of evidence given by the factual witnesses.

52.The first piece of evidence is this. In cross-examination when asked by Mr Chen regarding with what materials the Roof Top Structure was constructed, Dr Wong divulged for the first time ever that the top of the canopy was constructed with metal sheets with a layer of “concrete” (石屎) laid on top. The bench and counsel then understood that it might be concrete proper or just a layer of cement sand screeding, and the trial proceeded accordingly and the experts were respectively questioned on the basis that there was either a layer of concrete or cement sand screeding on top of the metal sheets forming the canopy.

53.In his written final submissions, Mr Li submitted that the above was merely “a guess” given by Dr Wong when he was repeatedly being pressed by Mr Chen and it would be “unfair” to take such a guess as evidence on fact[8]. In oral final submissions, this court invited Mr Li to hear the recording of the evidence together to make good his point, but Mr Li declined and simply maintained his submission.

54.In the morning of Day 2 of trial, Dr Wong was cross-examined by Mr Chen and answered thus:-

“11:35:10

Q: 乜嘢物料？嗰個roof top structure 天台建築物個頂

A: 因為當時唔係我起，我唔知，但係我.. 我印象中可能係啲鐵皮之類咁啦，有啲... [witness was interrupted by counsel]

Q: 由1997 至2012，用咗建築物5年 [counsel interrupted by witness]

A: 吾止，97年開始

Q: 十幾年，你用建築物來做咩？什麼用途？什麼目的？

…

11:36:11

Q: 嗰個物料係鐵皮，你嘅意思？

A: 鐵皮同埋有啲… 我.. 因為我自己唔係呢方面啲人，都唔識講

Q: 金屬嘅，你嘅意思係？

A: 金屬，可能有啲石屎嗰啲咁囉

Q: 有石屎嘅？

A: 係

Q: 我地去返288頁 [Inspection Report]，成個案件，就算專家證人都好，都冇見過呢個建築物，唯一見過係你

A: 我吾知佢，佢金屬上面就鋪咗層石屎，之前我冇留意佢結構係點樣，直至我收到呢份嘢之後，我先至開始關注到

…

Q: 求先你話canopy，吾係布簷蓬咁嘅情況？意思吾係布canopy?

A: 吾係吾係

Q: 係穩固的建築物，有金屬和石屎嘅？係唔係咁嘅情況？

A: 應該係囉，呢個唔係我單單講嘅，其實佢哋不嬲淨係單單提供呢份報告，即係提供呢張相俾我呢，之前係好濛嘅，我特登走去屋宇署申請個copy，呢個report 就incomplete 嘅… 後面仲有屋宇署畫嘅一個Sketch嘅…”

55.Quite clearly, in these lines of questions, the subject matter was the material with which the canopy of the Roof Top Structure was constructed, and Dr Wong so understood it. In his initial answer, Dr Wong was trying to say that there was some other material apart from the metal sheets, but he was interrupted by Mr Chen. The fact that it was also made of “concrete” was then volunteered by Dr Wong himself, and it was not an answer suggested by Mr Chen pressed onto Dr Wong. Though initially, Dr Wong said “possibly with concrete”, but then in subsequent 3 answers, he confirmed that the canopy was also made of “concrete”.

56.Dr Wong said that after he received the Inspection Report (which was attached to the Demolition Order), he started to pay attention to what material the canopy of the Roof Top Structure was made of. It was also his evidence that he found the contractor, agreed the price with him, and arranged him to demolish the Roof Top Structure, and that he was present occasionally when the demolition was taking place. It seems to me highly probable that Dr Wong must have acquainted himself about the materials the canopy was constructed with for the purpose of arranging its demolition and it is also highly probable that he would have observed it at the time he was present during the process of demolition and removal of debris. Thus, I find that he has personal knowledge of the material. Considering this and as explained in the preceding paragraph, I do not accept that such was “a guess” that Dr Wong was pressed to make by Mr Chen.

57.Moreover and notably, despite the submission that it was only “a guess” that Dr Wong was pressed to make or that there was ambiguity, there was indeed no re-examination of Dr Wong on this subject or as to the above answers he gave. Also and as mentioned, in oral evidence the 2 experts were then asked questions by Mr Chen and Mr Li himself based on the fact that the canopy was constructed with metal sheets and a layer of concrete or cement sand screeding on top. There was no objection raised by Mr Li at the time in that the factual basis of these questions had not been established. Rather and as said, he asked some of those questions himself.

58.I thus reject Mr Li’s submission and find that it was Dr Wong’s evidence that the canopy of the Roof Top Structure was made of metal sheets with a layer of either “concrete” or cement sand screeding laid on top, and accordingly I also find such as a fact.

59.The importance of this finding is that the Main Canopy was in fact much heavier than everyone hitherto thought.

60.The second piece of evidence is this. Mr Lo, who has been the Chairman of the IO since November 2002, said in evidence unequivocally that he had checked the records of the Manager with the result that not only was there no report of water seepage from the plaintiffs in 2014, there was in fact no water seepage report or complaints made by any of the owners of any of the roof top units of Mount Parker Lodge up to 2014. This piece of evidence was not disputed by the plaintiffs, and I so find.

Discussion - the Shortened-Lifespan-By-Added-Load Cause

61.While added load would shorten the lifespan of the waterproofing membrane was a matter generally relied on by the IO, its occurrence originally expressed in Cheung 2^nd Report was due to the completely re-doing of the Roof B5 floor (which D’s Expert opined had occurred) which had thickened the floor and therefore added further loading. However, after Dr Wong divulged at trial for the first time that there was a layer of concrete or cement sand screeding laid on top of the metal sheets of the canopy and the shortcomings of the Base Plates explored, it became clearer and clearer that the adverse effect of the added load on the waterproofing membrane could have been caused by the heavy load of the Main Canopy which exerted much force on the floor through the Base Plates which had caused the accelerated deterioration of the waterproofing membrane at the spots where the Base Plates were anchored. In oral evidence, D’s Expert applied his opinion hitherto expressed regarding the adverse effect of added load to the above-described situation and opined so.

62.Based on the matters and the reasons expressed below, I find on balance of probabilities that the added heavy load of the Main Canopy and further force or strain brought about by strong winds focally exerted through the Base Plates onto the areas of the floor of Roof B5 where the Base Plates were anchored had caused the waterproofing membrane at and near those spots to deteriorate faster than it naturally would have and the natural lifespan thereof was shortened, thereby causing the present water seepage at and around the Main Seepage Area.

63.As the court held in Tai Fong Trade Ltd v The Incorporated Owners of Nos 167 & 169 Hoi Bun Road and Another[9], a case cited by the plaintiffs, the fact (as in that case) that water leakage occurred at many points across and covering almost the entire ceiling indicated that the waterproofing membrane had come to the end of its natural lifespan and its failure was not caused by the erection of structures on the roof. This seems to me to be a common-sense deduction in that if the waterproofing membrane aged naturally to a point where it became defective, such defects should normally occur at multiple spots of the waterproofing membrane on the same ceiling as the entire stretch of waterproofing membrane has been subjected to similar physical conditions.

64.At the opening stage of the trial, this court enquired with Mr Li as to whether there was any opinion offered or could be offered by Ps’ Expert to explain why leakage only occurred (and occurred quite seriously) in the Main Seepage Area and not found anywhere else on the ceiling of Flat 34B5, if the waterproofing membrane aged and failed naturally. No explanation thus far has been offered by Ps’ Expert as to why that was so. His opinions merely focused on disputing the causes opined by D’s Expert.

65.This factor is accentuated by the fact, which I find, that up to 2014 there was no report or complaint from other roof top units that there was water seepage problem. At the opening stage of the trial this court also enquired with the IO whether there was evidence as to whether there were other seepages occurring in other roof top units to date. Mr Li immediately flagged an objection against such new evidence being introduced, and thus the IO explored the matter to the extent of the finding I indicated in paragraph 60 above. However, and on the other hand, I also note that despite it is the plaintiffs’ case that the waterproofing membrane naturally aged to a point where it began to fail, they have proffered no evidence thus far that the waterproofing membrane in any other areas in the Estate had shown signs of similar failure due to natural aging. I consider this against the setting that the plaintiffs have been assessing the evidence to be proffered which led to their application made days before the trial commenced to file the supplemental witness statement of Dr Wong and to produce other documentary evidence.

66.As can be seen from the measurements of the Base Plates set out in paragraph 47(c) above, they were surprisingly tiny in footprint, being only 124mm x 50mm in area, which was narrower by a bit in width and slightly longer than those of a normal plastic credit card. It was not disputed by Ps’ Expert, it was indeed indisputable as it is a matter of simple physics, that given the same load, the smaller the Base Plates the higher the force of the load would exert on the floor where they were affixed. When asked, D’s Expert directly criticized the choice of the size of the Base Plates and considered it poor workmanship. Ps’ Expert did not disagree and commented to the effect that the contractor who built this “might be a good fabricator, but no structural engineer”. Ps’ Expert further commented adversely the use of 6 mm bolts to affix the Base Plates on the floor as they were too small for the purpose. Thus, I conclude and find that (a) there was poor workmanship regarding the construction of the Supporting Poles together with the Base Plates of the Roof Top Structure, (b) the tiny Base Plates would have exerted higher force of the load on the tiny spots of the floor on which they had been affixed and sat.

67.D’s Expert in oral evidence further opined that it was not only the dead load weight of the Main Canopy that was transmitted onto the floor through the Base Plates. Since the long edge of the Main Canopy was open and it was situated on the high altitude of the roof, when there were strong winds blowing like in typhoons or storms, the strong force of the wind would add further and strong strain on the floor where the Base Plates sat and were affixed, and the force was not only downward but could be upward lift force as well. This was not disputed by Ps’ Expert. I accept this opinion of D’s Expert and find accordingly.

68.As I have set out in paragraph 44(d) above, D’s Expert opined in Cheung 2^nd Report generally that added load would accelerate material deterioration of the asphalt felt waterproofing membrane and shorten its lifespan. Importantly, as a matter of general proposition or opinion, this was not disputed by Ps’ Expert in Lau 3^rd Report or in oral evidence. Ps’ Expert made the general point, as I understand it, that there were no scientific studies quantifying the effect and therefore one did not know how much added load and under what conditions (if any) would cause the hastened deterioration, and to what extent. This lack of quantifying studies was not disputed by D’s Expert. Therefore, though D’s Expert in Cheung 2^nd Report had given the figure of 1,800 kg per meter cube[10] as the weight of cement sand screeding (which was not disputed by Ps’ Expert) and some calculations were attempted when the experts were giving evidence, such figures and calculations did not and could not offer definitive proof. I accept and take full note of the point, but also bear firmly in mind that I am to come to a determination on the main issue based on balance of probabilities which has a much lower threshold than that of achieving scientific certainty based on established figures.

69.Likewise, regarding D’s Expert’s opinion that the natural lifespan of asphalt felt as waterproofing membrane could be at least 30 years if there was no external interference, Ps’ Expert said nothing in Lau 3^rd Report to dispute. In oral evidence, both experts agreed that the lifespan could be subject to many variable factors which therefore generally and to an extent undermines the authoritativeness of any general study on its lifespan. I therefore accept that such is the case. However, I place weight on the fact that before me there is no evidence showing that there were signs of any failure of the waterproofing membrane in any other area of the ceiling of Flat 34B5 save the Main Seepage Area, while as I observed above, if the waterproofing membrane failed due to it reaching the end of its lifespan, there should have been other spots of similar failure on the ceiling of Flat 34B5, and indeed in other roof top units of Mount Parker Lodge. There is also no explanation whatsoever that if the waterproofing membrane aged to a failure naturally, why such aging only occurred, and occurred rather seriously, at and near the spots where the Base Plates were anchored and sat, namely the Main Seepage Area. All these point to the likelihood that the waterproofing membrane in the floor slab of Roof B5 has generally not yet reached the end of its natural lifespan.

70.Looking at the above matters in the round, I find that empirically there is no evidence that the waterproofing membrane aged and failed naturally, but rather, as all of the above circumstances and factors point to, that the more probable likelihood was that the added load (the weight of the Main Canopy and extra strain brought about by strong winds) exerted by the Base Plates had hastened the deterioration of the waterproofing membrane thereat and nearby and had shortened its lifespan at those spots. I therefore accept D’s Expert’s opinion thereon and conclude and make the finding as indicated in paragraph 62 above.

The plaintiffs’ pleading objection

71.In their written final submissions, the plaintiffs made a pleading objection that the cause as I find in the preceding section should be disregarded as it was not pleaded[11]. It was contended that:-

“17. … D’s positive case in the Amended Defence was that the damage to the waterproofing membrane was caused by something that happened during the renovation work on the Main Roof but not subsequently.

18. Essentially, any damage caused to the waterproofing membrane as alleged by D would have crystallised at the time of such renovation. It is NOT D’s pleaded Defence that subsequently, the existence of the UBW [unauthorized building structure] caused physical damage/overloading to the waterproofing membrane.

19. … . D particularly restricted its case to overloading in the course of the said roof renovation works, which would mean that so far as the overloading allegation is concerned, D’s case was that when the canopy was being built, there was force applied upon the waterproofing membrane which caused permanent damage, but nothing more.

20. As such, anything said about the overloading of the UBW in the course of the long period of time since its construction is not only irrelevant but is also a matter that ought to be disregarded.” (all original emphasis)

72.Thus, the complaint was that the IO’s pleaded case was restricted to damage of the waterproofing membrane (or overloading) that occurred during the time or in the course of the construction of the Alteration Works.

73.Upon a fair reading of the Amended Defence and Counterclaim (“AD&C”), I do not accept that the IO’s pleaded case is restricted in the manner now contended by the plaintiffs.

74.I begin with paragraph 5 of AD&C, which consists of 5 sub-paragraphs. Sub-paragraphs (a) and (b) admitted paragraphs 7 and 8 of the Amended Statement of Claim while sub-paragraphs (c) to (e) pleaded various clauses in the DMC including Clause 4.

75.Paragraph 6 of the AD&C consists of 12 independent sub-paragraphs. They are therefore to be read individually. Sub-paragraph (d)(d) thereof pleaded:-

“(d)(d) The waterproofing membrane was damaged and rendered defective by the Plaintiffs and/or the predecessors-in-title of the Plaintiffs as a result of the poor workmanship of the aforesaid roof renovation works and/or the physical damage and/or overloading caused in the course of the roof renovation works and/or the poor quality of the selected roofing materials.”

76.Granted that this sub-paragraph may not be a model of clarity, but undeniably with the 4 “and/or”, it was meant to be, and could be, read widely. The first part complaining about “poor workmanship” clearly has no temporal restriction concerning the occurrence of the damage or adverse effect of the “poor workmanship”. Though “overloading” was immediately followed by “caused in the course of the roof renovation works”, it was also followed by “and/or the poor quality of the selected roofing materials”; such that arguably, it may be read as “overloading caused by the poor quality of the selected roofing materials” which does not pertain only to “in the course of the roof renovation works”.

77.Particularly and much more clearly, in paragraph 19A of the AD&C, the IO further pleaded that:-

“19A. Further or alternatively,

…

…

By allowing the UBW to remain before it was ultimately removed, continuing damage was being caused to the waterproofing membrane. In allowing that to happen, the Plaintiffs breached the terms of the DMC pleaded in paragraphs 5(c), 5(d) and 13E herein above”. (my emphasis)

78.Paragraph 19A therefore clearly expressed that the IO is alleging that continuing damage was being caused and therefore the IO’s case is not as restricted as the plaintiffs now alleged.

79.Moreover, when the Shortened-Lifespan-By-Added-Load Cause was opined in Cheung 2^nd Report, it was more than clear that the damaging effect was opined to be occurring over a period of time - from the time the load was first exerted after the Alteration Works were performed and such effect was continuing and extending over time. Yet, the plaintiffs hitherto have made no such pleading objection to this cause opined by D’s Expert.

80.I would also add that this “heavy load of the canopy exerted through the tiny Base Plates” scenario has not been considered by all concerned because Dr Wong hitherto has not divulged this very important piece of information that the canopy had a layer of concrete or cement sand on top, and not because of any conduct or fault that can be attributable to the IO, its legal representatives or D’s Expert. I also note that, as have mentioned, when the trial proceeded on when the experts were being asked questions based on the fact that the Main Canopy was heavy (with the layer of concrete or cement sand), the experts, particularly Ps’ Expert, did not express any difficulties in responding to those questions, or that he required time for further preparations, consideration or studies before he could answer those questions.

81.In the premises, I reject the plaintiffs’ said pleading objection.

Discussion – other causes

82.The conclusions I reached above are sufficient to dispose of this action. I would therefore only state my views with brief reasons in relation to the other causes.

83.The Other-Anchor-Bolts Cause. D’s Expert did not later find any other anchor bolts on the floor of Flat 34B5. The close-up picture taken by Ps’ Expert showed, as he opined, that the 6 mm anchor bolts anchoring the Base Plates were short (about 30 mm in length) and did not reach or puncture the waterproofing membrane. In oral evidence, D’s Expert did not further pursue this cause. I accept Ps’ Expert’s opinion that this cause did not damage the waterproofing membrane and cause the present seepage problem.

84.The Private-Water-Proofing-System Cause. D’s Expert’s such opinion initially was premised on his observation that a new layer of ceramic tiles was laid and the floor was thickened and raised therefore suggesting that there might be a complete re-do of the layers above the concrete slab. By his inspection, he did not find it clearly shown that a piece of the original concrete tile was found amidst the large pieces of debris that were dug up when the floor was opened. Ps’ Expert has subsequently cleaned up a piece and had taken close-up photos thereof. I agree that the photos sufficiently showed, as Ps’ Expert observed, that there was a straight edge evidencing that it was a part of the original concrete tile. Moreover, my clear impression is that the Alteration Works were performed at a budget and I find it highly improbably that whoever did them would take the expense of removing everything from the concrete slab up and then rebuilt it resulting in a floor that was thicker by 75mm (therefore requiring more materials and presumably labour costs too). Rather, the much more probable scenario is that the new ceramic tiles were simply overlaid on the existing concrete tiles. I so find. I there also do not accept D’s Expert’s opinion on this cause.

85.The Negligent-Installation-of-Base-Plates Cause. There is simply no evidence showing in what other way the installation of the Base Plates was done negligently, save this, which has been canvassed above, namely, the use of 2 Base Plates with tiny footprints (together with the heavy load of the Main Canopy) had, as I found above, contributed to the shortened lifespan of the waterproofing membrane. In this regard, the installation of the Base Plates has caused the present seepage problem, as already discussed above under the Shortened-Lifespan-By-Added-Load Cause.

The Exemption Clause

86.Again, it is strictly not necessary for me to deal with the IO’s contention on the Exemption Clause, I will however deal with it briefly.

87.The relevant part of the Exemption Clause reads:-

“Manager’s liability

Neither the manager nor the Owners’ Committee nor any servant, agent or other person employed by the manager or the Owners’ Committee shall be liable to the Owners or any of them or to any person or persons whomsoever whether claiming through, under or in trust for any Owner or otherwise, for or in respect of any act, deed, matter or thing done or omitted in pursuance or purported pursuance of the provisions of this Deed not being an act or omission involving criminal liability or dishonesty or wilful negligence and the Owners shall fully and effectually indemnify the manager or the Owners’ committee and all such persons from and against all actions, proceedings, claims and demands whatsoever arising directly or indirectly out of or in connection with the management of the Estate and the said land or…”.

88.The “manager” was defined in the DMC as the manager appointed pursuant to the DMC. The Owners’ Committee was defined in the DMC as “a Committee of the Owners established as herein provided”. However one may try to stretch the language, the IO clearly is not the “manager” or “the Owners’ Committee” appointed or established under the DMC.

89.Mr Chen’s argument relied on Clause 2 of Section VIII of the DMC, which provides that:-

“Nothing herein contained shall prejudice the operation of the Multi-Storey Buildings (Owners Incorporation) Ordinance. In the event that an Owners Incorporation is incorporated by the Owners under Multi-Storey Buildings (Owners Incorporation) Ordinance, the rights, duties, powers, and obligations for the control management and the administration of the Estate conferred by this Deed on the manager shall be vested in the Owners Incorporation…”

90.The gist of Mr Chen’s submission, as I understand it, is that by the above Clause 2, the exclusion or exemption afforded by the Exemption Clause is also afforded to the IO.

91.With respect, this needs only to be stated to be rejected. It is trite that exemption clauses are to be construed narrowly. Clause 2 merely confers the same “rights, duties, powers and obligations for the control management and the administration of the Estate” the manager has under the DMC to the IO, no doubt to facilitate effective management of the Estate. Properly construed, not to mention construing it narrowly, exemption of liability in certain circumstances is not a “right” that the manager enjoys, nor a “duty”, nor a “power”, nor an “obligation”. Clause 2 therefore never stipulates to the effect that the exemption afforded to the manager under Exemption Clause would be afforded to the IO. I do not even need to further consider factors like how such an alleged exemption might adversely affect the effective management of multi-storey buildings by rendering the IO almost unaccountable.

92.I thus reject the IO’s case on the Exemption Clause.

Disposal

93.In the premises, I dismiss the plaintiffs’ claim and this action.

94.I make an order nisi that the plaintiffs do pay the IO its costs of this action (including the costs of the Counterclaim) including all costs reserved (if any) with certificate for counsel, to be taxed at High Court Scale when this action was being proceeded in the Court of First Instance up to 1 December 2018 and thereafter at the District Court Scale[12]. This is an order nisi to be made absolute within 14 days unless within that time any party applies by summons to vary.

95.Initially, I was minded to deprive the IO a small portion of its costs to reflect the waste of costs occasioned by its contention on the Exemption Clause which is a distinct contention and is totally unmeritorious. In view of my preliminary view that the plaintiffs have as much (if not even more so) raised matters and disputes that are distinct but irrelevant, I provisionally consider it just and fair to make the above nisi order.

96.I thank counsel for their assistance.

Mr Vincent Li & Mr Owen Tsoi, instructed by K B Chau & Co, for the 1^st and 2^nd plaintiffs

Mr Vincent Chen, instructed by Gallant, for the defendant