Chan Pat Hung Eva Suing By Her Attorney, Pun Sau Yuk v. Wong Hau Ki

DCCJ 4401/2016

[2023] HKDC 230

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4401 of 2016

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JUDGMENT

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A.  INTRODUCTION

1.The present case is a water leakage case.

2.The plaintiff (“P”) was at all material times and is the registered owner of the property known as Flat A on 6^th Floor, Nos 5-9 Kowloon City Road, Kowloon, Hong Kong (“P’s Flat”). The defendant (“D”) was at all material times and is the registered owner of the property known as Flat A on 7^th Floor, Nos 5-9 Kowloon City Road, Kowloon, Hong Kong (“D’s Flat”).

3.Both P’s Flat and D’s Flat were at all material times divided into four rooms (referred to respectively as “Room A/B/C/D of P’s Flat/D’s Flat”).

4.P complains that there was, and continues to be, serious water leakage from D’s Flat to P’s Flat since June 2015. P accordingly claims against D for nuisance, negligence, or breach of Clause 10 of the DMC or section 34H of the Building Management Ordinance (“BMO”) (Cap 344), and seeks damages comprising (a) the loss of rental income of HK$10,600 per month from June 2015; (b) the costs of repair and renovation; and (c) the costs of retaining Hong Kong Survey Limited (“HK Survey”), together with an injunction.

5.P calls Madam Pun Sau Yuk (“Pun”) to give evidence at trial, while D testifies for himself. The parties have jointly appointed Mr Chung Wai Hoi Vincent (“Chung”) to be their engineering/building surveyor and further agreed to adopt the content of his Single Joint Engineering/Building Surveyor Report (“Chung’s Report”) dated 11 May 2020 without calling him. D also does not challenge the Valuation Reports prepared by Mr Jack Chan (“Chan”) for P dated 31 March 2020 and 6 July 2022 (“the Valuation Reports”).

B.  RELEVANT LEGAL PRINCIPLES

6.First of all, I have to remind myself of the relevant legal principles in nuisance as thoroughly discussed, analysed and summarized by Marlene Ng J in Loke Yuen Jean Tak Alice v Wong Kit Ying & Another [2019] HKCFI 1895. In particular:

(1)  Private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do, but his conduct becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by (a) causing physical damage to his neighbour’s land and works upon it, or (b) unduly interfering with his neighbour’s comfortable or convenient enjoyment of his land.

(2)  The essence of a private nuisance is unreasonable user by a man of his land to the detriment of his neighbour. The modern tendency is more and more to assimilate nuisance and negligence. There is no absolute standard as to what amounts to a reasonable user, and what degree of interference, disturbance or annoyance amounts to a nuisance. The requirement that there must be a real interference with the comfort or convenience of living according to the standard of an average man, and the discomfort must be substantial to any person occupying the claimant’s premises, is satisfied where there is actual physical damage to the property, and this is routinely if not tacitly applied in water leakage cases.

(3)  There is no presumption that the source of water leakage necessarily comes from the flat above the affected property. The burden is on the claimant to prove on the balance of probabilities that the source is from the defendant’s flat above. It is not for the defendant to find out the real source of the water leakage or to prove that it did not come from his property. Where there are various possible sources of the water, the doctrine res ipsa loquitur does not apply. The key question is whether the claimant has succeeded in discharging his or her burden of proof.

(4)  If nuisance is created by the defendant, his liability depends on the nature of his conduct: (a) if he deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour, and such harm is considered to be unreasonable infringement of his neighbour’s interest in the neighbour’s property, he is liable for the foreseeable consequences of his unreasonable user of his property; (b) if he knew or ought to have known that in consequence of his conduct harm to his neighbour is reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable.

(5)  In Sedleigh-Denfield v O’Callagan & Others [1940] AC 880, the House of Lords held that an occupier of land “continues” a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take reasonable means to bring it to an end when he has reasonable time to do so. This rule seems to be in accordance with good common sense and convenience.

(6)  The requisite actual and/or presumed knowledge was explained in 張秀玲及吳炳漢對鄭禮莊, CACV 268/1998 (unreported, 9 April 1999):

“26. 漏水可能導致「滋擾」，而法律就這項目有很明確的規範。簡單地說，有以下幾種普遍情況：

(1) 若漏水是在一處地方（包括樓宇單位）中發生，招致鄰舍（包括另一單位）損失時，而事源地方的戶主（是使用該地方的人，不一定需要是業主）明知漏水根源，他便是有意圖滋擾而須負法律責任。法律責任包括賠償及受禁制令禁制。

(2) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，而他又不知道漏水已發生，他就不須對漏水所招致鄰舍的損失負責。

(3) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，當他知道漏水源於他單位內，他須在無合理延誤下作出補救。否則，他須為該項漏水所招致鄰舍的損失負上法律責任。

(4) 以上三項中的「知道」，是指兩種情況：(a) 是實質地知道，或 (b) 是在通常及合理謹慎下應可知道。故此，就算戶主實質上不知道漏水的存在，因為他不在事源地方，他也不能藉此推卸責任。他身為戶主，對自己使用的地方要負法律責任。若在通常的情況下戶主應可知道有關使用地方的情況，在法律上他就被當作知情。作為地方的戶主，他應對該地方作出合理謹慎的處理。故此，對該地方的情況而言，一切他應在合理謹慎下可知道的，法律也當他知道。

(5) 第 (2) 和第 (3) 項所述的「戶主應代為負責的人」，是指一切戶主准許進入或使用戶主地方的人，包括他的家人、朋友、僱員和入內工作的人，但不包括未獲他或上述的人准許而進入地方的人。”

(7)  In The Wagon Mound (No 2) [1967] 1 AC 617, the Privy Council said that under the rubrics of both nuisance and negligence, if it is clear that the reasonable man would have realised or foreseen and prevented the risk then it must follow that the appellant is liable in damages.

(8)  The defendant’s duty is determined by what is fair, just and reasonable as between two neighbours, having regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the costs of such measures and the resources of both parties. It is directed to what a reasonable person in the shoes of the defendant would have done, so the label of nuisance or negligence has no real significance.

(9)  The burden is on the claimant to establish that the wrongful conduct of the defendant results in the damage claimed. The claimant must lead evidence to establish the facts necessary to demonstrate the causation of loss. This involves (a) factual causation, ie the breach of duty is the factual cause of the damage, of which the general test is the but for test which asks whether the loss or damage would have occurred but for the defendant’s breach of duty, and (b) legal causation, ie whether there is any novus actus interviens that may break the chain of causation between the defendant’s breach of duty and the claimant’s loss or damage.

(10)  In nuisance causing physical damage to the land, actual damage is essential to a cause of action. For substantial damages, the measure of damages is the same as for tort generally, ie whatever foreseeable loss results to the injured party as a natural consequence of the wrongful act of the defendant.

(11)  The landlord may be liable for conditions giving rise to nuisance during the tenancy if he has retained a measure of control over the premises either because he has duty to repair, or a power. If the landlord himself undertakes to repair he is liable to a person injured through disrepair whether he knew or ought to have known of the disrepair or not.

7.In Yik Yuen Ling v Tso Wing Yan, DCCJ 813/2014 (unreported, 18 October 2017), after applying the law on negligence in this area, the court made the following observation:

“Negligence

…

169. In the circumstances of this case, I hold that it is just fair and reasonable to impose a common law duty upon the defendant to keep the elevated flooring at the Flat Roof (as built by her predecessor and adopted by her) in proper repair and condition so as not to allow water (be it soured from rainwater or otherwise) seeping through its elevated floor surface down to and damaging the ceiling of Office 3A (her neighbour’s property immediately below the Flat Roof) while knowing or ought to be knowing of such seepage and that the waterproofing membrane at the original floor surface had already become defective, and yet the presence of the elevated flooring as adopted by her has been preventing such waterproofing membrane from getting repaired or replaced.

170. I also hold that the kind of harm done to the ceiling of her neighbour’s property by water seeping down from the elevated floor surface of the Flat Roof is clearly foreseeable to the defendant as a result of her failure to take reasonable steps to make the elevated floor surface watertight (see: Born Chief (supra), at p 191F-H; Lam Kit Yee v Lam Shuk Lam & Another (DCCJ 3115 of 2011, 10 March 2017), per DDJ Lawrence Ng at para 88).

171. Thus, I also hold the defendant liable to the plaintiff under negligence. (emphasis added)”

8.In Wong Ping Chun v Giant King Corporation Limited, DCCJ 4020/2012 (unreported, 16 March 2016), the defendant was held liable in negligence to the plaintiff for failing to take steps to remove the water leakage:

“98. On that basis, D should also be held liable for breach of its duty owed to its neighbour P. It was reasonably foreseeable that P would suffer loss and damage as a result of its omission to take remedial steps to rectify the water seepage problems in the Damaged Room. I find D liable in negligence as sued. (emphasis added)”

C.  ISSUES IN DISPUTE

9.The following issues require determination by this court in the present case:

(1)  Whether or not there was water leakage in P’s Flat since June 2015 and it continues until present?

(2)  Whether or not the water leakage, if any, was and continues to be caused by D’s Flat?

(3)  Whether or not D is liable to P to for nuisance and/or negligence?[1]

(4)  Whether or not P should be entitled to the relief sought?

D.  EVIDENCE

10.In view of the above, I now turn to consider and assess the evidence adduced by the parties in the present case as follows.

D1.  Pun’s evidence

11.Pun received complaints from the tenants that there was water leakage in P’s Flat in May 2015.

12.According to Pun, sizeable concrete pieces fell off from the ceiling in Rooms D and C of P’s Flat after the water leakage.

13.As a result, the tenants terminated their lease agreements with P. After the tenants moved out, Pun was unable to find new tenants because of the damaged state and condition of P’s Flat.

14.In June 2015, Pun tried to get in touch with D through his tenants regarding the water leakage in P’s Flat. As Pun failed to locate D’s contact number, she therefore tried to reach D by sending him registered post. Pun also posted notice outside D’s Flat for three consecutive days hoping that the tenants or occupiers there would draw the water leakage in P’s Flat to D’s attention. Pun had left her contact number for D to contact her.

15.In July 2015, Pun finally obtained D’s mobile number from a neighbour. When Pun called the mobile number and ascertained that it was D, D however abruptly cut her off.

16.Afterwards, P had kept calling D but D simply refused to answer her calls altogether.

17.In the beginning of 2016, P approached the Food and Environmental Hygiene Department (“FEHD”) for assistance but she was not satisfied with the results.

18.Subsequently, Pun instructed HK Survey to deal with the water leakage. The tenants or occupiers of D’s Flat however refused to allow Pun and HK Survey access to D’s Flat. HK Survey could therefore only inspect P’s Flat.

19.In June 2017, P obtained default judgment against D, which was set aside in May 2018.

20.Before the Mid-Autumn Festival in 2017, D through an estate agent contacted P. D and Pun met at P’s Flat. D both sent Pun a moon-cake voucher and promised her to repair D’s Flat. D however refused to compensate P for her loss and damages.

21.D had not informed Pun about the repair works undertaken to D’s Flat in November 2018. In any event, the water leakage in P’s Flat has continued. As a result, P’s Flat was and continues to be untenanted. According to Pun, she would not arrange for remedial works for P’s Flat unless and until things are fixed by D.

D2.  D’s evidence

22.On the other hand, D has emphasized the following matters in his evidence.

23.In mid-2015, D was informed by his tenants that Pun had posted notice outside D’s Flat regarding the water leakage in P’s Flat for three consecutive days and demanded him for compensation.

24.A month later, Pun called D. As Pun spoke with strong accent and also fairly quickly, D did not understand her and was also cut off by her.

25.When Pun called D again, D tried to ascertain the situation from Pun. Pun told D that she had complained to FEHD. D requested Pun for access to P’s Flat but Pun flatly declined. On the other hand, Pun kept demanding D for compensation.

26.D visually inspected every room in D’s Flat and did not come across any sign of water leakage.

27.D complied with FEHD’s requests and allowed them access to D’s Flat.

28.In August 2016, to avoid unnecessary arguments with P, D on his own volition arranged for repair works to be undertaken to the bathroom in Room C of D’s Flat.

29.D failed to reach Pun. D therefore approached the Chairman of the Incorporated Owners of their building for Pun’s contact number, but was told that Pun had prohibited its disclosure to D.

30.FEHD could not identify the source of the water leakage in P’s Flat.

31.D only came to notice, after the commencement of the present action by P, of the two reports prepared by HK Survey for P dated 11 June 2016 and 10 February 2017.

32.Over the period of August 2016 and September 2017, D did not receive any call or correspondence from P and therefore thought to himself that the water leakage in P’s Flat had been resolved.

33.It was only when D applied for mortgage in September 2017 that he discovered from the bank that P had commenced the present action against him in September 2016 and further obtained the default judgment.

34.Pun refused to allow D access to P’s Flat. According to the tenants of P’s Flat, there was no longer any water leakage and they would contact Pun for him.

35.Pun subsequently contacted D. In September 2017, there was a meeting between D and Pun as arranged by an estate agent, a Mr Leung (“Leung”), at P’s Flat. When they entered into P’s Flat, Pun only showed them Room B in P’s Flat. According to what they saw, both the wall and the ceiling of Room B in P’s Flat were intact but there was a puddle of water on the floor. Pun told them that the water came from the ceiling and again demanded D for compensation for P’s loss and damages.

36.Leung had offered to lease P’s Flat out for Pun but she refused right away. On that occasion, D had given Pun a moon-cake voucher as gift for the Mid-Autumn Festival.

37.After the parties’ meeting at P’s Flat in September 2017, Pun wrote a letter to D, expressing her discontent and also returning the moon-cake voucher to him. D was concerned that Pun would simply leave P’s Flat untenanted and claim him for the loss.

D3.  Assessment of witnesses’ credibility

38.In Tradepower (Holdings) Ltd v Tradepower (Hong Kong) Ltd [2009] 12 HKCFAR 417 at §24, Ribeiro PJ said:

“…Inconsistencies between the testimony of a witness and other items of evidence have to be evaluated as part of the overall process of assessing credibility. It is not satisfactory first to form the view that the witness is generally credible and then to carve out exceptions in areas where inconsistencies with other evidence are found. Such an approach casts doubt on the initial assessment of credibility. (emphasis added)”

39.In assessing the credibility of a witness, I also bear in mind the well-established principles as reiterated in Goldbay Fortis Ltd v Asia Allied Infrastructure Holdings Ltd [2021] HKCFI 1684 by Keith Yeung J:

“73. The approach for assessing credibility is not in dispute. I have been cited a number of authorities, which include Hui Cheung Fai & Another v Daiwa Development Ltd & Others, unrep, HCA 1734/2009, 8 April 2014, §§77‑79 per DHCJ Eugene Fung SC and Hua Tyan Development Ltd v Zurich Insurance Co Ltd [2012] 4 HKLRD 827 §27 per Andrew Chung J, Hung Fung Enterprises Holdings Ltd and Other v The Agricultural Bank of China, unrep, HCA 16459/1998, 4 October 2010, §47 per To J. I remind myself when considering a witness’ credibility the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, with contemporaneous conduct and documents, and the internal consistency of the witness’ evidence. I need to consider the totality of the evidence. I warn myself against attaching undue weight on demeanour, though demeanour is obviously relevant when considering credibility. I also bear in mind Re H (Minors) [1996] AC 563, which Mr Li has reminded me of, that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be. (emphasis added)”

40.To state at the outset, I am not satisfied at all that either Pun or D is entirely credible or reliable. Both of them give me the impression that they are ready and prepared to exaggerate or adjust their evidence or to bolster where appropriate so as to advance their respective cases in a more favourable light. I would therefore be slow to accept one of their versions as a complete and accurate account of the events taken place at the material times.

41.Pun plainly was and is still aggrieved by the water leakage in P’s Flat. Pun has throughout been convinced that D’s Flat was and remains the source of the water leakage in P’s Flat. Pun displays strong character, and she is at times driven by her own conviction that D was and is still culpable for the water leakage in P’s Flat and should therefore be wholesomely liable for all of P’s loss and damages. It becomes clear that when Pun gives evidence, she seizes it as the opportunity to ventilate her grievance and to achieve her “ultimate” purpose of pressing D for compensation.

42.I am equally if not more skeptical of D’s evidence. I am simply not convinced that D is a forthcoming witness deposing to the court the whole truth with all relevant details. After discovering the water leakage in P’s Flat from Pun, D as the landlord of D’s Flat was certainly not sympathetic or helpful. D had first tried to avoid Pun in view of her aggressive demands for compensation for P’s loss and damages. D’s attempts to avoid liabilities and his overall evasiveness could not be more obvious. Later on, D had only done the absolute minimum, wishfully thinking or waiting for things to somehow take their own course.

43.As emphasized by D, there might be ineffective communications between the parties at the material times as Pun clearly spoke with strong accent. D nonetheless should be able to understand Pun had he been willing to hear her out more carefully. D however did not have the incentive to do so. D admits that he had in a way “pre-determined” that Pun called him every time only for compensation.

E.  FININDGS OF FACT

44.For the above reasons, it is more appropriate and reliable for the court to reconstitute the relevant facts and events with reference to the contemporaneous documents available. In the course of doing so, I have duly compared the respective evidence of Pun and D, and also with the undisputed or indisputable evidence, and made the following findings of fact.

45.D received notice of the water leakage in P’s Flat from his tenants as early as in mid-2015 after P posted notice outside D’s Flat for compensation for three consecutive days.

46.Pun and D had telephone conversations with each other regarding the water leakage in P’s Flat.

47.Pun had made complaint of the water leakage in P’s Flat to FEHD.

48.On 18 August 2015, FEHD conducted colour water test at D’s Flat.

49.By letter dated 29 September 2015, FEHD informed D that the result of the colour water test could not show that the water leakage was related to the foul water drainage pipes and that as the water leakage continued, FEHD would conduct professional investigation.

50.On 31 October 2015, Astar NDT Consultants Ltd (“Astar”) was instructed by FEHD to carry out its first inspection at P’s Flat. Initial moisture content inspection was conducted.

51.According to the record of the inspection of P’s Flat carried out on 31 October 2015:

(1)  The locations checked included the bathroom, the bedroom, the wall of the bedroom and the ceiling.

(2)  The moisture content was over 35.

(3)  No colour dye was observed. It was concluded that drainage leakage was unlikely.

(4)  No fluorescent effect on the affected areas under UV light was observed.

(5)  The source of the water leakage being within the affected premises was ruled out. The upper floor was the suspected premises.

(6)  Further investigation was required.

52.On 6 November 2015, Astar carried out its second inspection at D’s Flat. The ponding test was conducted.

53.On the same day, Astar carried out its third inspection at P’s Flat. The result monitoring was conducted.

54.On 18 December 2015, Astar carried out its fourth inspection at P’s Flat. The result monitoring was conducted.

55.According to the record of the inspections carried out above:

(1)  In respect of the possibility on floor/wall leakage, no colour dye, nor fluorescent effect on the affected areas under UV light, was observed on 6 November 2015 and 18 December 2015. It was concluded that floor leakage was unlikely.

(2)  In respect of the possibility on water supply pipe leakage, moisture content monitoring on 6 November 2015 and 18 December 2015 was conducted. No continuous dripping was noted. It was concluded that water supply pipe leakage was unlikely.

(3)  In respect of the possibility on rain water leakage from building envelope, moisture monitoring was conducted on 6 November 2015 and 18 December 2015. The moisture content was over 35 on sunny days. It was concluded that rainwater leakage from building envelope was unlikely.

(4)  The source of the water leakage could not be identified based on the tests adopted.

(5)  It was recommended that the complainant should be notified of the conclusion.

56.By letter date 26 January 2016, FEHD informed D that the source of the water leakage could not be identified and investigation would be temporarily ceased.

57.On 27 April 2016, P instructed Ms Lau Shan La (“Lau”) of HK Survey to carry out inspection and she compiled her first report (“Lau’s 1^st Report”) on 11 June 2016.

58.On 6 August 2016, D caused demolition and renovation works to be undertaken to the bathroom of Room C of D’s Flat.

59.On 2 September 2016, P issued the Writ to commence the present action against D.

60.On 9 January 2017, Lau carried out the second inspection and compiled her second report (“Lau’s 2^nd Report”) on 10 February 2017.

61.On 12 March 2017, FEHD conducted colour water test at D’s Flat.

62.On 11 April 2017, FEHD re-inspected P’s Flat and discovered that there was still water leakage from the ceiling of the bathroom of Room B. However, the cause of the water leakage still could not be ascertained and professional investigation would be continued.

63.On 14 May 2017, FEHD conducted colour water test at D’s Flat.

64.In respect of the possibility of drainage leakage, no colour dye was noted on 12 March 2017 and 14 May 2017. It was concluded that the leakage of the drainage pipe was uncertain.

65.On 14 June 2017, FEHD re-inspected P’s Flat and discovered that there was still water leakage from the ceiling of the bathroom of Room B. However, the cause of the water leakage still could not be ascertained and professional investigation would be continued.

66.On 26 June 2017, P entered Final and Interlocutory Judgment against D after his failing to file Notice of Intention to Defend.

67.On 5 September 2017, Pioneer Management Ltd (Pioneer) was instructed by FEHD to conduct its first initial assessment at P’s Flat including the bathroom ceiling of two rooms, the living room of two rooms and the ceiling. There was consistent water leakage all day long. The moisture content varied from 12.0 to 43.0. There was apparent water moisture. It was ruled out that the source of the water leakage was within the affected premises. It was suspected that the water leakage was from the upper floor and the matter was recommended for further investigation.

68.According to D, it was in September 2017 when the bank informed him about the Final and Interlocutory Judgment obtained by P against him.

69.In September 2017, there were communications and meeting between Pun and D together with Leung at P’s Flat.

70.On 15 September 2017, Pun sent D a hand-written letter via Leung.

71.On 1 November 2017, D through solicitors requested for Lau’s 1^st and 2^nd Reports from P. On 5 December 2017, D was provided with the two reports.

72.On 25 May 2018, D set aside the Final and Interlocutory Judgment entered against him by P.

73.On 9 June 2018, Pioneer conducted the pond test at D’s Flat, including the bathrooms, the open kitchens and the utilities. According to the visual examination, they were generally in a dry condition. There was no sign or poor workmanship or dilapidation etc. There were concealed water borne services pipes and concealed drainpipe.

74.On 14 June 2018, Pioneer conducted the result monitoring at P’s Flat.

75.In respect of the possibility on floor slab, in-situ made shower tray/roof infiltration, no dye colour was observed on 14 June 2018. The moisture content was over 35. It was concluded that floor slab infiltration was uncertain.

76.In respect of the possibility on water supply pipe leakage, monitor content monitoring was conducted on 14 June 2018 and no continuous water dripping was noted. It was concluded that the water supply pipe leakage was unlikely.

77.In respect of the possibility on rain water leakage from building envelope, moisture content reading record in the weather was taken on 14 June 2018. The moisture content was not correlated with the weather condition. It was concluded that rain water leakage was unlikely.

78.All in all, the source of the water leakage was uncertain.

79.By the letter dated 29 August 2018, FEHD informed D that it would cease the investigations of the water leakage on the complainant’s request.

80.In November 2018, D carried out renovation works to all the bathrooms in D’s Flat.

81.According to D, he found out that there were tenants residing in P’s Flat in November 2018 and early 2019.

82.On 9 and 28 March 2020, Chung inspected both P’s Flat and D’s Flat.

83.On 11 May 2020, Chung’s Report was compiled.

F.  QUESTIONS FOR DETERMINATION

84.Based on the findings above, I shall now determine the questions in dispute between the parties.

F1.  Whether or not there was water leakage in P’s Flat since June 2015 and it continues until present?

85.D frankly accepts that there was water leakage in P’s Flat since June 2015.[2]

86.It is sensible for D to do so, particularly after taking into account of the investigations carried out first by FEHD and then Lau and Chung.

87.I also accept Pun’s evidence on this, namely that she had posted notice outside D’s Flat because of the water leakage in P’s Flat in June 2015.

88.As stated at the outset, Chung has been jointly appointed by the parties to be their engineering/building surveyor expert and the content of Chung’s Report is in agreement.

89.As observed by Chung:

(1)  The water leakage in Room A of P’s Flat has persisted on the date of inspection (ie 28 March 2020).

(2)  The water leakage in Room B of P’s Flat had ceased on the date of inspection (ie 28 March 2020). Chung observed that the water leakage there was resolved after D caused the repair works to be undertaken to the bathrooms in Rooms A and B of D’s Flat in November 2018.

(3)  The water leakage in Room C of P’s Flat had ceased on the date of inspection (ie 28 March 2020). Chung observed that the water leakage there was resolved after D caused the repair works to be undertaken to the bathroom in Room C of D’s Flat in August 2016.

(4)  The water leakage in Room D of P’s Flat has persisted in some areas on the date of inspection (ie 28 March 2020). Chung has not provided the Court with any update, by way of supplemental report, on the situation afterwards.

F2.  Whether or not the water leakage, if any, was and continues to be caused by D’s Flat?

90.As to the cause of the water leakage in P’s Flat, Chung was of the following views:

(1)  The water leakage in Room A of P’s Flat was not related to the water facilities of D’s Flat.

(2)  The water leakage in Room B of P’s Flat was caused by the bathroom facilities in Rooms A and B of D’s Flat.

(3)  The water leakage in Room C of P’s Flat was caused by the bathroom facilities of Room C of D’s Flat.

(4)  The water leakage from the ceiling of Room D of P’s Flat was caused by the bathroom facilities in Room C of D’s Flat whereas the water leakage in the wall and pillar was caused by the external wall. In the former case, the water leakage had ceased after the repair works undertaken to the bathroom in Room C of D’s Flat in August 2016.

F3.  Whether or not D is liable to P to for nuisance and/or negligence?

91.Based on Chung’s finding in respect of Room A of P’s Flat, D is no way liable for the water leakage there.

92.The next question is whether or not D is liable to P for nuisance and/or negligence for the water leakages in (a) Room B of P’s Flat from June 2015 to November 2018; (b) Room C of P’s Flat from June 2015 to August 2016; and (c) Room D of P’s Flat from June 2015 to August 2016, as caused by D’s Flat.

93.After applying the legal principles above to the factual scenario of the present case, I find D liable to P for both.

94.D was clearly aware of the water leakage in P’s Flat as early as in June 2015 after Pun posted notices outside D’s Flat.

95.Pun had also complained the water leakage to FEHD, which D also had notice.

96.I take note that FEHD informed D by letter dated 26 January 2016 that the source of the water leakage could not be identified.

97.However, the result was not conclusive, particularly not on the facts of the present case.

98.Quite the contrary, on D’s own case, he had caused demolition and renovation works to be undertaken on 6 August 2016, but only to the bathroom in Room C of D’s Flat.

99.Furthermore, it is pertinent to note that when FEHD re-inspected P’s Flat on 11 April 2017, there was still water leakage in Room B.

100.It is well-established that the burden is on the claimant to prove, on the balance of probabilities, that the source is from the defendant’s flat above and there is no presumption to this effect. I see force in P’s submissions that notwithstanding D’s denial, the fact that D had caused demolition and renovation works to be undertaken to D’s Flat in August 2016 shows or supports that there was acknowledgement of liability on D’s part. D’s decision to rectify at least a certain part of D’s Flat, in the midst of P’s complaints of the water leakage in P’s Flat, speaks loud and clear of his admission that there was something wrong with D’s Flat, or at least part of it.

101.Indeed, on Chung’s findings, the water leakage in Rooms C and D of P’s Flat had ceased after Room C of D’s Flat was repaired in August 2016.

102.D did not act reasonably in disallowing Lau and HK Survey access to D’s Flat, not only on 27 April 2016 but also 9 January 2017. Without providing a detailed, and in any event a reliable, account of what actually took place, I do not accept D’s bare assertion that these were due to Pun’s failure to give him “advance” notice.

103.Conversely, in terms of timing, I note that the first refusal took place not long before D’s own decision to undertake demolition and renovation works to Room C of D’s Flat in August 2016. D then again refused Lau and HK Survey access on the second occasion, which was after the completion of the demolition and renovation works in question. By then, D knew or ought to know from his own contractors the state and condition of Room C of D’s Flat and how it related to the water leakage in P’s Flat.

104.D waited until August 2016 to take steps to rectify the water leakage caused by Room C of D’s Flat. Even then D still failed or refused to take any steps in respect of the other parts of D’s Flat. On the facts, D only caused repair works to be undertaken to all the bathrooms in D’s Flat as late as in November 2018.

105.As supported by Chung’s findings which are in agreement, the water leakages in Rooms B and C and the ceiling of Room D of P’s Flat were respectively caused by or related to the bathroom facilities in D’s Flat.

106.On D’s case, he unilaterally took the view or assumed that the water leakage was resolved after August 2016. In addition, there was apparently a time lapse between the time when D first had knowledge of the present action and the default judgment entered against him in September 2017 and the time when the repair works were undertaken to all the bathrooms in D’s Flat in November 2018.

107.The water leakages in Rooms B, C and D of P’s Flat from June 2015 had caused actual physical damage and unduly interfered with P’s comfortable and convenient enjoyment of them. There was clearly nuisance. With knowledge of their existence from June 2015, D had however failed to take reasonable means to bring them to an end. Conversely, D had allowed it to continue: (a) for Room C of P’s Flat, it only ceased in August 2016; (b) for Room B of P’s Flat, the situation persisted until November 2018; and (c) for Room D of P’s Flat, the water leakage caused by or related to D’s Flat continued until August 2016.

108.With respect to Room D of P’s Flat, P has failed to adduce evidence to show or prove that the continuous water leakage in some parts of the room after August 2016 was caused by D’s Flat. On the contrary, Chung’s view was that it was caused by the external wall.

109.D’s duty is determined by what was fair, just and reasonable at the material times. I am not persuaded that it was reasonable for D to sit on the matter and not to rectify the defects much earlier. It must or ought to be pure common sense that the water leakage would not suddenly vanish on its own. Hence it must or ought to be reasonably foreseeable that unless D genuinely cooperated and worked together with P towards the taking of proper and sufficient remedial measures the water leakage would persist and P would continue to suffer damages. In the present case, the loss of rentals, the costs of instructing experts and the costs of rendering repairs etc. sought by P are all items of foreseeable loss of the water leakage in question.

F4.  Whether or not P should be entitled to the relief sought?

110.Based on the above findings and conclusions, P is only entitled as follows:

(1)  Loss of rentals of (i) Room B of P’s Flat (for the period of June 2015 to November 2018); (ii) Room C of P’s Flat (for the period of June 2015 to August 2016); and (iii) Room D of P’s Flat (for the period of June 2015 to August 2016) in the sum of HK$168,750.00:

(a)  D does not challenge Chan’s valuation as set out in the Valuation Reports; and

(b)  Chan has valued the market rentals of P’s Flat, but without apportioning the same for the individual rooms. D does not oppose to the average of the market rentals being adopted for the individual rooms[3]:

Date of Valuation	Market Rentals of P’s Flat (HK$)	Average Market Rentals of Individual Rooms (HK$)
1 June 2015	9,300.00	2,325.00
1 June 2016	8,900.00	2,225.00
1 June 2017	9,800.00	2,450.00
1 June 2018	10,400.00	2,600.00
1 June 2019	10,600.00	2,650.00
1 June 2020	9,900.00	2,475.00

(2)  Remedial costs as valued by Chung:

HK$20,800.00

(3)  Costs of the expert reports of HK Survey:

HK$42,000.00

(4)  Interests on HK$231,550 from the date of the Writ until the date of this judgment at 1% above the best lending rate of HSBC, and thereafter at judgment rate until full payment.

111.There is no reason why costs should not follow the event. I therefore make the costs order nisi that P should be entitled to costs, with certificate of counsel.

Mr Sunny Chan, instructed by Fan Wong & Tso for the plaintiff

Mr Vincent CH Kwong, instructed by CL & Co, Solicitors for the defendant