Man Kwong Kau and Another v. Wong Wai Hong

DCCJ 3552/2019

[2023] HKDC 664

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3552 OF 2019

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JUDGMENT

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Introduction

1.This is a water seepage case.

2.The plaintiffs are the registered owners of Flat G, 9^th Floor, Block 6, No 2 Mei Tung Street, Tung Chung Crescent, Tung Chung, Lantau Island, New Territories, Hong Kong (“the plaintiffs’ flat”).

3.The defendant is the registered owner of the flat immediately above the plaintiffs’ flat, ie Flat G on 10^th Floor (“the defendant’s flat”).

4.It is the plaintiffs’ case that the water seepage was originated from the defendant’s flat, which, however, is denied by the defendant.

5.In the amended defence, the defendant raised a point that the plaintiffs discontinued a claim against the defendant in the Small Claims Tribunal on 29 April 2019. A court clerk told the plaintiffs that they could not file a second claim nor to appeal.

6.This point was not, in my view wisely, pursued by the defendant at the trial. To my mind, what was allegedly said by the court clerk is illogical and without legal basis.

Legal principles

7.There is no presumption that the source of the water seepage must be coming from the flat immediately above: see the speech of Leong, JA (as he then was) in 張秀玲 訴 鄭禮莊, CACV 268/1998, unreported, 9/4/1999 at para 9.

8.The onus of proof is on the plaintiff to establish, on a balance of probabilities, that the source of water was the defendant’s flat: see Hui Ling Ling v Sky Field Development Ltd, HCA 35/2007, unreported, 8/5/2012 at para 23.

9.It is not for the defendant to identify the source of the water leakage or to prove that its origin did not come from his property: see 張秀玲 (supra) at para 9 and Hui Ling Ling (supra) at para 23.

Expert evidence

10.Understandably, the expert evidence adduced by the parties are heavily contested.

11.Miss Lau Shan La was engaged as the plaintiffs’ expert. Mr Chung Wai Hoi was the expert engaged by the defendant.

12.Both experts attended the plaintiffs’ flat and the defendant’s flat to conduct joint inspections and tests on 30 September 2020 and 30 October 2020.

13.A joint expert report dated 8 January 2021 was compiled by Miss Lau and Mr Chung.

The main contention

14.Both experts are of the common opinion that the external wall; the external pipes and the water supply pipes of the defendant’s flat are not the source of the water leakage.

15.The issue remains for determination is whether the water was originated from the defendant’s flat or from the flat or flats above the defendant’s flat.

16.Miss Lau was of the opinion that the water leakage is related to the damage to the waterproof membrane of the defendant’s master bathroom. She could not rule out that the connection point between the plastic drainage pipe and the metal drainage pipe (“the connection point”) underneath the washbasin cabinet of the defendant’s master bathroom (“the defendant’s washbasin cabinet”) was leaking.

17.Miss Lau found that the area affected by water leakage in the plaintiffs’ flat was directly below the defendant’s washbasin cabinet. The body of the plastic drainage pipe of the washbasin in the defendant’s master bathroom was leaking. Darkness and water marks in the area in the defendant’s washbasin cabinet around the leaking plastic drainage pipe were observed. Miss Lau stated that as the connection point was concealed underneath the defendant’s washbasin cabinet and it could not be opened up for inspection, she could not rule out that the connection point was leaking.

18.Mr Chung observed that water marks and bulging of paint were seen at the wooden false ceiling in the plaintiffs’ master bathroom (“the false ceiling”). The infra-red scan showed suspicious low-temperature in the area around the said false ceiling. Wetness which was spreading downward was observed in the wall in the plaintiffs’ master bathroom close to the corridor where a white PVC pipe was embedded (“the PVC wall”).

19.However, after the dyed colour water test, not only no dye was observed in the false ceiling, there was no expansion of the aforesaid low-temperature area too. Also, no dye was observed in the PVC wall. The electrical conductivity sensing showed no obvious rise in moisture level and the infra-red scan showed no obvious expansion of the low-temperature area in the PVC wall. Mr Chung was of the opinion that there was no evidence to show that the water leakage in the PVC wall was caused by the defective waterproof system or the drainage system of the defendant’s flat.

20.In relation to the concrete ceiling of the plaintiffs’ master bathroom, Mr Chung did not see obvious signs of water damage. No dye was observed after the coloured water test. No low-temperature area was recorded before and after the coloured water test. However, the microwave scan did show that there was moisture in the concrete ceiling but there is no indication that such moisture originated from the defendant’s flat.

21.Upon inspecting the defendant’s flat, Mr Chung observed that there was water stain and peeling off of plaster in the ceiling of the defendant’s master bedroom close to the master bathroom. The paint of the wooden false ceiling of the defendant’s master bathroom was bulging with water marks. The mercury in the mirror of the defendant’s master bathroom showed signs of vanishing. The wooden mirror frame was enlarged with loosen paint. Mr Chung said in the joint expert report that although no obvious wetness was seen in the upper part of the wall close to the corridor, he could see signs of water originating from the flat above the defendant’s flat passing through the wall of the defendant’s master bathroom which spread downward. He could not rule out that there was water passing through the wall of the defendant’s master bathroom internally and spreading downward. As water was coming out from the PVC wall, it showed that a conduit of water was already established.

22.There is no doubt that water was emanating from the PVC wall. The plaintiffs had placed a funnel at the spot where water was coming out to divert the water to the drainage. Miss Lau measured that about 2 litres of water were so collected from the time of the 1^st joint inspection on 30 September 2020 to the 2^nd joint inspection on 30 October 2020.

23.Miss Lau observed that the body of the plastic drainage pipe of the washbasin in the defendant’s master bathroom was leaking. Darkness and water marks in the area in the defendant’s washbasin cabinet around the leaking plastic drainage pipe were seen. Such darkness and water marks are apparent from Fig 19 and 20 in Miss Lau’s report. There can be no doubt that the base of the defendant’s washbasin cabinet was affected by water. It is Miss Lau’s evidence that she could not further examine the space underneath because the base of the defendant’s washbasin cabinet was not opened up. She also had not dug out the concrete in order to inspect the connection point. That is why her conclusion is that it cannot be ruled out that the connection point was leaking.

24.Mr Chung placed heavy emphasis on the fact that no dye was seen in the plaintiffs’ flat after the coloured water test; the infra-red scan and the electrical conductivity sensing showed no obvious change after the test.

25.The validity of Mr Chung’s findings depends on whether the coloured water of the ponding test had reached the entire floor of the defendant’s master bathroom.

26.It seems that it was not the case.

27.As noted by Miss Lau, the base of the defendant’s washbasin cabinet was not opened up for inspection. This can be confirmed by Fig 19 and 20 in Miss Lau’s report which were taken on the date of the 1^st inspection on 30 September 2020. A close look at Fig 19 shows that there was a skirting under the defendant’s washbasin cabinet. The same skirting was also shown in Fig 272 (and the enlargement of the same picture in Fig 272A) in Mr Chung’s report. Notably, Fig 19 shows the right hand side of the skirting which was extended to the wall whereas Fig 272 shows the other end all the way up to the wall. In other words, when coloured water was poured on the floor of the defendant’s master bathroom, it could not have reached the area under the defendant’s washbasin cabinet.

28.In my view, this has a significant bearing on the validity of the coloured water test, the infra-red scanning and the electrical conductivity sensing which were done before and after the ponding because the coloured water did not reach the area which was directly and immediately above the PVC wall. This is particularly so because the base of the defendant’s washbasin cabinet had signs of water damage. It is more likely than not that the space thereunder was also affected by water. The fact that no coloured water was ponded in this area has compromised the validity of the findings of Mr Chung.

29.It is trite that the defendant is under no duty to identify the source of the water leakage or that its origin did not come from his property. Nevertheless, Mr Chung put forward a theory that the water was coming from the flat or flats above the defendant’s flat by mere visual observation. No test of any kind was done to verify his theory.

30.The fact that the defendant’s master bathroom was itself affected by water leakage is no proof that such water leakage is also the cause of the water leakage in the plaintiffs’ flat. Common sense dictates that if Mr Chung’s theory is correct, the degree of water damage in the defendant’s master bathroom must be more serious than that suffered by the plaintiffs’ master bathroom. But this is not the case here.

31.In my judgment, Mr Chung’s theory is unsupported by scientific evidence and does not sit well with logic. It must therefore be rejected.

32.The remaining question is whether the plaintiffs have proved, on balance of probabilities, that the water leakage originated from the defendant’s flat. As I do not accept that the flat or flats above the defendant’s flat is the source of the water leakage in the plaintiffs’ flat, and all other possible sources have been eliminated by the common opinion of the 2 experts, the only probable cause of the water leakage must be from the defendant’s flat. The answer to the question, in my judgment, is in the affirmative.

33.By reasons of my findings aforesaid, the defendant is liable to the plaintiffs for breach of clause 7 of the Deed of Mutual Covenant and Management Agreement of the Development[1] for failing to keep the defendant’s flat in good and substantial repair and condition; for negligence in failing to keep his flat in proper repair and condition thereby causing damage to the plaintiffs’ flat and for causing nuisance to the plaintiffs.

Injunctive relief

34.The plaintiffs seek the following injunctive reliefs:

(1)  The defendant doth within 28 days at his own costs and expenses carry out all necessary repair works of the defendant’s flat for the purpose of stopping and preventing water leakage from the defendant’s flat to the plaintiffs’ flat; and

(2)  an injunction to restrain the defendant, whether by himself, his servants or agents or otherwise howsoever from causing or permitting nuisance by permitting or allowing water to come into and about the plaintiffs’ flat.

35.Mr Brian Lo, counsel for the defendant, submitted that they are extremely wide and imprecise, citing Chiu Hung Shun Paul v So Ka Tai, CACV 136/2005, 5/12/2005 (unreported) in support.

36.In my view, a mandatory injunction requiring the defendant to do repair in the defendant’s flat in order to rectify the water leakage is sufficient relief. Once the cause of the water leakage is cured, I see no risk that the breach will remain. For this reason, I do not think a permanent injunction restraining the defendant from causing water leakage to the plaintiffs’ flat is justified.

General damage

37.The plaintiffs said that because of the water leakage problem, they spent a lot of time and energy to deal with the matters arising from it, including placing a funnel at the correct position in order to divert the water to the drainage; putting the electrical wires on the false ceiling to a higher position so that they would not be affected by the water; going through the complaint procedure vis a vis the management office and the Joint Office; employing expert to conduct inspection and tests and finally engaging lawyers to commence legal proceedings. Their normal life and works were therefore disrupted.

38.Mr Lawrence Ngai, counsel for the plaintiffs, asked for $20,000, citing Chau Chung Mei v Leung Ying Ngai, DCCJ 4062/2012, 29/9/2104 (unreported) and Wen Shek Tun v Chan Wai Fong [2002] HKDC 856 in support.

39.I have no doubt that the plaintiffs’ normal life had been disturbed and inconvenienced by the water leakage. I would accordingly award $20,000 under this head.

Expert report fee

40.The plaintiffs engaged Miss Lau to prepare a survey report before action in 2019. They paid $15,000 for the report.

41.But for the water leakage, the plaintiffs would not have incurred such fee. I would allow the plaintiffs’ claim under this head.

Loss of rental income

42.The plaintiffs said when the tenancy agreement ended in February 2017, they discovered the water leakage in the master bathroom. They had to complain to the management office and the Joint Office, and to arrange tests to be done in order to find out the source of the leakage. Therefore, they could only rent out the plaintiffs’ flat again on 1 August 2017 at the monthly rent of $19,300, which was 10% below the market rent. The said tenancy was renewed for another 2 years on 18 July 2019 at the same rent until 31 July 2021. They said in the normal course of event, they should be able to rent out the flat within 2-3 months. They therefore claim loss of rental income for 3 months at $21,500 per month, ie $64,500.

43.Mr Ngai further submitted that the plaintiffs are also entitled to loss of rental income (being the 10% difference) during the currency of the subsequent tenancy agreements for 72 months from August 2017 to July 2023 in the sum of $154,800.

44.Mr Lo submitted that no amount on rental loss was particularised in the statement of claim. The plaintiffs have also failed to adduce any evidence showing the market price of the plaintiffs’ flat. It is only the bare allegation of the plaintiffs that they could not rent the flat out due to the water leakage.

45.Paragraph 11 of the statement of claim is pleaded in the following terms:

“11. Not until July 2017 did the Plaintiffs manage to rent out the Plaintiffs’ Premises for a tenancy of 2 years with a rent below the prevailing market level.”

46.Although the amount of loss was not stated in the statement of claim, I accept that the facts pleaded are sufficient to raise the claim.

47.Nevertheless, no expert evidence was adduced to prove the then market rent of the plaintiffs’ flat. Apart from the word of mouth of the 2^nd plaintiff, there is no other evidence (eg of the new tenant or the estate agent) to substantiate such claim. I am not satisfied that the plaintiffs have discharged the burden of proof that the then market rent was $21,500.

48.Having said that, however, I accept that due to the discovery of the water leakage, the plaintiffs had to do remedial works and to take follow-up action. Such actions had delayed the renting out of the flat.

49.I find the claim of 3 months’ loss of rental income reasonable. I would therefore award $57,900 ($19,300 x 3 months) under this head.

Repair costs and cleaning fee

50.The 2^nd plaintiff said that in or about 8 March 2017 she employed a contractor to do the remedial works (including replacing the tiles, the mirror and repainting) and to install a device diverting the water to the drainage at the costs of $8,000.

51.The 1^st plaintiff said that after the remedial works, it was necessary to employ cleaners to do the cleaning works for 8 hours at $200 per hour.

52.Miss Lau estimated that the costs of repair works to be done in the plaintiffs’ flat would be $23,065.30.

53.Mr Lo pointed out that comparing Miss Lau’s 2019 report and her 2020 report, the assessment of reparation costs rose from $7,471.80 to $23,065.30 There is an additional $8,000 claimed for the wooden false ceiling with lights. Mr Lo submitted that Miss Lau’s assessment is inflated and the assessment of Mr Chung in the sum of $15,500 is more reasonable.

54.The wooden false ceiling was damaged by water and has to be replaced. The estimated costs of $8,000 is inclusive of materials and labour. I do not think it is inflated. Moreover, repair works have to be done to the damaged ceiling and wall. I accept the estimation of Miss Lau is the reasonable costs of repair.

55.I also accept that the costs of the remedial works done in 2017 were reasonably incurred.

56.However, I do not accept that 8 hours were required to do the cleaning works in 2017. In my view, 3 hours would be sufficient. Therefore, I would only allow $600 ($200 x 3 hours).

57.Accordingly, I would award $31,665.30 ($8,000 + $600 + $23,065.30) under this head.

Conclusion and order

58.By reasons of the aforesaid, I would grant the following mandatory injunction that:

“The defendant doth within 42 days at his own costs and expenses carry out all necessary repair works in the defendant’s flat for the purpose of stopping and preventing water leakage from the defendant’s flat to the plaintiffs’ flat.”

59.I would also enter judgment against the defendant for the sum of $124,565.30 ($20,000 + $15,000 + $57,900 + $31,665.30).

Interests

60.Interests shall be calculated at 1% above the best lending rate of HSBC from the date of the writ (ie 10 July 2019) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

61.I make a costs order nisi that the defendant shall pay the plaintiffs the costs of this action (including all costs reserved) with certificate for counsel, to be taxed if not agreed.

62.In the absence of any application by letter for variation within 14 days from the date of this judgment, the costs order nisi shall become absolute.

Mr Lawrence LK Ngai, instructed by CL & Co, for the plaintiffs

Mr Brian TY Lo, instructed by KC Ho & Fong for the defendant