Kan Lai Ling v. Wong Man Kit

DCCJ 5594/2018

[2024] HKDC 459

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5594 OF 2018

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JUDGMENT

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Background

1.This is a water seepage case where the plaintiff is seeking, inter alia, an injunction restraining the defendant from causing water to leak from Flat 608 or any water pipe exclusively serving Flat 608 into Flat 508 (both flats to be further described hereinbelow), an order requiring the defendant to rectify the defects in Flat 608, damages in the amount of $110,230.44, costs of alternative accommodation of about 15-20 working days, costs of rectification works in the amount of $110,230.44. Mr Victor T S Lui acted as counsel for the plaintiff and Mr Martin Kok acted as counsel for the defendant.

Background

2.The plaintiff is the registered owner and occupant of Flat No. 8, 5^th Floor, Block J, Chun Man Court, No. 66 Chung Hau Street, Kowloon, Hong Kong (the “Building”) (“Flat 508”). The defendant is the registered owner and occupant of Flat No. 8, 6^th Floor, Block J, Chun Man Court, No. 66 Chung Hau Street, Kowloon, Hong Kong (“Flat 608”), which is situated directly above Flat 508 where the defendant became the registered owner of Flat 608 on 30 May 2018. The older sister and lawful attorney of the defendant in this action is Wong Ka Wai Lucia (“Wong”).

3.The complaints from the plaintiff about water seepage into Flat 508 began in about June 2017, notably prior to the defendant purchasing Flat 608 where such complaints were made to the Management Office of the Building (“the Management Office”).

4.It is not challenged that there was water seepage found in Flat 508 at different times which resulted in dampness (sometimes cracks and damage) on the ceiling of the bedroom and bathroom areas, some damage caused to the bedroom and bathroom areas. The plaintiff herself has described the situation in the bedroom and bathroom of Flat 508 as dangerous and uninhabitable.

5.Prior to purchasing Flat 608, the defendant was informed about the plaintiff complaining about a water seepage problem from Flat 608 to Flat 508. The defendant consulted with the plaintiff on the very same day of 30 May 2018 upon purchase of Flat 608 about water seepage and the defendant’s contractor was instructed to perform all necessary renovation works on Flat 608, so as to prevent any possible water leakage from Flat 608 to Flat 508. This immediately led to a meeting later that day which took place in Flat 508 which was attended by the plaintiff, Wong and her husband (as instructed to do so by the defendant), Mr Au of the Management Office and a Miss Yeung who was the defendant’s property agent (“the Preliminary Meeting”).

6.More specifically, Wong thereafter instructed the defendant’s contractor to demolish the former bathroom (referred to as the “一號浴室” (“the Suspected Bathroom”)) at Flat 608 which was suspected to be the source of water seepage, a matter found in the witness statement of Wong and confirmed at trial. Wong also instructed the defendant’s building contractor to change all water pipes of Flat 608, as well as perform extra waterproofing works for the renovation of the Suspected Bathroom, again a matter found in the witness statement of Wong and confirmed at trial. There are found photographs taken by the defendant’s contractor showing the waterproofing works carried out at Flat 608 on or about 12 June 2018. According to Wong, the defendant’s contractor was instructed to use “extra effort” in water proofing the Suspected Bathroom at Flat 608.

7.On 25 June 2018, the plaintiff complained to Wong by WhatsApp message about water seepage at Flat 508 whereby in reply Wong stated that she wanted to know more about the situation and that the electrical wiring and water pipes in Flat 608 (at the location of the Suspected Bathroom) were removed since early June and that leaking from Flat 608 to Flat 508 was impossible.[1] Thereafter on the same day, Wong had a further telephone conversation with the plaintiff regarding the same matters.

8.It was in July 2018 that the plaintiff engaged Silver Consultants Engineering Limited (“SCEL”)[2], professional surveyors and specialists in water seepage investigation, to investigate the water seepage issue who then carried out an inspection on 30 July 2018 at Flat 508 but without inspecting Flat 608. Thereafter, on 15 August 2018, SCEL produced a report by a Mr Tsang Chun Wang (“the SCEL Report”) which concluded that water seepage into Flat 508 was due to Flat 608. Notably counsel for the defendant objected to the SCEL Report being tendered as, inter alia, expert evidence to be considered by the court, a matter to be dealt with later in this judgment.

9.On 2 August 2018, a Mr Chiu[3] (apparently speaking on behalf of the plaintiff) asked if Wong was conducting water based testing since there was water seepage in Flat 508 to which a photograph that was forwarded to Mr Chiu was then forwarded to Wong showing two images of what generally appears to be the junction(s) between a white wall to a white ceiling location that supposedly showed water seepage, an image which this court finds to be neither conclusive, nor clear, nor indicative of it being underneath and/or related to the Suspected Bathroom. In any event, Wong replied that “we”, namely (future) occupants in Flat 608, were not using water and questioned how there was water seepage. Wong also instantly replied that the plaintiff do make a report to the Management Office to arrange for the Food and Environmental Hygiene Department (“FEHD”) to conduct testing[4]. In the same WhatsApp message chain, Wong then requested Mr Chiu to open the aluminium covered ceiling space where the forwarded photos showed suspected water seepage was occurring to take a look. Mr Chiu instead replied that works should be done first and that the testing report was to be issued.[5]

10.On 21 August 2018, after the SCEL Report was produced, the defendant’s contractor asked the Management Office to arrange with the plaintiff for a water seepage test to be conducted. According to Wong, the plaintiff refused to carry out a water seepage test at Flat 508 since the plaintiff stated that she had instituted legal action against the defendant. On this note, it was recorded in the Management Office report dated 22 August 2018 that the residents of (Flat 508) would not conduct a water (seepage) test because of ongoing legal proceedings[6].

11.On 23 August 2018, the Buildings Department and the FEHD (“Joint Office”) carried out further inspections at Flat 608 and Flat 508 and according to Wong, an Inspector Chan of the Joint Office indicated that the bathroom in Flat 608 was altered into a bedroom without any water pipes. Inspector Chan indicated that there should not be any further water seepage from Flat 608 to Flat 508. According to Wong, Inspector Chan asked the Management Office to carry out further water seepage testing, specifically to the external walls of Flat 508.

12.On 5 September 2018, the plaintiff’s solicitors issued a letter to the defendant demanding rectification of water seepage from Flat 608 to Flat 508 with a statement that the defendant do reply within 7 days and that the related payment due to the plaintiff for such water seepage amounted to $158,074.99. As at 5 September 2018, the defendant’s family had yet to begin occupation of Flat 608 given that Flat 608 was purchased by the defendant for his family’s use. It was only on 24 September 2018 that the defendant’s family began occupation of Flat 608.

13.On 6 September 2018, according to Wong, the Management Office attempted to make arrangements to carry out water seepage testing of the external walls of Flat 508 but this proposal was rejected by the plaintiff. As noted in the Management Office’s report dated 6 September 2018, the residents of (Flat 508) would not conduct a water (seepage) test of the exterior wall because of ongoing legal proceedings.[7]

14.According to Wong and not challenged by the plaintiff per se, renovation works at Flat 608 were completed by mid-September 2018. Supported by a copy of a contract dated 6 May 2018 from the defendant’s contractors showed renovations were to finish within roughly 2 months’ time, the renovations to Flat 608 was to demolish a former bathroom (presumably the Suspected Bathroom but this is not explicitly clear) which was turned into a bedroom, changing of all the water pipes, extra waterproofing works for the renovation of the shower cubicle of the bathroom in Flat 608.

15.On 25 October 2018, the Joint Office issued a letter (“1^st Letter of the Joint Office”) that via their investigation on 23 August 2018[8] the Joint Office was unable to identify the source of water seepage at Flat 608 and terminated further investigation of the plaintiff’s complaints, notably since the bathroom in question was demolished and converted into a bedroom without any pipes or bathroom related activities[9].

16.On 10 December 2018, according to the plaintiff as per her witness statement, she “commenced the Action against the Defendant.” The plaintiff was unspecific how or by what means the “commencement” took place. In any event, the statement of claim in this action was issued on 4 March 2019.

17.On 6 June 2019, the Joint Office conducted further testing at Flat 608 and the letter dated 14 August 2019 (2^nd Letter of the Joint Office”[10]) stated that the Joint Office was still unable to identify the source of water seepage.

18.On 16 January 2020, the Joint Office issued a letter (3^rd Letter of the Joint Office”) where after arranging for the services of a professional surveyor that water seepage in the previously complained area had dried up and water seepage had ceased. Further investigation into the complaint would be temporarily suspended.

19.According to the plaintiff, in around late January 2020, water seepage at Flat 508 suddenly worsened and led to persistent water seepage from the ceiling of the bathroom of Flat 508 and along the wall leading to the floor of the bathroom in Flat 508. The plaintiff’s complaint was recorded in a letter from the Joint Office dated 6 February 2020. It is the plaintiff’s case that the defendant refused to cooperate with the Joint Office.

20.On 12 February 2020, the plaintiff took various photographs and videos of water seepage at Flat 508 that were sent from the plaintiff’s solicitors to the defendant’s solicitors on 13 February 2020.

21.In any event, on 12 February 2020, the plaintiff requested and Wong agreed in conjunction with the Management Office, that the flushing water supply at Flat 608 be suspended from 9:30 pm that evening until 9:30 am the next morning of 13 February 2020. The next day on 13 February 2020, the plaintiff requested and Wong agreed in conjunction with the Management Office, that the fresh water supply at Flat 608 be suspended, which Wong agreed to do so from 14 February 2020 at 11:30 pm to 9:30 am 15 February 2020. On both occasions, according to a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 20 February 2020, there was no water seepage detected from the flushing water supply from Flat 608 to Flat 508 or water seepage from the water pipes of Flat 608.

22.On 5 March 2020, the plaintiff’s solicitors wrote to the defendant’s solicitors to conduct a joint expert inspection of the cause of water seepage by 10 March 2020 to which the defendant’s solicitors agreed on behalf of the defendant to such inspection the next day of 6 March 2020.

23.On 10 March 2020[11], there was a joint inspection of Flat 608 and Flat 508 where the experts jointly agreed to conduct various forms of testing, namely via, Infrared Scan Method[12], Electrical Conductivity Sensory Method[13], Visual Inspection[14], Dye Water Testing[15] and Flow Meter Testing. Unfortunately, this led to separate reports being made by the parties’ respective experts.

24.The plaintiff’s expert from SCEL, a Mr Leung Ka Chun (“P’s Expert”) produced a report dated 6 April 2020 (“1^st Report of P’s Expert”). Notably, the 1^st Report of P’s Expert concluded that the source of water seepage into Flat 508 was due to poor waterproofing works at the pipes of Flat 608 and the shower cubicle of the bathroom of Flat 608.

25.The defendant’s expert from Hong Kong Building Inspection & Structural Diagnostic Limited, a Mr Chung Wai Hoi Vincent (“D’s Expert”) produced a report dated 27 May 2020 (“1^st Report of D’s Expert”). Notably, the 1^st Report of D’s Expert concluded that there was no evidence or indication that the water seepage at Flat 508 had originated from Flat 608 and that the water seepage could be attributed to other causes such as public pipes, external walls, or from flats at a separate level.

26.On 16 March 2020 and later on 11 June 2020, the plaintiff continued to take various photographs and videos of water seepage in Flat 508, inclusive of the ceiling of the bathroom of Flat 508.

27.On 23 June 2020, the plaintiff applied for an interlocutory injunction against the defendant to, inter alia, forthwith carry out proper repairs to Flat 608 to rectify the water seepage at Flat 508 (“P’s Interlocutory Injunction”).

28.On 10 August 2020, SCEL via P’s Expert prepared a Supplemental Investigation Report (“2^nd Report of P’s Expert”) responding to the 1^st Report of D’s Expert which reconfirmed that the source of water seepage into Flat 508 was due to Flat 608. On 26 August 2020, D’s Expert prepared a further report (“2^nd Report of D’s Expert”).

29.P’s Interlocutory Injunction was heard and dismissed by HH Judge Harold Leong on 4 September 2020 and where further orders were made for the continued conduct of the case (“the 4 September 2020 Order”).

30.The 4 September 2020 Order provided that, inter alia, that:

“3. The parties do have leave to adduce expert evidence on liability and quantum regarding the alleged water leakage, namely the source of leakage and the necessary and reasonable repair costs arising. The Plaintiff’s expert being Mr. Leung Ka Chun (“Mr. Leung”) and the Defendant's expert being Mr. Chung Wai Hoi Vincent (“Mr. Chung”);

4. The expert reports prepared by Mr. Leung on 6 April 2020 and 10 August 2020 [i.e. Leung’s 1^st and 2^nd Reports] and by Mr. Chung on 27 May 2020 and 26 August 2020 [i.e. Chung’s 1^st and 2^nd Reports] do stand as the respective expert reports of the experts;

5. The experts shall within 28 days attend a joint meeting on a without prejudice basis pursuant to O.38 r.38 of the Rules of the District Court and prepare a joint statement within 35 days thereafter which they shall set out those parts of their opinion on which they are, and those on which they are not in agreement, with reasons in support of their respective opinion”.

31.On 23 October 2020, the Joint Office issued a letter (“4^th Letter of the Joint Office”) to the defendant that via their investigation on 10 September 2020 the Joint Office was unable to identify the source of water seepage.[16]

32.On 10 February 2021, the Joint Office issued a letter (“5^th Letter of the Joint Office”) to the defendant indicating that it engaged consultants to conduct further testing of water seepage at Flat 608 to Flat 508 and via such investigation that the Joint Office would cease follow up to the complaint since after going to both Flat 608 and Flat 508 and testing the bathroom shower and bathroom floors they were unable to identify the source of water seepage.[17]

Witnesses at trial

33.In relation to factual witnesses, there is the plaintiff and Wong. 　In relation to expert witnesses, there is P’s Expert and D’s Expert.

The Joint Expert Report dated 18 February 2021 (“the Joint Expert Report”)

34.The Joint Expert Report made various statements, including but not limited to:

(a)  Both experts agreed on the existence of water seepage in the ceiling and walls of the bedroom and bathroom areas of Flat 508;

(b)  Both experts agreed that the unit next to Flat 608 can be ruled out as the source of water seepage into Flat 508;

(c)  The experts were unable to agree on whether the water seepage into Flat 508 was due to Flat 608;

(d)  The experts were unable to agree on whether the water seepage at Flat 508 was due to seepage of rainwater via the external walls of the Building[18];

(e)  The experts were unable to agree on whether the water seepage at Flat 508 was due to seepage from units from floor(s) that were not immediately above Flat 508.

35.It is notable that on 3 October 2020, P’s Expert prepared a substantive “expert report” which was appended to the Joint Report (“the 3 October 2020 P’s Expert Report”) which included P’s Expert conducting testing at Flat 508 on 23 September 2020 without ever notifying the defendant, the defendant’s solicitors, or D’s Expert. The 3 October 2020 P’s Expert Report also very noticeably had P’s Expert conduct a completely new testing method that was never agreed between the experts, namely via a Microwave Moisture Scanning Test.[19] The 3 October 2020 P’s Expert Report is objected to by counsel for the defendant.

Issues in dispute

36.The Joint Statement of Issues in Dispute dated 2 September 2021 set out the following issues:

(1)  Whether or not the source and cause of the alleged water leakage in Flat 508 is from Flat 608 and/or caused by the defendant;

(2)  Whether or not the defendant would be liable to the plaintiff’s alleged loss and damages caused by the alleged water leakage;

(3)  Whether or not the plaintiff is obliged to mitigate [her] alleged loss and damages;

(4)  Whether or not the defendant would be liable to pay damages to the plaintiff;

(5)  Whether or not the plaintiff is entitled to the relief as claimed under the statement of claim;

(6)  Whether or not the plaintiff’s expert evidence on liability should be accepted;

(7)  Whether or not the defendant’s expert evidence on liability should be accepted;

(8)  Whether or not the plaintiff’s expert evidence on quantum should be accepted; and

(9)  Whether or not the defendant’s expert evidence on quantum should be accepted.

37.At trial, the list of issues were sensibly narrowed down to being:

(1)  What was the source of the water seepage at Flat 508;

(2)  If the source of the water seepage at Flat 508 is Flat 608, whether the defendant should be liable to the plaintiff in respect of the plaintiff’s pleaded causes of action;

(3)  If the defendant is liable, what is the appropriate relief and the amount of quantum of damages.

Relevant legal principles

38.In relation to water seepage cases, the principles are trite and were summarized by DDJ Lawrence Ng in Lam Kit Yee v Lam Shuk Lam and Anor (unreported, DCCJ 3115/2011, 10 March 2017) at §11:

“11. The following principles apply to water seepage cases. Firstly, causation is a question of fact: Three Rivers DC v Bank of England [2003] 2 AC 1, at 194B-C per Lord Steyn. Secondly, in water seepage cases, there is no presumption that the source of the water must come from the flat above. The plaintiff has to establish, on a balance of probability, that the source of water was the defendant’s flat. Thirdly, the defendant has no obligation to find out or identify the source of the water seepage or to prove that its origin did not come from his property. See: Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456, at 461 I-J per Cheung J (as he then was); Hui Ling Chun v Shiu Mak Ying & Anor, DCCJ 10294/2001 (unreported, 3/3/2004), at §2 per HH Judge Marlene Ng; Wong Ping Chun v Giant King Corporation Limited, DCCJ 4020/2012 (unreported, 16/3/2016), at §14 per DDJ Phillis Loh.”

39.Counsel for the plaintiff also noted that in Chan Wai Shin v Pang Chung Kong and Anor [2019] HKDC 1289 at §142 per HH Judge Winnie Tsui. Further in Chan Wai Shin (ibid) at §162 it was held that it is well-recognised that dye tests/colour water tests are not always successful and negative results alone are not definite evidence against the suspected source (citing Professional Guide to Water Seepage published by the Hong Kong Institute of Surveyors (2014) at §4.2.1 - page 23) but it is also pertinent to note that such finding in Chan Wai Shin (ibid) was one of fact and not expressed as a principle of law per se.

40.The causes of action in relation to water seepage cases were considered in Chan Pat Hung Eva v Wong Hau Ki [2023] HKDC 230 at §§6-8 per DDJ Teresa Wu:

“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.

41.Also notable is the case of Tin Kin Ka Clara v Chan Koon Cheong and Anor DCCJ 3139/2012 (11 May 2015) at §56, per HH Judge Andrew Li held that:

“[I]n order to prove nuisance in a seepage case, whether as a standalone cause of action or as a part of the breach of DMC, a plaintiff must show, besides the seepage itself and the issue of causation, that (i) the defendants actually or constructively knew that the water originated from their premises; and (ii) remedial action was not taken within a reasonable time.”

42.With the burden being on the plaintiff to prove its case, the defendant has no such responsibility to find the source of water seepage as per Hui Ling Ling v Sky Field Development Ltd HCA 35/2007 (8 May 2012) at §23 as per Recorder Yuen SC:

“It is well established that there is no presumption that water leakage was necessarily caused by the flat above. The plaintiff in a water leakage case bears the burden of proof to establish, on a balance of probabilities, that the source of water was the defendant’s flat. Hence, it is not for the defendant to find out or identify the correct source of the water leakage or to prove that its origin did not come from his property. See, eg: (a) Leung Yung Chun and Tsoi Chik Lai v Chan Wing Sang & Ors, unrep, HCA 12235/1998 (28 January 2000), para 22; (b) Hui Ling Chun v Shiu Mak Ying & Choi Chun Hoi, unrep, DCCJ 10294/2001 (3 March 2004), para 2; and (c) Wong Pui Ping v Au Wai Ki Jacky & Au Chun Yin, unrep, DCCJ 1225/2007 (17 April 2012), para 94.”

43.Furthermore, as per Hui Ling Ling (ibid) §58 where Recorder Yuen SC held that with regards to investigations by the FEHD (and Water Authority):

“Fourth, as noted above, the FEHD had conducted colour dye tests at all relevant and likely drain outlets at the D’s Flat on 17 April 2003 and the Water Authority had conducted meter flow tests on 25 April 2003. According to the plaintiff, water leakage problem should be serious in April 2003. However, the investigations done by FEHD and the Water Authority did not link the D’s Flat with the water leakage problem. Both the FEHD and the Water Authority were independent authorities who had no interests to serve in this litigation. There was no reason why either the FEHD or the Water Authority would have sided with the defendant. There is also no evidence to suggest that the tests or investigation done by them were not properly done. In the circumstances, this court has no basis to reject the findings made by these authorities.”

44.Tin Kin Ka Clara (supra) at §52(2), per HH Judge Andrew Li was in agreement with Recorder Yuen SC and further at §54 held that knowing the consequences of seepage does not equal to knowing the source of it:

“52(2) In the absence of any evidence of bias (and there is none in this case), test results of the Joint Office, being contemporaneous and neutral, should be given great weight: see eg Hui Ling Ling v Sky Field Development Limited HCA 35/2007 (unreported), 8 May 2012 at §58.

…

54. From a legal point of view, if a person does not know the source of the seepage coming from its own property, then it can be said that he has no intention to cause nuisance to his neighbour and the tort of nuisance would not able to stand.”

45.As per Polysoon Investments Ltd v Lau Mo Kun and Anor [2022] HKDC 211 at §158 where HH Judge Au-Yeung held that a defendant’s duty in relation to nuisance is not absolute but rather a measured duty and that at §177 reasonableness in relation to nuisance is to be considered at the material time while bearing in mind what information a defendant had at that point of time which may be reflected in the level of knowledge (or lack thereof) held by the Joint Office.

46.For the avoidance of doubt, at trial it was not a significantly advanced position by the plaintiff that the defendant was in breach of clause 3(a) of the Second Schedule of the DMC of the Building regarding the covenant to repair Flat 608 under the statutory obligation imposed under s 34H(1) of the Building Management Ordinance (Cap 344). The clear and obvious focus at trial by the parties was on the cause of action in relation to nuisance.

Expert evidence and considerations

47.There appears little disagreement that the expert evidence adduced by the parties should be the primary and most crucial evidence this Court needs to consider in determining the source of the water seepage.

48.As observed by DDJ Lawrence Ng in Lam Kit Yee (supra) at §39:

“39. In the present case, the plaintiff and the defendants’ son-in-law gave evidence. As with most water seepage cases, the factual evidence of the witnesses is largely irrelevant to the cause(s) of water seepage, which is largely a matter of expert evidence. It is for the court to decide as a matter of fact the causes(s) of water seepage after hearing and considering the expert evidence…”

49.There was significant disagreement between the parties as relating to whether, inter alia, the 3 October 2020 P’s Expert Report was to be admitted at trial and sensibly the parties agreed that it be admitted on a de bene esse basis but that the parties reserved all rights regarding the same at closing on the matter.

50.It is additionally pertinent to note that the 4 September 2020 Order provided that the 1^st and 2^nd Reports of P’s Expert and the 1^st and 2^nd Reports of D’s Expert[20] were the only expert reports where leave was given to be adduced since it is obvious that His Honour’s consideration was based on what was available at that time and highly sensible case management. There was no appeal from the 4 September 2020 Order and that order remains binding on the parties.

51.Furthermore, were there any disagreements between the parties’ experts, that after 28 days of the 4 September 2020 Order at the joint meeting between the parties’ experts there would be an opportunity to discuss and disclose any disagreed parts in their respective opinion(s). Nothing significant appeared to be done at the parties’ experts meeting that was to take place in this regard. Obviously and against the 4 September 2020 Order, the 3 October 2020 P’s Expert Report was made after the joint meeting between the parties and (presumably) knowingly so.

52.In passing, it is noted that the Joint Expert Report was dated 18 February 2021 but notably not filed until 7 April 2021. In the Joint Expert Report, D’s Expert objected to the 3 October 2020 P’s Expert Report and this was clearly known by the plaintiff and put directly into issue[21] but again nothing was done by the plaintiff to rectify the situation, in particular when D’s Expert put into issue the fact that the Microwave Moisture Scanning Test was done unilaterally.

53.Orders of the Court were made until 11 March 2022[22] and nowhere was there any application by the plaintiff to have the 3 October 2020 P’s Expert Report adduced as expert evidence, which is a substantive document.

54.As an additional matter, the SCEL Report was also a substantive document and despite being produced as early as 15 August 2018, was never permitted to be adduced as expert evidence pursuant to the 4 September 2020 Order. At trial, counsel for the plaintiff remarked that the SCEL Report is used only for the purpose of facts and not on the basis of it being adduced as expert evidence.

55.Notable is the case of Wong Kit Ming and Others v The Incorporated Owners of Wah Hoi Mansion [2019] HKDC 1652 where HH Judge Andrew Li held that in a water seepage case that a party using a supplemental report to compensate for inadequacies without any direction or leave from the court was disturbing, especially if such a supplemental report was introduced through the “backdoor”.

56.It was ultimately ruled in Wong Kit Ming and Others (ibid) that expert evidence would be expunged, any reference to such expert report be deleted and such expert opinion held to ultimately be inadmissible. Factors which affected the court’s ruling in Wong Kit Ming and Others (ibid) was based upon, inter alia, where such an expert witness’ evidence was not, inter alia, from an impartial and independent expert, was acting as an advocate for a particular party, prepared their expert evidence without leave of court or consent from the opposing party, introduced their expert evidence without authorization, referred to matters based on the expert witness’ own assumptions or speculation rather than on evidence, and did not disclose to the court their dual role as an expert and consultant for their own party and thus in a position of conflict of interest.

57.In the present case, this court permitted the 3 October 2020 P’s Expert Report to be adduced at trial on a de bene esse basis but with the parties agreement, reserved its right to ultimately rule on its admissibility. This court finds that there was no leave given for the 3 October 2020 P’s Expert Report to be adduced at trial, a period of several years had elapsed without an application by the plaintiff to adduce the said report, there was no consent from the defendant for its inclusion, and perhaps most damaging was the fact that the Microwave Moisture Scanning Test was done unilaterally.

58.Counsel for the defendant submitted that P’s Expert was abusive in his behaviour by virtue of how the 3 October 2020 P’s Expert Report came to be in the trial bundles by way of a “slip-in” and that such conduct was “shocking” and “astonishing” by virtue of citing some of the comments found in Wong Kit Ming and Others (ibid).

59.Counsel for the plaintiff made verbal submissions seeking leave from the court to adduce the 3 October 2020 P’s Expert Report at trial. With respect, given how matters leading up to the appearance of the 3 October 2020 P’s Expert Report came about as per §§50 to 53 hereinabove in this judgment, it is apparent that the plaintiff seeking leave at trial was unacceptable.

60.Given my findings hereinabove, this court does not need to go so far as to characterize that the 3 October 2020 P’s Expert Report came about in a “shocking” and “astonishing” manner or that not all of the factors considered in Wong Kit Ming and Others (ibid) are fully present. More importantly, there was no procedural fairness exercised on the part of the plaintiff to the extent that it will not be safe for this court to rely on the 3 October 2020 P’s Expert Report.

61.As such, this court finds that the 3 October 2020 P’s Expert Report to be inadmissible with the said report being expunged and any reference to it be deleted.

62.It is unnecessary for this court to discuss any more about the 3 October 2020 P’s Expert Report but in passing it will be noted that such expert evidence was in any event tenuous at most and arguably flawed. It was notable that:

(a)  The Microwave Moisture Scanning Test[23] supposedly showed significant amounts of water in the ceiling and wall of the bathroom and bedroom of Flat 508 which P’s Expert opined this was only possible from leakage from a high pressure pipe.

(b)  The conclusion arrived at by P’s Expert from the Microwave Moisture Scanning Test was based on various pairs of images, namely, (i) a photo of the area (i.e. ceiling or walls) where the test took place which is then (ii) paired to a coordinate coloured grid based image produced from the said test itself[24] whereby at the side of the coloured grid based image is a scale of graded colours (i.e. from 0-8, 35-65, etc.) and at the bottom is references to density measured in millimeters (i.e. constant figure at 200 mm and constant depth of 70 mm plane (except for a single instance of 110 mm plane[25]) respectively). The areas on the coloured grid based image which show darker colours allegedly show more instances of water.

(c)  P’s Expert also stated that there was no water in a wide area, particularly there being no high moisture near the external wall where the Microwave Moisture Scanning Test had taken place.

(d)  P’s Expert accepted that there was no evidence as to the thickness of the concrete slabs between Flat 608 and Flat 508 which was information needed to show the density of the floor/ceiling between them and per Polysoon (supra) §113 it was held that without knowing the thickness of a floor slab that water at a particular plane of thickness could not show accurately where water came from, particularly it could not conclusively show that water seepage was emanating from the flat above.

(e)  The Microwave Moisture Scanning Test by P’s Expert was subject to “Potential Pitfalls” stated in the HKIS Guide at 4.2.5 which included “The presence of metals in the tested material (e.g. concrete reinforcement) can give false readings, “Water near the surface of the test object will heavily affect the readings.” and that “Limitations of method” include “Surface of the test object should be kept dry and flat.”. P’s Expert accepted that such said factors were present at Flat 508, these factors could have caused the results from the Microwave Moisture Scanning Test to be inaccurate, and such limitations and related impact on his findings were not mentioned in his expert report.

(f)  P’s Expert did not conduct his testing at different thickness(es) / planes such as 30 mm, 70 mm, 110 mm planes since it was “too shallow” despite D’s Expert making this clear in his report as being the usual practice[26]. Having such varied planes of examination was also identified as the process that should at least be carried out as per Polysoon (supra) §113.

(g)  P’s Expert confirmed under cross-examination that the Microwave Moisture Scanning Test in and of itself would be unable to identify the source of water seepage into Flat 508.

Issue 1

63.Counsel for the plaintiff rightly put that in resolving Issue 1 is for the court to make a finding of fact on what was the source of the water seepage at Flat 508.

64.As already stated earlier on in this judgment, there were instances of water seepage at Flat 508 with various photographs and videos indicating such varying levels of such water seepage. But also already stated earlier on in this judgment, such incidents of water seepage were not continuous per se, nor was there any evidence showing that the water seepage was emanating from Flat 608 that was situated above Flat 508.

65.From the 1^st to 5^th Letters of the Joint Office, whether by the Joint Office, its various inspectors, the independent contractors engaged by the Joint Office, various forms of non-destructive testing[27] of Flat 508 and/or Flat 608, there was never a positive finding of the source of water seepage at Flat 508. Furthermore, this judgment has previously discussed the various instances where the plaintiff was not always forthcoming to assist by allowing inspection of Flat 508 (regardless of the reasons why given by the plaintiff) which nonetheless was not helpful for this court to come to appreciate the evidence in this case in a fuller and more comprehensive manner.

66.As already mentioned, the SCEL Report was relied upon by the plaintiff in general and not as expert evidence[28]. It is notable that the SCEL Report was directly referred to in the statement of claim[29] and forming (part of) the material facts relevant to the plaintiff’s claim in nuisance and/or negligence. Again, the SCEL Report was based on Tsang Chun Wah’s inspection of Flat 508 only without ever inspecting Flat 608. As such, clearly the SCEL Report, when relied upon only in the general factual sense, is in itself limited and not taken as being comprehensive.

67.As previously mentioned, the expert evidence adduced by the parties is the primary and most crucial evidence this court needs to consider as held in Lam Kit Yee (supra).

Infrared Scan Method

68.P’s Expert carried out the infrared scan method (or simply infrared test(ing) or scans) in the 1^st Report of P’s Expert, 2^nd Report of P’s Expert and in the Joint Report. The infrared scan results from the 1^st Report of P’s Expert led to P’s Expert concluding that there was an obvious increase in the amount of water in the ceiling and walls of the toilet and bedroom of Flat 508. These said results led to P’s Expert concluding that water seepage at Flat 508 was due to the poor waterproofing at the high-pressure pipes and shower booth of Flat 608.

69.P’s Expert explained to the court that infrared scans were taken of the same test spot to maintain consistency, to have a proper basis for comparison, and to present his findings in a side-to-side comparison after a water spray test. P’s Expert stated that there was a decrease in temperature at the designated test spots in Flat 508 after water spray testing which showed an increase in the amount of water at the designated test spots as shown from colour changes from green to blue/purple.

70.The change in temperature of a test spot from green to blue/purple showed a drop in temperature and the presence of increased water is a matter agreed by both experts. This form of testing, whether referred to as infrared testing or thermal testing[30], is one commonly used in Hong Kong and has been for many years.

71.What is disagreed was whether P’s Expert’s lack of use of a scale and/or calibration of infrared/thermal scanning equipment would lead to inaccurate readings regarding the findings made. Counsel for the plaintiff characterized this as a desperate and last-ditch attempt by D’s Expert since even the 2^nd Report of D’s Expert made no such criticism and was thus unfair.

72.It is noted that there was criticism by D’s Expert in the Joint Expert Report on the lack of a scale in P’s Expert infrared scans, therefore this matter was identified by D’s Expert and put in issue.[31]

73.Furthermore, it is noted that all along the Hong Kong Institute of Surveyors Professional Guide To Water Seepage (“HKIS Guide”) was appended to the Joint Expert Report[32] where at paragraph 4.2.2 there is mention of “Potential Pitfalls during application” that the “Device is sensitive to the ambient thermal environment and wind” and that “Limitations of the method” that “Only indicates the presence of moisture, but is unable to tell the source(s)”.

74.It was held in Leung Chin To Michael v Wong Siu Cheuk Ping Selina [2023] HKDC 376 that scan records need both a scale and a calibration record to ensure proper and usable results in the “thermal scanning” process at §§39-41:

“39. First, I agree with the defendant that the thermal scanning result obtained by Mr Leung provides no probative value on both the presence of water seepage, and the source of such seepage (if any). The scan records annexed to Mr Leung’s expert report do not contain any scale from which one can work out the temperature difference the different colours in the records seek to represent. In other words, even though Mr Leung pointed out that the areas coloured blue at various parts of the ceiling of the Lower Property were of a lower temperature to those areas coloured green, one cannot ascertain the extent of such temperature difference. Indeed, Mr Leung never gave evidence on the extent in terms of, say, degree Celsius. Without knowing the extent of the temperature difference, it is in my judgment impossible to decide whether the scan records contain any significant finding on any accumulation of water.

40. In my judgment, it is equally unsatisfactory that Mr Leung’s report does not contain any thermal scans for any part of the ceiling which the plaintiff accepted to be completely free from water seepage. The problem is the same as above: without a “reference” or a “control” to judge against, one cannot decide whether the thermal scans now included in Mr Leung’s report provides any significant information; and if so, what conclusion can be deduced from them.

41. A similar criticism can be levied against the lack of calibration record of the scanner used by Mr Leung during his inspection. Under cross examination, he accepted that there were more than 1 brand of scanning machine. I find the defendant fair to say that, without any calibration record, one cannot tell the sensitivity of a particular brand of scanner. Again, without the scale, one cannot deduce any useful information from the thermal scans.”

75.Compounding the problems arising from the lack of having a scale and proper calibration of thermal scan equipment as held in Leung Chin To Michael (ibid) would add to the challenges found in a situation such as Aldo Trading Limited v Partner Decoration Engineering Limited, HCA 1199/2005 (13 December 2007). In Aldo Trading Limited, it was held by Burrell J at §§54-57 that a problem in using infrared scans or where the scan results from temperature readings are shown by colour indications are problematic since the temperature readings are not always agreed by the parties experts and that the range of temperature differences showing water seepage could vary from as little as 0.5 degrees Celsius as opposed to 3.0 degrees Celsius depending on parties’ experts' interpretation as showing meaningful or reliable evidence of water seepage. As such, the court might come to a factual finding that a positive image might simply be showing that there is only a possibility of water vapour being present and no more.

76.Having considered the evidence provided by P’s Expert, I have also noted that the relevant infrared scans were in fact, not entirely accurate since the side-by-side comparison infrared scans[33] were taken in somewhat different locations and also at times from somewhat different angles as per the positioning of the infrared camera. Furthermore, from observing the aforesaid infrared scans, it appears that only a few of the side-by-side comparison infrared scans showed any distinct temperature change via colour indications and those few showing any distinct temperature change tended to be the infrared scans affected by having somewhat different locations and also from somewhat different angles.

77.There is no dispute that there was neither a scale given or used for the infrared scans made by P’s Expert nor was there calibration of the equipment used by him. Counsel for the plaintiff suggested that a scale from D’s Expert[34] could somehow be “superimposed” onto P’s Expert’s evidence regarding infrared scans but this court refuses to do so given that this would necessarily change the provenance and nature of the infrared scan evidence and how such infrared scans are to be considered by this court. Furthermore, when considering §81 hereinbelow, this suggestion by counsel for the plaintiff is clearly an impossibility.

78.Counsel for the plaintiff criticized D’s Expert’s infrared scan findings stating that they were not based on comparisons of the same test areas in the before and after water spray tests. This is especially so when comparing the infrared scan photos at their designated test points at locations 1 to 24 when compared to their corresponding sets of infrared scan data.

79.D’s Expert under cross-examination did have inconsistencies in being unable to correlate some of the infrared scan photos with particular photos. Furthermore, D’s Expert then realized the number of infrared scans to test points were either different or missing. It was also stated under cross-examination that D’s Expert admitted that changes to the angle of the infrared scans with even minor changes may affect the results. D’s Expert was at times somewhat cavalier in his answer as to how his infrared scans were made which did not assist his credibility on his opinion regarding infrared scans made at Flat 508. Although a scale was used in D’s Expert infrared scans, D’s Expert admitted under cross-examination that there was no calibration of the infrared scanner that he used either.

80.During cross-examination of D’s Expert, he admitted that certain of his infrared scans showed an orange/red colour (and then thereafter its absence) of the ceiling area in Flat 508 but then explained that such a phenomenon might have been due to a ceiling lamp being turned on (and then off) at different times of infrared scan testing.

81.An additional matter that arose at trial was that it was discovered that both respective experts used different brands of infrared scanners and different types of software to provide their results. Not assisting either party was that at trial both experts agreed that there was never a jointly made “control” infrared scan that would allow both experts to have at least a modicum of understanding on the others’ equipment and related infrared scan readings.

82.Given the comments made in Leung Chin To Michael (supra) and Aldo Trading Limited (supra) as particularly when applied to my findings at §§76-77 hereinabove of this judgment, this court is not willing to give the infrared scans made by P’s Expert and the related conclusions made by P’s Expert on infrared scanning any or any significant weight. It can also be said that the infrared scans made by D’s Expert, particularly when considering my findings at §§78-80 hereinabove of this judgment where D’s Expert was also not particularly helpful or entirely credible and therefore this court is not willing to give the infrared scans made by D’s Expert and the related conclusions made by D’s Expert on infrared scanning any or any significant weight either.

Electrical Conductivity Sensory Method (“ECS Test”)

83.Both parties’ experts were able to agree upon the ECS Test figures recorded from their joint inspection which was carried out on 10 March 2020. However, P’s Expert acknowledged under cross-examination that he had erroneously relied on different figures that were agreed upon from their joint inspection carried out on 10 March 2020 in preparing the Joint Expert Report.

84.The discrepancies between the recorded figures regarding moisture concentration points and the figures deployed by P’s Expert in relation to the ECS Test were made known to him in an email dated 9 June 2020 but then in both a WhatsApp conversation and email from SCEL on 10 June 2020 said they would have P’s Expert revise his part of the Joint Expert Report. This revision by P’s Expert never took place and is seen in flawed figures that were still deployed in the Joint Expert Report as relating to the ECS Test.[35]

85.ECS was a testing method agreed by both parties’ experts but it was accepted by P’s Expert under cross-examination that the ECS Test could not be used to identify the source of water seepage at Flat 508.

86.Counsel for the plaintiff also very fairly accepted that there were limitations to the ECS Test such as the surface area needed to be dry and free of contaminants but the ceiling of Flat 508 where the ECS Test took place was not[36]. Furthermore, protruding steel bars would affect the ECS Test since these were electrically conductive materials and this was seen very clearly in photos and documentation related to the ECS Test[37].

87.Nonetheless, P’s Expert did assert in the 2^nd Report of P’s Expert that where there was a decrease in moisture content this was due to “hardness” of the concrete and reinforced steel but as per Polysoon (supra) at §98(3)) where in a similar situation it was held that “[i]f the decrease of the moisture level at check point 9 was due to external factors…, then external factors could also play a role at the check points where moisture content had increased…”

88.D’s Expert was cross-examined about, inter alia, whether there was a need to use a 35% moisture content as a benchmark on the data points but it was also P’s Expert who agreed that this was an acceptable amount[38] and indeed features in Polysoon (supra) at §§97-100 as an industry norm.

89.Given the comments made in Polysoon (supra) when particularly when applied to my findings at §§83-88 hereinabove of this judgment, this court is not willing to give the ECS Test and the related conclusions made by P’s Expert from the ECS Test any or any significant weight.

Visual inspection

90.P’s Expert in making visual inspections as per the 1^st Report of P’s Expert[39] and the Joint Expert Report noted his observation that there was water seepage at the bedroom wall of Flat 508 as well as there being water droplets from the ceiling of the bathroom of Flat 508. D’s Expert did not come to the same findings as P’s Expert, particularly after also attending the joint inspection on both 10 and 23 March 2020.

91.It was accepted that the visual inspection method, in particular as applied at Flat 508 and without any particular equipment, would not and did not render any conclusive results.

92.Without much controversy, this court is not willing to give the visual inspection test and the related conclusions made by P’s Expert any or any significant weight.

93.For the avoidance of doubt, even considering that there was some evidence in the SCEL Report, various photographs and videos taken by the plaintiff showing some water seepage at Flat 508, such evidence in itself is not conclusive of showing the factual and causal link of water seepage as emanating from Flat 608 or otherwise.

Dye Water Testing

94.Counsel for the plaintiff very fairly accepted that the dye water testing results were inconclusive. Nonetheless, this court was invited to consider a few matters.

95.Dye water testing is well-recognised as not always being successful but that negative results alone from such testing is not definitive evidence against the suspected source as per Chan Wai Shin (supra) at §162 per HH Judge Winnie Tsui referring to §4.2.1 of the HKIS Guide as particularly applying to the facts of that case. In fact, both parties’ experts found that the dye water testing results did not serve to prove that Flat 608 was not the source of the water seepage per se.

96.There were complaints by both experts on the duration of the dye water testing but this was a matter that went unresolved and the dye water testing was never completed in a mutually satisfactory manner. In any event, the dye water testing did not show the presence of dye water as recorded by both parties’ experts.

97.For the avoidance of doubt, dye water testing was also carried out and recorded in the 4^th and 5^th Letters of the Joint Office in September 2020 and early 2021 which could not positively show the source of water seepage into Flat 508.

98.Again without much controversy, this court is not willing to give the water dye testing any weight at all.

Flow Meter Testing

99.Counsel for the plaintiff very fairly accepted that the flow meter testing results were also inconclusive. Nonetheless, this court was invited to consider a few matters.

100.A complaint was made in the 2^nd Report of P’s Expert that the flow meter test was only conducted for only 30 minutes whereas 12 hours would have been the ideal period of time. In any event, after 30 minutes there was no change to the flow meter as recorded in the 1^st Report of D’s Expert. There should was no reason why P’s Expert could not have insisted on the 12 hours supposedly needed for the water flow test but the matter simply went unresolved on this issue with complaints made thereafter.

101.Also for the avoidance of doubt, water flow testing was carried out on 12 and 13 February 2020 as already explained at §21 hereinabove of this judgment with no positive results found.

102.Again without much controversy, this court is not willing to give the water flow testing any weight at all.

Resolution of Issue 1

103.Despite there was evidence of water seepage at Flat 508 at various times and at various degrees of severity, again as per Hui Ling Ling (supra) “The plaintiff in a water leakage case bears the burden of proof to establish, on a balance of probabilities, that the source of water was the defendant’s flat. Hence, it is not for the defendant to find out or identify the correct source of the water leakage or to prove that its origin did not come from his property.”

104.Given the aforesaid findings made by this court, it is resolved that the plaintiff has not proven on a balance of probabilities that the source of the water seepage at Flat 508 was due to Flat 608.

Ancillary matters

105.This court has ruled on Issue 1 but passing remarks are made regarding two matters, namely, whether the water seepage at Flat 508 was due to cracks in the external wall or old public pipes of the Building.

106.The SCEL Report indicated that were instances where water seepage was observed[40]. The Joint Office inspected Flat 508 on 23 August 2018 where at §11 hereinabove of this judgment, Inspector Chan requested inspection of the external walls of Flat 508. Furthermore, in the 1^st Report of D’s Expert there was observed cracks in the external walls of Flat 508 and this was put as a live issue but this was not investigated and consistent with §13 hereinabove of this judgment such an investigation was refused by the plaintiff. Although the 2^nd Report of D’s Expert did not further expand upon issues relating to the external walls as a potential source of the water seepage at Flat 508, it was again mentioned by D’s Expert in the Joint Expert Report.[41] Whether there was no rain on 7 to 9 March 2020 or a minimal level of rain on 10 March 2020 during the joint inspection, factors which might have affected the parties’ experts findings, there simply was no investigation launched or even begun relating to the condition and possibility that the external walls of Flat 508 that could have led to water seepage thereof.

107.Regarding the old public pipes of the Building, the ECS Test showed at least on a prima facie level that there were 13 data points which according to the 2^nd Report of D’s Expert showed higher moisture readings near old public pipes[42] but such findings were never challenged by P’s Expert at any stage since he found it unnecessary to do so.

Issue 2

108.Having resolved Issue 1 that the plaintiff has not proven on a balance of probabilities that the source of the water seepage at Flat 508 was due to Flat 608, the defendant is not liable to the plaintiff for nuisance.

109.Were this court required to determine whether the defendant had requisite knowledge, this is resolved in the negative.

110.As previously cited in Tin Kin Ka Clara (supra) at §54 which held that knowing the consequences of seepage does not equal to knowing the source of it which is a key test.

111.Counsel for the plaintiff complained about the defendant not pleading a positive case of “reasonableness” save that in the defence it was pleaded that a professional contractor was engaged to carry out renovation works at Flat 608. It is noted that the pleadings in this case are highly simple and without much particularity as reflected in the bare assertion in the statement of claim dated 28 February 2019 where the plaintiff pleaded: “Further and/or alternatively, at all material times, the Defendant was well aware of the source of the water seepage/ leakage in the Wate Seepage/Leakage Incident.” which had no particulars of how the defendant would have been “well aware”.

112.In any event, the complaint by the plaintiff is inaccurate since that same paragraph 6 in the defence dated 29 March 2019 also goes on to additionally plead: “The renovation works of Flat 608 was completed in about late June 2018 and no trace water leakage into other Flat is found. At all material times, the Defendant has maintained Flat 608 in good repair and proper condition.”

113.Notably, even afterwards, 14 August 2019 when the 2^nd Letter of the Joint Office was issued, the Joint Office was still unable to identify the source of water seepage into Flat 508.[43] As such, at that early stage when the defence on 29 March 2019 was filed which was still at an early stage of dealings between the parties[44], it could not be said or said with any blameworthiness that the defendant did not plead its best case on knowledge of the source of water seepage into Flat 508.

114.Additionally, when referring to §5 hereinabove of this judgment starting with the Preliminary Meeting on 30 May 2018 until (at least) §32 when the 5^th Letter of the Joint Office dated 10 February 2021 showed that the defendant cooperated to allow consultants to enter Flat 608 to conduct testing in the bathroom shower and bathroom floors but the Joint Office was unable to identify the source of water seepage[45] shows a high level of cooperation by the defendant at virtually all stages.

115.It can be said that the defendant’s cooperation went even further since there was cooperation by the defendant and D’s Expert in preparing the parties’ reports which required Flat 608 be entered into and various tests were permitted to be carried out there. Throughout, other than P’s Expert, never has there been any positive evidence of the defendant’s liability to the plaintiff that Flat 608 was the source of water seepage into Flat 508. As such, this court finds there was no knowledge affixed to the defendant regarding knowledge of the source of water seepage into Flat 508. In fact, the plaintiff was asked at various stages in cross-examination on whether the defendant acted reasonably (at various instances where cooperation was required), the plaintiff answered in the positive.[46]

116.Counsel for the plaintiff submits that an adverse inference should be made against the defendant since he himself has not given any factual evidence in support of his case. With respect, this submission is fully rejected.

117.Firstly, there was never any complaint about the defendant’s absence as a factual witness until closing submissions. Secondly, throughout these proceedings, in fact beginning with the Preliminary Meeting, it was known that the person dealing with Flat 608 in any tangible way as affecting Flat 508 was Wong and not the defendant and this was always known to the plaintiff. In any event, the plaintiff knew or must have known that by latest 24 September 2018 that the defendant’s family began occupation of Flat 608 and it was not the defendant himself.

118.This judgment has not recorded every single instance of interaction between the parties but this court has carefully considered all of the evidence in this case and this judgment has stated sufficient examples to come to a finding that the defendant has acted with restraint, a cooperative attitude throughout and more importantly “reasonably”.

119.“Reasonableness” is a necessary element in the plaintiff’s claim against the defendant as held in Polysoon (supra) with those principles noted at §45 in this judgment hereinabove. Given this court’s findings at §§112-116, the defendant is found to have acted “reasonably” in these proceedings.

Resolution of Issue 2

120.Given the aforesaid findings made by this court, it is resolved that the defendant is not liable to the plaintiff in respect of the plaintiff’s pleaded causes of action.

Issue 3

121.Despite this court’s findings on both Issue 1 and 2 resolved in favour of the defendant, Issue 3 has become a moot point. In any event, Issue 3 is hereinbelow considered nonetheless as if the defendant were liable and a consideration is made of what is the appropriate relief and the amount of quantum of damages.

122.Counsel for the defendant submitted that the injunctive relief sought by the plaintiff is doomed to failure since, inter alia, such relief was defective and should be dismissed for want of particularity as well as being capable of being adequately compensated for damages since costs of repair can be easily quantified. The statement of claim has pleaded that:

“(1) An order that the Defendant be restrained, whether by themselves or by their agents, servants, or otherwise, from doing any act or continuing to with any act or omission which will cause or suffer water to leak from Flat 608 or any water pipe exclusively serving Flat 608 into Flat 508;

(2) An order that the Defendant shall forthwith carry out proper repairs to Flat 608 including but not limited to the waterproofing works to the satisfaction of this Honourable Court;”

123.There was a dispute on the current state of affairs on whether the water seepage was still continuing at Flat 508 which counsel for the defendant has made clear that the evidence when trial commenced showed no or no clear continuation of such water seepage. A complaint was made by counsel for the defendant that counsel for the plaintiff in examining the plaintiff was eliciting a reply from the plaintiff indicating that there was continued water seepage at Flat 508 whilst she was in the witness box but that such information was not clear or possibly absent in the evidence when trial had commenced.

124.Be that as it may, assistance is found in Tin Kin Ka Clara (supra) at §§87-90, where HH Judge Andrew Li held that:

“87. It is trite that a plea for a prohibitory or mandatory injunction must be “framed in precise terms so that everybody, including particular the [defendants], must know exactly what [they] must do and what steps [they] must take”: Tech Focus Ltd v Austria Property Management Ltd & Anor [2004] 1 HKC 343 at §2; Mak Wai Yim & Leung Wai Chun v Tam Siu Ling & Chan Choi Wun, DCCJ 1428 of 2012, unreported; 16 January 2014 at §66.

88. In my judgment, the plea of injunction made by the plaintiff, namely, “(A)n injunction forbidding the Defendant to permit and/or suffer the occurrence of water leakage from the Defendants’ premises into the Plaintiff’s premises” is so wide that it practically is a mandatory injunction. However, at the same time, it lacks of particulars as to what precisely the act or omission that the defendants are forbid or mandated to do. Further, as all the evidence indicates that the water seepage had been confined to the plaintiff’s master bathroom area, the injunction asked for covering all areas within the defendants’ premises is unnecessary.

89. More importantly, the plaintiff has failed to show why an injunction is still necessary given the fact that: (1) The seepage was only confined to the 4 periods pleaded and in any event has stopped since the issue of the writ; and (2) The plaintiff can be adequately compensated by damages since any cost of repair can be easily quantified.

90. For the above reasons, I would have declined to grant a relief of injunction in this case.

[I]n order to prove nuisance in a seepage case, whether as a standalone cause of action or as a part of the breach of DMC, a plaintiff must show, besides the seepage itself and the issue of causation, that (i) the defendants actually or constructively knew that the water originated from their premises; and (ii) remedial action was not taken within a reasonable time.”

125.The injunctive relief sought by the plaintiff as pleaded lacks precision and is effectively in the form of a mandatory and not merely prohibitory injunction extending to the entirety of Flat 508 (and not just the affected areas as per the bathroom and bedroom thereof), such relief would have been refused.

126.Nonetheless, the quantum of damages to awarded at this stage of Issue 3 is based on the assumption that Issue 1 and/or Issue 2 was resolved in favour of the plaintiff. This court finds that P’s Expert’s estimation of repair costs in this regard was not excessive and reasonable for the number of construction workers needed (in 2020), area of work to be carried out (which is not as confined as suggested by D’s Expert), types of repair work to be carried out which is not limited to just water seepage in the singular sense since works such as electrical-based repairs would need to be undertaken.

127.Despite some complaints regarding P’s Expert’s lack of particularity as to the costs of works needing to be done at Flat 508, nonetheless this court finds that the sum of $110,230.44 would have been a fair sum to be awarded, but no more than that. D’s Expert’s assessment of $25,600 was a severely underestimated amount given the overly simplistic view taken about the amount and complexity of work needed to be carried out at Flat 508 if Issue 1 was found in favour of the plaintiff.

128.This court would have refused the plaintiff’s claim for costs of alternative accommodation because it was not pleaded at all (not even pleaded in a general manner) let alone with any particulars. The consequence of repairs to Flat 508’s affected areas of water seepage requiring alternative accommodation has not been pleaded or even understood (or explained) in the evidence as being necessary or presumed. Furthermore, there is no evidence of how the costs of the alternative accommodation are arrived at.

Conclusion

129.In conclusion, the plaintiff’s claims are dismissed.

130.I make an order nisi that the plaintiff do pay the defendant the costs of the action to be taxed if not agreed with certificate for counsel.

131.I thank counsel for their helpful assistance.

Mr Victor T S Lui, instructed by Deannie Yew & Associates, for the plaintiff

Mr Martin Kok, instructed by Chan Wong & Lam, for the defendant