Cheung Yan Tai v. 卿旺大廈業主立案法團

LDBM 16/2023

[2024] HKLdT 44

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO.16 OF 2023

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J U D G M E N T

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1.This is a water leakage case.

2.The respondent (IO) is the Incorporated Owners of Hing Wong Building (the Building) situated at 23 New Praya, Kennedy Town, Hong Kong. Mr Brian Lo of counsel (Mr Lo) appeared for IO.

3.The Building is more than 30 of age. Its registered deed of mutual covenant is dated 19 November 1990 (the DMC). At all material times, the manager named in the DMC i.e. Plotio Property and Management Company Limited (the Manager) has continued to assist IO in managing the Building.

4.The Building is a 30-storey residential building with shops on G/F and 1/F. On its 2/F to 30/F, there are 4 residential units (called A to D) on each floor. “Common Areas” is defined in the DMC to mean “Building Common Areas and Commercial Common Areas”. In turn, “Building Common Areas” means therein:

“Those parts including but not limited to (a)…, (b) … corridors, walkways, staircases, yards lift lobbies, exterior walls and other spaces on each residential floor of the Building, (c) …, (d) Those other parts of the Building the right to use of which is given by this Deed to more than one Owner … excluding the Commercial Common Areas, as more particularly delineated and coloured yellow on the Plans attached hereto (bold and italic supplied)”.

5.Coupled with definition of “common parts” in s.2[1] of Building Management Ordinance[2] (BMO) and existence of “external walls” in paragraph 1 of Schedule 1 of BMO, it is common ground that external walls of the residential units of the Building are “common parts” as defined in BMO and by the DMC.

6.Hence, pursuant to s.18(1)(a) of BMO, IO shall maintain the the aforesaid external walls in a state of good and serviceable repair and clean condition.

7.In March 2021, the applicant (Mr Cheung) completed his purchase, and became registered owner, of Flat A, 16/F of the Building (Flat 16A). Mr Andrew Tse of Counsel (Mr Tse) appeared for Mr Cheung.

8.According to approved plans of the Building, Flat 16A is a one-bedroom flat. The Building was constructed in reinforced concrete frame, of which the external wall enclosing the said bedroom of Flat 16A was concrete wall. That Flat 16A has one bedroom can also be seen at 3/F-30/F Plan annexed to the DMC. By the time Mr Cheung occupied Flat 16A in 2021, its single bedroom had already been partitioned into two bedrooms.

9.The layout, location and orientation of the said 2 bedrooms of Flat 16A can be seen at the above 3/F-30/F Plan as well as figure 1.2[3] of applicant’s expert report dated 6 September 2022 (A’s expert report).

10.Flat 16A is on the Northern end or side of the Building facing New Praya with Flat B, 16/F of the Building by its side to its West. One of its partitioned bedroom has a bay window facing South (Bedroom 2). The other partitioned bedroom has no bay window (Bedroom 1). Both Bedroom 1 and Bedroom 2 are square in shape and of more or less the same area.

11.As such, IO shall, pursuant to s.18(1)(a) of BMO, maintain external walls of both Bedroom 1 and Bedroom 2 of Flat 16A in a state of good and serviceable repair and clean condition.

12.The rectangular land on which the Building was built (the Land) is sandwiched between 2 other rectangular pieces of land, roughly, to its East and West. Though that one to the East of the Land has been built with a building called May Sun Building[4], on the photo before me[5], it does not exceed 16-storey in height. External walls of Bedroom 1 and of Bedroom 2 (and its window) of Flat 16A are thus, at all material times, unobstructed by nearby building and could be directly affected by rainfall on rainy days.

The 3 Locations

13.Mr Cheung complained of alleged water leakage at the following 3 interior locations of Flat 16A (collectively the 3 Locations and identified at figure 2.1.1[6] of A’s expert report) i.e.

(1)  the interior wall at Bedroom 1 facing East (Location 1);

(2)  the ceiling above the window at Bedroom 2 facing South (Location 2); and

(3)  the interior wall under the windowsill at Bedroom 2 facing South (Location 3).

Notice of Application

14.It is Mr Cheung’s case that the water leakage, and damage, at the 3 Locations was caused by failure of waterproofing systems of the external walls of Flat 16A, and that IO has failed to take appropriate steps to remedy the leakage.

15.In terms of relief, Mr Cheung seeks: -

(1)  a mandatory injunction requiring IO to carry out all necessary repair to the waterproofing systems of the external walls of Flat 16A;

(2)  damages; and

(3)  costs.

16.For damages in (2) above, expert of both parties have agreed on the sum of $12,500 being reasonable costs of repair to damage to the 3 Locations at their joint expert statement (JES).

Notice of Opposition

17.In opposition, IO says that, on inspection by the Manager on 20 October 2021, it was suspected that the water leakage at Flat 16A was caused by aging of its bay window frame, whose repair’s responsibility lied with Mr Cheung.

18.On 19 November 2021, IO had already reported Mr Cheung’s email complaint to IO’s insurer (the Insurer) for record. On 30 November 2021, IO received email from loss adjuster appointed by the Insurer i.e. Charles Taylor Adjusting (the Loss Adjuster) that it failed to receive further claim from Mr Cheung such that its file would be closed. At that time, IO thought that the complaint made by Mr Cheung had been over.

19.However, IO suddenly received A’s expert report from Mr Cheung on 16 September 2022. IO found no leakage within Flat 16A according to the said report and humid areas remained found around bay window frame of its bedroom.

20.Accordingly, there are reasons for IO to believe that, even if Flat 16A suffered from alleged leakage, it did not originate from common parts of the Building.

Issues to be resolved

21.Hence, the following issues require the determination of this Tribunal, namely that: -

(1)  Whether there has been, and there is still, water leakage causing damage at the 3 Locations (Issue 1);

(2)  Insofar as there is, what is the cause(s), or source(s), of such water leakage (Issue 2);

(3)  Whether IO should be held liable for breach of its duties under BMO (Issue 3); and

(4)  Should a mandatory injunction be granted against IO and, if so, on what terms (Issue 4)?

Witnesses called at trial

22.Mr Tse called Mr Cheung alone to give evidence whereas Mr Lo called senior property officer of the Manager i.e. Mr Ringo Lee[7] (Mr Lee) as IO’s sole factual witness.

23.With leave of this Tribunal, both parties had called their respective leakage experts to give opinion evidence on liability and quantum. Applicant’s expert is Mr. Leung Yu Cheung (A’s expert). Respondent’s expert is Mr. Cheung Hoi Tat Peter (R’s expert).

Mr Cheung

24.I find Mr Cheung an honest and reliable witness. His evidence is, I think, inherently plausible. Most of them are also supported by contemporaneous documentary evidence like photos, correspondences and minutes of MC meetings, if not admissions in Notice of Opposition and/or admissions given by Mr Lee in the box. He was not shaken after cross-examination by Mr Lo.

25.For the above reasons, I accept most factual evidence given by Mr Cheung referred below.

Mr Lee

26.Mr Lee’s evidence suffers from, I think, two limitations. First, he did not start serving the Building until November 2022. Secondly, he never inspected Flat 16A at all. Thus, he had no personal knowledge of the conditions of the interior of Flat 16A or of material events prior to November 2022.

27.Mr Lee nonetheless saw fit to claim in his supplemental witness that external walls of Flat 16A suffered no apparent crack or damage on inspection by staff of the Manager on 20 October 2021 without producing alleged inspection photos. To the contrary, cracks could be seen on external wall of Flat 16A outside bay window of Bedroom 2 on a photo taken on 5 November 2021[8].

28.Mr Lee also ventured to claim in his supplemental witness statement that renovation works arranged by Mr Cheung prior to his occupation of Flat 16A had caused alleged water leakage to Flat 16A. Under cross-examination, he had no choice but to admit that the same was a mere guess on his part.

29.For the above reasons, I do not find Mr Lee entirely truthful or reliable. Save for non-controversial evidence or admissions given by him, I give no weight to his evidence.

Expert witnesses

30.Save that I find alleged observation evidence of R’s expert at R’s Inspection incredible and untruthful (see [73] below), I propose to consider each and every piece of opinions proffered by the 2 experts below on their individual merits.

Factual findings made

31.I find the facts in this section proven. They are based on documents produced before me, such as minutes of management committee (MC) meetings and general meetings (GM) of IO, common evidence given by witness(es), unopposed evidence given by witness(es) and admissions given by IO’s witness(es).

32.In 2018, IO had arranged a major renovation for the Building. One item of works involved was repair of its external walls facing East or towards May Sun Building. However, as confirmed by Mr Lee in the box, due to objection from May Sun Building to using its airspace, IO had no choice but to cancel the above item of works.

33.Hence, the external walls of the Building facing East or towards May Sun Building had not been repaired in the said 2018 major renovation of the Building.

34.In August 2021, Mr Cheung moved in to reside at Flat 16A after its decoration was completed.

35.In October 2021, there had been heavy downpour for a few days, including raising of typhoon signal and black rainstorm warning. Mr Cheung first observed of water leakage at the 3 Locations. On or about 12 October 2021, he complained by email to the Manager of alleged leakage at the 3 Locations in Flat 16A.

36.From 12 to 26 October 2021, at the request of Mr Daniel Yau[9] (Mr Yau), assistant property manager of the Manager, Mr Cheung provided photos of leakage at the 3 Locations by way of emails to the Manager.

37.I give full weight to contents of such photos supplied by Mr Cheung to Mr Yau above[10]. I accept Mr Cheung’s evidence and find that there was indeed water leakage at the 3 Locations in October 2021 as he testified and as the above photos had recorded.

38.The IO arranged a staff of the Manager to go to Flat 16A to inspect the affected areas on 20 October 2021. The said staff, said Mr Lee, had plumbing and electricity licence only. He was not a professional staff. As I have found at [27] above, I do not accept what the said staff claimed to have seen according to Mr Lee.

39.MC at its meeting held on 20 October 2021 received reports from the Manager that as many as 4 residential units, including Flat 16A, had reported of water leakage at walls of their units after recent typhoon and black rainstorm warning and produced photos collected from the said owners for MC to study. I accept such admissions from IO and give them full weight. In other words, I find water leakage to Flat 16A not an isolated incident for the Building.

40.Certain MC members present at above MC meeting, after consulting owner allegedly with construction experience, opined that the aforesaid leakage had nothing to do with external walls of the Building. However, those MC members present do not, according to Mr Lee, possess any professional experience.

41.MC finally resolved in the above MC meeting that unless Mr Cheung (or other owner) was able to produce evidence (or arrange for professional to certify) that the leakage of Flat 16A is related to its external walls, IO would take no further action. Such resolution was later relayed to Mr Cheung.

42.A photo of external wall of Flat 16A outside its bay window at Bedroom 2 was taken on 5 November 2021[11]. Cracks could be seen on the surface of the said external wall and I so find.

43.On 19 November 2021, IO reported Mr Cheung’s email complaint to the Insurer for record.

44.On 30 November 2021, IO received email from the Loss Adjuster that it failed to receive further claim from Mr Cheung such that its file would be closed. At that time, IO thought that the complaint made by Mr Cheung had been over.

45.In August 2022, Mr Cheung arranged for A’s expert to inspect Flat 16A and to prepare A’s expert report.

46.On 9 August 2022, a rainy day[12], A’s expert first inspected Flat 16A from 4 pm to 6 pm (A’s 1^st Inspection). He made visual inspection of the flat, took photos as records, conducted thermal scanning, and collected moisture reading, of the 3 Locations. I accept that A’s expert had properly carried out the said tests at Flat 16A on A’s 1^st Inspection and that the results thereof are accurate.

47.On 5 September 2022, a non-rainy day[13], A’s expert made his 2^nd inspection of Flat 16A from 11 am to 1230 am (A’s 2^nd Inspection). Again, he made visual inspection of the flat, took photos as records, conducted thermal scanning, and collected moisture reading, of the 3 Locations. I also accept that A’s expert had properly carried out the said tests at Flat 16A on A’s 2^nd Inspection and that the results thereof are accurate.

48.On 6 September 2022, A’s expert completed A’s expert report and submitted a copy to Mr Cheung on 9 September 2022.

49.At section 3 “Conclusion” of A’s expert report, it was put down that “There were signs and evidence to indicated (sic) that there was water seepage at the interior wall of the bedroom 1 and bedroom 2 of the affected premises from the external wall, we have reasonable grounds to believe that such water leakage problem, such as paint peeling hollow at bedroom 1 and bedroom 2 were caused by waterproofing system fail (sic) at the external wall (italics & bold)”.

50.At the same time, on about 14 September 2022, Mr Cheung obtained an quotation from AZURA Design Planner Limited to repaint all affected interior walls of Flat 16A for $6,000. Mr Cheung paid for the same and had the affected walls repainted.

51.On about 16 September 2022, Mr Cheung emailed Mr Yau, enclosing, inter alia, A’s expert report and above quotation, pointing out water leakage to Flat 16A was caused by external walls of the Building according to the said report, demanding that the IO pays for the said report and repainting by 30 September 2022, and that proper proposal to resolve water leakage problem to Flat 16A be made available by 23 September 2022, or else legal proceedings may be taken by him.

52.On 27 September 2022, MC members in their meeting received report from the Manager of the above email, and the said demand for payment of compensation by 30 September 2022 made by Mr Cheung on 16 September 2022. The Manager further showed MC members present the said report etc. and reported that it had sent the same for follow-up by the Loss Adjuster (and for the file concerned to be re-opened). After discussion, MC resolved that the matter of compensation (according to Mr Lee) be referred to the Insurer for follow-up (and Mr Cheung was advised of that).

53.On 30 September 2022, the Loss Adjuster wrote to Mr Cheung to demand on a “without admission of liability” basis details of his allegations against IO for their investigation of the circumstances of the alleged leakage incident. Mr Cheung had compiled with the request providing the same.

54.On 22 November 2022, the Loss Adjuster emailed Mr Yau that, after discussion with the Insurer, they have instructions to approach Mr Cheung to commence settlement negotiation to resolve his complaint in an amicable way. As IO’s policy carries a policy excess of $10,000 per occurrence, it demanded IO sending a cheque in sum of $10,000 payable to the Insurer for its follow-up.

55.In the meantime, in December 2022, Mr Cheung arranged and paid for a 2^nd repainting of affected interior walls of Flat 16A.

56.On or about 15 December 2022, Mr Cheung also commenced proceedings at Small Claims Tribunal (SCT) against IO for water leakage to Flat 16A, with 1^st hearing scheduled to be held on 27 January 2023.

57.On 11 January 2023, the Loss Adjuster, noting the above STC proceedings against IO, again emailed Mr Yau seeking $10,000 policy excess cheque drawn by IO to the Insurer as soon as possible so that it could proceed with settlement negotiation with Mr Cheung on a without prejudice basis.

58.On 20 January 2023, the Loss Adjuster wrote to the Manager (copied to the Insurer) pointing to its emails above dated 22 November 2022 and 11 January 2023 and saying that IO’s failure to confirm with policy excess had caused escalation of claimed amount etc. It demanded IO forwarding excess cheque in sum of $10,000 within 5 days so that it could proceed with settlement negotiation with Mr Cheung before 1^st SCT hearing on 27 January 2023.

59.On 27 January 2023 SCT hearing, the chairman of MC attended on behalf of IO. He declined to admit Mr Cheung’s claim and also declined to agree to settlement offer made by the Insurer. Mr Cheung for this part indicated that he would start fresh proceedings at Lands Tribunal and therefore discontinued the said STC proceedings.

60.On 7 February 2023, MC held its meeting. The Manager reported that the Insurer was prepared to settle with Mr Cheung on condition that IO pays its policy excess of $10,000.

(1)  MC disagreed with compensation offer made by the Insurer, taking the view that bay window leakage to Flat 16A was caused by problem of internal renovation and required it to be handled using a “principled” approach.

(2)  MC resolved to engage legal adviser to give opinion on liability issue, and the Manager was required by MC to arrange quotations to be made available at next meeting for approval.

61.On 14 February 2023, Mr Cheung commenced these proceedings at Lands Tribunal against IO for injunction, damages and costs.

62.At 1430 hours on 15 September 2023 (R’s Inspection), R’s expert carried out an inspection at Flat 16A, made visual inspection, took photos as record, and collected moisture readings at the 3 Locations. I accept that R’s expert had properly carried out the said tests at Flat 16A on R’s Inspection and that the results thereof are accurate.

63.On 17 October 2023, R’s expert completed his expert report (R’s expert report).

64.On 25 October 2023, the 2 experts held a without prejudice meeting to discuss their opinions and prepared JES dated 8 November 2023.

Issue 1 – water leakage or not?

Location 1 in Bedroom 1

65.The two experts disagree on Issue 1 over Location 1.

66.A’s expert opined that that there has been water leakage at Location 1 at A’s 1^st and 2^nd Inspections, and there were signs and evidence indicating that water was still seeping from the external wall to the interior wall at Location 1.

67.While R’s expert agreed that there was a very slight damp patch of 50 to 70mm² at Location 1 on R’s Inspection which might be caused by water leakage in the past, he did not consider that the water leakage problem will persist and repair works needs to be done to Location 1 as suggested by A’s expert.

68.R’s opinion in [67] above was said to be based on the following “findings of investigation” at paragraph 5.0 of R’s expert report, namely: -

(1)  site survey to Flat 16A was “carried out at 14:30” on 15 September 2023;

(2)  the weather on the day of R’s Inspection was “cloudy with scattered showers” with “average humidity of 89%” and “a total rainfall of 28.5mm”;

(3)  on 14 September 2023, a “Red Rainfall signal” was hoisted for about 2 hours and “Yellow Rainfall signal” for about 3 hours with “a total rainfall of over 100mm”; and

(4)  moisture test to Location 1 revealed “very low readings from 1.5% to 10.5%”.

69.In JES, R’s expert saw fit to add that “typhoon signal No.10 was hoisted on 1 September 2023 and an extreme rainfall was recorded on 8 September 2023”.

70.In the box, R’s expert claimed that there were “dark clouds” and it was “raining heavily” most of the time during his 30 minutes to 45 minutes survey at Flat 16A.

71.Against the above rainfall history or records, there was, opined R’s expert, no reason for one to find such a very slight damp patch of such small area at Location 1 on R’s Inspection with such low moisture reading except that the water leakage therein had already ceased.

72.Water path for past leakage at Location 1 might, opined R’s expert under cross-examination, have been blocked such that leakage could cease on its own over time without any repair work being done.

73.I give no weight to opinion given by R’s expert at [67] above. The foundation of his opinion is unsound. His related evidence on this issue is incredible, untruthful and misleading. In addition, his opinion at [72] above is, I find, inherently implausible.

(1)  The humidity and rainfall record (i.e. humidity of 89% and 28.5mm rainfall on the day of R’s Inspection and over 100mm the day before) that R’s expert relied on come from September 2023 daily weather record compiled from data collected by weather station situated at Hong Kong observatory in Tsimshatsui[14].

(2)  R’s expert agreed with Mr Tse that rainfall data collected from weather station closer to the Building would more accurately reflect the rainfall situation of the Building at the material times.

(3)  According to hourly rain record collected at Kwun Lung Lau Estate weather station (whose location on Hong Kong island is near to the Building and its relative distance to the Building is also shorter than that of Hong Kong observatory on Kowloon peninsula) produced by A’s expert in JES[15], no rainfall was recorded at all from 0100 hours to 1400 hours on 15 September 2023 i.e. the day of R’s Inspection. A minute 1mm rainfall was recorded at 1500 hours. Another minute 1.5mm rainfall was recorded at 1600 hours. No rainfall was again recorded at 1700 hours.

(4)  In, I think, a futile attempt to tailor his opinion with rainfall record of A’s expert in (3) above, R’s expert saw fit to contradict himself in the box to claim that he started carrying out his survey at Flat 16A later at 1445 hours.

(5)  R’s expert’s so-called “personal experience” in the box of witnessing “dark clouds” and “heavy rain” outside while he was carrying out his survey inside Flat 16A was, I think, plainly contradicted by “blue sky and white clouds” captured in one photo he himself took inside Flat 16A on the day of R’s Inspection[16].

(6)  According to hourly rain record collected at Kwun Lung Lau Estate weather station, on 14 September 2023, save that 6.5mm, 1.5mm, 0.5mm and 4.0mm rainfall were recorded at 0300 hours, 0400 hours, 0500 hours and 1100 hours respectively, no rainfall was recorded at all for the rest of the day. Such hourly rainfall recorded from 0300 to 0500 hours does not warrant, R’s expert agreed with Mr Tse, issue of “Red Rainfall signal” at the vicinity of the Building.

(7)  Very low moisture reading at Location 1 recorded by R’s expert on this single isolated occasion of R’s Inspection is, one thinks, explainable against the above more appropriate rainfall data collected at Kwun Lung Lau Estate weather station near to the Building.

(8)  R’s expert at first did not find it necessary at all to rely in R’s expert report on typhoon and extreme rainfall that happened on 1 and 8 September 2023, whose events were in any event 1 week or more long before R’s Inspection on 15 September 2023. If necessary, no rainfall was recorded at all on 11 and 12 September 2023 at weather station situated at Kwun Lung Lau Estate.

(9)  R’s expert admitted under cross-examination that water leakage at Location 1 could occur (and could occur less severely) from time to time depending on, inter alia, weather conditions (and it could explain why water stain at Location 1 become less damp over time).

(10)  R’s expert claim of “water path being blocked and leakage ceases on its own” was never raised in R’s expert report or JES. This claim was first raised under cross-examination despite the contrary had been asserted by A’s expert in JES.

(11)  I find the earlier contrary contention of A’s expert in JES that “absent repair to external wall, water leakage problem at Location 1 will persist and there was no way it can be resolved” inherently more plausible and probable.

74.To the contrary, it is unchallenged evidence, and opinion, of A’s expert (which I accept) that: -

(1)  a hollow could be observed and found at Location 1 (with photo record to that effect[17]);

(2)  the signs of water trapping at Location 1 decreased on non-rainy day of A’s 2^nd Inspection when compared to rainy day on A’s 1^st Inspection; and

(3)  the moisture readings at Location 1 decreased on non-rain day of A’s 2^nd Inspection when compared to those captured on rainy day of A’s 1^st Inspection[18].

75.It is also the unchallenged evidence of Mr Cheung I accept at [50] and [55] above that he had to pay twice to get affected walls repainted because of persisting leakage at Flat 16A.

76.For the above reasons, I give full weight to, and accept, opinion of A’s expert at [66] above. In the absence of spray or dye test being carried out, I nonetheless find on the balance of probabilities for continuing water leakage at Location 1 at Bedroom 1 causing damage to Location 1. That occurred first, I find, since October 2021 when Mr Cheung made his first email complaint to the Manager and thereafter persisted until trial.

Locations 2 and 3 at Bedroom 2

77.In comparison, the 2 experts had, I note, agreement on Issue 1 over both Locations 2 and 3. I accept their common opinion, and their individual evidence, on Issue 1 over these 2 locations.

78.A’s expert formed the view that there was water leakage at Locations 2 and 3 at A’s 1^st and 2^nd Inspections because: -

(1)  paint peeling could be observed at Locations 2 and 3 (and photos to that effect had been produced by A’s expert in A’s expert report[19] and JES[20]);

(2)  the signs of water trapping at Locations 2 and 3 decreased on non-rainy day of A’s 2^nd Inspection when compared to rainy day of A’s 1^st Inspection; and

(3)  the moisture readings at Locations 2 and 3 decreased on non-rain day of A’s 2^nd Inspection when compared to those on rainy day of A’s 1^st Inspection[21].

79.R’s expert did not challenge the above view of A’s expert. I also find A’s reasoning above sound and reliable. I therefore accept A’s expert’s view above.

80.R’s expert agreed that, on R’s Inspection, there were also damp patches at Location 2 and Location 3 and that the same might be caused by water seepage. That also supports and reinforces A’s expert view I accept above. I accept such opinion given by R’s expert as well.

81.Coupled with Mr Cheung’s evidence I accept, I find that water leakage has been persisting at Locations 2 and 3 at Bedroom 2 since October 2021, causing damage to Locations 2 and 3.

Issue 2 – source, or origin, of water leakage

82.On Issue 2, as there is no presumption at law that leakage comes from flat upstairs, there is, I think, no presumption in favour of external walls either. The doctrine of res ipsa loquitur does not apply either.

83.At law, it is incumbent on Mr Cheung to prove that water leakage originated from (or came through defective) external walls of Flat 16A (or was caused by failure of waterproofing systems of such external walls). IO bears no burden of proof on Issue 2. IO bears no burden to prove the source of leakage or to prove that it originated from sources other than external walls of Flat 16A as alleged by Mr Cheung.

84.However, the standard of proof in a civil trial like this one remains one of balance of probabilities.

85.Moreover, it suffices for Mr Cheung (and Mr Lo agree) to prove on the balance of probabilities that defective external wall is one of the causes of persisting water leakage at the 3 Locations. Put it another way, failure of waterproofing systems of external walls of Flat 16A need not be the sole cause of water leakage at the 3 Locations.

Location 1 at Bedroom 1

86.Save to express the view above that there is no longer any water leakage at Location 1 (on which I give no weight above), R’s expert gave no view in R’s expert report or JES as to source (or origin) of water leakage at Location 1 at Bedroom 1.

87.Under cross-examination, R’s expert agreed with Mr Tse that Location 1 does not have any other water source like window or common water supply or drainage pipes. As A’s expert further explained, leakage from upper floor could, I agree, also be eliminated as Location 1 is not situated at ceiling of Bedroom 1 of Flat 16A and, on floor plan, there was not any sanitary fitments on corresponding bedroom 1 of upper floor unit i.e. flat A on 17/F.

88.In fact, R’s expert had also admitted in cross-examination that one possibility is for water to seep through external walls of Bedroom 1 to appear at Location 1 as damp patch.

89.While there is no evidence of apparent crack at external walls of Bedroom 1, considering my factual findings including old age of the Building, the fact that its external wall facing May Sun Building had not been repaired in 2018, the external walls of Bedroom 1 are directly exposed to rainfall, the persisting leakage at Location 1 since October 2021, the results of inspection by A’s expert and by R’s expert, and the matters in [87] and [88] above, I draw the inference (accept opinion given by A’s expert) and find that water leakage at Location 1 was at all material times caused by defective external walls of Bedroom 1 or failure of their waterproofing systems.

Locations 2 and 3 at Bedroom 2

90.I propose to discuss disagreements between the 2 experts on Issue 2 over both Location 2 and Location 3 together.

91.A’s expert opined at A’s expert report that the water leakage at Location 2 and Location 3 is caused by the failure of waterproofing systems at external walls of Bedroom 2.

92.R’s expert opined in R’s expert report that “for bay window in Bedroom 2”, “the source might very likely through the bay window frame which was evident by the comparative higher moisture readings just below the window sill, or from the roof and external wall of the bay window”. “Detailed investigation by conducting field water spray test for watertightness of external wall and mortar joint around the bay window to further identify and confirm the source of water seepage (bold and italics supplied)” is recommended.

93.In JES, R’s expert commented on opinion of A’s expert and opined that he “could not agree that external wall is the only possible source of seepage because for water seeping from the window structural frame, water could go through the ceiling slab and appear on the ceiling of the window (bold and italics supplied)” i.e. Location 2.

94.“As for the seepage below the window sill area” i.e. Location 3, commented and opined by R’s expert in JES, “both the moisture tests carried out by us and by [A’s expert] revealed that water came down from the junction of the sill and the wall”. “For water seeping through the window structural frame could also has this effect. Therefore, we could not conclude that water from external wall is the only source (bold and italics supplied)”.

95.As such, the difference between the 2 experts lies, I think, not with whether or not external wall being a possible source of seepage to Location 2 and Location 3, but with whether or not external wall being the only possible source of seepage to these 2 locations.

96.R’s expert took the view that bay window frame is also a possible cause of water leakage to Location 2 and Location 3. In the box, he explained that rainwater could seep through sealant at exterior window frame, enter ceiling concrete slab and appear at ceiling of window at Location 2. Rainwater could also, he said, seep through sealant at exterior window frame, enter concrete structure below sill and appear at interior wall at Location 3.

97.Therefore, R’s expert agreed with A’s expert that external wall is a possible cause of leakage to Location 2 and Location 3 at Bedroom 2. To quote his words to Mr Tse, he “does not exclude external walls being a cause of leakage” and “there are 2 possible sources of leakage i.e. external wall and window frame”. He simply disagreed with external wall being the sole possible cause of leakage to Bedroom 2.

98.As it is common opinion of both experts that external wall being a possible cause of leakage to Location 2 and Location 3 at Bedroom 2, I accept the said common opinion.

99.I also agree with reasoning of A’s expert to arrive at the above opinion (i.e. no other suspected water source such as common supply or drainage pipes, leakage not at ceiling of Bedroom 2, no sanitary fitments on corresponding bedroom 2 of flat upstairs, and differences in water trapping and moisture readings in rainy day and non-rainy day).

100.If it be necessary, I would also add in my factual findings including the old age of the Building, the fact that its external wall facing May Sun Building had not been repaired in 2018, the external walls of Bedroom 2 are directly exposed to rainfall, the persisting leakage at Location 2 and Location 3 since October 2021, and the inspection and test results of parties’ experts to draw the same inference as A’s expert did opine at [91] above.

101.I am afraid that Mr Tse (or A’s expert) had failed to eliminate the possibility of bay window frame being a possible source of leakage to Bedroom 2.

(1)  A’s expert mistook, I think, R’s expert to mean water entering through gap of exterior window frame and appear at gap of window frame on the other side of window to suggest that water would fall downwards along window frames and glass panels.

(2)  A’s expert admitted under cross-examination by Mr Lo that he had not in A’s expert report eliminated window sill as a possible cause of water leakage to Bedroom 2 and that he only purported to do so for the first time in JES.

(3)  The distance theory advanced by A’s expert in JES cannot, I agree with Mr Lo, eliminate window frame as a possible cause of water leakage. The distance from the outer wall and from window sill to Location 3 is more or less the same. At best, such argument, I think, reduces the chances of window frame being a possible cause of water leakage to Location 3.

(4)  For lack of photo produced and lack of mentioning in JES or A’s expert report, I do not accept A’s expert’s belated claim of visual inspection of window frame first raised under cross-examination[22].

(5)  While water generally flows from higher to lower levels due to gravity, A’s expert agreed with Mr Lo that water could at times seep through concrete along weak points horizontally due to osmosis. As such, after entering ceiling concrete slab through sealant, rainwater could seep horizontally to appear at window ceiling at Location 2, though the chances of the latter horizontal movement are much less likely than the former;

(6)  Water seeping through sealant at exterior window frame could seep, said R’s expert, below man-made stone forming the sill through concrete structure and reappear at interior wall at Location 3.

(7)  While cracks are, R’s expert admitted, found on the surface of external walls of bay window of Bedroom 2 on photos in R’s expert report[23] (but they are not structural cracks) and that a few decorative mosaic tiles have fallen off on photos in JES[24], they are, as A’s expert agreed, not definitive proof of leakage like structural cracks.

(8)  Moisture readings taken, and infra-red scan produced, as A’s expert admitted, indicate at most the presence of water at Location 2 and Location 3 but not the path taken by rainwater within concrete structure to reach and appear at Location 2 and Location 3.

(9)  No spray test was conducted to eliminate window frame being a possible source of leakage to Bedroom 2.

102.Nevertheless, Mr Cheung had still, I think, succeeded to prove on balance that defective external walls, or failed waterproofing systems of external walls, of Bedroom 2 are one possible entry point for rainwater to enter Bedroom 2 to cause water leakage to Location 2 and Location 3. To prevail on Issue 2 here, he need not prove external walls being the sole cause.

103.In any event, judging from the water path postulated by R’s expert in [96] above, while rainwater could first enter through sealant at exterior bay window frame, it thereafter enter external walls i.e. ceiling slab or concrete structure and make its way until appearing at either Location 2 or Location 3. Hence, defective external walls, or failed waterproofing systems of external walls, of Bedroom 2 remain, I think, one possible cause or path of water leakage to Bedroom 2 though on different first possible entry point suggested by R’s expert. In such scenarios postulated by R’s expert, Mr Cheung also, I think, made out his case of external walls being one cause of water leakage to Location 2 and Location 3 at Bedroom 2. The reasons are that, had waterproofing systems of external walls of Bedroom 2 not failed in such scenario, rainwater that first entered through sealant at exterior bay window frame could not have made its way to reach, and appear, at Location 2 and Location 3.

Issue 3 – breach of BMO duty or not?

104.The legal principles on the duty of owners’ corporation to maintain “common parts” under s.18(1)(a) of BMO are trite. Mr Tse has correctly cited relevant authorities at paragraphs 33 to 35 of his opening submissions. Mr Lo has also cited another pertinent case at paragraph 16 of his opening submissions.

105.In Rich Metro Limited v The Incorporated Owners of Ka Ming Court Castel Peak Road, unreported, DCCJ 3905/2014, 28 November 2017, this Tribunal had also summarized them at paragraphs 130 to 133 therein as follows: -

“130. Under s.18(1)(a) of BMO, the defendant shall “maintain the common parts in a state of good and serviceable repair” …. But the section “does not provide insurance to the extent that if some part of the building becomes in disrepair the Incorporated Owners automatically and necessarily become liable… liability may arise if there is fault. It also arises if, having been made aware of a defect which requires remedy, the Incorporated Owners fail to take appropriate steps”: Lau Chun Wing Rod v IO of Po On Building, unreported, CACV 20/2007, 1 Nov 2007, per Rogers VP at para 12 of the judgment.

131. Power ACJ had also once held that similar provision in deed of mutual covenant “was plainly never intended to pose an absolute duty to ensure that no common facility ever breaks down. That would impose an impossible burden. The overall duty imposed… is one of ‘proper’ management. Such management entails doing all that is reasonably required of a manager in the circumstances”: Lo Yuk Chu v Hang Yick Properties Management Ltd [1996] 4 HKC 278, 282D.

132. Furthermore, the standard against which defendant’s action is to be judged should not be retrospective as “it is always easy to be wise after the event”: para 7-53 of Charlesworth & Percy on Negligence, 13^th (2014) Edition.

133. In Grace International Ltd v IO of Fontana Gardens [1996] 4 HKC 635, Le Pichon J (as she then was), had ruled at 657G-658B that the existence of the duty to repair the common parts “cannot turn on the costs of the repairs in question… Implicit in this is the duty to raise the necessary finance, which is concomitant to the duty to repair… What this entails is for management first of all to make a decision regarding the repairs that are necessary. The next step is to obtain quotations or tenders and having made a decision thereon, proceed to collect the necessary contributions from the owners”.

106.In his closing submissions, Mr Lo submitted that IO had all along acted reasonably in response to the leakage complaint made by Mr Cheung in the following manners: -

(1)  As and when the Manager received the said complaint in October 2021, the Manager had, on 20 October 2021, arranged for its staff to inspect Flat 16A.

(2)  At MC meeting held on 20 October 2021, as Flat 16A had recently undergone decoration and as Mr Cheung then provided no expert evidence to support his complaint, it was then not unreasonable for IO to resolve not to follow up unless and until professional evidence was forthcoming from Mr Cheung.

(3)  Mr Cheung did not provide A’s expert report to IO until 11 months later in September 2022. However, A’s expert report does not address the issue of window frame and sill at all.

(4)  Nonetheless, at MC meeting on 27 September 2022, IO properly resolved to refer Mr Cheung’s complaint, and A’s expert report, to the Insurer for follow-up action.

(5)  While the Insurer had suggested to IO to negotiate settlement with Mr Cheung from November 2022 to January 2023, the said suggestion could well be driven by commercial considerations. In any event, it was not supported by any expert, or legal, opinion obtained by the Insurer or any test results obtained by it.

(6)  In contrast, IO’s attitude towards Mr Cheung’s complaint was cautious. It was not one of blanket refusal. IO resolved to refer it for legal advice in its MC meeting held on 7 February 2023.

107.I cannot agree with Mr Lo’s submissions above.

108.For the following reasons, I have no doubt that IO had failed to discharge its s.18(1)(a) duty under BMO in all the circumstances of this case.

(1)  The staff sent in October 2021 to inspect Flat 16A was not, I am afraid, professionally qualified to make a proper judgment whether it was a leakage case involving “common parts” of the Building.

(2)  Given the old age of the Building, the failure of IO to repair external walls facing May Sun Building in 2018, the facts that Mr Cheung’s complaint was not an isolated one (see [39] above), that the corresponding external walls of the 3 Locations are all directly exposed to rainfall unobstructed, and that leakage was also found at interior wall of Bedroom 1 where Location 1 had no bay window at all[25], it was, in my views, reasonable for IO to follow it up by seeking professional advice as early as in October 2021.

(3)  In other words, it was not, I think, sufficient for IO to have reported the said complaint of Mr Cheung to the Insurer “for record” in November 2021 as it did.

(4)  Were I wrong on (2) and (3) above, contrary to IO’s claim at Notice of Opposition at [19] and [20] above, there was every reason for MC members reading contents of A’s expert report received from Mr Cheung in September 2022, including its conclusions set out at [49] above, to believe that Flat 16A suffered from water leakage originated from common parts of the Building i.e. external walls of Flat 16A. To set the record straight, the said report said nothing about humidity found around bay window frame of Bedroom 2 of Flat 16A.

(5)  In my views, IO ought thereafter either to (a) compensate Mr Cheung for his losses and take remedial action to repair the external walls of Flat 16A or (b) seek professional advice to verify contents of A’s expert report.

(6)  IO never did (5)(a) even up to today.

(7)  IO delayed (5)(b) i.e. seeking its own professional advice until 1 year later i.e. September 2023 and that was after Mr Cheung has commenced these proceedings.

(8)  The mere referral in September 2022 of compensation sought by Mr Cheung to the Insurer for follow-up was, I think, insufficient response on the part of IO.

(9)  Assuming for the sake of argument that the above referral to the Insurer was an adequate response, IO’s did not, I think, reasonably follow up thereafter with the Insurer’s request for excess cheque between November 2022 and January 2023 so as to start amicable settlement negotiation with Mr Cheung.

(10)  Were IO to disagree with commercial considerations and/or judgment of the Insurer to negotiate with Mr Cheung without objective tests or legal advice, it ought, in my views, to have made clear its stance to the Insurer and Mr Cheung between November 2022 and January 2023, and delayed no more seeking professional advice and/or instructing legal advisers of its own.

(11)  However, IO simply did nothing between November 2022 and January 2023, causing Mr Cheung to take out SCT proceedings to seek rightful compensation due to him.

(12)  IO did not make clear its disagreement with settlement offer by the Insurer until SCT hearing in late January 2023 and MC meeting in early February 2023.

(13)  With respects, IO’s stance at SCT hearing was one of blanket denial of Mr Cheung’s claim.

(14)  At MC meeting in early February 2023, while disagreeing with settlement suggestion made by the Insurer, IO had nothing to rebut contents of A’s expert report or to support its bare assertion that leakage at Flat 16A was related to its internal decoration. Such attitude of IO was, I think, wholly inadequate in all the circumstances.

(15)  IO’s instructions to the Manager to seek legal advice in MC meeting held in early February 2023 were, I am afraid, long overdue. It simply came too late.

(16)  And Mr Cheung had no choice but to take out these proceeding in mid-February 2023.

109.Had IO taken appropriate steps to investigate and/or remedy water leakage in Flat 16A complained of by Mr Cheung as early as in October 2021, the said problem would likely, I think, have been resolved (and his loss much reduced) by today.

Issue 4 – injunction granted or not?

110.In view of my factual findings and legal conclusions above, I have no doubt that it is appropriate, just and necessary for a mandatory injunction to be granted to Mr Cheung in order to bring persisting water leakage to Flat 16A to an end. Damages alone would not be an adequate remedy to Mr Cheung in all the circumstances of this case.

111.I have considered the draft injunction put forward by Mr Tse at paragraph 41 of his opening submissions.

112.In granting the injunction at next section below, I have borne in mind the authorities cited at paragraphs 17 and 18 of Mr Lo’s opening submissions, and have also considered the 2 cases of Man Kwong Kau & Another v Wong Wai Hong [2023] HKDC 664 and Polysonic Investment Limited v Chan George Lung-Cheung & Another [2022] HKDC 210 cited by Mr Tse.

113.While an injunction ought, I agree, to be clear and precise in its term, it must also be effective in tackling water leakage whose path, as Mr Lo stressed, could not been seen by our naked eyes in this case and could vary over the course of time. If it is necessary, all external walls of Flat 16A may need to be covered in repair works in order to achieve the objective of stopping leakage to Bedroom 1 and Bedroom 2. Sufficient time will, of course, be provided to IO to hold all necessary meetings and to carry out all necessary tendering of repair works. If there be any problem of enforcement, parties are at liberty to apply to this Tribunal for further directions.

Disposition

114.I enter judgment in this application in favour of Mr Cheung against IO as follows: -

(1)  IO do within 3 months from the handing down of this Judgment carry out at its own costs and expenses all necessary repairs to the external walls of Flat 16A to stop all water leakage into its two bedrooms;

(2)  There be liberty to apply; and

(3)  IO do pay Mr Cheung damages in the sum of $12,500.

Costs order nisi

115.Costs normally follow the event after trial.

116.I therefore make a costs order nisi that all the costs of this application, including all reserved costs and the costs of this trial together with certificate of counsel, be paid by IO to Mr Cheung to be taxed on District Court scale if not agreed.

117.The above costs order nisi shall become absolute without further order if none applies within 14 days of the handing down of this Judgment to vary the same.

118.Mr Cheung’s solicitors do draft, file and serve all judgments and order in this Judgment.

119.Finally, I thank both Mr Lo and Mr Tse for their able submissions.

Mr Andrew Tse, instructed by Hom & Associates, for the Applicant

Mr Brian Lo, instructed by Alex To & Co., for the Respondent