史超 v. 均富有限公司 and Another
Read the full judgment text of DCCJ 5015/2017 on BabelCite. This District Court judgment was delivered on 31 May 2024.
1. This is the plaintiff’s claims against the 1 st and 2 nd defendants. At the trial, the plaintiff was represented by counsel Mr Stephen Siu (“Mr Siu”), and the 2 nd defendant was represented by Ms Tania Tse of counsel (“Ms Tse”). The 1 st defendant was represented by its director, Mr Leung Chi King (“Mr Leung”).
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DCCJ 5015/2017 [2024] HKDC 344 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5015 OF 2017 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ INTRODUCTION 1.This is the plaintiff’s claims against the 1st and 2nd defendants. At the trial, the plaintiff was represented by counsel Mr Stephen Siu (“Mr Siu”), and the 2nd defendant was represented by Ms Tania Tse of counsel (“Ms Tse”). The 1st defendant was represented by its director, Mr Leung Chi King (“Mr Leung”). 2.On 20 October 2023, I handed down my Reasons for Decision[1] in dismissing the plaintiff’s application to give evidence by video conferencing facilities from Calgary, Alberta, Canada (the “VCF Application”), with costs to the 2nd defendant to be assessed at the first day of trial. On 25 October 2023, I had summarily assessed the 2nd defendant’s costs at HK$70,556.00, to be paid by the plaintiff forthwith. 3.Despite the reasons he had provided for the VCF Application[2], the plaintiff was able to return to Hong Kong in time for the trial; he had no difficulty giving evidence and enduring the extensive cross-examination by Ms Tse at the trial. 4.Apart from assessing on the costs of the VCF Application, I had, at the start of the trial, proposed to the parties to write this Judgment in English, notwithstanding that the 1st defendant is not legally represented and the trial being conducted in Punti. The reasons for doing so are that the pleadings[3] and the joint expert report are written in such language. The parties, including Mr Leung, have no objection to my proposal. If necessary, arrangement could be made for this Judgment to be interpreted to Mr Leung in Chinese. 5.The unhappy incidents that this Court is tasked to decide on found its life in 2016, with the action being taken out on 10 November 2017 when a specially indorsed Writ of Summons was issued. In view of the long history between the parties by the time of trial, one can expect there to be much events that need to be covered in this Judgment. Indeed, the length of this Judgment speaks for itself. This is partly due to every possible point being taken by the plaintiff and the 2nd defendant, even though the evidence adduced already showed that some of these points should be conceded. Witnesses giving evidence that should have been, but were not, included in their witness statements, led to laborious and time-consuming clarifications and cross-examinations; these undesirable and disallowed acts did nothing to advance their cases, nor help shortening the trial or this Judgment. THE PROPERTY IN QUESTION AND THE CONFIGURATIONS SURROUNDING IT 6.For easy understanding of the parties’ cases, it is imperative to have a depiction of the property in question, and the configurations surrounding it. 7.There is no dispute that the property concerned was purchased by the plaintiff on 31 July 2015[4]. The property is situated at the 1st Floor[5], Flat E (“Flat 1E”), including the flat roof (“Light Well”), Hing Wah Building, No. 165 Wuhu Street, Kowloon, Hong Kong (the “Building”). For clarity sake, I will in this Judgment referred to Flat 1E, the Light Well, and the balcony (the “Balcony”), collectively as the “Premises” where appropriate. 8.To illustrate on the physical boundaries of the Premises and the other relevant areas on the 1st Floor of the Building, I have annexed a floor plan (the “Floor Plan”)[6] to this Judgment. In it, Flat 1E, the Balcony, the Light Well, the lavatory inside Flat 1E (the “Lavatory”), and the soil pipe which was affixed to the external wall of the Building (the “Soil Pipe”), are coloured in burgundy and with arrows pointing out their respective location. 9.As one can see from the Floor Plan, the Building is encircled by Walker Road (south-east direction), Wuhu Street (north-east direction), Lo Lung Hang Street (north-west direction), and a scavenging lane (south-west direction). The south-east, north-east and north-west sides of the Building are surrounded by a canopy (the “Canopy”). The Premises is located at the Walker Road end of the common corridor on the 1st Floor, at the corner between Wuhu Street and Walker Road. Flat 1F is at the opposite side of corridor, at the corner of Walker Road and the scavenging lane. The Balcony is at the south-east side of Flat 1E, at the corner of Wuhu Street and Walker Road. 10.At the Walker Road end of the common corridor, there is a wall and a window (the “Window”); outside of it is the Light Well. The Light Well is an opened area trapped between the external walls of Flat 1E and Flat 1F, and extends to the Canopy facing Walker Road. The Soil Pipe is within the Light Well, affixed to the external wall of Flat 1F, and opposite to the external wall of Flat 1E. Behind the external wall of Flat 1E is the Lavatory, where allegedly some defects were found (the “LEW”). Installed inside the Lavatory and against the internal face of the LEW is a bathtub. 11.For completeness sake, apart from the Soil Pipe, there are also a waste water pipe, air pipe and water pipe affixed at the same external wall of Flat 1F, but they are not the focus of the present case. 12.There is no dispute that the LEW, the Soil Pipe and the manholes to which the Soil Pipe was connected to, are the common parts of the Building. PLAINTIFF’S PLEADED CASE 13.Although the author of the Re-Amended Statement of Claim (“RASOC”) had separated it into two broad claims, the facts and evidence relating to each claim are intertwined and overlapped to some extents. Some of the events are not pleaded in a chronological manner. 14.The narratives start with the introduction of the parties to this action. Apart from his ownership of the Premises, the plaintiff points to the 2nd defendant being the incorporated owners and manager of the Building. The 1st defendant was the principal contractor hired by the 2nd defendant to render some renovation works at the Building. The scope of works included maintenance and/or repair of the external walls of the Building, replacing and/or installing communal soil and/or waste water pipes. The renovation work also involved replacing waterproof layer of the LEW, the floor of the Light Well and the Balcony (collectively defined as the “Renovation Project”). The Renovation Project started in about May 2016. 15.I pause here to say that there is no dispute as to the roles of the parties. However, the parties in their pleadings battled on the contents of the Renovation Project and its commencement date. These disputes form no part of the issues that the court has to resolve, nor do they assist the parties’ cases under the issues. Tenancy agreement 16.The plaintiff’s accounts bring us to a tenancy agreement between himself and 朱敏琪小姐 (“Ms Chu”) dated 10 October 2016, under which the Premises was leased to Ms Chu for 24 months from 1 November 2016 to 31 October 2018 for a monthly rent of HK$16,000.00 (the “Tenancy Agreement”)[7]. The Balcony 17.The plaintiff then went back in time, introducing his first head of claims, that is against the 1st defendant only. The plaintiff’s complaint is that, since about 2 August 2016, the 1st defendant’s agents or servants had erected a scaffold in the Balcony without the plaintiff’s consent. Construction debris were dumped or fell onto the Balcony. These acts, the plaintiff says, had disrupted the occupancy and enjoyment of Premises by Ms Chu, and had damaged the Balcony. The particulars of damage are as follows:-
18.The plaintiff lodged his first complaint to a 吳先生 (“Mr Ng”) of the 1st defendant on even day. Although he was able to correct Mr Ng’s initial mistaken belief that the Balcony was a common part of the Building, the plaintiff was unable to convince Mr Ng to remove the scaffold and to cease dumping of debris onto the Balcony. Mr Ng adamantly suggested that the plaintiff and/or Ms Chu should not use the Balcony, as the falling and dumping of debris would be inevitable. 19.Unsuccessful in his request to the 1st defendant, the plaintiff turned to the 2nd defendant for help, sending them letters on 2 September 2016 (“2.9.2016 Letter”), 6 October 2016 (“6.10.2016 Letter”), 11 October 2016 (“11.10.2016 Letter”), and 15 October 2016 (“15.10.2016 Letter”). 20.Unfortunately, these complaints had fallen on deaf ears, and the scaffold was removed only in about October 2017. The plaintiff says its belated removal had led to Ms Chu moving out of the Premises in about May 2017, and ultimately terminated the Tenancy Agreement prematurely on 30 September 2017. 21.For these reasons, the plaintiff alleges that the 1st defendant was negligent, and was guilty of nuisance, which had caused damage to his property (i.e., the floor tiles, the Cupboard and etcetera), inconvenience and loss of rental income to him, at the total amount of HK$365,800.00. In particular, the plaintiff claims against the 1st defendant:-
Bursting of the Soil Pipe; discharge of soil water 22.The plaintiff’s complaints and claims under this head are directed at both the 1st and 2nd defendants. 23.Before going into the details of these complaints, it should be noted that the plaintiff expresses his awareness of some defects at various parts of the LEW after acquisition of the Premises, without specifying what these defects are. 24.I shall also add at this juncture that, in this Judgment, there will be frequent reference to the soil water, soil, waste materials like used toilet papers, construction related debris, and rubbishes like orange skins and lunch boxes, found on the floor of the Light Well. For easy reference, they would be collectively referred to as “Wastes” where appropriate. 25.The parties and witnesses have also in this case variably used the terms “burst”, “unsealed”, “disconnect”, and “dislocate”, to describe the problem with the Soil Pipe. However, one could see later on in this Judgment, the cause of it was due to the pressure accrued inside the Soil Pipe, originating from the blockage at the manhole. I think the description of “burst” would be more fitting for this reason. Hence, this would be the term adopted in this Judgment, regardless of how the parties and witnesses described it. 26.Coming back to the plaintiff’s case, the problem started in about October 2016, when the plaintiff realised that the Soil Pipe burst, which had caused the discharge of soil water, soil and waste materials onto the floor of the Light Well. Over time, the soil water, soil and waste materials accumulated at the Light Well. Since then, the plaintiff had made several verbal complaints to Mr Ng of the 1st defendant, the 2nd defendant, and a 畢先生 (“Mr But”) of Ho Hei Architectural Engineering Consultant Limited (“Ho Hei”)[8]. Written complaints in the form of 6.10.2016 Letter and 11.10.2016 Letter were sent to the 2nd defendant. 27.Then, in about May 2017, Ms Chu informed the plaintiff that the soil water coming from the Light Well had seeped through the main door of Flat 1E into the common corridor. Both Ms Chu and the occupant of Flat 1F had reported the matter to the Food and Environmental Hygiene Department (“FEHD”). Such news brought him back to Hong Kong on 20 May 2017 from the United States of America (the “USA”)[9]. 28.The plaintiff’s inspection revealed the following:-
29.The said inspection was followed by verbal complaints to the 1st and 2nd defendant, and a letter to the latter dated 26 August 2017 (“26.8.2017 Letter”), but to no avail. The problems persisted until October 2017, when the Soil Pipe was repaired. 30.On 28 October 2017, the plaintiff hired a third party to clean up the accumulated soil and waste materials at the Light Well, at the costs of HK$200.00. 31.On 8 November 2017, the middle and top part of the LEW was repaired. For this, the plaintiff incurred costs of HK$5,000.00. 32.However, the Soil Pipe burst again in early 2018, which was found out by the plaintiff on about 21 July 2018. Discharge of soil water, soil and waste materials onto the Light Well, and the accumulation of soil and waste materials thereat, resumed. On even day, after receiving the plaintiff’s verbal complaint, the 1st defendant repaired the Soil Pipe and ended this episode. 33.The plaintiff spent HK$100.00 to clean up the accumulated soil and waste materials on 23 July 2018. 34.On 3 August 2018, the plaintiff’s contractor performed waterproof treatment on the floor slabs of the Light Well, and the bottom of the LEW. The plaintiff had to pay HK$5,800.00 for the service. 35.The plaintiff asserts that the remedial work on 21 July 2018 failed to cure the problem completely. The Soil Pipe continued to burst intermittently until March 2019. 36.He adds that between May 2017 and March 2019, black mould, soil and/or waste materials constantly seeped out from the sides of the floor tiles of Flat 1E, and interior was filled with foul smell. The plaintiff says that the dire condition of the Premises rendered it non-inhabitable. Thus, during his stay in Hong Kong from 11 September 2017 to 10 September 2020, he had to rent another accommodation at the price of HK$18,500.00 per month. Moreover, he was unable to find any tenant for the Premises due to the subsisting problems. 37.Citing the explanation given by the 1st defendant, the plaintiff says that the continuous bursting of the Soil Pipe was due to the pressure generated by the soil water and waste materials caught inside the same. Such pressure was created by the blocked manhole to which the Soil Pipe was connected (“Manhole 1”). He adds that the 2nd defendant was aware of the blockage at Manhole 1 by the time the Renovation Project commenced in 2016. Nevertheless, they only arranged for superficial cleaning of Manhole 1. The problem was finally resolved, when the 2nd defendant instructed another contractor to connect the Soil Pipe to another manhole (“Manhole 2”) in March 2019. 38.On 10 July 2019, as part of the Renovation Project, the 1st defendant started replacement of the waterproof layer of the Light Well, LEW and the Balcony. During the course of replacement, it was discovered that there was a hole (of about 5 cm) and cracks (of about 0.2 cm to 0.5 cm wide and 10 cm to 20 cm long) at the bottom of the LEW (the “Defects”). 39.To rectify the Defects, and also to even the difference in height between the floors of the Balcony and Flat 1E after replacement of waterproof layer, the plaintiff on 22 July 2019 instructed the 1st defendant to replace the waterproof layer at the interior of Flat 1E, together with installation of some temporary drainage and decorative fittings (the “Interior Replacement Works”). For these works, the plaintiff incurred the costs of HK$65,000.00. 40.During the Interior Replacement Works, 7 cm depth of yellowish foul water was found underneath the bathtub inside the Lavatory. 41.The plaintiff accuses that the series of Soil Pipe bursting, accumulation of soil and waste materials at the Light Well, and the seepage of soil water into Flat 1E, were caused by the negligence of the 1st defendant, its servants and/or agents; alternatively, he has suffered nuisance. 42.As against the 2nd defendant, the plaintiff relies on the duties imposed on them by section 18(1) of the Building Management Ordinance, Cap. 344 (“BMO”), and clause (m) of the 3rd Schedule of the Deed of Mutual Covenant dated 15 November 1973 (the “DMC”). In breach of these duties, the plaintiff asserts that the 2nd defendant had done nothing to prevent or stop the bursting of the Soil Pipe, leading to continuous discharge of soil water, soil and waste materials onto the Light Well, and the accumulation of soil and waste material thereat. This led to seepage of soil water into Flat 1E via the LEW, which the 2nd defendant failed to maintain and repair. Apart from the BMO and the DMC, the plaintiff also based his claims against the 2nd defendant on negligence and nuisance. 43.For these reasons, the plaintiff alleges that the 1st and 2nd defendants were negligent, and had created nuisance. The 2nd defendant was also in breach of the BMO and the DMC. These had or would lead to the requirement of repair and renovation, and the need for the plaintiff to rent an alternative accommodation during his stay in Hong Kong to handle the matters. He had also incurred costs for obtaining a survey report. The damages claimed under this head against both the 1st and 2nd defendants are particularised below:-
THE DEFENDANTS’ DEFENCE 44.The contents of the 1st and 2nd defendants’ Amended Defence are largely similar. In fact, they are almost identical in terms of their stance concerning the complaints relating to the Balcony and the Soil Pipe. I shall therefore cover them in one go to avoid repetitions. 45.The 2nd defendant provides the history leading to the Renovation Project, going as far back as 23 July 2013, which I do not think the readers should be troubled with. Suffice it to say, Ho Hei was hired on 4 July 2014 as a consultant to conduct and manage the Renovation Project, and the 1st defendant was appointed on 22 March 2016 to perform the works under the Renovation Project. Apart from other construction works on the common parts of the Building (“Maintenance Works”), the Renovation Project included improvement on the drainage system of the Building, so as to prevent waste water from splashing onto the external wall and/or flow into the Light Well (“Drainage Improvement Work”). 46.Pausing here, I observe that the 1st and 2nd defendants have not adopted the abbreviation of “LEW” when referring to the external wall as one can see from the preceding paragraph. I shall assume, for the purpose of this Judgment, that they meant another external wall within the boundary of the Light Well (e.g., the external wall of Flat 1F)[10]. 47.The Maintenance Works commenced on 28 July 2016. The Drainage Improvement Work was completed in about March 2017. On 28 September 2018, Ho Hei issued a certificate of completion. Unauthorised alterations and thickened floors 48.The 1st and 2nd defendants place great emphasis on these matters in refutation of the plaintiff’s claims concerning the burst Soil Pipe and seepage of soil water into Flat 1E. I prefer to introduce them before their application in opposition of the plaintiff’s case. 49.Regarding the former, they stress that the Premises was partitioned into 3 subdivided flats (the “Partitions”), in which alterations were carried out to various pipes and drains inside it. These alterations were made without the formal approval or permission from the Building Authority under Minor Works Control System (the “Unauthorised Alterations”). The Unauthorised Alterations remained unrectified, despite refurbishment of the Premises in about early August 2015, after the plaintiff became its registered owner. They add that cast iron horizontal soil pipe extended from the originally approved water closet inside the Lavatory, was not sealed up or removed after the Unauthorised Alterations. 50.As to the latter, the 1st and 2nd defendants say that, at the time when the waterproof layers at the Light Well, LEW and the Balcony were being replaced on 10 July 2019, the 1st defendant observed that the floors of the Balcony and Light Well were thickened (the “Thickened Floors”). The Thickened Floors covered the surface channel connecting the rainwater pipe fixed on the external wall (“RW Pipe”). In addition, drainage pipes submerged and were concealed by the Thickened Floors. Despite so, no cleaning eye was installed thereon, which would allow regular inspection and maintenance of those drainage pipes. Furthermore, there was inappropriate use of plastic pipes under the Thickened Floors. 51.As a preview of what is to come, the above allegations were annihilated by the experts and the lack of supporting evidence from the 1st defendant. The Balcony 52.The 1st and 2nd defendants have no quarrel that the plaintiff had complained about the erection of scaffold in the Balcony, and the construction debris that were dropped onto its floor. After Ho Hei and the 2nd defendant had on 11 October 2016 received the plaintiff’s complaint, they had, in mid-October 2016, instructed the 1st defendant to make adjustments so that no part of the scaffold was erected into the Balcony. In addition, the 1st defendant should arrange for the removal of debris found on the Balcony (the “Remedial Measures”). They say that the Remedial Measures were completed by the 1st defendant within 7 days after the instructions were given. Ho Hei also inspected the Balcony and was satisfied that no further disturbance or inconvenience would be caused to its user. Since then, Ho Hei and the 2nd defendant received no further complaint from the plaintiff on this matter. Bursting of the Soil Pipe; discharge of soil water 53.As aforestated, the Renovation Project included the Drainage Improvement Work, which was completed in March 2017. But prior to that, on 11 October 2016, the 2nd defendant received news from Ho Hei that the plaintiff or Ms Chu complained of water seepage from the external wall and discharge of waste water from the RW Pipe[11]. 54.On 24 October 2016, per the instruction of the 2nd defendant, Ho Hei and the 1st defendant went to Flat 1E for inspection, and recorded the alleged seepage problem by photographs (the “Initial Visit”). However, since the Initial Visit, demands made in November and December 2016 from the 2nd defendant, Ho Hei and/or the 1st defendant to further inspect and/or to carry out repair work and/or rectify the Unauthorised Alterations were refused by the plaintiff and/or Ms Chu. The 2nd defendant adds that such refusals were in violation of clause 3(f) of the DMC. 55.Amid the inability to gain access into Flat 1E for the said purposes, Ho Hei had, pursuant to the direction from the 2nd defendant, given instruction to the 1st defendant to avoid discharge of waste water onto the external wall and/or flowing into the Light Well whilst carrying out the Drainage Improvement Work. 56.In light of the stance taken by the 1st and 2nd defendants, it is understandable that all subsequent events pleaded by the plaintiff relating to the bursting of Soil Pipe, accumulation of soil and waste materials at the Light Well, and seepage of soil water into Flat 1E, were either not admitted or denied by them. 57.However, things became confusing when answering the alleged event on 21 July 2018[12]. The 1st defendant admits that its servant had remedied the discharge problem by reconnecting the Soil Pipe to the sewage system of the Building, whereas the 2nd defendant refuses to admit it[13]. The 1st defendant’s admission is, inexplicably, contrary to their pleaded case that the spillage came from the RW Pipe. 58.Notwithstanding their admissions on the blockage of Manhole 1, neither the 1st defendant nor the 2nd defendant admits that it had caused the Soil Pipe to burst. Nevertheless, both acknowledge that the Soil Pipe was connected to Manhole 2 on 18 February 2019 by another contractor, Wei Kee Company (“Wei Kee”). 59.They also take the opportunity to correct the plaintiff’s assertion that the Soil Pipe was temporarily sealed on 19 January 2019. They aver that the Soil Pipe was sealed to the pipes inside Flat 1E, which could not be rerouted and connected to the new pipes installed during the Drainage Improvement Work, reciting the plaintiff and/or Ms Chu’s refusal of access after the Initial Visit. 60.The 1st and 2nd defendants deny existence of the Defects allegedly found on the LEW. The 1st defendant agrees that 7 cm of yellowish foul water was found underneath the bathtub located inside the Lavatory[14]. 61.They conclude by denying the plaintiff’s case under this head in its entirety. On the assumption that there was the bursting of Soil Pipe, the eventual discharge onto and accumulation at the Light Well of soil water and waste materials, and the seepage of soil water into Flat 1E, were all caused by the Unauthorised Alterations and Thickened Floors. THE PLAINTIFF’S REPLIES The Partitions and the Unauthorised Alterations 62.The plaintiff denies that there were the Partitions and Unauthorised Alterations at the Premises after he became the registered owner of the same. He adds, on the assumption that the Partitions and Unauthorised Alterations were present, they had been rectified before he acquired the Premises. The Balcony 63.No Remedial Measures were taken by the 1st defendant; nor did anyone from Ho Hei inspected the Balcony after their alleged completion. The plaintiff reiterates that the scaffold was not removed until October 2017. Prior to that, the debris that were dumped onto the Balcony had to be removed by himself or Ms Chu on weekly basis. Unsealed Soil Pipe; seepage of soil water 64.The plaintiff rebuts there was the Initial Visit as alleged. He also denies that anyone from the 1st and 2nd defendants, or Ho Hei, had ever demanded access into the Premises for investigation or repair for the seepage problem. Quite the reverse, they had ignored the plaintiff’s complaints, until one day when a 管先生 (“Mr Koon”) of the 1st defendant finally attended and inspected Flat 1E and took some photographs. 65.The suggestion that the Soil Pipe was sealed to pipes inside Flat 1E is refuted by the plaintiff. Hence, there is no truth in the allegation that the Soil Pipe could not be rerouted and connected to the new pipes installed during the Drainage Improvement Work. The Thickened Floors 66.The plaintiff does not admit there were the Thickened Floors at the Balcony and the Light Well. Neither does he admit that there were pipes and channels concealed under them. But, assuming these were true, he avers that the channels and pipes were not in use, and have no relevance to the subject matters in this action. 67.Equally, if there was the cast iron horizontal soil pipe which extended from the originally approved water closet inside the Lavatory, and the same was not sealed up or removed after the Unauthorised Alterations, they had nothing to do with the subject matters in this case. ISSUES IN DISPUTE 68.The parties were able to agree on the issues to be decided by this Court[15]. I will adopt them for this Judgment, with minor adaptations to reflect the parties’ pleaded cases more accurately, and to incorporate the Unauthorised Alterations and Thickened Floors as issues to be decided together with the Soil Pipe related events. The issues are as follows: - The Balcony
Bursting of the Soil Pipe; seepage of soil water
69.In the sections below, I will set out the factual evidence adduced by the parties. The plaintiff testified at trial for his case, and Mr Leung gave evidence for the 1st defendant. The 2nd defendant originally intended to call 3 witnesses to testify at trial, namely 張榮求先生 (“Mr W K Cheung”), 羅少娟女士 (“Ms Law”), and 張克青先生 (“Mr H C Cheung”). It turned out that only Ms Law would be doing so. Ms Tse had confirmed with the court that Mr W K Cheung would not testify at trial. 70.As to Mr H C Cheung, he had passed away on 7 February 2023. That being so, the 2nd defendant applied for his witness statement filed on 23 September 2019 (“H C Cheung’s Statement”) to be admitted as evidence, citing in support of this application the decision of Lok J in the case of Ling Wing Fai Billy & Ors v Ling Shui Fai & Ors[16]. Ms Tse argued that H C Cheung’s Statement was long disclosed to the plaintiff, hence no prejudice would be caused by having it admitted into evidence. In addition, she stressed that Mr H C Cheung had no interest in the matter and should be regarded as an independent witness. She also emphasised on the impossibility for anyone from the 2nd defendant who could give the evidence that he had given in H C Cheung’s Statement. Finally, Ms Tse submitted that, at the end of the day, the court could consider whether any weight, and if so, how much weight, could be given to H C Cheung’s Statement, taking into account the plaintiff’s chance of cross-examining Mr H C Cheung being denied. 71.Mr Leung informed the court that the 1st defendant had no objection to such application. As expected, the plaintiff took a different stance. Mr Siu’s first point of attack was that some information contained in H C Cheung’s Statement could actually be seen in the documentary evidence already disclosed. He added that the plaintiff should be entitled to cross-examine Mr H C Cheung on the factual matters, and those that were based his recollections, as stated herein. Lastly, Mr Siu submitted what Mr H C Cheung narrated in his witness statement would be nothing more than hearsay evidence if he did not adopt them in court under oath. 72.After hearing from the parties, I have allowed the 2nd defendant’s application. The reasons are that:
73.Notwithstanding granting of the application, I shall emphasise I reject Ms Tse’s contention that Mr H C Cheung was an independent witness. Clearly, being owner of a unit within the Building, he would have to share any damages payable to the plaintiff by the 2nd defendant. 74.There are matters that I wish to address before going into the evidence of the witnesses. First, one will see in this Judgment that minimal reference is made to the claims relating to the Balcony. This is not a product of any voluntary concessions on the parts of the plaintiff and the 1st defendant, but is due to the lack of contending evidence from the latter’s side, which I have explained in §§106 to 111 below. 75.Second, I have deliberately withheld setting out evidence relating to the quantum of the plaintiff’s claims, for reasons that: (1) there was overlapping of the period of claim for loss of rental income and costs for alternative accommodation; and (2) revelation of the fact that the plaintiff has sold the Premises in 2022 without any repair to the same, which is covered in §98 of this Judgment. THE PLAINTIFF’S EVIDENCE His evidence-in-chief 76.The plaintiff filed a total of 3 witness statements on 13 September 2018, 23 September 2019, and 17 November 2021 (hereinafter respectively referred to as “P’s 1st Statement”, “P’s 2nd Statement”, and “P’s 3rd Statement”). He adopted them as his evidence-in-chief at trial. 77.Pausing here, P’s 1st Statement was homemade, and was filed at a time when only the 1st defendant was being sued[18]. In it, there were parts that contained discussions between him and the representative of the 1st defendant during mediation, that should not be disclosed to the trial judge[19]. In my view, they should have been, with leave of the court, redacted before P’s 1st Statement was included in the Pre-Trial Review Bundle or Trial Bundle. Mr Siu agreed to strike out those parts, and had subsequently replaced P’s 1st Statement with a redacted version of the same in the Trial Bundle. Despite having sight of those mediation communications in the original P’s 1st Statement, the parties agreed that I should continue presiding over the trial. 78.The plaintiff’s evidence in P’s 1st to 3rd Statements are basically in line with his pleaded case. The following additional information are provided therein: -
79.The plaintiff had these to add at trial:-
His evidence under cross-examinations and re-examination 80.As a trailer of what is to come, the plaintiff’s evidence under cross-examination can be hard to follow, and sometimes incoherent. He had demonstrated consistently his refusal to answer directly the questions put to him, be it from Ms Tse or Mr Siu; he had also too comfortably and repeatedly come up with replies that should have, but had never, been included in P’s 1st to 3rd Statements. Revelation of his sale of the Premises on 21 March 2022 and a closer look of the Tenancy Agreement with Ms Chu also created much negativity in his claims. The Partitions and Unauthorised Alterations 81.Ms Tse agreed at trial that there is no longer accusation that the Partitions and Unauthorised Alterations remained in the Premises post 2015. We could also see from the experts’ opinions that the Unauthorised Alterations had nothing to do with the bursting of the Soil Pipe. Curiously, the plaintiff was still extensively questioned as to when the Partitions and Unauthorised Alterations were removed. Consistent with his pleaded case, the plaintiff’s answer was that they were completed before his acquisition of the Premises on 31 July 2015. He said that the removal started in early 2015, and was completed after one week. The plaintiff emphasised that the renovation of the Premises could not begin until a compliance order was received from the Building Authority. In support of this, the plaintiff relied on the Letter of Withdrawal dated 22 July 2015. The renovation was basically completed in or about November or December 2015, with minor touch ups still required afterwards. 82.He could not recall how long after the Partitions and Unauthorised Alterations were removed that the renovation started. He could recall being in Hong Kong when the sale and purchase agreement was signed[43], and it was signed when the renovation was already underway. In fact, the plaintiff recollected that he was not in Hong Kong when the removal and renovation took place. He left the matters to the contractor he hired for the tasks, and it was the contractor whom liaised and followed up with the Building Authority. 83.Aside from the Partitions, the plaintiff conceded that there were soil pipes, waste water pipes, fresh water pipes and air pipes installed inside Flat 1E, and they were improperly installed for the purpose of the Partitions. However, they were all removed, and reinstalled when the Premises was renovated. The plaintiff was confident that all pipes were reinstalled properly, as the Building Authority would ensure, and had indeed found, that they were in compliance with the approved plan. He supplemented that, the contractor told him after reinstalling the pipes inside the Premises, the Building Authority had inspected them and found them to be acceptable. This led to the Satisfaction Letter dated 3 August 2015, and a copy of Letter of Withdrawal dated 22 July 2015. 84.The plaintiff agreed that, after the renovation was completed, and before Ms Chu resided in it, no one had occupied the Premises, save that he and his friends had lived there for a few days. Furthermore, since the departure of Ms Chu and termination of the Tenancy Agreement, no one had resided at the Premises, including himself. He added that, albeit he did not live there after his return to Hong Kong on 20 May 2017, he had visited the Premises every day to monitor the spillage of soil water at the Light Well. The Thickened Floors 85.The plaintiff was presented with a photograph by Mr Leung, which showed the Thickened Floors at the Light Well[44]. Answering a question from Mr Siu, the plaintiff confirmed that the floor was thickened on 3 August 2018, when the waterproof treatment was performed on the floor slabs of the Light Well, and at the bottom of the LEW[45]. Termination of the Tenancy Agreement 86.Ms Tse, in her cross-examination, tried to advocate that Ms Chu terminated the Tenancy Agreement solely because of the erection of scaffold in and dumping of debris at the Balcony; equally expected was the plaintiff’s rejection of this. I wonder why this was necessary when there is no claim for loss of rental income against the 2nd defendant in §47 of the RASOC. However, the answers given by the plaintiff do have relevance to the other issues between the parties. I shall therefore include these answers below. 87.Ms Tse brought the plaintiff to the Chu’s Termination Letters, where her inability to use the Balcony was cited as the sole reason for the premature termination of the Tenancy Agreement. In reply, the plaintiff claimed that there were verbal complaints from Ms Chu every 1 or 2 days about the seepage of soil water from the Light Well via WhatsApp. 88.The plaintiff was further challenged on this point by reference to P’s 1st Statement[46], where he had stated that Ms Chu terminated the Tenancy Agreement due to the scaffold and debris in the Balcony. He explained he was simply citing what Ms Chu said in Chu’s Termination Letters. 89.The plaintiff tried to downplay the importance of the Balcony to the Tenancy Agreement, saying Ms Chu’s emphasis on it in Chu’s Termination Letters was purely due to the Balcony being part of the Premises she rented. There was no truth in her desire to use the Balcony for keeping her dogs, allegedly expressed to the plaintiff before entering into the Tenancy Agreement. In fact, according to clause 6 of the Tenancy Agreement, no dog was allowed in the Premises. 90.He placed the blames on the 1st defendant’s failure to remove the scaffold on schedule, and Mr H C Cheung’s representation that the scaffold would be removed by December 2016. The plaintiff explained that a notice was issued by the 1st defendant which said that the scaffold would be erected for 6 months. He and Ms Chu also went to Mr H C Cheung in October 2016, who often sat at the security post, and obtained his confirmation that the scaffold would be removed in 2 months. Based on these, both Ms Chu and the plaintiff had the expectation that the scaffold in the Balcony would disappear in 2 months. This explained her disappointment in Chu’s Termination Letters when the timetable was not adhered to. 91.The plaintiff was also questioned as to why, if Ms Chu had been making the verbal complaints about the seepage of soil water almost every next day as alleged, he did not return to Hong Kong until 20 May 2017 to handle the matter. Perhaps missing the point that Ms Tse was trying to make based on this question, the plaintiff conceded that he returned solely because he was informed by the security guard of the Building that the soil water seeped from Flat 1E into the common corridor. He denied that his return had any connection with Ms Chu stopping payment of rent since about April or May 2017. After much pressure from Ms Tse, he admitted that he did chase her for the rent after May 2017. 92.The plaintiff rebutted the allegation that he refused to resume possession of the Premises from Ms Chu, as suggested in Chu’s Termination Letters. He explained that, after Ms Chu moved out of the Premises in February 2017, she had placed the keys inside a code lock, and the code lock was hung on the knob of the main door which could not be removed. Upon my invitation, the plaintiff used the portable recorder (the ones used by court interpreters) inside the courtroom to demonstrate what the code lock looked like. Using the said recorder as the main body of the code lock, the plaintiff used his finger to indicate that there would be a hook at the top of the box, which was used to hang the code lock on the doorknob. There was a small storage compartment within the main body of the code lock, where the keys were stored. One would have to key-in the code to open the compartment to retrieve the keys stored in it (the “Code Lock”). 93.To fortify his narratives on the Code Lock, the plaintiff added that, at the time, Ms Chu had to travel to the United Kingdom to visit her husband. It was a vacation for her, as she was a teacher in Hong Kong. Hence, she was unable to pass the keys to him face to face. The Code Lock was thus used. 94.The plaintiff agreed that the term of tenancy started on 1 November 2016. He refused to acknowledge that there was no documented complaint of soil water spillage at the Light Well and seepage into Flat 1E, between 1 November 2016 and May 2017. The plaintiff asserted that he had via Ms Chu lodged verbal complaints to the security guard of the Building. Nevertheless, the plaintiff confessed that this was neither pleaded nor mentioned in P’s 1st to 3rd Statements. 95.As the plaintiff is claiming for loss of rent up to 31 October 2018 (again not against the 2nd defendant), Ms Tse had, in her cross-examination raise the topic of fixed term of the Tenancy Agreement. Her suggestion that Ms Chu was free to terminate it after the first year, i.e., after 31 October 2017, was denied by the plaintiff. He asserted that the Tenancy Agreement was for 2-year fixed term. Interestingly, it was Mr Siu whom rebutted him with reference to clause 2 of the Tenancy Agreement, which did not express it to be for 2 years fixed term. 96.What is more, a closer look of clause 2 reveals that there was no fixed term at all set in the Tenancy Agreement. Party was entitled to terminate it at any time by giving the other 1-month prior notice. When I shared my observation at trial, the plaintiff countered it by saying that there was a verbal agreement between himself and Ms Chu that the Tenancy Agreement was for a fixed term of 2 years. 97.He agreed that, after the Tenancy Agreement was terminated, he had tried to lease out the Premises in November and December 2017, but it bore no fruit, as potential tenants were all driven away by the stench coming from the Light Well. Conceding defeat, the plaintiff ceased advertising the Premises to potential tenants. Sale of the Premises 98.It was revealed during cross-examination that the Premises was sold by the plaintiff on 28 January 2022[47]. Save for the costs already paid, the plaintiff confirmed that the estimated costs for repair and renovation claimed in the RASOC had not been incurred before the sale of the Premises. Nevertheless, he insisted in claiming for the same, as he sold the Premises at HK$4,400,000.00, allegedly HK$500,000.00 below the market price, because of the dire condition at the Premises. The Initial Visit; no access granted after the Initial Visit 99.During cross-examination, the plaintiff maintained his case that there was no Initial Visit as alleged. When he was re-examined, photographs dated 24 October 2016 were shown to him. The photographs were described as Mr But of Ho Hei inspecting the Premises for the seepage problem. Notwithstanding these photographs were disclosed by him, and they seemed to support the existence of the Initial Visit, the plaintiff outright rejected such suggestion from his own counsel. He claimed that the descriptions were wrong, and the date of the photographs was forged. He had no idea who wrote the descriptions. 100.The plaintiff repeated that Ms Chu only resided at the Premises for 2 months, i.e. from December 2016 to January 2017. During her occupancy of the same, anyone whom wanted to inspect the Premises would have to gain access to it through Ms Chu. However, the plaintiff denied Ms Tse’s suggestion that no one could enter the Premises if Ms Chu refused. Conversely, he also disagreed that anyone could gain access to the Premises in lieu of Ms Chu’s consent. 101.Echoing on what he said in the above, the plaintiff added at trial that security guard of the Building was given the code to the Code Lock, so that he or she could gain access to the Premises after Ms Chu left, i.e., between March and May 2017. He wanted members of the 2nd defendant to enter and inspect the Premises, but the security guard relayed back to him that they were not comfortable entering into any private property whilst the owner was not there. Bursting of the Soil Pipe; discharge of soil water 102.The plaintiff was asked about the height of the soil and waste materials accumulated at the Light Well. Per his pleaded case, there were 0.4 to 0.5 metre of soil water and/or soil and/or waste materials accumulated. Ms Tse queried, based on such description, the soil water coming out of the Soil Pipe should have flowed from the Light Well into the Canopy, and in turn onto Walker Road. The plaintiff refuted that suggestion, pointing to there being a 30 cm high concrete wall between the Light Well and the Canopy, which had stopped the soil water from entering into the Canopy[48]. 103.The plaintiff’s evidence concluded with this topic. He had asserted that the soil discharged from the Soil Pipe would spread onto the Window, and could even fly through the Window and splashed onto the main door of the Premises. For illustration, the 11.9.2017 Video was played. It was shot from inside the Window and started with a scene where water was coming out continuously from a horizontal unsealed pipe. At the 6th second, some spots on the sill of the Window could be seen. The plaintiff said that those spots were soil that discharged from the Soil Pipe and splashed onto the Window. 104.The 25th second of the 11.9.2017 Video captured the bottom-middle part of the Window’s frame. One could see on it there were dark spots stuck on it, and below these spots were shreds of waste paper with dark spots on them. The plaintiff narrated that those dark spots were soil. 105.At the 30th second of the 11.9.2017 Video, the focus was on the nail screwed into the surface of the Window’s bottom frame. On the right side of the nail were 5 to 8 dots of soil; the both sides of the nail were yellowish-grey stains that remained after the plaintiff had removed the soil at those spots. MR LEUNG’S EVIDENCE His evidence-in-chief 106.This can be disposed of quickly. Mr Leung gave evidence for the 1st defendant at trial by adopting his witness statement. However, his evidence has nothing to do with any of the Issues. Nothing contained therein lends support to the 1st defendant’s pleaded case. Aside from introducing himself, Mr Leung’s witness statement only offers information as to how the 1st defendant won the bid for the Renovation Project, and when the works under it started (i.e., 28 July 2016). 107.It is an established principle that the witness statement served must be full and complete. The witness is expected to provide all or substantially all factual evidence in his statement[49]. No evidence may be led from the witness, the substance of which is not included in the statement served, unless, with leave of the court, it is to amplify his statement and/or to give evidence in relation to new matters that have arisen since the statement was served[50]. There are multiple purposes for such requirement. First, it seeks to achieve fair and expeditious disposal of proceedings and saving of costs. Second, the element of surprise as to whom the witness would be and the substance of his evidence would be eliminated. Having sight of the evidence to be given by the witnesses at trial would also allow parties to form realistic views of the merits of their cases, which could enhance the chance of settlement before trial[51]. 108.I had at trial inquired with Mr Leung as to why his witness statement was prepared so inadequately, especially considering that the 1st defendant was legally represented at the time[52]. Mr Leung answered that he thought he could file another witness statement at a later stage. I do not understand the basis of his belief; Mr Leung did not explain to me as to why he could not serve a statement that would include all or substantially all the factual evidence in one go. It is amazing that the legal representative had given the green light for its filing, without righting Mr Leung’s erroneous belief. It is equally amazing that such mistake was not corrected when the 1st defendant was represented by another firm of solicitors. 109.The attempt to rectify the problem came only at a time when the 1st defendant was no longer legally represented. It did subsequently obtain Court’s leave to file and serve Mr Leung’s supplemental witness statement. However, non-compliance with the directions of the Court, and subsequently with an unless order, led ultimately to the 1st defendant being debarred from doing so. I see that there was no appeal against the unless order, nor was there application for relief from such sanction. 110.In light of the above, there is simply no justification for Mr Leung to give evidence at trial that goes beyond what he had said in his statement, save for the answers that he gave under cross-examination. 111.Inadequacy state of Mr Leung’s witness statement devastated, if not completely destroyed, the 1st defendant’s case, and even the 2nd defendant’s case to a certain degree. There is simply no factual evidence to support, for example, the Remedial Measures taken at the Balcony, as alleged. His evidence under cross-examinations 112.Although his evidence-in-chief is limited, Mr Leung had given information during cross-examination regarding the discharge of soil water at the Light Well. Expectedly, Mr Siu had not asked Mr Leung any question concerning the scaffold at the Balcony. 113.Mr Leung started by clarifying that neither Mr Ng nor Mr Koon worked for the 1st defendant. Mr Ng was a foreman of the 1st defendant’s subcontractor. As to Mr Koon, Mr Leung had never heard of him. Locations of the pipes 114.He was then asked to explain the setting of various pipes located at the Light Well. He did so by using a photograph[53], pointing out that the Soil Pipe was the third from the right. Between it and the Window were the waste water pipe and air pipe. 115.There were also pipes embedded in the Thickened Floors at the Light Well. Looking at a different photograph[54], Mr Leung said that there were old pipes underneath the Thickened Floors that should be connected with the new waste water pipe and Soil Pipe installed during the Renovation Project. However, the 1st defendant was unable to do so, as the task would require excavating the Thickened Floors at the Light Well, and they had no consent from the plaintiff to do so. Thus, they took the alternative, and connected the new pipes to the old pipes on the surface of the Thickened Floors. Mr Leung used a blue marker to highlight part of the old metal pipe which was embedded in the Thickened Floors[55]. The Defects 116.As to the Defects on the LEW, Mr Leung said that they were originally covered by the Thickened Floors at the Light Well. Photograph showed that after the Thickened Floors at the Light Well was cracked open in July 2019, there were the said old and horizontally laid pipes on the ground that were extended out from Flat 1F’s lavatory[56]. Echoing on what he said in §115 above, similar pipes should come out from the Lavatory into the Light Well via the LEW, but those pipes were removed; the holes on the bottom of LEW seen in the photograph[57] which formed part of the Defects were where these pipes used to be. 117.Mr Leung added that the Thickened Floors at the Light Well were already in existence when the Renovation Project started in 2016. Access to the Light Well 118.Mr Leung concurred with Mr Siu that there were, apart from the Drainage Improvement Works, occasions when his workers entered the Light Well to reconnect the Soil Pipe when it burst. He added that, at the material times, the Soil Pipe burst open not persistently but intermittently. 119.Coming back to this topic, Mr Leung agreed that on the occasions when his workers attended the Light Well, they never had to go through Flat 1E. The workers would simply enter from the Window; materials required for the works would also be conveyed through the Window. They did not need the consent from the plaintiff before entry; nor had the plaintiff ever blocked their access to the Light Well. The 1st defendant simply had to inform Ho Hei or the 2nd defendant about it beforehand. 120.That being so, he agreed with Ms Tse that the 1st defendant could not, without the plaintiff’s consent, excavate the Thickened Floors at the Light Well for waterproofing work. The plaintiff did not give his consent for the 1st defendant to do so until July 2019. 121.Mr Leung supplemented that, for the 1st defendant to perform the waterproofing work, entry into the Premises, including Flat 1E, would be required. However, consent from the plaintiff or Ms Chu was never given. He shared the view that, seepage of water from the Light Well to Flat 1E could have been avoided if the waterproofing work had been done. Bursting of the Soil Pipe; the cause 122.There was no quarrel that the waste coming from the waste water pipe and the Soil Pipe would end up in the manhole. Per the instructions of Ho Hei, the newly installed waste water pipe and the Soil Pipe would be connected to Manhole 1. Mr Leung disagreed with Mr Siu that the instructions came from the 2nd defendant. He provided that it was Ho Hei that gave the advice as to where the waste water pipe and the Soil Pipe should be connected. 123.He agreed with Mr Siu that, albeit the Soil Pipe served a total of 14 floors, only the section at the first floor came loose. Mr Leung confirmed his belief that blockage at Manhole 1 was the cause, with additional pressure contributed by the voluminous waste and soil flushed down from the numerous partitioned houses in the Building. 124.Mr Leung added that Manhole 1 was already blocked before commencement of the Renovation Project. This led to the Drainage Improvement Works being suggested by Ho Hei. Conceivably, installation of new Soil Pipe did not cure the problem, as Manhole 1 remained blocked. The problem was finally resolved when the Soil Pipe was connected to Manhole 2 in March 2019. 125.He was shown the 11.9.2017 Video and the 21.7.2018 Video. He agreed that whenever occupants from the units above flushed their water closets, soil water, soil and waste materials would come out from the burst Soil Pipe, discharge onto, and accumulate at the floor of the Light Well. On occasions when he and his staff had to reconnect the Soil Pipe, he would find the floor of the Light Well stocked with soil and waste materials. 126.Whenever the Soil Pipe burst, Ho Hei would inform the 1st defendant, and the Soil Pipe would be reconnected within one week. Mr Leung said that the Soil Pipe did not remain burst open for the whole period between 2016 and 2019. As aforesaid, the Soil Pipe burst intermittently, not continuously. He recalled that during the said period, the Soil Pipe burst for 2 to 3 times. H C CHEUNG’S STATEMENT 127.Mr H C Cheung was a secretary and member of the 2nd defendant. He resided at the Building between 1990 and 2012. After 2012, Mr H C Cheung retained his post with the 2nd defendant, and was even their contact person for Ho Hei during the Renovation Project. The Partitions and the Unauthorised Alterations 128.His narratives started with the plaintiff’s acquisition of the Premises. Mr H C Cheung pointed to the existence of foul water leaking from the pipes on the left side of the main door prior to the acquisition, and the plaintiff’s awareness of the stench coming from it. Moreover, there were building orders imposed on the Premises by the Building Authority, presumably proving existence of the Partitions and Unauthorised Alterations. These problems were recorded in an annexure to the sale and purchase agreement signed between the previous owner and the plaintiff on 6 July 2015 (the “Annexure”)[58]. They had also led to the Premises being sold to the plaintiff at a below market value of HK$2,000,000.00, and a subsidy of HK$350,000.00 being paid by the previous owner for the reinstatement as required by the building orders. Mr H C Cheung added that the plaintiff did reinstate the Premises after acquisition of the same. The Balcony 129.In respect of the Balcony, Mr H C Cheung said that there was only one complaint received from the plaintiff in October 2016, according to the records. In it, the plaintiff complained of the construction debris dropping into the Balcony from the scaffold. This had been rectified when Ho Hei sent its staff to remove the debris. Bursting ofthe Soil Pipe; seepage of soil water 130.Again, referring to the records, Mr H C Cheung said that there was a second complaint received in October 2016, which related to the alleged water seepage into Flat 1E via the external walls. Staff was sent by Ho Hei to the Premises for the Initial Visit[59]. As aforementioned, subsequent requests from Ho Hei to conduct further inspection and rectification of the problems were ignored by the plaintiff or Ms Chu. 131.The next complaint came in mid-November 2017. It was alleged that there was leakage at the Light Well. However, Ho Hei was once again unable to contact the plaintiff, hence, no inspection of the Premises could be arranged. That being so, Ho Hei did send its staff to take photographs of the exterior of the Premises[60]. Ho Hei also issued a letter to the 1st defendant on 14 November 2017, instructing the latter to follow up on the matter. 132.Mr H C Cheung concluded his statement refuting on what the plaintiff alleged, as they were contrary to his records and recollections. Moreover, he pointed to the plaintiff having full apprehension of the water seepage and foul smell prior to his acquisition of the Premises. MS LAW’S EVIDENCE Her evidence-in-chief 133.At trial, Ms Law adopted the remaining contents of her witness statement as her evidence-in-chief[61]. 134.Ms Law was an owner and occupant of a flat in the Building for over 20 years. She had been a member and treasurer of the 2nd defendant for over 10 years. The Partitions and Unauthorised Alterations 135.Ms Law first brought us to the state of the Premises prior to 31 July 2015, when the plaintiff purchased it. She said, based on her recollection and understanding, the previous owner partitioned the Premises into 3 subdivided houses and rented them out, with each subdivided house having its own lavatory. It was therefore expected that the pipes that served the Premises were altered for such purpose. 136.She explained that her said recollection and understanding came from the complaints received from the other occupants on the 1st Floor of the Building. The complaints concerned repeated seepage of soil water from Flat 1E into the common corridor, made happen by the blockage of soil pipes installed inside the Premises. As the previous owner resided overseas, his estate agent would often attend the Premises to, apart from collecting rent, handle the said problems. 137.Ms Law recalled that, after acquisition of the Premises, the plaintiff had made minor rectification of the Partitions and Unauthorised Alterations; the 3 subdivided houses were demolished, reinstating Flat 1E to its original state of a single-unit flat. 138.She then jumped to what she heard from workers whom renovated the Premises in July 2019. She was sent by the 2nd defendant to observe the renovation, as the present action was already commenced at that time. As said, she gathered from the renovation workers that substantial alterations had been made to the pipes inside Flat 1E, and a mess of the connections of pipes embedded inside the walls. The workers also found that there was leakage from a pipe underneath the bathtub, causing accumulation of water thereat. They opined that the leakage had persisted for some times. 139.Other than the above, Ms Law recounted that the workers found a pipe which led directly from Flat 1E to the Light Well, and this had caused continuous water leakage at the Light Well. 140.Furthermore, another rusty old pipe was unearthed from the Thickened Floors at the Balcony, with water still flowing out from it. 141.Ms Law opined that any seepage at and from Flat 1E came from these pipes. The Renovation Project 142.Ms Law followed up with the background and reasons leading up to the need and decision to have the Renovation Project, and the eventual hiring of Ho Hei and the 1st defendant. She supplemented that the Renovation Project started on 28 July 2016 and ended on 28 September 2018. Unsealed Soil Pipe; seepage of soil water 143.She had nothing to say about the plaintiff’s claim based on the scaffold erected in the Balcony. 144.Ms Law felt amazed by the plaintiff’s assertions under this head, highlighting his inaction for over a year amid the alleged discharge of soil water onto, and accumulated at the Light Well. She accepted that there could be foul smell emanating from the Light Well when the pipes were replaced during the Drainage Improvement Work, but it should not have persisted for a lengthy period as alleged by the plaintiff. Her evidence under cross-examination 145.As one could see from the records of what she said under cross-examination, Ms Law’s evidence is more probative to the plaintiff than the 2nd defendant. Moreover, she does not have much information and knowledge of the events that founded the plaintiff’s claim. However, what Ms Law could illustrate via her evidence is how disarray the 2nd defendant and its management committee was in handling complaints of the Building’s occupants. Modus operandi of the 2nd defendant 146.Under the guidance of Mr Siu, Ms Law briefed the court on the structure of the 2nd defendant, and how complaints were handled. She introduced the management committee (the “MC”), which worked under the 2nd defendant, and was tasked with the management of the Building. No management company was hired for this purpose. The 2nd defendant directly employed 3 staff, i.e., 2 security guards and a cleaner. However, she emphasised that the cleaner was an independent contractor, whom would render his cleaning service to other buildings as well. The cleaner’s primary duty was to remove the garbage; he would clean the common corridors perhaps once a week. 147.She confirmed that neither the 2nd defendant nor the MC had an office. When an occupant wished to communicate with them, he/she would have to contact either Mr Tam, the chairperson, or a member of the MC. Where the purpose of communication was to lodge a complaint, the first point of contact would be the security guard. The security post was located at the entrance of the Building. The security guard would record down the complaint in the OB, and would pass the same to the members of the MC. Depending on the nature of the complaint, for example, in cases involving water seepage, the security guard might attend the unit of the occupant for inspection and take photographs. 148.Instead of waiting for the security guards to relay the complaints to them, members of the MC could also check the OB every now and then. 149.Turning to her narratives that there were episodes of water seepage from Flat 1E before it was purchased by the plaintiff, Ms Law reiterated that there were complaints about these from the other occupants of the 1st Floor of the Building. She added that she had attended Flat 1E with a security guard after the complaints were received, and witnessed soil water flowing from Flat 1E into the common corridor. 150.She agreed that these episodes of water seepage should have been recorded in the OB; equally, photographs should have been taken. However, none of these was disclosed in this action. Ms Law blamed it on the security guards, saying that sometimes they would not do their job properly, hence, there was no record of these complaints in the OB. I asked Ms Law how she knew that these complaints were not recorded in the OB, and she replied that she could be wrong on this. When Mr Siu highlighted to her that she had not included in her witness statement what she had allegedly witnessed[62], Ms Law answered simply that she forgot to do so. The Partitions and Unauthorised Alterations 151.Ms Law agreed that there were removal and renovation works performed at the Premises after the plaintiff acquired it. She supplemented that the Premises was returned to 2 rooms and one living room setting afterwards. Access to the Light Well 152.After a series of questions, Ms Law ultimately agreed that cleaner of the Building, and staff of the 1st defendant, could gain access to the Light Well without entering Flat 1E. 153.Ms Law explained that, for the cleaner, he could obtain keys to open a door located near Flat 1A. Via such door, the cleaner would first enter a big balcony, which belonged to the petrol station situated underneath the big balcony. The cleaner would have to clear away any rubbish dropped onto the big balcony. And through the big balcony, the cleaner could reach the Canopy, and walked along it to the Light Well. However, she added that she had never saw the cleaner walking on the Canopy, and she considered doing so to be dangerous. Ms Law opined that the cleaner could also enter the Light Well through the Window. 154.Ms Law explained that the cleaner was instructed to clean the Light Well once per week prior to the commencement of the Renovation Project. They maintained the same frequency after the Renovation Works started, despite the amount of debris deposited onto the Light Well increased during its subsistence. She shared that the 2nd defendant had started instructing the cleaner to clear the Light Well from soil and soil water in 2018; however, she was unsure as to the frequency of such exercise. Ms Law repeated that the cleaner was an independent contractor, thus it was uncertain whether he had complied with their requests. 155.Aside from soil and soil water, Ms Law said that the cleaner was also told to clear the Light Well from debris deposited by occupants living at the units above, and additional garbage caused by the Renovation Project. When asked, she said that the 2nd defendant did post up notices at the lobby of the Building, warning occupants of the Building to refrain from throwing garbage onto the Canopy and the Light Well; alas, none of these notices was disclosed in this case. 156.Ms Law confirmed that during the Drainage Improvement Works, staff of the 1st defendant and Ho Hei would have to perform tasks at the Light Well, since the waste water pipes and the Soil Pipe were located there. She agreed that these pipes were replaced as part of the Drainage Improvement Works. She had no knowledge as to whether the plaintiff had ever forbidden these workers from entering into the Light Well to perform their tasks; using her own words, she did not know, was unsure, and could not recall, whether the 1st defendant, 2nd defendant, or Ho Hei, had ever requested to enter the Premises and were rejected by the plaintiff. What she had said in her witness statement on this topic was what she had heard from others[63]. Bursting of the Soil Pipe; seepage of soil water 157.Ms Law admitted that she had no personal knowledge about these incidents. She agreed that Mr Tam, as the chairperson of the 2nd defendant, and having perhaps received complaint letters from the plaintiff, should have better knowledge of the matters under this head. Similarly, representatives from Ho Hei, for example, Mr But, would have direct knowledge of these incidents, including the allegations that they had tried gaining access into the Premises and were rejected by the plaintiff. Unfortunately, Mr Tam was too busy to give evidence for this case, and Mr But had refused to be a witness for the 2nd defendant. 158.According to her understanding, the Soil Pipe only burst once during the Renovation Project, and the 1st defendant was instructed to reconnect it. She had no knowledge about Manhole 1 being blocked. Ms Law acknowledged that the contract for the Renovation Project included the quotation issued by the 1st defendant, and in such quotation, one of the tasks was for the 1st defendant to inspect the manholes serving the Building, and to unclog them where necessary[64]. And the 1st defendant did perform such task on 2 August 2018, and compiled a report on it[65] (the “CCTV Report”). However, she had never read them, even though she was the treasurer. Ms Law said all renovation related matters were handled by Mr H C Cheung. 159.That being so, Ms Law agreed with Mr Leung that he had reported on the blockage of Manhole 1, and proposed to have the waste water pipe and the Soil Pipe connected to another manhole. She had vague recollection that the 2nd defendant instructed another contractor (i.e., Wei Kee) to perform the task, and after those pipes were connected to Manhole 2, the problem was rectified. 160.Against the pleaded cases of the 1st and 2nd defendants, and what was said in her witness statement[66], Ms Law denied the 2nd defendant had ever received a certificate of completion from Ho Hei. She also rejected the suggestion that the Renovation Project was completed on 28 September 2018. Again, Ms Law emphasised that all matters were handled by Mr H C Cheung. That being so, when confronted with the certificate of completion issued by Ho Hei to the 1st defendant, and copied to the 2nd defendant[67], Ms Law said she had no knowledge of it. EXPERTS’ EVIDENCE 161.Having set out the evidence from factual witnesses, I will now turn to the evidence from the experts instructed by the plaintiff and the 2nd defendant. As I have indicated in §78(17) of this Judgment, Ms Lau was the expert for the plaintiff. As to the 2nd defendant, their expert was Mr Simon Cheung Wai Sum (“Mr S Cheung”). Their joint expert report on liabilities and quantum was filed on 6 January 2021 (“JER”), based on their inspection of the Premises on 23 October 2020. Expertise and qualifications of Ms Lau and Mr S Cheung are not disputed by the parties. 162.There is no dispute that discharge of soil water and waste materials at the Light Well, and the alleged seepage of soil water into Flat 1E, had stopped at the time of the inspection. The Soil Pipe was connected, and there was no Thickened Floors at the Light Well. The Defects on the LEW were rectified. Thus, albeit they had inspected the Premises on 23 October 2020, their views and opinions were primarily founded on the photographs and documents provided by the parties. 163.Central to their opinions is the cause of soil water discharged at the Light Well, and seepage of soil water into Flat 1E, between October 2016 and March 2019. However, Mr S Cheung confessed at trial that his opinions on these topics in the JER concerned with the period before September 2015. Relevance of his opinions is thus questionable, if not completely ignorable for most of them. 1(a) Whether the Partitions and Unauthorised Alterations had been carried out in the Premises since 31 July 2015 164.This is the first issue that the experts were required to deal with under the order dated 11 September 2020 (the “Expert Directions”). They differed on their opinions given under this head. In short, Ms Lau found that there was no Partitions and Unauthorised Alterations inside the Premises after 31 July 2015. 165.Tallying with what I have said in §163 above, Mr S Cheung had given much information to support his view that they existed before 31 July 2015. Clearly, Mr S Cheung’s opinions are off the topic. Come what may, based on §2 of the Amended Defences of the 1st and 2nd defendants, they are no longer alleging that there were Partitions in the Premises after 31 July 2015. At trial, Ms Tse confirmed that this was no longer an issue taken by the 2nd defendant. As agreed by Ms Tse, the question should be whether the Unauthorised Alterations installed before that day remained in the Premises. 1(b) If yes to the above, whether or not such alleged Unauthorised Alterations to the pipes and drains of the Premises, since about October 2016 caused or possibly caused any alleged discharge and accumulation of soil and/or waste water and/or materials in the Light Well and affected the Premises as alleged in §24 of the RASOC 166.Even if any of the Unauthorised Alterations remained in the Premises, both experts agreed that they were not the cause for the alleged discharge and accumulation of soil and/or waste water and/or materials in the Light Well. 1(c)(i) Whether, as alleged in §34.4 of the Amended Defence of the 1st defendant and §35A.2 of the Amended Defence of the 2nd defendant, in or around July 2019, there were Thickened Floors at the Balcony and the Light Well, and the finishes of which covered the surface channel connecting the rainwater pipe fixed on the external wall 167.Both experts agreed that there were Thickened Floors at the Balcony, but differed on their opinions as to whether the same existed at the Light Well. 168.Regarding the Light Well, Ms Lau found support from the photographs[68] which showed that there were no floor tiles on the floor of the Light Well; hence, in her opinion, there was no Thickened Floors at the Light Well. At trial, Ms Lau added that she did not notice there were Thickened Floors at the Light Well both on 31 December 2018 when she inspected the Premises for compiling Lau’s Report, and in 2020. 169.Ms Lau was cross-examined on her answer above, being shown a photograph included in Lau’s Report and taken on 22 October 2016[69]. From this photograph, one could see that a corner of the Light Well’s floor was covered with tiles. Ms Tse suggested that, based on Ms Lau’s reasoning, the presence of tiles should mean that the Thickened Floors were there at the time. Ms Lau answered that she could not be sure about this. In any event, she founded her comments in Lau’s Report on what she observed in December 2018. 170.For Mr S Cheung, he devoted much effort in explaining the purpose of the Thickened Floors at the Balcony, but had little to say about the Thickened Floors at the Light Well. At trial, a photograph taken on 2 September 2015 depicting the floor at the Light Well being broken open was shown to him. Mr S Cheung agreed that the Thickened Floors at the Light Well should have been removed by then, and there was no information showing that the floor thereat was thickened again after 2 September 2015[70]. 171.In light of this, it seems that both experts are now in consensus that there was no Thickened Floors at the Light Well on the date of their inspection. Moreover, the Thickened Floors at the Light Well, according to Mr S Cheung, could have been removed in September 2015. 1(c)(ii) Whether, as alleged in §34.4 of the Amended Defence of the 1st defendant and §35A.2 of the Amended Defence of the 2nd defendant, in or around July 2019, there were Thickened Floors at the Balcony and the Light Well, and there was no cleaning eye on the Thickened Floors allowing regular inspection and maintenance of the concealed drainage pipes under the Thickened Floors 172.In terms of the Light Well, this has become a non-issue based on Mr S Cheung’s acknowledgement at the trial that the Thickened Floors had been removed in 2015. 1(c)(iii) Whether, as alleged in §34.4 of the Amended Defence of the 1st defendant and §35A.2 of the Amended Defence of the 2nd defendant, in or around July 2019, there were Thickened Floors at the Balcony and the Light Well, and there was inappropriate use of plastic pipes under the Thickened Floors 173.Ms Lau found there was neither evidence to show what material the pipe was made of, nor was there evidence to show that there was inappropriate use of plastic pipes under the Thickened Floors. 174.Conversely, Mr S Cheung’s opinions focused on the undesirability to use any plastic pipe for covered drain or covered sewage, in accordance with the law[71], without clearly pointing to the use of plastic pipe underneath the Thickened Floors in about July 2019. He was invited to clarify his views at trial, and he did so by reference to a photograph taken on 2 September 2015, which showed a plastic (or PVC as described on the photograph) soil pipe was embedded below the Thickened Floors at the Light Well[72]. Using another photograph[73], Mr S Cheung opined that the plastic pipe should have been removed in 2015, thus it was not a cause for the seepage or backflow thereafter. When asked by Mr Siu, Mr S Cheung gave the same conclusion. 175.Again, this has become a non-issue based on Mr S Cheung’s testimony. 1(c)(iv) Whether, as alleged in §34.4 of the Amended Defence of the 1st defendant and §35A.2 of the Amended Defence of the 2nd defendant, in or around July 2019, there were Thickened Floors at the Balcony and the Light Well, and the cast iron horizontal soil pipe extended from the originally approved water closet was not sealed up or removed after the Unauthorised Alterations 176.Mr S Cheung, relying on the same photographs taken in 2015[74], confirmed the existence of the cast iron horizontal soil pipe, and that it was not removed or sealed up. 177.Ms Lau’s opinion on this was simply that there was no evidence to show there was the said cast iron soil pipe in July 2019, or it was unsealed after the Unauthorised Alterations. She also pointed to the photographs provided by the plaintiff only revealed the conditions of the Light Well and the pipes installed thereat between July and September 2015, at a time when the Premises, including the Light Well, was undergoing renovation. 1(d) If the answers to 1(c) were yes, whether the features described and/or measures adopted therein since about October 2016 caused or possibly caused any alleged discharge and accumulation of soil and/or waste water and/or materials in the Light Well and affected the Premises as alleged in §24 of the RASOC 178.Based on the above, the answers to the questions under 1(c) are in the negative. There is strictly speaking no need for the experts to give their views under this head. 179.Come what may, Mr S Cheung confessed at trial that his views on this in the JER stemmed from the opinions he gave regarding the wrongful use of plastic pipes beneath the Thickened Floors at the Light Well. Considering his testimonies that the Thickened Floors and plastic pipes had been removed in about September 2015, Mr S Cheung agreed that his views under this head is redundant. 1(e) Whether or not the Soil Pipes as defined in §4 of the RASOC, if remained unsealed between about October 2016 to about March 2019, had caused or possibly caused any alleged discharge and accumulation of soil and/or waste water and/or materials in the Light Well and affected the Premises as alleged in §24 of the RASOC 180.This question is built on the assumption that the Soil Pipe remained burst opened throughout the whole period between October 2016 and March 2019. At trial, Ms Tse cross-examined Ms Lau extensively on how she came to such conclusion, when Ms Lau actually gave no such conclusion at all. This is an issue to be resolved by the court. 181.Both experts concurred that the Soil Pipe had caused discharge and accumulation of soil and/or waste water and/or materials and blockage of the sewage drain in the Light Well. Mr S Cheung added that the Thickened Floors could be a contributing factor to the blockage of drainage pipes. Again, in light of his testimony that the Thickened Floors at the Light Well should have been removed in September 2015, such view of his no longer warranted attention. 1(f) Whether the LEW as defined in §4 of the RASOC contained the Defects since about 31 July 2015 182.Ms Lau answered this question in the affirmative, relying on the photographs[75] and assertions of the plaintiff that the Defects were found in July 2019. She also cited a report prepared by Ho Hei dated 17 September 2014 (“17.9.2014 Report”), where it was stated under section 8 at page 10 of the same that cracks were found on the flat roofs, surfaces of the balconies and the top of the water tanks on the 1st Floor of the Building[76]. 183.Mr S Cheung did not consider the holes and the cracks under the Defects as true defects in accordance with the glossary terms of building survey. Instead, he said that the cracks as seen in the photographs were trenches deliberately created on the surface of the LEW for the purpose of embedding or housing the potable or flushing water pipes. As to the holes, he said there was a seriously rusted pipe profile left inside the LEW or the internal walls of the Lavatory, which the plaintiff’s contractor had failed to remove after relocation of the original lavatory and kitchen[77]. 1(g) Whether or not such soil and/or waste water allegedly accumulated in the Light Well had seeped or possibly seeped through the Defects into Flat 1E causing alleged damages to Flat 1E since about 2016 184.Both experts agreed that soil water could seep through the Defects, especially the holes, into Flat 1E. 185.Ms Lau added that it would also be possible for soil water to seep through the LEW above the Defects, if the soil and waste material indeed piled up to a height of 40 to 50 cm as alleged by the plaintiff, since the height of the waterproofing layer of the Light Well should be 30.48 cm in general. The accumulated soil and/or waste materials would bring the soil water above the waterproofing layer on the LEW, and possibly seeped through it into Flat 1E. 186.Ms Tse brought Ms Lau back to December 2018, when she conducted inspection of the Premises for Lau’s Report. Ms Lau confirmed that she did not check the LEW for the Defects, nor did she check whether there were abandoned pipes embedded in the LEW. However, she accepted that pipes left abandoned inside the LEW could bring the soil water accumulated at the Light Well into the Premises. Ms Lau reiterated that she could not, based on the photographs available and shown to her, conclude that there were indeed rusty metal pipes inside the holes. 187.At trial, Mr S Cheung estimated that the holes on the LEW was about 30 cm above the floor of the Light Well (with the Thickened Floors removed). Based on the photographs, he repeated his observation under §183 above that there could be rusty metal pipes inside the holes. The uncovered holes created tunnels for soil water to travel from the Light Well to the Lavatory. 188.With the help of a photograph, Mr S Cheung said that the holes used to be covered by the Thickened Floors. The photograph showed that the LEW was in yellow colour, but the bottom part of it was in grey. The line dividing the 2 colours was where the surface of the Thickened Floors used to be. The Defects, seen on the grey colour section of the LEW, were thus covered by the Thickened Floors[78]. 189.That being so, he opined the soil water could penetrate the Thickened Floors, and travel towards the Defects. The soil water could then, via the holes, seep into the Lavatory and continued to spread to other areas of Flat 1E. 190.Question was asked by Mr Siu as to the cause of the Defects, in particular the holes. Three possibilities were offered for Mr S Cheung to choose from, namely: (1) they were present since the Building existed; (2) they were created when the Unauthorised Alterations were installed; or (3) they were created when the Unauthorised Alterations were removed. I had added the fourth possibility, i.e., the holes were created when the Thickened Floors at the Light Well were removed. Amongst these, Mr S Cheung opted for the second possibility, as the holes and trenches on the LEW were deliberately for the purposes as explained in §183 above. As to the fourth possibility, he opined that the removal of the Thickened Floors would at most scrapped away the surface of the LEW. Holes would not be created by accident when performing such task. He also did not see the need to create the holes and the trenches in order to remove the Thickened Floors. 191.Mr Siu ended his cross-examination of Mr S Cheung with questions on the removal of Unauthorised Alterations from the Premises in 2015. Reference was made to the building order dated 11 April 2013[79], which stated that the drainage in the Premises was inappropriately installed. The owner was required to inspect, repair and/or replace the same. Mr S Cheung agreed that for the Building Authority to issue a letter of compliance, they needed to be satisfied that the problems were indeed rectified. For this purpose, the Building Authority would send their representatives to the Premises to ensure that the requirements under the building order had indeed been complied with. DISCUSSIONS ON LIABILITY Observations: witnesses’ evidence 192.In the sections below, I will provide my analysis on the Issues. But before doing so, I have a few observations about the evidence before me. 193.To start with, notwithstanding Mr Siu’s bravery in saluting plaintiff’s credibility, helpfulness, great memory of the matters, sensibility of his evidence, I hold an entirely different view. First, I am confused as to when Ms Chu moved out from the Premises. The RASOC pleaded that she exited in May 2017, but the plaintiff at the trial repeatedly said Ms Chu left at the start of February 2017. For this, he had to spend much time and effort in explaining how the Code Lock would work so as to put right how Ms Chu could pass him the keys before his return to Hong Kong on 20 May 2017, and how her departure would not disturb the 1st and 2nd defendants from sending their staff to the Premises. His latest version not only does not sit well with his pleaded case, it also contradicts Ms Chu’s allegation that she had moved out only in September 2017, according to Chu’s Termination Letters. Furthermore, there is doubt as to whether Ms Chu, if she really did, turned off all the water supplies to the Premises in May 2017 according to the plaintiff (see §78(20) above), or in February 2017. Baffling also is why Ms Chu would inform the plaintiff about soil water seeping into Flat 1E in May 2017 which led to his return to Hong Kong (see §27 of this Judgment) if she had moved out in February 2017. Conversely, his explanation in §91 above was that it was the security guard whom informed him about the incident controverted what he has pleaded[80]. 194.Echoing on what I have said in §80 above, the plaintiff has demonstrated throughout the trial that he is not a forthcoming witness. On numerous occasions, he had refused to give direct answers to simple questions asked during cross-examination, and when he did, his responses had no connection with the questions. He is as evasive as it comes being a witness. To amplify on this, information about his sale of the Premises on 28 January 2022, which has a direct bearing on the claims of renovation and repair costs that have yet been incurred, was not voluntarily revealed. He provided no explanation on such non-disclosure, and when asked, he readily and immediately shifted focus on how he should be entitled to claim for the difference in the sale price. If it had not been the 2nd defendant’s effort in conducting an updated land search of the Premises, the Court would be left in the dark, and damages could have been undeservedly awarded to the plaintiff. 195.The plaintiff was clearly lying through his teeth, when his denial of there being the Initial Visit was contradicted by the photographs he had disclosed (see §99 of this Judgment). Equally appalling is his attempt to disclaim his own documentary evidence. 196.Moreover, I agree with Ms Tse that the plaintiff had constantly added narratives during cross-examination, that should have been pleaded, or at the very least included in P’s 1st to 3rd Statements. For example, it was never pleaded or expressed in P’s 1st to 3rd Statements that Ms Chu had made verbal complaints of the burst Soil Pipe almost every day to him and the security guard, and that the Canopy could be used to gain access into the Light Well. Equally, not a single word was uttered about the Code Lock being used at the entrance of Flat 1E, and the security guard of the Building having the code to open it, and could use the keys stored therein to open the door. These are, if true, facts and evidence that should have been pleaded in the Reply and stated in P’s 1st to 3rd Statements, knowing the 1st and 2nd defendants’ assertions that they could not gain access into the Premises after the Initial Visit. Mr Siu’s complaints that these new evidences were added because of the plaintiff was being cross-examined, for the reasons I have given, have no substance. 197.I also find his clarification as to why the Code Lock was used illogical and self-contradictory. There is no indication that the plaintiff would come back to Hong Kong in February 2017 or any time soon. I do not understand why, being a teacher[81], Ms Chu would be on vacation in February 2017[82]. Assuming this was true, it is plaintiff’s testimony at trial that she had moved out of the Premises for good in February 2017, hence, whether she was on vacation or not is irrelevant. Of course, these narratives are also mutually exclusive. On the other hand, if she had only moved out in May 2017 (per the plaintiff’s pleaded case), there was no reason for Ms Chu to use the Code Lock in order to pass the keys to the plaintiff, since he would be back in Hong Kong on 20 May 2017. Nothing is said as to why Ms Chu could not instruct her solicitors to pass the keys to the plaintiff. In any event, the plaintiff said the security guard was deliberately given the code to the Code Lock, and could use the keys to gain access into the Premises. Supposing that this was true, Ms Chu could simply leave the keys to the security guard for safekeeping until the plaintiff’s return, and for the security guard to use the same to enter the Premises for inspection and repair when necessary. It is mindboggling that the plaintiff, Ms Chu, and the security guard of the Building, had adopted such an inconvenient method to achieve the purpose. 198.Of course, he had also conveniently and belatedly added at trial that it was Mr H C Cheung whom represented to him and Ms Chu as to the time when the scaffold would be removed. With the passing of Mr H C Cheung, such allegation could not be verified. It begs the question why such allegation have not been pleaded. Existence of the scaffold preceded the Tenancy Agreement, and this should never have escaped the attention of the author of RASOC. Reasons for Ms Chu to sign the Tenancy Agreement notwithstanding the scaffold at the Balcony should have been pleaded, and elaborated in P’s 1st to 3rd Statements, so that they could have been answered by the 2nd defendant and Mr H C Cheung in his witness statement. 199.The excuse the plaintiff gave, i.e., advice from his counsel that he should not keep adding new information, disagree with the fact that the statement of claim has been twice amended, and 3 witness statements have been filed. 200.My discussions below would also show that the plaintiff was susceptible to exaggeration in his evidence. 201.As to the evidence from Mr Leung, or more accurately the insufficiency of it, I have already spoken about it in the above. I cannot resist but think how he could have given the Court (and even the experts) much needed and helpful information about the condition of the Light Well at the material times. I find the limited evidence he gave via cross-examination are clear and useful. 202.Regarding H C Cheung’s Statement, albeit I ruled it admissible, I am unable to derive much assistance from the same. Mr H C Cheung’s narratives were founded on his recollections and records. The former could not be tested at trial via cross-examination; the latter was not assisted with clear reference as to what records he was relying on. Information about the Partitions and Unauthorised Alterations prior to the acquisition of the Premises is no longer an issue in this case. His accounts on the Remedial Measures and what happened after the Initial Visit are at best hearsay evidence. There is no indication that he had attended the Balcony to witness performance of the Remedial Measures, or attended afterward to confirm that they were indeed performed. Mr H C Cheung also said nothing as to his personal involvement in contacting the plaintiff or Ms Chu for their consents to enter the Premises after the Initial Visit. Simply put, what he stated could not fill the voids caused by the lack of direct evidence from the 1st and 2nd defendants on these topics. Furthermore, as one can see in the discussions below, his description of the plaintiff’s complaint in November 2017 contradicts with the documentary evidence. For these reasons, I place no weight on the contents of H C Cheung’s Statement. 203.Ms Tse, in her closing submissions, suggested that the Court should not place much weight on Ms Law’s evidence regarding bursting of the Soil Pipe. I have no quarrel with this. Ms Law has successfully demonstrated that she was not abreast of the factual disputes on this topic. I also repeat my comments in §145 about her evidence under cross-examination. I do not find her evidence to be helpful to the 2nd defendant at all. Ironically, as I have indicated in the above, her testimonies are helpful to the plaintiff instead. For example, she admitted that as early as in June 2015, the 2nd defendant was already informed of and received quotation for the need to clear Manhole 1[83]. She also confirmed that Ho Hei carried out the inspection of Manhole 1 in August 2018[84], and discussed the blockage of the same during the meeting on 28 September 2018[85]. Finally, Ms Law’s answer also revealed the passive attitude taken by the 2nd defendant in handling the bursting of the Soil Pipe since October 2016. Instead of actively looking for the cure, they would simply repair the Soil Pipe whenever it burst. 204.Mr Siu in his closing submissions spent much effort in persuading the Court to draw adverse inference against the 2nd defendant for not adducing evidence from Mr Tam and Mr But. With no disrespect, I do not find it necessary to do so. The 2nd defendant’s case is already feeble. 205.Turning now to the experts’ evidence, they were accounts and opinions from hindsight on what happened between 2016 and 2019. Ms Lau and Mr S Cheung could only render their service to the Court based on the information and photographs from the parties, since by the time of their joint inspection, all problems had been rectified. I must also say, clearly from my summary on what Mr S Cheung had testified, his opinions in the JER were off the questions he was directed to answer; his testimonies at trial were destructive to the 1st and 2nd defendants’ case, especially concerning the existence of the Thickened Floors and plastic pipes embedded in the Thickened Floors at the Light Well. 206.Overall, I find it hard to place full and unreserved reliance on anything that the witnesses had said in their statements and testimonies. In the discussions below, I have therefore primarily relied on the contemporaneous documents to come to my findings. The Balcony: Issues 1 to 5 207.Due to the lack of contradictory evidence from the 1st defendant, Issues 1 to 5 can be dealt with swiftly. 208.I have no doubt that the scaffold was erected in the Balcony (Issue 1), and debris were dumped and accumulated on it (Issue 2); these are supported by the photographs adduced by the plaintiff (see §78(2) above). The question is whether the Remedial Measures had been taken by the 1st defendant in around October 2016. In this respect, the photographs revealed that, by 22 October 2016 and 24 October 2016 (during the Initial Visit; see §99 above), there was still no Remedial Measures taken. 209.The available evidence showed that there was no performance of the Remedial Measures. First, Chu’s Termination Letters support that the scaffold could have remained erected in, and debris could have continued to be dumped and accumulated at, the Balcony, as at the date when the first letter was written (i.e., the first letter was dated 21 July 2017). If the Remedial Measures had been taken in late October 2016 as alleged, she would have no ground to seek termination of the Tenancy Agreement. Moreover, the plaintiff could have used the Remedial Measures to reject such request for premature termination, or, consistent with the argumentative character he has demonstrated at trial, at least for the plaintiff to rely on them to rebut what she said in Chu’s Termination Letters. Apparently, he never did. 210.Second, the plaintiff’s complaint coincides with: (1) the notice dated 29 July 2017, stating that the scaffolds around the Building would be taken down between 7 and 14 September 2017; and (2) the handwritten acknowledgement dated 8 November 2017 from a renovator that HK1,500.00 had been received for cleaning the Balcony after removal of the scaffold, as one could see from the photograph taken on 9 November 2017 (see §§78(2) and 78(5) above). 211.On these bases, coupled with the lack of evidence-substantiated refutation from the 1st defendant, I am of the view that the plaintiff should succeed in establishing his case under Issues 1 to 3. The very foundation that the 1st defendant relies on to deny liability under this head (i.e., the Remedial Measures) has crumbled. It follows that the plaintiff’s claims on negligence (per the particulars enumerated in §40 of the RASOC) and nuisance against the 1st defendant are established. 212.I find the answers to Issues 1 to 5 are in the affirmative. Issues 6 and 8: Spillage of soil water or rain water? Whether there were accumulation of soil and waste materials at the Light Well? 213.I will deal with these Issues as a group and with priority. 214.Although both the 1st and 2nd defendants pleaded that the discharge came from the RW Pipe (see §53 above), I have no hesitation in finding instead there was discharge of soil water, soil and waste materials, and accumulation of the same, at the Light Well, after perusing the following documents:-
215.I shall add that neither the 1st defendant nor the 2nd defendant has adduced any evidence to support their pleaded case (i.e., spillage of rainwater from the RW Pipe) in this regard. Issues 9A to 9C Issue 9B: was the spillage and accumulation of soil water, soil and waste materials caused by the new pipe installed by the 1st defendant under the Drainage Improvement Work unable to be connected to the pipes inside the Premises? 216.Regarding Issue 9B, the burden is on the 1st and 2nd defendants to prove that the discharge and accumulation of soil water, soil and waste materials was due to the new pipe installed by the 1st defendant under the Drainage Improvement Work could not be connected with the pipes inside the Premises. Unfortunately, they have again adduced no evidence in support of such allegation, save for Mr Leung’s submissions on this, which cannot be accepted as evidence by the Court. The experts were also not directed to give their opinions on this matter. In the circumstances, my answer to Issue 9B is no. 217.I have also given thoughts on whether, if the pipes inside Flat 1E were not connected to the newly installed Soil Pipe, it could lead to backflow of soil water flushed away from the water closet inside the Lavatory. However, there is no clear assertion from the 1st and 2nd defendants that this was the case. Come what may, the available evidence pointed to the Premises being unoccupied most of the times (save, according to the plaintiff, there were unspecified short periods when he or his friends had resided there) between 31 July 2015 and December 2016, when Ms Chu moved into it; and after the Premises was not in use at all after February or May 2017 when Ms Chu moved out from it. Soil water found at Flat 1E during these periods, if any, was unlikely to be due to the usage of the Lavatory. On this topic, see my analysis on Issue 7 below. Issue 9C: was the spillage and accumulation of soil water, soil and waste materials caused by the Unauthorised Alterations? 218.As to Issue 9C, the 2nd defendant has long conceded, and both experts have agreed, that the Unauthorised Alterations were removed in 2015. Together with the fact that letters of compliance were issued by the Building Authority, confirming the Partitions and Unauthorised Alterations had been removed (and fortified by the explanation given by Mr S Cheung in §191 of this Judgment), it is a forgone conclusion that they could not have caused the discharge and accumulation of soil water, soil and waste materials at the Light Well. 219.Pausing here, I wish to point out that the building orders, the Satisfaction Letter, and Letter of Withdrawal, all referred to in P’s 2nd Statement (see §78(1) above), concerned illegal structures at the Balcony. The correct building orders and letter of compliance could be found at pages 712 to 720 of the Trial Bundle. Of note is that the letter of compliance disclosed only covers the removal of the Unauthorised Alterations. That being so, one could see from the land search that the building order for removal of the Partitions was also complied with. Issue 9C: was the spillage and accumulation of soil water, soil and waste materials caused by the Thickened Floors? 220.The remaining question left to be answered under this head is, whether the discharge and accumulation of soil water, soil and waste materials were caused by the Thickened Floor. To do so would require discussions on various aspects of the evidence presented by the witnesses. 221.First, the discharge of soil water, soil and waste materials could not have any connection with the Thickened Floor. The photographs, 11.9.2017 Video and 21.7.2018 Video evidently showed that they came from the Soil Pipe. As the photographs could tell, the Light Well was covered with Wastes that included not only toilet papers and faeces, but also rubbishes like orange skins, lunch boxes, and construction debris including plastic straps that were used to bind the bamboo sticks of the scaffolds, wooden blanks, sections of bamboos, and etcetera. These rubbishes and construction debris would likely not be flushed down and came out of the Soil Pipe, but dumped by the occupants living in the floors above or workers working on the Renovation Project. 222.Turning to the accumulation point, conceivably, considerable volume of waste materials and soil that came out of the Soil Pipe, flushed down by occupants residing at the 13 storeys of units above the 1st Floor, could have clogged or at least partially clogged the sewage drain at the Light Well. Addition of the rubbishes and construction debris could fortify or achieve full blockage of the sewage drain. Unless they were removed regularly, and with increased frequency during the Renovation Project (and there was none, according to Ms Law), the sewage drain serving the Light Well were bound to be blocked by the Wastes. 223.I understand that both the 1st and 2nd defendants in their pleadings tried to blame the Thickened Floors, as it allegedly caused the sewage drain installed at the Light Well to be covered. I am unable to accept such proposition when neither Ms Law nor Mr H C Cheung gave evidence in support of it. Mr Leung, when being cross-examined, did not explain how the 1st defendant’s inability to connect the new waste water pipe and the Soil Pipe to the old pipes underneath the Thickened Floors at the Light Well could block the sewage drain. I also find such proposition questionable, in view of the lack of complaint between late 2015 and September 2016 that there was any accumulation of rainwater at the Light Well. One would expect that, if the sewage drain was covered by the Thickened Floors, rainwater would be trapped and stored at the Light Well, considering also that there was a 30 cm high concrete wall at the Canopy end of the Light Well (see §102 of this Judgment). However, there was no record of this happening. 224.Even if I were to take this allegation further, it is controverted by Mr S Cheung’s opinion (with the help of photographs; see §§170 and 172 above) that the Thickened Floors (and the plastic pipes) should have been removed in 2015, and he pointing to the absence of evidence that they had been rebuilt at the Light Well subsequently. 225.On the latter point, the indications that the floors at the Light Well being thickened after 2015 actually came from the plaintiff, when he testified that, during the waterproof treatment performed on the floor slabs of the Light Well on 3 August 2018 (see §85 of this Judgment). This, however, contradicts with Ms Lau’s observation on 31 December 2018 that there was no Thickened Floors at the Light Well. The plaintiff’s confession does not tell us how much the floor at the Light Well had been thickened at the material time, and whether it would block the sewage drain located thereat. Moreover, if the Thickened Floors, which caused the waste materials and soil to accumulate at the Light Well, returned only in August 2018, then the accumulation of soil and waste materials before that time becomes inexplicable. I will have more to say about the Thickened Floors at the Light Well when I deal with the issue of Defects later in this Judgment. 226.Of course, there is also the evidence of Mr Leung under cross-examination that the Thickened Floors existed at the Light Well when the waterproofing work was performed in July 2019. Nevertheless, his evidence was also unaccompanied by information as to how much the floor at the Light Well had been thickened at the material time, and whether it would block the sewage drain located thereat. 227.Based on the evidence before me, I accept that the Thickened Floors at the Light Well existed before the plaintiff acquired the Premises on 31 July 2015. The Thickened Floors were removed in about September 2015, until floors at the Light Well were thickened again in August 2018. That being so, I find that the accumulation of soil and waste materials at the Light Well had no connection to the Thickened Floors, before and after August 2018. 228.Aside from the above, I should emphasise that focusing on the cause of accumulation whilst giving less attention to the origins of discharge is putting the cart before the horse. One can see that when the discharge from the Soil Pipe stopped (in March 2019), the accumulation of soil and waste materials correspondingly ended. This came even before the 1st defendant breaking open the floor at the Light Well (and presumably removing the Thickened Floors) in July 2019. Issue 9A: was the spillage and accumulation of soil water, soil and waste materials caused by bursting of the Soil Pipe? 229.Seeing what I have said in §§214, 215 and 221 above, the answer to this question must be yes. I find that discharge of soil water, soil and waste materials was caused by the bursting of the Soil Pipe. The accumulation of soil water, soil and waste materials was caused by the sewage drain serving the Light Well being blocked; the blockage was caused by the Wastes. The blockage created a vicious circle of having more soil water, soil and waste materials, accumulated at the Light Well. Issue 7: whether the spillage was continuous? 230.This is a harder question to tackle. On the one hand, the plaintiff said that the discharge of soil, soil water and waste materials from the Soil Pipe, and seepage of soil water into Flat 1E, was uninterrupted between September 2016 and March 2019. On the other hand, the 1st and 2nd defendants refuted that the discharge was intermittent. Mr Leung deviated from the 1st defendant’s pleaded case (see §§53 to 55 and 57 above) and admitted that the Soil Pipe burst on 2 or 3 occasions (see §126 above), whereas Ms Law, maintaining the pleaded case of the 2nd defendant (see §53 to 55 and 57 above), said she was only aware of 1 such incident (see §158 above). Mr H C Cheung, however, contradicted what Ms Law said, and pointed to there being 2 complaints lodged by the plaintiff regarding seepage of water and soil water into Flat 1E, respectively in October 2016 and November 2017 (see §§130 to 131 of this Judgment). 231.I will start the exercise by saying that the 1st defendant has adduced no documentary evidence to support its case. Nor has Ms Law provided any document which showed there was only one complaint from the plaintiff. For the 2 complaints mentioned in H C Cheung’s Statement, the incident that happened in November 2017 had nothing to do with the discharge of soil water, soil and waste materials at the Light Well. The photographs taken on 14 November 2017 only showed that there were construction debris on the floor of the Light Well. Likewise, in the letter dated 14 November 2017 from Ho Hei to the 1st defendant, the latter was instructed to repair the external wall. 232.Turning now to the plaintiff’s documents, the first documented complaint is the 2.9.2016 Letter, which mentioned about water seepage at Flat 1E with water coming in from the Light Well. However, it mentioned nothing about the water being soil water. There was also no complaint of foul smell coming from the Light Well, or soil and waste materials being discharged. Although the Premises had yet been leased to Ms Chu, and the plaintiff could still be in Hong Kong at that time[86], he had however not taken any photograph showing the condition of the Light Well in September 2016. I am thus unable to accept that the spillage of soil water, soil and waste materials from the Soil Pipe had started in early September 2016. That being so, there is nothing to doubt that there was seepage of water into Flat 1E in September 2016. Equally, no further action was taken by the plaintiff between the 2.9.2016 Letter and 5 October 2016. 233.6.10.2016 Letter was the first time soil and soil water discharged at the Light Well were mentioned. The plaintiff had also complained about the stench due to the same, and the bursting of the Soil Pipe. These grievances were repeated in the 11.10.2016 Letter and 15.10.2016 Letter. Pausing here, the 2nd defendant had not, in their Amended Defence, admitted receipt of these letters, save that Ho Hei had relayed to them such grievance on 11 October 2016. Without any contradictory evidence from Mr Tam and Messrs Leung, Tang & Chua, I am ready to accept that the 6.10.2016 Letter, 11.10.2016 Letter and the 15.10.2016 Letter did exist; the 6.10.2016 Letter and 15.10.2016 Letter were sent to Mr Tam, whereas the 11.10.2016 Letter was mailed to Messrs Leung, Tang & Chua by registered post (see §78(7) above). 234.By the said letters, photographs dated 22 October 2016 capturing the condition of the Light Well[87], coupled with the Initial Visit on 24 October 2016, I find that there was discharge from the Soil Pipe in October 2016. 235.As to the Initial Visit, I note the plaintiff’s denial of the same, despite the photographs he has disclosed clearly supported its existence. I do not accept his unsubstantiated claim that the descriptions on the photographs were wrong, or his allegation that the date on them were forged (see §99 of this Judgment). 236.Complaints in October 2016 were followed by the plaintiff’s inaction. He had ceased sending letters to Mr Tam and Messrs Leung, Tang & Chua on this matter. This suggested that the Soil Pipe had been repaired. The next piece of documentary evidence comes in the form of photographs dated 25 February 2017, showing the Soil Pipe being burst opened (see §78(8) of this Judgment). So what had happened between October 2016 and February 2017? And from 25 February 2017 to May 2017? In addition, why was the bursting of the Soil Pipe on 25 February 2017 never followed up and mentioned in the plaintiff’s pleaded case or P’s 1st to 3rd Statements? 237.The available information suggest that the discharge could have ceased during those periods:-
238.Overall, I am not impressed that there was continuous discharge of soil water, soil and waste materials from November 2016 to January 2017, and from March to May 2017. I find it questionable that there was resumption of the problem in February 2017. The plaintiff has not given his narratives on this episode. 239.This brings us to the plaintiff’s return on 20 May 2017. In spite of the claim that there was soil water seepage into Flat 1E, and via its main door spread to the common corridor on the 1st Floor of the Building, such incident is not supported by photographs or letters of complaint. Conversely, the photographs adduced by the plaintiff which showed water at the common corridor were dated 20 September 2017[88]. The OB is not produced by the 2nd defendant recording such incident. The letter from FEHD to Ms Chu dated 27 September 2017 did not point to when the complaint was made, and the details of complaint, save it was simply recorded as an incident involving water seepage, with no indication that it was soil water[89]. 240.Ms Tse suggested that Ms Chu had stopped paying rent in May 2017, hence the plaintiff returned to Hong Kong. His return had nothing to do with the alleged incident. Amid his denial of such suggestion, the plaintiff recalled at trial Ms Chu did stop payment of rent in April or May 2017. This also tally with his pleaded case that Ms Chu had moved out of the Premises in May 2017, which might have warranted his return to find new tenants for the Premises. 241.Taking a holistic view based on the above, I am not persuaded that there was discharge of soil water, soil and waste materials from the Soil Pipe, or seepage of soil water into Flat 1E, in May 2017 as alleged. The lack of action from the plaintiff between 20 May 2017 and 25 August 2017 also controverted there being persistent discharge of soil water, soil and waste materials during such period. 242.The next occasion was recorded in the 26.8.2017 Letter, followed by the 11.9.2017 Video and photographs taken on 20 September 2017. There was also a report to the police on 14 September 2017[90]. The proximity of these events suggests that the Soil Pipe should have burst since late August 2017 and remained unrectified for the most part of September 2017. According to the RASOC and the plaintiff’s evidence, the Soil Pipe was repaired in October 2017, thus he had instructed a cleaner to clean the Light Well on 28 October 2017, and hired a contractor to repair the middle and upper parts of the LEW on 8 November 2017[91]. 243.Peculiarly, the plaintiff adduced photographs taken on 7 November 2017 that showed some waste materials hung on the other pipes located at the Light Well. The purpose of these photographs is unknown, as he had made no accusation that there was still discharge of soil water, soil and waste on that day. Conversely, should there be resumption of discharge from the Soil Pipe on 7 November 2017, it would be infeasible for the contractor to repair the LEW on 8 November 2017. Together with my observation on what Mr H C Cheung said concerning plaintiff’s complaint in mid-November 2017 (see §231 above), I doubt that there was any such problem in November 2017. 244.Then came the accusation that the discharge resumed in early 2018. Curiously, the plaintiff pleaded that he became aware of it only in July 2018. This does not sit well with his narratives that, after returning to Hong Kong on 20 May 2017, he attended the Premises every day to handle the problems. 245.In fact, when one looks at his travel records issued by the Immigration Department[92], between 20 September 2017 and 10 September 2020, he made 34 trips outside Hong Kong. 23 of those trips happened during subsistence of the problems, i.e., between 20 September 2017 and 28 March 2019, totalling 99 days; there were 11 trips outside Hong Kong from 20 September 2017 to 16 July 2018, amounting to a total of 73 days. Amongst these 11 trips, 5 of them lasted for more than 7 days, with the longest trip for 21 days between 1 February 2018 and 21 February 2018. These records cast great doubts as to the seriousness and persistency of the discharge of soil water, soil and waste materials at the Light Well, and seepage of soil water into Flat 1E. They also contradicted Mr Siu’s repeated emphasis on the plaintiff attending the Premises every day after his return to Hong Kong on 20 May 2017, and to rely on this in the plaintiff’s claim for damages due inconvenience and discomfort. 246.In any event, there is no documentary evidence showing that there was indeed discharge from the Soil Pipe from December 2017 to June 2018. 247.Coming back to the issue at hand, recurrence of the problems is supported by the photographs of the District Councillor cleaning the soil and waste materials from the Light Well on 5 July 2018, and the 21.7.2018 Video. 248.There was another halt of action from August to December 2018. I do not believe that the discharge and seepage had continued during this period. Similar to what I have said in §243 of this Judgment, remedial works could not have been performed by K&A on 3 August 2018 if the condition at the Light Well was still dire. 249.Then came the final documented episode of the problems in December 2018 (see §78(11) above). The OB revealed that the plaintiff made a complaint on 24 December 2018, and the security guard inspected the Premises and took photographs[93] on even day. The security guard recorded that the problems were possibly caused by the Soil Pipe. He saw soil on the floor of Flat 1E, and the unit was filled with the stench of it. He then reported the matter to the vice-chairman and secretary of the 2nd defendant. 250.The next entry on the OB is dated 25 December 2018. The plaintiff complained about the foul smell, and requested the 2nd defendant to clean the Light Well. Finally, the security guard wrote down that the cleaner and the 1st defendant were notified on 27 December 2018. Photograph taken on that day by the plaintiff showed the Wastes remained at the Light Well. This led to the plaintiff escalating the matter by posting his complaint letters at the lobby of the Building (see §78(12) above). Inspection of the Premises by Ms Lau on 31 December 2018 showed that the problems had yet been rectified on that day[94]. 251.Since the repair of the Soil Pipe after December 2018, there is no document in support of the plaintiff’s allegation that there were recurrences of the problems until March 2019. 252.In light of the above discussions, there was sufficient evidence to show discharge of soil water, soil and waste materials from the Soil Pipe, and seepage of soil water into Flat 1E, in: (1) October 2016; (2) August to October 2017; (3) July 2018; and (4) December 2018. The suggestions from the 1st and 2nd defendants that the discharge of soil water, soil and waste materials from the Soil Pipe only occurred once, twice or thrice, should be rejected. However, I am also unable to accept the plaintiff’s contention that the problems had continued for the entire period between October 2016 and March 2019. Such contention of his defies logic, controverted by the inactions on his part on various periods, and undermined by his frequent absences from Hong Kong during the alleged height of the problems. 253.For these reasons, I find that the discharge of soil water, soil and waste materials from the Soil Pipe was not continuous. I find that the discharge appeared since October 2016, and recurred intermittently from August to October 2017, in July 2018, and in December 2018. Issues 10 and 11: whether the soil water from the Soil Pipe had seeped into Flat 1E via the LEW? Whether the seepage was due to the Defects (if any) on the LEW? 254.Having established that there were soil water, soil and waste materials discharged on and accumulated at the Light Well, I prefer to consider Issues 10 and 11 together, as factors pertinent to them are intertwined. 255.I have no hesitation in finding that the soil water had seeped into Flat 1E. The documents examined in the preceding section indicate there were 4 occasions that this had happened. The question is therefore whether the soil water had seeped through the LEW. In view of the evidence before me, I find that the soil water went into Flat 1E via the Defects, in particular, the holes. 256.It is necessary to differentiate between the LEW, and the Defects found on the LEW. To say simply that the LEW was the medium of the seepage would be most imprecise. The precision in the findings to be made under these heads, as one shall see later in the Judgment, would determine the other issues of liability. 257.As recited in the above, the plaintiff had instructed contractor to repair the middle and top part of the LEW on 8 November 2017, and K&A to perform waterproof treatment to the floor slab and bottom part of the LEW on 3 August 2018. Despite these remedial works, soil water still seeped into Flat 1E in December 2018. It is thus reasonable to deduce that the upper, middle, and lower parts of LEW, but above ground level, were not the routes that the soil water entered Flat 1E. 258.That brings us to the Defects, which were unearthed when the 1st defendant broke open the surface of the floor at the Light Well in July 2019. All evidence points to the Defects being concealed by the floor, or the Thickened Floors, at the Light Well. None of the documents and photographs created prior to July 2019 contained information about the existence of the Defects. Lau’s Report said nothing about them; there is no suggestion that K&A was aware of them when waterproof treatment was performed at the bottom part of the LEW and floor slab of the Light Well on 3 August 2018; and if K&A had discovered them, it is inconceivable that the Defects would be left unrepaired. 259.At trial, I have asked Ms Lau and Mr S Cheung whether it would be possible that the soil water could still enter Flat 1E via the Defects if they were covered by the Thickened Floors. Both experts answered in the affirmative. They explained that the soil water could seep into the Thickened Floors, spread to all directions including the Defects, and via the Defects entered the Lavatory. I accept their explanations. 260.I therefore find that the seepage of soil water into Flat 1E was due to the Defects. Issues 12A and 12C: whether the 1st and 2nd defendants were liable for negligence and/or nuisance due to the bursting of the Soil Pipe, accumulation of soil and waste materials at the Light Well, the Defects on the LEW, and seepage of soil water into Flat 1E? Issue 12D: whether the 2nd defendant was in breach of the BMO and/or the DMC Bursting of the Soil Pipe: the cause 261.I shall first identify the cause of the Soil Pipe bursting intermittently. Oddly, this is not a topic that the experts were directed to give their opinion on, when it is clearly an issue between the parties based on their pleadings. 262.Considering the evidence before me, I come to the irresistible and logical conclusion that it was due to the blockage of Manhole 1. 263.According to Mr Leung’s evidence, and his WhatsApp message to the plaintiff on 6 June 2019, replacement of the waste water pipe and the Soil Pipe was anticipated by Ho Hei before commencement of the Renovation Project, hence the need for the Drainage Improvement Works. This suggestion stemmed from Ho Hei’s knowledge of the blockage at Manhole 1. Ms Law’s evidence as to blockage of Manhole 1 in June 2015 (see §203 of this Judgment) supports knowledge on the part of the 2nd defendant. Unfortunately, installation of a new Soil Pipe proved not to be the antidote, as it continued to burst. I am impressed by and accept Mr Leung’s explanations as to how blockage of Manhole 1 could lead to the disconnection. In addition, I do not think that it is a mere coincidence that the problems finally stopped after the Soil Pipe was connected to Manhole 2 in March 2019, upon the advice of the 1st defendant on 23 January 2019. The 2nd defendant has not adduced any evidence to counter Mr Leung’s explanations. Issue 12D: the 2nd defendant’s duties 264.On the duty to unblock Manhole 1 and to repair the Soil Pipe, there is no dispute that the Soil Pipe and the manholes serving the Building were common parts, thus it should fall within the usual duties of the 2nd defendant to repair and maintain. This brings us to a pleading point raised by Ms Tse in her opening and closing submissions, and the question under Issue 12D. 265.Relying on the case of Citybase Property Management Ltd v IO of Heng Ngai Jewelry Centre[95], Ms Tse submitted that the plaintiff’s claim based on section 18 of the BMO would not give rise to an independent cause of action against the 2nd defendant. As to the DMC, her criticism was that clause (m) of the 3rd Schedule only sets out the power and authority rather than the duties and liabilities of the 2nd defendant, to repair and maintain the common parts of the Building. Then, citing the principle on pleading that I had summarised in the case of Wong Mei Yuk v IO of Lower Wong Tai Sin (1) Estate[96], Ms Tse argued that the plaintiff is debarred from relying on any unpleaded implied terms under the DMC. 266.Regarding the BMO point, I queried how §20 of the Citybase case would support Ms Tse’ argument. Obviously, HH Judge M Ng (as her Ladyship then was) did not specifically say that a breach of the BMO would not give rise to an independent cause of action against incorporated owners. In addition, section 34E and the Seventh Schedule, which the learned judge considered, provide for mandatory terms concerning a manager’s duties on financial and budgeting issues, that should be incorporated into a deed of mutual covenant. This has no connection to our case. Ms Tse agreed with my observations, but then turned her focus on the learned judge’s comment that damages is not a remedy created by the BMO. 267.I am equally hesitant to rely on the case cited by Mr Siu, namely 永樂大廈業主立案法團 v 林穎欣經營珠珠找換店, to find that, solely on the breach of BMO, a claimant would be entitled to claim damages. The provision considered by DDJ S. H. Lee in that case was section 34I of the BMO, where it is deemed that any person who contravenes it shall be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building[97]. 268.I do have reservation as to whether a breach of section 18(1) of the BMO by the 2nd defendant in this case would entitle the plaintiff to claim damages against them, in light of the comments of the learned judge in the Citybase case. 269.Turning to the DMC, I agree with Ms Tse’s observation that clause (m) of the 3rd Schedule only provides the authority and power of the 2nd defendant. It does not impose any duty and liability on them to perform the tasks listed thereunder. Examination of the whole DMC reveals that none of its provision impose on the 2nd defendant with any duty or obligation to maintain and repair the common parts of the Building. This is, in my view, not only in clear contravention with the statutory obligation of incorporated owners under section 18(1) of the BMO, completely senseless. I agree with what Le Pichon J said in §71 of her judgment in Grace International Ltd v The IO of Fontana Gardens & Ors[98], implicit in the power and authority to repair is the duty of the incorporated owners to effect repairs to the common parts. Such duty must fall within the management functions of those responsible for managing the buildings. The duty to repair is integral to and cannot realistically be divorced and carved out from management functions. 270.That being so, I agree with Ms Tse that the 2nd defendant’s duty to repair and maintain the Soil Pipe and the Manhole 1, seeing that they are not expressed in clause (m), are implied; nothing to this effect has been pleaded in the RASOC. 271.For these reasons, I am persuaded that the plaintiff’s claims based on the breach of the BMO and the DMC are not made out. My ruling on this Issue is not the end of the world for the plaintiff, as his claims on the tort of negligence and nuisance are still alive. This is simply a technical victory for the 2nd defendant, as one shall see from the section below. 272.On the available evidence, there is no basis to find that the 1st defendant should be liable for the bursting of the Soil Pipe. The quotation issued by the 1st defendant did point to the requirement that the manholes be cleaned and a report be compiled on them (presumably the CCTV Report) after completion of the Drainage Improvement Works (see §203 above). I have heard no evidence that the 1st defendant had failed to discharge these duties. In fact, from the CCTV Report, many of the foul water drains connected to the manholes were defective, and suggestions were given that they should be repaired as soon as possible. I should mention that nothing in the quotation issued by the 1st defendant required it to repair or replace the manholes. Ultimately, Wei Kee, instead of the 1st defendant, was instructed to connect the Soil Pipe to Manhole 2. 273.Aside from the above, there is nothing to suggest that the bursting of the Soil Pipe was due to faulty installation by the 1st defendant. Mr Leung’s evidence that the repair of the Soil Pipe would be performed within a week after being notified is unchallenged by the plaintiff and the 2nd defendant. Discussions under Issue 7 indicate that the Soil Pipe had been repaired, and discharge of soil water, soil and waste materials had stopped, at various periods after the problems arose. I appreciate that there was lengthier discharge from the Soil Pipe between August and October 2017, and it would suggest that the Soil Pipe was not repaired promptly on this occasion. However, there is no information as to when the 1st defendant was notified of the incident or incidents, or whether the Soil Pipe had burst and been repaired only once or more than once during that period. Overall, there is also no accusation that the 1st defendant had failed to rectify these problems within reasonable time. 274.However, I do see that the 1st defendant, by its servants agents or workers, had contributed to the accumulation of soil water, soil and waste materials at the Light Well, based on what I have observed in §§221, 222 and 229 of this Judgment. Be that as it may, it is not specifically pleaded in the RASOC that dumping of any construction debris was a cause or contributing factor to the accumulation of soil water, soil and waste materials at the Light Well. I am therefore not ready to hold the 1st defendant liable for negligence or nuisance based on these observations. 275.As to the 2nd defendant, Ms Tse placed great reliance on the Court of Appeal judgment of Lo Yuk Chu v Hong Yick Properties Management Ltd[99], to exemplify that the duties imposed on incorporated owners and managers under deed of mutual covenant are not absolute duties. The overall duty imposed is one of proper management, which entails doing all that is reasonably required of a manager in the circumstances. Furthermore, despite the duties prescribed under section 18(1) of the BMO, the incorporated owners do not provide an insurance to the extent that if some part of the building becomes in disrepair, the same would be liable automatically. Liability may arise if there is fault, and if, having been made aware of a defect which requires remedy, the incorporated owners failed to take appropriate steps.[100] The building management duties under common law, e.g. in the tort of negligence, is no wider than those under the deed of mutual covenant.[101] Mr Siu has no quarrel with these principles. 276.Applying the said principles, there was clearly a fault, and, having been made aware of a defect which requires remedy, the 2nd defendant had failed to take appropriate steps. Their failure to unblock Manhole 1 which I found to have led to the bursting of the Soil Pipe, followed by the discharge of soil water, soil and waste materials, is squarely within the breach of duties particularised by the plaintiff in §44 of the RASOC. There is no denial from them, and in fact supported by Ms Law’s testimony, that Ho Hei had advised on the blockage of Manhole 1 at the start of the Renovation Project. Since October 2016, when the Soil Pipe started to burst, and during the subsequent recurrence of such problem, there should already be inspection and investigation as to the cause of it. Equally, there should be re-evaluation as to whether the replacement of new pipes under Drainage Improvement Works was the correct solution of the problem. I have heard nothing about these measures being taken from the 2nd defendant’s side, save for the CCTV Report in August 2018, and discussions about this during the meeting on 28 September 2018. The CCTV Report also showed that, notwithstanding the Drainage Improvement Works, repair and/or replace of the foul water drains leading to the manholes were required, and should be undertaken as early as possible. This was not followed-up promptly by the 2nd defendant. Most importantly, no reason is given as to why Manhole 1 was not or could not be unblocked or repaired; nor is there explanation as to why Manhole 2 was not or could be not used much earlier to resolve the problem. 277.I also find them to be the culprit and negligent in causing accumulation of soil water, soil and waste materials at the Light Well. This is fortified by their failure to clear the Light Well from the soil and waste materials, in timely manner. The dire condition of the Light Well, piled up with soil and waste materials as seen in the photographs, could not have been created overnight. 278.According to Ms Law’s evidence, the cleaner was not tasked with cleaning the Building. His primary duty was to dispose of the occupants’ garbage, and would only clean the corridors every now and then. I accept that, under normal circumstances, the 2nd defendant had no obligation to ask the cleaner to clean the Light Well, as it was not a common part of the Building. However, once they had received the complaints in October 2016 and become aware of the bursting of the Soil Pipe, they should proactively ensure that any soil and waste materials accumulated there should be removed as soon as possible, and as frequent as possible until the Soil Pipe was repaired. Nothing of the sort was done by the 2nd defendant, save for their instruction to the cleaner to clean the Light Well on weekly basis, but with no certainty that the cleaner would indeed do as he was told. 279.In coming to my views above, I shall mention in passing that arguments as to whether the workers of the 1st defendant and cleaner of the 2nd defendant could enter the Premises at the material times are, at the end of the day, redundant. Substantial trial time had been wasted by the plaintiff and the 2nd defendant on this topic when the workers and cleaner had unquestionably entered the Light Well when performing the Drainage Improvement Works, to repair the burst Soil Pipe, and to remove the Wastes. 280.In summary, I find the 1st defendant not liable for the bursting of the Soil Pipe. It is also not liable for the accumulation of soil water, soil and waste materials at the Light Well. For the 2nd defendant, I find it solely liable for the bursting of the Soil Pipe, and for the accumulation of soil water, soil and waste materials at the Light Well. Are 1st and 2nd defendants liable for negligence and nuisance due to the Defects on the LEW? 281.My answer to this question is no. My reasons are as follows:-
282.Overall, I am not convinced that the 1st and/or 2nd defendants had caused the Defects. I agree with Mr S Cheung that they should not be taken as true defects. They were deliberately created, most probably to house the pipes under the Unauthorised Alterations. I am equally unconvinced that the 2nd defendant had the duty to repair these intentionally created Defects. Even if they did, I do not see how they could realise their existence and repair them when the Defects were hidden below the surface level of the floor at the Light Well. I do not agree that the 2nd defendant’s duty to maintain and repair the LEW, would require them to excavate the floor of the Light Well (which belonged to the plaintiff) to search for possible cracks and holes on the LEW hidden beneath it. My view on this is fortified by the waterproof treatment performed by K&A at the bottom of the LEW in August 2018, when the contractor also did not find it necessary to dig deep under the floor of the Light Well in search of the Defects. Are 1st and 2nd defendants liable for negligence and nuisance due to the seepage of soil water into Flat 1E? 283.Based on my findings on the previous question, my answer to this question is no. Issue 12B: whether the 2nd defendant should be vicariously liable for the negligence of the 1st defendant (if any)? 284.For the reasons I have given above, discussion of this question is unnecessary. Issue 13: Damages and Quantum Damages now claimed 285.For reasons that the Premises had been sold on 28 January 2022, a large part of the renovation costs claimed due to bursting of the Soil Pipe is abandoned by the plaintiff. He now claims:-
286.The above totalled HK$74,300 is way below the initial amount of HK$302,700 claimed under the RASOC. 287.Apart from the Light Well, the renovation costs of the Balcony, claimed at a price of HK$95,000 in the RASOC, has been reduced to HK$1,500 for cleaning the construction debris on 8 November 2017. Damages due to the bursting of the Soil Pipe 288.I have no reservation allowing in full the claims for cleaning the Light Well at the costs of HK$200 and HK$100. They are supported by documents and the cleanings happened at 2 of the 4 occasions that I found to have discharge of soil water, soil and waste materials at the Light Well. 289.I am baffled by the HK$5,000 claimed for repairing the LEW on 8 November 2018. It is the plaintiff’s pleaded case that there were 2 repairs conducted on the LEW, i.e., 8 November 2017 and 3 August 2018. There is no repair carried out on 8 November 2018. Assuming that the HK$5,000 should be costs for the repair on 8 November 2017, such claim is not supported by any documentary evidence[103]. Most importantly, there is no claim for this in the RASOC. Alternatively, if I were to treat this as a claim for the repair carried out on 3 August 2018, it is curious that the plaintiff had abandoned HK$800 of his claim under this head. 290.Come what may, I would disallow the costs for the 2 repairs in November 2017 and August 2018 on the LEW. To begin with, there is nothing to show that these repairs were necessary due to any defects found on the top, middle or bottom part of the LEW. They were performed before Lau’s Report was commissioned. The fact that these works failed to cure the seepage problem supported my view as well. Simply put, these repairs were carried out blindly without knowing the true cause of seepage (i.e., the Defects). I see no reason to hold the 2nd defendant liable for them. 291.As to the expenses incurred for the Interior Replacement Works (see §39 of this Judgment), the amount claimed should be HK$64,000 per the RASOC. The plaintiff now claims a larger sum of HK$69,000 without amendment of the RASOC. This is plainly wrong. In any event, as I have found that seepage of soil water into Flat 1E was due to the Defects, and the 2nd defendant is not liable for the Defects, it follows that they are not liable for the damage to Flat 1E caused by the soil water seepage. I will not allow this claim. 292.Turning to the costs of the Lau’s Report, Mr Siu cited the case of Yu Tai Kan & Ors v Morewell Engineering Limited[104]in support of the plaintiff’s claim for the same as damages. Ms Tse referred to the same authority to distinguish it from our case, and to argue that such expenses should follow the norm and treated as part of the costs of the action. 293.In the Yu Tai Kan case, the learned deputy judge departed from the norm[105] and allowed the plaintiffs to claim the expenses as damages, because the survey report was obtained even before issuance of a letter before action, and was aimed to assist the plaintiffs in dealing with the defendant’s repudiation of contract. Clearly, these reasons are not applicable to our case. The present action was commenced on 10 November 2017 when the Writ of Summons was issued. Ms Lau attended the Premises for inspection on 31 December 2018, more than a year after this action was started, and Lau’s Report was completed on 16 February 2019. Hence, it could not be said that Lau’s Report was obtained at an early stage of the dispute. It is also, in my view, unhelpful to the plaintiff’s case, since Ms Lau still pointed to the LEW being defective after there were 2 repairs in November 2017 and August 2018, without identifying whether the alleged defects were due to the workmanship of the contractor and K&A, or were pre-existing but unresolved by those repairs in November 2017 and August 2018. Come what may, the Defects were not discovered by Ms Lau. I simply do not see how Lau’s Report had assisted the plaintiff in his claim. Furthermore, I am not told the reason why a proper application to the court for leave to obtain and adduce Ms Lau’s expert opinion was not taken out at the time. 294.For these reasons, I will not allow the expenses of HK$30,000 to be claimed as damages. Whether it could be claimed as costs of the plaintiff would be a matter for the taxing master to decide, for the reason I have highlighted in the preceding paragraph, and pursuant to §20(2) of the Practice Direction 5.2. 295.As to the costs of alternative accommodation, Ms Tse submitted that this should be claimed as costs of the action instead of as damages. Mr Siu relied on the case of Yung Yuk Yin v Incorporated Owners of Keymount Lodge[106], where DDJ Kay Seto at §§130 to 135 of her judgment awarded as damages the claimant’s costs of alternative accommodation at times when repair works were carried out at her flat. 296.I do not see how the Yung Yuk Yin case could assist the plaintiff in this regard. First, he resided at the alternative accommodation not due to any repair being performed at the Premises. Second, as I have set out in the above, he had never really resided at the Premises after its acquisition; it was all along intended to be leased out for rental income. He was not forced out of his occupation of the same due to repair, or seepage of soil water into Flat 1E for the entire period that he had rented the alternative accommodation. Third, if the Premises was rendered uninhabitable, it was due to seepage of soil water into Flat 1E (see §36 of this Judgment). Again, I have found the 2nd defendant not liable for this. 297.Fourth, as I have held in the above, there was no continuous bursting of the Soil Pipe. His movement records from the Immigration Department also showed that he had went abroad on numerous occasions and sometimes for lengthy periods (see §245 above). I am not convinced that he had to stay in Hong Kong, and rented an alternative accommodation on long-term basis, from 11 September 2017 to 10 September 2020. If the plaintiff was required to return to Hong Kong to handle these bursting incidents, there is no reason why he could not rent a place on short term basis, for example a serviced apartment like the claimant in Yung Yuk Yin case, during the months that I have identified above. On this point, I do appreciate that, with the recurrence of the Soil Pipe bursting, and the passive stance taken by the 2nd defendant in finding the cause of the problem, and to rectify it, the plaintiff would be required to return to and stay in Hong Kong to handle the problems on the 3 occasions in 2017 and 2018. It would be most cruel to expect, and indeed unimaginable, for the plaintiff to reside at the Premises during those times. It is reasonable for the plaintiff to elect not to live next to a pond of human wastes, to endure the stench coming from the Light Well, and the unhygienic condition. 298.I find that the 2nd defendant should be liable under this head of claim, limited to the times when there was bursting of the Soil Pipe in 2017 and 2018. I would therefore allow costs of the alternative accommodation for periods from September to October 2017[107], July 2018, and December 2018. I do not find the monthly rent of HK$18,000, assuming that the plaintiff should reside at serviced apartment during these times, is unreasonable. As such, the plaintiff should be entitled to an award of HK$72,000 (HK$18,000 x 4 months). 299.I do not agree with Ms Tse that the amount awarded should be considered as costs of the action. Clearly, the reasons given above for allowing this claim and the amount so awarded have excluded the time devoted by the plaintiff for this litigation. 300.The remaining item under this head is the claim for inconvenience and discomfort in the sum of HK$50,000. Mr Siu relied on the assertions that there was continuous discharge of soil water, soil and waste materials, and the plaintiff’s attendance at the Premises every day since 20 May 2017, in seeking the full amount claimed. I have in the above ruled against both assertions. 301.In the 3 authorities cited by Mr Siu in support of this head of claim[108], all claimants were occupants of the units affected by water seepage. He has not provided me with an authority where a claimant was awarded such damages despite not being an occupant of the affected property. Instead, other authorities showed that such claim would not be allowed for claimants who are not occupants of the affected units[109]. 302.For these reasons, I reject the claim for inconvenience and discomfort. 303.In summary, I will award the plaintiff a sum of HK$72,300 (HK$72,000 + HK$200 + HK$100) against the 2nd defendant. Damages due to the Balcony 304.These claims are made only against the 1st defendant. 305.As aforesaid, the claim for repair and renovation costs (HK$95,000) is now reduced to HK$1,500, representing the cleaning fee incurred on 8 November 2017, which is supported by documentary evidence. I allow this sum in full. 306.Regarding the claim for HK$50,000 under the head of inconvenience and discomfort, I reject it for the same reasons set out in §§300 and 301 above. 307.The 1st defendant did not adduce any evidence to contradict the alleged damage to the Cupboard and the purchase price of the same. I will allow this claim in full, i.e. HK$12,800. 308.Finally, I do not agree that the 1st defendant should be liable for the loss of rental income for the whole period as claimed. First, I have doubt, based on the plaintiff’s own evidence, as to whether Ms Chu terminated the Tenancy Agreement solely due to the scaffold being erected in the Balcony (see §89 of this Judgment). His emphasis on the bursting of the Soil Pipe and seepage of soil water into Flat 1E being a contributing factor to the termination (which the 1st defendant is not liable), contradicted his case that the 1st defendant should be solely and fully responsible for the rental loss as claimed. Second, even assuming that the scaffold in the Balcony was the sole reason for the termination, observations of Ms Tse, Mr Siu and myself in §§95 and 96 above revealed that the Tenancy Agreement could be terminated at any time with notice. If it were true that Ms Chu was or would be bothered by the intermittent bursting of the Soil Pipe, she would have the liberty to terminate the Tenancy Agreement even with the scaffold being removed in October 2017. Third, the plaintiff’s alleged inability to lease out the Premises after October 2017 was due to the bursting of the Soil Pipe in the Light Well, not because of the scaffold in the Balcony. Alas, as I have said in the above, there is no claim for loss of rental income against the 2nd defendant. 309.Based on the above reasons, I think it is only fair to hold the 1st defendant liable for the rental loss in October 2017, i.e., before removal of the scaffold. A sum of HK$16,000 is awarded to the plaintiff. CONCLUSION 310.In light of the above, I enter judgment against the 1st defendant for the claims relating to the Balcony. As to the Light Well, judgment is entered against the 2nd defendant based on the bursting of the Soil Pipe, and the discharge of soil water, soil and waste materials onto the Light Well. The claim against the 1st defendant under this head is dismissed. 311.Consequentially, I make the following orders: -
Costs 312.Costs should follow the event. Although the plaintiff succeeded in his claims against the 1st defendant (under the head of the Balcony) and the 2nd defendant (under the head of the Light Well), what he is awarded with after trial is a far cry from what he claims in the RASOC, i.e., HK$365,800 against the 1st defendant for the Balcony, and HK$1,048,700 against the 1st and 2nd defendants for the Light Well. All of his claims are either abandoned (at the closing submissions stage), rejected, or reduced. I see no reason for him to get the full costs on the few claim items that he is successful. I will therefore make the following orders on nisi basis: - The Balcony
The Light Well
313.The costs orders nisi shall become absolute unless any party applies to vary it within 14 days of this Judgment.
Mr Stephen Siu, instructed by Kingston Tong and Co., for the plaintiff The 1st defendant represented by its director, Mr Leung Chi King, appeared in person Ms Tania Tse, instructed by Raymond Luk & Co, for the 2nd defendant Annex
[1] See [2023] HKDC 1472. [2] Ibid, §§6 to 13. [3] The 1st defendant was legally represented by Messrs Lim & Lok until 19 July 2019, and Messrs Raymond Luk & Co until 18 September 2020. Before the latter date, an Amended Defence and Mr Leung’s witness statement were filed for the 1st defendant respectively on 12 May 2020 and 24 December 2018. [4] See land search at p. 179 of Trial Bundle. [5] Sometimes described as “二樓” in the documents. [6] Exhibit P-3. [7] See pp. 261-263 of the Trial Bundle. [8] For the role played by Ho Hei in the Renovation Project, please see §45 of this Judgment. [9] Where the plaintiff resided at the material times. [10] See §2 of the Amended Defence of the 1st defendant and the Amended Defence of the 2nd defendant. They have adopted the same definitions and abbreviations used in the RASOC unless otherwise expressly stated. “LEW” was expressly not followed in the Amended Defences. [11] Not soil water and waste materials from the Soil Pipe as alleged by the plaintiff. [12] See §32 of this Judgment. [13] See §31.3 and §33.3 of the Amended Defence of the 1st defendant and the Amended Defence of the 2nd defendant respectively. [14] See §37 of this Judgment. [15] The list of issues were signed by Mr Siu, Mr Leung, and Ms Tse, on behalf of the parties, and exhibited as “P1”. [16] [2022] HKCFI 2899, §§16 to 18. [17] See Hong Kong Civil Procedures 2024, Vol. 1, §38/2A/13, at p. 953. [18] The 2nd defendant was added to this action on 9 January 2019. [19] See: (1) sections 2 and 8(1) of the Mediation Ordinance, Cap 620; (2) Champion Concord Limited v Lau Koon Foo (2011) 14 HKCFAR 534, §17; (3) Leong Chi Kai v Chan Wing Sun [2021] HKCFI 1431, §§55 and 56; (4) Lincoln Air-Conditioning & Engineering Company Limited v Chan Ping Fai Ricky & Ors (unreported, HCA 527/2010, 21 January 2013), §§3 and 5. [20] See pp. 197 to 206 of the Trial Bundle. See §219 of this Judgment for the correct orders and letter of compliance. [21] See pp. 264 to 285 of the Trial Bundle. [22] See pp. 302 to 305 of the Trial Bundle. [23] See p. 307 of the Trial Bundle. [24] See p. 287 of the Trial Bundle. [25] See p. 295 of the Trial Bundle. [26] See p. 297 of the Trial Bundle. [27] See p. 301 of the Trial Bundle. [28] See p. 299 of the Trial Bundle. [29] See p. 325 of the Trial Bundle. [30] See pp. 313 to 321, 329 to 335, and 459 of the Trial Bundle. [31] See pp. 336 to 341, and 457 to 458 of the Trial Bundle. [32] See p. 461 of the Trial Bundle. [33] See pp. 465 to 468 of the Trial Bundle. [34] See pp. 343 of the Trial Bundle. [35] See pp. 453 to 456 of the Trial Bundle. [36] See pp. 408 to 418 of the Trial Bundle. [37] See pp. 421 and 496 of the Trial Bundle. [38] See p. 472 of the Trial Bundle. [39] See pp. 477 to 480 of the Trial Bundle. [40] See pp. 364 to 372 of the Trial Bundle. [41] The cause of seepage, as opined by Ms Lau and pleaded in the RASOC, is thus not recited in this Judgment. [42] See pp. 422 to 440 of the Trial Bundle. [43] The sale and purchase agreement was dated 6 July 2015; the assignment was dated 31 July 2015. See land search at pp. 182 to 183 of the Trial Bundle. [44] Exhibit “D1-1”. [45] Receipt issued for the waterproof treatment dated 6 August 2018 at p. 756 of the Trial Bundle. [46] At §2.1. [47] See the land search dated 24 October 2023 tendered by the 2nd defendant, marked as Exhibit “D2-1”. [48] See photographs A8 and A9 of Lau’s Report, at pp. 389 and 390 of the Trial Bundle, as to where the concrete wall was situated at. [49] See Hong Kong Civil Procedure 2024, Vol. 1, §38/2A/6, at p. 782. [50] See O. 38, r. 2A(7)(b) of the Rules of the District Court, Cap. 366H (the “RDC”). [51] See Hong Kong Civil Procedure 2024, Vol. 1, §38/2A/2, at p. 780. [52] Mr Leung’s witness statement was filed by Messrs Lim & Lok. [53] See p. 960 of the Trial Bundle. [54] See p. 967 of the Trial Bundle. [55] The marked photograph was tendered to the court as Exhibit “D1-1”. [56] See p. 979 of the Trial Bundle. [57] See p. 978 of the Trial Bundle, marked by blue highlighter. [58] See p. 1173 of the Trial Bundle. [59] See pp. 1467 to 1469 of Trial Bundle, photographs taken on 24 October 2016 at both the interior and exterior parts of the Premises. [60] See pp. 1470 to 1472 of Trial Bundle, photographs taken on 14 November 2017 at the exterior parts of the Premises. [61] At trial, the entire §10 of her witness statement was deleted, per the application of Ms Tse. There was no objection from Mr Leung and Mr Siu. [62] See Ms Law’s witness statement, §2, p. 153 of the Trial Bundle. Ms Law said she learnt about the water seepage because other occupants had complained to the security guard. [63] See §12 of Ms Law’s witness statement, at pp. 158-159 of the Trial Bundle. [64] See items 6.7 and 6.11 at pp. 1300 and 1301 of the Trial Bundle. [65] See pp. 1367 to 1401 of the Trial Bundle. [66] See §7 of her witness statement, at p. 154 of the Trial Bundle. [67] See p. 1271 of the Trial Bundle. [68] See pp. 593 to 596, photographs taken by Ms Lau on 31 December 2018, which showed that there was no tiles on the floor of the Light Well. [69] See photograph A8 at p. 607 of the Trial Bundle. [70] See p. 669, photograph 9. Although the description on the photograph said it was the Balcony, Mr S Cheung confirmed at trial it was actually the Light Well. [71] Section 44 of the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations, Cap 123I. [72] Supra, note 70. [73] Supra, note 70, photograph 10. [74] Ibid. [75] See pp. 548 to 550 of the Trial Bundle. [76] See p. 638 of the Trial Bundle. [77] See p. 550 of the Trial Bundle, which was relied upon by Mr S Cheung to assert that there was a rusty metal pipe inside the hole. [78] See p. 548 of the Trial Bundle. [79] See p. 712 of the Trial Bundle. [80] The plaintiff failed to explain how the security guard communicated with him when he was living abroad at that time. [81] Again, added by the plaintiff at trial. [82] Lunar New Year holidays in 2017 were between 28 and 31 January 2017. [83] See §6.7, p. 1300 of the Trial Bundle. [84] See the CCTV Report at p. 1367 of the Trial Bundle. [85] See p. 1230 of the Trial Bundle. [86] The plaintiff testified that he left Hong Kong shortly after signing the Tenancy Agreement with Ms Chu. [87] See photograph A8, at p. 389 of the Trial Bundle; see also photographs at pp. 920 and 921 of the Trial Bundle. [88] See pp. 930 to 933 of the Trial Bundle. [89] See p. 746 of the Trial Bundle. [90] See p. 748 of the trial Bundle. [91] See §7 of P’s 3rd Statement, at p. 164 of the Trial Bundle. [92] See p. 781 of the Trial Bundle. [93] No photograph has been adduced by the 2nd defendant. [94] See pp. 382 to 385 of the Trial Bundle; photographs taken at the Light Well on 31 December 2018. [95] (unreported, DCCJ 5859/2005, HH Judge M Ng, 26 January 2006, §20. [96] [2021] HKDC 211, §§145 to 148. [97] [2023] HKLDT 31; §§82 to 94. [98] [1996] 4 HKC 635. [99] [1996] 4 HKC 278. [100] See Lau Chun Wing Rod v The Incorporated Owners of Po On Building, (unreported, CACV 20/2007, Rogers VP, 1 November 2007) at §§11 and 12. [101] See Ma Chung Lam & Anor v Citybase Property Management Ltd [2007] 1 HKC 192 at § 24. [102] See photographs 26 to 29, at pp. 549 and 550 of the Trial Bundle. [103] The plaintiff exhibited a document at “SC-49”, pp. 455-456 of the Trial Bundle, and described it as a receipt issued by the contractor whom performed the repair on 8 November 2017. However, it actually showed a cleaning fee of HK$1,500 for the Balcony. Exhibit “SC-49” is the same document exhibited under “SC-29”, at p. 309 of the Trial Bundle. [104] (unreported, DCCJ 537/2013, DDJ Jason Wan, 16 October 2014), at §§28 and 29. [105] See for example Yim Wai Ling & Anor v Yuen ChikWah & Anor (unreported, DCCJ 663/2013, DDJ A Kot, 12 August 2016), at §95. [107] The plaintiff’s renting of an alternative accommodation started in September 2017. There is therefore no ground for this court to allow an earlier claim for such damages (i.e. starting from August 2017). [108] So John v Lau Hon Man [1993] 2 HKC 356; Leung Yung Chun v Chan Wing Sang & Ors [2000] 1 HKLRD 456; Yung Yuk Yin case, supra note 106. [109] Supra note 105, at §§92, 98 and 100, citing the case of Wong Kan Tai v Man Kau Kan & Anor (unreported, DCCJ 14290/2000, 26 June 2003); see also Kwok Shu v The Incorporated Owners of Kent Building [2021] HKDC 632, at §§72 to 78. |
Cases cited in this judgment
Further hearings and rulings under DCCJ 5015/2017