H & W Development (HK) Ltd (Formerly Known As Eagle Hero Ltd) v. Yeung Kuk Lam and Another

DCCJ 4394/2020

[2024] HKDC 1062

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4394 OF 2020

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JUDGMENT

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Introduction

1.This action arose out of water leakage from the upper floor.

Absence of the defendant

2.The 2^nd named defendant was absent at this trial.

3.The trial of this action was originally scheduled to take place on 6 March 2023 before Deputy District Judge Connie Lee.

4.On the 1^st day of the trial, the Court was informed by the 2^nd named defendant that the 1^st named defendant passed away on 30 December 2022. The 2^nd named defendant applied for an adjournment of the trial so that her application for legal aid could be processed by the Legal Aid Department. The learned Deputy Judge granted the application and adjourned the trial to 4 and 5 January 2024.

5.A notice of trial was sent by Court to all parties on 4 April 2023.

6.By a memorandum of notification that a party has been refused legal aid dated 15 May 2023, the 2^nd named defendant was refused legal aid.

7.I am satisfied that the 2^nd named has had due notice of this trial and that she has chosen not to appear.

8.I therefore allowed the trial to proceed.

The plaintiff’s case

9.The plaintiff is the registered owner of Flat A, 10^th Floor, Block 3, King’s Park Villa, No 1 King’s Park Rise, Kowloon, Hong Kong (“the plaintiff’s premises”).

10.The defendants are the registered owners of Flat A, 11^th Floor, Block 3, King’s Park Villa, No 1 King’s Park Rise, Kowloon, Hong Kong (“the defendants’ premises”), which is immediately above the plaintiff’s premises.

11.In or about January 2019, water leakage and/or seepage was found in various parts of the plaintiff’s premises.

12.On or about 2 July 2020, water was found leaking and flooding from the defendants’ premises to the plaintiff’s premises through the terrace ceiling of the plaintiff’s premises and caused flooding to the whole of the plaintiff’s premises.

The defence

13.The defendants put the plaintiff to strict proof of the alleged water leakage and/or seepage.

Legal principles

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

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

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

Findings of fact

17.The plaintiff adduced in evidence 2 expert reports prepared by Miss Lau Shan La dated 11 April 2019 (“the 1^st report”) and 6 August 2020 (“the 2^nd report”) respectively.

18.The investigation of the 1^st report was conducted on 19 February 2019. Miss Lau was of the opinion that the water seepage that was found at the kitchen ceiling of the plaintiff’s premises was caused by leakage of the floor slab of the kitchen of defendants’ premises and water seepage found at the ceiling of the living room close to the kitchen in the plaintiff’s premises was due an one-off water leakage of the water facilities in the defendants’ premises.

19.The investigation of the 2^nd report was conducted on 4 July 2020. Miss Lau was of the opinion that the water leakage at the terrace floor, kitchen floor, living room floor, maid’s room floor, the floors of room 1, room 2 and room 3, guest bathroom floor and master bathroom floor of the plaintiff’s premises were caused by a loosened U-trap drain pipe that belonged to the defendants’ premises.

20.There is nothing from the defendants to contradict the opinion of Miss Lau.

21.I accept Miss Lau’s opinion that the defendants’ premises was the sources of the water seepage and leakage in the plaintiff’s premises.

22.Section IV of the Deed of Mutual Covenants of the housing estate dated 15 May 1997 (“the DMC”) has the following provisions:

“(6) Each Owner shall indemnify all other Owners and occupiers against any actions, proceedings, claims and demands whatsoever in respect of any loss or damage to any person or property caused by or as the result of the act or negligence of such Owner or any occupier of any part of the Development owned by him or any person using such part of the Development with his consent expressed or implied arising out of or owing to the defective condition thereof or the overflow of water therefrom.

(7) Each Owner shall indemnify the other Owners for the acts and omissions of all persons occupying with his consent expressed or implied any part or parts of the Development owned by him and shall pay all costs, charges and expenses incurred in repairing or making good any loss or damage caused by the act, neglect or default of such person …

(9) Each Owner shall maintain in good repair and condition to the satisfaction of the Manager that part of the Development in respect of which he is entitled to exclusive possession.

(10) No Owner shall use or permit or suffer the part of the Development owned by him to be used for any illegal or immoral purpose nor shall he do cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage to the other Owners and occupiers for the time being.

(22) No Owner shall do or suffer or permit to be done anything whereby the flushing or damage system of any Block or the Development may be clogged or the efficient working thereof may by impaired.

(29) Each Owner shall in such manner so as to avoid any loss, damage, nuisance or annoyance to the Owners or occupiers of the other Units at his sole expense repair maintain and keep in good repair and condition the Unit of which he is the owner its equipment apparatus services and facilities and shall when necessary replace any part or parts thereof which require replacement.”

23.By reasons of my findings aforesaid and the provisions of the DMC, the defendants as owners of the defendants’ premises are liable to the plaintiff for the damage caused to the plaintiff’s premises due to the water seepage and leakage.

24.At the trial, Mr Wong Ho Kee, a director of the plaintiff, informed this court that the water seepage and leakage had already ceased.

Damages

25.Miss Lau estimated that the costs of repair to the plaintiff’s premises to be HK$371,655.60 which I accept as a reasonable estimate.

26.Mr Wong said that it took 2 months to do the repair to the plaintiff’s premises. The plaintiff is therefore claiming loss of rental income for 2 months at the monthly rent of HK$37,000, which was the rent the plaintiff was able to rent out after the repair. I accept Mr Wong’s evidence. I therefore award HK$74,000 under this head (HK$37,000 × 2).

27.The plaintiff also claims “damages of loss of inconvenience, disturbance and etc to be assessed as pleaded in the above Paragraph 26”.

28.Paragraph 26 of the statement of claim pleaded:

“Further, the said water leakage and/or seepage problems have caused the Plaintiff considerable annoyance, distress, inconvenience and disturbance, and the Plaintiff has suffered further losses and damages thereby, to be assessed.”

29.I have reservation on the claim under this head.

30.As pointed out by Her Honour Judge Mimmie Chan (as she then was) in Larbons Ltd v Kuo You Weaving Factory Ltd, DCCJ 934/2006, 12/7/2997 (unreported), Lord Hoffman in Hunter v Canary Wharf Ltd [1977] AC divided nuisance into 2 categories, ie one of causing “material injury to the property” such as flooding or depositing poisonous substances on crops; and the other of causing “sensible personal discomfit” such as excessive noise or smells. Both categories are for causing damage to the land.

31.From what was pleaded in the statement of claim, it seems the plaintiff is not claiming for diminution in the amenity value during the period the plaintiff’s premises were affected by water leakage but personal discomfort suffered as a result of the water leakage. Mr Wong also confirmed that it was the plaintiff’s position at the trial.

32.The plaintiff, being limited company, is a separate legal entity as opposed to its shareholders or directors who are natural persons and are susceptible to the feeling of discomfort. None of the persons who claimed to have suffered personal discomfort was made a plaintiff in this action.

33.That being so, I am not convinced that the plaintiff is entitled to damage under this head.

34.In summary, I find that the plaintiff is entitled to the sum of HK$445,655.60 (HK$371,655.60 + HK$74,000) on damages.

Judgment

35.The 1^st named defendant passed away on 30 December 2022. However, no application was made by the plaintiff to continue the action against the executor or administrator of the 1^st named defendant.

36.In the circumstances, the plaintiff is only entitled to judgment against the 2^nd named defendant.

Interest

37.The plaintiff is entitled to pre-judgment interest at 1% above the best lending rate of HSBC from the date of writ (ie 21 August 2020) to the date of judgment and thereafter at judgment rate to the date of payment.

Costs

38.I make a costs order nisi that the 2^nd named defendant shall pay the plaintiff the costs of this action, to be taxed if not agreed.

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

The Plaintiff appeared in person

The 2^nd named Defendant was not represented and did not appear