Jet Victory Investment Ltd v. Wong Leung Tat

LDBM 238/2015

[2024] HKLdT 72

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 238 OF 2015

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J U D G M E N T

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1.The dispute in this action arose out of the applicant’s complaints about water seepage into its property from the respondent’s property.

BACKGROUND

2.This case involves two premises situated at a multi-storey building (“Building”) known as Golden Crown Court, Nos. 66-70 Nathan Road, Kowloon.

3.The applicant is the registered owner of Flat C on the 12^th floor of the Building (“Lower Premises”). Mr Lam Yik Him (“Lam”) is a director of the applicant. Lam alleges that, at all material times, his parents and his brother’s family (“Family Members”) lived at the Lower Premises. Lam’s family also owns Flat C on the 11^th floor and Flat C on the 14^th floor of the Building.

4.The respondent is the registered owner of Flat C on the 13^th floor of the Building (“Upper Premises”). He had not resided at it but let it out to various tenants for operation of licensed guesthouse at different times until January 2022.

5.The Upper Premises is immediately above and vertically adjoined the Lower Premises. The two premises (“Two Premises”) are similar in size save that there is an additional flat roof structure (“Structure”) attached to the external wall of the Lower Premises. The Structure was constructed by the applicant and erected on the flat roof of Flat D of the 11^th floor of the Building.

6.On 18 August 2015, the applicant commenced the present action claiming that since February 2014, it had complained to the respondent that there had been water seepage from the Upper Premises into the Lower Premises. In the Re-amended Notice of Application[1](“NOA”), the applicant alleges that the water seepage was caused by the respondent’s breach of the Deed of Mutual Covenant of the Building dated 8 April 1964 (“DMC”), section 34H of the Building Management Ordinance, Cap 344 (“BMO”), negligence and nuisance. It seeks, inter alia, damages and a mandatory injunction to compel the respondent to take all reasonable steps to prevent or stop the water seepage. The applicant’s claim is denied by the respondent.

7.Much reliance has been placed by the applicant on the inspection report compiled by Mr Wong Man Hong (“WMH”) of Wong Man Hong Surveyor Ltd dated 5 August 2014 (“JO Report”) for proof of the source of water seepage. WMH was engaged by the Joint Office[2] (“Joint Office”) to investigate the applicant’s complaints about water seepage. At trial, both parties agreed to refer to the two layout plans set out in pages 16 and 18 of the JO Report for identification of the layouts of the Lower Premises (“LP Plan”) and the Upper Premises (“UP Plan”) (including the room numbers specified therein).

8.Lam and his contractor, Mr Ho Yau (“Ho”) gave evidence for the applicant. The respondent testified by himself. Both parties also arranged their respective experts, Simon Cheung Wai Sum (“S Cheung”) for the applicant and Stephen Fung Kai Yan (“Fung”) for the respondent (S Cheung and Fung, collectively, the “Two Experts”), to comment on the reliability of the JO Report. The Two Experts were only involved in the present proceedings in or after 2022 with the Joint Expert Statement compiled on 29 August 2023.

9.In the NOA, the applicant also complains that the respondent had been in breach of the DMC for having wrongfully changed the use of the Upper Premises from private residential use to commercial use for operation of guesthouse business without authorization. For disposal of this item of claim, both parties agreed at trial that in the event that the respondent is found in any way liable to the water seepage of the Lower Premises, he would give an undertaking not to further use the Upper Premises for operation of guesthouse business.

10.It is upon such agreement between both parties that the issue on the restricted use of the Upper Premises was not further argued at trial. The trial therefore focused on the dispute on the source of water seepage.

APPLICANT’S CASE

11.According to the NOA, it is the applicant’s case that:-

(a)  from December 2013 to late January 2014, the respondent’s new tenant carried out extensive renovation works at the Upper Premises to convert it into 9 guest rooms (each with en-suite bathroom).

(b)  from 2 February 2014, water was found seeping through the floor slab from the Upper Premises into various parts of the ceiling of the Lower Premises, causing serious damages to the applicant.

(c)  due to the water seepage, Lam’s Family Members were forced to move out from the Lower Premises on 15 June 2014.

(d)  in the JO Report, the source of water seepage was found to be the floor slab and the enclosing walls of the bathroom of room 4[3] (“Upper Room 4”) and the floor slab and the enclosing walls of the bathroom of room 3[4] (“Upper Room 3”) inside the Upper Premises.

(e)  the seepage temporarily stopped at around 21 July 2014 but resumed on 11 August 2015. The temporary cessation might be due to temporary suspension of the guesthouse business operated at the Upper Premises.

(f)  the seepage resumed when those guest rooms were later let out after the resumption of the guesthouse business. Lam found out that a guesthouse licence for operation of a guesthouse at the Upper Premises for 1 year from 16 July 2015 had been granted.

(g)  despite repeated letters of complaints since 6 February 2014, the respondent failed to remedy the water seepage problem. The applicant therefore commenced the present action on 18 August 2015.

RESPONDENT’S CASE

12.The respondent denies the Upper Premises being the source of water seepage. He says that:-

(1)  the Upper Premises had already been operated as a guesthouse which consisted of 9 guest rooms (with en-suite bathrooms) before his purchase of it in 2004.

(2)  as early as in November 2013, Lam had already asked for and managed to obtain HKD30,000 from the respondent’s former tenant by alleging damages caused by water seepage from the Upper Premises to the Lower Premises.

(3)  upon the change of tenant of the Upper Premises in December 2013, his new tenant carried out renovation work at the Upper Premises from around mid-December 2013 to January 2014.

(4)  since 6 February 2014, he had received complaints about water seepage from the applicant.

(5)  his tenant duly replaced the damaged pipes on or about 26 February 2014.

(6)  upon receipt of the Nuisance Notice (“Nuisance Notice”) issued by the Joint Office as a result of the JO Report in August 2014, his tenant had carried out repair and reinstatement works at the Upper Premises.

(7)  on or around 5 September 2014, the Joint Office confirmed that the Nuisance Notice had been complied with. The confirmation was evidenced by the letter of the Joint Office dated 14 November 2014 (“JO Confirmation Letter”).

(8)  his tenant ceased doing business from around mid-July 2014 to about mid-July 2015.

(9)  his tenant was granted new licence to operate a guest house for 1 year from 16 July 2015.

(10)  in or about August 2015, the applicant complained about resumption of water leakage at the ceiling of the living room of the Lower Premises, which was underneath Room 1 (“Upper Room 1”) and Room 2[5] (“Upper Room 2”) of the Upper Premises.

(11)  his tenant had engaged Building Diagnostic Consultants Limited (“BDC”) to conduct water tests to Upper Room 1 and Upper Room 2. The conclusion was that the Upper Premises was not the source of water seepage as detailed in its report dated 2 September 2015 (“Tenant’s Report”).

(12)  on 3 November 2015, his solicitor sent the Tenant’s Report and the JO Confirmation Letter to the applicant and asked to conduct joint examination for Upper Room 3 and Upper Room 4. The request met with no reply.

(13)  on 21 January 2016, his solicitor followed up the request and invited the applicant to conduct water test on 28 and 29 January 2016.

(14)  by the letter of the applicant’s solicitor dated 22 January 2016, the applicant declined the invitation and confirmed that water seepage had already ceased.

(15)  it was not the case that water seepage happened in February 2014 “because the new tenant came and made the Upper Premises become a guesthouse” as alleged by the applicant, but rather, “water seepage continued despite the renovation work”.

(16)  the series of complaints were Lam’s tactics intending to extort money from him (and his tenants) as well as to destroy his tenant’s guesthouse business in the hope that he would sell the Upper Premises to Lam.

LEGAL PRINCIPLES

13.The parties are in agreement that the following legal principles apply in the present case:-

(a)  There is no presumption that the source of water must come from the unit immediately above the unit affected. The claimant bears the burden to prove on a balance of probabilities that the source of the water seepage is from the respondent’s property: Hui Ling Ling v Sky Field Development Ltd, CACV 122/2012, unreported, 22 March 2013.

(b)  It is not for the respondent to find out or identify the real source of the water leakage or to prove that its origin did not come from his property: Hui Ling Chun v Shiu Mak Ying & Choi Chun Hoi, DCCJ 10294/2001, unreported, 3 March 2004, §2.

THE PARTIES POSITIONS

14.The applicant has confirmed in writing and in the tribunal that the alleged water seepage as identified in the NOA, the subject matter of the present proceedings, actually ceased in September 2015 and accordingly, no meaningful inspection, test and investigation could be conducted to identify the source of the water seepage. It has therefore declined the respondent’s repeated requests to conduct further water tests to investigate the source of the water seepage to the Lower Premises since 3 November 2015[6].

15.In these proceedings, the applicant chose to rely on the JO Report for proof of the source of water seepage. Both parties only adduced expert evidence by the Two Experts to comment on the reliability of the JO Report, which was challenged by the respondent. It is noteworthy that the Two Experts were only involved in the present proceedings in or after 2022.

JO REPORT

16.According to the JO Report, WMH had performed water tests with the test results as follows:-

(1)  Dyed-water ponding tests were carried out at the Upper Premises on 14 June 2014, with result-monitoring conducted on 5 August 2014[7].

(2)  Such tests were carried out after removal of all obstructions (ie false ceiling, decorative enclosure, etc).

(3)  there was no possibility that the source of water seepage might originate within the Lower premises and it should be of other sources. “Rain water leakage was unlikely.”

(4)  WMH concluded the test result to be:-

three affected areas of water seepage (collectively, the “Three Areas”) at the Lower Premises were identified and circled at the LP Plan which can be broadly classified as follows:-

(A)  The seepage area at a part of the ceiling of the living room at the Lower Premises (“Living Room Area”)[8], ie the area above a painting.

(B)  The seepage area at a part of the ceiling of the corridor at the Lower Premises (“Corridor Area”)[9].

(C)  The seepage area at a part of the ceiling of room 4 of the Lower Premises (“Room 4 Area”)[10], ie the area above a bunk bed.

The seepage at the Corridor Area and the Room 4 Area (collectively, the “Two Areas”) was caused by infiltration from the floor slab and the enclosing walls of bathroom of Room 4 of the Upper Premises (defined as Upper Room 4 above) whereas the seepage at the Living Room Area was caused by infiltration from the floor slab and the enclosing walls of bathroom of Room 3 of the Upper Premises (defined as Upper Room 3 above) is certain.

17.It is said that the dye did not appear at the Lower Premises until 24 June 2014, that is, 10 days after the water ponding test (“Delay Appearance”). WMH only conducted formal inspection on 5 August 2014. I will now turn to deal with the arguments on the reliability of the JO Report.

IMPARTIALITY OF THE JO REPORT

18.I should start with the fact that WMH was engaged by the Joint Office to investigate the applicant’s complaints of water seepage. Absent any concrete evidence to suggest otherwise, I have no reason not to believe that the JO Report is the contemporaneous inspection report prepared by an impartial and independent authority which had no interest to serve in this litigation: Hui Ling Ling v Sky Field Development Ltd[11].

19.It is in particular that the JO Report was accompanied by a statement of truth of WMH. It is highly unlikely that WMH would put his professional practice at risk to include false information or forged photos into the JO Report in order to benefit the applicant. Further, as explained by S Cheung[12], there should be another senior professional officer, either a qualified structural engineer or a qualified building surveyor, to monitor the compiling of the JO Report and to check the overall integrity of the report according to the departmental procedure of the Joint Office.

20.Absent any solid evidence to suggest otherwise, I am convinced that it is inherently improbable for WMH to forge the JO Report in order to benefit the applicant or to prejudice the respondent.

TIMING OF THE APPEARANCE OF THE DYE

21.The respondent’s first challenge rests on the timing of the appearance of the dyes. Fung commented on the Delay Appearance and said that it was impossible for the dyes to only appear at the Lower Premises 10 days after the dyed-water ponding test, ie on around 24 June 2014.

22.That said, after cross-examination, the Two Experts had no disagreement that:-

(a)  the Delay Appearance is explicable on scientific grounds and realistically possible. The floor slabs have certain water holding capacity. Such water holding capacity varies according to a number of factors including, inter alia, the texture and content of the floor slabs, ie holes, cracks and gaps therein. Some floor slabs have higher water retention capabilities than others. Therefore, sudden water seepage or even water drippings would occur when additional water is poured into the floor slabs overloading the water holding capacity of the floor slabs. The mechanism is akin to flushing the toilet.

(b)  it took time for there to be water (caused by usage of water as showers, pouring of water, etc) cumulatively sufficient to carry the dyes, which were retained at the holes, cracks or gaps of the concrete or material contents of the floor slabs, through the floor slabs and then appear at the Lower Premises after a few days.

23.S Cheung explained that he had handled 912 water seepage investigation in the past. Even though such delayed appearance of dye phenomenon was not common but it had happened in 5-6 cases. He had also once experienced serious drippings of dyed water from the ceiling more than 10 days after the water ponding test.

24.Initially Fung casted doubt on the possibility of the Delay Appearance as he had not personally encountered similar incident before. Under cross-examination, he accepted that his experience of carrying out professional water seepage testing was limited[13] and could not be regarded as authority to rule out the scientific theory and the actual incidents as elaborated and experienced by S Cheung.

25.Given that the Delay Appearance is scientifically explicable and realistically possible, that similar incidents did happen and encounter by S Cheung, that the Upper Premises had been used as a guesthouse understandably with irregular water consumption pattern, intervals and volume, the Delay Appearance was not inherently improbable as suggested by the respondent.

26.The respondent also argues that Lam’s allegation about serious water seepage shortly after the water ponding test should have expedited instead of delaying the appearance of the dyed water. I however cannot ignore the fact that Lam’s allegation is unsupported with scientific record or assessment. The actual pattern and volume of water seepage involved remained unaccounted for in details. His bare assertion basing on his subjective view, without concrete corroborated evidence in support, which was not recorded in the JO Report should not be accepted as the true facts.

27.Thus analyzed, the respondent’s challenge about the timing of the appearance of dye is unmeritorious.

COLOUR AND PATTERN OF THE APPEARANCE OF THE DYE

28.The respondent, by making reference to the colour and pattern of the appearance of the dye, seeks to argue that the water drippings at the Lower Premises was a product of dishonest fabrication of evidence. Such argument is unjustified with valid evidence.

29.It is trite that fabrication of evidence is very serious allegation. The burden is a heavy one, in that evidence to a very high standard of cogency is required: Shenzhen Honeycomb System Co Ltd v HCT Technologies (Hong Kong) Co Ltd, HCCT20/2019, unreported, 21 December 2020 at §6.

30.I am not convinced that the respondent has discharged such burden of proof. Not only that no material facts or particulars were provided in the Notice of Opposition, but that the respondent also failed to adduce concrete evidence to substantiate such serious complaints of dishonesty. He did not show how the colour and pattern of the appearance of the dyes was problematic or fabricated.

31.Insofar as the respondent seeks to rely on the photos to comment on the colour, pattern, shape and direction of the water marks and the water drippings and further submits that the dyed water path regarding the Two Areas as eventually presented in the test results were impossible, the respondent plainly fails to logically justify that line of challenge.

32.On the contrary, S Cheung sensibly explains that the colour and pattern of the appearance of dye depended materially on the shapes, sizes and locations of the cracks, holes or gaps in the floor slabs, the volume of water used for the water ponding test as well as the volume of water subsequently poured onto the floor slab. The direction of the water flow could not be ascertained without knowledge of the distributions, sizes and shapes of those cracks, holes and gaps of the floor slabs. So long as usage of water occasioned at the Upper Premises, the appearance of dye at the Lower Premises might change in terms of color and form over time. The water holding capacity mechanism as elaborated above added further impact on the color and pattern of the water seepage. He detected no abnormality as to the Two Areas.

33.Viewed in this light, the respondent’s another argument that the colour of the dyed water found in the Lower Premises should be “lighter” due to dilution and the lapse of time is devoid of scientific analysis. Moreover, there is indeed no evidence of scientific comparison of the darkness of the colour between the dyed water used in the Upper Premises and the dyed water found in the Lower Premises was provided to substantiate its challenge.

34.Further, absent any concrete evidence to show how the dyed water appeared at the Lower Premises was or could be fabricated, not to mention that neither expert evidence nor laboratory test on the alleged fabricated water marks or water drippings was produced, it is unconvincing that Lam or his Family Members would have fabricated those evidence in view of the serious criminal implications and consequences flowing from fabrication of evidence. Lam’s reiteration that he had no access to those colour dyes remained unshaken under cross-examination.

35.Thus considered, the second challenge carries no merit.

TRAVEL DISTANCE

36.The respondent’s third challenge focuses on the Living Room Area and is premised on the travel distance of the dyes. It was recorded in the JO Report that “AR” dyes were exclusively used for the water ponding test at Upper Room 3 and the “AR” dyes were found at the Living Room Area.

37.However, the Two Experts unanimously agreed that Upper Room 3 could not be the source of water seepage of the Living Room Area as stated in the JO Report because the distance between them far exceeded the travel distance of the dyes. It was impossible for the “AR” dye to travel such a long distance to damage the Living Room Area. S Cheung further agreed that the lack of dyed water at the rusty hole as depicted by photos no. 51 and 52[14] indicated that the “AR” dye did not pass through the living room to the Living Room Area. According to the Two Experts, the conclusion on the source of water seepage of the Living Room Area being Upper Room 3 must be a mistake.

38.S Cheung suggested that the mistake was due to a typo when WMH compiling the JO Report. He considered that WMH had incorrectly recorded “AR” dye instead of “WT” dye and accordingly the source of water seepage at the Living Room Area should be Upper Room 1 instead of Upper Room 3. His suggestion rests on the following reasons:-

(1)  both “AR” dye and “WT” dye are reddish colour and it is difficult to differentiate reddish dyes for there are a wide range of reddish dyes.

(2)  the distance between the “WT” dye from Upper Room 1 and the Living Room Area is within the usual travelling distance of the dye.

39.I am slow to accept such suggestion. It tends to be speculative and tantamount to reversing the cause and effect relationship. As contends by Mr Li, counsel for the respondent, such suggestion was not based on actual facts but just conveniently proposed that given the “AR” dye could not have travelled to damage the Living Room Area, it then searched for the closest bathroom of the Upper Premises where reddish dye was used to fill in the blank. It is upon such artificial exercise that led to an unsafe conclusion that the reddish colour should have been “WT” dye (instead of “AR” dye) which came from Upper Room 1 merely because it was the closest area to the Living Room Area where reddish dye was used.

40.Further, I cannot ignore the fact that although both “AR” dye and “WT” dye are said to be reddish colour, it is beyond dispute that they are different colours, “AR” dye is deep red whereas “WT” dye is more alike to bright orange. According to the JO Report, “AR” dye was used exclusively in the Upper Room 3 whereas “WT” dye was used in Upper Room 1, Room 5 and the kitchen of the Upper Premises. There were also other reddish dyes used in several other rooms of the Upper Premises.

41.While the visible difference between “AR” dye and “WT” dye was illustrated in the photos of the JO Report, it is however impossible to match the dye found at the Living Room Area with any of the colour dye used at the Upper Premises merely basing on the photos of the JO Report or according to the names or descriptions of the dyes. Besides, “WT” dye was used not only in Upper Room 1 but also in other rooms. The use of other reddish colours in other rooms further complicated the matching exercise. Hence, it is unsafe to arbitrarily regard the “AR” dye must be “WT” dye.

42.Indeed, the evidence before me is not sufficient to safely draw a conclusion that the record as to the “AR” dye being found at the Living Room Area must be wrong. As Mr Li points out, the record about the “AR” dye did not only appear once but repeated in different forms in the JO Report, ie ticking the box and textual description as “AR dye was noted at the living room on 5/8/2014”. S Cheung agreed that colour identification is crucial in water ponding test. Being a professional investigator, WMH was duty-bound to be cautious about colour. He should not have got mixed up with the colour and would have arranged laboratory test if in doubt. On the evidence before me, the possibility that there might be some other sources of reddish water seepage which did not come from the Upper Premises cannot be safely ruled out.

43.Looking at all the relevant matters in the round, it is clear to me that the water seepage at the Living Room Area must not originate from Upper Room 3. Besides, I am not persuaded that the dye found in the Living Room Area must be “WT” instead of “AR” as suggested by the applicant. Nor can I accept the water seepage at the Living Room Area was originated from Upper Room 1.

44.In the premises, the applicant fails to discharge its burden of proof to show that the water seepage at the Living Room Area was originated from the Upper Premises. Neither from Upper Room 1 nor from Upper Room 3. The source of the reddish water at the Living Room Area remains unknown. The actual water path cannot be ascertained and the possibility of some other sources cannot be ruled out. After all, the respondent is not obliged to find out the source of water seepage for the applicant in law.

45.That said, I am not convinced that the insoluble problem with the Living Room Area has rendered the whole JO Report unreliable bearing in mind that the water ponding tests were conducted separately and independently at different rooms at the Upper Premises. The procedures of the tests and their test results have been individually recorded in writing with photographs and diagrams attached for illustration in the JO Report. There is no convincing evidence giving rise to actual detection of abnormalities.

46.For the reasons set out above, the fact that the water seepage at the Two Areas were originated from Upper Room 4 as found in the JO Report was sufficiently proved with concrete evidence. No significant abnormality or errors were detected regarding the whole investigation procedure relating to the Two Areas as recorded in the JO Report[15]. The respondent fails to mount any serious challenge that the water marks and drippings found at the Two Areas were not compatible and consistent with the applicant’s case that water seeped from Upper Room 4 in terms of travel distance of dye or colours and patterns of water marks and drippings.

47.For the Two Areas, WMH’s view that rain water should not be the cause of water seepage to them is not and indeed could not be seriously disputed. The Two Experts have no disagreement that water originated from the windows or external walls could not travel far enough to damage the Two Areas.

TYPOS IN THE JO REPORT

48.Obviously, the other errors in the JO Report are mere minor typos which are not significant enough to invalidate the reliability of the JO Report.

49.First, the respondent’s challenge that only some photos in the JO Report were date-stamped whereas the others were undated was fully answered by S Cheung. I accept his detailed explanation that a dye is a coloured substance that chemically bonds to the substrate to which it is being applied. It is a common practice that the investigators (including himself) will use different cameras and mobile phones for photoshoot so as to capture the best photos according to the dyes’ respective colour sensitivity. I accept that the photos without date-stamp should be attributed to the use of different cameras or mobile phones.

50.Second, the date “5/6/2014” of the statement that “No colour dye was noted at the affected seepage area on 14/6/2014 and 5/6/2014” on [TB/B1/219] as well as the date “20/6/2014” in the table on [TB/B1/264] are apparently mere clerical errors in light of the agreed fact that no investigation was conducted on those two days. After all, such slip errors could not amount to any significant impact on the reliability of the JO Report.

51.As explained above, the respondent’s serious allegations that Lam and/or his Family Members had fabricated the test results or water seepage problems were unproven. The respondent fails to adduce cogent and compelling evidence in support of such serious allegations. No compelling inference about fabrication of evidence can be drawn.

52.All the relevant matters considered, I form the view that other than the record and conclusion regarding the Living Room Area and a few minor clerical errors as elaborated above, the JO Report has accurately recorded the procedure and results of the water ponding test regarding the Two Areas, upon which the sources of water seepage of the Two Areas was properly identified as Upper Room 4.

THE STRUCTURE

53.In light of my findings above, the applicant’s claim regarding the Living Room Area cannot succeed. Thus viewed, the respondent’s argument that the Structure could be the real source of water seepage at the Living Room Area does not add much impact on the present proceedings. For completeness sake, I will briefly deal with the issue as follows.

54.The Living Room Area was quite far away from the windows and external wall but immediately adjacent to the Structure. The applicant contends that WMH has already taken into account the Structure by making reference to WMH’s expressed answer to the question of whether “[t]here is possibility that the source of seepage may originate within the affected premises” was “No; it should be of other sources” in the JO Report.

55.Reliance has also been placed on S Cheung’s evidence that he had personally carried out measurements and visual inspection at the Structure and consequently, he was able to rule out the Structure being the source of water seepage due to the following matters:-

(1)  The height of the Structure was lower than the headroom of the Lower Premises[16]. Therefore, water would not have come from the Structure anti-gravity to damage the Living Room Area.

(2)  No sign of water seepage was detected in the interior of the Structure nor from the interior of the Lower Premises.

(3)  Watermarks caused by rainwater should not be coloured.

56.On the evidence before me, the possibility of the Structure being the source of water seepage at the Living Room Area cannot be safely ruled out for the following reasons:-

(a)  The Structure was constructed on the rooftop of flat D of the 11^th floor of the Building by the applicant. Fung opined that the Structure created a lapping gap that allows water to penetrate into the Lower Premises. S Cheung also agreed that the construction of it would damage the wall of the Lower Premises as well as its water-proofing membrane.

(b)  After the water-proofing work done on the outer wall of the Structure in early October 2014[17], the applicant had not made further complaint of water seepage since then.

(c)  S Cheung’s physical and visual inspection on the Structure was conducted in July 2023, long after the compiling of the JO Report in August 2014, the cessation of water seepage after September 2015 (as alleged by the applicant) and the applicant’s renovation work done for the entire Lower Premises in 2016. His observation of no sign of water seepage at the Lower Premises several years later does not necessarily mean that the Structure was not the source of water seepage from 2013 to 2015.

(d)  After cross-examination, S Cheung’s measurements are clearly in doubt by reason that:-

(i)  the floor plan (or scale) drawn by S Cheung has not taken into account the thickness of the roof of the Structure and the inclination of the roof. When challenged under cross-examination, S Cheung said that the thickness of the roof should be 75mm and the inclination of the roof should be 50mm higher than the original outer wall. However, he had not kept such measurements in details in his reports but happened to recall them when testified at trial after a long lapse of time.

(ii)  the aforesaid measurements do not sit well with the roof as depicted in the photos. The photos show that the roof was not perfectly flat, even or smooth. Some photos show obvious inclinations.

(iii)  despite it is said that the full height of the living room should be 2885mm, the plan drawn by S Cheung did not contain the thickness of the ceiling slab and the thickness of the false ceiling beam.

(iv)  S Cheung admitted that he had not measured the same. For the ceiling slab, he could only assume that it was 125mm according to the building standard, but there is no evidence for proof that the Structure was built according to the building standard. Besides, he could only give an estimation that the beam should be of a height of 100mm. Such estimation was neither recorded in his report[18] nor justified with valid reason.

57.In view of all the uncertainties aforesaid, not to mention the small estimated difference of the height between the living room and the Structure, I accept Mr Li’s submission that it cannot be safely concluded that the ceiling of the Structure was lower than that of the living room of the Lower Premises or that the difference of the height was so large that could rule out the possibility that the accumulation of water running from the Structure, be that rainwater or any other water, through the roof and the wall between the Structure and the Living Room Area would not have caused the water marks or water drippings at the Living Room Area.

58.By a close study of the JO Report, there is indeed no clear evidence to suggest that WMH had actually investigated the Structure, the roof and the wall between the Structure and the Living Room Area, the possibility that the Structure was the source of water seepage at the Living Room Area cannot be eliminated. This is even so for the reddish water marks or drippings so long as there has been no serious investigation at the Structure and the possibility of it being the source of water seepage remained unaddressed.

59.In all, with the limited and unsatisfactory evidence, the applicant fails to discharge its burden of proof that the Upper Premises was the source of water seepage at the Living Room Area. It only succeeds in proving that the water seepage at the Two Areas was originated from Upper Room 4.

DISCOVERY OF WATER SEEPAGE

60.I am also satisfied that the background facts support my findings as set out above which I will concisely set out as follows:-

(1)  From mid-December 2013 to January 2014, the Upper Premises underwent extensive renovation by the respondent’s new tenant for the purpose of operating a new guesthouse business (with 9 independent guest rooms with en-suite bathrooms).

(2)  Extensive renovation was carried out at the Upper Premises including installation of water pipes and replacement of floor tiles, wall tiles, drainage and sanitary fixtures, etc. for the 9 en-suite bathrooms, kitchen and toilet.

(3)  The applicant’s complaints about water seepage from the Upper Premises to the occupants of the Upper Premises were evidenced in two letters of admission (collectively, the “Tenant’s Letters”) sent by the respondent’s then tenant to Lam as follows:-

(i) The Letter dated 15 August 2014

“尊敬的金冠大廈12C業主林先生，

2013年12月份的時候我們單位進行裝修，在施工期間發生了漏水跡象，但施工方刻意隱瞞漏水情況並未告知我們實情，我們完全不知道單位有漏水問題，並且該問題已給您造成影響，我們也未能及時做出相應解決措施，更未能及時向您表達我們的歉意，我們深感抱歉。

目前我們已更換施工方重新處理我們單位漏水問題，待漏水問題妥善解決後，我們懇請林先生接受我們提供的專業修補。修補的全部費用由我們承擔，懇請林先生接受我們的道歉及修補安排。

感謝您！

新金冠賓館（金冠大廈13C）”

(ii) The Letter dated 26 September 2014

“尊敬的金冠大廈12C業主林先生，

我們于2014年8月15日去信到貴單位，但暫時未見你的回複。待漏水問題妥善解決後，我們懇請林先生接受我們提供的專業修補。修補的全部費用由我們承擔，懇請林先生接受我們的道歉和修補安排。我們再次向您致以最真誠的道歉！

感謝您！

新金冠賓館（金冠大廈13C）

2014年9月26日”

61.Such statements of admission of liability were strictly against the interest of the respondent’s former tenant who should have been very cautious in making such self-incriminating admission and committing itself to liability for compensation. Coupled with the respondent’s confession that his former tenant had more knowledge about the affairs of the Upper Premises at the material times, the said two letters should be accorded substantial weight in the analysis of the factual issue.

62.Further, without proper reasons[19], the respondent chose not to call that former tenant to give evidence so as to explain away such admissions against self-interest or to contradict the applicant’s case. Therefore, adverse inference can also be drawn against the respondent for his failure to call the tenant to testify: Shun Hing Electronic Trading Co Ltd v Sunrise Air-Conditioning Co Ltd & Ors, HCA251/2018, unreported, 6 May 2021 at §27.

63.This is particularly so when the respondent had been served with several complaint letters of the applicant since 6 February 2014, the letters making reference to the test result of the JO Report since 22 September 2014[20] and the present action was commenced on 18 August 2015. The respondent actually had ample time to gather witness evidence and documentary evidence to dispute the applicant’s allegations.

64.Viewed in this light, the respondent has only his own bare denial of water seepage taking place before 5 February 2014, which is not sufficient to overcome the above contemporaneous evidence against him.

65.On the other hand, the respondent has also referred to a settlement agreement made between Lam and the respondent’s previous tenant (who ceased to be the respondent’s tenant at or around the end of November 2013) to allege that Lam had made another complaint of water seepage from the Upper Premises to the Lower Premises as early as in November 2013 for obtaining HK$30,000 as compensation by extortion. On such basis, the respondent argues that the water seepage should be pre-existing and irrelevant to the renovation of the Upper Premises from December 2013 and/ or that Lam had the practice of making false accusations of water seepage in exchange for monetary compensation.

66.However, the cause, location and extent of the water seepage concerned in November 2013 was not accounted for. Neither witness evidence of the said former tenant nor expert evidence was adduced in this respect. There is no solid evidence to suggest that the two events were inter-related or that they shared the same source of water seepage. A bare assertion is not sufficient to justify the respondent’s allegation that the “water seepage continued despite the renovation work” or that “the water seepage still occurred while no one was actually in or using” the Upper Premises.

TEMPORARY SUSPENSION BETWEEN 21 JULY 2014 AND 11 AUGUST 2015

67.It is the applicant’s position that the water seepage temporarily stopped due to the suspension of the guesthouse business at the Upper Premises between 21 July 2014 and 11 August 2015.

68.The respondent does not agree. He says that the temporary cessation of water seepage only took place in around October 2014, immediately after the water-proof work to prevent water seepage through the Structure had been carried out by his then tenant for the applicant. He seeks support from the following matters:-

(a)  the applicant’s own statement in its letter dated 6 August 2014 that despite guest house suspended, “the problem remains”.

(b)  despite the respondent’s tenant suspended the guesthouse business during such period, the Upper Premises was occupied by his friends.

(c)  waterproofing work was carried out by the respondent’s then tenant at the connecting point of the Structure and the external wall of the Building as evidenced in the notification letter issued by the renovation company[21]. Thereafter, there had been no complaint from the applicant.

69.In my view, the inconsistency between the parties’ allegations can be reconciled by the operation of the water holding capacity mechanism. Despite the suspension of business at the Upper Premises, the water holding capacity of the concrete slab had delayed the appearance of the water seepage as illustrated in the JO Report. Given the JO Report was compiled on 5 August 2014, the applicant was understandably to have issued the complaint letter on 6 August 2014 as a result.

70.What is important is that there had been no further serious complaints about water seepage thereafter. Apparently, the suspension of water seepage sits comfortably with the combined effect of the suspension of business at the Upper Premises together with the completion of the repair works to rectify the water seepage problem at the Upper Premises before 5 September 2014 (as verified by the Joint Office) as well as the water-proofing works done to the Structure in early October 2014.

71.It is noteworthy that during the period, there were repair works to rectify the water seepage problem at the Upper Premises (as disclosed in the Tenant’s Letters) and such works were completed to the satisfaction of the Joint Office on 5 September 2014 as evidenced by the JO Confirmation Letter dated 14 November 2014 in that the Joint Office confirmed that the Nuisance Notice had been fully complied with and no further follow up action was required.

72.Such background facts actually support my findings on the above defined sources of water seepage of the Two Areas and the unknown source of the water seepage at the Living Room Area. I should add that if the Structure was not considered as a possibility of the source of water seepage to the Lower Premises, it is unlikely that the respondent’s then tenant and the applicant would jointly agree to arrange water-proofing works over the Structure.

73.As the respondent explained, his then tenant was willing to do such work for the applicant because the then tenant was keen to stop the applicant from complaining water seepage so as to renew its licence to operate the guesthouse business. Indeed, the licence was subsequently renewed for 1 year from 16 July 2015 after the suspension of business from July 2014 to July 2015.

74.As to the respondent’s allegation that the Upper Premises were occupied by his friends during the period was lack of details or corroborative evidence. Such vague allegation cannot advance his position any further.

ALLEGED RESUMPTION OF WATER SEEPAGE IN AUGUST 2015

75.As to the applicant’s assertion of resumption of water seepage in August 2015, it refers to the following matters in support:

(1)  A “renew licence note” was posted at the main door of the Upper Premises, showing that the licence of the guesthouse was renewed for another year from 16 July 2015.

(2)  On 11 August 2015, some pieces of plaster coat and paint dusts were alleged to have found falling away at the Lower Premises and part of the ceiling was allegedly soaked. Lam adduced photos to evidence the condition.

(3)  On 14 August 2015, an officer of the Joint Office inspected the Lower Premises with a finding that the readings at certain spots of the Lower Premises were higher than 90 whereas a normal reading would be just around 25.

76.I however do not find the applicant’s allegation of resumption of water seepage caused by the Upper Premises in August 2015 convincing by reason of matters set out below:-

(a)  The allegation of resumption of water seepage after a lapse of one year is not supported with scientific test or expert evidence as to the source of the water seepage. The causation between the water seepage and the Upper Premises was not established with solid evidence other than a mere speculation apparently basing on the resumption of the guesthouse business at the Upper Premises.

(b)  Given the lapse of 1 year during which renovation and repair works to rectify the water seepage problem at the Upper Premises were done to the satisfaction of the Joint Office on 5 September 2014 as evidenced by the JO Confirmation Letter, no inference can be drawn that the Upper premises remained to be the source of the water seepage.

(c)  The respondent’s evidence that he had personally visited the Lower Premises and found that the walls of it were dry remained unshaken during cross-examination.

(d)  In reply to the applicant’s complaints of resumption of water leakage, the respondent, by his solicitor’s letter dated 3 November 2015, sent the Tenant’s Report and the JO Confirmation Letter to the applicant for proof of the water seepage of the Lower Premises being unrelated to the Upper Premises, in particular, not caused by Upper Room 1 or Upper Room 2 as indicated by the Tenant’s Report, and, asked to conduct joint examination for Upper Room 3 and Upper Room 4. In return, the applicant declined the repeated invitations and confirmed that the water seepage had already ceased.

77.In further consideration of the applicant’s declared stance of cessation of water seepage in September 2015, of the absence of evidence that indicated any serious repair works had ever been done at the Upper Premises from August to September 2015, and of the continuous operation of the guesthouse business in the Upper Premises from and beyond July 2015, the water seepage in August 2015 was demonstrably unrelated to the Upper Premises.

78.In the premises, I accept the respondent’s submission that the applicant fails to prove its allegation of resumption of water seepage from the Upper Premises in August 2015.

79.I should add in passing that Lam’s bare assertions of occasional water seepages in recent years as well as his sudden accusation of water seepage in August 2015 was caused by the water pipes of the Upper Premises in the witness box at trial were unsupported with concrete evidence. They are indeed out of the scope of the present proceedings. They were neither mentioned in the NOA, nor justified with particulars or solid evidence. Such new complaints were not mentioned in the JO Report nor supported by his own expert evidence. Most of them were even subsequently proven to be unrelated to the Upper Premises.

80.Attempts have been made by Lam to produce his own drawings or records in support of his complaints of water seepage. Most of those documents are self-serving without corroborative evidence to verify the truth and accuracy of them. Some of them are plainly not covered by the NOA and are out of the scope of the present proceedings. They are neither mentioned in the JO Report. Nor investigated by the Two Experts. They cannot take the applicant’s position in the present proceedings any further.

CONCLUSION ON SOURCE OF WATER SEEPAGE

81.Having considered all the evidence before me, I form the view that the background facts sit well with my findings drawn from the JO Report as well as the evidence of the Two Experts. I am satisfied that the applicant has discharged its burden of proof in showing on a balance of probabilities that the water seepage of the Two Areas was originated from Upper Room 4 prior to 5 September 2014. The seepage correlated with the usage of Upper Room 4. The correlation was scientifically backed up by the JO Report as well as the expert evidence. I also take the view that the water seepage of the Two Areas which was originated from the Upper Premises actually ceased no later than 5 September 2014.

82.However, I am not persuaded that the applicant has discharged its burden of proof that the water seepage at the Living Room Area has ever been originated from the Upper Premises or that water seepage originated from the Upper Premises resumed in August 2015 or thereafter.

LIABILITY

83.As elaborated above, it is clear that water seepage from Upper Room 4 to the Two Areas causing damage to the Lower Premises had started and continued since (no later than) 5 February 2014 until (no later than) 5 September 2014. The respondent had allowed the water seepage continue notwithstanding the applicant’s repeated complaints by Lam, its solicitors by letters dated 6 February 2014[22], through the Management Office on 5 February 2014 and through the Joint Office on 18 February 2014.

84.Obviously, the respondent had failed to take timely and effective action to stop the water seepage by himself other than leaving the complaints to be mainly handled by his tenants. He had not issued any timely constructive reply letters to the applicant or engaged any contractors or experts to carry out serious investigations and repair works to effectively and completely rectify the situation at the start, ending up with the continuation of the water seepage for almost 7 months, until after the issuance of the Nuisance Notice, only by then his tenant carried out serious repair works to remedy the water problems. The Nuisance Notice was only complied with on 5 September 2014.

85.The respondent admitted during cross-examination that he had retained the power and control over the Upper Premises at all material times. The evidence also shows that he had retained the power to repair, manage and make good the defects of the Upper Premises. It is his evidence that he had caused his former tenant to pay HKD30,000 compensation for water seepage to Lam in November 2013, in that he had contributed part of such monetary compensation.

86.Truly, since February 2014, the respondent had repeatedly reminded his tenant to follow up Lam’s complaints and to rectify the situation. He had also on occasion visited the Lower Premises to inspect the water seepage areas but it was only when Lam complained about resumption of water seepage in August 2015, the respondent then asked for conducting water tests to the Two Premises to ascertain the source of water seepage after sending the Tenant’s Report and the JO Confirmation Letter to Lam in November 2015 and January 2016.

87.In private nuisance, even if a landlord neither knew nor ought to have known of the disrepair at the time of the letting, the landlord may nevertheless be liable for such conditions arising during the tenancy if the landlord has retained a measure of control over the premises, and the landlord is in no better position by virtue of having taken a covenant from its tenant: Wong Huen Min v Wong-Kong Chong-Kam-Sau Tong Clansman Association Ltd, DCCJ 6455/2004, unreported, 1 August 2007.

88.In the circumstances, by allowing his tenants to cause physical damage to his neighbour’s land and further, adopting the continuation of the nuisance, notwithstanding he was put on notice and was requested to stop such damage, the respondent should be liable by his failure to maintain and keep the Upper Premises in good condition and repair as well as to take reasonable steps to stop the water seepage upon being notified of the complaints in early February 2014: Sum Wing Sung v Kwok Wing Yan Vivian & Anor [2021] HKDC 766 at §§60-67.

89.The fact that he did not live at the Upper Premises or that the JO Report was only first disclosed to him by the applicant’s solicitor’s letter dated 22 September 2014[23] is not a valid reason for his unreasonable delay to remedy the problem before 5 September 2014 bearing in mind that the involvement of the Joint Office was not a prerequisite for establishing liability. The respondent was not entitled to adopt a wait-and-see attitude by depending on the Joint Office to work out the matter for him. The law imposes an obligation on an owner to remedy the water seepage problem in a timely and effective manner and without unreasonable delay: 張秀玲及吳炳漢 對鄭禮莊, CACV 268/1998, unreported, 9 April 1999.

90.Given my finding that the Upper Premises being the source of the water seepage of the Two Areas, it follows that the respondent is also liable in both torts of negligence and breach of the DMC. It is unquestionable that the proximity between the Two Premises gave rise to a duty of care between the parties to found an action in negligence. A common law duty is imposed upon a neighbour to keep his property in proper repair and watertight so as not to allow water seeping through its property to and damaging his neighbour’s property while knowing or ought to be knowing of such seepage and that the waterproofing system of his property had already become defective.

91.The respondent was also in breach of clauses 11, 13(a) and 13(c) of the DMC mandating him to keep the Upper Premises in good conditions and tenantable repair and should not cause or permit to be done anything which may be or become a nuisance, annoyance or inconvenience to or cause damage to other owners and occupiers for the time being. On the other hand, the finding of breach of the DMC has rendered section 34H of BMO inapplicable.

RELIEF

92.In coming to the conclusion that the respondent has been in breach of the DMC, negligence and nuisance, the applicant is entitled to damages for the loss and damage suffered as a result of the water seepage.

COST OF REPAIR

93.The applicant claims for the cost of repair incurred in the sum of HK$814,700 in reliance on the revised invoice dated 30 December 2016 which was issued by Ho of Kent Construction & Decoration Co.. In reply to the challenge that the amount sought was grossly inflated, Lam explained that his Family Members needed a comfortable and safe home for residence and there were too many loosing concrete stone pieces at the ceiling necessitating more efforts and costs to remedy the large-scale damage caused by the water leakage. Ho testified that his service charges were discounted and reasonable.

94.For the following reasons, I find the amounts claimed are unreasonably excessive. First, the respondent should only be liable to make good the areas which were actually damaged by the water seepage originated from the Upper Premises. For the reasons aforesaid, such areas were confined to the Two Areas as identified in the JO Report, being a small part of the ceiling of the corridor and a small part of the ceiling of Room 4 of the Lower Premises as identified in the LP Plan. On the evidence before me, including the photos provided by the applicant, the damaged areas could not be regarded as large-scale or very serious as the applicant alleges.

95.Further, the respondent should not be made liable to the other areas where there is no solid evidence that they were damaged by water seepage from the Upper Premises. Hence, the applicant’s present claim for not only the repair costs for the Two Areas but also renovation costs and for the whole Lower Premises, including 5 bedrooms, kitchen, living room and dining areas, is unjustified and must be rejected.

96.In fact, the applicant’s grossly inflated claim is well-reflected in the quotations it obtained nearer the occurrence and cessation of the water seepage incident. The cost for repair was originally quoted at HK$280,000 by Ho on 8 August 2014 only. Even though Ho tried to explain that that was just a rough estimation because the damage by water seepage over years could have worsened and the repair could not be limited to only the part that visualized as damaged by water seepage, and had to extend to surrounding areas, such explanation is unsupported with detailed particulars or solid evidence.

97.Under cross-examination, Ho finally confirmed that the repair cost even for the Three Areas (not the Two Areas) should be less than HK$300,000 and it would only take 1 month to complete the works.

98.Besides, Lam obtained another quotation for the repair costs from another constructor, Tung Shing Electric Engineering Company, on 11 August 2014. The quoted price was HK$283,000.

99.Further, the applicant had through its solicitors engaged the Madam Leung Chi Hang Joy to assess its loss and damages flowing from the water seepage in 2016. Based on the inspection on 4 May 2016, the loss and damages were assessed and such assessment was only set out in the Loss and Damage Report dated 26 February 2020. In that, the areas said to be required repair were designated in a marked picture and the repair costs of them were assessed at HK$340,973. It is noteworthy that those areas were far larger than the Two Areas.

100.By the letter of the applicant’s solicitor dated 22 September 2014, the applicant had the benefit of legal advice and only claimed for HK$280,000.

101.In the closing submissions, Mr Cheung, counsel for the applicant, sensibly concedes that whilst the applicant maintains that the quantum it puts forward represents the actual cost of repair incurred, the applicant would only ask for HK$300,000 if only the Three Areas (together with nearby areas) are found to have to be repaired.

102.Taking into account of all the relevant matters in assessing the reasonable cost of repair and reinstatement for the Two Areas together with the nearby areas, I form the view that HK$180,000 will be the reasonable costs.

COST OF ALTERNATIVE ACCOMODATION

103.The applicant claims HK$1,480,000 for alternative accommodation during the period from 15 June 2014 to 30 December 2015, with a monthly rental of HK$80,000-90,000. However, the applicant fails to discharge its burden of proof on such item of claim.

104.Other than Lam’s bare assertions, there has been no solid corroborated evidence in support of his allegation that his Family Members had actually moved out from the Lower Premises to live at the alternative accommodation, that they had lived there for 18.5 months, that payments were actually made for such expenses, that such move was reasonably necessary.

105.As Mr Li contends, there has been no record or document at all evidencing the existence of a tenancy agreement of the alternative accommodation, of the rental payments as receipts or bank records, of their residence at the alternative accommodation as bills of utilities charges or removal expenses.

106.When being challenged about the complete absence of actual evidence other than bare assertions, Lam resorted to explain that the alternative accommodation was owned by another company of his family and the rental expenses were regarded as a liability owed to that company. However, such bare allegation is not supported by any corroborative evidence. There was no accounting books and records, no financial statements from either the applicant or the alleged landlord company, no loan agreement to evidence such alleged arrangements.

107.After all, the alleged rental liability, even if existed, which I do not so find, had not been paid for more than 7 years, they apparently were not treated as serious or enforceable liability and, in any event, would have been time-barred under the Limitation Ordinance, Cap 347.

108.In further consideration of the fact that none of the Family Members gave evidence in these proceedings, that the damaged areas were confined to the Two Areas, that Lam was aware that the guesthouse business at the Upper Premises was suspended no later than 21 July 2014, that the alleged water seepage stopped at 21 July 2014, that the repair works at the Upper Premises were completed no later than 5 September 2014 as confirmed by the Joint Office, that Ho confirmed that the remedial works should not take more than 1 month, the applicant fails to justify why alternative accommodation was reasonably necessary from 15 June 2014 and still required after 21 July 2014 and even up until 30 December 2015.

109.Further, I should not neglect the applicant’s inconsistent evidence in this respect. By the letter of the applicant’s solicitor dated 28 December 2015, the cost of the alternative accommodation was alleged to be HK$1,020,000 only. At trial, contrary to his own allegations and Ho’s evidence, Lam testified that the renovation work at the Lower Premises were not commenced in mid-2016 but after 2016 and that the Family Members had stayed at the alternative accommodation for 3 years instead of 18.5 months and they only moved back to the Lower Premises in January 2017. No convincing explanation was offered to reconcile the sharp inconsistencies or justify such arrangements. Thus considered, the alternative accommodation, even if existed, which I do not so find, was apparently not related to the water seepage caused by the Upper Premises.

110.Absent any solid evidence for proof of the applicant’s allegations and in light of the many inconsistencies of evidence aforesaid, the applicant fails to prove its claim that the Family Members had actually moved out from the Lower Premises to live at the alternative accommodation, that they had lived there for the 18.5 months, that payment liability was actually incurred, that such arrangement was reasonably necessary as a result of the water seepage from the Upper Premises. I reject such item of claim.

GENERAL DAMAGES FOR DISCOMFORT & INCONVENIENCE

111.The applicant claims HK$740,000 for general damages for discomfort and inconvenience flowing from the loss of proper use and enjoyment of the Lower Premises. Lam elaborated the amount sought during trial as follows:-

“Question:「損失，點計出嚟?」

Answer: 「我哋係呢個大廈住咗幾十年我爸爸媽媽係六間公司既股東同執行董事。」、「有會議室，要商議。搬 走咗之後，

又要去新嘅地方去整會議室，又要整好多設備」、「年老」、「只係一封信已經要走嚟走去」、「影響好大」”

112.Strictly, the cost of renovation and purchase of equipment and furniture for use at an alternative accommodation is not recoverable under such head of claim, not to mention that there is indeed no solid proof of such expenses incurred as well as the residence at the alternative accommodation.

113.Besides, Lam’s unexpected evidence at trial that the Lower Premises was also used by his parents for commercial use was not mentioned in the NOA. It also runs counter to his own witness statement that the Lower Premises was used for accommodation as well as the applicant’s case that the premises at the Building were strictly restricted for residential use only and commercial use was prohibited under the DMC. This is actually one of the causes of action against the respondent in this action. No credible explanation was offered by Lam to resolve the inconsistency.

114.Indeed, having considered all the evidence before me as summarized above, Lam strikes me as an unreliable witness who tended to exaggerate the loss and damages caused by the water seepage originated from the Upper Premises. Even though I do not believe that he has gone so far as to fabricate physical evidence of water seepage as alleged by the respondent, ie water marks and water drippings, for the reasons set out further above, he nevertheless did excessively inflate the amounts claimed for the loss and damages suffered by the applicant.

115.In the closing submissions, Mr Cheung sensibly conceded that taking into account the authorities in this area, including, Wong Hon Hung & Anor v Jolly Birds Ltd, DCCJ 5341/2006, unreported, 24 June 2008 at §§123-124 and all the circumstances of this case, the applicant would instead, propose an award of at least HK$100,000 to be granted.

116.In assessing the validity of such claim, I remind myself that damages for discomfort and inconvenience flowing from loss of proper use and enjoyment of a landed property will not be lightly granted to a corporate applicant. That said, the applicant’s case that Lam’s parents acquired the Lower Premises in the name of the applicant company and it was acquired for the purpose of providing residence to the applicant’s majority shareholders (Lam’s parents) to live together with their family members and it had been so used since its acquisition as endorsed by the applicant’s director (Lam) is not seriously challenged by the respondent. The use of the Lower Premises as residence is well-demonstrated in all the photos produced by the parties. Hence, I am satisfied that the applicant is entitled to make a claim under this head: Well Force Company Limited v Boomway (Hong Kong) Limited, HCA4480/1994, unreported, 7 July 1998[24] .

117.In view of the duration of the water seepage was relatively short, the extent of damage could not be regarded as very serious as alleged by Lam and the use of the Lower Premises by Lam’s Family Members as their residence, I form the view that HKD50,000 is appropriate.

INJUNCTIVE RELIEF

118.Given the water seepage actually ceased long before 5 September 2014 and the Upper Premise has no longer been used for guest house since January 2022, there is no urgency or need for the grant of mandatory injunctive relief.

119.In reaching such conclusion, I have also taken into account of the respondent’s proactive attitude and actions in following up Lam’s complaints of resumption of water seepage since August 2015. In particular, the respondent has since August 2015 repeatedly invited Lam to conduct test to investigate the applicant’s alleged water seepage, which was rejected by the applicant in January 2016. He also actively responded to Lam’s complaints of water seepage in recent years. On the other hand, the applicant failed to justify its repeated allegations of water seepage was caused by the Upper Premises after September 2014.

120.Taking into account the cessation of water seepage 9 years ago, the Upper Premises is no longer used for guesthouse, the history of the conducts of both parties, their attitudes in recent years, I find no valid basis for the grant of the injunctive relief relating to water seepage as sought by the applicant.

121.There are other minor points and arguments raised by the parties. Suffice it to say that I have considered all of them before arriving at my conclusion.

CONCLUSION

122.Given my finding of water seepage of the Two Areas prior to 5 September 2014 was originated from Upper Room 4, I should hold the respondent responsible to honor his commitment to give an undertaking not to use the Upper Premises for guesthouse business as he had agreed in terms of the undertaking as agreed by both parties.

123.Having considered all the evidence before me and the submissions of both parties, I order that the respondent do pay damages to the applicant totaling HK$230,000 as follows:-

(1)  The cost of remedial works at HK$180,000.

(2)  The general damages at HK$50,000 with interest be calculated at half judgment rate from the date of service of the Notice of Application until the date hereof and thereafter at judgment rate until full payment.

COSTS

124.Looking at the matter overall, the applicant only succeeded in some of its claims and the extent of success was, in monetary terms, substantially reduced. It would not be right to simply allow the applicant the whole costs of these proceedings.

125.Considering the issues litigated at the trial and adopting a reasonably broad brush approach, I make a costs order nisi that the respondent do pay the applicant 40% of its costs of this action, including all costs reserved, to be taxed if not agreed, with certificate for counsel. This costs order nisi shall become absolute in the absence of application to vary by Form 1 within 14 days.

126.It remains to me to thank both counsel for their able assistance.

Mr Tommy Cheung, instructed by Lo & Lo, for the applicant

Mr Ricky K Y Li, instructed by Bennett Chan & Co, for the respondent