Chu Cheung Cheung and Another v. The Incorporated Owners of Provident Centre No 21-53 Wharf Road, North Point, Hong Kong and Others
Read the full judgment text of DCCJ 244/2021 on BabelCite. This District Court judgment was delivered on 18 November 2024.
1. The disputes relating to this water leakage case have a chequered history that dated back to 2011 (which was 13 years ago).
Cites 19 cases
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DCCJ 244/2021 [2024] HKDC 1899 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 244 OF 2021 -------------------------- BETWEEN
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A. Overview 1.The disputes relating to this water leakage case have a chequered history that dated back to 2011 (which was 13 years ago). 2.The Plaintiffs are the registered owners of Flat D, 25/F, Block 12A, Provident Centre, Nos 21-53 Wharf Road, North Point, Hong Kong (hereinafter “Flat 25D”). 3.The 1st Defendant is the incorporated owners of Provident Centre. 4.The 2nd Defendant is the manager engaged by the 1st Defendant, and it is responsible for, inter alios, managing the common parts of Provident Centre on a day-to-day basis. 5.The 4th Defendant was a contractor engaged by the 1st and/or 2nd Defendants to carry out, inter alios, reparation works on the roof of Block 12A of Provident Centre. 6.Throughout the years, various contractors were involved in carrying out waterproofing works on the roof above Flat 25D[1]. Despite these repeated waterproofing works, the water leakage problem persisted and recurred. 7.By now, the 1st Defendant has provided an undertaking[2] that it would implement the recommendations set out in the survey report dated 21st September 2022 (hereinafter the “Global Generation’s Report”)[3] prepared by Global Generation Consulting Engineers Ltd (“Global Generation”). 8.Upon the 1st Defendant’s undertaking, the Plaintiffs were granted leave to withdraw its claims for mandatory injunction against the Defendants[4]. 9.The only outstanding substantive matter is the Plaintiffs’ claims for damages. 10.In the present trial:-
B. Material Background B1. Provident Centre, the Common Areas and the 25D Unit 11.The Provident Centre is an estate development that comprises 17 residential buildings. The individual units there have been occupied since around 1982. 12.The Plaintiffs are a married couple. Whilst the 1st Plaintiff[5] is a retired secondary school teacher, the 2nd Plaintiff[6] is a retired nurse. 13.On 4th November 1986, the Plaintiffs became the registered owners of Flat 25D in Block 12A. They purchased Flat 25D for investment purposes. At all material times, the Plaintiffs rented out Flat 25D for rental income[7]. 14.It is not in dispute that:-
B2. Events leading to DCCJ 2246/2014 15.As early as June 2011, the Plaintiffs made a complaint about water seepage in Flat 25D. From 2012 to 2013, Fai Hung Construction Co and SKY Waterproofer & Contractor Co Ltd (hereinafter “SKY”) were engaged by the 1st and 2nd Defendants, and they made no less than 8 attempts to repair the waterproofing membrane on the Roof[8]. However, the water seepage persisted. 16.As a result of the water seepage, the Plaintiffs’ tenant[9] made repeated complaints. He eventually ended the tenancy on 2nd July 2013[10]. 17.The 1st Plaintiff said that he engaged workers to repair and renovate Flat 25D on numerous occasions. Believing that the water seepage problem would soon be resolved, on 27th January 2014 the Plaintiffs leased Flat 25D to a new tenant named Hung Ka Shun (洪嘉信) (hereinafter “Mr Hung”)[11]. However, the water seepage problem was not resolved[12]. 18.Since the water seepage continued, in June 2014 the Plaintiffs commenced DCCJ 2246/2014 against the 1st and 2nd Defendants as well as SKY. 19.Pursuant to the consent order made by Master David Chan on 2nd November 2017, DCCJ 2246/2014 was settled. Whilst the 1st Defendant agreed to pay the Plaintiffs a settlement sum of HK$300,000, the 1st Defendant also undertook to carry out waterproofing work on the Roof by 15th March 2018. 20.The 1st Defendant says that it agreed to the aforesaid settlement on the basis that no liability was admitted and that it had fulfilled the undertaking under the said consent order dated 2nd November 2017[13]. B3. Works done pursuant to the 2016 Tender and December 2016 Engagement Letter 21.It appears that before the parties settled DCCJ 2246/2014, in October 2016, the 1st Defendant had already issued a tender in respect of the reparation works on the Roof (the “2016 Tender”). 22.The 1st Defendant received two quotations, one of which came from the 4th Defendant. 23.Pursuant to the engagement letter dated 21st December 2016 (the “December 2016 Engagement Letter”)[14], the 4th Defendant agreed to carry out, and did carry out, re-roofing works in respect of the floor on the Roof and the “parapet wall” on the Roof[15]. When the 4th Defendant’s witness, namely Mr Chiu Kwan Fung (趙均峰) (“Mr Chiu”) testified, he explained that “parapet wall” meant the L-shape junctures (up to 500mm vertically) between the floor on the Roof and the walls of the structures erected on the Roof. The L-shape junctures are colloquially referred to as “腳線”. Mr Chiu’s evidence is consistent with the contemporaneous documents (including the December 2016 Engagement Letter and the documents in respect of the 2016 Tender) and not in dispute. 24.Mr Stephen Siu (for the 4th Defendant) emphasizes that whilst the 2016 Tender consisted of 12 items of works, the 4th Defendant was only engaged to carry out 3 items of works pursuant to the December 2016 Engagement Letter. In particular, the 4th Defendant was not engaged to carry out any re-surfacing or reparation work in relation to the Water Tank Houses, which contain the flush water tank, the freshwater tank and the fire services water tank of Block 12A. The implications will be addressed hereinbelow. 25.According to the 4th Defendant[16]:-
26.As certified by the completion form dated 27th March 2018 signed by Mr Sammy Wong (黃偉霖), who was a senior building service engineer employed by the 2nd Defendant[17], the works under the December 2016 Engagement Letter had been completed, and the 4th Defendant provided warranty of 5 years. 27.Whilst the 1st and 2nd Defendants admit the 4th Defendant’s assertions[18], the Plaintiffs do not seriously dispute the same. B4. The Complaints and Events leading to the Present Action 28.It is the Plaintiffs’ case that despite the works carried out by the 4th Defendant, the water leakage in Flat 25D still recurred frequently (especially after rainy days). In particular:-
29.In light of the unsatisfactory condition of Flat 25D and the continuous water leakage problem, Mr Hung decided not to renew the tenancy, and he and his family moved out from Flat 25D on 28th June 2020[19]. 30.The Plaintiffs say that due to the hazardous condition and risks of physical injury as well as the recurring water leakage problems, they decided not to lease out Flat 25D and not to carry out internal decoration until the water leakage problem was satisfactorily and permanently resolved[20]. 31.On 18th January 2021, the Plaintiffs commenced the present action. When the 1st Plaintiff testified, he stressed that whilst he sought financial compensation, his foremost objective was to pressurize the 1st and 2nd Defendant to take appropriate actions to eradicate the water leakage problem. 32.It appears the 1st and 2nd Defendant admit that there was water seepage in Flat 25D. Their factual case is as follows[21]:-
33.The 4th Defendant’s factual case regarding the water seepage in Flat 25D[27] is as follows:-
B5. Development after the Present Action was Commenced 34.As evidenced by the solicitors’ correspondence and the photos attached to the letters that were taken on 25th June 2021[37], 30th March 2022[38] and 10th June 2022[39] and 21st April 2023[40], the water leakage problem persisted after the Plaintiffs commenced the present action. 35.In around August 2022, a contractor named Chi Tat Waterproofing Engineering Ltd (“Chi Tat”) was engaged to carry out works[41] on the Roof. Although there was no water leakage after a typhoon on 2nd November 2022, there was serious water leakage on 21st April 2023 after a week of heavy rainfall[42]. 36.Meanwhile, Global Generation was engaged by the 1st and/or 2nd Defendants. Whilst there is no documentary evidence showing when Global Generation was engaged or appointed, Mr Leung Kwok Chu (梁國柱) (who was the 2nd Defendant’s assistant general manager) recalled that the appointment took place sometime in August 2022. 37.According to Global Generation’s Report dated 21st September 2022 (but revised on 9th March 2023)[43]:-
38.As mentioned, on 15th September 2023, the 1st Defendant provided an undertaking[44] that it would carry out the recommended works set out in Global Generation’s Report. Such undertaking was recorded in the consent order made by Master Maurice Lam dated 15th September 2023. 39.It transpired that a new contractor, namely Yan Cheong Construction Engineering Ltd (“Yan Cheong”), was engaged by the 1st and/or 2nd Defendants to carry out the works recommended by Global Generation. It is not seriously in dispute that these works were carried out during the period from July 2023 to August 2024. 40.Unfortunately, there was serious water leakage when Yan Cheong was in the course of carrying out the aforesaid works. On 13th August 2023, it was discovered that a huge amount of broken concrete pieces fell from the ceilings of the living room, dining room and bathroom of Flat 25D[45]. As evidenced by the minutes in respect of the meeting of the 1st Defendant’s management committee on 21st August 2023[46], the serious water seepage was ascribed to the fact that Yan Cheong removed the existing waterproofing membrane on the Roof in the course of carrying out re-roofing works. Without any protection at all, it was unsurprising that there was serious water leakage in numerous individual units in Block 12A when there was rainfall. 41.It is the 1st and 2nd Defendants’ case that all the recommended works set out in the Global Generation’s Report were completed on 30th August 2024[47]. This is not in dispute. 42.By the letter dated 3th October 2024[48], the 1st and 2nd Defendants’ solicitors informed the Plaintiffs’ solicitors that all the reparation works on the Roof that were recommended by Global Generation had been completed. This was less than 2 weeks before the present trial commenced. 43.When the 1st Plaintiff testified, he said as soon as the present trial finished, he would instruct the quantity surveyor that he had already engaged to obtain updated quotations from the contractors. Upon receiving the updated quotations, he would pick one of the contractors to carry out reparation works, such that Flat 25D could be rented out as soon as possible. C. Summary of the Positions of the Parties C1. The Plaintiffs’ Position Claims against the 1st and 2nd Defendant 44.The Plaintiffs contend that the 1st and 2nd Defendants are liable for their loss and damage on the bases of:-
45.The Plaintiffs complain that:-
46.As a result of the water leakage (which had recurred and persisted), Flat 25D was considerably damaged. In light of the hazardous condition and the risks of physical injury, Flat 25D has not been suitable for habitation, and the Plaintiffs could not rent out Flat 25D for rental income. 47.In the premises, the Plaintiffs has suffered loss and damage, and they seek damages against the 1st and 2nd Defendants. Claims against the 4th Defendant 48.The Plaintiffs also allege that their loss and damage were attributed to the negligence on the part of the 4th Defendant[53]. They say that the 4th Defendant’s works on the Roof were unsatisfactory and that the steps for carrying out these works were inadequate. It is also alleged that the 4th Defendant failed to take reasonable and/or appropriate steps to stop the water leakage. 49.In the premises, the Plaintiffs also seek damages against the 4th Defendant. C2. The 1st and 2nd Defendants’ Position 50.Mr Wong (for the 1st and 2nd Defendants) accepts that based on the evidence from the 3 experts engaged by the parties, there was water leakage in Flat 25D, though the extent of the water leakage is disputed. 51.Whilst Mr Wong suggests that the sole cause of the water leakage was the alleged defects in respect of the waterproofing membrane installed by the 4th Defendant, he contends that the 1st and 2nd Defendants are not liable to the Plaintiffs at all as the 1st and 2nd Defendants acted reasonably in (i) engaging the 4th Defendant to carry out the reparation works; and (ii) repeatedly giving instructions to the 4th Defendant to resolve the water leakage problem and to carry out further remedial works. 52.As a fallback, pursuant to the amended notice of contribution and/or indemnity dated 4th November 2022, the 1st and 2nd Defendants contend that if they were held liable for the Plaintiffs’ loss and damage, they would seek contribution and/or indemnity against the 4th Defendant. In this connection, the 1st and 2nd Defendants contend that the 4th Defendant failed to fulfill the contractual obligations under the December 2016 Engagement Letter competently, in that he failed to apply good workmanship, remedy the water leakage problem and identify the source of the water leakage[54]. 53.Insofar as the loss and damage suffered by the Plaintiffs are concerned, Mr Wong contends that the Plaintiffs have failed to mitigate their loss reasonably. In this connection:-
C3. The 4th Defendant’s Position 54.Like the 1st and 2nd Defendants, the 4th Defendant does not seriously dispute that there was persistent water leakage in Flat 25D. 55.However, the 4th Defendant strenuously denies that the works carried out pursuant to the 2016 Engagement Letter were defective and/or sub-standard. 56.Mr Stephen Siu (for the 4th Defendant) contends that the cause of the water leakage was (i) the defects and/or damage in respect of the waterproofing membrane in the walls of the Water Tank Houses; and (ii) the defect and/or damage in respect of the external walls of Block 12A. 57.Mr Siu also stresses that as evidenced by the 1st and 2nd Defendants’ own meeting minutes on 21st August 2023[58], the serious water leakage on 13th August 2023 was ascribed to the fact that Yan Cheong removed the existing waterproofing membrane on the Roof in the course of carrying out re-roofing works. As such, the 4th Defendant could not be held liable for any loss or damage in respect thereof. D. Relevant Legal Principles D1. Burden of Proof 58.It is well established there is no presumption that the source of the water leakage must come from the premises immediately above: see 張秀玲 訴 鄭禮莊 (CACV 268/1998 9th April 1999) at para 21 (per Leong JA, as he then was). 59.The onus is on the plaintiff to prove or establish that the leakage originated from the defendant’s property, and it is not for the defendant to identify the source of the leakage: see Hui Ling Ling v Sky Field Development Ltd (CACV 122/2012, 22nd March 2023) at para 42 (per Kwan JA, as she then was). D2. Nuisance 60.The “essence of nuisance is a condition or activity which unduly interferes with the use and enjoyment of land”: Clerk & Lindsell on Torts (24th Ed) at para 19-01. 61.The learned authors of Clerk & Lindsell on Torts (24th Ed) pointed out that (see para 19-05):-
62.The courts have repeatedly held that water leakage can constitute nuisance: see eg 張秀玲 訴 鄭禮莊 (supra) at para 26 (per Liu JA). 63.The liability for nuisance is not strict or absolute. If an owner or occupier nullifies the nuisance emanating from his land without undue delay after he became aware of it, he would not be liable. In Sedleigh-Denfield v O'Callagan & ors [1940] AC 880 at 904 to 905, Lord Wright stated:-
64.However, if the defendant has knowledge that the nuisance emanates from his land but fails to take reasonable steps to nullify or abate the same within a reasonable time, he will be liable. In Sedleigh-Denfield v O'Callagan & ors (supra) at pp.894-895, Viscount Maugham stated:-
(see also: Loke Yuen Jean Tak Alice v Wong Kit Ying & Ors (supra) at para 55; Yik Yuen Ling v Tso Wing Yan (DCCJ 813/2004, 18th October 2017) at paras 149-150 (per Deputy District Judge Simon Ho) 65.Thus, a defendant who does not have actual or constructive knowledge that the water seepage emanated from his property is not liable. However, once the defendant has the requisite actual or constructive knowledge, he will be liable unless remedial action is taken without delay: see Leung Wai Kee & Anor v Tam Yuen Sheng (DCCJ 5716/2007, 10th July 2012) at para 43 (per Deputy District Judge Grace Chan); Tin Kin Ka Clara v Chan Koon Cheong & Anor (DCCJ 3139/2012, 11th May 2015) at paras 54 to 55 (per His Honour Judge Andrew Li). 66.In 張秀玲 訴 鄭禮莊 (supra) at para 26, Liu JA explained the requisite actual knowledge and constructive knowledge as follows:-
67.It is often said that an owner or occupier has a duty to nullify or abate the nuisance originating from his land. In the context of public nuisance, in Leung Tsang Hung and Lee Wai Yu v The Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480 at para 25, Ribeiro PJ held that whilst such duty or obligation is not strict or absolute, it is “non-delegable”. His Lordship stated:-
68.In Leung Tsang Hung v IO of Kwok Wing House (supra), an illegal structure that was affixed onto the external wall of a building collapsed. As a result, a hawker on the street was killed. The collapse was ascribed to “want of repair” of the relevant structures (see paras 2 to 7 of the judgment). 69.Bearing in mind the context of Leung Tsang Hung v IO of Kwok Wing House (supra), I see no logical reason why Ribeiro PJ’s dictum set out in paragraph 67 above is not applicable to private nuisance. Both public nuisance and private nuisance are legal wrongs, and they may cause financial loss, inconvenience, discomfort and physical injury (or even death) to innocent parties. There is every reason why a nuisance, whether private or public, should be nullified or abated once the landowner or occupier has actual or constructive knowledge in respect thereof. D3. Duties to Manage and Maintain Common Parts of Buildings 70.Section 18(1) of the BMO provides that incorporated owners have a statutory duty to maintain the common parts of the building. It reads as follows:-
71.Section 34I of the BMO provides that:-
72.In Lau Chun Wing Rod v The Incorporated Owners of Po On Building (CACV 20/2007, 1st November 2007) at paras 12 to 13, Rogers VP held that the incorporated owners would breach the duties under section 18(1)(a) of the BMO and liability might arise if it is aware of the defect or despair condition of the common parts of buildings but fail to take appropriate steps. His Lordship stated:-
73.In Lo Yuk Chu v Hang Yick Properties Management Ltd [1996] 4 HKC 278 at 281-282E, Power ACJ held that the manager’s duty to properly manage the common part of the building under the DMC was not absolute, and the duties entailed “doing all that is reasonably required of a manager in the circumstances”. D4. Mitigation 74.It is trite that the law requires a victim to take all reasonable steps to mitigate the loss arising from the defendant’s wrong, and whether the loss is avoidable by reasonable action on the part of the plaintiff is a question of facts: see McGregor on Damages (19th Ed) at paras 9-014 and 9-016. 75.As pointed out by the learned authors of Clerk & Lindsell on Torts (24th Ed) at para 26-09:-
E. Deliberation E1. The Extent of Water Leakage 76.As mentioned, it is not seriously in dispute that there was water leakage in Flat 25D. The water leakage is evidenced by ample contemporaneous evidence. 77.Mr Vincent Li (for the Plaintiffs) draws my attention to a series of photos showing the physical condition of the living room, dining room, guest bathroom and kitchen of Flat 25D throughout the years. These photos were taken on 2nd January 2016[59], 3rd February 2018[60], 2nd February 2018[61], 12th March 2018[62], 17th March 2018[63], , 30th May 2018[64], 8th June 2018[65], 27th August 2019[66], 3rd January 2020[67], 12th March 2020[68], 21st May 2020[69], 1st September 2020[70], 24th June 2021[71], 29th March 2022[72], 21st April 2023[73], 10th June 2022[74] and 13th August 2023[75]. 78.These photos, which are incontrovertible, show that:-
79.I have no doubt that there was serious water leakage in Flat 25D, and the physical condition was unsatisfactory. It was obvious that the damage to Flat 25D was caused by the serious water leakage, which had continued for years. 80.The water seepage was recorded in and evidenced by the contemporaneous documents:-
81.Insofar as the opinion of the parties’ experts is concerned:-
82.In her report dated 23rd October 2020, Ms Lau provided detail explanations as to the tests that she and her staff carried out and the methodologies in respect thereof. Ms Lau’s opinion is consistent with the factual evidence (such as the photos that show the physical condition of Flat 25D). I accept Ms Lau’s opinion that there was water seepage in the dining room, living room and guest bathroom of Flat 25D as of September 2020. 83.I also accept Ms Lau’s evidence that she saw sizeable concrete pieces on the floor in Flat 25D when she inspected Flat 25D on 21st February 2022 for the purpose of assessing the damage to Flat 25D. Ms Lau observed that as of February 2022, the condition of Flat 25D had deteriorated since her previous inspection in September 2020. She opined that the further damage to Flat 25D caused by the continuous water seepage. Having reviewed the photos showing the condition of Flat 25D in April 2023[82], Ms Lau also opined that there was still water seepage in Flat 25D as of April 2023 and that the further damage to Flat 25D was caused by the persistent water seepage. In this connection, Ms Lau’s opinion is consistent with Mr Hau’s opinion. Upon considering the photos that showed the high protimeter readings in April 2023, Mr Hau also opined it was likely that there was still water seepage in Flat 25D as of April 2023. The aforesaid opinion expressed by Ms Lau and Mr Hau makes sense, and I accept the same. 84.However, Dr Eddie Lam opined that the photos taken in April 2023[83] did not show continuous water seepage at all. He said that (i) the high level of moisture could be ascribed to sea wind and the moss that was developed and (ii) the collapsed concrete pieces could be ascribed to structural defects. Dr Lam’s views are pedantic and unreal. I am unable to accept the same. I prefer Ms Lam and Mr Hau’s views and opinion set out in the paragraph immediately above, which are more consistent with the factual evidence as well as common sense. 85.Relying on Dr Lam’s opinion, Mr Wong submits it can only be proved that there was only water seepage in the living room, dining room and guest bathroom before January/February 2022. Mr Wong effectively suggests that the Plaintiffs have failed to prove continuous water leakage as the experts did not continuously inspect the premises from time to time. He also effectively asks me to ignore the incontrovertible or unchallenged factual evidence, such as the photos (which recorded the appalling conditions in Flat 25D) and the correspondence (which recorded the incidents of water leakage after heavy rainfall). Mr Wong’s approach is pedantic and unreal. I reject his submissions. 86.Having considered the factual evidence and the experts’ opinion, I find that:-
E2. The Source(s) and Cause(s) of the Water Leakage 87.The next issue to determine is what the source(s) and cause(s) of the water seepage in Flat 25D were. 88.As pointed out, the Roof is above Flat 25D, and all the structures thereon (such as the Water Tank Houses and the Staircase House) are common parts of Provident Centre. 89.As evidenced by the correspondence amongst the parties (including the solicitors’ letters, the 2nd Defendant’s demand letters to the 4th Defendant and the 4th Defendant’s letter dated 26th June 2020 to the 1st Defendant[85]), it is not in dispute that the source of the water seepage in Flat 25D was the Roof. 90.The controversial question is whether the water seepage emanated from a location or locations on the Roof that fell within the 4th Defendant’s scope of works under the 2016 Engagement Letters. As will be elaborated in Sections E3 to E5 below, the answer to this question has important bearing on the liabilities (if any) on the part of the 1st, 2nd and 4th Defendants. Factual Evidence and Inherent Probabilities 91.The 1st Plaintiff said that throughout the years, there was often serious water seepage in Flat 25D shortly after heavy rains. In the 1st Plaintiff’s own words, this was a “salient feature” of the situation that he and his wife faced. 92.I have no doubt that the 1st Plaintiff (who is an honest and impressive witness) told me the truth. His evidence is corroborated by the contemporaneous documents. For instance:-
93.Due to their unpleasant experience, the Plaintiffs were concerned about rainfall more than the outcomes of fluorescent dye tests. After Mr Hui and his family left in June 2020, the 1st and 2nd Plaintiffs often inspected Flat 25D after heavy rains, and there were many occasions where serious water seepage was seen. For instance, as recorded in the letter dated 8th May 2023 from the Plaintiffs’ solicitors and evidenced by the photos attached thereto[88], after heavy rainfall in the week starting on 17th April 2023, there were flaky plasters and spalled concrete on the ceilings in the living room and kitchen and collapsed concrete pieces were all over the place. 94.Indeed, it is the 1st and 2nd Defendant’s case that fluorescent dye tests (which were also colloquially called “flush tests”) were conducted in February 2018, November 2019, March 2020 and May 2020 after the 4th Defendant carried out works on the Roof[89]. The result was that there was no sign of water leakage. The Plaintiffs’ expert, Ms Lau, and the 4th Defendant’s expert, Mr Chung, also respectively conducted fluorescent dye tests in September 2020 and January/February 2022. Both experts concluded that the fluorescent dye tests did not reveal water leakage. This tends to show that the works carried out by the 4th Defendant were not defective. 95.Mr Chiu (who testified for the 4th Defendant) fairly accepted that from his experience, the outcome of fluorescent dye tests was not conclusive. He said that even if a fluorescent dye test did not reveal any sign of water leakage, it could not be concluded that the waterproofing membrane was impeccable, and there were various reasons why the fluorescent dye did not appear on the ceilings of the subject property. For instance, the florescent dye could be blocked and/or absorbed by the materials in the slap. In this regard, Mr Chiu’s evidence is consistent with Ms Lau’s opinion. 96.It is curious as to why the water leakage problem was not resolved despite repeated attempts to carry out re-roofing works and/or reparation/remedial works throughout the years. From 2011 to 2022, three contractors, namely SKY, the 4th Defendant and Chi Tat[90], had been engaged to carry out works on the Roof. As pointed out by Dr Eddie Lam[91], prior to 2022 there were no less than 12 attempts to repair the Roof and/or to carry out remedial or additional works. 97.In my view:-
98.Whilst the Plaintiffs suggest that the 4th Defendant’s negligence and/or defective workmanship was one of the three factors that caused the water leakage, the 1st and 2nd Defendants suggest that the water leakage was solely ascribed to the 4th Defendant’s negligence and/or defective workmanship. 99.However, the accusations made by the Plaintiffs and the 1st and 2nd Defendants are completely hollow. Their pleadings are devoid of any meaningful particulars that shed light on the substance of their accusations. The Plaintiffs and the 1st and 2nd Defendants have been unable to pinpoint the steps or procedures that the 4th Defendant should have adopted or implemented but failed to adopt or implement. They are unable to identify any material that was inappropriate and/or sub-standard. 100.Both Mr Li (for the Plaintiffs) and Mr Wong (for the 1st and 2nd Defendants) extensively cross-examined Mr Chiu. In my view, Mr Chiu was an honest and helpful witness. At the time when the present trial took place, Mr Chiu no longer worked for the 4th Defendant[92]. He has no interest in the outcome of the present action. This explains why Mr Chiu was candid. He was simply unshaken during cross-examination. 101.As the 4th Defendant’s foreman, Mr Chiu supervised the workers who carried out works on the Roof, and after the workers completed a stage of works, he checked and verified the same. He was responsible for liaising with the 2nd Defendant’s engineering staff, and he knew about the technical aspects of the works very well. Despite the lapse of time, Mr Chiu had good recollection about the details of the works that were carried out on the Roof. He provided convincing answers to the questions put to him. For instance, Mr Wong (for the 1st and 2nd Defendants) suggested that the fluorescent dye test carried out in March 2020 was not thorough as a photo taken on 11th March 2020[93] appeared to show that the fluorescent dye did not reach the L-shape juncture (腳線) between the bottom of the Water Tank Houses and the floor of the Roof. Mr Chiu immediately rebutted this suggestion. He confirmed that the said L-shape juncture (腳線) was tested, and he, in detail, explained why due to the inclination on the Roof, it was necessary to carry out the fluorescent dye test on a zone-by-zone basis. Thus, it would not be fair for the 1st and 2nd Defendants to raise a criticism based on the image shown in a single picture. Mr Chiu was able to explain the details in respect of steps and procedures that the 4th Defendant adopted in constructing and re-constructing the floor on the Roof as well as the L-shape juncture (腳線). He, in detail, explained the materials that were used and the functions as well as features thereof. Mr Chiu also explained why it was beneficial to add another layer of waterproofing protection on the surface of the open drain on the Roof, and the details of the procedure (which would not affect the internal waterproofing system and/or materials) were explained clearly. 102.Having heard Mr Chiu’s evidence and observed the way in which he spontaneously responded to the questions from Mr Wong and Mr Li, I am of the view Mr Chiu was a responsible employee who was serious about his duties, and he closely monitored the work process. Although Mr Chiu was not a qualified engineer, I am of view that if there was any abnormality in respect of the works on the Roof or if these works deviated from the required or usual procedure, the same would not have escaped Mr Chiu’s attention and would have been rectified. 103.Mr Chiu mentioned that he worked closely with Mr Samson Wong, who was a qualified building service engineer and who worked in Provident Centre. In this connection, it is not in dispute that Mr Samson Wong was employed by the 2nd Defendant and he oversaw the waterproofing works in relation to the Roof on Block 12A. I accept Mr Chiu’s evidence that (i) Mr Samson Wong checked the works carried out by the workers engaged by the 4th Defendant at each stage, and he provided comments in respect thereof (which were addressed by the 4th Defendant); and (ii) the 4th Defendant only proceeded to carry out the next stage of works upon obtaining the confirmation from Mr Samson Wong. 104.Despite the Plaintiffs’ complaint of water seepage on 20th March 2018, Mr Samson Wong signed a completion form 7 days afterwards on 27th March 2018[94]. It appears that Mr Samson Wong, who was responsible for supervising the 4th Defendant, did not take the view that the water seepage in question was related to the 4th Defendant’s works. Had there been any apparent defect and/or inadequacy in respect of the works carried out by 4th Defendant, Mr Samson Wong would not have signed the said completion form shortly after the Plaintiffs complained about water seepage again. 105.However, the Plaintiffs and the 1st and 2nd Defendants insist that the works carried out by the 4th Defendant were defective and/or sub-standard. In my view, none of their contentions has merits. 106.When Mr Li (for the Plaintiffs) cross-examined Mr Chiu, he pursued an attack along the line that the 4th Defendant negligently sub-contracted the waterproofing works under the 2016 Engagement Letter to sub-contractors (including a Mr Chan), and the supervision exercised by the 4th Defendant was inadequate and/or ineffective. 107.I am not persuaded by Mr Li’s contention:-
108.When Mr Wong (for the 1st and 2nd Defendants) cross-examined Mr Chiu, he suggested that the 4th Defendant was willing to (i) carry out works relating to the open drain on the Roof in May 2019; and (ii) re-do the entirety of the waterproofing works on the Roof in October 2019 because the 4th Defendant knew that the previous works on the Roof were defective. 109.I do not accept Mr Wong’s suggestion:-
110.I do not lose sight of Dr Eddie Lam[95] and Ms Lau’s[96] observations and/or assertions that the waterproofing works carried out by the 4th Defendant were defective and/or sub-standard. In my view, their observations and/or assertions have no substance and are plainly untenable.
111.To sum up, although the water seepage in Flat 25D persisted, the evidence does not show that the 4th Defendant’s works were defective. I reject the assertions that the 4th Defendant was negligent in carrying out the works under the 2016 Engagement Letter and that the 4th Defendant’s waterproofing works on the Roof were defective and/or sub-standard. 112.It is Mr Chiu’s evidence (which I accept) that in light of the persistent water seepage problem, in January 2020 he started to ascertain the cause of the water seepage. On 4th January 2020, Mr Chiu removed the materials on the surface and the waterproofing membrane at the L-shape juncture between the floor of the Roof and the walls of the Water Tank House that contains the fresh water tank. It was discovered the area was wet and there was water seeping out. 113.When Mr Chiu gave oral evidence, he pointed out that due to gravity, it was likely to be the case that the water at the L-shape juncture (腳線) came from above, ie the walls of the said Water Tank House. Thus, it could be inferred that the water seepage emanated from the defects in respect of the waterproofing membrane on the walls of the Water Tank House. Although Mr Chiu is not a qualified engineer, his observations, though not conclusive, make sense. After all, Mr Chiu is an experienced technician who deals with all kinds of problems in worksites on a daily basis. As will be elaborated below, Mr Chiu’s observations are consistent with the opinion expressed by Ms Lau (ie the Plaintiffs’ expert). 114.Similarly, Mr Pang also pointed out that when the 4th Defendants’ workers removed the concrete and screed on the walls of the Water Tank House containing the fresh water tank and the pump room on 15th June 2020,[102] it was discovered that there was crystalized liquid that contained rust and white power. When Mr Pang gave oral evidence, he said that from his experience, the substance on the walls was efflorescence (白華) and the same could only be formed after a persistent period of water seepage in an enclosed area. Mr Pang also pointed out that when he inspected the Roof, it was a sunny day, and thus the likely explanation was that there had been persistent water seepage Although Mr Pang’s suggestion is not conclusive, it makes sense. 115.Mr Chiu said that as early as 17th January 2020, he informed the 2nd Defendant’s staff who was responsible for Tower 12A (主任), namely a Mr Mok, about his observations regarding the walls of the Water Tank Houses. 116.However, it transpired on 8th April 2020, the 2nd Defendant issued another demand letter to the 4th Defendant[103]. As such, Mr Chiu asked his colleagues to draft and issue the letter dated 26th June 2020[104] to put on record the 4th Defendant suspected that the source of water leakage was the “upper roof” (高層天台), and the 4th Defendant would no longer carry out further remedial works. When Mr Chiu testified, he explained that the phrase “upper roof” (高層天台) referred to the structures above the floor on the Roof, including the Water Tank House containing the fresh water tank and the Staircase House that was linked thereto. Mr Chiu’s explanation makes sense, and I accept the same. 117.For all the above reasons, I am of the view the factual evidence points towards the direction that the water seepage in Flat 25D:-
118.In coming to this view, I take into account the following matters:-
Overview of the Experts’ Opinion 119.I now analyze the opinion expressed by the parties’ experts. 120.In gist:-
121.Ms Lau, Dr Eddie Lam and Mr Hau (who adopted Mr Chung’s opinion) testified in Court. They were extensively cross-examined by counsel. The Experts’ Opinion that the Floor on the Roof and the L-shape Junctures (腳線) was a source of the Water Leakage in Flat 25D 122.I will first deal with the opinion of Ms Lau. As mentioned, she asserts that the waterproofing membrane in the floor and the L-shape junctures (腳線) on the Roof was defective, and this was one of the causes of the water leakage in Flat 25D. 123.After Ms Lau and her colleagues conducted a fluorescent dye test in early September 2020, they used the following methods to ascertain whether the source of the water leakage was the floor on the Roof and the L-shape junctures (腳線):-
124.Ms Lau accepts that:-
125.The aforesaid results show that the floor on the Roof and the L-shape junctures were not the source of the water seepage in Flat 25D. 126.Nonetheless, Ms Lau relies on the following matters in support of her assertion that the water seepage in Flat 25D originated from the floor on the Roof and the L-shape junctures (腳線):-
127.Mr Stephen Siu (for the 4th Defendant) contends that Ms Lau’s reliance on the outcome of the electrical conducting sensing exercise is misplaced. Mr Siu points out that Mr Chung also conducted a florescent dye test in January/February 2022, and thereupon Mr Chung used the method of electrical conductivity sensing as well as the method of infrared scan to ascertain whether the moisture level in Flat 25D increased. The outcome was that the moisture level did not significantly or meaningfully increase at all. 128.Ms Lau could not detect any impropriety and/or irregularity as to the way in which Mr Chung conducted the florescent dye test and electrical conductivity sensing. 129.In the circumstances, why was the result of the tests conducted by Ms Lau (and her colleagues) different from the result of the tests conducted by Mr Chung? 130.Mr Siu submits that the difference was ascribed to the following reasons:-
131.For the following reasons, I accept Mr Siu’s submissions on the first reason set out in the paragraph immediately above (ie the fact that fluorescent dye entered the Staircase House on the Roof):-
132.For the following reasons, I also accept Mr Siu’s submissions on the second reason (ie inconsistencies in respect of the locations where data was collected):-
133.As regards Ms Lau’s opinion based on the microwave scan:-
134.In the premises, I reject Ms Lau’s opinion that the floor and/or L-shape junctures (腳線) on the Roof was a source of the water seepage in Flat 25D. 135.I now deal with the opinion expressed by Dr Eddie Lam. He opines that the water seepage came from the area on the Roof that was vertically above Flat 25D, and that there were defects in the waterproofing membrane in the floor and the L-shape junctures (腳線). In his first report dated 26th February 2022[112] and oral evidence, Dr Lam said that the bases of his opinion were as follows:-
136.I reject Dr Lam’s opinion and evidence in their entirety. 137.Dr Lam has not performed the function expected of an expert. Dr Lam does not put forward any scientific analysis to justify his purported opinion. He effectively argues that since the Plaintiffs had complained about water seepage for years and it appeared that there was water seepage in Flat 25D, the waterproofing membrane in the area that was vertically above Flat 25D must be defective and the 4th Defendant who was involved in carrying out reparation works must be at fault. This is presumptuous, arbitrary and speculative. 138.When Dr Lam gave oral evidence, he suddenly mentioned that the fluorescent dye applied by Mr Chung (which was purple in colour) could be seen in the photos in respect of the guest bathroom[113] that were annexed to Ms Lau’s supplemental report dated 6th May 2022. Dr Lam said that this important matter somehow escaped the attention of all the experts. Although Dr Lam has not inspected Flat 25D after 17th January 2022, he suggests that the purple marks appearing in the photos show that the fluorescent dye test used by Mr Chung reached the ceiling in the guest bathroom of Flat 25D, and thus the conclusion is that the waterproofing membrane in the floor on the Roof must be defective. 139.Dr Lam’s belated suggestion is surprising. It was not dealt with anywhere in the joint expert report (“Joint Expert Report”) and not mentioned in any of the reports prepared by the experts. Dr Lam said that he only discovered this allegedly important matter shortly before the present trial took place. 140.I reject Dr Lam’s belated suggestion:-
141.Based on the outcomes of the florescent dye test as well as the electrical conductivity scanning and infrared scanning conducted by Mr Chung on 19th January 2022, 21st January 2022 and 17th February 2022, Mr Hau, adopting the data and analysis set out in Mr Chung’s report dated 13th April 2022, opines that taking into account the fact that the moisture level in Flat 25D did not significantly increase after fluorescent dye test was conducted, it was not shown that the water seepage originated from the floor and L-share junctures (腳線) on the Roof. 142.Mr Wong (for the 1st and 2nd Defendants) criticizes the way in which Mr Chung conducted the fluorescent dye test in January/February 2022. He contends that since Mr Chung did not apply the fluorescent dye up to the level of 500mm (ie the height of the entire L-shape junctures (腳線), he was not in a position to tell whether the L-shape juncture was defective or not. Thus, Mr Hau (who adopted Mr Chung’s data and analysis) is also not in a position to rule out the possibility that the floor and L-share junctures (腳線) on the Roof was a cause of the water seepage. 143.Mr Wong’s criticism is unmeritorious and unsupported by the evidence from the experts:-
144.Mr Li (for the Plaintiffs) points out that in his report dated 13th April 2022, Mr Chung did not (i) criticize the way in which Ms Lau and/or her colleagues conducted the tests in September 2020; and (ii) rebut Ms Lau’s conclusion in her report dated 23rd October 2020. Mr Li then goes on to contend that Mr Hau (who adopted Mr Chung’s report) has no basis to disagree with Ms Lau’s conclusion that the water seepage originated from the floor and L-shape junctures (腳線) on the Roof as Mr Chung agreed with Ms Lau’s data and analysis. 145.There is neither substance nor merit in Mr Li’s contention:-
146.Similar to the contention raised by Mr Siu as elaborated in paragraph 132 above, Mr Li points out the photos annexed to Dr Chung’s report dated 22nd April 2022 show that there were inconsistencies in respect of the locations from which data was collected before and after the fluorescent dye test was conducted. In particular, Mr Li takes issues about the locations in respect of spots 2, 4, 5, 34, 39, 42, 45, 47 and 53. He contends that Mr Chung’s data in respect of the moisture level is not reliable. 147.I see the basis of Mr Li’s criticism. However, for the following reasons, I am not of the view that the data arising from the test conducted by Mr Chung was flawed and/or unreliable and that Mr Chung’s analysis (which was adopted by Mr Hau) should be rejected:-
148.For the reasons elaborated above, I am of the view that on proper analysis, the experts’ evidence show that the water seepage in Flat 25D did not originate from the floor and/or L-shape junctures (腳線) on the Roof. In coming to this view, I take into account that:-
149.The cumulative effect of the abovementioned negative results speaks volumes. It could not be a sheer coincidence that all these tests revealed negative results. 150.Insofar as the partial positive result in respect of the electrical conducting sensing conducted by Ms Lau is concerned, Mr Siu is able to demonstrate why the data that she relied on was unreliable. As regards the purported positive result in respect of the microwave scan conducted by Ms Lau, I am of the view that the methodology is unconvincing, and the underlying assumptions are speculative. I am not of the view that there is valid scientific basis to justify the assertion that the water seepage came from the floor and L-shape junctures (腳線) on the Roof. 151.Put it simply:-
The Experts’ Opinion that the Walls of the Water Tank House were a source of the Water Leakage in Flat 25D 152.Ms Lau opines that the defects and/or damage in respect of the waterproofing membrane in the walls surrounding the Water Tank Houses were a source of the water seepage in Flat 25D. 153.As mentioned, Ms Lau and her colleagues attended Flat 25D and the Roof on 1st, 2nd, 3rd and 22nd September 2022. Unlike 1st, 2nd and 3rd September 2022, 22nd September 2022 was a rainy day. As such, Ms Lau and her colleagues took the opportunity to obtain data on this occasion such that they could study the impact and/or implications of the rainfall. 154.The electrical conductivity scanning conducted by Ms Lan and her colleagues revealed that the level of moisture and humidity in Flat 25D increased drastically.
155.Why did the moisture level increase in such a drastic manner after the rain? 156.In my view, the comparison exercise conducted by Ms Lau is meaningful and helpful. It does shed light on the source of the water leakage. I accept Ms Lau’s opinion and analysis that the drastic increase in moisture level was ascribed to the defects and/or damage in respect of the waterproofing membrane in the walls or surface of the Water Tank Houses. 157.As pointed out by Ms Lau, the rainwater would enter and/or penetrate the damaged parts (if any) of the waterproofing membrane in the walls of the Water Tank Houses. Further, the rain accumulated on the floor of the Roof could not be higher than the level of fluorescent dye that was accumulated when the fluorescent dye tests were conducted. This was because the open drain on the Roof would channel away the rainwater. Thus, the rainwater on the floor would not have an impact on the “test” based on the heavy rainfall. In any event, for the reasons elaborated in paragraphs 122 to 151 above, I find that the water seepage did not originate from the floor and L-shape junctures (腳線) on the Roof, and the suggestion that the waterproofing membrane therein was defective can be excluded. 158.In the premises, I agree that the drastic increase in moisture level on 22nd September 2020 was ascribed to the defects in respect of waterproofing membrane in the walls of the Water Tank Houses (and plausibly the Staircase House). This was the most likely explanation. 159.Dr Eddie Lam cannot explain why the moisture level increased drastically on 22nd September 2020 when there was heavy rain. He does not have an answer. He cannot meaningfully pinpoint any fallacy of the aforesaid analysis. He cannot detect any flaw or irregularity in respect of the way in which Ms Lau and her colleagues carried out tests and/or collected data on 22nd September 2020. 160.While Dr Eddie Lam does not provide any meaningful analysis, Mr Wong criticizes Ms Lau for not taking photos of the walls of the Water Tan Houses and not conducting spray test. The criticism has no substance. The matters identified by Mr Wong have utterly nothing to do with the analysis in respect of the data that was collected on 22nd September 2022. 161.I do not lose sight that in Mr Chung’s first report dated 13th April 2022, it was suggested there was no evidence or sign showing that the water leakage was due to the walls or surface of the Water Tank Houses. However, Mr Chung did not undergo the exercise carried out by Ms Lau. He did not even seek to ascertain whether the moisture level in Flat 25D increased after a heavy rain. Without going through the same exercise, Mr Chung and Mr Hau (who adopted Mr Chung’s opinion), of course, did not share Ms Lau’s views. However, this does not cast doubt on Ms Lau’s analysis (which is sound in my view). 162.For the above reasons, I am of the view that on proper analysis, the experts’ evidence amply supports the conclusion that the water seepage in Flat 25D was caused by and/or ascribed to the defects in respect of waterproofing membrane in the walls or surface of the Water Tank Houses. 163.This view is consistent with:-
The Experts’ Opinion that the External Walls were a source of the Water Leakage in Flat 25D 164.Arguably, the aforesaid analysis regarding the increase in moisture level also applies to the suggestion that the defects and/or damage in relation to the external walls of Block 12A were also a source of the water leakage in Flat 25D. 165.However, in light of the following matters, I hesitate to conclude that the water leakage also originated from the external walls of Block 12A. 166.First, the Global Generation Report did not recommend that the external wall of the Block 12A be repaired. Without any evidence from the representative(s) of Global Generation, the methodologies and approaches adopted by Global Generation are unknown. However, bearing in mind that the context in which the Global Generation Report came into existence, there is every reason to believe that Global Generation would prudently include all plausible reasons that caused the water leakage in Flat 25D. Had Global General taken the view there was, to say the least, a possibility that the external wall of Block 12A was one of the plausible reasons of the water leakage in Flat 25D, it would have recommended that reparation works been done in relation thereto. This was not the case. 167.Second, Ms Lau and her colleagues used the method of infrared scan to ascertain whether there were damage or defects relating to the external walls around and above Flat 25D. No damage or defects were found[122]. 168.Third, neither Mr Chiu nor Mr Pang observed that condition of the external walls around or above Flat 25D was unsatisfactory and that there was sign of water leakage. They did not detect any reason showing that the water leakage might have anything to do with the external walls of Block 12A. 169.Taking into the aforesaid matters and all the relevant circumstances, I am, on the available evidence, not satisfied it is proved that the water leakage in Flat 25D was ascribed to any defect and/or damage in relation to the external walls of Block 12A. Conclusion on the Source of Water Leakage in Flat 25D 170.My analysis of the experts’ evidence is consistent with (and indeed corroborated by) the factual findings and inherent probabilities discussed in paragraphs 91 to 118 above. 171.Having carefully considered and analyzed the factual evidence, the inherent probabilities, the objective circumstances and the experts’ evidence, my findings and conclusion are as follows:-
E3. The Plaintiffs’ Claims against the 1st and 2nd Defendants Nuisance 172.In Section E1 above, I find that the water seepage in Flat 25D caused physical damage to Flat 25D and seriously interfered with the use and enjoyment of Flat 25D. There is no question that the water seepage constituted nuisance: see eg 張秀玲 訴 鄭禮莊 (supra) at para 26 (per Liu JA). 173.In Section E2 above, I find that the water seepage originated from the walls of the Water Tank Houses. 174.It is not in dispute that the Water Tank Houses (and the walls thereof) are common parts of Provident Centre. They were at all material times managed and controlled by the 1st and 2nd Defendants, and the same did not fall within the 4th Defendant’s scope of works under the 2016 Engagement Letter. 175.In the premises, the crucial issue to resolve is whether the 1st and 2nd Defendants took reasonable steps to abate or nullify the nuisance within a reasonable time after they had actual or constructive knowledge in respect thereof: Sedleigh-Denfield v O'Callagan & ors (supra) at pp. 904 to 905 (per Lord Wright) and pp.894-895 (per Viscount Maugham); Leakey & ors v National Trust for Places of Historic Interest or Natural Beauty (supra) at pp 517-518 (per Megaw LJ); and Loke Yuen Jean Tak Alice v Wong Kit Ying & Ors (supra) at para 55 (per Marlene Ng J). 176.Curiously, the 1st and 2nd Defendants’ witnesses had minimal involvement in the events and matters relating to the water seepage in Flat 25D and the works that were carried out on the Roof:-
177.Like Mr Leung, Mr Poon and Madame Chan had minimal personal involvement in the matters relating to the present dispute. They told me that the members of the 1st Defendant’s management committee were volunteers and most of them had full-time jobs. As such, they heftily relied on the 2nd Defendant’s staff to deal with the matters relating to the Roof and the water seepage in Flat 25D and to report the progress to them. 178.Having heard their evidence, I am of the view that both Mr Poon and Madame Chan are honest witnesses and respectable individuals who wish to serve their neighbours in good faith. For instance:-
179.Despite the bona fides on the part of some of the individual members of the 1st Defendant’s management committee, I am of the view that the 1st Defendant, as an entity, and the 2nd Defendant, as a professional manager, failed to discharge their duties to take reasonable steps to abate the nuisance in a reasonable and timely manner. 180.I remind myself to take into account the difficulties faced by the 1st and 2nd Defendants. I also remind myself not to adopt a critical approach with the benefit of hindsight. 181.For the reasons elaborated below, I have come to the inevitable conclusion that the 1st and 2nd Defendants failed to take reasonable steps to identify the source and reason of the water leakage and to abate the water seepage. They blindly and unreasonably put the blame on the 4th Defendant. Being influenced by the views expressed by the representative of an insurance broker, the 1st Defendant took no remedial action on purpose and the reason was to preserve and gather evidence that proved the 4th Defendant’s negligence (which never emerged). The attitude of the 1st and 2nd Defendants was regrettable, and the prolonged delay was unacceptable. 182.The documents of the 2016 Tender show that back in 2016, the 1st Defendant envisaged that apart from the floor and the L-shape junctures (腳線), the structures on Roof (including the Water Tank Houses) would be repaired as well. Bearing in mind the age of Provident Centre, this was hardly surprising. If structures on the Roof were in good condition at the time, it was unlikely that the 2016 Tender would cover the same. 183.It transpired that the 1st Defendant only repaired the floor and L-shape junctures on the Roof (腳線): see the 2016 Engagement Letter[126]. The 1st Defendant chose not to repair, inter alios, the waterproofing membrane in the walls of the structures on the Roof, including the Water Tank Houses. Whilst the 2016 Tender consisted of 12 items of works, the 1st Defendant opted to carry out 3 items of works only. The most probable explanation was that the 1st Defendant wished to save costs. When Mr Poon testified, he said that the 1st Defendant had a lot of matters to handle, and there were other individual units in Provident Centre that were affected by water seepage as well. 184.There was nothing wrong with adopting a prudent approach to expenditure. What was problematic was that from March 2020 onwards, the 1st Defendant (as well as the 2nd Defendant) had acted as if the only plausible cause of the water seepage was that the 4th Defendant negligently carried out the waterproofing works on the floor of the Roof. They conveniently turned a blind eye to fact that only part of the Roof was repaired pursuant to the 2016 Engagement Letter. 185.It is hard to understand why the 1st and 2nd Defendants took no steps to ascertain whether the water seepage could be caused by other factors, such as the defects in the structures erected on the Roof (including the Water Tank Houses). First of all, notwithstanding the Plaintiffs’ complaint on 20th March 2020, Mr Samson Wong signed the completion form 7 days later on 27th March 2020. This was, to say the least, prima facie evidence that the 4th Defendant duly completed the works under the 2016 Engagement Letter. Second, the fluorescent dye test that was carried out in February 2018 did not show any sign of water leakage. Although the fluorescent dye test was not conclusive, it at least supported the conclusion that the water leakage in Flat 25D had nothing to do with the floor and the L-shape junctures (腳線). Third, the structures on the Roof (such as the Water Tank Houses) had obviously aged, and this was the most probable reason why the 2016 Tender covered them. There was nothing unusual about the fact that the waterproofing membrane in these structures had degenerated and/or no longer fully functioned due to wear and tear. Fourth, the Water Tank House that contained the freshwater tank was almost immediately above Flat 25D. 186.In the circumstances, I cannot see how the 1st and 2nd Defendants could simply assume that the 4th Defendant did not properly perform his contractual duties under the 2016 Engagement Letter and that the water seepage in Flat 25D must be caused by the 4th Defendant’s breach of duties and/or negligence. This assumption was neither reasonable nor justifiable. The 1st and 2nd Defendants knew that the 4th Defendant was only engaged to repair the floor and the L-shape junctures (腳線) on the Roof, and other parts of the Roof (including the structures thereon) had not been repaired and had nothing to do with the 4th Defendant. 187.As pointed out in paragraphs 33 and 80(1) above, during period from 8th June 2018 to 8th April 2020, the 1st and 2nd Defendants issued no less than 5 demand letters to pressurize the 4th Defendant to resolve the water leakage problem. Apart from issuing these demand letters to the 4th Defendant, there is no evidence showing that the 1st and 2nd Defendants did anything to find out the cause of the water seepage during this period of time. 188.Since the 4th Defendant provided a 5-year warranty pursuant to the 2016 Engagement Letter, the 1st and 2nd Defendants might think that it would be convenient to shift the responsibilities to the 4th Defendant. The submissions that Mr Wong advances on behalf of the 1st and 2nd Defendants reflect this misconception. When Mr Wong made oral opening submissions, he emphasized that so long as the 1st and 2nd Defendants acted reasonably in engaging, supervising and giving instructions to the 4th Defendant, they could not be held liable. 189.This assertion is wrong both on the facts and the law:-
190.On the 1st and 2nd Defendants’ case, they confirmed that there was water seepage in Flat 25D after an inspection took place on 8th June 2018. In light of the circumstances discussed above, as soon as the 1st and 2nd Defendants confirmed the existence of the water leakage on 8th June 2018, they should have started taking steps to ascertain the cause. Instead of blindingly assuming that the 4th Defendant’s works were defective and that the water seepage must be ascribed to the floor and L-shape junctures (腳線) on the Roof, the 1st and 2nd Defendants should have taken steps to ascertain whether the water seepage was ascribed to the areas that were not covered by the reparation works that were done pursuant to the 2016 Engagement Letter. Since the water seepage had been recurring for years, it was not difficult to appreciate the possibility that the water seepage might originate from an area that had not been repaired. This is just a matter of common sense. The 1st and 2nd Defendants could not turn a blind eye to an obvious possibility. 191.Bearing in mind the chequered history and the matters mentioned in paragraph 185 above, the 1st and 2nd Defendant should have engaged an independent surveyor as early as possible. Had a reasonable surveyor been appointed promptly, the 1st and 2nd Defendant would have known much earlier that (i) it was necessary to repair the waterproofing membranes in the walls of the structures (including the Water Tank Houses) on the Roof; and (ii) the defects there were a cause of the water seepage in Flat 25D. 192.In the premises, the 1st and 2nd Defendants must have constructive knowledge that the water seepage originated from the walls of the Water Tank Houses (which had not been repaired under the works carried out pursuant to the 2016 Engagement Letter). The 1st and 2nd Defendants plainly failed to conduct the enquiry that a reasonable IO and a reasonable manager would have conducted in the circumstances. Had due diligence been exercised, they would have discovered the matters mentioned in the paragraph immediately hereinabove. See 張秀玲 訴 鄭禮莊 (supra) at para 26 (per Liu JA); Lau Sin Yee v The Financial Secretary Incorporated (DCCJ 311/2007, 14th February 2008) at para 11 (per HH Judge Mimmie Chan (as Mimmie Chan J then was). 193.Whilst Mr Leung recalled that the 1st and 2nd Defendants did not appoint Global Generation until August 2022, Mr Wong suggested that Global Generation conducted a site inspection in July 2022. This was more than 4 years after the 1st and 2nd Defendants confirmed the water seepage in June 2018. The delay was inordinate and inexcusable. 194.In my view, even without engaging an independent advisor, the 1st and 2nd Defendants should have known that the walls of the Water Tank Houses were likely to be a cause of the water seepage. In this connection, the following matters were notable.
195.As evidenced by the contents of the minutes in respect of the meetings of the 1st Defendant’s management committee on 18th August 2021[130], 20th October 2021[131] and 1st December 2021[132], a Mr Chan Chuek Fan (陳卓勳), who represented an insurance broker named Willis Hong Kong Ltd (“Willis”), repeatedly advised the 1st and 2nd Defendants not to carry out reparation works on the Roof as the evidence that sheds light on the question of liability might be affected. Mr. Chan said that if reparation works were carried out, the insurer would not accept their insurance claims. In the meeting on 28th June 2022[133], Mr Chan even said that in light of the Plaintiffs’ claims in the present action, it was not desirable to adopt the interim protective measure proposed by Mr Poon until all the tests were completed; otherwise, the evidence on the Roof might be destroyed. It appeared that the concern of Mr Chan was to preserve potential evidence that might shed light on the 4th Defendant’s negligence and/or breach of duties, such that hopefully the insurer might not need to bear the loss at the end of the day[134]. 196.Whilst the priority of the insurer and/or the insurance broker was to preserve and locate evidence showing that the 4th Defendant was at fault (which never emerged), the priority of the 1st and 2nd Defendant was to ensure that the insurer would not reject their insurance claim. It is unfortunate that the Plaintiffs’ interest was not their priority, and they did not sense the urgency to abate the nuisance that the Plaintiffs suffered continuously. This explained the inaction throughout the years. In the meeting of the 1st Defendant’s management committee on 11th May 2022[135], Madame Chan rightly and conscientiously pointed out that due to the delay and inaction, the condition of Flat 25D would exacerbate and the Plaintiffs’ loss would keep increasing. 197.The 1st and 2nd Defendants should have taken all necessary steps to collect and/or gather evidence on an urgent basis, and an expert should have been engaged to carry out all necessary tests and to take records and photos of all necessary evidence promptly. The 1st and 2nd Defendants must bear in mind the duties to abate nuisance at common law (as well as the duties to properly manage the common areas of Provident Centre under the DMC and the BMO). Gathering evidence against the 4th Defendant and appeasing an aggressive insurer who might wish to shift the blame to the 4th Defendant were not reasonable excuses to ignore the duties under the common law, the DMC and the BMO. 198.The 1st and 2nd Defendants’ expert, Dr Lam, did not inspect the Roof and Flat 25D until 17th January 2022. The delay was inordinate and unacceptable. In my view, had the 1st and/or 2nd Defendants acted reasonably, an expert would have been engaged much earlier, and such expert should have, within 4 weeks, completed a report that contained all the necessary data, photo and evidence in relation to the condition of the Roof as well as Flat 25D. What is most ironic is that when Mr Lam attended the Roof and Flat 25D on 17th January 2022, he merely conducted a “visual inspection” and a “tapping test”. It is hard to see what evidence was preserved and gathered and how the inaction throughout the years had availed the 1st and 2nd Defendants (as well as their insurer). 199.For the above reasons, I conclude that the 1st and 2nd Defendants failed to take reasonable steps to abate or nullify the nuisance in respect of the water seepage in Flat 25D within a reasonable time after having constructive knowledge. 200.In particular, I find that:-
201.In the premises, the 1st and 2nd Defendants are liable to the Plaintiffs for nuisance. Breach of the Provisions of the DMC and the BMO 202.Whilst section 18 of the BMO requires the 1st Defendant to maintain the common parts of Provident Centre in good condition and to do all things reasonably necessary to enforce the DMC, clauses 5, 10(a)(7) and clauses 3 and 4(a) under the second schedule of the DMC require the 2nd Defendant to repair the common areas of Provident Centre and to keep the same in good condition. 203.For the reasons explained in paragraphs 172 to 201 above, I find that the 1st and 2nd Defendants failed to take reasonable steps within a reasonable time to confirm the cause of the water seepage and to carry out works to repair the waterproofing membrane in the walls of the Water Tank House (which are common parts of Provident Centre). 204.In the premises, I further find that the 1st and 2nd Defendants breached their duties under section 18 of the BMO and/or clauses 5, 10(a)(7) and clauses 3 and 4(a) under the second schedule of the DMC. Accordingly, they are also liable to the Plaintiffs on these bases. E4. The Plaintiffs’ Claims against the 4th Defendant 205.For the reasons elaborated in Section E2 above, the source of the water leakage in Flat 25D was the walls of the Water Tank Houses. This had nothing to do with the 4th Defendant. Thus, the Plaintiffs’ claims against the 4th Defendant should be dismissed. 206.In my view, the Plaintiffs’ claims against the 4th Defendant should also be dismissed on the following grounds. 207.First, for the reasons explained in paragraphs 96 to 111 above, I reject the suggestion that the 4th Defendant’s waterproofing works were defective. 208.Second, the Plaintiffs have failed to plead that the 4th Defendant owed them a duty of care and none of the facts averred in their statement of claim support the legal conclusion that a duty of care existed. 209.Third, on the facts and evidence, I am not of the view the 4th Defendant owed any duty of care to the Plaintiffs in regard to the works that were carried out pursuant to the 2016 Engagement Letter:-
E5. The 1st and 2nd Defendants’ Notice of Contribution/Indemnity against the 4th Defendant 210.For reasons set out in Sections E2 and E3, I conclude that the source of the water leakage in Flat 25D was the walls of the Water Tank Houses (which had nothing to do with the 4th Defendant’s duties under the 2016 Engagement Letter). I also reject the assertion that the works carried out by the 4th Defendant pursuant to the 2016 Engagement Letter were defective and/or sub-standard. 211.It follows that the 1st and 2nd Defendant’s claims against the 4th Defendant for indemnity and/or contribution must be dismissed. E6. The Question of Mitigation 212.Mr Wong (for the 1st and 2nd Defendants) extensively cross-examined the 1st Plaintiff, and he attacked and criticized the Plaintiffs along the line that they unreasonably failed to repair Flat 25D in a timely manner. 213.These criticisms are unmeritorious and unjustifiable. 214.The 1st Plaintiff was an honest and impressive witness, whose answers were direct and reasonable. He was willing to make concessions in the most sensible manner, and he refused to comment on matters that were beyond his direct knowledge. I have no hesitation to accept the 1st Plaintiff’s evidence that he and his wife (ie the 2nd Plaintiff) were retirees, and they relied on the rental income arising from Flat 25D, their savings as well as some modest monthly pension payments to support their living[137]. 215.Based on the objective circumstances, I have every reason to believe that instead of playing games and causing difficulty, the Plaintiffs were eager to rent out Flat 25D as soon as it was possible to do so. This was because the rental income was (and still is) important to them. 216.The Plaintiffs were able to rent Flat 25D to Mr Hung, despite the water seepage. However, due to the unsatisfactory condition and interference caused by the water seepage, the Plaintiffs were forced to reduce the monthly rental (i) from HK$28,000 to HK$18,800 during period from June 2016 to June 2018; and (ii) from HK$32,000 to HK$25,200 during the period after June 2018. The Plaintiffs also allowed Mr Poon to have the flexibility to terminate the tenancy by giving one-month notice: see paragraph 80(3) above. 217.In Section E1 (see paragraph 80(6)), I find that Flat 25D was no longer habitable as of June 2020. As evidenced by the photos, the sizeable concrete pieces falling from the ceiling could cause serious physical injury to the tenant and his/her visitors. When the 1st Plaintiff gave oral evidence, he further mentioned it did not come across his mind that the water seepage might cause leakage of electricity. However, upon reading the minutes of the 1st Defendant’s meetings, he appreciated the danger. With the benefit of hindsight, the 1st Plaintiff believed that his decision not to rent out Flat 25D was perfectly correct. 218.I accept the 1st Plaintiff’s evidence and suggestion. As evidenced by the minutes of the meetings of the 1st Defendant’s management committee on 20th October 2021[138] and 1st December 2021[139], there was serious water seepage in Flat 25C (which was adjacent to Flat 25D). Ms Hon, who was a manager of the 2nd Defendant, expressed concern about the personal safety of the owners/residents of Flat 25C (ie Mr Lau and Mrs Lau) and it was proposed that tentative arrangements be made to supply electricity to Flat 25C. Mr Poon also proposed that Mr Lau and Mrs Lau should move out from Flat 25C. 219.In my view, the Plaintiffs have been reasonable not to lease out Flat 25D to any tenant from June 2020 onwards. This is what a prudent person would have done in the circumstances. In light of the seriousness of the water leakage, I agree that the condition of Flat 25D was hazardous, and there was a real risk that the tenant would suffer serious physical injury when the concrete on the ceiling collapses or when there is electricity leakage if water enters the electricity cables or switches. 220.The 1st Plaintiff also pointed out that it would not be economical to keep repairing Flat 25D when the water seepage was recurring. In this connection, in October 2020, the Plaintiffs engaged Sun Ying Loi Construction Co to carry out reparation and renovation works in Flat 25D[140]. However, as the water seepage recurred, Flat 25D was soon damaged again and part of the said reparation works was ruined. At the meeting of the 1st Defendant’s management committee on 1st December 2021[141], Mr Chan of Willis also pointed out that there was no point to carry out reparation works before the source of the water leakage was confirmed and the waterproofing works on the Roof were completed. 221.In the premises, I accept Mr Li’s submissions that until and unless the water leakage problem was cured permanently, any further renovation work to be performed would be futile: see 顏小明 對 多福大厦業主立案法團 (LDBM 79/2007, 12th August 2012) at paras 44 to 45 (per Deputy District Judge Kot, as Her Honour Judge Kot then was). 222.However, Mr Wong contends that the Plaintiffs should have applied the specialized waterproofing materials with crystallization ability recommended by Dr Lam[142] to stop the ingress of water in the ceiling of Flat 25D. According to Dr Lam, such materials would have chemical reaction with the concrete in the slaps. The gross effect is that some reformed substance will be created in the slap, and the same is capable of blocking water seepage for at least 5 years. Dr Lam even said that the materials that he recommended had been sold in the market since1980s and widely used in huge projects worldwide. 223.I have no hesitation to reject Dr Lam’s opinion:
224.In the premises, it was reasonable for the Plaintiffs to reject the proposal form Dr Eddie Lam. 225.After all, Dr Lam is an expert engaged by their opponents. It was understandable why the Plaintiffs were skeptical about his assertions. After hearing Dr Lam’s evidence and Mr Wong’s submissions, I am convinced that the Plaintiffs’ skepticism was wholly justified. Any reasonable person would have taken the stance that the Plaintiffs took. 226.Mr Wong also criticizes the Plaintiffs for having no intention to repair Flat 25D in a timely manner, and this caused the condition of Flat 25D to deteriorate. As pointed out in paragraph 53(2) above, in his oral opening submissions, Mr Wong contends that the Plaintiffs should have immediately carried out reparation works after 30th April 2024[143] when their solicitors were informed that part of the works recommended by Global Generation (including the works relating to the walls of the Water Tank Houses) were completed. In his written submissions, Mr Wong further submits that it was unreasonable for the Plaintiffs to wait until Yan Cheong completed all the works recommended by Global Generation. Mr Wong emphasizes that there has been no complaint of water seepage after October or November 2023. 227.Mr Wong’s submissions are unreal and unmeritorious, and I reject the same:-
228.For the above reasons, I reject the 1st and 2nd Defendants’ unfounded allegations that the Plaintiffs failed to mitigate their loss. I find that the Plaintiffs acted reasonably at all material times. E7. Quantum Rental Income 229.In Section E3 (see paragraph 200), I find, inter alios, that (i) the 1st and 2nd Defendants should have promptly taken steps to identify the source of water seepage and to nullify the nuisance after 8th June 2018; and (ii) had reasonable steps been taken with due diligence, all the reparation works that cure the water seepage would have been completed within around 12 months. This would have been around June 2019 (say 1st June 2019)[145]. 230.The 1st and 2nd Defendants should be liable for the Plaintiffs’ loss of rental income from 1st June 2019 onwards until the time when the Plaintiffs are able to rent out Flat 25D again. This will only happen after the contractor engaged by the Plaintiffs repairs Flat 25D. 231.As mentioned, only on 3rd October 2024 (ie less than 2 weeks before the present trial commenced) did the 1st and 2nd Defendants, through solicitors, inform the Plaintiffs that all the reparation works recommended by the Global Generation had been completed[146]. However, as of June 2024, the Plaintiffs had already engaged a professional surveyors’ firm, namely TLS & Associates Ltd (“TLS”)[147], to conduct a tender, and quotations from five contractors were received. 232.Since the Plaintiffs were fully occupied by the present trial[148], it would be reasonable for them to resume the liaison with TLS after the present trial completed on 29th October 2024. TLS received the quotations more than four months ago on 17th June 2024[149]. As such, it would be necessary for TLS to obtain updated quotations from the contractors. Further, it may take time for TLS to sort out and confirm the terms of the engagement and the relevant arrangement with the contractor to be chosen by the Plaintiffs. According to the 1st Plaintiff, he estimated that it would take two months for the contractor to complete the reparation works in Flat 25D. This estimation is fair and not seriously challenged. 233.Taking into account the matters canvassed above as well as the fact that it will take some time to locate a tenant, I am of the view that the Plaintiffs will not be able to rent out Flat 25D until February 2025 (say 1st February 2025). This is about 3 months from the day (ie 29th October 2024) when it would be reasonable for the Plaintiffs to resume liaising with TLS. 234.In the premises, I find that the 1st and 2nd Defendants should be liable for the Plaintiffs’ loss of rental income from 1st June 2019 to 1st February 2025. 235.It is the Plaintiffs’ pleaded case that they suffer loss of rental income at the rate of HK$38,000 per month[150]. However, when the 1st Plaintiff testified, he fairly and frankly accepted that the rate of HK$38,000 per month is based on his estimate that Flat 25D be rented out on the basis that it is fully furnished. 236.In this connection, I accept Mr Wong’s submissions that as the Plaintiffs’ claims are tortious in nature, he may only seek damages on the basis that he be put in a position that he would have been in had the wrong not been committed: see Ng Chi Kwan Danny Summer v Yeung Yiu Kwan [2014] 5 HKLRD 744 at paras 125-126 (per DHCJ Marlene Ng, as Marlene Ng J then was). 237.However, I am unable to accept Mr Wong’s contention that the Plaintiffs cannot prove he would have been able to rent out Flat 25D after June 2020. As I understand, the crux of Mr. Wong’s argument is that the Plaintiffs could not have known what would have happened had there been no water seepage. This argument is simply contrived. There is not a shred of evidence showing that but for the 1st and 2nd Defendants’ flagrant and continuous breach of duties, Mr. Hung and his family would have wished to leave Flat 25D or the Plaintiffs would have faced difficulty to rent out Flat 25D. 238.On the evidence before the Court, I am satisfied that had the 1st and/or 2nd Defendants promptly abated the nuisance in discharge of their duties, Mr Hung would have continued the tenancy relationship with the Plaintiffs. I fully accept the 1st Plaintiff’s evidence that he and the Hungs had a very harmonious and friendly relationship all along, and they tried to accommodate each other. Having heard the 1st Plaintiff’s evidence, I am of the view that he is a reasonable person who truly understands where others come from, and there is no surprise that he had a very good relationship with his tenant and his family. The 1st Plaintiff informed me that he was very grateful to Mr Hung and Mrs Hung who were willing to tolerate the unsatisfactory condition of Flat 25D for more than 6 years, and he felt sorry that the water seepage problem was not resolved. The 1st Plaintiff also told me that Mr Hung and Mrs Hung’s son (who grew up in Flat 25D since he was born) did not wish to leave the property, and he felt upset about the situation. Eventually, a photo was taken before the Hungs left. I have no reason to doubt the 1st Plaintiff’s evidence. 239.I also fully accept the 1st Plaintiff’s evidence that before Mr Hung and Mrs Hung left Flat 25D, he had a conversation with Mrs Hung, and Mrs Hung indicated that but for the water seepage problem, she and her husband would have been willing to rent Flat 25D at the monthly rental of HK$34,000 after the term of the pre-existing tenancy agreement dated 12th June 2018 came to an end. 240.In the premises, I find that but for the 1st and 2nd Defendants’ breach of duties and/or tortious conduct, the Plaintiffs would have continuously rented Flat 25D to Mr Hung at the monthly rental of HK$34,000 after the pre-existing tenancy ended on 11th June 2020[151]. 241.Accordingly, the Plaintiffs are entitled to damages in respect of loss of rental income as follows:-
242.In his closing submissions, Mr Wong belatedly submitted that government rent and rates as well as well as management fees should be deducted from the award in favour of the Plaintiffs. This point was not raised in the pleadings or during opening submissions. It was not even put to the 1st Plaintiff when he was cross-examined. In the circumstances, the Plaintiffs have been deprived of the opportunity to address the point. It is unfair to ambush the Plaintiffs in the late state of the proceedings in this manner. In any event, as the 1st and 2nd Defendants are the parties who seek to allege that government rent and rates and management fees should be deducted, they carry the burden to prove that the Plaintiffs and Mr Hung would have agreed that the Plaintiffs should bear the government rent and rates as well as management fees. The 1st and 2nd Defendants also bear the burden to prove the quantum in question. Without cross-examining the 1st Plaintiffs on these matters, the 1st and 2nd Defendants are unable to adduce a shred of evidence. Re-instating Damaged Renovation Works that were already Carried Out 243.It is not in dispute that part of the renovation works carried out by Sun Ying Loi Construction Co were damaged, and the experts agree that the expenses for reinstating these works be assessed at HK$4,683.33[158]. Reparation Works to be carried-out 244.In 2022, the parties’ experts inspected Flat 25D for the purpose of assessing damage. However, due to continuous water leakage, the condition of Flat 25D has significantly deteriorated since 2022. 245.As mentioned, on 17th June 2024, TLS received five quotations from contractors for carrying out reparation works in Flat 25D. Whilst the highest quote was HK$691,094, the cheapest quote was HK$366,240. On this basis, the Plaintiffs claim damages of HK$366,240, being expenses for reinstating and repairing Flat 25D. 246.I accept the 1st Plaintiff’s evidence that in around early November 2023, a Mr Lo of Yan Cheong gave an express warning that the Plaintiffs must exercise caution when the ceiling in Flat 25D is repaired in the future. Given the seriousness of the damage in Flat 25D, if the reparation works were not carried out cautiously, the waterproofing membrane that Yan Cheong constructed on the Roof would be damaged. The consequence is that the 10-year warranty provided by Yan Cheong would cease to apply, and the Plaintiffs may need to bear the expenses for carrying out reparation works and compensate other individual owners if there is water leakage. 247.It was in these circumstances that the Plaintiffs engaged TSL, which is a professional surveyors’ firm, to invite quotations from qualified and reputable contractors. In my view, what the Plaintiffs seek to do is wholly reasonable and unnecessary. 248.However, Mr Wong criticizes the Plaintiffs for not adducing expert evidence to prove that it is necessary to incur HK$366,240 to reinstate or repair Flat 25D. I reject Mr Wong’s contention, which is, again, pedantic. The quotations are the best evidence[159]. There is no suggestion that the quotations are bogus or inflated. The evidence shows that five bona fide contractors nominated by a professional surveyors’ firm seek to compete for a job. It is plain that the cheapest quote of HK$366,240 is a reasonable market price. It is most reasonable for the Plaintiffs to choose the contractor that charges the cheapest price. In my view, the criticism against the Plaintiffs is ill founded and should not have been made. 249.In the premises, I award damages in the sum of HK$366,240 in respect of the expenses for reinstating and repairing Flat 25D. Expenses on Ms Lau’s 1st Report dated 23rd October 2020 250.I disagree with Mr Wong’s suggestion that the fees in respect of Ms Lau’s report dated 23rd October 2020 should form part of the costs of the action. 251.In Chau Wai Hung & Anor v. Lam Tak Chuen (supra) at para 89(1), DHCJ Phoebe Man allowed the plaintiff’s claim for the fee in respect of a pre-action report (as damages) on the basis that the report was prepared to investigate the cause of the water seepage in order to limit damage 252.Like the scenario in Chau Wai Hung, the Plaintiffs engaged Ms Lau to prepare the report dated 23rd October 2020 in order to identify the cause(s) of the water leakage and to convince the 1st and 2nd Defendants to take timely action, such that their damage could be limited. 253.I am of the view that the fee charged by Ms Lau, ie HK$50,000, is reasonable. I allow this sum in full. General Damages: Inconvenience, Annoyance and Discomfort 254.Mr Li asks me to award general damages in the sum of HK$50,000. 255.He refers me to Yeung Yik Chun v Wong Lai Ming & Anor [2023] HKDC 1160 at paras 166-167. In that case, the plaintiff did not live in the subject property. However, he returned to the property from time to time to attend to the water dripping, clean up the molds and monitor the development. The subject property had been affected by water seepage for about 5 years. Deputy District Judge Michelle Lam (as Her Honour Judge Michelle Lam then was) awarded the plaintiff general damages of HK$30,000 for the inconvenience and discomfort that he suffered. 256.Mr Wong refers me to Wen Shek Tun & Anor v. Chan Wai Fong & Anor [2022] HKDC 856 at para 22. There, Master Maurice Lam awarded general damages of HK$20,000 to a plaintiff who did not live in the subject property. In that case, the water seepage had last for about 4.5 years. 257.Whilst each case will have to be decided on its own facts, I have considered the two cases cited by counsel as well as the cases referred to in Yeung Yik Chung v Wong Lai Ming (supra) at para 166. 258.I am of the view that in the circumstances of the present case, an award of HK$30,000 will be sufficient to compensate the Plaintiffs for the inconvenience, annoyance and discomfort that they have been suffering since June 2019. Fees of Estate Agent 259.As explained, the Plaintiffs should be compensated on the basis that he be put in a position that he would have been in had there been no wrong and/or breach of duties on the part of the 1st and 2nd Defendants. As such, they are not entitled to claim the expenses to be incurred for engaging estate agents. Sum Up 260.To sum up, the Plaintiffs are entitled to damages as follows:-
F. Order and Disposition F1. The Substantive Claims and Interest 261.I order the 1st and 2nd Defendants to pay damages of HK$2,456,565.04 to the Plaintiffs. 262.The Plaintiffs are entitled to interest at half judgment rate on the sums of HK$2,005,641.71, HK$50,000 and HK$30,000 from 1st June 2019 to the date of this judgment, and thereafter interest at judgment rate until payment in full. 263.I dismiss the Plaintiffs’ claims against the 4th Defendant in the original action. 264.I dismiss the 1st and 2nd Defendants’ claims against 4th Defendants under the amended notice of contribution and/or indemnity dated 4th November 2022. F2. Costs 265.Costs should follow the event. 266.I see no reason why the 1st and 2nd Defendants should not pay the Plaintiffs’ costs in this action. 267.As regards the costs of the 4th Defendant, my tentative view is as follows:-
268.In the premises, I make a costs order nisi that:-
269.I thank counsel for their assistance.
Mr Vincent Li, instructed by K B Chau & Co, for the plaintiffs Mr Wong Cho Lik, instructed by Munros, for the 1st and 2nd defendants Mr Stephen Siu, instructed by Kwok, Ng & Chan, for the 4th defendant [1] See the summary in paragraph 5.2 of Dr Eddie Lam’s Expert Report (Bundle D, page 666). [2] See the preamble of the Order dated 13th September 2023 of Master Maurice Lam (Bundle A, page 81) [3] Bundle D6, pages 2459-2402 [4] See paragraph 1 of the Order dated 13th September 2023 of Master Maurice Lam (Bundle A, page 81) [5] This refers to Mr. Chu Cheung Cheung (ie the first named Plaintiff). For the sake of convenience, in this judgment, Mr. Chu is referred to as the 1st Plaintiff, though this may not be technically accurate. [6] This refers to Madame Tsang Yee Ping Ellia (ie the second named Plaintiff). For the sake of convenience, in this judgment, Madame Tsang is referred to as the 2nd Plaintiff, though this may not be technically accurate. [7] Paragraph 3 of 1st Plaintiff’s Witness Statement (Bundle B, page 95) [8] See the summary in paragraph 5.2 of Dr Eddie Lam’s Expert Report (Bundle D, page 666). [9] According to the 1st Plaintiff (see paragraph 5 of his Witness Statement (Bundle B, page 95), the tenant was a Mr Lam, but he used different companies to enter into tenancy agreements with the Plaintiffs [10] The tenancy relationship lasted for 7 years (see paragraph 5 of the 1st Plaintiff’s Witness Statement (Bundle B, page 95)) [11] See paragraph 7 of the 1st Plaintiff’s Witness Statement (Bundle B, page 95) [12] See paragraph 6 of the 1st Plaintiff’s Witness Statement (Bundle B, page 95) [13] See 1st and 2nd Defendants’ Amended Defence, para 6(a) and para 8. [14] Bundle D4, page 2199 [15] See paragraph 4(a) of the Amended Defence of the 4th Defendant [16] Amended Defence, para 5(b)-(f); Mr Chiu Kwan Fung’s Witness Statement, para 5-10(Bundle B, page 180) [17] Bundle D4, page 2234 [18] See the table under paragraph 10 (at page 4) of the 1st and 2nd Defendants’ Amended Defence. [19] See notice to quit from Mr Hung at Bundle D1, page 1245 [20] Amended Statement of Clam, para 14 [21] See the table under paragraph 10 (at page 4) of the 1st and 2nd Defendants’ Amended Defence. [22] Bundle D5, pages 2235-2236 [23] Bundle D5, page 2237 [24] Bundle D5, pages 2238-2239 [25] Bundle D5, pages 2245 [26] Bundle D5, page 2246 to 2247 [27] The 4th Defendant’s Amended Defence, para 5 [28] The 4th Defendant’s Amended Defence, para 5(j) and Mr Chiu’s Witness Statement, para 12 (Bundle B, page 181) [29] Mr Chiu’s Witness Statement, para 13 (Bundle B, page 181) [30] The 4th Defendant’s Amended Defence, para 5(l) and Mr Chiu’s Witness Statement, para 14 (Bundle B, page 181) [31] The 4th Defendant’s Amended Defence, para 5(o)-(p) and Mr Chiu’s Witness Statement, para 14-17 (Bundle B, page 182) [32] The 4th Defendant’s Amended Defence, para 5(r) and Mr Chiu’s Witness Statement, para 18 (Bundle B, page 182) [33] Mr Chiu’s Witness Statement, paras 19-22 (Bundle B, page 182-183) [34] The 4th Defendant’s Amended Defence, para 5(t)-(v) and Mr Chiu’s Witness Statement, para 23-25 (Bundle B, page 183) [35] The 4th Defendant’s Amended Defence, para 5(w) [36] The 4th Defendant’s Amended Defence, para 5(x) and Mr Chiu’s Witness Statement, para 26 (Bundle B, page 183) [37] Bundle D3, pages 2069-2073 [38] Bundle D4, pages 2099-2102 [39] Bundle D4, pages 2102-2106 [40] See the letter from Plaintiffs’ solicitors dated 8th May 2023 enclosing the photos (Bundle D, pages 2136-2146) [41] See Bundle D5, pages 2260-2266. It appears that Chi Tat merely added a layer of waterproofing membrane on the Roof, and the warranty period only lasted for 12 months [42] Ditto [43] Bundle D6, page 2359 to 2402 [44] See the preamble of the Order dated 13th September 2023 made by Master Maurice Lam (Bundle A, page 81) [45] See the photos (which are incontrovertible) in Bundle D4, pages 2158 to 2177 [46] Bundle D1, page 1443 [47] See the letter and certificate from Yan Chong dated 4th September 2024 (Bundle E2, pages 2904-2905), which suggested that the works relating to the fresh water tank and the fire services water tank (together with the surfaces) had been completed. It appears that these were the last trances of the works that were carried out. [48] Bundle E2, page 2941 [49] Amended Statement of Claim, para 7 [50] Amended Statement of Claim, para 19(a)-(b) [51] Amended Statement of Claim, para 19(c) [52] Amended Statement of Claim, para 19(d) [53] Amended Statement of Claim, para 31 [54] Amended Defence of the 1st and 2nd Defendants, para 20 [55] The 1st and 2nd Defendant’s Amended Defence, para 18 [56] Bundle D4, 2184 [57] In the letter, it was stated that the completed area included the machine room, the F.S. pump room, the flush water tank and the fire services water tank. However, the floor surface of the upper roof of the fresh water tank, pump room and staircases were still work in progress. [58] Bundle D1, page 1443 [59] Bundle D2, pages 1480-1485 [60] Bundle D2, pages 1486-1510 [61] Bundle D2, pages 1511-1516 [62] Bundle D2, pages 1518-1519 [63] Bundle D2, pages 1520-1554 [64] Bundle D2, pages 1575-1583 [65] Bundle D2, pages 1589-1595 [66] Bundle D2, page 1690-1691 [67] Bundle D3, page 1727-1731 [68] Bundle D3, pages 1751 [69] Bundle D3, page1759-1761 [70] Bundle D3, pages 1767-1773 [71] Bundle D4, pages 2069-2073 [72] Bundle D4, pages 2099-2102 [73] See the letter from Plaintiffs’ solicitors dated 8th May 2023 enclosing the photos (Bundle D, pages 2136-2146) [74] Bundle D4, pages 2103-2109 [75] Bundle D4, pages 2158-2177 [76] Bundle D5, pages 2235-2236 [77] Bundle D5, page 2237 [78] Bundle D5, pages 2238-2239 [79] Bundle D5, pages 2245 [80] Bundle D5, page 2246 to 2247 [81] Bundle D1, pages 1240 and 1244 [82] Bundle D, pages 2136-2146 [83] Bundle D, pages 2136-2146 [84] For instance, the photos taken on 21st April 2023 show that there were flaky plasters, spalled concrete and exposed steel embedment on the ceilings in the living room as well as the kitchen. The photos taken on 13th August 2023 even show that broken concrete pieces of considerable sizes fell from the ceilings in the living room, dining room, guest toilet, kitchen and bed room. These sizeable broken concrete pieces were capable of causing serious personal injury. [85] Bundle D, page 2248 [86] See the notice at Bundle D5, page 2353 [87] Bundle D5, page 2354 [88] Bundle D, pages 2136-2146 [89] See the chronology under paragraph 10 of the 1st and 2nd Defendants’ amended defence and counterclaim and the chronology annexed to Mr Wong’s opening submissions [90] See Bundle D5, pages 2260-2266. It appears that Chi Tat merely added a layer of waterproofing membrane on the Roof, and the warranty period only lasted for 12 months starting from 16th August 2022 (see Bundle D5, 226). Although there was no water leakage after a typhoon on 2nd November 2022, there was serious water leakage on 21st April 2023 after a week of heavy rainfall. This was within the 12-month warranty period. [91] See the summary in paragraph 5.2 of Dr Eddie Lam’s Expert Report (Bundle D, page 666). [92] He left the 4th Defendant in around June 2020. He now works for another construction company now [93] Bundle D3, pages 1744 onwards [94] Bundle D5, page 2234 [95] See paragraphs 5.2 to 5.5 Dr Eddie Lam’s first report dated 26th February 2022 (Bundle C2, pages 666 to 667) and paragraphs 3.1 to 3.7 of his 2nd supplemental report dated 24th July 2023 (Bundle C4, pages 1044 to 1047) [96] See paragraphs 3.1.1 to 3.1.5 of Ms Lau’s supplemental report dated 15th September 2023 (Bundle C4, pages 1075-1078) [97] See paragraph 3.1 of Dr Lam’s 2nd Supplemental Report and the table that summarized the photos (Bundle C4, pages 1044 and 1048) [98] See paragraphs 3.3 to 3.4. [99] Bundle D3, pages 1736 and 1737 [100] See the photos in Bundle D3, page 1738 [101] Bundle C4, page 1047 [102] Although Mr Pang said pump house in paragraph 6 of his witness statement, the plan at page 161 of Bundle B that illustrates the locations of the walls clearly refer to both the wall of the Water Tank House containing the fresh water tank and the wall of the pump room. It is also pertinent to refer to paragraph 9 of Mr Pang’s witness statement. There, Mr Pang mentioned that he made arrangement to apply interim waterproofing materials on the walls. As demonstrated by the photos at pages 171 of Bundle B, these materials were put on the wall on both the Water Tank House containing the fresh water tank as well as the wall of the pump room. Thus, it appears to be Mr Pang’s evidence that the crystalized liquid with rust and white power was found on the walls of both structures. [103] Bundle D5, page 2246 to 2247 [104] Bundle D, page 2248 [105] See footnote (2) in Bundle C1, page 231 [106] Bundle C1, page 344 [107] Bundle C3, pages 871 [108] Bundle C1, page 208 [109] See Bundle C1, pages 325 and 372 [110] See Bundle C1, pages 325 and 372 [111] See Bundle C1, pages 217 and 236 [112] Bundle C2, pages 643-667 [113] See for example the photos in Bundle C4, pages 973-974 [114] See paragraph 2 of Ms Lau’s supplemental report dated 6th May 2022 (Bundle C4, page 963) [115] In light of what Dr Lam suddenly alleged in the afternoon on the 8th day of trial, in the morning on the 9th day of trial, the 4th Defendant promptly made an application to adduce two photos taken by Mr Pang with his cellphone and the computer records in respect thereof. Despite the Plaintiffs’ objection, I allowed the application as I was of the view that (i) the photos and computer records were of high probative value and could assist the Court to resolve the real controversies in dispute; (ii) the 4th Defendant could not be blamed for not adducing the photos and computer records earlier as Dr Lam’s allegations were utterly unexpected; and (iii) the Plaintiffs and 1st and 2nd Defendants would not be prejudiced as their counsel had the opportunity to cross-examine Mr Pang regarding the photos and computer records as the 4th Defendant was willing and able to tender Mr Pang to give evidence and be cross-examined with regard to the said photos and computer records. [116] Bundle C1, pages 359 and 361 [117] Bundle C3, page 761 [118] See paragraph 7.2.3 (Bundle C3, page 758) [119] See paragraph 7.2.3 (Bundle C3, page 758) [120] Bundle C1, pages 238 and 260 [121] Paragraph 5.4.3 of her first Report (Bundle C1, page 268) [122] Paragraph 4.41 of Ms Lau’s first Report (Bundle C1, pages 263-264) [123] See paragraph 1.2 (Bundle D1, page 1374) [124] See paragraph 10.2 (Bundle D1, page 1355) [125] See paragraph 1.8 of the minutes (Bundle D1, page 1395) [126] Bundle D4, page 2199 [127] See letter dated 18th November 2020 (Bundle D4, pages 2051-2052) [128] Bundle D, page 2248 [129] It does not appear that Mr. Poon adopted this attitude. Thus, the criticism here is not applicable to Mr. Poon. [130] See paragraph 2.3 (Bundle D1, page 1325) [131] See paragraph 10.2 (Bundle D1, page 1354) [132] See paragraph 1.4 (Bundle D1, page 1359) [133] See paragraph 1.8 of the minutes (Bundle D1, page 1395) [134] See paragraph 1.4 of the minutes of the meeting of 1st Defendant’s management committee on 30th August 2022 (Bundle D1, page 1405) [135] See paragraph 1.2 of the minutes (Bundle D1, page 1374) [136] Since the scope of the works that were carried out were different and the circumstances were also different, the works carried out by the contractors in the past were only reference. [137] According to the 1st Plaintiff, his wife, ie the 2nd Plaintiff, was a nurse before retirement. Since she retired early, the monthly pension sum that she received was only around HK$7,000 to HK$8,000. I accept the 1st Plaintiff’s evidence. [138] Paragraph 10.2 (Bundle D1, page 1354 to 1366) [139] Paragraph 1.4 (Bundle D1, pages 1359 to 1360). [140] See 1st Plaintiff’s witness statement, para 66(2) (Bundle B, page 110); and the quotation dated 14th October 2020 provided by Sun Ying Loi Construction Company (Bundle D4, page 1966) [141] Paragraph 1.4 of the minutes (Bundle D1, page 1359) [142] See paragraph 3.5 of Dr Lam’s supplemental report dated 22nd July 2022 (Bundle C2, page 711); and paragraph 3.9 of Dr Lam’s 3rd supplemental report dated 19th August 202 [143] Bundle D, page 2184 [144] See the solicitors from their letter dated 30th April 2024 (Bundle D, page 2184) [145] A period of 12 months is on the generous side. I am of the view that had 1st and 2nd Defendants acted promptly and reasonably after 8th June 2018, they should have been able to identify the source of the water leakage and completed all the reparation works as of 1st June 2019. Put it more precisely, this would have been around 11 months and 3 weeks. [146] Bundle E2, pages 2941 to 2942 [147] See the tender sheet at Bundle D4, page 2197 [148] The Plaintiffs attended the trial on a daily basis, and the 1st Plaintiff was indeed an important witness. [149] Ditto [150] Paragraph 25 of the Statement of Claim [151] See Bundle D1, page 1244. The term of the tenancy agreement dated 12th June 2018 ended on 11th June 2020. [152] See paragraph 80(2) above. In the tenancy agreement starting dated 12th June 2018, rental was reduced from HK$32,000 to HK$25,200 due to the water seepage. See clause 17 (which was hand-written). (Bundle D1, pages 1242 to 1244) [153] This is the 12-month period from 1st June2019 to 30th May 2020. [154] This is the 11 days’ period from 1st to 11th June 2020 [155] This is the notional day when the Plaintiffs will be able to rent out the Flat 25D again. [156] This is the 56 months’ period from 12th July 2020 to 12th January 2025. [157] This is the 16 days’ period from 13th January to 1st February 2025. [158] See paragraph 4.2.3 of Joint Expert Report (Bundle C4, page 957) [159] Bundle D4, page 2197. [160] The 1st and 2nd Defendants’ contention is based on burden of proof. In gist, it is argued that as the experts did not inspect Flat 25D after 2022, the Plaintiffs could not prove that there were water seepage after 2022 and that areas other than dining room, living room and guest bathroom were affected. Be that as it may, the conclusion that the 1st and 2nd Defendants invited me to draw was that (i) there was no water seepage after 2022 (or that it could not be shown that there was water seepage after 2022); and (ii) the water seepage did not affect the areas other than the dining room, living room and guest bathroom (or that it could not be shown that the water seepage affected areas other than the dining room, living room and guest bathroom). On way or the other, the contention pursued by the 1st and 2nd Defendants are flatly contradicted by the overwhelmingly evidence (such as the photos and contemporaneous documents that are not challenged), and as such the 1st and 2nd Defendants are, in my view, intellectually dishonest. [161] Mr. Wong complained that the Plaintiffs did not plead that the Water Tank Houses were part of the Roof. In line with Dr. Lam’s opinion, Mr. Wong insisted that only the areas that were vertically above Flat 25D could constitute the Roof. However, in the paragraph 2 of the amended statement of claim, the Plaintiffs unequivocally plead that the Water Tank Houses are within Roofs. After this was pointed out to Mr. Wong, Mr. Wong still went on to argue that in the Defendants’ defences, the definitions of the Roof are different. It was puzzling as to how Mr. Wong could use the Defendants’ pleas to change the definitions adopted in the Plaintiffs’ pleas. [162] Bundle D5, page 2345 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 244/2021