Wu Hucheng v. Tian Jiong and Another
Read the full judgment text of DCCJ 4296/2021 on BabelCite. This District Court judgment was delivered on 19 November 2024.
1. This case concerns water leakage in a multi-storey residential building.
Cited by 3 cases · Cites 30 cases
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DCCJ 4296/2021 [2024] HKDC 1902 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4296 OF 2021 ------------------------------
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------------------------------ JUDGMENT ------------------------------ I. Introduction 1.This case concerns water leakage in a multi-storey residential building. II. Background 2.The Plaintiff is and was the owner of Flat C on 23rd Floor with Balcony and Utility Platform (“Plaintiff’s Flat”) of Harbour One, No 458 Des Voeux Road West, Hong Kong (“Harbour One”). The 1st and 2nd Defendants, being husband and wife, are and were the owners of Flat C on 25th Floor with Balcony and Utility Platform (“Defendants’ Flat”) of Harbour One, which is immediately above the Plaintiff’s Flat. 3.In February 2020 and on 16 June 2020, the Plaintiff informed Messrs Jones Lang & Lasalle (“JLL”), the management company of Harbour One, that there was water leakage from the ceiling of the corridor of the Plaintiff’s Flat. JLL sent staff to the Plaintiff’s Flat for inspection and photograph-taking. By reason of the close proximity between the position of water seepage and the guest bathroom of the Defendants’ Flat immediately above, JLL notified the Defendants to follow up with the matter.[1] 4.On 28 August 2020, the Joint Office of the Buildings Department and Food and Environmental Hygiene Department (“the Joint Office”) inspected the Defendants’ Flat and carried out colour water test to the drainage pipe. However, the origin of the water leakage was not ascertained. These events were confirmed in the Joint Office’s letter dated 10 September 2020. 5.By letter dated 16 September 2020, the Joint Office informed the Defendants that they would appoint a consultant Easy Living Consultant Limited (宜居顧問服務有限公司) (“Easy Living”) to inspect the Plaintiff’s Flat and the Defendants’ Flat to find out the cause of water leakage. 6.By two letters both dated 14 July 2021, the Joint Office informed the Plaintiff and the Defendants respectively that their staff had visited the Plaintiff’s Flat and the Defendants’ Flat for water leakage investigation and tests including (a) colour water test of the water sink and water drainage pipe of the toilet bowl of both the master and guest bathrooms, (b) ponding test at the floor slab of both the master and guest bathrooms, (c) ponding test at the floor slab of the shower area of both the master and guest bathrooms, as well as (d) water spraying test of the surrounding walls. Nonetheless, the cause of water leakage could not be found. As a result, the Joint Office decided to cease temporarily the follow-up of the case. 7.On 23 July 2021, the Plaintiff’s representative one Ms Ho informed JLL that water leakage was still persisting.[2] 8.On 26 July 2021, the Plaintiff engaged one Hong Kong Building Inspection & Structural Diagnostic Limited (“HKBI”) to conduct site inspection and tests at the Plaintiff’s Flat. The Plaintiff had demanded JLL to arrange an inspection inside the Defendants’ Flat, but the Defendants declined. On that day, HKBI requested the Defendants to switch off the fresh water supply from 10:30 am to 11:00 am, but the Defendants declined.[3] 9.In its inspection report dated 1 September 2021 (“Inspection Report”), HKBI concluded that water leakage had been caused by seepage of fresh water from the water facilities of the Defendants’ Flat through its concrete floor slab. The Inspection Report shall be revisited below. 10.By letter dated 8 September 2021, the Plaintiff’s Solicitors Mess Lo, Chan & Leung (“LCL”) informed the Defendants that since about June 2018, there had been water leakage at the ceiling of the corridor and guest bathroom of the Plaintiff’s Flat, causing substantial damage thereto and great inconvenience, nuisance and annoyance to the Plaintiff, and the matter had been reported to JLL and the Joint Office. The water leakage problem had continued. Since the Plaintiff’s request for his expert to enter the Defendants’ Flat and inspect the exact location of the source of water leakage had not been acceded to, the Plaintiff engaged HKBI to conduct an investigation into the cause of the water leakage and assess damages, and the Inspection Report concluded that the water leakage in the Plaintiff’s Flat was due to seepage from the fresh water pipe of the Defendants’ Flat. A copy of the Inspection Report was enclosed. LCL requested the Defendants to take immediate steps to engage professionals to identify the exact location of water leakage in the Defendants’ Flat and carry out necessary and effective repair works, and to provide a plan of necessary repair works within 14 days. 11.Meanwhile, on 8 September 2021, the Plaintiff issued the Writ of Summons herein. 12.By letter dated 16 September 2021, Messrs Mike So, Joseph Lau & Co (“MSJL&C”), the then solicitors for the Defendants, produced to LCL the said letter dated 14 July 2021 from the Joint Office. Without admitting liabilities, the Defendants agreed to engage a professional consultant / contractor to check and inspect the Defendants’ Flat to ascertain the source of water leakage as soon as possible. 13.By around September 2021, Easy Living had compiled its inspection report Assignment No 5OH106/2019/CW/4564 (“Easy Living Report”), which provided, inter alia, that:-
14.On 23 and 24 September 2021, Kailead Engineering Ltd (“Kailead”), a contractor referred by JLL, inspected and carried out the pressurised water test at the Defendants’ Flat. In its report dated 27 September 2021 (“Kailead’s Report”), Kailead concluded that there was no water leakage from the fresh water pipe. I set out the Kailead’s Report in full (including the spacings between words and the punctuation marks used):-
15.By letter dated 8 October 2021, MSJL&C informed LCL that the Defendants had engaged a professional contractor (ie Kailead) to check and inspect the Defendants’ Flat on 24 September 2021, but could not find the source of water leakage. Meanwhile, the Defendants had engaged another professional contractor to carry out remedial works in the toilet of their guestroom at around 11:00 am that morning. MSJL&C requested the Plaintiff to check and observe whether the water leakage had been stopped after the remedial works for a period of 14 days. 16.On 21 and 28 October 2021, the Defendants’ contractor inspected the Plaintiff’s Flat.[4] 17.On 24 October 2021, the Defendants requested JLL to arrange waterproofing injection works at the ceiling of the Plaintiffs’ Flat, and the Plaintiff agreed. However, such works were cancelled upon the Defendants’ discovery of other suspected seepage reason(s).[5] 18.By letter dated 25 October 2021, LCL informed MSJL&C that the water leakage problem was still continuing after the remedial works purportedly carried out by the Defendants’ contractor. LCL informed MSJL&C that they had standing instructions to serve the Writ of Summons, and asked if MSJL&C had instructions to accept service of the same. 19.By letter dated 28 October 2021, MSJL&C confirmed with LCL that they had instructions to accept service of the Writ of Summons herein. 20.On 1 November 2021, JLL was informed that the Defendants had carried out works to the bathtub (浴缸) of the Defendants’ Flat.[6] 21.On 4 November 2021, JLL was informed by the Plaintiff that water leakage had stopped.[7] 22.By letter dated 17 November 2021, MSJL&C told LCL that they had been informed by the Defendants that the seepage of water had been stopped since 3 November 2021. MSJL&C asked LCL to confirm with the Plaintiff and discontinue the present action forthwith. III. Plaintiff’s Case 23.The Plaintiff’s case is that since about December 2019 until early November 2021, there had been persistent water leakage from the Defendants’ Flat to the ceiling of the corridor and guest bathroom Plaintiff’s Flat. As a result, the Plaintiff’s Flat suffered loss and damage:-
24.The Plaintiff duly lodged complaint about the water leakage to JLL, and as a result inspection was carried out on various occasions, through which the Defendants were made fully aware of the water leakage problem. However, no or no effective action had been promptly taken on the part of the Defendants to investigate the source of water leakage from the Defendants’ Flat and to carry out necessary repair and/or remedial works. 25.The Plaintiff contends that water leakage to the ceiling of the corridor and the guest bathroom of the Plaintiff’s Flat was caused by the negligence, breach of duties under the deed of mutual covenant (“DMC”) of Harbour One and the Building Management Ordinance (Cap 344) (“BMO”) and/or nuisance of or permitted by the Defendants. 26.Insofar as breach of duties under the DMC is concerned, the Defendants were in wrongful breach of the following provisions thereof:-
27.The Defendants are also liable to the Plaintiff under Clause 44 of the DMC, which provides that “[e]ach Owner shall be responsible for and shall indemnify the Manager and the other Owners and Occupiers for the time being against all actions, proceedings, claims and demands whatsoever arising out of or in respect of any loss or damage to any person or property caused by or as the result of the act or negligence of such Owner or any Occupier of any Unit of which he has the exclusive use or any person using such Unit with his consent express or implied or by, or through, or in any way owing to the overflow of water or spread of fire therefrom and to pay all costs, charges and expenses incurred in repairing or making good any loss or damage to the Lot and the Estate or any part or parts thereof or any of the Common Areas and Facilities therein or thereon caused by the act, neglect or default of all such persons…” 28.The Plaintiff further alleges that the Defendants were in breach of the duty to maintain good repair and condition under section 34H of BMO, which provides that:-
29.Despite repeated requests and demands, including but not limited to the said letter issued by LCL dated 8 September 2021, it was not until early November 2021 that the water leakage from the Defendants’ Flat to the Plaintiff’s Flat ceased, but the Defendants still fail and/or refuse to admit liability or make any compensation to the Plaintiff for the water leakage. 30.The Plaintiff claims:-
31.The Plaintiff’s Statement of Claim will be examined in greater detail below. IV. Defendants’ Case 32.The Defendants deny any negligence, breach of duties under the DMC or BMO, or nuisance on their part. They are not responsible for the Plaintiff’s claim. 33.The Defendants rely on the conclusion of the Easy Living Report that the source of water leakage could not be ascertained by them, ie it was not found that water leakage originated from the Defendants’ Flat. 34.The Defendants further rely on the Kailead Report’s conclusion that there was no escape of fresh water through drainage pipe fittings to rebut the speculation in the Inspection Report. 35.The Defendants do not know the source of the water leakage. V. Plaintiff’s Reply 36.In his Reply, the Plaintiff claims to have no prior knowledge of the inspection and tests purportedly done by Kailead in the Defendants’ Flat, and therefore makes no admission to the contents of the Kailead Report. That said, the Plaintiff remarks that it was stated in the Kailead Report that obvious gap was observed on 23 and 24 September 2021 at the floor drain and by the door of the bath cubicle of the guest bathroom of the Defendants’ Flat, which highly likely had caused the water leakage from the Defendant’s Flat as reflected in the high moisture contents of the floor slab of its guest bathroom. 37.The Plaintiff further contends that the Plaintiff’s Flat was and still is intended to be rented out in the open market, but as a consequence of the water leakage, the Plaintiff has not been able to do so and has instead put the Plaintiff’s Flat to personal use on a temporary basis. VI. Issues 38.It is not in dispute that the water leakage has ceased by November 2021. This action is concerned with the issue of liability and quantum of damages. 39.The agreed issues are:-
VII. Trial 40.At trial, the Plaintiff himself testified. He also called another factual witness, namely Mr Fong Kai Cheung (PW2), Senior Asia Sales Manager of Midland Realty. 41.The 2nd Defendant was the sole factual witness for the Defendants’ case. 42.Turning to expert evidence, on the issue of (a) liability in relation to the cause of water leakage to the Plaintiff’s Flat, and (b) quantum regarding the repair costs of the damage arising from such leakage:-
43.In relation to the Plaintiff’s claim for loss of rental income:-
VIII. Legal Principles
44.The relevant principles regarding water leakage cases are well-established. 45.Both the Plaintiff and the Defendants submitted that there is no presumption that water leakage in a multi-storey building necessarily comes from the floor above the affected property. The plaintiff bears the burden of proof to establish, on a balance of probabilities, that the source of water was the defendant’s flat. The defendant, on the other hand, has no obligation to find out or identify the real source of water leakage or to prove that its origin did not come from his property. See 張秀玲及吳炳漢 對 鄭禮莊 CACV 268/1998, unreported, 9 April 1999, per Leong JA (as he then was), at paragraph 21; Hui Ling Ling v Sky Field Development Ltd HCA 35/2007, unreported, 8 May 2012, per Recorder Yuen, SC, at paragraph 23. 46.Moreover, once the defendant was made aware that there was water leakage the source of which could reasonably be identified to be from his property, he has a duty to investigate, locate and repair such water leakage in a prompt and reasonable manner – Yan Wing Fai Rick v Century One Ltd DCCJ 2773/2009, unreported, 2 February 2011, per Deputy District Judge Harold Leong (as he then was), at paragraph 85. 47.So long as the plaintiff has informed the defendant of his belief that the source of water leakage was from the defendant’s flat, the plaintiff does not have the onerous duty to pinpoint the exact leakage points inside the defendant’s flat, especially when the plaintiff or his expert was not given access to the defendant’s flat. The defendant, even not having exact knowledge, would be found to have constructive knowledge of his flat being the source of water leakage if he would be able to find out by exercising reasonable diligence. See So Yiu Woon & Another v Wong Ding Hsiang [2020] HKCFI 2104, per Marlene Ng J, at paragraphs 69 and 70. 48.Negative result from a colour test is not conclusive evidence that there was no water leakage and it poses no bar to the plaintiff in establishing liability on the defendant’s part. See Good Century Investment Ltd v Yim Kin Kuo DCCJ 4980/2013, unreported, 23 November 2015, per Deputy District Judge D Ho, at paragraph 18; Yeung Chiu Wing & Chan Nga Sze v Ho Chi Ming DCCJ 3244/2015, unreported, 17 November 2017, per Deputy District Judge S P Yip (as he then was), at paragraph 22. That said, negative results of tests carried out by independent authorities such as the Water Authority and the Food and Environmental Hygiene Department should not be rejected in the absence of evidence suggesting that the tests were not properly done. See Hui Ling Ling (supra), at paragraph 58. 49.So long as the defendant’s property is proved as the identified source of water leakage, the defendant is liable even if there might be other leakage paths – 皇河實業有限公司 v Wan Chiu Yuen DCCJ 4448/2011, unreported, 20 April 2015, per Deputy District Judge R Lai, at paragraph 295. (B) Private Nuisance 50.To found liability on nuisance, the defendant must be shown to have actual or constructive knowledge that the water leakage originated from his premises. “Knowledge” means what the defendant actually knew, or what the defendant should have known with normal and reasonable diligence. The defendant with such knowledge will be found liable if no remedial action is taken to purge the water leakage without reasonable delay. See 張秀玲及吳炳漢 (supra), per Woo J (as he then was), at paragraphs 26 to 28. 51.Put it in another way, if the defendant knew or ought to have known that in consequence of his conduct harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. In such case the defendant is liable because he is considered negligent in relation to his neighbour, and here nuisance and negligence coincide. See Sun Kwong Chiu Chow Restaurant Limited v Skyhorse Development Limited trading as Gala Association [2019] HKDC 535, per HHJ Kent Yee, at paragraph 20. (C) Credibility and Expert Evidence 52.Insofar as the credibility of a party’s case on a particular issue is concerned, the Court should take into consideration the following:-
53.Turning to expert evidence, I agree with Mr Wong Cho Lik, Counsel for the Plaintiff, that the Court is not to be bound by the opinion or conclusion expressed by an expert witness, even if the expert opinion is not contradicted or where the experts appear to be in agreement, and can and is obliged to make its own independent judgment upon considering all the materials available. See, for example, Grand Wayfair Investment Co Ltd v Chan Yung Kan CACV 238/2013, unreported, 26 September 2014, per Lam VP (as he then was), at paragraphs 37 to 44. IX. Factual Evidence
54.The Plaintiff testified that in October 2017, he purchased the Plaintiff’s Flat together with a subsisting tenancy agreement with a 2-year term from 24 June 2016 to 23 June 2018 at a monthly rent of HK$34,000. The then tenant moved out at the end of the tenancy. 55.From about December 2019 to early November 2021, the Plaintiff’s Flat suffered serious loss and damage due to water leakage from the Defendants’ Flat. Water seeped from the Defendants’ Flat to the ceiling of the guest bathroom and corridor of the Plaintiff’s Flat, causing serious blistering and spalling of the plastering and paintwork of the ceiling. Water marks/ stains, moulds, blackening/ yellowish/ eroding substances were found at various spots on the ceiling of the Plaintiff’s Flat. Ceiling lightings and electrical cables were exposed to water leakage, leading to real risk of short circuit and/or electric shock. Further, blackening and moulding were caused to the wooden floor tiles along the corridor due to prolonged contact with leaked water dripping on the floor. 56.Upon discovery of water seepage at the ceiling, the Plaintiff lodged complaints to JLL for multiple times. As a result, JLL sent its staff to the Plaintiff’s Flat for inspection and photograph-taking, and confirmed that the location of water seepage was close to the guest bathroom of the Defendants’ Flat above. Notwithstanding that JLL had contacted the Defendants and/or occupants of the Defendants’ Flat to follow up, the Defendants did not effect any actual or effective repair or remedial steps to find out the origin of the water leakage so as to halt water leakage from the Defendants’ Flat to the Plaintiff’s Flat (當原告人單位天花出現滲漏跡象，我多次向大廈管業處作出投訴。接獲投訴後，大廈管業處曾派員到原告人單位視察及拍照記錄，證實漏水位置的上方接近被告人單位客廁。大廈管業處已聯絡被告人及/或被告人單位的住戶跟進，但被告人始終沒有採取任何實際或有效的維修或補救措施找出滲漏源頭，以阻止被告人單位繼續漏水至原告人單位。). See paragraph 6 of the Plaintiff’s witness statement. 57.Meanwhile, the Plaintiff reported the water leakage incident to the Joint Office. From August 2020 to May 2021, the Joint Office sent staff to conduct investigation and test but could not ascertain the origin of water seepage, and suggested the Plaintiff to arrange professionals himself to handle the water leakage problem. 58.Hence, in July 2021, the Plaintiff engaged HKBI for site inspection at the Plaintiff’s Flat. The Plaintiff had requested JLL to arrange the entry into the Defendants’ Flat by HKBI for inspection, but the Defendants declined. Mr Chung concluded in the Inspection Report that the water leakage was caused by water seepage from the water facilities of the Defendants’ Flat, as water could seep downwards through the concrete of the floor slab to the guest bathroom and corridor (有證據及跡象顯示原告人單位客廁及走廊受淡水滲漏影響的成因是由於被告人單位用水設施出現滲漏，水分子可沿地台石屎層往下滲入客廁及走廊範圍). See paragraph 8 of the Plaintiff’s witness statement. 59.The Plaintiff was not aware of the investigation done at the Defendants’ Flat by Kailead in September 2021. 60.The Plaintiff testified that despite his multiple requests including those made through JLL and LCL’s pre-action letter dated 8 September 2021, the Defendants had been dragging their feet or evading until November 2021 when the water leakage eventually stopped. 61.Insofar as the leasing matter of the Plaintiff’s Flat is concerned, in November 2019, the Plaintiff engaged Midland Realty to lease out the Plaintiff’s Flat at a monthly rent of HK$38,000. Nonetheless, due to the deterioration of the water leakage problem which affected the guest bathroom and the corridor between the master bedroom and the guest bedroom, the Plaintiff had to withdraw the lease offer in December 2019 in order to avoid greater loss or trouble if the Plaintiff’s Flat were successfully leased out. 62.During the period of water leakage, the Plaintiff had to make use of the Plaintiff’s Flat as storage for some movable items and fitness equipment. 63.Upon the cessation of the water leakage in November 2021, the Plaintiff immediately offered the Plaintiff’s Flat for lease at a monthly rent of HK$40,000. (B) Fong Kai Cheung (PW2) (“Mr Fong”) 64.In 2016, Mr Fong was responsible for finding the tenant for the Plaintiff’s Flat. When the tenant moved out in 2018, Mr Fong came to know the Plaintiff, who had then become the registered owner of the Plaintiff’s Property. 65.In November 2019, the Plaintiff engaged Mr Fong to lease out the Plaintiff’s Flat at a monthly rent of HK$38,000. 66.In early December 2019, Mr Fong was told by the Plaintiff that the leasing of the Plaintiff’s Flat had to be put on hold due to water leakage problem. 67.In around December 2021, Mr Fong was informed by the Plaintiff that the water leakage problem had stopped, and the Plaintiff’s Flat shall be put in the market for lease at a monthly rent of HK$40,000. (C) 2nd Defendant (DW1) 68.In about February or March 2020 and June 2020, the Defendants were informed by JLL that there was water leakage problem to the ceiling of the guest bathroom of the Plaintiff’s Flat. On 21 June 2020 morning, upon the arrangement of JLL, the 1st Defendant entered the Plaintiff’s Flat and discovered a hole on the false ceiling outside the guest bathroom. Through the hole, the 1st Defendant saw some minor water marks on the ceiling. The Plaintiff’s Flat was used to store gym bicycle and hang laundries. 69.On about 26 July 2021, JLL informed her that the loss adjustor of the Plaintiff had to inspect the Defendants’ Flat, but she asked for arrangement of another time due to serious COVID-19 concern and the necessity of temporary relocation of her young child. 70.Upon receipt of Easy Living Report on 7 October 2021, the Defendants decided not to carry out the remedial works as suggested in the Kailead Report because Easy Living had carried out colour water tests and fresh water tests and rebutted the recommendations in the Kailead Report. 71.The Defendants had had no idea of the source of water leakage until receipt of the Statement of Claim filed herein on 30 November 2021 which asserted that the water leakage had ceased and it had been caused by “the seepage from the fresh water pipe(s) of the Defendants’ Flat”. (D) Analysis of Factual Evidence
72.The 2nd Defendant admitted under cross-examination that they had been informed by JLL about the Plaintiff’s complaint of water leakage to the Plaintiff’s Flat in about February or March 2020. Hence, it is not disputed that since no later February or March 2020, the Defendants had known their flat being suspected to be the source of the water leakage. 73.Under cross-examination, the 2nd Defendant testified that despite being notified of the water leakage in about February or March 2020 and in June 2020, the Defendants did not attempt to find out the source of water leakage or take any remedial action. Upon receipt of the said letter dated 14 July 2021 from the Joint Office, which stated that the cause of water leakage could not be determined, the Defendants did not take any action to check if the Defendants’ Flat was the source of the water leakage or carry out any remedial works. 74.Despite the two letters both dated 14 July 2021, the suspicion of the Defendants’ Flat being the source has never been dispelled. On one hand, the Plaintiff engaged HKBI to commission the Inspection Report which concluded that water leakage had been caused by seepage from the water facilities of the Defendants’ Flat. Pausing here, while noticing that paragraph 8(2) of the Statement of Claim summarised the conclusion of the Inspection Report as the fresh water pipe(s) of the Defendants’ Flat being the source of water leakage, it is more appropriate to say that paragraph 8.3 of the Inspection Report concluded that “water facilities” (用水設施) of the Defendants’ Flat was the source of water leakage. 75.On the other hand, despite the initial reaction upon receipt of the said letter dated 14 July 2021 from the Joint Office, neither did the Defendants exclude the possibility of their flat being the source of water leakage. By MSJL&C’s letter dated 16 September 2021, the Defendants agreed, without admitting liabilities, to engage a professional consultant / contractor to check and inspect their flat to ascertain the source of water leakage as soon as possible. As a result, in September 2021, Kailead was engaged to carry out pressurised water test at the Defendants’ Flat. 76.The 2nd Defendant insisted that the Defendants did not carry out any repair or remedial works in the Defendants’ Flat to stop the water leakage which affected the Plaintiff’s Flat. In my judgment, such assertion is against contemporaneous documents and is therefore incredible. 77.First, according to MSJL&C’s letter dated 8 October 2021, the Defendants had engaged another professional contractor to carry out remedial works in the toilet of their guestroom that day, and requested the Plaintiff to check and observe whether the water leakage had been stopped after the remedial works for a period of 14 days. As the letter was sent by MSJL&C, the Defendants’ then solicitors, there is no reason to doubt the contents, namely that the Defendants’ professional contractor would carry out remedial works that day. Moreover, the Defendants would not have asked the Plaintiff to check if the water leakage had been stopped after 14 days if they had had no plan to carry out any remedial works. This letter is partly corroborated by the 2nd Defendants’ evidence, given in cross-examination when the said MSJL&C’s letters dated 8 October 2021 was put to her, that the Defendants had engaged 坊間老師傅, also a professional contractor, to take a look but the cause of water seepage could not be found, though she further testified that they were told by the 老師傅 that no remedial works were required and so they did not carry out any. 78.Secondly, JLL’s letter dated 21 July 2022 to the Plaintiff recorded that they had been informed on 1 November 2021 that follow-up works had been carried out at the bathtub (浴缸) of the Defendants’ Flat. This letter has to be considered together with:-
79.Reading the letters in the preceding two paragraphs together, it is clear that the Defendants had carried out some repair or remedial works to the guest bathroom on 8 October 2021 which did not stop the water leakage. Thereafter, on or about 1 November 2021, the Defendants carried out some repair or remedial works to the bathtub of the Defendants’ Flat, and as a result the water leakage stopped on or about 3 November 2021. 80.When cross-examined why it was stated in MSJL&C’s letter dated 17 November 2021 that “we were informed by our clients that the seepage of water had been stopped since 3 November 2021”, the 2nd Defendant answered that she had received the news of cessation of water leakage from JLL, and so she asked MSJL&C to issue the said letter, though no remedial works had been carried out. 81.I do not accept the 2nd Defendant’s explanation. MSJL&C’s letter dated 17 November 2021 simply stated that the Defendants had informed their then solicitors that water leakage had stopped. It did not state that the Defendants only received the notice of cessation of water leakage from JLL on 3 November 2021. According to JLL, they were only informed by the Plaintiff about the cessation of water leakage on 4 November 2021. In my judgment, JLL, being the management company of Harbour One, had been reasonably closely involved in the subject water leakage including inspections and tests. In the absence of evidence suggesting that JLL is not a reliable or impartial third party, I accept the contents of the said JLL’s letters dated 4 December 2021 and 21 July 2022 respectively. In the premises, I reject the 2nd Defendant’s testimony that the Defendants had had no idea of the source of water leakage until receipt of the Statement of Claim filed herein on 30 November 2021. 82.Thirdly, it is common ground that the water leakage stopped in November 2021, and such timing matched the date (ie 1 November 2021) when JLL was informed that follow-up works had been carried out at the bathtub of the Defendants’ Flat. 83.Fourthly, it is apparent that white colour water sealants could be observed on the edges of the bathtub in the master bathroom of the Defendants’ Flat only in photographs taken on 8 August 2022 in Mr Chung’s individual report but not in photographs taken on 14 April 2021 in Easy Living Report. 84.Under cross-examination, the 2nd Defendant was referred to Figures 145 to 150 of the individual report of Mr Chung (Trial Bundle 2 / pages 280 to 281). She confirmed that those photographs taken in August 2022 captured the master bathroom of the Defendants’ Flat, and such photographs showed white colour water sealants being applied along the bathtub. 85.The 2nd Defendant was subsequently referred to photo nos 12 to 15 in Easy Living Report (Trial Bundle 1 / pages 148 to 149). While confirming the said photographs depicted the master bathroom in April 2021, the 2nd Defendant denied that there had not been white colour water sealant at that time. She testified that the bathtub had been sealed with wooden plank for placing items when the Defendants moved in until early 2022 when she became pregnant for her second child, and so the Defendants engaged contractor to unseal the bathtub for use. The white colour water sealants remained new. However, the 2nd Defendant agreed that she did not mention about the sealing and unsealing of the bathtub in the master bathroom in her witness statement. That said, when photo no 13 in Easy Living Report (Trial Bundle 1 / page 148) and figure no 148 in Mr Chung’s individual report (Trial Bundle 2 / page 281) were put to her, the 2nd Defendant agreed that no white colour water sealant could be observed on the edge of the bathtub near the floor slab in the said photo no 13. 86.In my judgment, the white colour of the water sealants suggested that the water sealants were new and only applied sometime after the Easy Living Report. This is consistent with JLL’s letter dated 21 July 2022 which stated that JLL had been informed on 1 November 2021 that the Defendants had carried out works to the bathtub of the Defendants’ Flat. In this connection, I do not accept the 2nd Defendant’s evidence on the prior existence of the white colour water sealants and the sealing of the bathtub. 87.The Defendants took a pleading point. 88.It is well-established that the function of pleadings is to set out the agenda for trial by defining the issues so as to ensure that the litigation is conducted in a fair way, and one cannot slip in an unpleaded issue by saying that there is evidence on the issue – Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, per Ma CJ, at paragraphs 21 to 22; Chan Kong v Chan Li Chai Medical Factory (Hong Kong) Ltd [2009] 2 HKLRD 455, per Yuen JA, at paragraph 15; Liu Hon Wing v Liu Chee Kwan [2022] HKCFI 3157, per Deputy High Court Judge MK Liu, at paragraph 19. 89.The pleading point taken by the Defendants was that there was no plea by the Plaintiff that the Defendants did take any action to remedy, prevent or rectify the water leakage in November 2021 or at any point in time. Hence, the Plaintiff was not entitled to cross-examine the 2nd Defendant by suggesting repeatedly that the Defendants did in fact carry out rectification works to the Defendants’ Flat on 1 November 2021 which put an end to the water leakage. 90.I disagree with the pleading point. It is well-established that a pleading must be read as a whole. First, paragraph 6 of the Statement of Claim set out the duration of the water leakage complained of, ie from about December 2019 to early November 2021. Paragraphs 7 and 8 of the Statement of Claim then pleaded what the Plaintiff and the Defendants had done and had not done from about December 2019 to early November 2021. Paragraph 7 pleaded that the Plaintiff had lodged complaint, carried out inspections and notified the Defendants of the water leakage, but the Defendants had taken no or no effective action to investigate into the source of water leakage from the Defendants’ Flat or to carry out necessary repairs and/or remedial works. Paragraph 8 pleaded that by reason of the Defendants’ inaction or ineffective action, the Plaintiff had to take initiative in or about July 2021 to engage HKBI and compile the Inspection Report which showed that the water leakage was due to seepage from the fresh water pipe(s) of the Defendants’ Flat. 91.Moreover, the plea that “no or no effective action had been promptly taken on the part of the 1st and 2nd Defendants to investigate into the source of water leakage from the Defendants’ Flat and to carry out necessary repairs and/or remedial works” in paragraph 7 of the Statement of Claim means that the Defendants would have ceased the water leakage had they taken prompt action to investigate into the source and carry out necessary repair and/or remedial works. With this in mind, the proper reading of the plea “despite repeated requests and demands… it was not until early November 2021 that the water leakage from the Defendants’ Flat to the Plaintiff’s Flat ceased” in paragraph 15 of the Statement of Claim is that the Defendants had eventually taken steps to stop the water leakage in early November 2021 after repeated requests and demands. 92.Further, I agree with the Plaintiff that he could not have made any admission in the Reply that no rectifications works were carried out in the Defendants’ Flat, given that the Defendants, in their Defence, simply denied the Plaintiff’s case but did not make it explicit whether repair or remedial works had been carried out in the Defendants’ Flat. 93.By the same token, I reject the Defendants’ contention that the Plaintiff’s testimony was that the Defendants had never effected any actual or effective repair or remedial steps to find out the origin of the water leakage so as to halt water leakage from the Defendants’ Flat to the Plaintiff’s Flat (被告人始終沒有採取任何實際或有效的維修或補救措施找出滲漏源頭，以阻止被告人單位繼續漏水至原告人單位。). The Plaintiff’s witness statement, though in Chinese, was drafted with the same logic and style as the Statement of Claim. First, paragraph 5 of the witness statement set out the duration of the water leakage complained of, ie about December 2019 to November 2021. Paragraphs 6 to 9 of the witness statement set out what the Plaintiff and the Defendants had done and had not done from about December 2019 to early November 2021. In particular, paragraph 6 stated that the Plaintiff had lodged complaint, carried out inspections and notified the Defendants of the water leakage, but the Defendants had taken no or no effective action to investigate into the source of water leakage from the Defendants’ Flat or to carry out necessary repair and/or remedial works. Similar to paragraph 15 of the Statement of Claim, paragraph 15 of the witness statement reflected the Plaintiff’s understanding that the Defendants had eventually taken steps to stop the water leakage in early November 2021 after repeated requests and demands. 94.When cross-examined that the wording “始終” meant that there had been no repair works up to 18 July 2022 (ie the date of his witness statement), the Plaintiff testified that he had never visited the Defendants’ Flat, and he believed that there had been no repair works before the cessation of the water leakage problem. Moreover, the Plaintiff testified that “始終” referred to the period from December 2019 to November 2021. When being further cross-examined whether it was suggested that remedial works had been carried out in November 2021, the Plaintiff testified that he did not know as he was not an expert, and his understanding was that water leakage had been stopped because of some remedial works being carried out. I accept the Plaintiff’s explanation that “始終” referred to the period from December 2019 to November 2021 when there was water leakage, which accords with my reading of the relevant paragraphs of the Statement of Claim and the Plaintiff’s witness statement set out above. 95.Next, the Defendants invited this Court to draw adverse inference against the Plaintiff for his failure to call 陳耀聲, who signed the said JLL’s letter dated 4 December 2021 and 21 July 2022. The Defendants submitted that the Plaintiff is not entitled to rely on the said JLL’s letter dated 21 July 2022 as evidence of the Defendants’ carrying out rectification works on 1 November 2021. According to the Defendants, this was neither the Plaintiff’s case nor the Plaintiff’s evidence. The maker of the statement, ie 陳耀聲, was not called to testify. In any event, the contents of the said letter were ambiguous, as the source of the asserted facts was unknown and nothing was mentioned whether 陳耀聲 had done anything to verify the asserted facts. 96.In Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356, Le Pichon JA (at 365B-J) cited with approval Hong Kong and Shanghai Banking Corp v Chan Yiu Wah & Another [1988] 1 HKLR 457, 467C-H (per Fuad JA):-
97.In Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, Le Pichon JA set out the proper approach to the drawing of adverse inference at paragraph 28:
98.In Tjang Siu Thu v Profield Construction Engineering Ltd & Anor [2015] 5 HKC 22, McWalters JA quote the following principles from Wisniewski v Central Manchester Health Authority [1998] PIQR 324:-
99.McWalters JA went on to say, at paragraph 33:-
100.In Gleneagle Holdings Limited v Tse Yue Fong & Others HCA 2807/2006, unreported, 12 May 2009, Deputy High Court Judge To, after citing Tullet & Tokyo International Securities Ltd (supra), said, at paragraph 27:-
101.I disagree that adverse inference should be drawn against the Plaintiff for not calling 陳耀聲 to testify. It should be remembered that the JLL’s letters dated 4 December 2021 and 21 July 2022 were included in the agreed trial bundle. Moreover, the Defendants did not make any assertion such as ambiguity of the contents, the suspicion regarding the source of the asserted facts and the insufficiency of the steps taken to verify the asserted facts, whether in the Defence, the 2nd Defendant’s witness statement or otherwise, which alerted the Plaintiff as to the necessity of calling 陳耀聲 to testify to rebut such assertions. Indeed, none of these assertions was put to the Plaintiff under cross-examination. There was simply nothing for the Plaintiff to answer by calling 陳耀聲. In the absence of any form of challenge or assertion made against the said two JLL’s letters, it is just a question of the weight that should be given to the two letters in light of all the evidence and circumstances of the case. In any event, I do not find the contents of the letter ambiguous – it accords with common sense that it must have been the Defendants or their contractors or their representatives who informed JLL about the works to the bathtub which was inside the Defendants’ Flat. 102.In the premises, I find that the Defendants did carry out repair or remedial works to the Defendants’ Flat on or about 1 November 2021, and as a result the water leakage to the Plaintiff’s Flat stopped. 103.For completeness, I reject the 2nd Defendant’s evidence that the two notices issued by JLL on 14 March 2023 and 17 November 2023 were related to the water leakage in the present action. The first notice was about water leakage in the external wall of the guest room from higher level, and the second notice was about water leakage at the external wall of the living room from middle level of unit C. It is common ground that the water leakage in the present action ceased in November 2021. (2) Failure to Lease out Plaintiff’s Flat Caused by Water Leakage? 104.While it is true that the Plaintiff’s witness statement, adopted as his evidence-in-chief at trial, was silent as to any step taken to lease out the Plaintiff’s Flat after the end of the tenancy agreement (ie 23 June 2018) which the Plaintiff acquired together with the property, the Plaintiff’s evidence was that he engaged Mr Fong of Midland Realty to lease out the Plaintiff’s Flat in November 2019 at HK$38,000, but the offer had to be retracted in December 2019 by reason of the water leakage problem. This is consistent with Mr Fong’s viva voce evidence and the unchallenged written note dated 4 March 2022 signed by Mr Fong, confirming that the Plaintiff entrusted Midland Realty to lease out the property at the monthly rent of HK$38,000 on 20 November 2019 but withdrew the offer due to water leakage problem on 3 December 2019. 105.In any event, the Plaintiff testified under cross-examination that he intended to lease out the Plaintiff’s Flat again at the moment when the then tenant moved out on 23 June 2018. He vaguely remembered having orally asked a middleman to lease out the Plaintiff’s Flat at a monthly rent of HK$38,000 between 23 June 2018 and November 2019, but he could not recall if anyone interested had viewed the property. When being pressed, the Plaintiff admitted that he had not given any evidence on the intended leasing between 23 June 2018 and November 2019 in his witness statement, but denied having made up the same in the witness box. 106.I have considered that the Plaintiff’s Flat was purchased with an existing tenancy agreement. Moreover, I have considered the Plaintiff’s evidence that the asking rental of HK$38,000 from November to December 2019 was negotiable, and this is corroborated by the evidence of Mr Fong under cross-examination that the said asking rental was about the right asking price during that time, and in any event landlords would usually ask for a bit more, like 10%, while the tenant would make counteroffers. Further, by comparing the assessed market rental value from 1 December 2019 to 30 November 2021 by Sr Liu (HK$36,000 per month inclusive of rates and management fees) and Sr K S Wong (HK$30,164 per month exclusive of rates and management fees of HK$2,670 per month), I do not find that the rental price asked by the Plaintiff was so high that he had no real intention to lease out the same. 107.Both the Plaintiff and Mr Fong confirmed under cross-examination that there was no viewing of the property between November and December 2019. This can be explained by the short period of time during which the Plaintiff’s Flat was offered for lease. 108.Under cross-examination, Mr Fong confirmed that he was not asked by the Plaintiff to lease the Plaintiff’s Flat from December 2019 to December 2021. However, having considered that water was dripping at the ceiling of the corridor which was at the centre of the Plaintiff’s Flat, and the rather large extent of area being affected by the water seepage including the hole on the false ceiling outside the guest bathroom, I hold the view that it was reasonable for the Plaintiff to retract the leasing offer given the potential safety risks involved and the reality that no one would rent a property suffering serious water leakage problem. 109.Under cross-examination, the Plaintiff testified that since cessation of water leakage, some items had been removed while others remained at the Plaintiff’s Flat. The Plaintiff further denied that the property was not leased out during the period of water leakage because of his personal decision not to do so (as opposed to the water leakage problem). From the photograph taken by the 1st Defendant on 21 June 2020 and the photographs taken by Sr K S Wong on 23 September 2022, I accept that the fitness equipment and objects stored at the Plaintiff’s Flat should be readily removable. 110.After the cessation of water leakage, the Plaintiff had engaged Mr Fong to lease the Plaintiff’s Flat again in December 2021 after the cessation of water leakage for HK$40,000 per month. Under cross-examination, the Plaintiff testified that he had retracted the instruction to lease in August 2022 due to serious water leakage problem caused to the master bedroom (such problem not being the subject matter of these proceedings). In my view, given the new water leakage affecting the master bedroom, coupled with the damage caused by the subject water leakage which had not been remedied, it was reasonable for the Plaintiff to retract the instruction again. Further, I accept Mr Fong’s evidence under cross-examination that there had not been many offers for lease at that time, and HK$40,000 was about the market price. 111.Having considered all evidence as a whole, I am satisfied that, on a balance of probabilities, the Plaintiff had the intention to lease out the Plaintiff’s Flat at market rent from December 2019 to November 2021 but failed to do so by reason of the water leakage problem. 112.As is clear from my findings above, the Plaintiff’s evidence does not play much role in determining the question whether the Defendants carried out repair or remedial works to the Defendants’ Flat on or about November 2021 which stopped the water leakage. Likewise, in accepting the Plaintiff’s case that the Plaintiffs’ Flat could not be rented out from December 2019 to November 2021 due to water leakage, I do not have to rely on the 2nd Defendant’s evidence. Insofar as the credibility of factual witnesses is concerned, suffice is to say that:-
X. Expert Evidence on Liability
113.Mr Chung and Mr Stewart Wong prepared their Joint Statement by Experts dated 31 October 2022 (“Joint Statement on Liability and Repair Costs”). Joint site inspections of the Plaintiff’s Flat and the Defendants’ Flat were carried out on 8 August 2022 and 29 August 2022. 114.Both experts agreed that the ceiling of the guest bathroom and the corridor of the Plaintiff’s Flat were affected by water seepage. 115.Despite worded differently with reference to different tests and benchmarks, both experts agreed that the water seepage affecting the ceiling of the guest bathroom and the corridor had ceased by the joint site inspection on 8 August 2022. 116.Both experts agreed that touch up works were required at the ceiling of the guest bathroom and corridor of the Plaintiff’s Flat. (B) Mr Chung (PW3) 117.Mr Chung prepared the Inspection Report dated 1 September 2021. He was the only expert who had inspected the Plaintiff’s Flat before the cessation of water seepage. During his site inspection of the Plaintiff’s Flat on 26 July 2021, he noted:-
118.Mr Chung took the view that since the water dripping area in the guest bathroom and corridor was at the centre of the Plaintiff’s Flat, water seepage was not due to rain water ingress through the external wall or the other units on the same floor. Water seepage could not have been caused by own facilities of the Plaintiff’s Flat either because, by visual inspection, water seepage was detected not on the facilities above the false ceiling but under the concrete ceiling. Neither could water seepage have been caused by communal facilities because the same and the guest bathroom were separated by the master bathroom which had not been affected by water seepage. The only near water source was the guest bathroom and master bathroom of the Defendants’ Flat. 119.Mr Chung came to the conclusion that the water leakage was caused by fresh water seepage from the water facilities of the Defendants’ Flat:-
120.Under cross-examination, Mr Chung further explained that a higher moisture content at 110mm than at 30mm from the surface of the ceiling of the Plaintiff’s Flat suggested that water seepage was downwards from above, and when there was no more moisture at 110mm it meant the water seepage had stopped. Mr Chung further explained that while darker blue colour indicated more moisture contents, it was also important to pay attention to the distribution of the moisture contents at different measurement points and to the fact that different densities in the concrete would affect seepage, as the denser the concrete the more difficult water would flow there. For colour distribution on the same scan, it was just a comparison of moisture contents on the same plane. Therefore, while the guest bathroom ceiling scans (Trial Bundle I, pages 88-90) and the corridor ceiling scans (Trial Bundle I, pages 95-97) might show more extensive moisture contents at 70mm than at 110mm, Mr Chung opined according to his experience that the scans suggested water seeping from the Defendants’ Flat to the Plaintiff’s Flat. 121.In his individual report attached to the Joint Statement on Liability and Repair Costs, Mr Chung remarked that during his site inspection of the Plaintiff’s Flat on 8 August 2022, there was no more water dripping from the ceiling of the corridor. The moisture contents at the ceiling of the guest bathroom and corridor was below 35%. There was no distinctive temperature difference or relatively high moisture content recorded by infrared scan and microwave scan respectively. 122.Moreover, Mr Chung noticed that the bathtub in the master bathroom of the Defendants’ Flat was different from that in the master bathroom of the Plaintiff’s Flat, indicating that the bathtub of the Defendants could have been replaced. Under cross-examination, Mr Chung took the view that the white colour of the water sealants on the edges of the bathtub of the Defendants indicated that the bathtub or the water sealant was new but not just that the bathtub had been unused for a long time, but he admitted that not having asked the Defendants for confirmation. 123.Mr Chung further found colourless waterproofing membrane applied on the floor and wall surface within the shower area of the guest bathroom of the Defendants’ Flat, suggesting that repair works had been carried out to the guest bathroom. 124.Also, Mr Chung found crystal precipitation hanging on only one specific area of the ceiling of the guest bathroom of the Plaintiff’s Flat, indicating that water seepage was originated from the upper unit and seeped through the ceiling concrete layer. 125.In conclusion, Mr Chung took the view that the water seepage originated from the Defendants’ Flat. 126.Mr Chung pointed out that water seepage could cause damage to the ceiling structure. Therefore, when repair works are carried out to the Plaintiff’s Flat, potential risks such as short circuit, electric shock and concrete spalling can be caused. Hence, the Plaintiff’s Flat is uninhabitable until the source of seepage is fixed and repair works is finished. 127.According to Mr Chung, the costs of repair or reinstating works to the Plaintiff’s flat were estimated to be HK$32,600 and such works would take about 7 days:-
(C) Mr Stewart Wong (DW2) 128.During the joint inspection of the Plaintiff’s Flat on 8 August 2022, Mr Stewart Wong noticed dry dampness marks on the ceiling of the corridor outside the guest bathroom and ceiling of the guest bathroom. 129.Mr Stewart Wong took the view that there was insufficient evidence to prove the origin of water seepage being the Defendants’ Flat. Apart from relying on the conclusion of the Easy Living Report that leakage from the floor slab of the guest and master bathroom was unlikely, Mr Stewart Wong took the view that water seepage through external walls or from next door premises could not be excluded as no tests were conducted thereat. 130.In his individual report, Mr Stewart Wong took the view that the drilling of holes at the ceiling of the guest bathroom and the corridor of the Plaintiff’s Flat caused loosening of the waterproofing works at the guest bathroom of the Defendants’ Flat. 131.Mr Stewart Wong pointed out that there were chiller pipes and ventilation duct hung underside the ceiling of the corridor and guest bathroom of the Plaintiff’s Flat. Based on the dry dampness patches on the ceiling, it was dubious whether the chiller pipes brought about dew point temperature and caused condensation which affected the ceiling of the corridor and guest bathroom of the Plaintiff’s Flat. 132.Mr Stewart Wong held the view that there was no water seepage from fresh water pipes of the Defendants’ Flat based on the flow meter test. Also, there was no water seepage through the floor of the guest bathroom of the Defendants’ Flat, as the dye water test showed no water leakage of drainage facilities or floor into the ceiling of the corridor and guest bathroom of the Plaintiff’s Flat. Under cross-examination, Mr Stewart Wong agreed with section 4.2.1 of the Professional Guide that the fluorescent dye test is not always successful, and a failure to record its presence in the damp zone cannot be taken as definite evidence against the suspected source, but a positive test confirmed by the laboratory is firm proof of the source. However, when being asked whether negative colour water test result meant that water leakage from the Defendants’ Flat was ‘unlikely’ (instead of ‘uncertain’), he testified that ‘unlikely’ and ‘uncertain’ bore the same meaning. 133.According to Mr Stewart Wong, the cause of water leakage was one accidental incident of water spillage onto the floor of the corridor of the Defendants’ Flat during painting. 134.Mr Stewart Wong also reported that the Defendants had informed him that there had been no replacement of bathtub in the master bathroom of the Defendants’ Flat. Under cross-examination, Mr Stewart Wong testified that after the inspection in August 2022, he had called the female landlord, asking directly whether any remedial works had been done, and it was replied that “basically nothing” had been done (大致上係無嘅). He agreed that that meant some remedial works had been done but he had not asked the landlord specifically. 135.Mr Stewart Wong held the view that there were two portions of ceiling with damp patches, but the ceiling concrete condition was still sound and therefore the Plaintiff’s Flat was still inhabitable. Under cross-examination, Mr Stewart Wong agreed that parts of the ceiling including the reinforcement bars had to be remedied, otherwise danger would be caused to people at the Plaintiff’s Flat. He also testified that the wooden floor of the Plaintiff’s Flat had been flooded and stepping on the wooden floor during repair would not be recommended. 136.In relation to the costs of repair and reinstating works to the Plaintiff’s Flat, Mr Stewart Wong’s assessment was in the total sum of HK$15,500, with breakdown as follows:-
(D) Analysis of Expert Evidence
137.In cross-examination, Mr Stewart Wong confirmed that he was neither a registered professional surveyor under the Surveyors Registration Ordinance (Cap 417), nor was he a member of Hong Kong Institute of Surveyors (HKIS) established by The Hong Kong Institute of Surveyors Ordinance (Cap 1148). While professing himself as a chartered building engineer and surveyor (吾為特許建築工程及測量師) in his individual report, there was no qualification as a surveyor, whether in Hong Kong or overseas, found in Mr Stewart Wong’s curriculum vitae (“CV”) appended to the Joint Liability Expert Report. Mr Stewart Wong claimed that he was a registered professional building engineer (註冊專業建築工程師) in the United Kingdom and an Ir (註冊工程師) with the Society of Operations Engineer also in the United Kingdom, and by being a registered professional building engineer he could style himself as a surveyor. 138.As submitted by the Plaintiff, Mr Stewart Wong’s qualifications were subject to judicial scrutiny and criticisms:-
139.I agree with the approaches adopted in the said decisions. Mr Stewart Wong’s evidence should not be ruled inadmissible simply because of the doubts over his professional qualifications. That said, his qualifications and experience are relevant in assessing the weight of his evidence. Moreover, the reliability of his evidence should be considered in light of the methodology used, exaggerations (if any), and the adequacy of reasoning or analysis for his observations or conclusions. 140.I have doubt regarding the reliability of Mr Stewart Wong’s evidence for the following reasons. 141.First, I agree with the Plaintiff that Mr Stewart Wong’s claim of having handled 8,000 water seepage cases was misleading and exaggerating. While alleging, in his CV, of having handled 8,000 water seepage claim investigations over the past 38 years, Mr Stewart Wong testified under cross-examination that his firm was a loss adjustor and the 8,000 cases included court cases on one hand and simple insurance company cases on the other hand which could be handled much faster. 142.Secondly, under cross-examination, Mr Stewart Wong admitted that he had referred to the Easy Living Report when preparing his individual report, and he did not question its veracity while he could not say if it was reliable. He could not confirm if the test readings in the Easy Living report supported its conclusions. 143.I bear in mind that negative results of tests carried out by independent authorities such as the Water Authority and the Food and Environmental Hygiene Department should not be rejected in the absence of evidence suggesting that the tests were not properly done – Hui Ling Ling (supra), at paragraph 58. Here, however, I have reservation with the observation at Section D Part B of the Easy Living Report, namely that there was no significant moisture content change after clear water test on 14 April 2021, given that the moisture content reading at Checkpoint 5 increased significantly from 54.9 before the start of the test to 86.6 at the 1st result monitoring at 13:30 of the same day. 144.It was the Defendants’ submission that one should not focus on the reading of moisture contents at one particular checkpoint only, especially where there were minor drops in reading at Checkpoint nos 2, 4 and 6. The Plaintiff submitted that Mr Stewart Wong did not suggest that it would be misleading to focus on the moisture content of one particular checkpoint. All I can say is that it is doubtful whether the observation of no significant change could be made in the Easy Living Report, and Mr Stewart Wong should have verified the conclusions. 145.The further observation that neither colour dyes nor fluorescent effect under UV light was observed was inapt since only clear water test but not colour water test was carried out. 146.Hence, the conclusion that leakage from floor slab of the guest and master bathrooms was ‘unlikely’ is unsafe and Mr Stewart Wong should not have relied on the same without verification. 147.Thirdly, in his individual report, Mr Stewart Wong referred to the finding in the Kailead’s Report that the pressured water pipe test showed no water leakage. However, under cross-examination, he admitted that the water pressure test was capable of checking leakage in the water supply pipe(s) only. He also admitted not knowing the procedure of the test, the person who had conducted the test or whether such a person had been qualified. The said Kailead’s finding is therefore unsafe for Mr Stewart Wong to rely upon. 148.Fourthly, under cross-examination, Mr Stewart Wong agreed that he attended the Plaintiff’s Flat for inspection on 8 August 2022 in order to find out the cause of water leakage, but there were at least 8 photographs taken on that day and included in his individual report (photo nos 56, 91, 93, 101, 195, 112, 117, 118) which he could not confirm the locations and exact spots at which the photographs were taken, or which he could not tell the meter readings. 149.Fifthly, Mr Stewart Wong’s assessment of costs of repair or reinstating works was bare assertion with no calculation or consideration shown. 150.In the premises, insofar as different opinions being expressed by Mr Chung and Mr Stewart Wong on an issue, I prefer those of Mr Chung generally. I find Mr Chung’s evidence coherent and generally unshaken under cross-examination. I do not agree with the Defendants that Mr Chung acted as an advocate for the Plaintiff and therefore his evidence lacked impartiality or independence. As set out below, I find Mr Chung entitled to come to his view that the Defendants’ Flat was the cause of the water leakage, and that the close proximity of time between repair or remedial works and cessation of water leakage could not be a mere coincidence. I shall deal with specific issues herein. (2) Source of Water Leakage 151.Here, the Defendants took a pleading point. 152.The Defendants submitted that in the context of water leakage dispute, if there is evidence showing that the source of water leakage is not those alleged by the plaintiff in his pleadings but somewhere else, then the plaintiff cannot hold the defendant liable – Lam Chin Pang & Another v Wan Sui Ying [2018] HKDC 1169, per HHJ MK Liu, at paragraph 22. 153.The Defendant submitted that the Plaintiff’s pleaded case was contained in paragraph 8(2) of the Statement of Claim, which alleged “fresh water pipe(s) of the Defendants’ Flat” as the only source of water leakage. The main issue in this case, as submitted by the Defendant, is whether the Plaintiff’s pleaded case of water leakage from the fresh water pipe(s) of the Defendants’ Flat is proved. If it is not proved, the claim must be dismissed. As a result, Mr Chung should not be allowed to testify to the effect the water leakage was other than or not confined to fresh water pipe(s) seepage. This is the first pleading point taken by the Defendants. 154.I disagree with this pleading point for the following reasons. 155.In Lam Chin Pang (supra), the plaintiffs’ pleaded case was that the cause of the water seepage problem was the “defective toilet sewage pipes and the toilet water pipes in 1203, not any other pipes” (see paragraph 10). It is worthy to reproduce the plaintiff’s pleaded case as set out in that judgment:-
156.On the facts of Lam Chin Pang (supra), it was held (at paragraph 108) that the plaintiffs’ pleaded case on the toilet sewage pipes and the toilet water pipes in 1203 had not been proved and the plaintiffs consequently failed to establish liability. The source of dampness was found (at paragraphs 6 and 109) to be flush water, originating from the deteriorated and worn-out pipeline at the interconnection point between the vertical communal pipe and the floor slab of 1203. However, the defendant could not be held liable to it because leakage at the said interconnection point was not the plaintiffs’ pleaded case. 157.Here, it is necessary to reproduce the relevant part of the Plaintiff’s Statement of Claim:-
158.In my judgment, from the said extract of the Statement of Claim, the Plaintiff, while setting out the conclusion in the pre-action Inspection Report that water leakage was caused by seepage from the fresh water pipe(s) of the Defendants’ Flat (which was not quite the correct summary of the conclusion stated at paragraph 8.3 of Inspection Report, ie “water facilities” (用水設施)), did not confine his case to fresh water pipe(s) of the Defendants’ Flat being the sole source of water leakage. Instead, the Plaintiff pleaded that the source(s) of water leakage from the Defendants’ Flat was/were the water facilities, water or drainage pipe(s), the water supply and/or pipe conduit system thereof. In other words, the Plaintiff shall establish liability on negligence and/or nuisance by proving water leakage from any one or more of the identified sources, namely the water facilities, water or drainage pipe(s), the water supply and/or pipe conduit system. 159.The Plaintiff’s plea is clearly wider than the pleaded case in Lam Chin Pang (supra) in which, not only the conclusion of the pre-action survey report of Hong Kong Survey Limited that “defective toilet water pipes and sewage pipes” was pleaded, but “defective toilet water pipes and sewage pipes” were expressly pleaded as the sources of water leakage in the particulars of negligence. Such a wider, more general plea in the present case is acceptable despite the conclusion of the Inspection Report, given that the site inspection for the preparation of the Inspection Report had been carried out at the Plaintiff’s Flat only (see Statement of Claim, paragraph 8(1)), and given that there could be more or other sources of water leakage inside the Defendants’ Flat. It would be too onerous to require the Plaintiff, in the Statement of Claim, to pinpoint the exact leakage point(s)/source(s) and exclude other possible leakage point(s)/source(s) while no site inspection inside the Defendants’ Flat had been carried out. Lam Chin Pang (supra) is a good example that the exact leakage points concluded at trial can be different from those identified in a pre-action survey report. 160.In arriving at this view, I drew analogy from So Yiu Woon (supra), in which Marlene Ng J (at paragraphs 69 and 70), in the context of considering what would constitute actual or constructive knowledge of the defendant’s flat being the source of water leakage, expressed that it would be too onerous to require the plaintiff to pinpoint the exact leakage points inside the defendant’s flat especially when no access to the defendant’s flat for inspection has been given. 161.Turning to the evidence, under cross-examination, Mr Chung explained that the term 用水設施 was not confined to fresh water pipe (淡水喉管) but included also drinking water (食水), flushing water (if fresh water (淡水) was used or if the toilet bowl facilities had been modified) or waste water drained after washing (污水). Therefore, 用水設施 could be water supply or waste water at U-trap (U型隔氣裝置) or interconnection point of pipes. Later, Mr Chung accepted that he had not found out during the site inspection on 26 July 2021 whether the water seeped had been the fresh water supply or waste water. He also accepted that Harbour One used salty water to flush toilets, so he eliminated the possibility of flushing water as 用水設施. When he was cross-examined on paragraph 3.2.10 of the Professional Guide to Water Seepage Investigation, Diagnosis, Testing & Reporting in Residential Buildings published by the Hong Kong Institute of Surveyors (“Professional Guide”), Mr Chung agreed that he did not check the pH value of the seeped water, but he disagreed that a pH value test would be necessarily suitable because waste water might not contain soap and thus could also be neutral. He further explained that his conclusion of fresh water leakage did not bear the same meaning of fresh water (with neutral pH) in paragraph 3.2.10 of the Professional Guide. 162.In my judgment, Mr Chung’s view that water leakage came from the Defendants’ Flat is supported by the following. 163.First, results of the microwave scan in the Inspection Report showed high moisture level of concentration at the ceiling of the guest bathroom and the corridor of the Plaintiff’s Flat at 30mm, 70mm and 110mm. By contrast, results of the microwave scan conducted on 8 August 2022, when water leakage had stopped, in Mr Chung’s individual report showed relatively low moisture level of concentration at such locations and depths. I accept Mr Chung’s opinion that the moisture level at a certain depth would depend on the density of the concrete ceiling such that the highest moisture level may not necessarily be the closest to the source of water leakage. A general view of the moisture level at a particular depth should be taken instead of focusing on the readings of some individual points. 164.Mr Chung was cross-examined on the use of the microwave scan, which the Professional Guide commented as relatively new and time and costs might be expended to allow users to familiarise themselves with the same. Mr Chung explained that the microwave scan was conducted by his assistant Mr Paul Lai with his supervision on 26 July 2021. While Mr Chung did not know if Mr Paul Lai had received training using the microwave moisture meter, Mr Chung testified that he had previously collaborated with Mr Paul Lai. When further cross-examined if the microwave test results were unreliable due to the presence of metal bars in the concrete ceiling, Mr Chung said he had analysed the results and did not believe that the reinforcement in the concrete ceiling had affected the results, but he admitted that there was no mention of such consideration in the reports. 165.In my view, one must not forget that microwave scan was a methodology agreed by the experts. Also, by comparing the readings of the microwave scans performed on 26 July 2021 (when there was water leakage) and 8 August 2022 (when water leakage had stopped), it was obvious that the moisture level of concentration on 26 July 2021 ranged mostly from 4.0 to 5.0 at all three depths, while the moisture level of concentration on 8 August 2022, whether before or after dye test, ranged mostly from 1.5 to 2.5 at all three depths. On 26 July 2021 and 8 August 2022, both the temperature (28.7 – 33.9 degrees Celsius and 26.2 – 30.9 degrees Celsius respectively) and the relative humidity (68% - 84% and 79% - 95% respectively) were similarly high, though no rainfall was recorded on 26 July 2021 while 33.3mm rainfall was recorded on 8 August 2022. In my judgment, it is still safe to rely on Mr Chung’s opinion that there was relatively high moisture level of concentration at all three depths for the ceiling of both the corridor and the guest bathroom on 26 July 2021. 166.Secondly, Mr Chung’s explanations on his use of the term “water facilities” and “fresh water” and his decision not to conduct a pH test are logical, reasonable and inherently plausible. Mr Chung cannot be criticised for using ‘fresh water’ to mean water not containing chlorides or ammonia. In fact, under cross-examination, Mr Stewart Wong agreed that fresh water (淡水) meant water without chlorides or ammonia. 167.Thirdly, Mr Chung’s view was partly based on his visual inspection that crystal precipitation hanging on only one specific area of the ceiling of the guest bathroom of the Plaintiff’s Flat, and this suggested that water seepage was originated from above. 168.Fourthly, I have made the finding that there was repair or remedial works carried out at the Defendants’ Flat on or about 1 November 2021, and such works coincided with the cessation of water leakage as a matter of timing. Mr Chung observed that the bathtub of the master bathroom of the Defendants’ Flat was different from that of the Plaintiff’s Flat, and Mr Stewart Wong agreed under cross-examination. I have accepted the new, white colour of the water sealants on the edges of the Defendants’ bathtub in the Joint Statement on Liability and Repair Costs, which were not observed in the Easy Living Report, suggested that the water sealants were applied sometime between 14 April 2021 and 8 August 2022. This is supported by JLL’s letter dated 21 July 2022 which recorded that JLL had been informed on 1 November 2021 that follow-up works had been carried out at the bathtub of the Defendants’ Flat. 169.Mr Stewart Wong also agreed under cross-examination that he could observe colourless waterproofing membrane on the floor and wall surface of the shower area of the guest bathroom in photo nos 164 to 167 of Mr Chung’s individual report (Trial Bundle 2, pages 286-287). I accept that there was no photograph in the Easy Living Report or other evidence showing clearly the absence of colourless waterproofing membrane. That said, having regard to normal wear-and-tear due to passage of time, the conspicuity of the colourless waterproofing membrane suggested that the same had been applied only quite recently. Nonetheless, compared with the application of the white colour water sealants to the bathtub of the master bathroom which is supported by JLL’s letter dated 21 July 2022, there is insufficient evidence before this Court to draw the inference that the colourless waterproofing membrane was applied on or about 1 November 2021. 170.I am satisfied, on a balance of probabilities, that the application of the white colour water sealants suggested that some repair or remedial work were carried out to the bathtub of the master bathroom at the Defendants’ Flat on or about 1 November 2021 which ceased the water leakage. 171.Further, I accept, on a balance of probabilities, that water leaked from the Defendants’ Flat into the Plaintiff’s Flat. More specifically, water leaked from water facilities from the bathtub of the master bathroom of the Defendants’ Flat. 172.Fifthly, Mr Chung eliminated external walls, neighbouring units and the communal facilities as sources of water leakage. Mr Stewart Wong also agreed under cross-examination that he did not suggest in his individual report that the water leakage was caused by seepage through external walls, neighbouring units or the own or communal facilities of the Plaintiff’s Flat. The only near water source was the guest bathroom and master bathroom of the Defendants’ Flat. 173.Sixthly, it is my judgment that water leakage was not caused by (a) accidental water spillage incident, (b) drilling of holes on the ceiling of the Plaintiff’s Flat, or (c) water condensation as a result of the air-conditioning system, all being suggested by Mr Stewart Wong:-
XI. Conclusion on Issue 1 174.On balance of probabilities, I find that the Defendants’ Flat was the source of water leakage suffered by the Plaintiff’s Flat. 175.I must also mention that in reaching the conclusion on the source of water leakage, I have completely disregarded the evidence of the 2nd Defendant, Mr Chung and Mr Stewart Wong on Kailead’s finding that there was obvious gap at the floor drain and by the door of the shower area (ie the bath cubicle pleaded in paragraph 6(3) of the Reply) of the guest bathroom of the Defendants’ Flat (客廁企缸地台去水及近門邊位置發現有明顯空隙). In particular, both Mr Chung and Mr Stewart Wong gave their evidence regarding the said Kailead’s finding upon my questions towards the end of their respective oral testimonies. Having considered the matter carefully, I accept the submission of Mr Kaiser Leung, Counsel for the Defendants, that the Plaintiff pleaded, in paragraph 6(2) of the Reply, that he made no admission to the contents of the Kailead Report. In other words, the Plaintiff has not put up a positive case that there was obvious gap at the floor drain and by the door of the shower area of the guest bathroom. I also accept Mr Leung’s submission that neither Mr Chung nor Mr Stewart Wong referred to the Kailead Report in their respective first reports or in the subsequent Joint Statement on Liability and Repair Costs, notwithstanding that both experts were aware of the same during the preparation of the joint statement. The alleged gap was not a battle line drawn by the experts. XII. Issue 2 – Liability 176.By reason of my finding that the Defendants’ Flat being the source of the water leakage suffered by the Plaintiff’s Flat, I find that the Defendants are liable for breach of Clauses 4 and 77(c) of the DMC, as well as Clauses 4, 5, 12 and 28 of the Third Schedule of the DMC. 177.Moreover, the Defendants shall be responsible for and shall indemnify the Plaintiff in respect of any loss or damage as a result of the overflow of water and to pay all costs, charges and expenses incurred in repairing or making good any loss or damage. I shall deal with this part in the relief below. 178.I also find that the Defendants are liable for breach of section 34H of BMO. 179.Turning to negligence and nuisance, the Defendants became aware of the water leakage suffered by the Plaintiff by no later than February or March 2020. Applying So Yiu Woon (supra), the Defendants should have at least constructive knowledge of their flat being the source of water leakage as they, being the registered owner of their flat, would be able to find out the source by exercising reasonable diligence. 180.I accept the Plaintiff’s submission that the negative result of the water dye test conducted by Easy Living could not have given the Defendants any false sense of security that the leakage was unrelated to them. I have set out the reasons why Mr Stewart Wong ought to have verified the findings in the Easy Living Report. 181.Further, as is apparent from its contents and agreed by Mr Stewart Wong, the water pressure test mentioned in the Kailead’s Report was capable of checking leakage in the water supply pipe(s) only, and therefore a negative result of the water pressure test did not rule out the existence of other water leakage sources in the Defendants’ Flat. I disagree with the Defendants’ case that the Kailead’s Report was sufficient to rebut the conclusion in the Inspection Report, which was that water leakage had been caused by fresh water seepage of water facilities of the Defendants’ Flat. 182.As a result, no or no reasonable steps had been taken by the Defendants to investigate, locate and repair such water leakage in a prompt and reasonable manner until repair or remedial works were carried out at the Defendants’ Flat on or about 1 November 2021. 183.In the circumstances, I find that the Defendants are liable for the Plaintiff in negligence and nuisance. XIII. Issue 3 – Relief
184.The Defendants did not dispute the Plaintiff’s claim for pre-action surveyor’s fee for investigating into the source of water leakage. 185.The amount claimed, ie HK$17,800, is substantiated by the official receipt issued by HKBI. I allow this claim in full. See Yik Yuen Ling v Tso Wing Yan DCCJ 813/2014, unreported, 18 October 2017, per Deputy District Judge Simon Ho, at paragraphs 240 to 244. (B) Costs of Repair 186.Upon proof of the tortuous act causing physical damage to the property, the liability of the defendant to compensate the plaintiff accrues – Lee Wai Chuen & Another v Cheung Chor Keung & Another DCCJ 3098/2006, unreported, 7 January 2011, per HHJ Leung (as he then was), at paragraph 31. 187.For this head of damages, the assessments by Mr Chung and Mr Stewart Wong were HK$32,600 and HK$15,500 respectively. The difference of the two experts was HK$17,100. 188.Mr Chung’s expert evidence in this regard was not challenged under cross-examination. 189.I prefer the expert evidence in this regard of Mr Chung. Mr Stewart Wong’s assessment of costs of repair or reinstating works was bare assertion with no calculation or consideration shown. He also accepted in cross-examination that he had not taken into account two items in Mr Chung’s assessment, namely “flooring work” and “cleaning & debris removal”. 190.For Item 1 – Preliminaries (included insurance and protection works), I allow the sum of HK$5,000 in full. 191.For Item 2 – concrete and reinforcement bar repair, I notice that the amount claimed, ie HK$12,500, included not just works for the ceiling of the guest bathroom and the corridor, but also works for the ceiling of the master bedroom. Water leakage at the ceiling of the master bedroom of the Plaintiff’s Flat is not the subject matter of this action, so I deduct the costs of repair for the same. For labour costs, I allow 1 man for 2 days, ie HK$4,400. For material costs, I take into account the total area of ceiling suggested for works being 1.95 square metre while the ceiling of the master bedroom being 1.25 square metre. In the circumstances, I allow HK$1,328 (HK$3,700 x 0.70 square metre / 1.95 square metre) as material costs at the ceiling of the guest bathroom and the corridor. The costs allowed for this item is HK$5,728. 192.For Item 3 – flooring work, I allow the sum of HK$5,000 in full. 193.For Item 4 – false ceiling work, I allow the sum of HK$1,500 in full. 194.For Item 5 – plastering and painting work, the amount claimed, ie HK$4,600, included works for not just the ceiling of the corridor but also the ceiling of the master bedroom. Likewise, the works for the ceiling of the master bedroom should be deducted. For labour costs, I allow 1 man for 1 day, ie HK$1,800. For material costs, I take into account the total area of ceiling suggested for works being 7.07 square metre while the ceiling of the master bedroom was 6.67 square metre. In the circumstances, I allow HK$57 (HK$1,000 x 0.40 square metre / 7.07 square metre) as material costs at the ceiling of the guest bathroom and the corridor. The costs allowed for this item is HK$1,857. 195.For Item 6 – cleaning & debris removal, I allow the sum of HK$3,000, taking in account that the sum claimed should have included works for the ceiling of the master bedroom. 196.Total costs for repair assessed is HK$22,085. (C) Loss of Rental Income 197.The Defendants submitted that the Plaintiff is not entitled to loss of rental income of the Plaintiff’s Flat since the water leakage from the Defendants’ Flat was not causative of such loss. See, for example, Parlico Ltd v New Accord Holdings Ltd HCA 1665/2010, unreported, 10 March 2015, per Recorder Houghton SC, at paragraphs 129-130; Tin Foo Investment Co Ltd v Previgor Development Ltd [2018] HKCFI 2873, per DHCJ Bernard Man SC (as he then was), at paragraphs 70 to 82. 198.As set out above, I accept that the Plaintiff had the intention to lease out the Plaintiff’s Flat from about December 2019 to November 2021 but was not able to do so due to water leakage. I accept Mr Fong’s evidence under cross-examination that there had not been many offers for lease from November 2021 to August 2022, and HK$40,000 was about the market price. I also accept that due to the new water leakage affecting the master bedroom in August 2022, coupled with the damage caused by the subject water leakage had not been remedied, it was reasonable for the Plaintiff to withdraw the instruction again. 199.I also accept that the water leakage suffered by the Plaintiff’s Flat was caused by the water leakage from the Defendants’ Flat. The area affected by the water leakage was the guest bathroom and the corridor linking the living area and the bedrooms and was therefore at the centre of the Plaintiff’s Flat. Repair works will include concrete and reinforcement bar repair, flooring work, false ceiling work and plastering and painting work. Under cross-examination, Mr Stewart Wong also agreed that the damage to the ceiling structure posed risks of short circuit, electric shock or concrete spalling, and one would better not walk along the corridor during the flooring work. It is doubtful that a tenant would rent the Plaintiff’s Flat during water leakage problem or the repair works. 200.In the premises, I hold that water leakage from the Defendants’ Flat caused the Plaintiff’s failure to lease out the Plaintiff’s Flat at market rent from about December 2019 to November 2021, and so the Defendants are liable to the Plaintiff for his loss of rental income for the said period as well as the period for repair or remedial works. 201.The rental value of the Plaintiff’s Flat from 1 December 2019 to 30 November 2021 for a period of 24 months was assessed:-
202.The two valuation experts differed in two material aspects:-
203.Sr Liu explained that the practice in the domestic leasing market was that the rent should be inclusive of rates and management fees. In a case where the rent was exclusive of rates and management fees, the tenant would be liable to pay the rates and management fees on top of the rent; and if the tenant failed to pay, the landlord would need to pay. There was no incentive for the landlord to charge a rent exclusive of rates and management fees. On this, Sr K S Wong’s response was “No comment”. 204.Sr Liu’s opinion is fair and reasonable, and I accept that the rent of the Plaintiff’s Flat should include rates and management fees. 205.Next, Sr Liu commented that Sr K S Wong used a lower floor Flat B flat of the same size of 662 square foot and of similar view with monthly rent of HK$35,000 as a comparable, and the Plaintiff’s Flat on much higher floor should attain a higher rent of HK$36,000. Sr K S Wong commented that as the market was in the down trend at end of December 2019 to early 2020 as indicated by the rateable values of 2020 to 2021 (HK$399,900) and 2021 to 2022 (HK$363,900), the lease of middle floor Flat C similar to the Plaintiff’s Flat rented on 10 April 2020 for HK$34,000 per month should be a better comparable. However, Sr K Wong averaged out the last two comparables (the said middle floor Flat C and a lower floor Flat B rented on 10 December 2019 at HK$35,000 per month) to arrive at HK$34,500 per month. 206.I do not agree with Sr K S Wong. As the two experts’ common parameter or opinion was that the rent is usually valued for 2 years and as such the rental value as at 1 December 2019 is the reference date for assessment, it is inappropriate to adopt the said middle floor Flat C rented on 10 April 2020 as a comparable and average out the same with the said lower floor Flat B rented on 10 December 2019. 207.Sr Liu’s assessment of HK$36,000 per month is also consistent with assessment with reference to rateable value:-
208.Further, I agree with Sr Liu that it is not correct to deduct part of the assessed rent to reflect that the Plaintiff’s Flat was only partly affected by the water leakage, while the occupiers could still enjoy their fitness activities, harbour views and storage. The area affected by the water leakage was the guest bathroom and the corridor linking the living area and the bedrooms and was therefore at the centre of the Plaintiff’s Flat. As set out above, Mr Stewart Wong also agreed, under cross-examination, with the security risks posed by the damage and the warning for walking along the corridor during the flooring work. It is doubtful that a tenant would rent the Plaintiff’s Flat with such water leakage problem. 209.Therefore, I assess the loss of rental income of the Plaintiff’s Flat from 1 December 2019 to 30 November 2021 at HK$36,000 per month inclusive of rates and management fees. The total loss of rental income from 1 December 2019 to 30 November 2021 is HK$864,000. 210.For the period of repair or remedial works, Mr Chung estimated that 7 days would be required. I have disallowed such repair or remedial works related to the damage at the master bedroom of the Plaintiff’s Flat which was not caused by the subject water leakage of this action. In my judgment, the repair or remedial works relevant to this action should require 5 days, and hence the total loss of rental income for the period of repair or remedial works is HK$6,000. (D) General Damages for Nuisance, Annoyance, Disturbance and Inconvenience 211.From about December 2019 until November 2021, the Plaintiff’s Flat had been suffering from water leakage from the Defendants’ Flat. For no less than one and a half years, the Plaintiff had, by himself, his representative or his solicitors, liaised with JLL, the Joint Office and HKBI to find out the source of the water leakage. I accept as a fact that water dripped from the ceiling of the corridor, and a bucket had to be placed at the corridor to collect the dripping water. Crystal precipitation was formed as a result of water leakage. The Plaintiff’s Flat was the storage for fitness equipment and other belongings during the period of water leakage. 212.In the circumstances, I accept that the water leakage caused nuisance, annoyance, disturbance and inconvenience to the Plaintiff. 213.There is no scientific way of translating inconvenience and discomfort into a sum of money, and so the damages has to be a conventional sum. See So John & Anor v Lau Hon Man & Ors [1993] 2 HKC 356, per Rhind J, at 359G, where general damages of HK$10,000 was awarded for water leakage lasting for about one and a half months. 214.The Plaintiff sought general damages of no less than HK$50,000 and cited the following cases:-
215.The Defendants submitted that the general damages to be awarded should be no more than nominal as the Plaintiff has not established any actual loss or damage apart from costs of repair and the surveyor’s fees incurred, citing Let’s Go Investments Ltd v Yeung Sau Hing CACV 16/2006, unreported, 12 March 2007. 216.In Let’s Go Investments Ltd (supra), the defendant by counterclaim was successful in establishing that the plaintiff was in breach of the deed of mutual covenant and also liable in nuisance and negligence, but was not able to show any actual loss or damage as a result. The trial judge had originally awarded the defendant a “nominal sum of HK$50,000” by way of damages to compensate the defendant for the security risk posed by the breach. However, Cheung JA of the Court of Appeal held that there was no actual loss or damage suffered, and it was a classic situation for awarding nominal damages of HK$100 to simply recognise that the defendant’s legal rights have been infringed. 217.Let’s Go Investments Ltd (supra) was followed in Larbons Ltd v Kuo You Weaving Factory Ltd DCCJ 934/2006, unreported, 12 July 2007, per HHJ Mimmie Chan (as she then was), at paragraph 92. 218.I disagree with the Defendants. In Let’s Go Investments Ltd (supra), the defendant claimed for damages for the security risk posed by the breach of deed of mutual covenant which caused her loss and damage, in that she was unable to dispose of her property. This was the claim for which the “nominal sum of HK$50,000” was awarded by the trial judge but significantly reduced by the Court of Appeal to HK$100. This was not damages for nuisance, annoyance, disturbance and inconvenience. 219.Likewise, the learned judge in Larbons Ltd (supra) was dealing with the claim for damages for injury to amenity of land instead of a claim for general damages for nuisance, annoyance, disturbance and inconvenience. 220.The Defendants also cited Ngan Ping Chi v Lam Chi Hao DCCJ 462/2003, unreported, 31 December 2003, per HHJ C B Chan, where the plaintiffs suffered inconvenience with the false ceiling of the master bathroom being removed and with the constant dripping for over two years. However, the damp and dripping was confined in the main to the master bathroom although there was damp in the master bedroom as well. Damages for distress and inconvenience in the sum of HK$20,000 was awarded. 221.The Plaintiff submitted that Ngan Ping Chi (supra) was decided over 20 years ago and should not be followed. 222.I have considered all relevant circumstances including the long period and serious nature and extent of water leakage, and the fact that the Plaintiff’s Flat had not been occupied as residence or tenanted before and during the water leakage. I order a sum of $50,000 as general damages for nuisance, annoyance, disturbance and inconvenience. XIV. Disposition 223.I order:-
224.Costs should follow the event. I make a costs order nisi that the Defendants do pay the Plaintiff’s costs of this action including all the reserved costs, to be taxed if not agreed, with certificate for counsel. 225.I thank Mr Wong Cho Lik and Mr Kaiser Leung for their assistance.
Mr Wong Cho Lik, instructed by Lo, Chan & Leung, for the Plaintiff Mr Kaiser Leung, instructed by Fung, Wong, Ng & Lam LLP Solicitors, for the 1st and 2nd Defendants [1] These matters were recorded in the letter dated 4 December 2021 from JLL to the Plaintiff. [2] See JLL’s letter dated 4 December 2021 to the Plaintiff. [3] These events were, again, recorded in JLL’s letter dated 4 December 2021 to the Plaintiff. [4] See JLL’s letter dated 21 July 2022 to the Plaintiff. [5] See JLL’s letter dated 4 December 2021 to the Plaintiff. [6] See JLL’s letter dated 21 July 2022 to the Plaintiff. [7] See JLL’s letters dated 4 December 2021 and 21 July 2022 to the Plaintiff. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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