Yeung Yi Lan v. The Incorporated Owners of Kam Shing Building
Read the full judgment text of DCCJ 4794/2021 on BabelCite. This District Court judgment was delivered on 24 December 2024.
1. This is a dispute concerning water leakage from the flat roof and external wall on the rooftop of a multi-storey building down to the property right under the roof.
Cited by 2 cases · Cites 16 cases
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DCCJ 4794/2021 [2024] HKDC 2140 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4794 OF 2021 ---------------------------------------
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------------------------ JUDGMENT ------------------------ 1.This is a dispute concerning water leakage from the flat roof and external wall on the rooftop of a multi-storey building down to the property right under the roof. Background and Procedural History 2.The plaintiff was at all material times and is still the owner of the property known as Flat B, 22/F, Kam Shing Building at No. 33 Heung Wo Street, Tsuen Wan, New Territories (the “Property”). The defendant is the Incorporated Owners of Kam Shing Building (the “IO”) registered on 4 August 1976 and was at all material times responsible for, inter alia, the property management and maintenance of the common parts of Kam Shing Building. 3.The plaintiff purchased the Property on 8 March 2013 and kept it as a rental property. In other words, the Property has been rented out since then, and neither the Plaintiff nor her family members have ever resided in it. 4.In around May 2020, the plaintiff was informed by her tenant that there was water seepage in the Property, which caused the peeling off of surface paint and spalling of concrete at the ceiling of the bathroom. The plaintiff informed the management company accordingly. 5.Around 15 June 2020, the plaintiff engaged an expert, Mr Leung of Silver Consultants Engineering Limited (“Mr Leung”), to investigate the cause of the water seepage. Mr Leung opined that the water seepage that occurred at that stage was due to the damaged external wall at the roof. A copy of Mr Leung’s investigation report containing his opinion was given to the IO. 6.The IO thereafter repaired the external wall in question in October 2020 and April 2021. However, the effectiveness of the said repair has yet to be checked and therefore uncertain. Meanwhile, the mold inside the Property (which the plaintiff believes was caused by the water seepage) persisted during that period. 7.On the arrival of the rainy season in June/July 2021, the paint inside the Property started to peel off again, and the tenant further noticed some water stains and water began to drip from the ceiling of the bedroom. The wardrobe inside the bedroom was also damaged by water. 8.In light of the water dripping inside the Property, in July 2021, the plaintiff commissioned Mr Leung again to investigate the cause of the water drippage. This time, Mr Leung was of the view that it was caused by the failing waterproofing layer on the roof. 9.The Deed of Mutual Covenant of Kam Shing Building (the “DMC”) provides the following:
10.At that time, the IO failed to take any effective steps to stop the water seepage from the roof. Other than the Property, the other property on the same floor, Flat 22A, was also affected by water seepage. 11.On 15 October 2021, the plaintiff commenced the present action against the IO seeking, inter alia, (a) a mandatory injunction that IO do carry out all necessary repair works to the external wall and the waterproofing layer at the flat roof within 28 days and at its costs and expenses to stop and prevent any further water seepage down to the Property, (b) an injunction to restrain the IO, whether by itself, its servants or agents from causing or permitting nuisance by permitting or allowing water to come into the Property, (c) damages including the costs of repair to be incurred, damages for distress, inconvenience and discomfort etc. Details of the plaintiff’s claims are set out in the Amended Statement of Claim dated 28 March 2022. 12.On 5 May 2022, the IO filed its Amended Defence. The plaintiff filed her Reply on 24 June 2022. 13.On 28 November 2022, the IO took out a Third Party Summons seeking to join the owner of Flat 23C of the same building, Mr Yung Kei Cho Raymond (“Mr Yung”), as the third party to the present action. The hearing of the Third-Party Summons was set down on 27 July 2023. 14.However, the IO failed to attend the scheduled hearing on 27 July 2023; the Third-Party Summons was therefore dismissed by the court with costs. 15.Pursuant to the court’s directions, the plaintiff filed the expert report of Mr Leung dated 29 May 2023 on 18 July 2023 and her witness statement on 30 October 2023 . Subsequently, with the leave of the court, the plaintiff filed her supplemental witness statement on 26 July 2024. 16.Regarding the IO, despite an unless order made against it on 4 September 2023, the IO failed to file any witness statement in this action. Nor has it served any expert report. 17.The IO has not attended any court hearing since 7 February 2023. The trial 18.On the date of the trial, the IO again did not appear. Upon being satisfied that the IO had been properly notified of the hearing and all the relevant documents, including the hearing bundles, the plaintiff’s opening submissions and list of authorities, had been properly served on the IO, I allowed the trial of this action to proceed in the absence of the IO. The parties’ respective cases 19.The plaintiff’s case is set out in her Amended Statement of Claim dated 28 March 2022. Her case can be summarized as follows:
20.Regarding the IO, as mentioned above, it has only filed a Defence, which was subsequently amended on 5 May 2022; no witness statement or expert report was filed. 21.According to the IO’s Amended Defence, the IO admitted that it had notice of the water seepage in the Property; it also accepted that, at the material times, it owed a duty to repair and maintain the external wall and waterproofing layer in question, and that no repair had been carried out to the defective waterproofing layer at the roof. 22.However, the IO contended that the source or cause of the water seepage in the Property was unknown, and it put the plaintiff to strict proof. It further denied liability on the following grounds: (a) the IO had repaired the external wall in around April 2021, (b) as to the waterproofing layer, it had discharged its duty by making requests to Mr Yung for access to the roof and, because of Mr Yung’s refusal, it was not able to carry out the necessary repair; and (c) the plaintiff failed to mitigate her loss by failing to carry out the necessary repair to the waterproofing layer at the rooftop herself. 23.As the IO did not appear, no evidence was adduced in support of its defences. The plaintiff’s evidence 24.At the trial, the plaintiff was represented by Mr Kevin Leung of counsel (“Mr K Leung”). The plaintiff gave evidence herself. She adopted her witness statement and supplemental witness statement as her evidence in chief. She provided clarifications on various matters orally by way of answers to the questions posed by this court. Quite apart from the fact that the plaintiff impressed me as an honest and reliable witness, her evidence was consistent with contemporaneous documents and supported by photographs. I accept her evidence. 25.The plaintiff’s evidence can be summarized as follows:
26.On the cause of the water leakage, the plaintiff called Mr Leung to give expert evidence in support of her claims. For this action, the plaintiff filed and served Mr Leung’s expert report dated 29 May 2023. 27.To prepare his expert report for this action, Mr Leung conducted tests and inspections inside the Property and Flat 23C on 3 April 2023. 28.During his inspection, Mr Leung performed the following tests:
29.Mr Leung also carried out a visual inspection of various locations inside the Property, and on the roof, the hamper-tapping test was performed at the same time. It was observed that there was extensive peeling of paint, water stains and cracks on the ceiling and walls inside the Property. Irregular crack lines were also observed on the surface of the roof slab. 30.Based on the results of the tests and his inspections, Mr Leung produced his expert report on 29 May 2023. He was of the view that the external wall (or the parapet wall) on the roof that had caused water seepage back in 2020 had been repaired. As to the water seepage starting in around June 2021, he concluded that it was caused by or was a result of the defective waterproofing layer at the rooftop. At trial, Mr Leung further testified that the waterproofing layer on the roof was likely to be a continuous layer of material (marked as the “waterproofing felt” on the building plan) covering the entire roof. He therefore opined that the proper method of repair would be to replace it with a new waterproofing layer. 31.Furthermore, Mr Leung also observed that the water seepage in the Property was so severe that there was a risk of falling off of concrete. Considering the extensiveness of the area affected, the Property was unsuitable for habitation. 32.In Mr Leung’s expert report, he has also provided his view on the proper way to make good the damage done inside the Property; details are set out in section 4.1 of his report. He estimated the corresponding costs of making good of the Property was $111,401.70. 33.At the hearing, Mr Leung adopted his expert report and further answered the queries raised by this court. 34.During questioning, Mr Leung was shown photographs of the Property taken by the plaintiff in early September 2024, about one and a half years after Mr Leung’s inspection, on which his expert report was based. Mr Leung noticed that the extent of damage caused to the Property, as shown in the photographs, was much larger and more serious than at the time of his inspection in April 2023. He therefore opined that the actual costs of repair to be incurred to the plaintiff would be higher than the estimate stated in his expert report. He recommended that the costs of repair or reinstatement would better be assessed upon completion of the rectification work. I should also mention that, as suggested by Mr Leung, which makes sense to this court, the plaintiff should only repair the damaged ceiling, walls and furniture inside the Property after the waterproofing layer at the roof is replaced and the water seepage stops. 35.On the whole, Mr Leung’s evidence is coherent and sensible. Besides, there is no evidence to challenge Mr Leung’s opinion. I therefore accept his evidence in full. Legal principles 36.In a multi-storey building, there is no presumption that the water seepage inside a property necessarily comes from the property right above, 張秀玲及吳炳漢 訴 鄭禮莊 , unreported, CACV 268/1998, 9 April 1999, page 10. 37.The onus is on the plaintiff to establish, on the balance of probabilities, that the source of water seepage/leakage originated from a source or was due to matters for which the defendant is liable; it is not for the defendant to identify the source of the water seepage/leakage: Hui Ling Ling v Sky Field Development Limited, unreported, HCA 35/2007, 8 May 2012, para 23. 38.The waterproofing layer or membrane laid on the roof, which serves to keep rainwater from getting into the flats below, is part of the common parts of the building, Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre (IO) [2014] 4 HKLRD 52 at paragraphs 96 to 99. 39.Further, as held by Sakhrani J (as he then was) in Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd [2009] 4 HKLRD 692 (at para 60), “… the waterproofing layer or system was a fixture used in connection with the enjoyment of any other flat or other portion of the building within the meaning of item 11 in Sch 1 of the [Building Management] Ordinance”. His judgment was upheld on appeal: [2010] 4 HKC 463, at para 10. 40.Pursuant to paragraphs 1 and 4 of Schedule 1 of the BMO, the external walls and, in this instance, the parapet walls on the roof are common parts of the Building. 41.The IO, therefore, at all material times, has a duty to keep both the external/parapet wall and the waterproofing layer in question in a state of good and serviceable repair under section 18(1(a) of the BMO. Analysis 42.On the unchallenged evidence from the plaintiff and Mr Leung, which I accept, together with a significant number of contemporaneous photographs showing the damage done to the interior of the Property (at different stages) and the condition of the roof, this is a clear case of seepage of rainwater from the roof down to the Property. And there is nothing before the court to justify the defendant’s failure to repair and/or maintain the defective layer of waterproofing felt on the roof. Water leakage due to the defective external wall in 2020 43.Regarding the water seepage caused by the defective external or parapet wall on the roof before June 2021, the evidence shows that it was rectified by the IO either in October 2020 or April 2021. 44.As held in Lau Chun Wing Rod v The Incorporated Owners of Po On Building (unreported, CACV 20/2007, 1 November 2007), section 18(1)(a) of the BMO does not have the effect of turning the Incorporated Owners into an insurer for all damage done due to disrepair of the common parts of the building for which the Incorporated Owners are responsible. The Incorporated Owners will only become liable “if there is fault” or “if, having been made aware of a defect which requires remedy, the Incorporated Owners fail to take appropriate steps” (at para 12). 45.A similar duty to maintain the common parts of the building as may be imposed on the Incorporated Owners by the DMC is also not absolute, PC Fortune Company Limited v The Incorporated Owners of Kwong Fu Building [2009] 5 HKLRD 787 [P#6][4] at para 29:
46.In the present case, the external (or parapet) wall in question was located on the roof, which was under the exclusive occupation of Mr Yung; there is no evidence showing that the IO was in any way at fault or failed to take appropriate steps to remedy the defect after having been notified of the water leakage when it occurred in 2020. The wall may well have been repaired by the IO as early as October 2020. Hence, on the evidence, the IO was not liable for the damage caused by the water seepage through the damaged external wall in 2020. 47.In any event, the plaintiff confirmed at the hearing that no repair was carried out for the damaged ceiling at that stage. With the benefit of hindsight, had any repair work been performed by the plaintiff, it would have been damaged shortly thereafter because of the further water seepage starting in June 2021. As the plaintiff has not incurred any costs in repairing the damaged ceiling, nothing material arises from the water damage caused by the damaged or defective external/parapet wall on the roof in 2020. Water leakage through the defective waterproofing layer on the roof after June 2021 48.About the further water damage after June 2021 caused by rainwater seeping through the defective waterproofing layer on the roof down to the Property, the IO was plainly liable for it under sections 16 and 18(1)(a) of the BMO, because it failed to carry out effective repair to the said waterproofing layer to stop the leakage, despite repeated requests made by both the plaintiff and the owner of Flat 22A. 49.None of the defences pleaded by the IO in its Amended Defence stands:
50.In relation to the plaintiff’s claim in nuisance, it is trite that the Incorporated Owners are under a general duty not to create or allow nuisance from the common parts to the other parts of the building which are exclusively occupied by individual owners, PC Fortune Company Limited v The Incorporated Owners of Kwong Fu Building [2009] 5 HKLRD 787 at para 24. On the facts, the plaintiff’s case in both negligence and nuisance is also made out. Injunction 51.The plaintiff seeks an injunction to restrain the IO from allowing the water seeping into the Property to continue and to compel the IO to carry out all necessary repair works to the external wall in question and the waterproofing layer under the flat roof. 52.It is both the plaintiff’s and Mr Leung’s evidence that the once defective external wall on the roof had been repaired by the IO in April 2021 at the latest; and the defective waterproofing layer on the roof caused the subsequent water leakage after June 2021. As such, in my view, the injunctive relief in relation to the repair of the external wall was not called for as at the date of the commencement of the present action. 53.As to the defective waterproofing layer under the flat roof, the IO was made aware of the need to remedy it as early as August 2021; up to the present, despite repeated requests made by owners of the 22/F, no effective remedial work has been carried out by the IO, and the Property is still seriously affected by the on-going water seepage. Notably, the extent of physical damage to the interior of the Property increases and gets more serious over time. 54.It was held by the Court of Appeal in Lo Yu Chu v Kam Fu Lai Development Co Ltd. [1994] 3 HKC 18 (at 28F-G) that,
55.This is therefore an appropriate case where an injunctive relief ought to be granted to compel the IO to carry out the necessary repair to the waterproofing layer under the flat roof to stop the water leakage. 56.As to the terms of the injunction, counsel for the plaintiff proposed in his closing submissions the following:
57.The plaintiff’s counsel submitted that the method of repair set out in the proposed terms of the injunction was based on the opinion given by Mr Leung to the plaintiff after trial. It is inappropriate, to say the least, to refer in the closing submissions to opinions obtained after the trial. Such an opinion was not part of the expert evidence adduced by the plaintiff. 58.Leaving aside the impropriety on the plaintiff’s part by referring to Mr Leung’s opinion given privately to the plaintiff after the trial, which is not part of the evidence adduced in this action, the method of repair outlined in the proposed terms is, in my view, both imprecise and unclear, rendering the injunction, if granted accordingly, unenforceable. For instance, the requirement of “Excavating and clearing the floor and surrounding walls of the Roof to a height of 300 mm …” is incomprehensible; the term “stone substrate” is not common and does not have a commonly accepted meaning in the building industry; it is also unclear as to what is to be done by “Applying a 45-degree, 50 mm thick waterproof cement sand slope at the wall corners”; further, the proposed requirement for “applying finishing (e.g. floor tiles)” is also not precise enough to enable the IO to know what is to be provided. 59.More importantly, it is not for the court to dictate what remedial work must be done to stop the water leakage in question. There are many ways to waterproof a building roof; different waterproofing systems are available in the market, and different materials may be used under different systems. As one can imagine, these different waterproofing systems with different materials are of varying quality and durability, and some are more costly than others. To decide what system to adopt in a particular case, one has to balance between different factors, including price, quality, durability and ease of installation, taking into account the particular circumstances of the building. The IO is no doubt in a better position to make that decision. 60.Under the BMO and the DMC, the IO is only required to maintain the common parts in a state of good and serviceable repair and clean condition although this may require the replacement of the existing waterproofing layer with a new waterproofing system if necessary, e.g. if the existing system is beyond repair or it is not cost-effective to do so. 61.The building plan of Kam Shing Building provided by Mr Leung in his expert report shows that the existing waterproofing system at the roof merely involves a layer (of an unknown thickness) of “waterproofing felt on cement screeding laid to fall”; this is clearly different from the system described by the plaintiff in her proposed formulation of the injunction, which is probably a system of a different quality and durability; notably, the two layers of waterproofing cement sand screed and a further layer of insulation of 150 mm thick proposed do not exist in the existing system. The IO is not obliged and should not be forced to provide a better waterproofing system so long as effective repair work is carried out to stop the leakage. 62.The plaintiff further seeks an order that in the event that the IO fails to commence the required work within 56 days, the plaintiff be allowed to proceed with the work at the IO’s costs. My first observation is that this is not part of the reliefs claimed by the plaintiff in its Amended Statement of Claim. As the IO did not appear at the trial, as a matter of principle, the plaintiff is not entitled to this further order, which is not expressly claimed, see Hong Kong Civil Procedure 2025 ed Vol 1 commentary 18/15/6. 63.Further, under section 16 of the BMO, the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by the corporation (i.e. the Incorporated Owners) to the exclusion of the owners, this provision is couched in mandatory terms, See Wah Fan v Incorporated Owners of Ki Tat Garden (Phase I) [2003] 3 HKLRD 1 at 8H-J. As such, despite the fact that the IO has taken a stance in its Amended Defence that the plaintiff ought to have carried out the necessary repair herself, this court may not have the power to make an order effectively empowering the plaintiff to carry out repair work to the waterproofing layer in question. 64.For the above reasons, I am not prepared to adopt the formulation proposed by the plaintiff; the usual form of injunctive reliefs should be made. In deciding the time to be given for the repair or replacement of the waterproofing layer, while sufficient time ought to be given to the IO to go through the procurement procedures required under the BMO, I also bear in mind the practical requirement or the preference that work of this nature should be carried out and completed before the next rainy season. Upon consideration, I consider that a period of 90 days, instead of 56 days as the plaintiff proposed, would be appropriate. Damages 65.Regarding damages, in Mr K Leung’s closing submissions, the plaintiff only pursues the following four items:
66.The plaintiff adduced no evidence in support of the other claims pleaded, namely (a) the cost of substituted accommodation during repair, (b) the costs of removal, relocation and re-instalment of the furniture, fixtures and belongings in the Property, and (c) travel expenses. 67.On the premises, these other damages claims are deemed to be abandoned by the plaintiff. Costs of repair and cleaning up 68.The plaintiff is clearly entitled to the costs of repair or reinstatement of the Property damaged by the water leakage since June 2021. The amount claimed is based on Mr Leung’s estimate of $111,401.70; details are set out in section 4.2 of his expert report. As mentioned above, Mr Leung said his estimate was based on the extent of water damage caused to the Property in April 2023, and on the basis of the photographs taken in September 2024, the current damage is more extensive, and the actual costs of repair or reinstatement to be incurred would probably be higher. Notwithstanding that, Mr K Leung submitted in his closing that, for the present claim, the plaintiff is content with a lower sum as estimated by Mr Leung. I am satisfied that the actual loss suffered by the plaintiff under this head is likely to be more than the amount claimed, I therefore allow the amount in full. 69.As to the further costs of cleaning claimed by the plaintiff, although Mr Leung has already included in his estimate a sum of $1,500 for “清拆及清理泥頭垃圾” (dismantling and carting away construction debris), this is not meant to be a fine cleaning that ought to be done to a residential property after any repair or reinstatement work. I would therefore allow a further sum of HK$1,600 claimed by the plaintiff for fine cleaning of the Property after the completion of the repair or reinstatement work, which appears to be reasonable. Costs of the injection grouting works carried out in August 2021 and April 2022 70.Reasonable costs incurred by the plaintiff to abate the nuisance is recoverable, Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 at 353D-F. It was the plaintiff’s evidence that the grouting works in question were required to reduce the adverse impact on the tenant caused by the water leakage. Although the protection provided by such works was only temporary and appears to be ineffective in stalling the water leakage, I am of the view that it was a reasonable step taken by the plaintiff in the circumstances; had the IO duly performed its duty under the BMO or the law, the said grouting works would not have been necessary. 71.The amounts claimed, which were not challenged by the IO in any event, do not appear to be excessive; they are also supported by receipts issued by the contractor performing the works. The associated costs incurred are, therefore, recoverable. Damages for stress and inconvenience 72.The plaintiff purchased the Property as a rental property. According to the plaintiff’s evidence, she stopped renting out the Property in around September 2021, and thereafter, she asked her relative to stay in the Property to ‘monitor’ the water leakage. As the evidence shows, her relative would report to her when there was a sign of water seepage in the Property. 73.In most of the cases cited by the plaintiff where damages for discomfort and inconvenience were awarded, the claimants in those actions were also the occupiers of the premises affected by nuisance; as such, the claimants in those actions personally experienced or endured the discomfort caused by the nuisance. 74.In the present case, the plaintiff has not been residing in the Property[5] and thus was not required to endure any personal discomfort as might be caused by the water leakage. The question therefore arises as to whether a landlord, who is not in occupation of the property, is entitled to damages for stress and inconvenience in nuisance.
75.In this regard, the plaintiff has cited no authority directly in point.[6] I am therefore not satisfied that a landlord, not in occupation of the property, is entitled to recover damages for stress, discomfort and inconvenience under the tort of nuisance. 76.One of the recognised heads of loss in nuisance is the diminution in the amenity value of the property during the period for which the nuisance persisted. It was held by Lord Hoffman in Hunter v Canary Wharf Ltd 1997 AC 655 that:
77.As this is not compensation for the discomfort caused to the occupier of the property, the compensation cannot be increased because more people are in occupation. Lord Hoffman further explained in Hunter v Canary Wharf Ltd:
78.For this claim, no evidence was adduced by the plaintiff on either the personal discomfort (if any) she or her family members experienced or the diminution in amenity value of the Property by reason of the water leakage. 79.The plaintiff’s evidence in this regard[7] was merely about the extra work and inconvenience caused to her and her family members in trying to resolve the water leakage problems in the Property and pursuing her claim against the IO by way of legal actions. This is, however, not a recognised recoverable loss in the tort of nuisance. 80.That said, it is trite that general damages for discomfort and inconvenience occasioned by breach of contract are recoverable, and usually a conventional sum is awarded, So John v Lau Hon Man [1993] 2 HKC 356 at 358H-359C. Like in So John, there exists in the present case an identical provision in the DMC, under clause 10(c), which provides:
81.On the facts, the IO has, since June 2021, been and is still in breach of clause 10(c) of the DMC; the plaintiff is therefore entitled to damages for discomfort and inconvenience. As to quantum, upon considering the extent of suffering and the corresponding sum awarded under this head in the following cases cited by the plaintiff: Choi Man Wing & Anor v Wong Tang Hoi Alice (unreported, DCCJ 4825/2016, 31 July 2018) at §70; Cosmos Legal Consultant Limited v Skycherry Development Limited & Anor (unreported, DCCJ 2548/2009, 14 May 2013) at §116; Chung Yin Ha v Tse Shui Sam (unreported, DCCJ 2605/2016, 22 February 2019) at §§51-55; and Lee Tsz Yeung & Anor v Ho Chung Yan Joanne (unreported, DCCJ 179/2022, 19 June 2024) at §§37-40, I consider that, given the fact that the plaintiff has not resided in the Property and thus did not experience similar levels of personal discomfort as the claimants in those cases did, an award of HK$50,000 under this head would be appropriate in the circumstances, and I so order. Conclusion 82.For the reasons set out above, I give judgment for the plaintiff and make the following orders:-
83.Costs should follow the event. Accordingly, the plaintiff shall have the costs of this action, including any costs reserved. The said costs are to be taxed, if not agreed, with certificate for counsel. 84.The above costs order is made on a nisi basis, which shall become absolute unless an application to vary (by way of summons) is made within 14 days.
Mr Leung Ka Yeung Kevin, instructed by CL & Co, Solicitors, for the plaintiff The defendant was not represented and did not appear [1] This is the amount stated by the plaintiff in the Form of Claim under SCTC033086/20 of the Small Claim Tribunal [2] It is unclear if it was due to the water leakage problem in the Property. There is no claim for rental loss. [3] There is no evidence of the corresponding cost incurred on that occasion; no claim was raised by the plaintiff for such work. [4] Appended in P’s Opening Submissions [5] In the Small Claim Tribunal action SCTC033086/20 filed on 12 November 2020, the plaintiff reported that she resided at H, 17/F, Blk 1, Easeful Court, Tsing King Road, Tsing Yi. In the plaintiff’s two witness statements dated 3 August 2023 and 25 July 2024 respectively, she indicated that she resided at 新界荃灣大河道 88號 灣景廣場25樓 E室. [6] In the case of Chau Chung Mei v Leung Ying Ngai, unreported, DCCJ 4062/2012, 29 September 2014 at §21, cited by the plaintiff in support, although the landlord was awarded damages for inconvenience caused by water leakage, the learned judge did not set out the legal basis of the claim for which the award was made. As to the case of Century Way Investment Limited v Willbert Limited and Far East Global Group Limited, unreported, DCCJ 3710/2013, 23 December 2016 (referred to in Gwong Leung Property Holdings Limited v Wong Kwok Tsoi, unreported, DCCJ 5473/2016, 6 September 2022, cited by the plaintiff), it was a case where the property in question was not rented out; further, other than nuisance, breach of DMC for causing nuisance to other owners was also relied on - see §§4, 43 and 102 of the judgment. Furthermore, it is to be noted that the award made in the case of So John v Lau Hon Man [1993] 2 HKC 356 (at §18) referred to in §102 of the judgment was not by reason of nuisance as stated therein but instead breach of DMC. [7] “19. 這次由大廈外牆及天台防水層引致的滲水事件由2020年5開始至現在足足纏擾了我和家人超過了3年之久，它對22B單位的損毁狀況已在上述第9段及第16段作出陳述，我亦不在這部份重覆。 20. 我不敢在未確定滲水問題已徹底解決之前貿然對22B單位進行維修，加上家中各人都因滲水這件事而花了很多時間和心力去處理，包括向被告人作出投訴、聘請滲水專家。在處理這滲水問題期間，無論被告人、承辦商及滲水專家到過22B單位視察和做各樣的勘察和測試不下有十多次，當中來來回回做了很多檢查及測試，最終要聘請律師，因而打亂了家中各人正常的生活及工作，各人都面對重重壓力，家中氣氛變得沉鬱及不開心。” | ||||||||||||||||||||
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