Tollemache Company Ltd and Others v. Raymond Lun Kwok Pao also known as Pao Lun Kwok Raymond

DCCJ 1322/2022

[2025] HKDC 155

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1322 OF 2022

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DECISION

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A.  Introduction

1.On 6 December 2024, I handed down the judgment (the “Judgment”) in respect of the present action ([2024] HKDC 2026)[1]. I dismissed the Plaintiffs’ claims against the Defendant.

2.By a summons dated 3 January 2025, the Plaintiffs seek leave to appeal against my Judgment.

3.Pursuant to my directions on 17 January 2025, the Plaintiffs’ application for leave to appeal is to be disposed of on the papers. The parties have filed written submissions, which I have considered.

B.  Legal Principles

4.Under section 63A of the District Court Ordinance (Cap 336), no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

5.The party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success. This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para 17.

6.It is trite that an appellate court will not lightly intervene a trial judge’s primary factual findings, unless (i) there is no evidence in support; (ii) the trial judge misunderstood the evidence; or (iii) no reasonable judge could have reached such findings. In Salleh Abu Baker v Anyway Limited [2023] HKCA 187 at paras 27-28, G Lam JA stated:-

“27. It is common ground that the principal attack on the judge’s conclusion involves a challenge against his findings of primary fact, and that the plaintiff has to pass a high hurdle in order to justify appellate interference with such findings. Before this court can intervene, it has to be able to conclude that, despite the fact that it does not enjoy the advantages available to the judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen & others (2002) 5 HKCFAR 336, §42. The starting point is for the appellant to identify palpable errors in the judgment below sufficiently material to warrant intervention by this court. An appeal is not a forum for repeating all the submissions on the evidence made below, as if it were a re-trial, in the hope that the appellate judges may come to a different view of the facts from that of the judge: China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, 27 November 2015), §§15-16.

28. While this Court may interfere with a finding for which there was no evidence in support, or which was based on a misunderstanding of the evidence, or which no reasonable judge could have reached, it must be borne in mind that the trial court is the primary tribunal for the assessment of the evidence and making relevant findings of fact. As Kwan VP observed in Shine Grace Investment Ltd v Citibank NA & another [2022] HKCA 1341 at §60(2):

“It is the trial judge who has the primary role in assessing evidence and making relevant findings of fact, not the appeal court. The trial before the primary judge should be the ‘main event’, not a ‘tryout on the road’. The appeal court should defer to the trial judge’s conclusion even if in some doubt as to its correctness, because it is unlikely to gain as much insight to the facts from seeing how the evidence unfolded, or be as familiar with the evidence as the primary judge, who has lived with the trial from beginning to end. Besides, the perception of the appeal court may be narrowed or distorted by selective readings of the transcript when the focus is on the challenge of a particular finding.”

7.As Kwan JA (as she then was) pointed out in秦錦釗 及 香港特別行政區 [2018] HKCA 167 at para 8, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning, and pinpoint the error in respect thereof. See also李智慧 及 昆士蘭保險 (香港) 有限公司 [2021] HKCA 984 at para 11 (per Chow JA).

C.  Deliberation

8.The Plaintiffs’ contentions are set out in the draft grounds of appeal annexed to their summons dated 3 January 2025 and elaborated in Mr Byron Chiu’s written submissions.

C1.  Ground 1: Alleged Breach of DMC Duties

9.I found that the main cause of the water leakage in question was that the fallen leaves that were blown off from the trees around Block B2A during the passage of Typhoon Vincente[2] blocked or clogged the drain holes on the Roof: see Judgment, paras 38 to 53.

10.The Plaintiffs accept the aforesaid findings[3].

11.However, they contend I erred in failing to find that the Defendant breached:-

(1)  clause 5(c) of the DMC by failing to maintain the Roof in good repair and condition;

(2)  clause 5(d) of the DMC by permitting the Roof to be used in a manner that caused annoyance to other owners or occupiers; and

(3)  clause 17(c) of the DMC by permitting annoyance, damage or inconvenience to other occupiers.

Failing to maintain the Roof in good repair and condition?

12.As pointed out in paragraph 56(1) of the Judgment, at the trial Mr Byron Chiu (for the Plaintiffs) accepted that the duties to maintain the Roof in good repair and condition under clause 5(c) of the DMC was neither absolute nor strict, and the Defendant was only required to do what was reasonable in the circumstances.

13.For the reasons elaborated in the Judgment, I rejected the Plaintiffs’ suggestions that the Defendant failed to maintain the Roof in good repair and condition and that he was responsible for the loss and damage that they suffered:-

(1)  As pointed out in paragraphs 71 to 74 of the Judgment, it was most likely that the fallen leaves were blown onto the Roof during the passage of Typhoon Vincente[4], and there was no evidence that there was an excessive amount of fallen leave on the Roof before Typhoon Vincente intensified. In light of the danger and risks of injury involved, the Defendant, Mrs Pao and their domestic helpers could not and should not have attended the Roof to clear the fallen leaves during the passage of Typhoon Vincente[5].

(2)  As pointed out in paragraph 64 of the Judgment, the drain holes together with the drainpipes were the common facilities of the Woodgreen Estate, and the duty to maintain the same was vested with the manager, not the Defendant.

14.I am not persuaded that the aforesaid findings are plainly wrong. I fail to see any substance in the Plaintiffs’ complaint, and there is no point to regurgitate the contentions that I did not accept at trial.

Permitting Rainwater to Accumulate in the Defendant’s Property and Permitting Fallen Leaves to Accumulate on the Roof?

15.The Plaintiffs further contend I should have held that the Defendant “permitted”:

(1)  rainwater to accumulate in his own Property, which subsequently seeped into the Plaintiffs’ Property; and

(2)  fallen leaves to accumulate on the Roof, which blocked or clogged the drain holes.

16.Insofar as (1) is concerned, the Plaintiffs says I erred as I failed to appreciate that the alleged water leakage incidents in the past were relevant. Insofar as (2) is concerned, the Plaintiffs says that I erred as I failed to appreciate the implications of (i) the Defendant’s previous conduct of clearing fallen leaves before typhoons; and (ii) Born Chief Co trading as Beijing Restaurant v Tsai George & Tsai Mary [1996] 2 HKLR 188.

17.The Plaintiffs simply regurgitate the contentions that I rejected at trial. For the reasons elaborated in the Judgment, I am of the view that the Plaintiffs’ contentions are unarguable:-

(1)  I accepted that the rainwater entered the Plaintiffs’ Property via the Defendant’s Property. However, it did not follow that the Defendant “permitted” the water leakage.

(2)  As pointed out in paragraph 56(3) of the Judgment, I was unable to discern any conduct on the part of the Defendant that was tantamount to “permission”. In my view, the Defendant had no choice as to the dreadful consequences of Typhoon Vincente, and he was simply on the “receiving end.

(3)  In this connection:-

(a)  I rejected Mr Chiu’s suggestion that the alleged water leakage incidents in the past were relevant. As explained in paragraph 77(1) of the Judgment, the Plaintiffs did not provide any meaningful details as to these previous incidents, and there was no evidence showing that these previous incidents concerned a similar scenario where (i) rainwater entered the Plaintiffs’ Property after heavy rainfalls or typhoons; or (ii) the drain holes on the Roof were blocked after heavy rainfalls or typhoons. As such, it could not be said that as a result of the alleged water leakage incidents in the past, the Defendant should have foreseen that there would be water leakage in the Plaintiffs’ Property due to Typhoon Vincente.

(b)  The Defendant admitted that there were previous occasions where his domestic helper, namely Madame Wongsuwan, removed the fallen leaves on the Roof before typhoons arrived. However, I failed to see how this admission would avail the Plaintiffs’ case. As explained in paragraphs 64(7) and 78 to 79(1)-(2) of the Judgment, these acts of self-help could be done to avoid the risk of water leakage in the Defendant’s own Property. There was simply no evidence showing that there was a previous occasion where (i) rainwater entered the Plaintiffs’ Property via the Defendant’s Property during or after a typhoon or rainstorm; and (ii) the drain holes on the Roof were blocked, as a result of which there was water seepage in the Plaintiffs’ Property.

(4)  In the premises, the Plaintiff simply failed to show that the Defendant knew or should have known that if he did not remove the fallen leaves on the Roof, rainwater would have entered the Plaintiffs’ Property via the Defendant’s Property.

(5)  In any event, for the reasons elaborated in paragraph 64(1)-(6) of the Judgment, the Defendant did not have the responsibility to ensure that the drain holes (which were part of the drainage system) functioned properly as the responsibility of maintaining the common facilities was vested with the manager of Woodgreen Estate.

(6)  In my view, Mr Roger So (for the Defendant) is correct in pointing out that Born Chief Co trading v Tsai George (supra) is plainly distinguishable. In that case, the defendants left a sliding door open, and there was a 12-inch opening[6]. The defendants in that case could have foreseen the flooding in the plaintiff’s property and they could have avoided the flooding by closing the sliding door before the heavy rainfall begun[7]. This was not the scenario in the present case.

(7)  On the evidence before the court, I was unable to find that there was any negligent or unreasonable conduct on the part of the Defendant. I was also unable to find that the Defendant could have adopted some reasonable measures to avoid the water leakage in the Plaintiffs’ Property. In this connection:-

(a)  For the reasons explained in paragraphs 75 and 77(1)(f) of the Judgment, I rejected the Plaintiffs’ suggestions that (i) the Defendant should have applied waterproofing membrane on the floor of his Property (which was grossly disproportionate); and (ii) the Defendant should have installed a device named “balloon grating” on the drain holes[8] (which was an afterthought and which was unsupported by the experts’ evidence).

(b)  Further, for the reasons set out in paragraphs 73 to 74 of the Judgment (and paragraph 13(1) above), the Defendant, Mrs Pao and their domestic helper(s) could not have cleared the fallen leaves during the passage of Typhoon Vincente. This was far too dangerous and risky.

(c)  For completeness, it should be pointed out Mr. Chiu now emphasizes that one of the precautionary measures that the Defendant could have adopted was to install a device named “rain curtain”. In all fairness, when Mr. Chiu made oral opening submissions at trial, he did briefly raise this suggestion[9]. However:-

(i)  As pointed out by Mr. So, the Plaintiffs did not make pleas suggesting that failure to install a “rain curtain” constituted negligence and/or breach of duties on the part of the Defendant.

(ii)  More fundamentally, Mr. Chiu did not even explore the suggestion about “rain curtain” with the Defendant’s expert (namely Ms Lau Shan La) when she was cross-examined. Likewise, the Plaintiffs’ expert (namely Mr. Andrew Kung) was not invited to give any evidence on the feasibility and workability of “rain curtain”. There was simply no evidence from the parties’ experts showing that a “rain curtain” would have been workable and effective in the circumstances of the present case.

(iii)  It is difficult to see how Mr. Chiu can seriously seek to rely on the bare assertion in paragraph 33 of the 2^nd Plaintiff’s witness statement. Whilst the 2^nd Plaintiff was not an expert at all, he merely pointed out that “the Defendant did not take any preventive measures, such as to install rain curtains on the Roof…”. The 2^nd Plaintiff could not even explain how a “rain curtain” might avoid the water leakage in the present circumstances, and he did not address the questions of expenses, proportionality and feasibility. The 2^nd Plaintiff’s bare assertion simply carried no substance at all.

(8)  To sum up, the Plaintiffs plainly failed to show that the Defendant could have taken reasonable steps to avoid the water leakage in the Plaintiffs’ Property and that there was any unreasonable conduct or negligence on his part.

18.The Plaintiffs are unable to show that my findings are plainly wrong, and no palpable error has been identified. I am not persuaded that the Plaintiffs’ contentions have a reasonable prospect of success.

Strict or Absolute Liabilities?

19.Relying on So Kwok Yan Bernard v Lau Wing Chung (DCCJ 2343/2012, 20 March 2015) at paras 48-50 and 119-120, Mr Byron Chiu suggests that where a covenant in a deed of mutual covenants restricts not only nuisance but also annoyance and damage, such covenant offers greater protection. On this alleged basis, Mr Chiu reiterates that clauses 5(d) and 17(c) of the DMC imposed strict liabilities requiring the Defendant (i) not to permit the Roof to be used in a manner that caused annoyance; and (ii) not to permit annoyance, damage or convenience. However, Mr Chiu accepts that:-

(1)  Clauses 5(c), 5(d) and 17(c) did not impose absolute duties on the Defendant (i) to maintain the Roof; and (ii) not to permit nuisance.

(2)  The Defendant was only required to do what was reasonable in the circumstances in order to discharge the duty to maintain the Roof and the duty not to permit nuisance.

20.First of all, Mr Chiu’s contention does not even arise at all. As pointed out in paragraph 56 of the Judgment (see also paragraph 17 above), the Defendant did not “permit” the water leakage in the Plaintiffs’ Property; nor did he “permit” the Roof to be used in a manner that caused the water leakage in the Plaintiffs’ Property.

21.In any event, for the reasons elaborated in paragraph 56(4) of the Judgment, I was of the view that Mr Chiu’s contention was wholly unarguable and unmeritorious.

22.In this connection, it would be helpful to set out the relevant clauses of the DMC as pleaded in the statement of claim:

(1)  Clause 5(c): “… owners shall be responsible for maintaining and repairing their respective Roofs in good repair and conditions.”

(2)  Clause 5(d): “… owners shall not use or permit to be used their respective Roofs in any manner so as to cause nuisance or annoyance to the owners or occupiers of other Apartments…”

(3)  Clause 17: Each party to the DMC covenanted “not to…do or permit anything [in his part of the said building]… which may be a nuisance or annoyance to or may cause damage or inconvenience to other occupiers of the said building.”

23.Plainly, the provisions of the DMC did not seek to differentiate or distinguish the duties regarding nuisance from the duties regarding annoyance, damage and/or inconvenience. All these duties were set out and dealt with together.

24.In the premises, as pointed out in paragraphs 35 and 56(4) of the Judgment, the dichotomy suggested by Mr Chiu was not only artificial, but also unsupported by and inconsistent with the provisions of the DMC. In light of the way in which the relevant provisions in the DMC were drafted, I rejected Mr Chiu’s suggestion that whilst the duties regarding annoyance, damage and/or inconvenience were strict and absolute, the Defendant might discharge the duties regarding nuisance by doing what was reasonable in the circumstances.

25.For completeness, it should be pointed out that Mr Chiu’s reliance on So Kwok Yan Bernard (supra) at paras 48-50 and 119-120 is completely misplaced. In that case, His Honour Judge Andrew Li merely pointed out that the concept of “annoyance” carries a wider meaning than the concept of “nuisance”. The learned Judge did not suggest that whenever the provision of a deed of mutual covenants touches upon “annoyance”, the duties in respect thereof should be construed as strict or absolute, such that more protection would be provided to the covenantees. In my view, the proposition suggested by Mr. Chiu is most contrived and cannot be correct.

26.I am of the view that Plaintiffs’ contention is unarguable and without merits. There is no reasonable prospect of success.

C2.  Ground 2: Alleged Duties to Maintain/Manage the Drain Holes

27.The Plaintiffs’ second proposed ground of appeal is based on another alleged dichotomy. Mr Chiu reiterates that whilst the manager of Woodgreen Estate was responsible for maintaining the drainpipes that were underneath the floor on the Roof, the Defendant was responsible for maintaining the drain holes that were on the surface of the Roof.

28.In paragraphs 65 to 80 of the Judgment, I explained why the Defendant was not guilty of any breach of duty and/or unreasonable conduct in relation to the drain holes. Thus, even if the Defendant were responsible for maintaining the drain holes, he should not be held liable for the loss and damage suffered by the Plaintiffs.

29.In any event, for the reasons set out in paragraph 64 of the Judgment, the Plaintiffs’ contention had no merits at all. The drainpipes and drain holes were both integral parts of the same drainage system. They were common facilities installed for common benefit. I was unable to accept Mr Chiu’s suggestion that an individual owner was required to maintain part of a common facility. This could not be the intention of the DMC. In this connection, whilst clauses 4(b) and 4(j)(V) of the DMC provided that the manager of Woodgreen Estate had the duties to maintain and repair the common facilities, clause 3(f) of the DMC empowered the manager to enter the Roof for the purposes of “rebuilding … repairing, maintaining [and] cleaning … any drains, water-course [and] pipes”.

30.Although the Plaintiffs disagree with my conclusion, they are unable to pinpoint the error(s) in respect of the analysis set out in the Judgment. I am not persuaded that the second proposed ground of appeal has a reasonable prospect of success.

C3.  Ground 3: Alleged Breach of Duties

31.Under the third proposed ground of appeal, the Plaintiffs contend that the Defendant should have foreseen the water seepage in the Plaintiffs’ Property. In particular, they say I should have held that:-

(1)  The Defendant should have adopted precautionary measures (such as installing a rain curtain) before Typhoon Vincente arrived; and

(2)  The Draft Minutes show the Defendant’s Property was unoccupied for 4 years and visibly deteriorating. Further, the windows thereof were left open.

32.Again, the Plaintiffs’ complaints do not even arise. As pointed out in paragraph 64 of the Judgment (as well as paragraph 29 above), the Defendant was not even responsible for maintaining the drain holes on the Roof.

33.In any event, I am of the view that there is no substance in the Plaintiffs’ complaints:-

(1)  As pointed out in paragraphs 65 to 80 of the Judgment (as well as paragraphs 17(5) to (8) above), I was not satisfied that there was any negligent or unreasonable conduct on the part of the Defendant, and the Plaintiffs were unable to show the Defendant failed to take some precautionary measures that were workable, effective, reasonable and proportionate.

(2)  As regards the Draft Minutes, for the reasons elaborated in paragraphs 77(1)(e) and 87 to 88 of the Judgment:-

(a)  I was of the view that the contents of this document were dubious and unreliable.

(b)  In any event, the contents of the Draft Minutes did not deal with matters relating to the drain holes and fallen leaves at all.

(c)  Further, there was no evidence showing that the Draft Minutes was provided to the Defendant.

(3)  In the premises, I found that the Draft Minutes did not show that the Defendant should have foreseen the water leakage in question.

34.I am of the view that the third intended ground of appeal is wholly unarguable and unmeritorious. There is no point for the Plaintiffs to regurgitate the contentions that I rejected at trial.

D.  Order and Disposition

35.For all the above reasons, I am of the view that none of the Plaintiffs’ intended grounds of appeal has a reasonable prospect of success. I am also unable to see any reason in the interests of justice why the intended appeal should be heard.

36.Accordingly, I dismiss the Plaintiffs’ summons dated 3^rd January 2025.

37.Costs should follow the event.

38.I make a costs order nisi that the Plaintiffs should pay the Defendant’s costs in respect of the said summons dated 3 January 2025, to be taxed if not agreed (with certificate for counsel).

39.I thank counsel for their assistance.

Mr Byron Chiu, instructed by Hom & Associates, for the 1^st to 3^rd Plaintiffs

Mr Roger So, instructed by Y K Lau & Chu, for the Defendant