Cheung Sau Fong v. Ho Chi San

DCCJ 5240/2021

[2025] HKDC 957

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5240 OF 2021

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JUDGMENT

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Introduction

1.This is a case concerning a claim for damages and injunctive relief for water leakage from the Defendant’s property situate at Flat E on the 3^rd Floor, Tower 7, Lakeside Garden, 1 Chiu Tong Road, Sai Kung, New Territories, Hong Kong (“the Defendant’s premises”) into the Plaintiff’s property which is immediate below the Defendant’s premises, ie Flat E on the 2^nd Floor of the same building (“the Plaintiff’s premises”).

2.The Plaintiff is seeking relief for nuisance, negligence, breach of the Deed of Mutual Covenant, and under section 34H(1) of the Building Management Ordinance, Cap 344 (“the BMO”). There is no dispute that the parties have already settled part of the case, being the Plaintiff’s claim for damages. The remaining issue is concerned with the Plaintiff’s claim for injunctive relief.

The Plaintiff’s case

3.The Plaintiff says that since about 2016, there has been persistent water seepage from the Defendant’s premises to the Plaintiff’s premises, causing substantial damage including the appearance of patches of plastering and paint and mould in the master bedroom and master bathroom.

4.The Defendant only became the registered owner of the Defendant’s premises on 3 September 2020. Since about February 2021, the Plaintiff says she had complained to the Defendant of the water seepage. The Plaintiff had even given to the Defendant on about 20 June 2021 a surveyor’s report stating that his premises was the source of the seepage.

5.Subsequently, by letters dated 7 July 2021, 6 August 2021 and 15 November 2021, the Hong Kong Housing Society had demanded the Defendant to carry out inspection and repair work to rectify the water seepage problem. The Plaintiff also demanded the same through her solicitors.

6.Further, the Plaintiff relies on the following provisions in the Deed of Mutual Covenant of the building dated 22 July 1997 (“the DMC”):

Clause 43: “Each Owner shall be responsible for and shall indemnify the Manager and the other Owners and occupiers 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 therefrom and to pay all costs, charges and expenses incurred in repairing or making good any loss or damage to the Land and/or the Estate or any part or parts thereof or any of the Common Areas and the Common Facilities therein or thereon caused by the act, neglect or default of all such persons. In the case of loss or damage which the Manager is empowered by this Deed to make good or repair, such costs, charges and expenses shall be recoverable by the Manager as herein provided and in the case of loss or damage suffered by other Owners or occupiers for which the Manager has elected not to repair or make good, such costs charges and expenses together with all other damages recoverable by law shall be recoverable by the person or persons sustaining the loss or damage.”

Third Schedule, paragraph 5: “No Owner shall use or permit or suffer his Unit to be used for any illegal or immoral purpose nor shall he do, cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage to the other Owners and occupiers for the time being of the Land and the Estate.”

Third Schedule paragraph 39: “Every Owner shall keep and maintain the interior of his Unit and all wirings and pipings thereto which do not form part of the Common Areas and the Common Facilities and all electrical and sanitary appliances thereto in good repair and condition.”

7.It is the Plaintiff’s case that in a joint expert report dated 16 March 2023 (“the JER”), based on the site inspections and testing carried out on 15 November 2022 and 13 December 2022, the Defendant’s own expert agreed that the source of water seepage was from the Defendant’s premises and was due to leakage of the drainage pipes and failure of the waterproofing layer in the master bathroom of the Defendant’s premises. This joint finding was a result of various tests, namely visual inspection, infrared scan, electrical conductivity sensing, microwave scan, fluorescent dye test and the flow meter test.

8.The Plaintiff’s expert further stated that the water seepage had spread to the master bedroom of the Plaintiff’s premises. Although the Defendant’s expert does not agree with this particular finding. In my view, there is a serious possibility that the seepage might have spread on to the master bedroom. However, I do not think there is much difference in the result, as the fact remains that there had been serious peeling off of paint in the master bathroom.

9.It can be seen from the photographs shown in the report that there was severe peeling off of paint on the ceiling of the master bathroom, and there were water stains and mould.

10.The Plaintiff says the Defendant has alleged that some repair works had been carried out, but such works had never been certified to be effective, and the water seepage has continued, and is still continuing. The Plaintiff therefore says it is necessary to seek both positive and negative injunctions to remedy the situation.

The Defendant’s case

11.It is the Defendant’s case that he had taken the following steps, since the Plaintiff made her complaints of water seepage, to remedy the problem:

(1)  Between 23 September 2021 to 30 September 2021, the Defendant caused his contractors to carry out remedial works to repair the waterproofing membranes in the floor of the master bathroom’s floor and shower area;

(2)  After having sight of the JER identifying the source of the water seepage, between 21 July 2023 to 21 August 2023, the Defendant caused his contractors to carry out further remedial works in the master bathroom;

(3)  The Defendant’s solicitors had been corresponding with the Plaintiff’s solicitors seeking proof of continued water seepage after the remedial works were completed in August 2023;

(4)  In fact, the Defendant even took out a summons on 23 August 2024, seeking leave to adduce supplemental joint expert report to ascertain whether the water seepage is persisting, but the summons was eventually dismissed.

12.It is also the Defendant’s case that as late as on 8 October 2024, which was close to the trial, the Defendant had urged the Plaintiff to provide proof of continuing water seepage, and on 10 October 2024, the Plaintiff had through his solicitors provided 30 photographs showing “the present condition” of the Plaintiff’s premises.

13.Upon receiving the photographs, the Defendant has on 14 October 2024 sought to verify that the photographs accurately reflected the present condition of the Plaintiff’s premises by requesting the Plaintiff to allow the Defendant’s representative or the Management Office to enter her premises for inspection. However, the Plaintiff rejected the Defendant’s request.

14.Based on the above developments, the Defendant submits there are no special circumstances in the present case to depart from the norm of not granting a permanent injunction.

15.Further, the Defendant says that as he had already taken all reasonable steps to bring the water seepage to an end, and because of the Plaintiff’s conduct in treating the matter, the mandatory injunction sought by the Plaintiff should also not be granted, especially as the Plaintiff has refused the Defendant’s repeated requests to verify the effectiveness of the remedial work conducted in August 2023 at his initiation.

Applicable legal principles

Nuisance

16.The test for nuisance is set out by the Court of Appeal in 張秀玲及另一人 訴 鄭禮莊, CACV268/1998, 9 April 1999. The test has been adopted in the case of Larbons Limited v Kuo You Weaving Factory Ltd, DCCJ 934/2006, 12 July 2007, where it was stated in para.76 of the judgment:

“…for seepage of water to constitute nuisance at common law, the defendant must be shown to have actual or constructive knowledge that the leakage of water originated from the Defendant’s property. Under this test, “knowledge” can be what the Defendant actually knew, or what the Defendant should have known with normal and reasonable diligence. If the Defendant can be shown to have actual or constructive knowledge that the water seepage originated from the Defendant’s premises, the Defendant will be liable unless remedial action is taken without unreasonable delay.”

17.The Defendant further refers to Chiu Yi Tung v Lo Yue Fung Franky & Anor [2023] HKDC 1117 where Deputy Judge Kay Seto set out the relevant principles in paras. 38 to 40:

“38. It is well established that the essence of a private nuisance is unreasonable use by a man of his land to the detriment of his neighbour. There is no absolute standard as to what amounts to a reasonable user, and what degree of interference, disturbance or annoyance amounts to a nuisance. The requirement that there must be a real interference with the comfort or convenience of living according to the standard of an average man, and the discomfort must be substantial to any person occupying the plaintiff’s premises, is satisfied where there is actual physical damage to the property, and this is routinely applied in water seepage cases: Loke Yuen Jean Tak Alice v Wong Kit Ying & Anor [2019] HKCFI 1895, §§49-51.

39. There is no presumption in law that the source of water leakage necessarily comes from the flat above the affected property. The burden rests on the plaintiff to prove, on the balance of probabilities, that the allegedly defective state of the waterproofing layers and pipes of Flat 3A caused water seepage in Flat 2A. It is not for the defendant to find out the real source of the water seepage or to prove that it did not come from their property. Where there are prima facie various possible sources of water which may have caused the water seepage suffered by the plaintiff, the key question is whether the plaintiff has succeeded in discharging her burden of proof: Hui Ling Ling v Sky Field Development Limited HCA 35 of 2007 (8 May 2012), §23; Loke Yuen Jean Tak Alice (supra), §52.

40. Causation is a question of fact The court, in applying the ‘but for’ test, is not concerned to identify all possible causes, but with the effective cause of the resulting damage in order to assign responsibility for such damage: Clerk and Lindsell on Torts (23^rd ed, 2020), §2-09; applied in Loke Yuen Jean Tak Alice (supra), §§60-62.” [emphasis added]

Negligence

18.As for the related claim for negligence, the Plaintiff says that in water seepage cases, in all likelihood, a claim in negligence would stand and fall with a claim in nuisance. This was the case in Siu Kwok Keung Raymond v Yee Shia Yuen, DCCJ 2131/2012, 31 October 2017 at para. 101. If, for instance, the defendant did not have notice, or took reasonable remedial steps within a reasonable time for the purposes of stopping the nuisance, then, almost certainly, there would not be any breach of the duty of care in negligence either.

Section 34H of the BMO

19.The Plaintiff also relies on Section 34H(1) of the BMO, which provides:

“Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.”

Injunctions

20.As for the circumstances under which a court should grant injunctions, the Plaintiff refers to Let’s Go Investments Ltd v Yeung Sau Hing, DCCJ 4585/2004, 5 December 2005 where the court held at para.57:

“In my view, the Plaintiff has established that that continuance of water seepage from the flat roof of the Defendant’s Premises has caused nuisance to the Plaintiff. The Plaintiff is entitled to a mandatory injunction requiring the Defendant to repair the flat roof of the Defendant’s Premises to make it watertight. The Plaintiff is also entitled to an injunction restraining the Defendant from repeating or allowing the continuance of the water seepage from the Defendant’s Premises to the Plaintiff’s Premises thereby causing nuisance to the Plaintiff”

21.Further, in Lam Ting Kwan & Anor v Teamwell Corp Ltd [2019] HKDC 1593 at paras.130-131, it was held that, as the chance of further water seepage was quite real, injunctions were granted. This was even though the water seepage in the plaintiff’s premises had already stopped in that case. Similarly, even if water seepage was found not to be continuing, an injunction was granted where water seepage may resurface: Chiu Yi Tung at paras.29, 42, 154-155.

22.Also, the Plaintiff submits that a positive injunction for repairs may be granted to include a term similar to the following: “with certificate of satisfaction to be issued by an independent authorised person, building surveyor or engineer to be jointly appointed by the parties and at the defendants’ expenses”: see Chiu Yi Tung above, at para.196.

23.In Chiu Hung Shun Paul & Anor v So Ka Tai & Anor, CACV 136/2005, 5 December 2005), Ma CHCJ (as he then was) summarised the relevant principles for granting injunctive relief as follows:

“16. Some of the relevant covenants being negative ones (see paragraph 3 above), it is then submitted that a permanent injunction should therefore have been granted by the Judge. In my view, the Judge was right to have refused to grant the Plaintiffs such an injunction:

(1) Injunctions are equitable remedy and as such therefore subject to equitable principles. They are to be granted only where necessary, appropriate and just. For example, where damages provide an adequate remedy, an injunction will not generally be granted. Where one is to be granted, the same principles also dictate that an injunction should not be made any wider than necessary; otherwise, for example, the party subject to the injunction may find himself in contempt of court (for this is in many ways the prime remedy for a breach) of an order that goes beyond what the party benefitting from the injunction could realistically have expected to have been entitled in the first place.

(2) In the present case, the Plaintiffs’ complaint was that of a leakage from the Defendants’ premises. The obvious remedy, in the absence of any special circumstances, was simply a mandatory injunction to effect due repairs, no more. This was precisely what the Judge ordered.

(3) I have already mentioned the aspect of a contempt of court. If a permanent injunction were to be granted as the Plaintiffs wish, the Defendants might find themselves facing contempt proceedings even when they had repaired the leakage, should another leakage occur in the future. Mr Chong submitted that if another leak did occur in the future, the Plaintiffs could only succeed on a motion for contempt if they proved a contempt beyond reasonable doubt. This was the protection, he submitted, to prevent an innocent breach from being treated as a contempt. I regret I cannot agree with this submission. The relative ease or difficulty of securing a finding of contempt is not really the point: a party should not be subjected unnecessarily to an order with penal consequences.

(4) Mr Chong then submitted that the Defendants’ conduct justified the imposition of a permanent injunction. He referred to the persistence of leakage. He also submitted that even though the leakage in the present case had been rectified (and for this purpose we allowed new evidence to be adduced on appeal to show this), this was not a bar to a permanent injunction. In making this submission, he relied on The Attorney-General v Birmingham, Tame and Rea District Drainage Board [1912] AC 788 where, in relation to the discharge of effluent into a river, a permanent injunction was granted even though repairs had been effected. I do not doubt that a permanent injunction can be granted in such circumstances but in my view, such an injunction is only justified where (as in the Birmingham Tame, and Rea District Drainage Board case) the risk of a breach remained even despite the repairs or the party in breach has somehow shown by his conduct that unless restrained, he would continue with the breach. A continuous breach, for example, would merit a permanent injunction being granted : - see for example The Attorney General v The Council of the Borough of Birmingham (1858) 4 K & J 528. No such risk exists in the present case, and there was no evidence before us to justify any finding that the Defendants intended to continue to breach the covenants in the Deed of Mutual Covenants.

(5) Lastly, in relation to the Doherty v Allman point, apart from that part of Lord Cairns LC’s speech being obiter dicta, I doubt whether the rigidity of what appears to have been said in the relevant passage quite represents the modern law. In Incorporated Owners of South Seas Centre, Mody Road v Great Treasure Development Ltd [1994] 1 HKC 197, Godfrey JA said this at 202, albeit in relation to interlocutory injunctions:

‘The dictum of Lord Cairns in Doherty v Allman has frequently been quoted and cited with approval. But never, so far as we are aware, so as to exclude altogether the general discretionary considerations which always fall to be considered when the question for the court to decide is whether or not to grant an interlocutory injunction in the circumstances of the particular case.’

It is however, unnecessary to resolve this point finally in this appeal or to state the limits because in my view, when properly analyzed, the nature of the relevant covenants in the present case was positive rather than negative. Although, as can be seen, some of the covenants are framed in negative terms, yet in the context of water leakage or seepage, the obligations on the Defendants is surely a positive one to keep his premises and pipes in sufficient repair so as not to allow water to leak.” [emphasis added]

The witnesses

Wong Suk Wah Peg

24.The Plaintiff, being close to 90 of age, has called her daughter, Wong Suk Wah Peg (“Ms Wong”) to testify on her behalf. Ms Wong confirmed the Plaintiff’s case set out above. In light of the age of her mother, she has been following up on this matter at the material times. She said that from 2016 to 2021, there had been the damage caused to the Plaintiff’s premises by reason of water leakage from the Defendant’s premises, causing serious blistering, spalling, scaling, peeling off of the plastering and paint work. There were also multiple damp patches, water and mould marks on the ceiling, beams and adjacent walls of the affected areas inside the Plaintiff’s premises.

25.The Plaintiff together with Ms Wong had met with the Defendant in February 2021 and complained to him about the damage. In March 2021, as the problem persisted, the Plaintiff had arranged for Hong Kong Survey Limited (“HKSL”) to conduct inspections at both the Plaintiff’s premises and the Defendant’s premises. The HKSL then compiled a report dated 20 May 2021 which concluded that there had been water seepage through the waterproof layer of the floor slab and the adjacent wall (including the shower tub bottom and the adjacent wall) at the Defendant’s premises, causing the damage found at the Plaintiff’s premises. The report was provided to the Defendant on about 20 June 2021.

26.As the problem persisted, a complaint had been lodged with the Hong Kong Housing Society, who had also demanded the Defendant to undertake the necessary repairs.

27.According to Ms Wong, the repairs works alleged to have been carried out by the Defendant by 30 September 2021, if so carried out, were ineffective. Further, no notice of such works had been given to them. In any event, the water leakage problem had persisted even after the end of September 2021, and despite demands, the Defendant has failed to remedy the situation.

Ho Chi San (the Defendant)

28.On the other hand, the Defendant testified himself, and adopted the case set out above. He further stated that when he purchased the Defendant’s premises in 2020, he had not been informed of the existence of the water leakage problem as complained by the Plaintiff. He did not find any problem when he inspected the Defendant’s premises before his purchase. Upon the purchase, he arranged for renovations to be made at his premises, and he eventually moved into the Defendant’s premises in January 2021.

29.He only found out about the leakage problem when the Plaintiff complained to him in around April 2021 about it, and requested him to undertake tests at his premises, which he acceded to. He agrees that he had been provided with the report dated 20 May 2021 compiled by the HKSL, and that he had been subsequently demanded by the Hong Kong Housing Society to undertake necessary repairs to remedy the situation.

30.According to the Defendant, he had soon thereafter arranged for repairs to be undertaken. In around mid-July 2021, he was advised by his contractor, after inspection at the Plaintiff’s premises, that he should stop the water usage in his master bathroom for two weeks to allow for the repair works to be made. Further inspection of the Plaintiff’s premises was then arranged, and repairs works related to the waterproof layer on the floor slab of the master bathroom and shower area of the Defendant’s premises were carried out from 23 September 2021 to 30 September 2021. He was also informed by his contractor that inspection of the pipes in the floor slab of the Defendant’s premises did not show any signs of water leakage. Upon completion of the repair works, he then reported the same to the Hong Kong Housing Society.

31.He further confirmed that he had in 2023 engaged a contractor to replace the entire master bathroom and basically already fixed all the sources of leakage identified in the JER. From the receipt produced by the Defendant, the items of work undertaken in 2023 included the following:

(1)  The floor slab and waterproofing membrane in the bathroom, including the carrying out of a water ponding test (廁所地台及牆身做新造防水層連色水測試);

(2)  New shower tub, walls and floor (新造企缸、浴室牆身及地台瓷磚（不包面料）);

(3)  Replacement of water pipes (更換浴室冷熱水銅喉，及去水膠喉)；

(4)  Replacement of sewage pipes (座廁及面盆改位連排污喉).

32.The Defendant says that despite the repair works aforesaid, the Plaintiff still complains of water leakage, but at the same time had refused to further liaise with him about the actual condition of the Plaintiff’s premises.

Discussion

The issues

33.As referred to at the outset, the parties have already settled in terms of damages, and the remaining issue is whether the injunctive relief (including both permanent and mandatory injunctions) should be granted. One of the issues for determination is whether there is continuing water leakage from the Defendant’s premises, and if so, whether the injunctive relief should be granted.

34.At the outset of the trial, the parties have also agreed upon the production of certain correspondence exchanged between the parties. I shall deal with the relevant parts of such correspondence below.

The pleading point

35.The Plaintiff has also raised a pleading point concerning the remedial works the Defendant says he has arranged to be undertaken in 2023. The Plaintiff says that this allegation has not been pleaded and the Defendant is thus barred from relying on the same at the trial.

36.The Defendant has no qualms with the general principle that material facts ought to be pleaded, and that the basic objective of pleadings is to fairly and precisely define the issues before and at the trial (see Kwok Chin Wing v 21 Holdings Ltd & Anor (2013) 16 HKCFAR 663 at paras.21-26). It is not allowable for unpleaded issues to be “slipped in” when evidence is being given in the hope that the other side is not sufficiently alert to object to it (see Wing Hang Bank Ltd v Crystal Jet International Ltd & Ors [2005] 2 HKLRD 795).

37.The Plaintiff submits that the repairs carried out in 2023 were not pleaded nor even mentioned in the Defendant’s witness statement. The failure to plead this means that the Defendant is not entitled to rely on it as part of the defence. This also deprived the Plaintiff the opportunity to request further and better particulars, serve interrogatories, or even issue a subpoena to call witness, e.g. the contractor.

38.Whilst the Defence does not specifically refer to the carrying out of the repair works in 2023, Ms Lam for the Defendant has pointed out that firstly, there is no presumption in law in water seepage cases that the source of water leakage necessarily comes from the flat above the affected property, and the burden rests on the plaintiff to prove that is so (see Chiu Yi Tung at para.40). Also, in paragraph 7 of the Defence, the Defendant has put the Plaintiff to strict proof of the source and location of the water seepage.

39.Secondly, it is pointed out that the facts, but not the evidence, need to be pleaded (see Hong Kong Civil Procedure 2025, Vol.1, para.18/7/5). As the Defendant has already pleaded in paragraph 5 of the Defence that he has “duly complied with and discharged his duties of care owed to the Plaintiff, if any”, this should be sufficient. Although matters that occurred after the pleadings may be pleaded (the remedial works in 2023 were undertaken after the date of the Defence) (see Order 18 rule 9 of the Rules of the District Court, Cap.336H (“RDC”)), given the issue has been defined as per the pleading in paragraph 5 of the Defence, the repair works completed in 2023 is more a matter of evidence and need not strictly be pleaded. I agree with the Defendant on this point. In any event, there is no prejudice to the Plaintiff as the evidence of the remedial works done in 2023 after the JER has already been disclosed by way of a Supplemental List of Documents in January 2024. This was not challenged at the Pre-trial Review of the case, at which the Defendant has also sought to adduce supplemental expert reports (which was dismissed but for the reasons not affecting this issue here), nor is there any suggestion from the Plaintiff that she has not been apprised of the fact that repair works had been undertaken in 2023. In fact, from the relevant correspondence between the parties’ solicitors, it can be seen that by as early as July 2023, the Plaintiff through her solicitors had already been given notice of such works to be undertaken.

40.I therefore find that the Defence has been sufficiently pleaded in this regard, and the Defendant is entitled to rely on the evidence of the repairs undertaken in 2023. This is regardless of the fact that I have not allowed the Defendant’s application on the first day of the trial to amend his Defence accordingly, for the reason that such an application should not be made at such a late stage.

The liability issue

(i)  Whether there has been continuing leakage

41.There is no dispute concerning the applicable legal principles in relation to water leakage cases. The burden rests on the Plaintiff to prove, on the balance of probabilities, that there is continued water leakage.

42.In this regard, Ms Wong has confirmed during her evidence given at the trial that she and the Plaintiff had moved away from the Plaintiff’s premises in May 2023, and she has only returned on 2 or 3 occasions and only stayed at the premises for 1 to 2 hours on each occasion. Apparently, both of them have not been residing at the Plaintiff’s premises since the remedial works in 2023 had been carried out.

43.The Plaintiff heavily relies on 30 photographs mentioned above which Ms Wong says were taken on 10 October 2024 to show that there was as at that time continued water leakage. These photographs show that there are patches in the ceiling of the bathroom, and there is widespread peeling or falling off of paint. Upon being provided with those photographs, the Defendant has through his solicitors sought to arrange a joint inspection of the Plaintiff’s premises to verify the condition shown on the photographs, but this was declined by the Plaintiff. The reason given by Ms Wong in her evidence for declining a joint inspection was because she feared there would be altercation between the parties. In any event, she says it is not possible to ascertain whether there is any continued water seepage by mere visual inspection.

44.On the other hand, the Defendant’s evidence shows that there had been significant repair works undertaken in 2023 as aforesaid as set out above. Given the evidence is obvious and the Plaintiff has not proffered any basis to dispute the taking place of such works, there is a realistic likelihood that the water seepage, if it existed at all in 2023, had ceased after the repair works were completed. The fact that the 30 photographs show that there were patches and peeling off of paint in October 2024 is not helpful in assisting the Court to determine whether there has been or still is continued water seepage after such repair works. There is no further expert evidence to verify the situation. The condition shown on the 30 photographs may well have been the condition of the Plaintiff’s premises prior to the repair works in 2023 as there is no evidence from the Plaintiff that she or Ms Wong has arranged for renovation of the Plaintiff’s premises since then.

45.In any event, I do not find Ms Wong to be a reliable witness. For example, during the course of her cross-examination, she was asked about the repair works carried out in September 2021. Initially she categorically denied that she had been contacted by the Defendant about the intended repair works to be carried out, but upon further questioning, she eventually admitted that the Defendant did in fact contact her. The same applies to the remedial works carried out in 2023. Initially she denied that she had any knowledge of such works to be or being carried out, but when she was confronted with a letter of the Hong Kong Housing Society dated 21 December 2023 stating that the occupier(s) of the Plaintiff’s premises had refused to allow their staff to carry out inspection and testing after the repair works were carried out by the Defendant, she eventually changed her evidence and stated that this was because the works were said to be for “renovation” and not for “repair”. I do not find such evidence reliable at all. It should have been plain to Ms Wong that the purpose of the intended works were for repairs rather than renovation.

46.As such, I do not find Ms Wong to be a reliable witness, least to say that I would rely on her evidence alone to find that there had been continued water leakage after the remedial works carried out in 2023. This is so even though I accept that with regard to the 30 photographs, they were likely to have been taken on or around 10 October 2024, or were taken recently before the trial.

47.The Plaintiff submits that in the cross-examination of Ms Wong, it was not suggested or put to her that she was mistaken or was not telling the truth about the continued water leakage, and that the Defendant has only said he was unclear whether there had been continued water leakage. However, given that the Defendant did not have update information from any visual inspection himself or through anyone on his behalf, it is understandable that he said he was unclear about it. In other words, he was just being fair in my view when being cross-examined on this. The same applies to it not having been put or suggested to Ms Wong that there was no continuing water leakage. It has not escaped me that this does not detract in any way from the fact that the Plaintiff still bears the burden of proof of such continued water leakage.

48.On the other hand, I do not find anything that would render the Defendant incredible as a witness, despite the Plaintiff’s attempt to say that the Defendant is incredible in claiming that he only know about the water leakage problem when he was requested by the Plaintiff and her daughter, Ms Wong, to undertake testing in April 2021, whereas Ms Wong has said that they had already made a complaint to him in February 2021. The Defendant did say he did not remember what the Plaintiff has said when he met her in February 2021. I do not find anything determinative of the credibility, or incredibility of the Defendant in this regard.

49.The Plaintiff has also referred to the photograph numbered 10 amongst the 30 photographs taken on 10 October 2024. It is said that in comparison with the photograph shown as Fig.7 in the JER which was taken on 15 November 2022, it can be seen at the bottom left of the photograph that there was a significant amount of further peeling on the ceiling of the master bathroom of the Plaintiff’s premises. As such, the Plaintiff says this shows there had been continued water leakage. With respect, I do not think that is the case. On the contrary, it appears to me that the main difference is the colouring of the printed copy of the photograph taken on 15 November 2022 appearing more “yellowish” than the original photograph said to be taken on 10 October 2024. This may be due to the effect of printing rather than an actual difference. In fact, when one compares the two photographs, the patterns of peeling off have practically remained the same without significant deterioration. This, in my view, tends rather to show that there had been no continued water leakage since November 2022.

50.For the reasons given above, and given the objective evidence, I do not find that the Plaintiff has proven, on the balance of probabilities, that there has (at least) been continued water leakage since the repair works undertaken at the initiation of the Defendant in 2023, or that there is any continued water leakage as at the trial.

51.The same applies to the Plaintiff’s fallback position or argument that she would rely on the risk of continued water leakage. Given my finding above, I do not think there is anything to support the Plaintiff’s assertion that there is such a continued risk.

(ii)  Whether the Defendant has taken reasonable steps to stop the nuisance

52.The evidence clearly shows that the Defendant has not delayed in taking steps to remedy the situation upon being notified of the problem by the Plaintiff, and later by the Hong Kong Housing Society, after receiving the report of the HKSL in about June 2021. Repair works were carried out between 23 September 2021 and 30 September 2021, and the Plaintiff and the Hong Kong Housing Society were notified of the completion of the same.

53.There is little dispute by the Defendant that the repair works done in September 2021 were insufficient in terms of what had been found according to the JER dated 16 March 2023. The Defendant thus caused the further remedial works to be undertaken from July to August 2023 to remedy the problem. Despite the suggestion of delay on the part of the Plaintiff, the Defendant has explained in his cross-examination that since the Plaintiff had commenced this action in November 2021, the Plaintiff had refused to liaise with him on the matter. He thus waited till the JER in order to ascertain the extent and actual condition of the Plaintiff’s premises before any further repairs could be sensibly carried out. I accept this explanation of the Defendant. In fact, if the Defendant has taken a delaying tactic or irresponsible approach, he would not have sought to undertake further repairs soon after the JER was issued in May 2023. In fact, it can be seen from the correspondence that the Defendant has through his solicitors consistently tried to liaise with the Plaintiff and indicate to her that he was willing to carry out remedial works so long as the Plaintiff could provide him with evidence of continued leakage. This is different from the scenario of a defendant adopting a mere “wait and see” approach as suggested by the Plaintiff, as there were obviously practical concerns involved at the material times concerning the effectiveness of any tests or repairs to be conducted.

54.As the Defendant has pointed out, it appears from such correspondence that the Plaintiff has taken a stance that so long as there is water leakage, the Defendant would be liable. However, as set out above, the Plaintiff needs to prove both that the water leakage has originated from the Defendant’s premises, and that the Defendant has failed to take reasonable steps to stop the nuisance (see Chiu Yi Tung above, at para.137).

55.Given the above circumstances, I do not find there has been unreasonable delay on the Defendant’s part in this respect in remedying the situation. To the contrary, I find that he has taken reasonable steps to stop the problem.

56.On the other hand, as submitted by Ms Lam, it appears from both the correspondence exchanged between the parties, and the evidence of Ms Wong herself during cross-examination, that the Plaintiff had been uncooperative in allowing the Defendant to arrange for inspection of the Plaintiff’s premises and to ascertain whether there was persistent water leakage as claimed by the Plaintiff.

57.The Plaintiff heavily relies on the fact that she has through her solicitors offered to seek an expert’s certification of the Defendant’s repairs in 2023 to resolve the matter, and says that the Defendant has rejected the offer, and instead subsequently offered in December 2023 to conduct a joint inspection by the experts on both sides to ascertain whether the water seepage had ceased. However, apparently this was not accepted by the Plaintiff either. Each party has taken their own considerations into account that led to the failure to reach consensus in this respect. However, there is not much the Court can derive from these attempts in terms of reaching a conclusion that either side had been thoroughly unreasonable in not accepting the proposal made by the other side.

58.It must be reiterated that in any event, the burden rests on the Plaintiff to prove that there is or has been continued water leakage.

Judgment

59.For the reasons given above, I do not find that the Plaintiff has established her case of continued leakage on the balance of probabilities.

60.In any event, given the active steps taken by the Defendant since the initial stage of the matter in 2021, I find that he has taken reasonable steps to stop the nuisance.

61.Further, even if I am to consider whether to grant the injunctive relief sought (including both permanent and mandatory injunctions), I will not grant such relief as it is clear from the evidence that it was the Plaintiff who has been refusing to cooperate with the Defendant to arrange for inspection and test at the Plaintiff’s premises despite numerous and consistent attempts on the Defendant’s part to liaise with her. As can be seen from the authorities above, the granting of an injunction is an equitable remedy, and is therefore subject to equitable principles. They are to be granted only where necessary, appropriate and just. In the circumstances of this case, this is certainly not so.

62.I therefore dismiss the Plaintiff’s claim, and make an order nisi that the Plaintiff shall bear the Defendant’s costs of the action, with certificate for counsel for the trial.

63.Lastly, I would like to thank counsel on both sides for their helpful assistance.

Mr Ian Chow, instructed by Chris HM Yuen & Co, for the Plaintiff

Ms Flora Lam, instructed by Winnie Leung & Co, for the Defendant