O.M. Management Ltd. v. Cliffview Co. Ltd.

DCCJ019031/2001

DCCJ 19031/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 19031 OF 2001

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Coram: Her Honour Judge C.B. Chan in Court

Dates of Trial: 20, 23, 24, 30 and 31 December 2002

Date of Handing down of Judgment: 27 January 2003

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J U D G M E N T

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1.This is a claim by the Plaintiff, the beneficial owner of the premises known as Flat A on the 2nd Floor of Tower 5 of Dynasty Court at No. 23 Old Peak Road, Hong Kong (hereinafter referred to as "Flat 2A") against the Defendant who is the registered owner of the premises known as Flat A on the 3rd Floor of Tower 5 of Dynasty Court, No. 23 Old Peak Road, Hong Kong (hereinafter referred to as "Flat 3A") for damages arising from water leakage at the ceiling of the bathroom of the master bedroom of Flat 2A from the corresponding bathroom of Flat 3A. It was alleged by the Plaintiff that the source of the water leakage came from Flat 3A. The Particulars of the water leakage was pleaded in paragraph 3 of the Statement of Claim as follows:-

(1) There was a leak in the drainage pipes of the sanitary fitments of the en-suite bathroom of the master bedroom of Flat 3A ("Flat 3A Waste Water Drainage Pipe").

(2) The routing of Flat 3A Waste Water Drainage Pipe was connected to the ceiling of the ensuite bathroom of the master bedroom of Flat 2A and then connected to the vertical main drainage pipes mounted on the external wall outside the bathroom.

(3) The location where the leak in Flat 3A Waste Water Drainage Pipe occurred is situated near the drop ceiling of the ensuite bathroom of the master bathroom of the master bedroom of Flat 2A.

(4) Water seeped through the walls of shower tub and bath-tub of the ensuite bathroom of the master bedroom of Flat 3A through the floor slab.

2.Paragraph 4 of the Statement of Claim pleaded that the matters complained of constituted a nuisance caused or permitted by the Defendants, its servants of agents. Further, or alternatively the Plaintiff pleaded that the matters complained of were due to the negligence of the Defendant. Particulars of nuisance were stated as follows:-

(a) failure to inspect or maintain Flat 3A Waste Water Drainage Pipe, adequately or at all;

(b) failure to keep using or permitting to be used the Flat 3A Waste Water Drainage Pipe although the Defendant knew or ought to have known that Flat 3A Waste Water Drainage Pipe or containers of water were not adequately or properly maintained or had been damaged or had become unsafe;

(c) the Plaintiff will rely on the fact that the water had escaped from Flat 3A as evidence of negligence of the Defendants;

(d) failure to take proper precautions to avoid water escaping from the Flat 3A onto Flat 2A;

(e) failure to take such necessary and/or prompt and/or remedial measures or actions to avoid and/or prevent water from seepage down to Flat 2A.

3.It is apparent that there must have been a mistake in paragraph (b) above where the words "failure to keep using" must have been intended to have read "failure to stop using", in the context of the meaning of the sentence.

4.It is noted that the particulars of leakage were confined to 2 areas in the Particulars pleaded in paragraph 3. These are the drainage pipes of the sanitary fitments of the en-suite bathroom of the master bedroom of Flat 3A referred to as "Flat 3A Waste Water Drainage Pipe", and/or the walls of the shower tub and bath rub of the en-suite bathroom which was the area of water seepage.

5.The Defendant denied the two sources of water leakage from Flat 3A as pleaded in the particulars in paragraph 3 of the Statement of Claim.

6.The issues that need to be determined by this Court are:-

(1) Whether the Plaintiff has proved, on the balance of probabilities, the source of the water leakage as pleaded in the Statement of Claim;

(2) Whether the Defendant is liable for loss of damage which had already occurred prior to 23 April 2001, being the date on which the Defendant was first notified of the water leakage.

(3) What loss and damage has the Plaintiff suffered and proved on the evidence.

The Factual Background

7.The Plaintiff entered into a sale and purchase agreement to purchase Flat 2A. on the 23rd March 2001. The Plaintiff became the registered owner of the property on the 23rd April 2001. The Plaintiff first discovered that water was leaking profusely from the dropped ceiling of the bathroom of the master bedroom in an area above the bath-tub on the 21st April 2001. Part of the false ceiling of the bathroom of the master bedroom was removed and it was observed that water appeared to come from Flat 3A. The management company of the building, Kai Shing Management Services Limited was informed. Kai Shing Management Services Limited was asked to notify the owner of Flat 3A to request him to switch off the water supply to the en-suite bathroom of the master bedroom. It was the Defendant's case that they were first informed of the water leakage on the 23 April 2001. On the 27th April 2002, at the inspection of Flat 3A by Mr. Lau Chi Yin, Ivan the Manager of the Defendant, with Mr. Felix Lok Man Fai the Defendant's expert, Mr. Louis Tong of Kai Shing Management Services Limited, and the representative of the Plaintiff, the gate valve of the potable water supply to the bathroom of the master bedroom was turned off. The occupants of Flat 3A were requested not to use the water supply and the shower and bath-tub of the bathroom of the master bedroom.

The 1st Issue

Evidence of the Plaintiff's Expert Mr. Chan Chiu Ying

8.The Plaintiff seeks to prove the liability of the Defendant by the evidence of the Plaintiff's expert witness Mr. Chan Chiu Ying of Samson Wong & Associates Property Consultancy Ltd. (hereinafter referred to as "SWA") Mr. Chan became an Associate of the Hong Kong Institute of Surveyors in 1999 and in 2000 he became a registered professional surveyor. The Expert Report of SWA is at pages 1 to 63 of the Bundle of Witness Statements and Expert Reports. The Bundle of Witness Statements and Expert Reports is hereinafter referred to as "BDWS".

9.Mr. Chan first inspected Flat 2A and Flat 3A on the 4 June 2001. The methodology of the inspection was to trace out the source or cause of the water seepage by means of the following method:-

"The methodology of the inspection was to trace out the source or cause of the water seepage by means of the following checking:-

a. visual inspection - to identify the locations of water stains and water leakage.

b. Touch by hand - to identify whether the water stain in dry condition or in wet condition.

c. Plot a diagram to analyze the pattern of water seepage and trace out the water path.

d. Infra-red scanning - to scan the targeted locations to identify the water path in the concrete stab.

e. Analysis - consolidating the evidences obtained above, to judge and conclude the source of water seepage problem.

Visual inspection and infra-red scanning was conducted on 4 June 2001 by a team of building surveyors led by a qualified building surveyor. The weather during the day of the inspection was fine."

10.Paragraph 7.2.2 of the Report stated the Summary of Defects and Findings in the Master bathroom as follows:-

"Master bathroom

It was noted that a drop ceiling was constructed at the location of the bath-tub and shower tub. A level difference of about 300 mm with other ceiling soffit was formed. The waste water drain pipes of the bath-tub and shower tub were running through the ceiling beneath the unit and then merged together and connected to the vertical stack on the external wall outside the window.

A ceiling mounted galvanised iron (G.I.) tray under the waste water drain outlet of the bath-tub of Flat 3A was noted and the following were the details.

- The edges of the sink were sealed with sealant.

- A sleeve was opened at the center of the sink for the connection of the waste water drainpipes.

- The material of the dominant waste pipes was of galvanised iron painted back but the U-trap immediately under the tray was copper and partially painted white. It was not a good practice to connect copper and galvanised iron as bimetallic action would take place between and the water seepage may happen at the gaps.

- A sleeve was opened at the corner of the sink and connected with a uPVC pipe to the external wall outside the window. And then the uPVC pipe was connected with a soft pipe to allow the waste water to be dropped in the air freely.

Judging from the above findings, we believe that the G.I. tray, copper U-trap and uPVC drainpipes were remedial works to some historical defects, probably water seepage from the upper unit. However, this system was not shown in the original approved building plans retained in the Buildings Department.

Spots of the sealant along the sink were touched wet. The protimeter readings were ranged from 11 to 100 with background reading 20. Infra-red scanning showed that there were two spots of possible water leakage path. According to our observation, we believed that water was seeping through the weak points of the sealant due to overflowing of the tray.

Slow water drops were noted at the sleeve of the sink for connection of U-trap."

11.The close-up view of the G.I. sink at the master bathroom ceiling of flat 2A is at the bottom photo of page 39 of the BDWS.

12.At paragraph 8.0 to 8.2 of the Report at page 15 of the BDWS, the Report concludes;

"As evidence shown, the Flat 2A had suffered from continuous water seepage from upper flat at the locations of the drop ceiling over the bath-tub in the master bathroom. The water seepage obviously originated from the Flat 3A. This portion of waste water drainage pipe where the leak occurred which was situated near the drop ceiling of Flat 2A was used by Flat 3A, it should be the liability of the owner of Flat 3A to remedy the situation.

Although the using of the master bathroom in Flat 3A had been ceased for sometimes as declared by the occupants of Flat 3A, the possibility of slight water leakage from concealed fresh water pipe and flushing water pipe could not be eliminated.

All in all, the provision of a G.I. tray at the underside of the drop ceiling at bath-tub is a good indication of the recurrence of water seepage problem in the past. Its purpose was to collect and divert the water drops. We consider that this is only a passive way to deal with the problem. It is recommended that proper repair action should be taken by Flat 3A to eliminate the water seepage problem from its root."

13.At page 35 of the BDWS, in the infra-red picture on the top left at the page can be seen two circled areas of water leakage. These circles correspond to the circles at the edge of the G I tray along the sealant at the side of the G I tray shown in the photo at the bottom of that page. The infra-red pictures at page 36 show another wet area in the white square in the top left picture. This corresponds with the black square in the photo on the top right of that page depicting the wall of the corridor outside the door of the master bathroom. It also depicts the possible path of leakage.

14.At the hearing, the Building Plan depicting the floor plan of the flats at Tower 3, 4 and 5 of Dynasty Court was produced marked Exh P3A. The en-suite bathroom attached to the master bedroom of the floor plan similar to Flat 2A was shown. The 4 corners of the master bathroom was marked A, B, C & D respectively to identify the respective 4 walls and corners of the master bathroom.

15.Under cross-examination, Mr. Chan stated that the purpose of the G I tray was to collect water from the space under the bath-tub. It's presence suggested a historical problem. The water collected from the G I tray could have come from 3 sources. He did not know the source but the source was one of the following 3 sources:-

1. From a hidden fresh water pipe underneath the bath-tub.

2. From a leak around the drain of the bath-tub.

3. From water splashed from the shower head of Flat 3A of the ensuite bathroom of the master bedroom onto the wall and water flowed down along the wall or along the edge of the wall of the bath-tub.

Evidence of the Defendant's expert Mr. Lok Man Fai, Felix

16.The Defendant's expert Mr. Lok is a member of the Hong Kong Institute of Architects since 1982, a Registered Architect (Hong Kong Architects Registration Board) since 1991, an Authorised Person (Architect) since 1983 and an Associate of Royal Institute of British Architects. Mr. Lok first surveyed Flat 3A on the 27 April 2001. He prepared a report which is at pages 64 to 83 of the BDWS. His findings in the visual inspection is at paragraph 4.1.2. He stated that'

"(a) The master bathroom of Flat 2A apparently was unoccupied for a long time as evidenced by the dust laden sanitary fittings, marble wall and counter top.

Ceiling	-	Painted metal false ceiling with ceiling panels of approximately 600 mm x 1200
Wall	-	marble tiles
Floor	-	marble tiles
Basin counter top	-	marble slab

No water stain was noted on all the marble wall and basin counter top.

(b) The metal panel ceiling was supported by steel frames drilled and fixed to the concrete wall and the ceiling covered the entire bathroom. When one metal panel directly above the bath-tub was slid open by the officers of the property management company, the ceiling void was exposed.

Inside the ceiling void, there was a concrete slab separating the master bathrooms of Flat 2A and Flat 3A. The concrete slab apparently was a sunken slab built from the party wall separating Block 5 and the adjacent units in Block 4. This sunken slab extends from the party wall to the other end of the master bathroom covering the shower unit and bath-tub of Flat 3A from above.

There was a stainless steel tray approximately 450 x 450mm at the sunken slab, directly above the bath-tub of Flat 2A. This stainless steel tray was referred to as the 'G.I. tray' in the SWA expert report.

(c) Water was found seeping through the surface of the sunken slab at various locations and also along the periphery of the G.I. tray. The interface between the periphery of the stainless steel tray and the concrete sunken slab was sealed by silicone sealant. The workmanship of the sealant work was poor and water was observed leaking thorugh the sealant. In addition, other parts of the sunken slab surface were touched wet.

Drainage connection points were observed under the G.I. tray : at approximately 50 mmØ G.I. trap at the middle of the G.I. tray, and an approximately 20 mmØ PVC pipe at one corner.

In this connection, the sketch plan of location of the G.I. tray prepared by Samson Wong & Associates in the expert report is considered correct.

The G.I. trap was connected by other pipes to the drainage system under the ceiling of the master bathroom, whilst the PVC pipe was connected to the wall above the master bathroom window and was left to drain to the outside.

(d) To check whether the leakage observed was directly related to the drain pipe of the bath-tub of the master bathroom of Flat 3A, I ordered the water supply to bath-tub of the master bathroom of Flat 3A to be switched on continuously for 5 minutes.

Had the water leakage at Flat 2A been a result of the drain pipe of the bath-tub from above, the rate of leakage should have been substantially increased. The flow rate of leakage, however, did not vary.

(e) We enquired the tenant of Flat 3A relative to the pattern and time of usage of the master bathroom. The tenant replied that the shower tray has not been used for several months."

17.In relation to the findings of his visual inspection of Flat 3A, Mr. Lok stated as follows,

"(a) The master bathroom of Flat 3A was dry, no water mark on the wall and floor.

(b) Inspecting the master bedroom, we detected the lower part of the party wall (separating Block 5 and Block 4) of the master bedroom was wet. The plaster was so wet that by probing with finger, the plaster felt like paste and fell off from the wall.

We were not allowed by the tenant to remove the furniture in the master bed room to perform further investigation."

18.After the inspection Mr. Lok advised the owner and tenants of Flat 3A to turn off the water supply to the master bathroom as well as refraining from using the bathroom, to the end of observing whether there was direct relationship between the water supply/usage pattern of the master bathroom of Flat 3A and the water leakage at the master bathroom of Flat 2A.

19.He summarized his findings following his inspection on the 27 April 2001 as follows,

"(a) In the inspection of Flat 2A master bathroom, the G.I. tray, the drainage piping, and the existing of the PVC pipe leading from the G.I. tray directly to the outside suggested that the drainage system has been diverted from the original design.

(b) I was informed that after turning off the water supply and discontinuing the use of the master bathroom at Flat 3A, water leakage at Flat 2A persisted. This would suggest that the leakage originated from other parts of the building other than the drainage pipe of the bath-tub in the master bathroom at Flat 3A."

20.Mr. Lok visited Flat 3A again on the 26 June 2001. His findings on that occasion was,

"The findings in the master bathroom and master bedroom of Flat 3A suggested that the water is penetrating through either the apartment 4A directly above or from the neighbouring apartment at Block 4.

In view of the dampness found along the party wall to block 4 at both the master bedroom and the master bathroom of Flat 3A, we suggested to carry out further inspection by infra red camera."

21.Thermographic survey on Flat 3A was carried out by Ms. Infrascan (HK) Ltd. The pictures of the scan at the bottom of pages 82 and 83 of the BDWS, showed the damp areas on the wall in the shower closet of the master bathroom which was along the party wall with Flat 3B of Tower 4 of Dynasty Court. The moisture was greatest at the position of corner A as shown in the buildings plan marked Exh P3A. The scan picture at the bottom of page 81 show some slight damp as a line of green colour at the base of the wall from the base of the wall of the master bedroom near corner A along the party wall with Flat 4B of Tower 4 of Dynasty Court.

22.When asked as to whether there were hidden pipes within the party wall with Flat 4B of Tower 4 of Dynasty Court, Mr. Lok stated that there were pipes conveying potable supply water from horizontal pipes under the concrete floor slab of the master bathroom of Flat 3A which enters into the party wall and is imbedded in the party wall as the pipes extending vertically to the shower head. There would be one such vertical potable supply water pipe imbedded in the party wall for the master bathroom of Flat 3A of Tower 5 and one for the corresponding master bathroom of Flat 3B of Tower 4.

23.Mr. Lok had the following comments on the Report and findings of the Plaintiff's Expert, SWA.

24.In relation to the Protimeter moisture readings, Mr. Lok stated at page 5.1 of his report at page 70 of the BDWS as follows,

"The readings of the Protimeter moisture meter is 'easily affected by the surrounding environment' and is therefore inaccurate. Moreover, the readings shown in the Samson Wong & Associates Property Consultancy Ltd. (hereinafter known as "SWA").

We would propose that the Protimeter moisture meter readings be disregarded."

25.In relation to the Infra-red Scanning Report, Mr. Lok had the following comments,

"The Infra-red scanning report was non-conclusive. The report revealed dampness in part of the ceiling walls but as the report itself admitted, 'unless the bath-tub could be removed, thermographic scan could not be performed since the bath-tub was blocking the possible leakage location'."

26.Further Mr. Lok commented that,

"The SWA expert report checked the conditions in Flat 2A in the following areas:

Master bathroom

Bathroom adjoining the Master bathroom

Corridor adjoining the Master bathroom

Master bathroom adjoining the Master bathroom

External wall outside the Master bathroom

Master bathroom and Master bathroom of Flat 3A

The SWA expert report only indicated dampness in the master bathroom of Flat 2A amongst all the above-mentioned areas.

During the inspection, the bathroom was being re-decorated and all original evidence were removed and/or destroyed, so the SWA expert report could not record whether the original wall and floor finishes were affected by water leakage.

The SWA expert report, indeed, only reported the findings relative to the drop ceiling and the ceiling mounted G.I. tray.

The SWA expert report described the construction of the G.I. tray in detail and pointed out that the connection between the waste pipes could result in water seepage.

However, my client could not have access to Flat 2A and the G.I. tray could not have been installed by others except the owner of Flat 2A. If the SWA expert report alleged that poor workmanship and default in connection works of the G.I. tray caused water leakage, the G.I. tray was installed by the owner of Flat 2A.

The SWA expert report 'believed that water was seeping through the weak points of the sealant due to overflowing of the tray'. Where the water collected at the tray originated from was not known.

Judging from the summary of Defects and Findings in the report, the only water leakage point was along the periphery of the G.I. tray, which was installed by the Flat 2A owner, and there was no evidence relative to the origin of the water being collected in the tray. During our inspection, however the other parts of the sunken slab were touched wet.

The inspector of Flat 2A should have a chance to check the drain pipes of the bath-tub and shower tray of Flat 3A, which are situated at the ceiling of the master bathroom of Flat 2A, and the SWA expert report did not mention any leakages found.

In item 7.4 of the SWA expert report, it is noted that the inspector was aware that the occupants of Flat 3A ceased the use of potable water supply."

27.Mr. Lok concluded in his report at page 71- 72 in paragraphs 5.3.3 to 6.1.2.

as follows,

"5.3.3 Conclusions and Recommendations

The SWA expert report stated item 8.1 that 'The water seepage obviously originated from the Flat 3A. This portion of waste water drainage pipe where the leak occurred which was situated near the drop ceiling of Flat 2A was used by Flat 3A; it should be the liability of the owner of Flat 3A to remedy the situation.'

We would submit that this statement is inaccurate and the conclusion deduced, therefore, is erroneous:

- The SWA expert report did not indicate the location of the above-mentioned "portion of waste water drainage pipe where the leak occurred". In fact, the report did not mention any leakage at the drainage pipes whatsoever.

- The SWA expert report indicated seepage of water around the G.I. tray, but this could not be conclusive that the water originated from Flat 3A.

6.0 Conclusion

6.1 Conclusion

6.1.1 Given the location of the sunken slab, of Flat 2A there are only three possible sources of leakage:

(a) From the bath-tub above

(b) From the shower tray above

(c) From other sources whereby water was collected in the sunken slab and the G.I. tray.

The owner of Flat 2A reported water seepage from the master bathroom of Flat 3A which was in fact, not in use. Further water seepage was reported even when the water supply to the master bathroom of Flat 3A was discontinued.

This is a strong evidence that water may not originate form Flat 3A, and actually originated from the source (c) of the above deduction.

6.11 The thermographic survey at Flat 3A revealed water stored in the party wall between Flat 3A and Block 4. As previously indicated under paragraph 4.1.2(e) of this report, the tenant of Flat 3A had not used the shower compartment for a long time. Our visual findings under paragraph 4.4.2(c) of this report also show that severe dampness persisted around the lower part of the bathroom/master bedroom of Flat 3A along the party wall between Block 4 and Flat 3A. It is our assessment that water is penetrating through the party wall between Flat 3A and Block 4, on to the sunken slab between bathrooms of Flat 2A and 3A and is collected in the G.I. tray constructed and installed by the owner of Flat 2A."

The Comments of the Plaintiff's Expert Witness Mr. Chan

28.In relation to the 5 Minutes water Test conducted by Mr. Lok Mr. Chan stated that if there were any leakage in the drain pipes turning the water taps for 5 minutes is not sufficient to show whether the water leakage came from the drainage pipes. He stated if the water were dripping profusely, from the ceiling, the proper test to follow is to keep turn the water tap on and off for 60 minutes. The record of the speed of the water seepage and also the volume of water at each water seepage point would be recorded. If the water seepage was slow, the 2nd method mentioned earlier would not be sufficient to detect it. He would change the water meter to a water meter that is more sensitive to record the test. Thirdly if the water seepage was slow, he would conduct a water pressure test. The section of the pipe tested would be filled with water and pressure would be applied. If there were no water seepage, the pressure of the water meter would not change. Since he could see that the water dripped slowly, the water test conducted by Mr. Lok was inappropriate.

29.In relation to the opinion of the Defendant's Experts as Regards the Source of Water Leakage from Flat 3B of Tower 4, Mr. Chan stated that it was unlikely because of the following,

a) The party wall at wall in the master bathroom of Flat 3A is a concrete wall. Whereas the wall along corners marked A and B on the plan Exh P3A, the east facing wall which divides the master bathroom with the master bedroom is a brick wall. The two walls are built were different materials. They expand at different rates. This makes the joint of the two walls prone to water leakage.

b) Since the concrete party wall is a continuous wall the chance of water leakage coming through the wall is less. He stated that there should be no holes for any pipes to go through the party wall.

c) The party wall is 330 mm. thick. Unlikely for water to penetrate through because it is a wall without holes as there are no pipes through it. The chance of water seepage is low.

d) There is a concrete kerb between the shower tray of Flat 3A and the bath-tub of Flat 3A. The kerb would stop the flow of water seepage from the show tray to the floor slab under the bath-tub.

e) At the weak point of the wall there is a higher probability of damage and water seepage.

f) A weak area is the drain outlet of the bath-tub of Flat 3A.

g) Another weak point is the fresh water pipes hidden in the floor slab of Flat 3A. The fresh water pipes have joints. At angles of these pipes there are weaknesses.

30.Other possibilities of water leakage stated under cross-examination were,

a. The condition of water tighteness of existing pipes and joints between bath-tub and shower tub and walls.

b. The condition of water tightness of the floor slab under the above tubs.

c. The condition of the sealant applied to the joints of sanitary fitments and the walls and the floor

d. The condition of the shower tub, bath-tub and the marble floor.

e. The condition of drainage pipes.

Has the Plaintiff established the source of water seepage is that as pleaded

31.The evidence points to the collection of water at the G I tray and water seepage from the rim of the tray at the location of the sealant. As to the source of the water that collected at the G I tray, the Plaintiff's expert Mr. Chan was not able to conclude the source of the water leakage. In his oral evidence stated at least 3 likely sources;

i) Hidden fresh water pipes underneath the bath-tub as there are likely weakness in the joints of such pipes.

ii) A leak around the drain of the bath-tub.

iii) Water from the shower head splashed onto the wall and water flowed down along the wall or along the edge of the wall of the bath-tub.

32.The 1st such possible source of water leakage was not pleaded in the Statement of Claim.

33.The Defendant's expert came to the view of the possibility of a 4th source of water leakage that came from the vertical shower pipe of the master bathroom of Flat 3B of Tower 4, Dynasty Court that is imbedded in the party wall between Tower 4 and Tower 5. The basis for his finding is as follows:-

1. The shower in the master bathroom of Flat 3A had not been used for months prior to his first inspection ion the 27 April 2001, according to its tenant. It is unlikely that the water splashed on the wall of its shower tray would have collected to such a capacity in the G.I. tray months later as to cause the leakage onto Flat 2A.

2. The water could not have come from the drainage system of the master bathroom of Flat 3A as the gate valve of the potable water supply to the master bathroom of Flat 3A had been turned off since the 27th April 2001 and the tenant had not used that bathroom since then. Yet the water seepage continued in Flat 2A for Mr. Chan, the Plaintiff's expert stated in his Report that on his inspection on the 4 June 2001, he observed drops of water from the ceiling of the master bathroom of Flat 2A near corner B to the door of the master bathroom adjacent to the edge of the G.I. tray. This was confirmed by the infra-red thermograms of his report at pages 35 to 36 thereof and the protimeter readings at page 27 thereof.

3. He stated that water could not have escaped from the potable water supply pipes of the master bathroom of Flat 3A since 27 April 2001 as the gate valve supplying potable water to the master bathroom of Flat 3A had been turned off since the 27th April 2001 and the water drained out of it by himself on that day.

4. He stated that there is in fact holes in the party wall between the master bathroom of Flat 3A and Flat 3B of Tower 4 as the vertical shower pipes of the master bathrooms of the two flats are imbedded therein.

5. He was of the view that the kerb between the shower tray and the bath-tub of the master bathroom of Flat 3A could not stop the flow of water along the floor slab of the master bathroom of Flat 3A. The reason is that the kerb is likely to be made of concrete block and not poured concrete. Such being the case, there are joints to the concrete block and its water tightness is not that of a poured concrete kerb.

6. The infra-red thermogram pictures attached to his report showed a collection of water along the shower wall of the master bathroom of Flat 3A at the time of his inspection. However, according to the tenant, the shower had not been used for months before his inspection on the 27 April 2001.

7. The visual and hand feel findings of the Plaintiff's expert was on the 4 June 2001 and therefore, owing to the lapse of time the condition had changed.

8. At the time when Mr. Chan prepared his report, the wall between the master bathroom and the master bedroom between corner A to B had been torn down in the renovation work of Flat 2A. Therefore, Mr. Chan had not been able to examine the condition of wall A B.

34.Apart from the aforesaid evidence, I have been informed that no repairs had been done to the drainage system of Flat 3A since the 27th April 2001, yet the water seepage stopped sometime since June 2001. This is despite the evidence of Lau Chi Yin Ivan of the Defendant that since June 2001 the Defendant had obtained possession of Flat 3A from the tenant. He had turned on the gate valve of the potable water supply to the master bathroom of Flat 3A and had every 2 - 3 weeks turned on the water taps of the master bathroom of Flat 3A for 5 to 10 minutes for the water to run and clear the pipes. I have been informed that the new tiles of the master bathroom of Flat 2A are water resistant. Yet despite that, from a consideration of all the evidence, I have to come to the conclusion that the Defendant has not proved on a balance of probability that the source of water leakage came from the two sources as pleaded. The Defendant's expert was not able to be conclusive in his finding that the source of water leakage came only from the two pleaded sources. He added a 3rd source of water leakage not pleaded - that of the potable water supply pipes in the floor slab of the master bathroom. Further, the possible 4th source of water leakage could not be discounted on a balance of probability. Having so found, I find that the Plaintiff has not established their case on a balance of probability as regards the course of the water leakage as pleaded in their Statement of Claim.

35.Having come to this conclusion I need go no further. I therefore make the following order:

"Claim dismissed with an order nisi for costs of the action to be paid by the Plaintiff to the Defendant to be taxed if not agreed with Certificate for Counsel."

Representation:

Mr. Ho Cham of Messrs. Ho & Wong for the Plaintiff.

Mr. Anderson Chow instructed by Messrs. Kwok & Yih for the Defendant.