Case Document

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DCCJ 2853/2005

(consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2853 OF 2005

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BETWEEN

	WONG MAN TAT	Plaintiff
	and
	CHAN YUEN MAN	Defendants
	CHAN YUEN WAH
	CHANYUEN LAI

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Coram : Deputy District Judge Anthony Chow in Chambers (open to public)

Date of Hearing : 3^rd September 2007

Date of Handing Down Decision : 27^th September 2007

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DECISION

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BACKGROUND

1.DCCJ 2853/2005 was a claim by the owner of Flat 1802 (“1802”) of Block C, Westlands Gardens, No. 4 Westlands Road, Quarry Bay, Hong Kong (“the Building”) and against the ownersof Flat 1801 (“1801”) of the Building, due to water seepage from the Defendant’s master bathroom into the Plaintiff’s master bathroom.

2.The Plaintiff applied to this Court for an injunction restraining the Defendants from repeating or continuing the nuisance of water seepage from the shower stall and floor drain of the master bathroom in 1801 to 1802; an order that the Defendants to rectify the same; and damages for: (1) diminution in value of the premises to be assessed; (2) discomfort and inconvenience and disturbance; (3) surveyor fee of HK$20,000.00 and; (4) plumber charges of HK$15,000.00.

3.The Defendants counterclaimed against the Plaintiff for: (1) discomfort and inconvenience and disturbance to be assessed; (2) surveyor fee of HK$10,000.00; and (3) plumber charges of HK$8,500.00.

4.After trial, I granted the Plaintiff’s application for injunction, ordered the Defendants to rectify the water seepage, ordered the Defendants to pay the Plaintiff plumber charges of HK$15,000.00 and ordered the Plaintiff’s claim for diminution in value of the premises to be assessed on a day to be fixed. The counterclaim was dismissed with costs of both the claim and counterclaim to the Plaintiff, to be taxed if not agreed.

5.The Defendants now seek leave to appeal my decision and a stay of execution pending appeal.

THE PLAINTIFF’S INTER-PARTE SUMMONS

6.On 28/8/2007, the Plaintiff filed Inter Parte Summons, under Order 20 Rule 11 of the Rules of District Court, to amend the Judgment dated 18^th April 2007.

7.The Plaintiff’s summons to amend the Judgment and the Defendants’ summons for leave to appeal and stay of execution were heard together. For oblivious reasons, I decided to deal with the summons to amend first.

8.Paragraph 2 of the sealed Judgment states:

“ (T)he Defendant do forthwith rectify the water seepage and the defective shower area (wall and floor tiles) and floor drains in the Master Bathroom of Flat C1801, 18^th Floor, Block C, Westland Garden, No. 4 Westlands Road, Hong Kong.”

9.The Plaintiff’s summons was to delete the words “and floor drain” from paragraph 2 of the Judgment. In paragraph 63 of my judgment I held: “…the only logical conclusion is that the water seeping from the tiles in the 1801 shower stall was the source of water seeping into 1802.” I did not mention the floor drain as a source of the water seepage and the inclusion of the same in paragraph 2 of the Judgment was clearly wrong.

10.Leave was therefore granted for the Plaintiff to amend the Judgment dated 18/4/2007.

THE LAW

11.The applicable test is set out in Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538. Lord Woolf, MR stated the relevant principles as follows:

“ i) The court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

ii) The court can grant the application even if it is not satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

12.Clearly the test has a low threshold, the Defendants are only required to show an arguable case.

13.Twenty-seven grounds of appeal were listed in Messrs. S.H. Chan & Co.’s draft Notice of Appeal. I do not want to reiterate them here, suffices to say that almost each part of my judgment, except the part where I rejected the Plaintiff’s primary evidence, the BDC Reports, was criticized.

14.Part of the grounds of appeal deals with my finding of fact that water seeping from the tiles in the 1801 shower area was the source of water seeping into 1802. This finding was made by a process of inference, drawn when I found the 1801 shower area wall-tiles seeped water under the floor tiles, that it was more likely than not the shower area also seeped water under the wall-tiles onto the partition wall. When there was no evidence of any other source of water seepage, the water seepage under the shower area wall-tiles was more likely than not, the source of water seepage in the 1801 side of the partition wall.

15.The proper approach, when an appeal is against a Court’s finding of primary facts is set out in Ting Kwok Keung v Tam Dick Yuen & Ors [2002] 3 HKLRD at para. 32 to 46. Bokhary PJ’s judgment in Ting Kwok Keung can be summarized as follows :

(1) Appeals against findings of primary facts are approached very differently from appeals against findings of fact made by a process of inference;

(2) Where findings of facts are made by a process of inference, no question of credibility arises;

(3) An appellate court is universally reluctant to reject a finding of specific fact, particularly where the finding could be found on the credibility or bearing of a witness;

(4) On the other hand, an appellate court is customarily willing to form an independent opinion about the proper inference of fact, subject only to the weight which should be given to the opinion of the court below;

(5) Where the judgment turns on an issue of facts, the Court of Appeal must have regard to the nature of that issue of fact and to the advantage enjoyed by a trial judge who received evidence on such issue first-hand;

(6) The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received evidence first-hand, it is nevertheless satisfied that the trial judge’s conclusion on the facts is plainly wrong.

16.My finding of fact was based on a process of inference and the Court of Appeal is entitled to form its own opinion about the proper inference. Leave should therefore be granted.

STAY OF EXECUTION

17.It is trite that an appeal does not operate as a stay. In Hong Kong Civil Procedure 2007 Vol. 1 para. 15/13/1, the learned authors wrote:

“ The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal…. That hurdle is higher than that of chance of success for considering whether leave of appeal should be granted…. Neither the court below nor the Court of Appeal will grant a stay unless satisfied that there are good reasons for doing so. … The Court does not ‘make a practice of depriving a successful litigant of the fruits of his litigation, and locking up the funds to which his is prima facie he is entitled’, pending appeal…. But the Court is likely to grant a stay where the appeal would otherwise be rendered nugatory, … , or the appellant would suffer loss which could not be compensated in damages.”

18.Stay of an injunction pending appeal posts special problems. In Hong Kong Civil Procedure 2007 Vol. 1 para. 15/13/1, the learned authors wrote:

“ The effect of an injunction may be very serious so far as a defendant is concerned and if it proves on appeal to have been wrongly granted, he may be left without remedy. Accordingly it may well be appropriate where a defendant asks for a stay of injunction pending appeal to consider whether the successful plaintiff is prepared to give a cross-undertaking in damages should the appeal succeed.”

19.In paragraph 18 of the affirmation of Chan Yuen Man, filed in support of leave to appeal and stay of execution, the Defendants agreed to make immediate payment of the $15,000 plumber’s fee into Court or to the Plaintiff.

20.By consent the appointment of Assessment for Damages for diminution in value of the premises, discomfort and inconvenience and disturbance has been adjourned. Even if an appointment is fixed, the assessment made and was settled by the Defendants, this can easily be covered in the Plaintiff’s cross-undertaking in damages. Only the injunctions remain a concern for the Defendants.

21.In paragraph 15 of his affirmation, Mr. Chan Yuen Man said:

“ The Injunction required us to rectify the water seepage and the defective shower area and floor drain. It was explained above why it was not precise and specific enough for us to comply. If the attempted rectification is carried out at the site ordered, it is possible that we will discover there is actually no defect to be rectified. If we succeed in the appeal after we replaced all the pipes, drains and tiles, the expenses of the rectification might be wasted and the appeal will be rendered nugatory.”

22.After amendment to the Judgment, the only defective area is the shower area, in fact the only rectification work required is the removal of the wall and floor tiles within the shower area, waterproof the same before reinstalling tiles. Pipes or drains are no longer of any concern. The expense involved in replacing the shower area wall and floor tiles is minimal. In any event, Mr. Cheung stated the Plaintiff’s son, the Plaintiff being in ill health, is prepared to give a cross-undertaking in damages to the Defendants should the appeal succeed. Mr. Wong expressed concern that the cross-undertaking will be coming from son instead of the Plaintiff. I am certain arrangement can be made for the Plaintiff, or someone with his power of attorney, to sign the cross-undertaking, this should alleviate the defendants’ concern on the expenses involved.

23.In paragraph 16 of his affirmation in support, Mr. Chan Yuen Man stated:

“ …As we have already employed plumbers previously to locate and rectify any possible seepage in the alleged locations, but to no avail, it is unlikely that we will be able to comply with the injunction despite further effort to locate the source of the seepage. In the event, we will be found to have breached the injunction and the consequence may be a custodial sentence. If the injunction is proved on appeal to have been wrongly granted, we will be left without remedy after we serve the sentence for the breach.”

24.Mr. Chan Yuen Man’s affirmation was clearly incorrect. The injunction was not “…to locate the source of the seepage.” The source has already been located and the injunction was only “…to rectify the water seepage in the defective shower area (wall and floor tiles) in the Master Bathroom …”. In the event the Defendant replaced the shower area (floor and wall tiles), properly waterproofed the same before reinstalling the tiles and the water seepage continued, I would have been proven wrong. Under the circumstance I dare say no Judge would issue a custodial sentence against the Defendants. The Defendants’ concern about custodial sentence is clearly fanciful.

SECURITY FOR COSTS

23.Mr. Cheung stated if I am minded to grant leave, I should order the Defendants’ to pay security for costs because the Defendants’ have conducted their case vexatiously. I saw no evidence of frivolous, vexatious, or abuse of process by the Defendants. There should be no security for costs.

ORDER

(1) Leave of appeal is granted.

(2) Subject to the Plaintiff giving a cross-undertaking for damages, there be no stay of execution.

(3) Costs of and incidental to this application be costs in the cause of the appeal, with certificate for counsel.