Case Document

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DCCJ 174/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.174 OF 2007

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BETWEEN
	NG MEI LING	Plaintiff
	and
	LUN SIU LAI ALICE	Defendant

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Coram: Deputy District Judge Anthony Kwok in Chambers

Dates of Hearing: 30 June 2008

Date of handing down Judgment: 21 July 2008

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J U D G M E N T

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Introduction

1.This is the Plaintiff’s application for summary judgment made by summons issued on 10^th January 2008 with damages to be assessed under Order 14 rule 1 of the Rules of the District Court, Cap.336H.

The Plaintiff’s case

2.During the hearing, the Plaintiff informed the court that the injunctive relief (1) and (2) as originally sought in the Statement of Claim is not pursued.

3.The Plaintiff’s claims in the action against the Defendant are based on negligence, nuisance and breach of covenants laid down in the Deed of Covenant and under section 34H(1) of the Building Management Ordinance, Cap. 344.

4.The Plaintiff is the registered owner and occupier of 4^th Floor, No. 22 King Kwong Street, Hong Kong (“P’s property”). The Defendant is the registered owner and occupier of 5^th Floor, No. 22 King Kwong Street, Hong Kong (“D’s property”) directly above the P’s property.

5.The Plaintiff alleges that ever since she became the owner of P’s property in July 2006, it was found that watery liquid has been seeping through the ceiling in various parts (including ceiling of the living room and the bathroom) of the P’s property. On or about 25 July 2006, the Plaintiff reported the seepage problems to the Joint Office of the Food and Environmental Hygiene Department and the Buildings Department (“Joint Office”).

6.The Joint Office conducted a “water ponding test” at the bathroom of D’s property on 25 October 2006 (by ponding up some water mixed with fluorescent dye materials on the floor of the bathroom of D’s property), and a re-inspection was conducted on 17 November 2006 for the results of the water ponding test.

7.In a letter dated 29 November 2006 (“NML-12” in the P’s affirmation), the Joint Office reported that the seepage problems had been probably caused by wear and tear of waterproof layers in the bathroom of D’s property. On the same date, the Joint Office issued a letter which copied the same content to the Defendant’s solicitors saying that the signs of the colour water was found in P’s property on 17 November 2006. The Joint Office thereby also requested the Defendant to effect repair as soon as possible or they would issue a statutory notice to the Defendant prescribing a time within which the Defendant would have to have such repair effected.

8.There being no reply by the Defendant and no improvement to the seepage problem, the Plaintiff issued the Writ on 10 January, 2007.

9.After the Writ was issued, on or about 18 January 2007, a joint inspection was finally agreed, which was undertaken by the surveyors of both parties along with the staffs from the Joint Office. Subsequently, in a letter dated 30 March 2007, the Joint Office issued a letter to the Plaintiff saying that the Defendant told the Joint Office some renovation works had already been completed in the D’s property and requesting a follow-up visit to the P’s property (“NML-22” of the P’s affirmation, Bundle pp.202-203).

10.On 1 August 2007, Mr. Chan Wah Wai David, a surveyor engaged by the Plaintiff, inspected both P’s property and D’s property. He stated that “with the repair works which were carried out in the Defendant’s Property, the seepage of water from the Defendant’s bathroom down to the Plaintiff’s property has ceased.” (Bundle p.240).

The Defendant’s case

11.The Defendant denied the fact of water leakage to the P’s Property. In the “Defence and Counterclaim”, the Defendant pleaded that “the probable cause for the damage to the Plaintiff’s Property ….was the failure and/or neglect of the previous owner or occupier of the Plaintiff’s Property to maintain it in a good repair and condition.” (para. 9)

12.The Defendant questioned Plaintiff’s surveyor’s report. In particular, the water ponding test result was come under fire. It was submitted by the Defendant that the water ponding test conducted by the Joint Office only revealed only two locations in the ceiling of P’s Property. The Defendant argued that it only corresponded with two out of the six spots as pleaded in the Plaintiff’s Statement of Claim. Further, it was submitted that the test was carried out under extreme test conditions which did not accord with the ordinary usage of the bathroom.

13.Further, in quite a separate and distinct transaction, the Defendant counterclaims the Plaintiff for damages to be assessed in respect of discharging noxious and offensive gases, fumes and vapours to D’s property.

The Law

14.The policy of summary judgment is to prevent delay in cases where there is no defence : European Asian bank Att-Gen v. Punjab and Sind Bank (No.2) [1983] 1 WLR 642 at 654 (Hong Kong Civil Procedure para 14/4/8)

15.The primary obligation is on the Defendant to satisfy the court that there is a triable issue or question or that there ought to be a trial for some other reasons. (Hong Kong Civil Procedure 2008 para 14/4/3)

16.When the Judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the Defendant it is his duty to give judgment for the plaintiff. (Hong Kong Civil Procedure 14/4/8).

17.The Defendant’s affidavit must condescend upon particulars and, as far as possible, state clearly and concisely what the defence is, and what facts are relied on to support it. (Hong Kong Civil Procedure para 14/4/4)

18.As Hong Kong Civil Procedure 2008 Note 14/4/3 points out (quoting Megarry V.C. in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] F.S.R. 298):- “a desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism”.

19.In considering the Plaintiff’s application, I have borne in mind the test set out in the case Cheung Sau Ling and Ng Bing Hong v. Cheng Lai Chong CACV268/1998 (unreported, 9 April 1999). There was no presumption that the source of leak would necessarily come from the flat above. Hence the burden of proof was on the Plaintiff to show that the source of water came from the Defendant’s flat : Leung Yung Chun & Another and Chan Wing Sang & Others [2000] 1 HKLRD 456

Conclusions

20.In the normal course of event, I agree that if the present case is only left with nothing but conflicting expert opinions by the surveyors of both parties, all of which must be investigated and considered by the court in a full trial. Nevertheless, the source of the water seepage, as confirmed by the independent assessment by the Joint Office using the water ponding test as well as the moisture level measurement taken by the staff of the Joint Office of the bathroom of P’s property, was from the D’s property. More importantly, the water seepage problem at the ceiling of the bathroom of P’s property ceased after the completion of the renovation work done by the Defendant in response to the demand by the Joint Office to effect repair. It further strengthened the inference and for that matter, the correctness of the conclusion reached by the Joint Office, that the source of the water seepage was coming from the D’s property. The conduct and response by the Defendant, in face of the threat of prosecution by the Joint Office, also went to show that the Defendant did not seek to dispute the claims by the Joint Office and proceeded to effect the repair on D’s property as requested which eventually abated and stopped the water seepage problem.

21.Counsel for the Defence could not but sought to argue the methodology conducted by the Plaintiff’s surveyor and by the Joint Office in an attempt to oppose this application. In short, the Defendant merely queries potential obscurities without shedding light on their own case. There is no fairly arguable point advanced.

22.I for one do not see how the difference between the two locations or six spots enables the Defendant to argue that the Defendant is not liable to the Plaintiff. Looking at the context of the totality of the evidence, the difference is immaterial. The reference to the six locations on the ceiling of P’s property in the Statement of Claim represents nothing more than signs or indications of water seepage. The plain fact remains no substance was adduced from the Defendant’s own surveyor’s report to show any other possible cause of water seepage.

23.I am of the view that the evidence adduced by the Plaintiff clearly shows that such seepage was from the D’s property and it was caused by Defendant’s failure to maintain her property in a proper repair and condition. One only needs to refer to the photos (42-59) attached to the Plaintiff’s surveyor’s report to see the dilapidated state and condition of the bathroom of D’s property. The Defendant has failed to discharge the burden to show to this court that there is a triable issue and there is nothing from the Defendant to show there is bona fide defence to her liability for Plaintiff’s claim in this action.

Order

24.For the above reasons, I find that the Plaintiff has proved its case against the Defendant and summary judgment should be given to the Plaintiff for damages and interest thereon to be assessed without a stay pending the trial of the counterclaim.

25.There is no reason why costs should not follow event. I therefore grant a costs order nisi that the Defendant do pay costs of the Summons (including all costs reserved if any) to the Plaintiff to be taxed if not agreed with certificate for counsel.