Costantino Gonnella v. Dart Co Ltd

DCCJ2524/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2524 OF 2004

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BETWEEN

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Coram : H. H. Judge Chow

Dates of Hearing : 21^st-24^th April and 28^th May 2008

Date of handing down Judgment : 25^th July 2008

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JUDGMENT

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1. The Plaintiff was the former owner of the premises known as Apartment 4B, Belgravia Heights, No. 27, Tai Tam Road, Hong Kong (“4B”), whereas the Defendant is the owner of 5B, Belgravia Heights (“5B”).  5B is directly above 4B.  On 14 May 2004, the Plaintiff commenced the present action against the Defendant for (1) damages for annoyance and loss of enjoyment; (2) damages for rectification of defects in respect of leakage of water to 4B.  The Plaintiff also prayed for injunctive reliefs, but as he sold out his 4B on 31 August 2006, he subsequently abandoned this relief.

2. The Plaintiff commenced to occupy 4B since 1993.  There was no water seepage problem with the ceiling of 4B during his years of occupation until the time renovation work of 5B was carried out.  The renovation work of 5B commenced in October 2001 and continued for many months.  In or about middle to late 2002 he noticed water coming down substantially from above and affected most of the areas of 4B.  With his fingers he could easily feel water on the wall, especially in the kitchen area.  Plaster also fell down from the ceiling.  On one occasion he went upstairs and saw that all the floor of 5B had been dug open and workers were laying new pipes on the floor.  He asked a Mr. Joey Ying and a Ms. Doris Ying of the Defendant to put things right.  In early 2003, the contractor who did the renovation work at 5B repaired the ceiling of 4B by applying new plaster and paints to all the affected areas.  Water was still leaking but its scale reduced.  But that contractor failed to used anti-mould materials.  Hence moulds appeared on the ceiling until Yiu Sing Engineering Co. did their painting work on the ceiling in May 2004.  In early May 2005 he engaged someone to apply new plaster and re-paint the affected areas of his master bed room.  Some time before 25.7.2005 he noticed that certain areas of the ceiling of the master bed room were again bulging out under the pressure of water leakage from above.  Some time after the contractor had done the repair work to 4B, water seeped into the bathroom again and the repainted work started to fall down.  He talked to the Yings, but they refused to do any remedial works.  I have no hesitation to find that the Plaintiff is an honest man, and what he said in court is truthful.

3. The Defence Counsel submits that the evidence relating to the Plaintiff’s “hand feel” dampness or wetness on the ceiling is, if not a fabrication, wrong and unsupported by any objective evidence.  Various inspection at different stages show that the ceiling had been dry.  In my judgment there is nothing more reliable for the hand to feel the dampness or wetness on the ceiling.  I do not accept his submission. 

4. There was a joint inspection of 4B on 13 February 2003.  It was observed that “the plastering on the ceiling near the doorway were peeled.  When touch the surface, the plastering was chalked but dry.  The paint film bubbled and burst but there is no obvious sign of water marks was observed on that surface.”  This observation is not disputed by both parties.

5. On 6 March 2003 East Point Property Management Ltd. (“East Point”), the management company of Belgravia Heights, made a memorandum recording the water seepage at Flat 4B.  Part of its contents are as follows:-

“6. Observation and Findings:-

Minor water patches and marks inside the bathroom were observed where drainage pipes penetrated the concrete ceiling (near the exhaust window).  Meanwhile, the plastering on the ceiling near the doorway were peeled.  When touch the surface, the plastering was chalked but dry.  The paint film around bubbled and burst but there is no obvious sign of water marks was observed on that surface.

The said defects had been made good a few months ago by the agent of flat owner of flat 5B according to the information given by the flat owner of 4B.  But the symptom had re-appeared again recently.

On the floor above, 5B, the original bathroom and configuration had altered.  After liaised with the agent (Harry Li) of flat 5B, he had agreed that the defects caused to the flat below were his responsibility and would make good them in due course.”

                              (Underlines provided)

6. Harry Li, the project manager of Jing Kung Interior Engineering Company (“Jing Kung”) which did the renovation works at 5B, did not refute that he had made the response underlined above.  He explained in court that the defects were caused by the U-trap.  He said that it is the rusty screw of the U-trap that caused the leakage.  The rusty screw is below the floor ceiling of 4B.  If it had leaked, water would fall out from that part of the U-trap.  In my judgment, water would not travel back and upwards, against the force of gravity, and spread out to cover the ceiling of 4B.  If he had intended to talk about the U-trap and the screw there, in connection with water leakage, he could simply have said about this.  This is about the cause of leakage.  In the passage quoted above, he was talking about the “responsibility” relating to defects, and not about how the “causation” of defects.  I find that he did not qualify his statement at the time of making the statement.  He only qualified his statement when giving evidence.  I find that he was making an admission of liability when he made the statement.  Para. 5 of the affirmation of Doris Ying (Doris Lee) clearly shows that the defects at 4B was caused by the renovation work.  In para. 5, Doris Ying said “Harry Li suggested that certain damage at Flat 4B were caused by Jing Kung.” In his affirmation, Harry Li said “After I had inspected Flat 4B … … I had also expressed my views on the damage and the causes to Doris Lee when she paid visits to Flat 5B during the renovation period.  I recalled that I had then expressed my view that some of the damage was not caused by the renovation works of Flat 5B ……” The clear implication is that some of the damage at 4B was caused by Jing Kung in carrying out the renovation works to 5B.

7. Defence Counsel says that “Mr. Harry Li also stated that even so, as a gesture of goodwill, Mrs. Doris Ying still instructed the Defendant’s contractor (Jing Kung) to carry out the rectification works to all the alleged damage at 4B regardless of their causes.”  “It is clear that the Defendant’s said offer was made in order to maintain harmonized neighbouring relationship rather than as an admission of liability since the various tests conducted by the governmental departments confirmed that the cause of seepage was not from 5B.”  The submission is not correct.  In her affirmation dated 1^st Sept., 2005, Doris Ying says:-

“5.          During the latter part of the renovation in or about November 2001, my husband, Ying Tze Wah, received a call from the Plaintiff, the registered owner of Flat B, 4^th Floor, Belgravia Heights, No. 27 Tai Tam Road, Hong Kong (“Flat 4B”) complaining water seepage occurred in his premises.  Following the complaint, I understood that Ying Tze Wah had asked Harry Li to look into the matter.  After the inspection, Harry Li spoke to me on one occasion when I was at Flat 5B.  Harry Li suggested that certain damage at Flat 4B were caused by Jing Kung whereas others were due to natural wear and tear.  As I cherish neighbour relation and even though Harry Li had expressed that it should not be our responsibility to repair all of the alleged damage at Flat 4B, I nevertheless instructed him to arrange for necessary works to rectify all the defects and damage noted at Flat 4B at the material time to be carried out irrespective of their causes.”    

(Underlines provided)

Clearly one of the reasons for repairing the damages is that certain damages at Flat 4B were caused by Jing Kung, as suggested by Harry Li.  The good will allegedly shown by Doris Ying is only related to the repair of those damages which were not caused by Jing Kung.  For those damages caused by Jing Kung, it is the responsibility of the Defendant to have them repaired.

8. On 14.3.2003, Doris Ying wrote to East Point, saying:-

“…… I would like to request you to contact the owner/occupier of Flat 4B of Belgravia Heights to arrange the time for our contractor to rectify the drainage problem in the bathroom of the second en-suite.  The work has to take a week to finish.

I would like to emphasize that it is our intention to rectify the problem as soon as possible to prevent it from getting worse.”

(Underlines provided)

The drainage problem is the leakage in the drainage system.  Harry Li was responsible for carrying out the renovation works to 5B.  He must have known what caused the defects to at the premises of 4B.  He must have informed Doris Ying about this.  That is why Doris Ying mentioned about drainage problem in the letter of 14.3.2003.  This letter is consistent with the admission of liability made by Harry Li as contained in the memorandum of East Point dated 6 March 2003.

9. In respect of the letter dated 14.3.2003, the Defence Counsel submits, “at that time, no expert was engaged by any party and no test had been conducted.  There was no evidence at all as to the cause of the alleged water seepage.  There cannot be any, or any valid, admission made by Mrs. Doris Ying on behalf of the Defendant.  She could not admit something that she did not know.”  This is not correct.  I do not accept that Doris Ying was admitting something she did not know.  She relied on what Harry Li had told her, and he must have known what and how the renovation works at 5B carried out by Jing Kung had caused the defects at the premises of 4B.

10. The Plaintiff instructed David C. Lee Surveyors Limited to make a report relating to the cause of the water leakage.  Mr. James Law of David C. Lee Surveyors Limited inspected 4B on 21 November 2003.  According to the report compiled by James Law, on the ceiling of the master bathroom there were damp patches, peeled paint, swelled plaster, and loose plaster and two horizontal plaster cracks.  On the ceiling of the guest bathroom, patches of mould growth and a horizontal crack were found.  It concluded that:-

“The source of water seepage could only be originated from the leakage private drainage pipes serving Flat 5B, the waste water leaked out and seeped through the concrete floor slab of Flat 5B and caused the defects at plaster and paints of the ceiling of the master bathroom of Flat 4B.”

The Defence Counsel asked me not to attach weight to this report because James Law did not testify in court.  But this conclusion is consistent with other pieces of evidence adduced in this case.  I attach weight to it.  But even without such report, I would still find that the Defendant is liable for the seepage of water from 5B to 4B.

11. Mr. Harry Li in his letter dated 8 March 2004 agreed to “change the screw on the U-trap and repaint the ceiling of the damaged area”.  The Plaintiff refused the proposal because he knew that such proposal would not work.  The U-trap is part of the floor drain serving Flat 5B.  The U-trap for the floor drain and shower tray were embedded in the floor slab of Flat 5B with the cleaning eye and the bottom part of the U-trap exposed under the ceiling of Flat 4B.  Therefore the U-trap is below the ceiling of 4B.  The screw was at the bottom of the U-trap protruding out of the ceiling.  It could not have done the damage.  The water at the U-trap could not go back and go upwards, against the force of gravity, to cause the damage.  The Plaintiff’s reason for refusing the proposal is reasonable.

12. On 27.4.2006, the management’s contractor carried out a colour powder test in the bathroom of 5B.  The result is that there was obviously leakage in the drainage of the floor slab.  The leakage was from a hole discovered in the pipe. 

13. Colour stain was observed by the Plaintiff at the ceiling of store room adjacent to the subject bathroom.  The stain was brown in colour.  The Plaintiff said that the stains looked very much like the powder used on 27 April 2006.  The brown colour water was only poured into the lavatory seat, standing shower partition, wash basin and floor drainage.  So it must be a combination of these four parts that leaked.  The brown stains on the ceiling of the storeroom must have come from a combination of these four parts.  The Plaintiff’s Counsel submits that the brown coloured water could not have leaked into the ceiling of the storeroom unless a combination of the four facilities leaked.  I accept the submission.

14. The Defence Counsel said that the stains only appeared four months from the date the test was done.  This is not correct.  It is only when the Plaintiff was emptying the storeroom four months after the test that he first noticed the stains.  In any event the stains must have been there for a long time.  The Defence Counsel also attacked this test on a number of grounds.  He said that this result could not be reconciled with the blue water dye test conducted by the Plaintiff’s expert just 5 days before.  But no blue colour appear on the ceiling of 4B at all.  When brown colour water and blue colour water are mixed up, the result is usually brown colour.   This depends on the volume of dyes used in the tests.  In any event, there is not necessarily a conflict in the results of the tests.  In any event, if it can be established that it is reasonable for the Plaintiff to commence this action on 14.5.2004, then it should succeed.  So what really is important is the evidence before that date.

15. On 28 September 2006, the Defendant wrote to the new owner of 4B:-

“As we …… have agreed previously …… we will instruct our contractors to carry out the following works, namely,

(a)                    To demolish a part of the ceiling slab surround the existing metal U-trap and drainpipe at all toilet area. ……

(b)          To demolish the existing metal U-trap and drainage pipe at all toilet area.  (This is the U-trap and drainage pipe of 5B inside the ceiling slab of 4B).

(c)          Install the new U-trap and drainpipe at all toilet area, replace them with new U-trap and drainage pipe.”

The Defendant must have known that the drainage pipes were leaking, and hence had them replaced.

16. The seepage from 5B to 4B has never stopped since the end of 2001/early 2002.  In early 2002 the Defendant attended to the damages, but it did not look into the cause of the seepage and rectify the cause of seepage.  The cause of seepage was not rectified at the material time.   The damages occurred again in 2003, and continued.  When the writ was issued, there was leakage of water into the slab.  This had not been abated by August 2006.

17. Under clause 3(f)(ii) of the Deed of Mutual Covenant of Belgravia Heights, the common parts services and facilities include:-

“The sewers, gutters, drains, water courses, cables, wells, pipes, pumps, tanks, wires, sanitary fittings, fire lighting and refuse disposal equipment and other apparatus and equipment used or installed for the benefit of the said Building as part of the amenities thereof and not by any individual owner for his own use or purposes.”

18. Clause 3(f)(i) provides that the owners of Belgravia Heights have to bear:-

“The cost and expenses of keeping in good and tenantable repair and condition the foundation, the side walks, main walls, supports beams, gutters and all external parts of the said Building and all sewers, drains, well, electric pump, pipes and conduits intended for the general service of the said Building …… and other common area of the said Building.”

The leaking pipes only served 5B exclusively.  They are not common facilities.  They are 5B’s responsibility.  So the repair responsibility of these pipes are to be borne by the Defendant.

19. The Defence Counsel submits that in respect of the alleged water seepage in late 2001/early 2002, no expert was engaged by any party and no test was carried out to find out the cause of the alleged water seepage.  He concludes by saying that ‘In other words, there is no evidence that the decoration works carried out at 5B between late 2001 and early 2002 caused the alleged water seepage to the ceiling of the “master bathroom” of 4B’.  This submission is not correct.  If there had not been the renovation works at 5B, there would not have been the seepage of water.  This is evidence proving that renovation works caused the problem of water seepage.  Then there are the admissions made by Harry Li and Doris Ying.  The expert evidence only helps to show in detail how the renovation works caused the water seepage.  Without such expert evidence, there is no evidence to show in detail how the renovation works caused the water seepage, but the renovation works itself is the causation of the water seepage.  No other factors have been adduced to show that this is not the case.  I find that the renovation works at 5B caused the water seepage to 4B.

Defence Councel subsists that tests by various government departs show that the cause of water seepage was not from 5B.  On 7.6.2004, food and Environmental Hygiene Department wrote to Mrs. Doris Ying, saying,

“A complaint regarding water seepage was received by this department on 8 August 2003.  In order to investigate the source of the seepage, colour dye test was conducted at drainage outlets in the captioned premises on 21 August 2003.  However, analytical report from Government Chemical revealed that the test result was negative.”

It is not known how the test was carried out.  The meaning of the phrase “the test result was negative” is imprecise.  Without such detail and without the analytical report I am not able to agree to the Defence Counsel’s submission that “there was no evidence that the cause of water seepage was from 5B”.

20. On 17.10.2003 FEHD wrote to the Plaintiff, stating, “…… after a series of inspections and test conducted in the past few months, the cause of water seepage cannot be ascertained within the means of the Department.”  Clearly this cannot be taken to mean that the cause of seepage was not from 5B, as suggested by Defence Counsel. 

The Defendant’s expert evidence

21. The Defendant’s expert relies on infra-red scan to support his findings.  By his method the Defendant’s expert could ascertain if there is water leakage by way of temperature difference caused by different wetness on surfaces of walls.  On the report dated 10.11.2004 contains the following finding:-

“6.1        Based on the findings above, the peeled off paint around the U-trap for floor drain at the bathroom facing the mountain of Flat 4B should be caused by water seepage from the U-trap.  It was verified by the infra-red scanning which indicated that moisture penetration was found at the U-trap.  Apart from that, no water leakage or moisture penetration was found at all other areas of the guest bathroom and the bathroom facing the mountain.”    

22. On 22.4.2006, another inspection was conducted to the bathroom facing the mountain  (the master bathroom).  Water test was carried out to the drain outlets of the shower tray, basin, water closet and floor drain of the Bathroom of 5B by the Plaintiff’s expert.  The Defendant’s expert inspected the ceiling of the Bathroom of 4B before and after the water test carried out by the Plaintiff’s expert.  No sign of water seepage and no damp patch was found.  Based on visual inspection and thermographic survey, no sign of water seepage and no damp patch was found at the ceiling of the Bathroom of 4B.  That means to say, there was no leakage of water from the U-trap.

23. The U-trap was not replaced during the period from 2004 to 2006.  In the November 2004 report it was said to be leaking, but in April 2006, it was not leaking.  This is totally incredible.  In light of such contradictions I attach no weight to the Defendant’s expert reports.

24. The Plaintiff paid $4,600 to his contractor for repainting the ceiling in May, 2005.  The Defendant submits that it was wholly unnecessary for the Plaintiff to incur such expenses as the Defendant had repeatedly offered to repaint the ceiling.  For no justified reason, the Plaintiff rejected the offer.  Therefore it was his deliberate decision to incur such unnecessary expenses.  This sum of $4,600 should not be awarded to the Plaintiff, even if the Defendant is held liable in this Action.  The repainting work is necessary.  There is nothing more he could do.  The offer made by the Defendant is not only to repaint the ceiling, but also to rectify the alleged “defect in the U-trap”.  The Plaintiff is justified to reject the rectification in the U-trap.  So he is entitled to reject the repainting work offered by the Defendant.

25. The Plaintiff claims for damages for annoyance and loss of enjoyment in the sum of $200,000.  The loss to be compensated is the diminution in the value of the land, and not the discomfit and inconvenience suffered by those residing there.  There is no evidence that due to the seepage of water, the utility value of 4B was diminished.  Therefore I dismiss this claim.   I order that the Defendant do pay $4,600 to the Plaintiff, with interest thereon, at judgment rate, commencing from 14 May 2004, until satisfaction.

Costs

26. I make an order nisi, to be made absolute in 14 days’ time, that the Defendant do pay costs of this action to the Plaintiff, to be taxed, if not agreed.

The Plaintiffs:      represented by Mr. Chan Siu Chung of M/S. S.C. Chan & Co., Solicitors.

The Defendants:  represented by Mr. Joeson Wong, instructed by M/S. Johnson, Stokes & Master, Solicitors.