Vast Team (Hong Kong) Ltd v. Hong Kong Marine Contractors Ltd

DCCJ 5903/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5903 OF 2008

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BETWEEN

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Coram: HH Judge Lok in Chambers

Dates of hearing: 25 August & 1 September 2011

Date of handing down of Decision: 9 September 2011

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DECISION

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1.This is an application by the Plaintiff for leave to appeal against my judgment dated 15 June 2011 (“the Judgment”) in favour of the Defendant.

2.In this Decision, I use the same nomenclatures and abbreviations adopted in the Judgment.

3.This case arises out of a complaint of water leakage in a multi-storey building.  The facts of the case have been fully set out in the Judgment and I do not want to repeat the same here.  The quantum of the Plaintiff’s claim was agreed in the sum of $90,000, and the only issue was whether the water leakage was originated from the Defendant’s property at Flat 10A.

First ground of appeal

4.In this application, the Plaintiff has put forward 3 grounds of appeal.  The first ground is that I erred in the factual finding that leakage from the external wall of the Building remained a likely cause of the water leakage problem found in the Plaintiff’s property at Flat 9A.

5.According to Mr. Chung, counsel for the Plaintiff, there was serious water leakage in Flat 9A in February 2008.  The occupants in Flat 10A then ceased using the master bathroom of the flat for about a month and the situation improved.  In such case, the water should have originated from somewhere in Flat 10A.  Further, there was no repair work carried out in the external wall of the Building at the relevant time, and so it is very difficult to explain why the water leakage problem in Flat 9A simply improved if the water was coming from the external wall of the Building. Hence, the external wall could not have been the source of the water leakage.

6.As mentioned in paragraph 38 of the Judgment, I acknowledged the force of such argument.  But with respect, Mr. Chung just focuses on the events in early 2008.  In ascertaining the cause of the water leakage, the court need to take into account the whole chain of events between February 2008 up to the date of the trial.  It is not in dispute that the water leakage problem had remained serious for a long period of time.  The leakage slightly improved after May 2009 but the problem was not completely solved.  After the Plaintiff lodged a complaint to the Joint Office in May 2008, the staff of the Joint Office and its consultant had carried out extensive investigation in the two flats to ascertain the cause of the water leakage but without any success.

7.In establishing the claim, the Plaintiff had to prove, on the balance of probabilities, that the water was originated from somewhere in Flat 10A.  The Plaintiff could prove such allegation by direct evidence, or it could ask the court to draw such inference from the circumstantial evidence of the case.  It is common ground between the parties’ experts that if the water was originated from Flat 10A, it had to come from the water supply pipes of the bathtub of the master bathroom before May 2009 and from the crack in the marble wall of the shower cubicle after May 2009.  In paragraphs 25 to 33 of the Judgement, I have given a detailed analysis as to why I ruled out those two possible sources as the causes of the water leakage.  This was a finding of fact after careful consideration and analysis of the evidence.  If these sources were not the causes of the leakage, then the Plaintiff had simply failed to discharge the burden of proving that that the water was originated from Flat 10A.

8.If the water did not come from Flat 10A, where did it come from?  After listening to the expert evidence for 3 to 4 days, it is regrettable to say that there was no satisfactory answer.  External wall remained a likely source of the leakage, in particular, there was no or very little water leakage after the completion of certain repair work in the external wall of the Building in April 2010.  Yet as mentioned in paragraphs 35 to 38 of the Judgement, such theory was not without difficulty.  Nevertheless, if the Plaintiff says that external wall was not the likely source of the leakage, then as shown in my analysis in the Judgment, neither was the water likely to have leaked from the two possible sources in Flat 10A.  It might be the case that, contrary to the opinion of the experts, that the water was leaking from some other parts of the Building including the residential apartments above Flat 10A.  This was possible as the experts agreed that water could have passed through the cracks in the wall bypassing Flat 10A.  Even if the court was not able to ascertain the true source of the leakage, balancing the unlikelihood of the two different theories about source of the leakage, I do not accept that the Plaintiff’s theory about the cause of the leakage was more probable to be right than that of the Defendant.  Further, it was not the duty on the part of the Defendant to prove the actual cause of the leakage (see paragraph 21 of the Judgment), and there was insufficient evidence for the court to draw the inference that the source of the leakage was in Flat 10A.  Hence, the Plaintiff’s claim should fail.

9.In his submission, Mr. Chung submits that there might be a combination of sources for the water leakage.  Taking into account what happened after the occupants in Flat 10A ceased using the master bathroom for about a month, Mr. Chung says that at least one of the sources of the leakage was in Flat 10A.  However, the water leakage did not stop in May 2009, and the facts of the present case tend to suggest that there was or were some unknown source or sources not in Flat 10A causing the water leakage over a significant period of time.  Without knowing what the other possible source or sources would be, it was very difficult for the court to draw the inference that at least one of the sources had to be present in Flat 10A.  Further as I have mentioned above, I preferred to accept the opinion of the Defendant’s expert about the cause of the leakage, and I did not find that the possible sources identified by the experts in Flat 10A were likely to be actual causes of the leakage. In such circumstances, it is very difficult for the Plaintiff to challenge my factual finding that the Plaintiff had failed to prove, on the balance of probabilities, that the source of the water leakage was in Flat 10A.  I therefore do not find that there is any reasonable prospect of success in the first ground of appeal.

Second ground of appeal

10.The second ground of appeal is that I erred in the finding of fact that water supply pipes pressure tests were conducted by the staff of the Joint Office on 21 May 2008 and subsequently by the Water Supplies Department (see paragraph 30 of the Judgment).

11.There was certainly some confusion in the evidence as to whether such test was conducted on 21 May 2008.  The letters issued by the Joint Office dated 25 July 2008 and 30 April 2009 confirm that such test was carried out by the staff of the Joint Office on 21 May 2008. However, the report prepared by the consultant of the Joint Office, DCL Consultants Limited (“DCL”), seems to suggest otherwise.  As I see it, it is not clear in the DCL’s report as to whether such test had only not been carried out by DCL itself, or whether such test had never been carried out at all.   Even counsel and experts were confused about such matter at the trial.  The Plaintiff’s expert, Mr. Patrick Lau, was sometimes cross-examined on the basis that such test was carried out and sometimes not.  Having spent so much time preparing the case, both counsel and experts did not pay much attention to such discrepancy in the documents.

12.Neither did the parties bring the attention of the court to such confusion at the trial, and now the Plaintiff seeks to benefit from such confusion.

13.In my judgment, there is ample evidence to support my finding that the water supply pipes pressure test was carried out on 21 May 2008.  As such test was carried out by the staff of the Joint Office, the confirmation contained in the two letters issued by the Joint Office served as the best evidence that the test was carried out on that day.  On the other hand, as DCL was not present at the site inspection on 21 May 2008, the information provided by DCL was only hearsay evidence.  In fact, one document that could provide some clue on the matter was the “Proforma WS 1” referred to in paragraph 3.0 and attached in Appendix E of the report.  Such document contained the information supplied by the Joint Office to DCL, which should have included the details of the tests done by the Joint Office in the earlier inspection.  Unfortunately, Appendix E is missing in the trial bundle and so it is not possible for the court to verify such information.  In any event, it is too late now to adduce further evidence to challenge the confirmation made by the Joint Office in the said two letters.

14.However, the most important thing is that whether such test was carried out on 21 May 2008 does not make a difference in my reasoning.  The purpose of the water supply pipes pressure test was to find out whether there was any leakage in such pipes.  According to the Plaintiff’s expert, if the water was originated from Flat 10A in the period from February 2008 to mid-2009, it had to come from the water supply pipes of the bathtub of the master bathroom.   There is no dispute that similar test was carried out by the Water Supplies Department during such period of time.  According to the Defendant’s expert, Mr. Kung, if there was any leakage in the water supplies pipes, the result of the test conducted by the Water Supplies Department should have been positive.  In particular, the problem of water leakage remained serious in that period of time.  Yet the result of the test was negative.  There was also no evidence to suggest that the staff of the Department was not conducting the test properly.  Further, leakage from the water supply pipes was an obvious possibility.  I would be most surprised that despite the extensive investigation carried out by the Joint Office and the consultant in the period from May 2008 to April 2009, they were not able to identify such source of leakage.  For example, they could open the access panel in the void of the bathtub to examine the pipes.  As the problem of water leakage had remained serious from February 2008 all the way to May 2009, it supports my finding at the trial that no repair report had been done by the Defendant in respect of the water supply pipes of the bathtub of the master bathroom at the relevant time and it was not the source of the water leakage.

15.Hence, I also find that there is no reasonable prospect of success in the second ground of appeal.

Third ground of appeal

16.The third ground of appeal is that I erred in the finding that leakage was from the external wall of the Building and that I wrongly excluded the water supply pipes of the bathtub of the master bathroom of Flat 10A as the cause of the water leakage some time before 20 May 2009. Mr. Chung confirms that this ground of appeal adds nothing more to the arguments already raised in the first two grounds of appeal.  Hence, I do not see it necessary to address further on this particular ground of appeal.

17.In conclusion, the court had difficulty in ascertaining the cause of the water leakage.  Whilst recognising the force of the Plaintiff’s arguments and its frustration, I had no option but to find that the Plaintiff had failed to discharge the burden of proving, on the balance of probabilities, that the water was originated from Flat 10A.  This was a finding of fact that Plaintiff was seeking to challenge.  Generally, the appellate court would be rather reluctant to disturb the findings of fact of the lower court, and so in my judgment, there is no reasonable prospect of success in the Plaintiff’s intended appeal.  I therefore refuse the Plaintiff’s application for leave to appeal against the Judgment.

18.I also make an order nisi that the costs of the application be to the Defendant with certificate for counsel, which shall be made absolute 14 days after the date of the handing down of this Decision.

Mr. Hylas Chung, instructed by Messrs. Gary Lau & Partners, for the Plaintiff

Mr. Jeffrey Tam, instructed by Messrs. K. B. Chau & Co., for the Defendant