Read the full judgment text of DCCJ 1428/2012 on BabelCite. This District Court judgment was delivered on 16 January 2014 before Deputy District Judge D. Ho.
Civil law – water seepage – nuisance – negligence – Building Management Ordinance (Cap 344) s.34H – burden of proof – expert evidence – ponding test – infrared scan test – duress – mandatory injunction – damages – registered owners of 1/F. No. 7 Shek Kip Mei Street, Sham Shui Po affected by water seepage from bathroom of Unit 2A on floor above – seepage first reported in October 2009 – Joint Office investigation in 2010 concluded seepage came from Unit 2A – 1st defendant settled earlier Small Claims Tribunal claim in June 2011 for $38,500 – seepage recurred in August 2011 – 1st defendant signed Undertaking on 23 August 2011 to stop seepage and bear all consequences – 1st defendant sold Unit 2A to 2nd defendant, completion on 31 October 2011 – plaintiffs' claim transferred from Small Claims Tribunal to District Court – whether plaintiffs can rely on nuisance as basis for claiming damages for physical damage to property where they were never occupants – held yes, following Lau Ting Hang & Anor v Leung Chi Wing (DCCJ 6539/2005) and Clerk and Lindsell on Torts (20th ed) §20-06, nuisance and negligence coincide for physical damage to property – whether 1st defendant signed Undertaking under duress or undue influence – held 1st defendant failed to discharge burden of proof, court inclined to find she signed because of plaintiffs' reassurance rather than under compulsion – whether Unit 2A is source of seepage to Room 1D – held yes, on balance of probabilities, plaintiffs discharged burden under Leung Yung Chun & Anor v Chan Wing Sang & Ors [2001] 1 HKLRD 456 – whether Unit 2A is source of seepage to Room 1C – held no, plaintiffs failed to discharge burden as there was no inspection of Room 1C by either expert and it is Unit 2B, not Unit 2A, immediately above Room 1C – whether mandatory injunction should be granted – held no, distinguishing Lau Ting Hang on the basis that water seepage had not recurred since Mr. Law's repair in March 2013, long lapse of time militated against injunctive relief – assessment of damages – repair cost of $10,800 for repainting and cleansing of Room 1D accepted as reasonable – rental loss of $72,200 ($3,800 per month from May 2012 to December 2013 with two months allowed post-October 2013 for renovation and re-letting) – defendants conceded compensation for rental loss should liability be established – plaintiffs awarded total of $83,000 with interest – plaintiffs awarded costs notwithstanding failure to obtain damages for Room 1C or injunctive relief – order nisi for defendants to pay plaintiffs' costs with certificate for counsel.
Legal issues: Reliance on nuisance as basis for claiming damages for physical damage to property · Whether the Undertaking was signed under duress or undue influence · Whether Unit 2A is the source of water seepage to Room 1D · Whether Unit 2A is the source of water seepage to Room 1C · Whether a mandatory injunction should be granted · Assessment of damages for repair cost and rental loss for Room 1D
Outcome: Plaintiffs succeed in part: defendants held liable for water seepage to Room 1D; claim for water seepage to Room 1C dismissed; mandatory injunction refused
Cited by 3 cases · Cites 3 cases