CHEUNG CHUN BIU v. LAI PAK CHEONG AND ANOTHER

DCCJ 3671/2020

[2023] HKDC 1853

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.3671 OF 2020

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BETWEEN

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J U D G M E N T

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BACKGROUND

1.  This is a water seepage case, which is a sequel to DCCJ 6846/2019 (“the 2019 Action”) involving the same parties and properties. The plaintiff (“P”) is the registered owner of the property at flat E, 18^th floor, Tower 19 (Hoi Yat Mansion), Riviera Gardens, Nos.2-12 Yi Lok Street, Tsuen Wan, New Territories (“the Lower Property”). The defendant (“D”) is a couple and the registered owners of the property located immediately above the Lower Property, ie flat E on the 19^th floor of the same building (“the Upper Property”).

2.  P commenced the 2019 Action against D on 19 December 2019 for water seepage from the Upper Property to the Lower Property affecting mainly the ceiling and wall of the Lower Property’s bathroom. P only sought monetary claims then, including costs for remedial works of HK$101,500 and damages for alternative accommodation of HK$36,000 but without seeking injunctive relief.

3.  Interlocutory judgment on liability of the 2019 Action was entered by consent on 13 March 2020, leaving damages to be assessed (“the Consent Judgment”).

4.  Subsequent to the Consent Judgment, parties underwent negotiation for settlement. P accepted D’s settlement offer via his former solicitors’ letter dated 12 March 2020. P also informed D that the water seepage still continued in his flat and requested D to carry out repair works to stop water seeping in the said letter.

5.  Shortly afterwards, parties settled the 2019 Action by way of a consent summons filed on 17 April 2020. An order by consent was made accordingly on 23 April 2020 where D was ordered to pay P the Settlement Sum of HK$155,000 in full and final settlement of the 2019 Action (“the Settlement Sum”), including the claims of interest, costs and disbursements (“the Consent Order”). D then paid P the Settlement Sum on 28 April 2020.

6.  It is P’s case that water seepage did not stop but worsened despite the letter dated 2 April 2020 by D’s former solicitors confirming that arrangement for repair works was being made. P pleaded in the present statement of claim that the damage has spread to the two bedrooms ceilings where concrete spalling and rusty iron bar were seen.

7.  More letters of complaint about the persisting water seepage were sent by P’s former solicitors to D’s former solicitors on 15, 29 May 2020 and 3 June 2020. P’s former solicitors also wrote to D directly on 5 June 2020 informing D that P would commence remedial works at his flat on 8 June 2020 and P would move out on that day. Unfortunately, the said remedial works were suspended due to water dripping from the ceiling lamp of the bathroom.

8.  On 23 June 2020, P lodged a complaint to the management office of Riviera Gardens whose staff recorded humidity reading at the bathroom ceiling of the Lower Property at 92.6 degree. D was informed of such findings by the management office’s letter dated 30 June 2020.

9.  On 26 June 2020, P’s former solicitors issued the letter before action to D and the present action was commenced on 16 July 2020 basing the claim on common law, Sub-Deed of Mutual Covenant (“Sub-DMC”) and section 34H of the Building Management Ordinance (Cap.344) (“BMO”).

10.  P is seeking the following reliefs as pleaded in the statement of claim:

(a) Mandatory injunction;

(b) HK$40,000 for remedial works of the two bedrooms for;

(c) Alternative accommodation (HK$11,880/month) from 8 August 2020 until one month after the completion of the remedial works at the Lower Property;

(d) Storage of furniture (HK$14,000/month) from 8 June 2020 until one month after the completion of the remedial works at the Lower Property.

11.  The gist of the defence is as follows:

(a) Any water seepage from the Upper Property to the Lower Property in the 2019 Action had been fixed by the D’s contractor Yan Fa Engineering Co Ltd by 21 July 2020[1];

(b) The source of the alleged water seepage in this case could not be the Upper Property[2] after its repair;

(c) Res judicata / cause of action estoppel – since the 2019 Action has been settled, P is therefore estopped from making the same claims again[3];

(d) Reasonable steps taken by the D without delay in carrying out remedial works since the commencement of the present action[4]; and

(e) D’s remedial work was effective[5].

12.  The parties were granted leave to obtain expert evidence on the source and cause of the water seepage on 23 December 2020, limited to one expert for each party, namely Mr Leung Ka Chun for P and Mr Wong Shun Tai Stewart for D. By consent of the parties, one solo expert report from each expert and a joint statement dated 28 June 2021 pursuant to O.38, r.38 (Cap.4A) (“the Joint Statement”) were adduced as evidence without calling the respective expert witnesses to give oral evidence at the trial.

13.  The experts conducted joint surveys on both properties on 26 February 2021 and 9 March 2021. They both agreed that the bathroom of the Lower Property was still affected by water seepage[6], but they have different opinions as to the source of water seepage[7] and repair costs.

14.  Mr Leung eliminated “external wall” as a source of water seepage and identified the shower enclosure of the Upper Property as the source of water seepage to the bathroom ceiling of the Lower Property based on the result of test 6 using the eosin yellowish solution. He opined that the waterproofing of the shower enclosure was defective resulting in water seeping from the floor of the shower enclosure to the bathroom ceiling and began to spread to the master bedroom of the Lower Property.

15.  Mr Wong opined that source of water seepage was the external drainage pipes from flats above the Upper Property and waste water was travelling downwards along the external wall and seeping through external wall to the bathroom ceiling of the Lower Property.

16.  Apart from the tests done by the experts, P also sought help from the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“the Joint Office”) which inspected both properties and conducted ponding test at the Upper Property between April and May 2021. Water seepage at the ceiling of the bathroom of the Lower Property was observed by the Joint Office’s consultant and the condition of seepage was described as “consistently all day long” in their Inspection Report. However, the source of the water seepage could not be ascertained.

ISSUES

17.  The list of issues agreed by parties is as follows:

(a) Whether there was water seepage into the Lower Property at the material time.

(b) If so, whether the Upper Property was the source.

(c) If so, whether the Defendant is liable for the water seepage on grounds of nuisance, negligence, breach of the Sub-DMC and/or s 34H of the BMO, or whether the present cause of action is, in part or full, estopped by the consent order in the 2019 Action.

(d) If so, whether and to what extent P is entitled to the relief sought herein.

(e) If so, whether any credit should be given for the Settlement Sum in the 2019 Action.

18.  Besides, parties have submitted the Agreed Schedule of Quantum:

	Particulars of the Plaintiff’s Claim	Amount	D’s Stance
1.	Cost for remedial works on the 2 bedrooms	HK$40,000.00	Disagree   1. Alleged water seepage not caused by D. 2. Even if it was, already compensated by the Settlement Sum under the 2019 Action.
2a.	Rental for hotel accommodation at L’hotel Nina Et Convention Centre Hong Kong since 6 August 2020 until 6 October 2020	HK$26,950.00	Disagree   1. Alleged water seepage not caused by D. 2. Even if it was, already compensated by the Settlement Sum under the 2019 Action. 3. In any event, remedial works for the 2019 Action were completed on 21 July 2020 and any alleged water seepage should have been fixed, any alleged loss and damage arising after 21 July 2020 should be at the P’s own costs. 4. Even if D is liable for rental fees (which is denied), only the period of the D’s remedial work should be justified.
2b.	Expected future rental for alternative accommodation for the time needed to complete remedial works of P’s Property (monthly basis)	To be assessed at HK$11,880 per month	Disagree   1. Alleged water seepage not caused by the D. 2. Even if it was, already compensated by the Settlement Sum under the 2019 Action. 3. In any event, remedial works for the 2019 Action were completed on 21 July 2020 and any alleged water seepage should have been fixed, any alleged loss and damages arising after 21 July 2020 should be at the P’s own costs. 4. Even if the D is liable for the future rental fees (which is denied), the D disputes the need, duration and the amount of the alleged temporary living quarters.
3a.	Rental for the storage of the furniture from 8 June 2020 until 6 October 2020	HK$32,000.00	Disagree   1. Alleged water seepage not caused by the D. 2. Even if it was, already compensated by the Settlement Sum under the 2019 Action. 3. In any event, remedial works for the 2019 Action were completed on 21 July 2020 and any alleged water seepage should have been fixed, any alleged loss and damages arising after 21 July 2020 should be at the P’s own costs. 4. Even if the D is liable for storage fees (which is denied), only the period of the D’s remedial work should be justified.
3b.	Expected future rental for the storage of the furniture at the rate of HK$14,000.00 per month for the time needed to complete remedial works of the Lower Property (monthly basis)	To be assessed at HK$ 14,000.00 per month	Disagree   1. Alleged water seepage not caused by the D. 2. Even if it was, already compensated by the Settlement Sum under the 2019 Action. 3. In any event, remedial works for the 2019 Action were completed on 21 July 2020 and any alleged water seepage should have been fixed, any alleged loss and damage arising after 21 July 2020 should be at the P’s own costs. 4. Even if the D is liable for future storage fees (which is denied), the D disputes the need, duration and the amount of the alleged temporary storage.
	Total:	HK$98,950 + (2b) & (3b)	HK$0

LEGAL ISSUES ARISING FROM THE 2019 ACTION

Res Judicata

19.  There are several legal issues arising from the 2019 Action. First, D has pleaded estoppel or cause of action estoppel in the defence. The following two items of claims are regarded as “part and parcel of the original water seepage complaint” in the 2019 Action, which have been settled and P is “estopped” from making the same claim in the present proceedings, which are liable to be struck out for abuse of process:

(a) The alleged water seepage spreading into P’s 2 bedrooms[8]; and

(b) The concrete spalling and exposed rusty iron bar on the ceiling of the 2 bedrooms[9].

20.  Besides, D also relies on the wider principle of res judicata[10] (or abuse of process) to contend that P is estopped from claiming storage costs[11] in the present case, as P has failed to bring forward such claim in the 2019 Action, which P should have done so.

21.  Apart from D’s pleaded case, Ms Lam for D added that the claim of alternative accommodation during remedial works has been included in the 2019 Action, and P should be estopped from making such claim again[12].

22.  Ms Lam also submitted that P should have sought injunctive in the 2019 Action, and P should be estopped from claiming such relief this time by virtue of the wider principle of res judicata.

23.  Ms Ng for P contended that res judicata in either narrow or wider sense is not applicable in the present case.

Merger of the Cause of Action

24.  P submitted that no issue of res judicata estoppel arises in the present case because P is not trying to contradict the Consent Judgment or the Consent Order. Rather the issue should be whether there has been a merger of the cause of action by the Consent Judgment or the Consent Order, ie whether the issues raised in the present action were necessarily compromised in the 2019 Action. In short, whether the cause of action in the 2019 Action is the same as the present action.

25.  P contended that the present case is a continuing nuisance case. It was held in a recent English Supreme Court case: Jalla v Shell International Trading and Shipping Co Ltd[13] at §26 per Lord Burrows that the cause of action for a continuing nuisance accrues afresh on a continuing basis, as the nuisance is continuing day after day.

26.  As a fresh cause of action arises on each occasion when fresh damage accrues in case of a continuing nuisance, successive actions may be brought from time to time in respect of its continuance[14].

27.  It is also stated in Jalla[15] at §29 that the claimant of a continuing nuisance case must come back to court periodically to seek common law damages because damages are given for the causes of action that have so far accrued and cannot be given for future causes of action which have not yet accrued.

28.  The affected area in the Lower Property as pleaded in the statement of claim of the 2019 Action was the bathroom and the particulars of damages were pleaded in paragraph 14 as follows:

“Particulars

(a) water seeping appeared on the ceiling lamp in the bathroom;

(b) rusty water came out from the electric socket above the water heater in the bathroom;

(c) brick on the wall of the bathroom was cracked;

(d) mould was found on the ceiling in the bathroom;

(e) patches of rust was found on the ceiling in the bathroom; and

(f) paint on the ceiling was peeling off.”

29.  In the 2019 Action, P claimed damages for remedial works of the affected area in the sum of HK$101,500 according to the quotation of Uni Que Interior Decoration Co and HK$36,000 for temporary accommodation[16].

30.  In the present case, P pleaded that water seepage continued[17] but affected a different area, ie, the two bedrooms[18]. However, it is unclear from the pleadings or evidence as to when exactly water seepage actually spread to the bedrooms, whether it was in 2019 or 2020.

31.  If water seepage did not spread to the bedrooms in 2019, P could not claim damages of the two bedrooms in the 2019 Action for future causes of action, which have not yet accrued, according to Jalla.

32.  Perhaps, water seepage could have already spread in 2019 but it just went unnoticed. Be that as it may, the damage to the two bedrooms by water seepage was not pleaded in the 2019 Action. I am inclined to agree with P’s submission that it was a separate damage from those complained of in the 2019 Action, and it remained unremedied at the time of commencement of this action.

33.  As P is contending continuing nuisance, a fresh cause of action arises on each occasion when fresh damage accrues. I agree that the present cause of action is not identical to those in the 2019 Action. Therefore, there is no merger of cause of action as between the 2019 Action and the present case. P is not estopped from claiming continuing nuisance causing damage to his bedrooms and consequential loss and damages by way of merger.

Wider Principle of Res Judicata / Abuse of Process

34.  P submitted that it is too late for D to rely on the wider principle of res judicata as a defence when parties are fully prepared for trial. Two authorities were cited by P in support of such argument.

35.  In Ko Hon Yue v Chiu Pik Yuk[19], Ma CJ (as he then was) held that such doctrine is founded on an abuse of process when claims or issues raised in subsequent proceedings which could and should have been raised in earlier proceedings. It is not an absolute bar such as issue estoppel, where a party seeks to re-litigate an issue or cause of action which has already been decided by the court.

36.  An application to strike out is almost invariably made to prevent claims amounting to an abuse of process. Such application to strike out proceedings or any part of it on the basis that they should not be permitted to go to trial should be made at “the earliest possible opportunity”. It was held that the defendants in Ko Hon Yue were not justified to wait until the very late stage at trial to make an application to strike out.

37.  Similarly, in Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre (IO)[20] the plea of abuse of process was only added at late stage by amendment of the reply and defence to counterclaim with no application to strike out the counterclaim ever made. Godfrey Lam J (as he then was) refused to entertain the plea of abuse at trial when the court should focus on the real issues on the merits.

38.  Notwithstanding D’s plea of the claim for storage costs being an abuse of process and liable to be struck out as per the defence[21], D has never taken out any application to strike out those parts of the statement of claims where claims for storage costs and injunctive relief were pleaded. Following the above authorities, such defence and submissions based on the wider principle of res judicata should be rejected.

Implications of the Settlement of the 2019 Action

39.  The next issue is whether the Consent Order in the 2019 Action has released any potential liabilities of D. The second paragraph of the Consent Order provides that,

“2. Upon payment of the Settlement Sum as provided herein, the Defendant be fully and absolutely discharged from all liabilities arising from the Plaintiff’s claim against the Defendant herein…”

40.  There is no doubt that the word “claim” is significant in construing the above order. Relying on West Wake Price & Co v Ching[22], P submitted that “claim” should be defined as the object claimed. The specific claims in the 2019 Action were the damages for the costs of remedial works of the bathroom and the costs of alternative accommodation for June and July 2020. Thus, the effect of the Consent Order was only to release D’s liabilities to pay damages of the aforesaid specific claims in the 2019 Action upon payment of the Settlement Sum.

41.  Lord Bingham said in Bank of Credit and Commercial International SA v Ali[23],

“… in the absence of clear language, the court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware.”

42.  It is clear that the wording of the Consent Order does not mean releasing D from any potential liabilities for damages not yet claimed in the 2019 Action.

43.  It is common ground that the court shall also look at the factual matrix of the 2019 Action when construing the Consent Order. When P’s former solicitors wrote to D’s former solicitors on 12 March 2020 enclosing the draft consent summons, P requested D to carry out the repairs to stop the seepage:

“We take this opportunity to inform you that the water seeping still continue, please advise your client to carry out the relevant repairing works in order to stop the water seeping.”

44.  On 2 April 2020, D’s former solicitors wrote back to endorse the consent summons and inform P’s former solicitors that D was arranging for the relevant repair work to be carried out.

45.  In light of the above exchange of correspondence, it is clear that the parties did not intend to release D from all liabilities such as duty to repair; otherwise, there should not be any discussion of repair works after the endorsement of the consent summons by D.

46.  The factual matrix of the case is therefore in support of construing the Consent Order as releasing D’s liabilities for the specific claims in the 2019 Action only.

SOURCE OF WATER SEEPAGE

47.  It is common ground of the experts that there was water seepage at the Lower Property at the time of joint inspection. The issue is the source, whether water is seeping into the Lower Property from the Upper Property as per Mr Leung or from the flats above the Upper Property through the external wall as per Mr Wong.

48.  The gist of Mr Wong’s expert evidence is as follows:

(a) Visual inspection at the Lower Property:

(i) Damp spots, stains, blistered ceiling plaster and peeled pain finish on the bathroom ceiling;

(ii) Stains on the window side; and

(iii) Ceilings and walls of the living room, corridor, master bedroom and guest bedroom in newly refurbished conditions.

(b) Comparison of the moisture content readings at the bathroom ceiling of the Lower Property before and after the ponding and spray tests:

(i) No dye colour seen on the ceiling after tests; and

(ii) The moisture content after tests generally similar to that before tests.

(c) Visual inspections at the Upper Property:

(i) Soil and waste water leaking out when flushing the water closet;

(ii) Cracks seen along the external wall of the Upper Property;

(iii) Soil and waste water leaking out from the drainage pipe of flat 20E travelling downwards along the external wall entering the Upper Property.

(d) Infrared thermographic scanning of the external wall:

(i) Patches of darker blue were seen when scanning the external wall of flats 21E and 20E indicating lower temperature at such location; and

(ii) Darker blue patches were also seen on the bathroom ceiling of the Lower Property near the window.

(e) Conclusion based on the above findings:

(i) Lack of prominent increase in moisture content recorded after the dye colour tests indicating no water seepage from the Upper Property; and

(ii) Infrared thermographic scan results indicating the external wall of the Lower Property being the source of water seepage.

49.  The gist of Mr Leung’s expert evidence is as follows:

(a) Findings of Test 2 (including a spray test and dye ponding test carried out at the shower enclosure of the Upper Property) :

(i) Increase in moisture on infrared thermographic scans;

(ii) Increase in moisture according to the electrical conductivity moisture meter test.

(b) Findings of Test 6 (applying Eosin Yellowish Solution at the drainage of the shower enclosure of the Upper Property and observing results with the aid of UV lights after 30 minutes at the Lower Property observed on 9 March 2021):

(i) fluorescent elements were observed on the ceiling;

(ii) Drips of fluorescent elements were also seen inside a tin can placed on the floor in front of the toilet.

(c) Conclusion:

(i) The waterproofing in the floor of the shower enclosure or around the drainage in the Upper Property is defective, which is the source of water seepage[24]; and

(ii) Water seeping from the Upper Property downwards to the Lower Property and spread to the two bedrooms[25].

(d) Reply to Mr Wong’s opinion:

(i) Mr Leung eliminated the external wall as a source of water seepage because rainfall had been low for days prior to the first joint inspection but ceiling of the bathroom at the Lower Property still showed considerable moisture content.

(ii) The affected areas are further away from the external wall.

50.  Ms Lam’s criticisms[26] of Mr Leung’s expert evidence are quite comprehensive, covering almost every test conducted by Mr Leung, such as infrared thermographic scan, electrical conductivity moisture meter test, fluorescent dye ponding test, and visual inspection. Notwithstanding Ms Lam’s concluding remarks, that Mr Leung’s evidence “should be read with caution”, her criticisms relating to the technical aspects of various tests done by Mr Leung could not be found in Mr Wong’s evidence.

51.  Besides, Ms Lam referred to photos taken on the first day of inspection, showing a stained toilet paper already placed on the bathroom floor near the tin can before the Test 6. Ms Lam thus queried the toilet paper might not be stained by the eosin yellowish solution but it was pre-existing stain.

52.  Further, Ms Lam submitted that other materials, eg white toilet paper, might also be responsive to UV[27]. Nevertheless, such submission appears to be an opinion that was never confirmed by any expert evidence. After all, Mr Leung not only discovered the eosin yellowish solution inside the tin can, but also found the dye appeared on the ceiling as per photos 2.3a, 2.3b & 2.3c.

53.  In respect of Ms Ng’s criticisms[28] of Mr Wong’s expert evidence, I do not find it necessary to repeat all of them. Suffice to say, I find that they are well founded and I agree that Mr Wong’s expert evidence is unreliable. The main reasons for rejecting his evidence are as follows:

(a) It is now trite that negative results of dye water tests are not conclusive, but the positive result of Test 6 (eosin yellowish solution) is a firm proof of the source of water seepage[29].

(b) Nonetheless, Mr Wong simply denied having found any eosin yellowish solution from the ceiling without responding to the photos 2.3a to 2.3e, 2.4.3a and 2.4.3b depicting the appearance of eosin yellowish solution on the ceiling and inside the tin can.

(c) Mr Wong’s opinion of source and path of water seepage in relation to the external wall[30] is no more than a hypothesis without proof.

(d) Mr Wong has apparently failed to remain impartial and abide by the code of conduct for expert witnesses that “an expert witness is not an advocate for a party” when he made legal argument that the present case is a repeated claim of the 2019 Action[31].

54.  Having considered expert evidence from both sides, I am satisfied that Mr Leung’s evidence is well-founded and justified as per Mimmie Chan J in Sun Cheong Construction Co Ltd v The IO of King, Fu, Ho Fu, Ki Fu & Ka Fu Buildings[32]. I accept his expert evidence and reject the external wall as a source of water seepage but find that the defective waterproofing in the floor of the shower enclosure or the drainage in the Upper Property is the source of water seepage.

55.  Notwithstanding my above findings, Mr Leung’s expert evidence is unable to support the present claim of water seepage having spread to the two bedrooms of the Lower Property causing the pleaded damage, because of the following reasons:

(a) When the experts conducted the joint survey on 26 February 2021, it is not in dispute that the renovation works of the two bedrooms have been completed then. When P was referred to the photos on page 5 of Mr Wong’s solo survey report dated 27 April 2021, depicting the ceilings of the two newly refurbished bedrooms with re-plastering and repainting work done, P agreed with the photos.

(b) In the circumstances, both experts did not have the opportunity to inspect the damage of the bedroom ceilings after the repair.

(c) Apart from Mr Wong’s visual inspection and his photos of the two bedrooms, the experts did not mention any other survey of two bedrooms.

(d) Mr Leung did not mention the two bedrooms at all in his solo survey report dated 19 March 2021.

(e) Despite Mr Leung’s reference to the spreading of water seepage from the bathroom ceiling to the master bedroom in the Joint Statement[33], there was no mention of water seepage spreading to the guest bedroom at all.

(f) In any event, Mr Leung did not mention that he has ever conducted any survey or test at the two bedrooms, nor did he explain the basis of his finding of water seepage spreading to the master bedroom.

(g) Therefore, the said finding is unfounded and should be disregarded.

LIABILITY OF THE DEFENDANT

56.  There is no dispute that D did admit liability in the 2019 Action and the Consent Judgment was an interlocutory judgment on liability.

57.  It is D’s case that D began to seek quotations for repair of the Upper Property from contractors in April 2020. The repair works last for 7 days from 14 to 21 July 2020 with a ponding test conducted afterwards. D therefore submitted that they have acted reasonably without delay in repair.

58.  Yet, P complained that the water seepage still persisted after D’s repair. High humidity at the bathroom ceiling was still recorded by the property manager in August 2020. Both experts also agreed that the bathroom of the Lower Property was still affected by water seepage at the time of survey on 26 February 2021.

59.  Mr Lai, the first named defendant, gave evidence at trial that waterproofing work was also done to the drainage of the shower enclosure by the contractor of Standard Waterproofing Engineers Co Ltd in May 2021. He was given to understand that the contractor applied cement to the outlining of the drainage area.

60.  According to the undisputed supplemental witness statement of P dated 29 June 2023 which was adopted as his evidence-in-chief, water seepage at the bathroom ceiling still persists.

61.  Therefore, D failed to abate the continuing water seepage. They have neglected to engage competent contractor to carry out effective repair to abate the continuing water seepage. For the above reasons, I find D liable for continuing nuisance.

62.  As for the claim for the damage of the two bedrooms, I find that P has failed to discharge his burden of proof on balance of probabilities that the alleged damage was caused by water seepage. This claim is therefore dismissed.

RELIEF

Injunction

63.  As I have found that water seepage still persists at the bathroom ceiling of the Lower Property, P is entitled to injunctive relief to stop the water seepage.

64.  I therefore make an injunction order in terms of prayer 1 of the statement of claim against D.

Claims for Alternative Accommodation / Storage

65.  The loss and damages suffered by P were pleaded in paragraph 21 of the statement of claim with particulars of three heads of claims pleaded in subparagraphs (a) to (c):

“21. As a result of the Defendant’s refusal to take any action to repair the Defendant’s Property and the water seeping and leakage caused by the negligence of the Defendant and/or the Defendant failed to observe the Sub-DMC and the provisions of the BMO, the Plaintiff has suffered and may suffer further loss and damage.

Particulars

(a) According to the Quotation of Uni Que Interior Decoration Co. the cost for remedial works on the 2 bedrooms for the sum of HK440,000

(b) Due to the refusal of taking action to repair the Defendant’s Property and water seeping continue which caused the remedial works in the Plaintiff’s Property be suspended, additional rent for the temporary living quarters will be HK$11,880.00 per month from 8^th August 2020 until a month after the completion of the remedial works of the Plaintiff’s Property;

(c) The Plaintiff need to move out the Property when carrying out the remedial works, the costs for storage of the furniture will be HK$14,000.00 per month from 8^th June 2020 until a month after the completion of the remedial works of the Plaintiff’s Property.”

66.  P claimed for costs for remedial works of the two bedrooms for the sum of HK$40,000 in paragraph 21(a).

67.  Moving on to paragraphs 21(b) & 21(c), alternative accommodation and storage expenses were claimed for the period from 8 August 2020[34] or 8 June 2020[35] respectively until a month after the completion of the remedial works of the Lower Property.

68.  On a proper construction of the relevant paragraphs above, the phrase “remedial works” therein should be defined as the remedial works of the two bedrooms only, not including remedial works of the bathroom, which was the specific claim in the 2019 Action and was fully settled.

69.  Since the claim for the damage of the two bedrooms has been dismissed, such claims for alternative accommodation and storage, which are incidental to the claim for remedial works of the bedrooms, should also be dismissed.

CONCLUSION

70.  For the above reasons, apart from the granting of injunctive relief, all monetary claims herein are dismissed. Final judgment for injunction order is entered in favour of P against D accordingly.

COSTS

71.  Costs should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made[36]. The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or part of his costs[37].

72.  Although P only partially succeeds in this action, I do not find the failed claims have increased the length or costs of the action significantly. The main arguments remain the legal issues arising from the the 2019 Action and the source of continuing water seepage, which I have found in P’s favour. Thus, P should not be deprived of any part of his costs.

73.  I therefore make an order nisi that D shall pay P costs of the entire action (including reserved costs if any), to be taxed if not agreed, with certificate for counsel. This order nisi shall become absolute after 14 days from the date hereof, unless parties make any applications by way of inter-partes summons to vary it within such time.

74.  Lastly, I thank Ms Ng and Ms Lam for their valuable assistance rendered to this court.