MOHAN SELVARAJ v. GRACE KA MAN O’BRIEN

CACV 572/2019

[2020] HKCA 698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 572 OF 2019

(ON APPEAL FROM DCCJ 3872/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is a water leakage case. The Plaintiff is the owner and occupier of Flat C, 14^th Floor, Ho King View, 2 Braemar Hill Road. He claimed that damage had been caused to his property by the water leakage from the flat of the Defendant which situated immediately above, viz Flat C, 15^th Floor, Ho King View. Proceedings were brought by the Plaintiff in the District Court. On 21 March 2019, His Honour Judge Harold Leong [“the Judge”] granted summary judgment on liability in favour of the Plaintiff for damages to be assessed. He also granted a mandatory injunction against the Defendant in the following terms:

“ Injunction be granted that the Defendant should take all reasonable measures to remedy the defect as stated under Section E paragraph 1 of the MTC Report … within 56 days from the date hereof.”

2.  With leave to appeal granted by this Court (leave was initially refused by the Judge) on 5 December 2019, the Defendant appealed against the judgment of the Judge.

3.  The parties agreed that the appeal should be disposed on the papers without any oral hearing.  Having read the written submissions of the parties, this Court agreed that this is an appropriate course to take.  We therefore proceed to process the appeal on the papers.

4.  This is our judgment in the appeal.

5.  In the Statement of Claim of 15 November 2018, the Plaintiff alleged that from June 2016 onwards he noticed there was water seepage on the ceiling and/or walls of his living room, bathroom and bedroom. The seepage worsened in June 2017.  Despite complaint made by him first to the management office and subsequently to the Joint Office of the Food and Environmental Hygiene Department [“FEHD”] and Building Department, and the issue of a Nuisance Notice by FEHD on 17 April 2018, the seepage had not ceased.  He therefore issued a writ on 15 November 2018.

6.  By a summons of 13 December 2018, the Plaintiff applied for summary judgment.  He also filed his first affidavit on the same date to support the application.  In that affidavit, the Plaintiff relied on two pro-forma reports prepared by surveyors regarding the testing results conducted by them at the bathroom of Flat 15C on instructions from the Joint Office,

(a)  Report of Multiple Surveyors Limited [“MSL”] (undated) in respect of tests carried out on 19 December 2017;

(b)  Report of Modern Testing Consultants Ltd [“MTC”] (also undated) in respect of a test carried out on 29 August 2018. 

7.  The Defendant opposed the application.  In an affidavit of 1 February 2019 by Priscilla Sit, the donee of a power of attorney granted by the Defendant, it was said that the Defendant had emigrated well before 2017 and Flat 15C was left vacant with no tenant or occupier living in it.  According to her, there was no-one using water inside the flat.  She produced water bills from 2008 to 2014 to support the assertion.  She also said that no water bill had been received after December 2014 because there had been no water consumption.

8.  Further, after receiving the complaints from the Plaintiff, she caused the bathtub in the bathroom of Flat 15C to be removed on 20 June 2018.  She also said that her contractor applied waterproof sealant and white cement to the floor slab where the bathtub used to be.

9.  She suspected that water seepage in Flat 14C came from infiltration from the building envelope as there had been heavy rain and typhoon in the summer of 2017.

10.  She also commented on the reports of MSL and MTC.  In short, she disputed the weight to be attached to such reports and alleged there were inconsistencies between them.

11.  She further referred to Moisture Content test results of 29 August 2018 and 7 January 2019 obtained by her from the office of FEHD showing that moisture content readings of the ceiling of Flat 14C indicated there was no water seepage. 

12.  A defence and counterclaim was also filed on 1 February 2019.  The counterclaim was for damages on account of adverse effect of the Plaintiff’s claim to the property value of Flat 15C.

13.  In his second affidavit of 20 February 2019, the Plaintiff disputed that Flat 15C had been unoccupied.  He also disputed the defence’s theory of water seepage from the building envelope.  He alluded to the dye test results of MSL and MTC to rebut the same. 

14.  The Plaintiff filed a Reply and Defence to Counterclaim on 21 February 2019.

15.  In his judgment of 21 March 2019, the Judge asked himself if the defendant has satisfied the court that she has a fair or reasonable probability of showing a real or bona fide defence.  This is the test for assessing if a triable issue has been shown by a defendant in an Order 14 setting: see Toy Major Trading Co Ltd v Hang Shun Plastic Toys Ltd [2007] 3 HKLRD 345 at [12].  Such test is not meant to be a departure from the principles set out in earlier cases like Ng Shou Chun v Hung Chun San [1994] 1 HKC 155, Man Earn Ltd v Wing Ting Fong [1996] 1 HKC 225 and Re Safe Rich Industries Ltd CACV 81/1994, 3 November 1994.

16.  It is equally trite that Order 14 application is not a platform for a mini-trial on affidavit evidence: UMG Recordings Inc v Profit Chart Development Ltd CACV 262/2012, 19 Feburary 2013.  At [16] in that judgment, the following was said:

“ … Counsel argued that in a summary judgment application, the court would not accept the assertions of a defendant on their face value. It is open to the court to test the assertions against contemporaneous documents and conducts. We accept that as a correct statement of approach, see Murjani v Bank of India [1990] 1 HKLR 586; National Westminster Bank v Daniel [1993] 1 WLR 1453; Ng Shou Chun v Hung Chun San [1994] 1 HKC 155. But one must bear in mind that at this stage the question is not whether the defence evidence is to be believed, but whether it is believable. Sometimes what starts off as an argument on whether the defence is believable is unwittingly developed by counsel into a full-blown submission on whether the defence is to be believed. It is often tempting for counsel to go that extra mile and the line may often be crossed subconsciously. But the court must be vigilant to keep the application within its legitimate bounds. Otherwise it would be encouraging what is in substance a rehearsal of the trial or a trial on affidavit evidence which is not the function of an Order 14 application.”

17.  Identifying the source of water is essential for attaching liability to a defendant for nuisance in water leakage or seepage cases: see 張秀玲及吳炳漢及鄭禮莊CACV268/1998 (9 April 1999) and Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456.  As acknowledged by the Judge, there is no presumption that water came from the flat above.  Further, a defendant does not bear any burden of proving where the water came from.

18.  In the present case, there is a dispute on whether the water that seeped into Flat 14C originated from Flat 15C.  The Defendant said there had been no water usage at the flat since it remained unoccupied for a long time.  Further, since 20 June 2018, the alleged source of water in the bathroom as stated in the MSL Report, viz the bathtub, had been removed.  The Plaintiff did not accept such a claim. 

19.  In terms of evidence on such dispute, the Plaintiff did not have any incontrovertible documentary or other contemporaneous evidence to show that Flat 15C had been occupied.  On the other hand, whilst the Defendant has produced water bills up to 2014, it was said that no further water bill has been received due to no consumption.  The removal of the bathtub is indisputable.  But the Plaintiff said the removal of the bathtub could not completely negate the use of water in the bathroom. 

20.  The Judge was critical of the Defendant’s failure to produce more concrete evidence from the Water Service Department to support the defence case, see [12] of the judgment.  It is not clear from the judgment if the Judge actually rejected the defence case that Flat 15C was unoccupied and there was no water consumption.  If he had done so, he had not set out his reasoning for doing so in an Order 14 context in the judgment. What he said at [12], with respect, did not provide sufficient ground for so doing given that at this stage a defendant is only required to show a believable defence instead of producing all the evidence to be relied upon at the trial. 

21.  The Judge’s attention turned to the inspection reports and what he perceived to be the inadequacy in the remedial works: see [13] to [18].  However, those matters could only show, at the highest, that water could seep through to Flat 14C if there were water at the bathroom. Those matters could not prove that there had been water originated from Flat 15C. 

22.  Further, we are of the view that the Judge’s observation at [16] and his reliance on some comments in the MTC Report on the workmanship regarding water proof sealant may be premature.  Bearing in mind that Order 14 is not a platform for mini-trial on affidavit evidence, the kind of assessment made by the Judge in those paragraphs should be reserved for the trial judge after hearing all the evidence.  Without cross-examination, we do not think the Judge should accept all the comments set out in the MTC Report at their face value. 

23.  Another difficulty with the MTC Report and the MSL Report is that they were not expert reports prepared with a view to making good the Plaintiff’s claim.  Whilst they can be taken as evidence of the results of the tests conducted by them, the makers of these reports did not play the role of experts in examining and identifying the source of water and testing and eliminating the other possible alternatives.  There is no explanation in their reports as to how water seepage would occur at Flat 14C at places other than the bathroom.

24.  The Judge addressed the Defendant’s “rain storm hypothesis” at [19] to [21], commenting that the Defendant did not produce any expert opinion to support the same.  We agree with the Judge that as the evidence stood not much weight could be placed on that hypothesis.  But it does not follow from the rejection of such hypothesis that one must also reject the defence case on no water usage at Flat 15C.  As stated earlier, a defendant needs not identify the source of water to make good a defence.

25.  The Judge commented on the potential sources of water from other parts of the bathroom at [24].  In the absence of evidence of water leaking from those potential sources, it is wrong for the Judge to proceed on such basis in summarily holding the Defendant liable.

26.  Mr Brown in his submissions placed great reliance on the MSL and MTC Reports.  Like the Judge, counsel has failed to appreciate the limitations of these reports as discussed above in respect of the crucial issue in this case.  Such reports (and the test results) could be of great significance in cases where there is no dispute that the flat in question is occupied.  However, as discussed above, this is a case where the Defendant had put forward some evidence of Flat 15C not being occupied.

27.  Mr Brown advanced several points to discredit the Defendant’s case in this regard.  He submitted that it was only a bare assertion and invited this Court to disbelieve such evidence.  With respect, as discussed in UMG Recordings Inc v Profit Chart Development Ltd, supra, those submissions are more appropriate in the context of trial as opposed to an Order 14 application.      

28.  We are of the view that there is a triable issue on whether the damage to Flat 14C was caused by water seepage from Flat 15C and the Judge erred in granting summary judgment in the present case.

29.  It is thus unnecessary for us to address the question if the Judge was correct in granting a mandatory injunction when the Plaintiff did not pursue the same at the hearing.  We have explained above that the Judge had erred insofar as he had acted on the basis that he could make a finding of fact on the limited available evidence regarding the workmanship of the remedial works (see [6] of the Judge’s Decision on Leave of 14 October 2019).  Further, as the Plaintiff had abandoned the claim for such relief, and the Judge had not heard from the Defendant in respect of the same, it was against natural justice for the Judge to make the order on his own motion.

30.  For these reasons, the appeal is allowed and we grant the Defendant unconditional leave to defend. 

31.  In respect of costs, we order the Plaintiff to pay the Defendant’s costs of this appeal and the costs of the applications for leave to appeal in any event and such costs are to be taxed if not agreed. Costs below shall be costs in the cause.