PUTAI LTD v. YAU LEE HO AND ANOTHER

DCCJ 2666/2013

[2018] HKDC 257

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2666 OF 2013

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DECISION

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Background

1.  On 19 December 2017, the court handed down the judgment of this case (the “Judgment”^[1]); that it rules in favour of the plaintiff in the Main Action and dismissed the defendants’ Third Party Action.  The defendants now seek leave to appeal.

2.  In this application, the defendants submit no less than 13 grounds in their Skeleton Submission; the first 12 target at the plaintiff and the last one, at the third party.

3.  The defendants’ submission can be roughly divided into 3 grounds, that the court:

a.   is erred to allow the plaintiff to amend its statement of claim in the middle of trial;

b.   is erred in assessing the evidence and makes a wrong conclusion; and

c.   is erred in law or in the application of legal principles.

4.  All the parties agree on the test to be applied in the application of leave to appeal; the court will not repeat here.

Ground 1:  The amendment of the statement of claim

5.  The defendants argue that the late amendment prejudiced them and derailed their efforts as they prepared their case on the basis of the original statement of claim.

6.  I find this argument carries no weight.  The general frame of the plaintiff’s case is waste water seeped from Flat 1B’s ceiling.  The evidence, including the videos and photos, clearly show the locations of the seepage, which has been disclosed to the defendants long time ago.  The defendants knew about the plaintiff’s case all along and the amendment did not widen its case; hence the defendants did not suffer any prejudice.

7.  After considering the defendant’s submission under this ground carefully, I still do not accept their argument and would repeat my reasoning at §61 – 66 of the Judgment.

Ground 2:  The assessment of evidence

8.  The defendants’ main complaint is the court wrongly assessed the evidence of the defendants’ expert, Mr Simon Cheung.

9.  In the Judgment, I patently point out that Mr Cheung is not a reliable expert witness (see §49).

10.  The defendants argue that the court misunderstood and/or misapprehended his evidence and give the example that, in Mr Cheung’s third expert report, he had never mentioned

“a. the teak floor of Flat 2B was intact and no sign of being soaked in waste water and

b. crystal wax and asphalt coating beneath the wooden floor slabs are effective in stopping water from seeping to the structural floor slab of Flat 2B”

as I mentioned in §48 of the Judgment.

11.  Such submission is misleading.  The above paragraph is not a direct quote from §4.1 of Mr Cheung’s third report, it was the summary I made after reading his report.

12.  In fact, according to §4.4 of the report, Mr Cheung mentions there was no sign of the teak floor or the asphalt being soaked in waste water.

13.  Further, even one only reads §4.1 of Mr Cheung’s third report that

“the wooden floorings and wooden skirting of (Flat 2B) were in good physical condition. The crystal wax, a waterproofing material applied to the teak wood floorings was in good condition”

still contradicts his first report, dated 29 June 2013, that he concludes the wooden floor slab, wooden skirting and wooden bedroom door of Flat 2B had all swollen and bulged as a result of the waste water backflow.

14.  The defendants also submit my finding at §18 of the Judgement is wrong and not supported by evidence, that

“It is obvious from the undisputable facts that the Backflow Incident and the Seepage Incident started and ended at around the same time …”

15.  The defendants must read the Judgment as a whole, instead of reading it bit by bit and out of context.  In the Judgment, I find the fact that the Backflow Incident started at about 4 am on 13 March 2013, Madam Yau arrived at Flat 2B after the Tenant informed her at around 9 to 10am; and it took her until about 2 to 3 pm to substantially clean up Flat 2B. It is obvious that the Backflow Incident ended shortly before 2 to 3 pm, otherwise, Madam Yau could not clean up Flat 2B substantially if the Backflow Incident continued.  Madam Kou found the water seeped to Flat 1B at around 9 am and ended at around 5:30 pm.  The evidence shows the Seepage Incident started few hours after the Backflow Incident started and ended few hours after it stopped.

16.  I conclude I was correct to describe the Incidents started and ended at around the same time, within few hours’ interval; but not time intervals counted by days or weeks. 

Ground 3:  The court had erred in law or in the application of the legal principles

17.  The defendants submit the court fails to give reasons for the defendants’ liability in creating nuisance.  My short reply is even I was wrong in holding that the defendants should be liable for creating nuisance; it will not affect their liability, as they are still fully liable to the plaintiff’s loss in breaching the DMC.

18.  Further, even accepting the defendants’ argument that their actual or constructive knowledge is an essential element in creating nuisance, according to Madam Yau, she attended Flat 2B after the Tenant informed her at around 9 – 10 am, by that time, Flat 2B had been completed flooded by the waste water at the depth of about 2.5cm.  Madam Yau’s evidence shows she knew about the flooding.

19.  The Building was an aged one and was under major renovation, as there was huge amount of waste water accumulated at the floor of Flat 2B, it would be reasonable to expect that the waste water could have entered the floor slab of Flat 2B and seeped to Flat 1B through its ceiling.

20.  Then both the plaintiff and the defendants complained to the management office of the Building and engaged their respective experts to have joint expert report. It is obvious that the defendants must have actual knowledge of the seepage. 

21.  The defendants also submit that the court was erred in other legal principles; however, those submissions are either not supported by any authorities or are unknown to court, I would not spend my time on those groundless or unmeritorious submissions.

The third party

22.  Out of the 13 grounds submitted by the defendants, only the last one concerns the third party, that the court was erred in assessing all the available and relevant evidence, and failed to find that it was the third party who had caused the Drainage Pipe to fall into disrepair and caused the Backflow Incident.

23.  In the Judgment, I find the evidence shows that other than the removal of the Towel from the Drainage Pipe, no remedial work had been carried out, and the backflow only occurred once; and I conclude that the only reason for the Backflow Incident was the Towel that blocked and chocked the Drainage Pipe (§6 & 7 of the Judgment).

24.  I considered the defendants’ submission carefully and still maintain my original conclusion.

Conclusion

25.  After considering the defendants’ submissions carefully, I concluded the defendants fail to satisfy the court that the appeal has a reasonable prospect of success or should be heard for other reasons in the interest of justice.  I dismiss the defendants’ application accordingly.

26.  Costs should follow the event.  The defendants should bear the costs of the plaintiff and the third party.  I grant one counsel’s certificate to each party.

27.  All the parties agree I should assess the costs summarily.

28.  The plaintiff submits its bill, which can be divided into 3 parts:  the fee for the solicitors, Mr Wong Ka Hing Daniel and his legal executive; the Brief to counsel; and other disbursements, like photocopying charges.

29.  The plaintiff and the third party are represented by the same solicitors and counsel in the trial and this application, I would expect there should not be too much work to be carried out by the solicitors in this application.

30.  For the plaintiff, I consider Mr Wong should not spend more than 1 hour and 30 minutes on this application, including carrying out the general care and conduct of this case.  The hearing on 28 February 2018 takes no more than 30 minutes, and I award 30 minutes’ costs to Mr Wong’s legal executive.  I fully award Mr Shum’s Brief and other disbursements, like the photocopying charges.  The costs for the plaintiff is allowed at $42,630 ($3,860 x 1.5 + $1,130 x 0.5 + $36,275 = $42,630).

31.  Mr Siu, for the third party, submits the third party’s costs is similar to that of the plaintiff’s, without submitting its own bill.  However, in all the 13 grounds submitted by the defendant, there is only one targeting at the third party, I am of the view that the third party’s task is far simpler than the plaintiff’s; hence, the third party’s costs should be substantially less than that of the plaintiff’s.  I made a global assessment that $20,000 should be awarded to the third party.

32.  I make a costs order nisi for the above assessment.  If no party makes any application to vary it within 14 days, it becomes absolute; and the defendants should pay the costs forthwith.

33.  I thank the assistance of the parties.