FU SAU TAI, RAYMOND v. WOO KWONG PO AND ANOTHER

DCCJ 5546/2020

[2025] HKDC 904

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5546 OF 2020

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JUDGMENT

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INTRODUCTION

1.  This is a case concerning a claim for damages and injunctive relief for alleged water leakage from the Defendants’ property at Flat 10, 4^th Floor, Block E, Kornhill, Hong Shing Street, Quarry Bay, Hong Kong (“Flat 410”) to the Plaintiff’s property situate at Flat 10 on the 3^rd floor of the same building (“Flat 310”), which is immediately below Flat 410.

THE PLAINTIFF’S CASE

2.  The Plaintiff bases his case on a number of incidents of water leakage which were alleged to have originated from the Defendants’ property, i.e. Flat 410:

(1)  Incidents 1 to 3: it is the Plaintiff’s case that on 3 occasions between 9 August and 27 October 2016, water had leaked from Flat 410 into Flat 310 due to a burst of the flush water pipe in the former, as well as leakage from the fresh water pipe in Flat 410. On 9 August 2016, there was reportedly water drippage from the ceiling in the bedroom and the corridor of Flat 310 (Incident 1). On 25 October 2016, there was water leakage in the living room causing the lights to be removed, and also in the kitchen where the cabinets were affected, as well as in the corridor (Incident 2). Further, on 27 October 2016, water seepage was found coming from the kitchen drain pipe and the common drain pipe inside Flat 410 (Incident 3).

(2)  Incident 4: Since around mid-October 2017, water seepage was found on the ceiling of the bedroom, corridor and kitchen of Flat 310 causing stains, and it was found that the bathroom waterproofing facility at Flat 410 was apparently defective. Also, water stains and small holes with paint peeling off were found on the ceiling in the master bedroom of Flat 310;

(3)  Incident 5 and further: From around 3 January 2020 to around November 2021, water seepage was again found on the ceiling inside the bathroom of Flat 310. Further seepage with water drippage was found in August 2020 on the bedroom and corridor ceilings, as well as on the wall of the master bedroom.

3.  On the basis of the above incidents, the Plaintiff has undertaken certain repair and remedial works and now claims against the Defendants for damages for nuisance, and also for injunctive relief.

4.  The Plaintiff relies on the expert evidence of Mr. Chiu Chi Pun (“Mr. Chiu”), the surveyor called by the Plaintiff.

THE DEFENDANTS’ CASE

5.  The Defendants’ pleaded case is that firstly, the claim arising from Incidents 1 and 2 above has already been settled, and that Incident 3 above was not related to or caused by the Defendants.

6.  As for Incident 4 above, the Defendants put the Plaintiff to proof of his case in respect of causation.

7.  Further, in respect of Incident 5 above, it is the Defendants’ case that the Joint Office of the Buildings Department/Food and Environmental Hygiene Department (“Joint Office”) did not identify Flat 410 as the source of leakage. Rather, water seepage from the external walls is suggested to be the source of water leakage into Flat 310.

8.  The Defendant relies on the evidence of Dr. Lam Siu Shu, Eddie (“Dr. Lam”), the expert engineer called by the Defendant to give evidence.

9.  It should also be mentioned that based on their respective pleaded cases summarised above, the parties have also prepared a Statement of Agreed Issues.

THE APPLICABLE LEGAL PRINCIPLES

10.  There is little dispute that in a case such as the present, there is no presumption that the source of leakage would necessarily come from the flat above. A plaintiff bears the burden to prove that water leakage did come from the defendant’s flat above. If there is evidence showing that the source of water leakage is not from the defendant’s premises, the defendant will likely not be held liable: Lam Chin Pang and Another v Wan Sui Ying [2018] HKDC 1169 at paras.22-23.

11.  Insofar as the tort of nuisance is relied on as a cause of action, the following principles are pertinent (see Siu Kwok Keung Raymond v Yee Shia Yuen, DCCJ 2131/2012, 31 October 2017 at para.92; and Lau Sin Yee v Financial Secretary Incorporated DCCJ 311/2007, 14 February 2008 at para.11:

(1)  To attract liability by adopting or continuing the nuisance, the defendant must be proved to have knowledge, actual or constructive, that the water seepage originated from his premises;

(2)  “Knowledge” can be what the defendant actually knew, or what the defendant should have known with normal and reasonable diligence;

(3)  However, the onus of proof remains on the plaintiff, and it is not for a defendant to prove that the seepage of water did not originate from the defendant’s premises, nor to prove that it had not created the nuisance.

THE EVIDENCE

Incidents 1 to 3

12.  The evidence in this case is largely found on the documents. The Plaintiff called his wife, Ms. Wu Xue Ping (伍雪平) (“Ms. Wu”), to testify. In her testimony, Ms. Wu basically adopted the Plaintiff’s case set out above, and also relies on the following documentary evidence.

13.  For Incident 1, according to a letter from the management office of Kornhill (which forms part of the MTR Corporation Limited) (“MO”) to the Plaintiff dated 2 December 2016, as well as a report by the loss adjustor of the Plaintiff’s insurer, namely United Adjusters (HK) Ltd (“United Adjusters”), the Plaintiff’s tenant, Mr. Yung, reported to the MO on 9 August 2016 of water leakage suffered by Flat 310, saying that the ceiling of the whole flat was found wet.

14.  The MO inspected Flat 310 on 9 August 2016 and by its Security Incident Report dated 10 August 2016, it was stated that a large amount of water flooded from Flat 410, in which the toilet flush water pipe burst. The same is also reflected in a report from the United Adjusters to the Plaintiff.

15.  According to the Joint Expert Report dated 23 August 2022 prepared by the parties’ experts (“JER”), both Mr Chiu and Dr. Lam agreed that the incident on 9 August 2016 was caused by water leakage from the flush water pipe or water tap at Flat 410.

16.  For Incident 2, firstly, the Plaintiff relies on text messages contained in “WhatsApp” records exchanged between the Plaintiff and the MO on 26 October 2016 that on 25 October 2016, Flat 310 suffered water leakage to the extent that the living room lights had to be removed, the kitchen cabinets were flooded, all food items turned moldy, and basins were used in the corridor to contain water that leaked from above. The situation was also reflected in the text messages exchanged between the Plaintiff and his tenant, Mr. Yung, who also reported the matter to the MO. According to Mr. Yung, the water drippage had abated after the water supply to Flat 410 was turned off. According to a report from United Adjusters to the Plaintiff, on 25 October 2016, it was likely that a fresh water pipe at Flat 410 burst, and water seeped through the floor slab to enter Flat 310.

17.  In the JER, both Mr. Chiu and Dr. Lam agreed that the incident on 25 October 2016 was caused by water leakage from the fresh water pipe at Flat 410.

18.  As for Incident 3, the Plaintiff relies firstly on a letter from the MO to the Plaintiff dated 2 December 2016, the MO found water dripping inside the kitchen cabinet at Flat 310 on 27 October 2016, and upon opening it up, water seepage was noticed from a branch pipe exclusively used by Flat 410. Further, according to a letter from the MO to the Plaintiff dated 29 March 2019, the MO found water seepage from the kitchen drain pipe and common drain pipe at Flat 410. A letter from the MO to the Plaintiff dated 19 March 2022 also indicates that the MO found the water seepage inside the kitchen cabinet at Flat 310 was caused by the kitchen drainage trap (去水隔氣喉) at Flat 410 situated in the kitchen ceiling at Flat 310.

19.  According to a letter from the MO to the Plaintiff dated 29 March 2019, on 11 November 2016, a part of the common drain pipe inside the kitchen at Flat 410 burst and leaked, and on 2 December 2016, it was replaced. The Joint Office also received a complaint of water seepage from the Plaintiff on or about 1 December 2016. According to a letter from the Joint Office to the Plaintiff dated 5 May 2021, on 13 December 2016, the Joint Office found water seepage at the kitchen ceiling at Flat 310.

20.  On 23 December 2016, the Joint Office conducted colour water test on drainage pipes at Flat 410, but was unable at that stage to ascertain the source of water seepage to Flat 310. Subsequently, by its letter to the Plaintiff dated 5 May 2021, the Joint Office indicated that on 3 February 2017 water seepage was found at the kitchen ceiling at Flat 310. Subsequently, according to a letter from the Joint Office to the Plaintiff dated 9 April 2021, on 7 March 2017, the consultant of the Joint Office, namely Modern Testing Consultants Limited (現代試驗顧問行有限公司) (“MT”) stated that the stains at the water seepage location at Flat 310 had dried up, and the water seepage had stopped.

21.  It must also be mentioned that in the JER, Mr. Chiu opined that the incident on 27 October 2016 was caused by water dripping from water trap and pipe at Flat 410; and Dr. Lam opined that the incident was caused by seepage from the defective common pipe, as subsequent to its repair on 2 December 2016, there was no complaint of water seepage until October 2017.

Incident 4

22.  The Plaintiff reported to the MO in early October and mid November 2017 about persistent water stains on the bedroom and kitchen ceilings inside Flat 310. The matter was also reported to the Joint Office by the Plaintiff but despite attempts to make an appointment to visit Flat 410 for investigation, no visits could be made.

23.  According to a letter from the MO to the Plaintiff dated 29 March 2019:

(a)  In early January and on 23 June 2018, the Plaintiff reported to the MO about persistent water stains on the bedroom and kitchen ceilings inside Flat 310, despite replacement of a part of the main drainage pipe situated between the kitchens of Flat 310 and Flat 410;

(b)  On 10 July 2018, the MO found water stains on the bedroom and kitchen ceilings and the corridor inside Flat 310; and

(c)  On 17 and 20 July 2018, the MO found the moisture level of the bedroom and corridor ceilings inside Flat 310 was persistently on the high side.

24.  On 20 July 2018, the Joint Office found water seepage at the bedroom and bathroom ceilings inside Flat 310, and on 6 August 2018, the Joint Office conducted colour water test on drainage pipes at Flat 410, but was yet to ascertain the source of water seepage at Flat 310 at that stage.

25.  According to an Inspection Report by MT (as instructed by the Joint Office) dated 8 February 2019:

(a)  On 10 October 2018, it was found there was consistent water seepage on the ceilings of the bathroom and bedroom inside Flat 310 with insignificant moisture but no water dripping;

(b)  On 7 November 2018, consistent water seepage, with apparent water moisture on the bathroom ceiling and insignificant moisture on the bedroom ceiling, but with no water dripping, was found on the bathroom and bedroom ceilings inside Flat 310;

(c)  On 20 December 2018, fluorescent ponding and spraying test was conducted on the floor slab and the enclosing walls of the bathroom shower area in Flat 410. As a result, fluorescent effect was noted on the bathroom ceiling in Flat 310 on 20 December 2018 and 18 January 2019; and

(d)  It was concluded that infiltration to Flat 310 from the floor slab including the enclosing walls of the bathroom shower area at Flat 410 was certain.

26.  According to a letter from the Joint Office to the Plaintiff dated 25 February 2019, the result of test conducted by MT showed that the bathroom waterproofing facilities at Flat 410 were seemingly defective. On 27 February 2019, the MO also found that there were water stains, with small holes and peeling off on the ceiling of the master bedroom in Flat 310.

27.  By a Nuisance Notice from the Joint Office to the 1^st Defendant dated 5 March 2019, the 1^st Defendant was required to repair satisfactorily the floor slab and the enclosing walls of the bathroom shower area in Flat 410 within 28 days. On 25 March 2019, the Defendants applied for 6-month time extension for compliance with the said Nuisance Notice, and on 2 April 2019, they provided a quotation for the relevant repair work. The Joint Office eventually extended the time limit.

28.  According to a letter from the Joint Office to the Plaintiff and Ms Wu dated 20 August 2019, on 26 June 2019, the Joint Office found that the water seepage at Flat 310 had stopped. Further, on 25 July 2019, the Joint Office found that the bathroom facilities at Flat 410 had been completely removed.

29.  According to a letter from the Joint Office to the 1^st Defendant dated 3 September 2019, on 22 August 2019, the Joint Office found that the water seepage at Flat 310 had stopped, and the shower floor slab inside the bathroom at Flat 410 was repaired.

30.  In passing, it should also be mentioned that during the period, by an Amendment to Nuisance Notice from the Joint Office to the 1^st Defendant dated 1 August 2019, the time limit for compliance was extended to 31 August 2019. However, by a letter from the Joint Office to the Plaintiff dated 9 August 2021, on 19 September 2019, the Joint Office found the repair work at Flat 410 completed, but the water seepage at Flat 310 to be persistent.

31.  In the JER, based on the test result from MT, Mr. Chiu opined that Flat 410 is the source of water leakage, and the Defendants should be liable to pay for the repair work conducted at Flat 310 in November 2018, but Dr. Lam opined that there was no evidence to support this finding.

Incident 5 and further

32.  According to a letter from the Joint Office to the Defendants dated 10 July 2020, on 3 January 2020, the Joint Office found water seepage at the bathroom ceiling at Flat 310. On 21 January and 22 May 2020, a consultant instructed by the Joint Office (i.e. Prudential Surveyors International Limited) conducted a test at Flat 410 and investigation at Flat 310, but was yet to ascertain whether there was water seepage from the floor slab and the enclosing walls of the bathroom shower area at Flat 410.

33.  According to a letter dated 5 September 2020 from the MO to the Plaintiff:

(1)  On 6 August 2020, upon the Plaintiff’s report, the MO found water droplets on the bedroom and corridor ceilings and the wall at Flat 310, and requested the Defendants to follow-up as soon as possible; and

(2)  On 19 August 2020, at Flat 310, the MO found the bedroom and corridor ceilings wet, and the master bedroom wall with traces of water damage.

34.  Subsequently in or around late August 2020, the MO completed scaffolding and repair work at the external wall at Flat 310.

35.  However, it can be seen from a letter from the Joint Office to the Plaintiff and Ms. Wu dated 5 November 2020 that on 26 August 2020, the Joint Office found water seepage on the ceilings of the bedroom, bathroom and corridor at Flat 310, and thus requested the Defendants to follow-up. Also, according to a letter from the MO to the Plaintiff dated 5 September 2020:

(1)  On 26 and 29 August 2020, the MO found 40+ moisture level on the ceilings of the bedroom and corridor of Flat 310;

(2)  On 5 September 2020, the MO found 40+ moisture level and water droplets coming down from the bedroom and corridor ceilings.

36.  On 7 and 8 September 2020, the MO again found 40-60 degree moisture level on the ceilings of the bedroom and corridor at Flat 310, and mold appearing on part of the ceiling. By a letter to the Plaintiff and Ms. Wu dated 5 November 2020, the Joint Office also found on 11 September 2020 that there was water seepage on the bedroom, bathroom and corridor ceiling at Flat 310, and therefore requested the Defendants to follow-up. The MO also had similar findings on 11 and 14 September 2020.

37.  Later on 16 and 18 September 2020, at Flat 310, the MO found a large amount of water droplets coming down from the ceiling of the master bedroom, and 40+ degree moisture level on the bedroom and corridor ceiling.

38.  On 20 September 2020, the Defendants informed the MO that their tenant had temporarily moved out from Flat 410 and its fresh water supply was suspended, and that on 21 September 2020, fresh water pipe replacement work was commenced. Soon thereafter on 23 and 26 September 2020, the MO found 25+ degree moisture level on the ceilings of the bedroom and corridor at Flat 310. Similar findings were again made on 6 October 2020.

39.  On 8 October 2020, the MO learnt that the water pipe replacement work at Flat 410 was completed, and the tenant of the Defendants had moved back in. However, soon thereafter on 12 October 2020, the MO found 14-32 degree moisture level on the ceilings of the bedroom and corridor at Flat 310.

40.  According to a letter from the MO to the Plaintiff dated 24 November 2020, on 21 November 2020, the MO found 40+ degree moisture level on the ceilings of the kitchen, bathroom and corridor at Flat 310. On 2 December 2020, the MO found 10-21 degree moisture level on the kitchen and corridor ceilings, a 57 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall, and a 13-25 degree moisture level on the rest of the bathroom ceiling.

41.  On 2 December 2020, a consultant instructed by the Joint Office (i.e. Geotechnics & Concrete Engineering (H K) Ltd (香港土力混凝土工程有限公司)) conducted tests including infrared thermography microwave tomography at Flat 310, and found 35+% moisture level on the bathroom ceiling close to the external wall, but was yet to ascertain the source of water seepage which was persisting.

42.  On 5 December 2020, the MO found 40-99 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall, and 10-31.8 degree level on the kitchen and the rest of the bathroom ceilings inside Flat 310.

43.  According to a letter from the MO to the Plaintiff dated 23 December 2020, on 5 December 2020, the scaffolding for the repair work carried out at the external wall at Flat 310 in August 2020 were removed.

44.  Later on 9 December 2020, the MO found 40-99 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall, and 15-28 degree moisture level on the corridor, kitchen and the rest of the bathroom ceilings of Flat 310. Similar findings were again made on 21 and 23 December 2020.

45.  According to a letter from the Joint Office to the Plaintiff dated 10 February 2021, on 23 December 2020, a consultant instructed by the Joint Office found water seepage at the bathroom ceiling at Flat 310, but was informed by the Defendants that their tenant was unwilling to allow the consultant to enter Flat 410.

46.  According to a letter from the MO to the Plaintiff dated 13 January 2021, on 7 and 9 January 2021, the MO again found 42-99 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall of Flat 310.

47.  According to a letter from the Joint Office to the Plaintiff dated 9 April 2021, on 4 February 2021, a contractor instructed by the Joint Office visited Flat 410 but no one answered the door. As a result, a Notice of Appointment was left at the flat. Later on 11 February 2021, the Defendants requested the investigation at Flat 410 be conducted in late March 2021, as their tenant would move out on or after 21 March 2021. On 2 March 2021, the Defendants confirmed that the date of entry by the Joint Office to conduct the investigation to be 22 March 2021.

48.  According to a letter from the Joint Office to the Plaintiff dated 9 April 2021, on 11 March 2021, the Joint Office issued a Notice of Intended Entry on 22 March 2022 to Flat 410.

49.  Meanwhile, on various dates in March 2021, the MO continued to find significant degrees of moisture level and water stains on the corridor and guest bedroom ceilings, and on the bathroom ceiling, but the Defendants claimed that they could not accommodate any visit to Flat 410 for investigation.

50.  On 22 March 2021, the Joint Office and its consultant found persistent water seepage on the ceiling of the bathroom ceiling at Flat 310. On the same date, when the Joint Office and its consultant visited Flat 410, no one answered the door. As a result, on 8 April 2021, a Notice of Intention to Apply for Warrant of Entry on 21 April 2021 was issued.

51.  On 21 April 2021, a consultant instructed by the Joint Office found renovation work being undertaken at the kitchen and bathroom at Flat 410, and therefore could not carry out any test, and as a result, the Joint Office commenced procedures to obtain a warranty of entry.

52.  On 12 May 2021, the Joint Office and its consultant found persistent water seepage on the ceilings of the bathroom, corridor and kitchen at Flat 310.

53.  Eventually from 4 June to 13 August 2021, a consultant instructed by the Joint Office conducted various tests at Flat 410, but was yet to ascertain the source of water seepage.

54.  Further tests conducted by the MO on 5 November 2021 showed a 35+ degree moisture level on the corridor, bathroom and master bedroom ceilings. On 26 November 2021, the MO found concrete spalling, steel bar exposure, and a 79-81 degree moisture level on the bathroom ceiling.

55.  The Defendants also testified at the trial, and similar to Ms. Wu, their evidence predominantly set out the documentary evidence in this case, and places reliance on the evidence of their expert.

The experts’ evidence

56.  As for the evidence of the experts, both Mr. Chiu and Dr. Lam have testified at the trial. According to the JER, on 31 December 2021 and 21 January 2022, both Mr. Chiu and Dr. Lam inspected Flat 310 as well as Flat 410, and conducted various tests as follows:

(1)  Dyed water ponding test:

(i)  Both Mr. Chiu and Dr. Lam agreed that on 31 December 2022, the dyed water (Sulforhodamine B) for ponding at the bathroom floor at Flat 410 was observed at the bathroom ceiling at Flat 310, and on 21 January 2022, the dyed area had enlarged;

(ii)  Dr. Lam opined that the lack of substantial enlargement of the dyed area between the said two dates suggested that the water seepage had ceased or reduced in rate, and the water seepage was likely not from the ponding area;

(iii)  Dr. Lam further opined that in the ponding test, the floor area was fenced, and was flooded with dyed water, which escaped through the non-waterproof corridor to the sunken slab and then the ceiling of the shower area at Flat 310. The fluorescein sodium that was used to flood the shower unit was not observed at the ceiling at Flat 310. Also he opined that the previous test results from the Joint Office were uncertain;

(iv)  Mr. Chiu in reply opined that the corridor at Flat 410 was not affected as shown by its microwave and moisture content. Further, the dye shown was right below the shower area at Flat 410, not near the door or at the corridor. He opined that the test results from the Joint Office were not conclusive;

(2)  Microwave concrete sub-layer moisture content test:

(i)  Mr. Chiu opined that the substantial moisture content increase on the bathroom ceiling at Flat 310 after the water ponding test showed water seepage from the bathroom floor at Flat 410;

(ii)  However, Dr. Lam opined that the abnormal moisture content reading under the shower cubicle at Flat 410 was without significance;

(3)  Infrared thermal scanning:

(i)  Mr. Chiu opined that the signs of water trapping at the ceiling of the bathroom and the corridor next to it at Flat 310 after the water test, as well as temperature drop at various parts of the ceiling at Flat 310, showed water seepage from the bathroom floor at Flat 410;

(ii)  Dr. Lam on the other hand opined that there was no obvious temperature change on the bedroom, living room and corridor ceilings, but temperature drop at certain parts of the bathroom ceiling;

(4)  Surface moisture content measurement:

(i)  Mr. Chiu opined that the moisture content increase on the bathroom ceiling at Flat 310 after the water test showed water seepage from the bathroom floor at Flat 410;

(ii)  Dr. Lam opined that the high surface moisture content at certain parts of the bathroom ceiling before the ponding test suggested possible water seepage thereat, but there was no sign of water seepage at the ceilings of the kitchen and corridor at Flat 310;

(5)  In respect of water pressure test, both Mr. Chiu and Dr. Lam agreed that the result implied no water leakage from the concealed portable water pipe at Flat 410;

(6)  In respect of visual inspection, both Mr. Chiu and Dr. Lam agreed that there was plaster and paint peeling off on the ceilings of the bathroom, corridor next to bathroom, kitchen and master bedroom;

(7)  In respect of the issue of defective waterproof work at Flat 410:

(i)  Dr. Lam opined that water had penetrated from the external wall through the sunken slab at Flat 410 to Flat 310;

(ii)  Mr. Chiu opined that the water seepage at the ceiling of the bathroom and the corridor next to it at Flat 310 was from the defective waterproof works at the bathroom at Flat 410;

(8)  In conclusion:

(i)  Mr. Chiu opined that there was water seepage at Flat 310 as shown by the documents and photos provided, and on the date of inspection on the ceiling of the bathroom and the corridor next to it. He opined that the work carried out by the Defendants did not stop the water seepage, as the works were not done completely or competently. The source of the water seepage was the bathroom at Flat 410. In his opinion, the bathroom floor slab and wall at Flat 410, as well as the ceiling of the bathroom and corridor next to it at Flat 310 should be repaired;

(ii)  Dr. Lam opined that there was water seepage at the ceiling of the sunken slab and the ceiling adjacent to the external wall of the bathroom, and on the date of inspection only at the ceiling adjacent to the external wall of the bathroom. In his opinion, the Defendants had taken all reasonable steps to alleviate the water seepage. However, the source of the water seepage was the external wall. He opined that the external wall at Flat 410, as well as the bathroom ceiling at Flat 310 should be repaired.

57.  Further, according to a Test Report dated 20 February 2023 by MT made on behalf of both the Plaintiff and the Defendants, on 29 December 2022 and 16 January 2023, two water spray tests were conducted at the external wall at Flat 310. There was significant increase in surface moisture content at the bathroom ceiling after the first test, as well as extension of lower temperature zone by infrared thermography after both tests.

58.  Having considered the said Test Report, both Mr. Chiu and Dr. Lam had in the Supplemental Joint Expert Report dated 21 July 2023 prepared by them (“SJER”) maintained their respective opinions as set out in the JER.

DISCUSSION

Incidents 1 and 2

59.  The Defendants accepts liability for Incidents 1 and 2, but it is the Defendants’ case that the documentary evidence shows there has already been a settlement concerning the Plaintiff’s claim arising from those two incidents.

60.  On 23 May 2017, United Adjusters for the Plaintiff’s insurer had proposed settlement sums for Incidents 1 to 3. Thereafter on 9 June 2017, United Adjusters wrote to the Defendants, proposing settlement sums. On 14 September 2017, the Defendants’ insurer, AIA Company Limited, informed the Defendants that they were prepared to settle the claim, including the sum payable to the Plaintiff.

61.  Subsequently, it can be seen from a letter dated 8 April 2019 from United Adjusters that there were discussions between the parties’ insurers and agents, and United Adjusters indicated that there was settlement agreement where the Defendants’ insurer would pay HK$18,100 to settle all claims arising out of the incidents that took place between 9 August 2016 and 25 October 2016.

62.  On 17 October 2019, United Adjusters issued an email to the Plaintiff, stating that Incident 1 was due to the burst of the flush water pipe in Flat 410, and Incident 2 was due to water leakage from a fresh water pipe in Flat 410, and also that Incident 3 was due to common drainage pipe blockage causing water to backflow into Flat 410. As such, only Incidents 1 and 2 were caused by defective water pipes in Flat 410, for which United Adjusters (who had the right to pursue the recovery) agreed to accept HK$18,100 as the settlement sum. In other words, $18,100 had been the adjusted loss arising from Incidents 1 and 2. In the circumstances, the Plaintiff would have to bear HK$1,810 as the policy excess.

63.  On 22 July 2020, United Adjusters reiterated to the Plaintiff that they were pursuing a claim against the Defendants for Incidents 1 and 2, and that they accepted the Defendants’ offer to settle for HK$18,100. On 6 August 2024, United Adjusters informed the Defendants’ solicitors that their principal already reimbursed the loss to the Plaintiff, and they have obtained the consent from the Plaintiff to pursue a recovery for the insured loss.

64.  On 25 September 2024, United Adjusters provided the Defendants with a discharge form signed by the Plaintiff’s insurer, which contains the following clauses:

(1)  The Plaintiff has signed a letter of subrogation/authorisation dated 6 June 2017 subrogating to his insurer all his rights, title and interest in and to the property for which claim is made in respect of loss or damage at Flat 310 caused by Incidents 1 and 2.

(2)  The insurer accepts HK$16,290 as the settlement sum in full and final settlement of all claims of whatever nature made or which will be made against the Defendants, on a without admission of liability basis.

(3)  The insurer agrees that the parties concerned shall be absolutely and finally exonerated and discharged from all claims whatsoever by the insurer or on their behalf out of or connected with or traceable to Incidents 1 and 2.

65.  The Defendants thus submit that it is clear a settlement has already been reached for the Defendants to pay HK$18,100, of which HK$16,290 would be paid to the Plaintiff, the balance of HK$1,810 being the policy excess, in settlement of loss and damage arising from Incidents 1 and 2.

66.  In this respect, the Plaintiff submits that the claim which has been settled by the Discharge Form signed on 20 September 2024 is one for insured loss only (i.e. HK$16,290), whereas the present claim is one for uninsured loss.

67.  It is accepted by the Defendants that an insurer is only subrogated to rights which diminish the loss which he has paid, and the insured can continue proceedings to gain compensation for his uninsured loss: MacGillivray on Insurance Law (15^th Ed) at paras.22-038 & 22-042.

68.  However, the Defendants say that as a settlement has been reached, recourse to the original claim will not be permitted. Rather, the Plaintiff has to sue on the settlement agreement which governs the parties’ legal relationship in connection with incidents 1 and 2: see Foskett on Compromise (10^th Ed) at para.8-02. The Defendants say they are ready and willing to pay the said HK$1,810 to the Plaintiff on the basis of the settlement agreement, but the Plaintiff for his own misconceived reason has refused to accept the payment. There has been no breach on the part of the Defendants of the settlement, and thus no order is necessary to compel the Defendants to pay HK$1,810 to the Plaintiff.

69.  The Plaintiff accepts that there has been past correspondence discussing the potential settlement of the insured loss, but he says that no final settlement has ever been reached, relying on the fact that the Discharge Form has never been signed by the Plaintiff himself, and as a result of which United Adjusters had informed the Defendants’ solicitors that the form should be revised to state that the sum was to “to settle the claim of the insured loss (HK$16,290)…first”. In this regard, the Plaintiff relies on UDL Argos Engineering & Heavy Industries Co., Limited v Dragages Hong Kong Limited, HCA 1264/2007, 29 August 2007 involving a similar situation, where the Court found no settlement had been reached, for the reason that there was no document setting out unequivocal terms signed by the parties. The Plaintiff also refers to Chitty on Contract (35^th Edition) at para.25-008 where it is stated:

“In order to establish a valid compromise, it must be shown that there has been an agreement (accord) which is complete and certain in its terms, and that consideration (satisfaction) has been given or promised in return for the promised or actual forbearance to pursue the claim…”

70.  Further, the Plaintiff submits that any prior offer by United Adjusters of settlement of the uninsured loss has already lapsed. This is because despite the email dated 6 July 2018 from United Adjusters to the Defendants’ insurer, and a letter of request to the Defendants dated 8 April 2019, the Defendants or their insurer has not paid any amount within the stated time limits of 14 days for accepting the offers, and it was not until 4 October 2021, almost 2.5 years later, that the Discharge Form was sent to United Adjusters for the Plaintiff to sign. The Plaintiff therefore says that the time to accept any prior offer by United Adjusters had already lapsed by that time.

71.  On the other hand, the Defendants say that in the preamble to the discharge form, which was nevertheless signed by the Plaintiff’s insurer and provided by United Adjusters to the Defendants on 25 September 2024 , it is recorded that the Plaintiff has signed a letter of subrogation and authorisation dated 6 June 2017 subrogating to his insurer all his right, title and interest in and to the property for which claim is made in respect of loss or damage at Flat 310 caused by incidents 1 and 2. In cross examination, Ms. Wu confirmed this to be true.

72.  The discharge form provides that the insurer accepts HK$16,290 as the settlement sum in full and final settlement of all claims of whatever nature against the Defendants. The insurer also agreed that the parties concerned shall be absolutely and finally exonerated and discharged from all claims whatsoever by the insurer or on their behalf out of or connected with or traceable to Incidents 1 and 2. As such, the Defendants submit that the Plaintiff can only claim for his uninsured loss, being HK$1,810, i.e. the policy excess he had to pay. Having subrogated his right to the insurer, and accepted his insurer’s compensation, the Defendants say the Plaintiff is not entitled to claim any loss other than his uninsured loss.

73.  The Defendants also highlighted the fact that when the proceedings were initially commenced in the Small Claims Tribunal on 18 October 2019, the Plaintiff only claimed for HK$1,810 for this part of the claim, being the policy excess.

74.  Having considered the relevant documents related to the proposed settlement, I accept the Defendants’ submission that there has already been an overall settlement of this part of the Plaintiff’s claim. The Plaintiff is not entitled to pursue this part any further. It has been the Defendants’ position that they were willing to pay for the uninsured loss of HK$1,810, but the Plaintiff has continued to reject this.

Incident 3

75.  As for Incident 3, the Defendants rely on the fact that the loss adjuster of the Plaintiff has already concluded that it was not attributable to the Defendants. In this respect, the Plaintiff submits that his expert, Mr. Chiu’s opinion that that a U-shape water trap and pipe of Flat 410 is the source of the water leakage is supported by contemporaneous evidence from the MO listing out its findings on 26 October 2016 as referred to above. In particular, it was found that a branch pipe, which was exclusively used by Flat 410, had “leakage problem” and there was “backflow of water from the floor drain of the kitchen” of Flat 410. After investigation, the MO concluded that the source of the water leakage was the kitchen drainage trap of Flat 410 situated in the kitchen ceiling of Flat 310.

76.  The Plaintiff says that the Defendant’s expert, Dr. Lam’s opinion that a common pipe is the source of the water leakage does not sit well with the objective evidence. In particular, the Plaintiff says that although a common drainage pipe inside the kitchen of Flat 410 was replaced on 2 December 2016, water seepage at the kitchen ceiling of Flat 310 was still found by the Joint Office on 13 December 2016.

77.  The Plaintiff says that in any event, the view of United Adjusters that Incident 3 on 27 October 2016 did not originate from Flat 410 is of limited evidential value, as no reason was given by United Adjusters for its view. I do not agree. Contrary to the Plaintiff’s allegation that there was leakage in the U-shaped trap, the MO at the material time considered that the leakage originated from a pipe, and subsequently United Adjusters determined that it was the common pipe that was defective. In any event, it is the MO’s duty to replace the U-shaped pipe. The fact remains that this was the finding of the Plaintiff’s loss adjustor.

78.  I therefore do not find that the Plaintiff has proved, on the balance of probabilities, that Incident 3 was caused by the Defendants or the damage has originated from Flat 410.

Incident 4

79.  For Incident 4, the Plaintiff submits that Mr. Chiu’s opinion that the bathroom waterproofing facilities of Flat 410 was the source of the water leakage, based on the Nuisance Notice dated 5 March 2019 and its supporting documents, is not disputed by Dr. Lam, who merely opined that there is no evidence to support the alleged repair. The Plaintiff therefore says it is doubtful how the Defendants can dispute causation as such.

80.  In this regard, the Defendants submit that the Nuisance Notice was based on a test report prepared by MT which shows that after a ponding test in the bathroom of Flat 410 was conducted, the colour of the dyed water could be observed on the ceiling of the bathroom of Flat 310. That however, say the Defendants, is nowhere near being determinative of their liability. The Defendants submit that the report only shows that if there was ponding of water on the floor slab of the bathroom of Flat 410, water could seep through to the ceiling of Flat 310. It does not show that water would seep through if the bathroom is used in an ordinary manner. Ponding test does not reflect actual usage. The Plaintiff has not adduced any expert evidence on the cause of the water leakage at the relevant period of time.

81.  The Defendants further submit that despite their complete renovation of the bathroom of Flat 410 and re-routing the water pipes, and followed by the halting of water leakage for a while, the Plaintiff alleges the re-emergence of the problem of water leakage subsequently. That indicates that before the renovation, while water could theoretically leak from Flat 410 if there was ponding of water, the actual water leakage problem did not originate from Flat 410.

82.  On the other hand, the Plaintiff submits that the Defendants’ submission that the ponding test does not reflect actual usage is unsupported by their expert evidence, and is also contradicted by the finding of MT in its Inspection Report, on which the Nuisance Notice was based, that “infiltration from the floor slab including the enclosing walls of the bathroom shower area was certain”.

83.  The Plaintiff submits that there is no evidence or analysis on the sufficiency of the Defendants’ alleged renovation of their bathroom, which if insufficient might cause the water leakage to persist.

84.  The Defendants further submit that it is unclear as to what exactly the Plaintiff’s allegations of water seepage were during the period from 2017 to 2019. They rely on the following matters that occurred.

85.  On 6 February 2017, the Joint Office informed the Defendants that having carried out investigations in Flat 410, they could not ascertain the source of the alleged water leakage. On 7 June 2017, the Joint Office informed the Defendants there was no longer any sign of water leakage. In other words, there is no evidence of water leakage originating from Flat 410 in 2017.

86.  On 27 August 2018, the Joint Office informed the Plaintiff that they carried out investigation in Flat 410 on 6 August 2018, and they could not ascertain the source of the alleged water leakage. Even if the water leakage problem at that time originated from Flat 410, it does not mean the Defendants are automatically liable. The Defendants say they plainly had no such knowledge. In any event, the Defendants say that upon receiving the Nuisance Notice, the Defendants carried out immediate repairs to Flat 410, and they completed the renovation within the reasonable period as allowed by the Joint Office.

87.  As a matter of fact, on 20 August 2019, the Joint Office informed the Plaintiff that the alleged water leakage had stopped already. On 3 September 2019, the Joint Office also stated that they inspected Flat 310 on 22 August 2019, and they found no sign of water leakage.

88.  The Plaintiff disagrees with the Defendants in this respect. According to the Plaintiff, the Defendants had not taken sufficient or reasonable action in time to abate the water leakage, despite a two-time grant of time extension by the Joint Office for compliance with the Nuisance Notice, and their alleged repair works of the bathroom were completed out of time by the end of September 2019. Further, it is said that prior to the issuance of the Nuisance Notice, the Defendants had already been causing delay by ignoring or not responding to at least two Notices of Appointment and repeated requests from the MO for arrangements for a visit to be made by MT or the Joint Office. Even when arrangements were apparently made for a visit to be made, there had been no one answering the door on the relevant date.

89.  The Plaintiff also complains that the Defendants had arranged a series of tests by an alleged expert, 周錦華, between 8 and 27 April 2021, not only knowing that the Joint Office had intended to apply for a warrant of entry on 21 April 2021, but also in contrast of the opinion of the Joint Office that no test could be carried out due to the ongoing renovation there.

90.  The Plaintiff also says the Defendants had been adopting an irresponsible attitude as demonstrated by the purported ignorance of the cutting of flush water supply of Flat 310 and Flat 410 by the MO since 5 September 2020 for at least 10 months due to the suspected flush water leakage from Flat 410. The 1^st Defendant’s allegation that his tenant had only on a few occasions informed him that there was no flush water supply, and his excuse that he rarely “interfered with” his tenant’s “enjoyment” of Flat 410, are indeed highly unbelievable.

91.  Further, the Plaintiff also complains that it was irresponsible on the part of the Defendants for them to have replaced the grey water pipe and red button outside the external wall of Flat 410 without the MO’s consent and approval.

92.  Having considered the evidence and the arguments, I am with the Defendants. Despite the ponding test apparently done by MT, the test report itself is not informative, as it contains no details as to how it was conducted. Neither did MT nor the Joint Office conclude that there was actual water seepage coming from Flat 310, but rather a theoretical possibility. This possibility is put in doubt when one also considers the ponding test conducted by MT from 31 December 2021 to 21 January 2022 as set out below.

93.  Also, the Defendants’ evidence is that in response to the Nuisance Notice, they had suspended the water supply after the tenant had moved out, and had demolished and reconstructed the bathroom. As set out above, the Joint Office found in late June 2019 that the alleged water leakage had stopped. Further inspection by the Joint Office on 22 August 2019 also showed that there was no sign of water leakage. According to the report compiled by Prudential Surveyors International Limited, investigations were carried out between January and May 2020, and Flat 410 was not identified as the source of leakage. The Joint Office also said in their letter dated 10 July 2020 that they did not identify Flat 410 as the source. Despite all this, subsequently in December 2020 and also in January 2021, the Plaintiff still complains of water seepage. It would appear highly questionable whether the problem did in fact originate from Flat 410.

94.  Having considered the evidence overall, I am of the view that the Plaintiff has not sufficiently proved that Incident 4 was caused by the Defendants or had originated from Flat 410, or that the Defendants should be liable for nuisance in this regard. This is also supported by the analysis below concerning the possibility of seepage originating from the external walls of the building, which is set out in the discussion concerning Incident 5 and further incidents below in detail.

Incident 5 and further

95.  The Defendants referred to the report compiled by Prudential Surveyors International Limited showing that investigations were carried out between January and May 2020, but Flat 410 was not identified as the source of leakage.

96.  On 5 November 2020, the Joint Office notified the Plaintiff that they carried out investigation and colour water test at Flat 410 on 26 August and 11 September 2020, and they could not ascertain the source of the alleged water leakage.

97.  Another consultant, Geotechnics & Concrete Engineering (HK) Ltd, carried out investigation on 2 December 2020 and did not ascertain Flat 410 as the source of leakage. The Joint Office also said in their letter dated 20 January 2021 that they did not identify Flat 410 as the source. Similarly on 10 February 2021, the Joint Office reported to the Plaintiff that their investigations in September, October and December 2020 could not ascertain the source of leakage.

98.  In the letter dated 9 November 2021, the Joint Office stated that investigation was carried out from June to August 2021, and they could not identify Flat 410 as the source of leakage. The relevant tests were conducted by Prudential Surveyors International Ltd on their behalf.

99.  Separately, on 14 October 2022, the MO informed the Defendants that defective external walls caused water seepage into Flat 310.

100.  The Defendants further say that the aforesaid conclusions are reinforced by the expert evidence. In the JER, the ponding test conducted on the floor of the bathroom of Flat 410 (not being the shower area) appears to show that the dyed water (sulforhodamine B) could be seen on Spot A of the ceiling of Flat 310 as indicted on the relevant photograph and location plan. However, the Defendant says the test is not conclusive. Firstly, it is said that in ordinary usage, there would not be ponding of water on the bathroom floor, and definitely not for two hours. As such, ponding test does not reflect actual usage. However, I am not with the Defendants on this point. Apparently, the ponding test has been done by the various consultants and the Joint Office as well as by MT for the purpose of investigation into this issue. Although in actual usage, there may not be such amount of water used, this remains to be recognised as a valid test by various parties. In fact, Dr. Lam had raised no objection either during the investigation. As such, I do not see much strength in this argument.

101.  Dr. Lam also pointed out that the ponding test was not properly done as the floor area of the bathroom was not fenced off. This is shown by a photograph numbered P12 in the JER, where it can be seen that the dyed water had spilled to the right despite water bags had been placed around the area. The dyed water had apparently escaped from the floor area and migrated to the corridor area outside the bathroom. According to his observation, the dyed water seeped through the corridor area of Flat 410, which is not meant to be waterproof. On the other hand, despite Mr. Chiu has stated that the dyed water should not have seeped through the corridor of Flat 410 onto the ceiling of the bathroom of Flat 310, he did not say that the dyed water did not in fact so seep through to the ceiling of Flat 310 in his report, but only attempted to say so when cross-examined.

102.  The Plaintiff has vehemently tried to attack the credibility of Dr. Lam concerning his evidence that the dyed area was observed in Spot A about 5 minutes after commencement of the ponding test when he entered Flat 310 to made an observation. The Plaintiff says that this is incredible in that the timing was inconsistent with the records of MT showing the time periods of the stages of the ponding test. The Plaintiff also says that it is hard to believe that Dr. Lam would have absented himself from the site of the test in Flat 410 at the material time without informing Mr. Chiu or the others present. He is also attacked for his failure to disclose his alleged discovery of Spot A. It is said that his allegation that he had told someone from MT is unbelievable as it was not recorded anywhere.

103.  Firstly, whilst he may not have got the timing exact or correct, the fact remains that Dr. Lam did in fact state in the report that the dyed area was observed in Spot A about 5 minutes after the commencement of the ponding test. Importantly, his version is supported by a photograph taken at 12:45 pm which shows the dyed water in Spot A. Overall, I do not find Dr. Lam to be unbelievable over this issue.

104.  Further, Dr. Lam says that the red stain appeared 5 minutes after the ponding test, meaning there was very rapid seepage. This was stated in his report and was elaborated upon during his cross-examination. If the water originated from the pond of water on the bathroom floor, a lot more of the dyed water would have seeped through the floor slab to the ceiling of Flat 310. The red stain however did not spread, indicating it originated from the relatively small volume of dyed water spilled onto the corridor of Flat 410. This is supported by the microwave test, which to some extent shows a water path from grid B6, which is adjacent to the corridor, to grid B4, where spot A was located.

105.  Even before the ponding test, an area with low temperature (suggestive of high moisture content) was observed in the area adjacent to the external walls. Indeed, high moisture content readings were consistently observed in the ceiling adjacent to the external walls of the bathroom of Flat 310.

106.  The Defendants say, and I agree, that Dr. Lam has convincingly explained how water on the external walls could seep into the bathroom of Flat 310 through the sunken slab. This, they submit, shows that Dr Lam’s explanation is consistent with the fact that none of the Joint Office’s inspections identified the bathroom of Flat 410 as the source of water leakage, and consistent with the fact that even the MO admitted that water could seep through the external walls. The only difference between the previous tests done by the Joint Office and the one done by MT for the JER is that in the latter test, dyed water was not fenced off and some of it spilled onto the corridor.

107.  The Defendants further submit that Dr. Lam’s account is confirmed in the further water spraying tests done by MT on 29 December 2022 and 16 January 2023. The interpretation and explanation of those further tests by the experts can be found in the SJER:

(1)  At the material time since February 2021, Flat 410 was unoccupied and there was no usage of water (as shown by the relevant water bills), which means there was no water source within Flat 410;

(2)  Before the spraying test on 29 December 2022, there was already a wet spot on the ceiling of the bathroom of Flat 310 (i.e. spot CP26, which is adjacent to the external walls);

(3)  After the spraying test on 29 December 2022, spot CP26 remains wet, while the moisture content of another spot has substantially increased (i.e. spot CP31, which is adjacent to the external walls and spot CP26). This is clear proof of ingress of water from the external walls;

(4)  Similarly, before and after the spraying test on 16 January 2023, both spots CP26 and CP31 were wet, showing ingress of water from the external walls.

108.  The Defendants submit that in the SJER, Mr. Chiu did not offer his interpretation as to the results of the spraying tests on the external wall. During cross-examination, he accepted that the spraying tests showed that water did seep through the external wall. He also accepted that there could be rain water, water leaked from pipes, and water from air-conditioners that could seep through the external wall. However, when confronted with the question why he maintained that the external wall was not the source of leakage, he said that was because he believed the MO (i.e. MTR Corporation) would maintain the water pipes and the external wall. In other words, his conclusion is solely premised on his trust in the MO, but not based on any actual inspection of the external wall.

109.  The Defendants further pointed out that the timing of the cessation of the water leakage problem was also highly suggestive that the source of the leakage was the external wall of the building. Firstly, Ms. Wu confirmed that there was no complaint of water leakage from her tenant since December 2023. Meanwhile, the 1^st Defendant has pointed out that the MO had carried out repairs to the external wall on the side of the lightwell on several occasions, the latest being from August to October 2023. This is apparently consistent with the fact that the leakage problem had ceased in around December 2023. As the Defendants have pointed out, this is in fact highly suggestive of a causal relationship between such works and the cessation of the problem.

110.  Despite the tremendous and forceful arguments put forward by Mr. Ng for the Plaintiff, I agree with the Defendants that overall, the findings of the Joint Office, the admission of the MO and the expert evidence show that, on the balance of probabilities, the source of water leakage was not Flat 410. The Defendants do not have to prove that the source lies elsewhere, but in this case, the evidence strongly suggests that the water seeps through the defective external walls, which were not in good condition. It must be mentioned that in this case there is no suggestion that the Defendants had caused the external walls to be damaged, thus leading to the water seepage. There can be no question of attributing the water seepage from the external wall to the Defendant’s fault.

JUDGMENT

111.  By reason of the above analysis, I therefore find for the Defendants and dismiss the Plaintiff’s claim herein, with costs to the Defendants to be taxed if not agreed, with Certificate for Counsel for the trial.

112.  Lastly, it remains for me to thank counsel on both sides for their helpful assistance at the trial.