LING TSANG CHO, the administrator of the estate of YIK YUEN LING, deceased v. TSO WING YAN

CAMP 21/2018

[2018] HKCA 242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 21 OF 2018

(ON APPEAL FROM DCCJ 813 OF 2014)

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REASONS FOR JUDGMENT

AND

ASSESSMENT OF COSTS

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Hon Barma JA (giving the Reasons for Judgment and Assessment of Costs of the Court):

1.  This was an application for leave to appeal against the judgment of Deputy District Judge Simon Ho dated 18 October 2017.  The case concerns a dispute relating to water seepage.  The learned judge found for the plaintiff and ordered the defendant to pay $473,900 as damages and to take all reasonable steps to make the Flat Roof above the plaintiff’s property, which was owned by the defendant, waterproof within 90 days of the judgment (see paragraphs 252 to 253 of the judgment).

2.  The defendant sought leave to appeal in the court below.  Unfortunately, before the leave application could be heard, the plaintiff passed away.  The proceedings were continued by the plaintiff’s son as administrator under a consent summons dated 5 January 2018.  On 14 February 2018, the judge refused leave to appeal.  The defendant renewed her application for leave to this court by her summons dated 28 February 2018.

3.  The parties having agreed that the substantive appeal, could, if leave were granted, be heard by two judges, the court directed that there should be a rolled up hearing, with the substantive appeal being heard immediately after the leave application if leave were granted.  At the conclusion of the application for leave on 25 April 2018, we dismissed it with costs to the plaintiff.  These are our reasons for doing so and our assessment of the costs payable to the plaintiff.

Background

4.  The defendant was the owner of Flat 4A, Hang Cheong Tai Building, Nos 21-23 Ko Shing Street, Sheung Wan (“Flat 4A”).  Flat 4A has a flat roof (“Flat Roof”). On 31 May 2013, the plaintiff became the owner of Office 3A, immediately below Flat 4A, in Hang Cheong Tai Building.  Under the DMC, the ground floor of Hang Cheong Tai Building is designated to be used as a shop, the 1^st to 3^rd floors are to be used as office premises, and the units from the 4^th floor and upwards are for residential use.

5.  In June 2013, during renovations carried out by the plaintiff, water seepage was discovered at different areas of the ceiling of Office 3A.  On 5 March 2014, following tests conducted by the joint office of Food and Environmental Hygiene Department (“FEHD”) and the Buildings Department (“the Joint Office”) and a company called Hong Kong Building Inspection & Structural Diagnostic Ltd, the plaintiff issued a writ against the defendant.

6.  After the writ was issued, the Joint Office conducted further tests through their officers and a company called Prudential Surveyors International Ltd.  On 10 July 2014, the FEHD issued a nuisance notice requiring the defendant to abate the nuisance by repairing and maintaining the floor slab of the Flat Roof.  On 9 July 2015, the FEHD issued another nuisance notice directing the defendant to abate the nuisance in relation to the water seepage to the ceiling of Office 3A through the drainage pipe connected with the water basin at the Flat Roof.  On 18 September 2015, officers visited Flat 4A and found the basin had been removed.  They found that the second nuisance notice had been complied with. On 5 January 2016, the Joint Office concluded that it could not be effectively confirmed that the source of seepage originated from Flat 4A, and suspended the investigation.

7.  The Flat Roof was an open area, save for a small part that was covered by an awning at the doorway.  An elevated concrete flooring, of about 6 inches in thickness, was erected on top of the original floor surface.  The elevated concrete flooring was in existence when the defendant’s grandmother moved into Flat 4A.  The judge also found that there was a waterproofing membrane at the original floor surface.

8.  A water basin was also installed at the Flat Roof, and part of the drainage pipe from the basin ran beneath the elevated floor surface.  The defendant gave evidence that the tap at the basin would usually be connected with a water hose to water the plants on the three sides of the Flat Roof.  The basin was also used to provide water for washing the floor surface of the Flat Roof. 

Judgment below

9.  The judge found that the raised concrete flooring could not have been properly watertight, and also that the waterproofing membrane at the original floor surface must have been defective.  He also found that there had been water leakage from the drainage pipe connected to the basin sometime between 9 March 2015 and 11 July 2015, but that this had been fixed before 11 July 2015. 

10.  The judge found that the water seepage at all the affected areas of the ceiling of Office 3A had its source at the Flat Roof, and that the main source was rainwater.  He also found that the leakage from the drainage pipe also contributed to the seepage sometime between 9 March 2015 and 11 July 2015.

11.  The defendant also admitted that there were incidents of flooding at the Flat Roof during extreme weather due to blockage of the only drainage outlet on the Flat Roof.  The judge found that water accumulating at the elevated floor surface due to heavy rainfall also aggravated the water seepage problem.

12.  The judge held that the defendant knew of the seepage from Flat 4A by about 30 June 2014, and that she had constructive knowledge of this by 31 March 2014.

13.  A major plank of the defendant’s case below was premised on the argument that the waterproofing membrane was part of the common parts of the building, and as such, the responsibility of the Incorporated Owners of the building.  On this basis, the defendant contended that she had no responsibility for the water seepage, or for any damage suffered by the plaintiff as a result of it.

14.  The judge rejected this argument.  He held that the defendant was in breach of her obligations under clauses 18, 19(e) and 22 of the DMC in respect of the building (which are set out in paragraph 132 of the judgment) for the reasons explained by him at paragraphs 133 to 140.  He considered that the defendant owed a duty to the plaintiff under the DMC to keep the elevated floor surface of the Flat Roof watertight so as to prevent water from entering the unit below. In the light of this conclusion, he did not regard it as necessary to make a finding as to whether the original floor surface was a common part or not.

15.  The judge also concluded that the defendant was liable to the plaintiff in both nuisance and negligence.

Proposed grounds of appeal and discussion

16.  Section 63A(2) of the District Court Ordinance, Cap 336 provides that leave to appeal shall not be granted unless it is demonstrated that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. 

17.  In the draft notice of appeal attached to the summons dated 28 February 2018, the defendant proposed 7 grounds of appeal.

18.  Grounds 1-5 concern the Incorporated Owners’ duty to maintain the original floor surface.  Mr Cheung (who did not appear for the defendant in the court below) argued that had the Incorporated Owners properly maintained the waterproofing membrane on the original floor surface, there would have been no water seepage, and that therefore the defendant should not be liable.  In effect, he submitted that the seepage was the sole responsibility of the Incorporated Owners. 

19.  With respect, this argument is misconceived.  In order for the leaks or seepage to take place, it was necessary both for the waterproofing membrane (which might have been the responsibility of the Incorporated Owners, although the judge reached no definitive conclusion as to this) to have been defective, and also for the elevated concrete flooring erected on top of the original flooring (which was clearly the responsibility of the defendant as its owner) to be not watertight.

20.  The fact, if it be the case, that the Incorporated Owners might bear some responsibility to the plaintiff for the damage caused to her property by the water seepage does not, in our view, absolve the defendant from any breaches of the DMC on her part.  At best from the defendant’s point of view, the Incorporated Owners (who were not sued) might also have some liability to the plaintiff (although we are not to be taken to be expressing any view as to this).

21.  So far as the breaches of the DMC by the defendant are concerned, the judge was of the view that the defendant contributed to the water leakage by the defective drainage pipe, the watering of plants and the washing of the floor.  These findings were not challenged by the defendant, nor do we see any basis on which they could be challenged.  That being the case, it cannot be said, as Mr Cheung seemed to be suggesting, that the only reason for the water seepage having occurred was the failure of the waterproofing membrane. 

22.  Thus, the defendant’s use of the Flat Roof was clearly found by the judge to have had contributed to the water seepage problem.  Although Mr Cheung argued that there had been no breach of the provisions of the DMC, we do not agree.  This is precisely the situation covered by Clause 19(e) of the DMC, which prohibit the use of the Flat Roof in a way that “may be or become a nuisance or annoyance to or cause damage to the other owners”.  This obligation is, to our mind, entirely independent from any duty on the part of the Incorporated Owners to maintain the common parts of the building.  We do not think that the term “a nuisance or annoyance” can be read as being confined to situations where the tort of nuisance has been committed, but should be given its natural or ordinary meaning, pursuant to which seepage of water is clearly within that phrase.  Further, damage was clearly caused to Office 3A by the seepage of water, and this is also sufficient to lead to the conclusion that there has been a breach of Clause 19(e).  For completeness, it also seems to us, as it did to the judge, that the defendant was in breach of Clauses 18 and 22 of the DMC.

23.  As the defendant’s liability for breach of the DMC cannot, we think, be gainsaid, it is not necessary to consider whether or not the defendant was also liable in nuisance or negligence, and it follows that we consider that Grounds 1-5 have no merit.

24.  As for Ground 6, the defendant argues that she had taken reasonable steps to rectify the situation shortly after she had knowledge of the leakage.  No particulars of what such steps might have been were provided.  Moreover, this ground does not sit well with the judge’s findings at paragraphs 55, 91 and 95. The judge pointed out that the defendant had deprived the plaintiff of the opportunity to cross-examine a relevant witness concerning how the drainage pipe came to be fixed and whether secondary waterproofing work had been done, by failing to call that witness at trial.  The judge also held the defendant’s testimony in the matter of secondary waterproofing work to be “highly incredible”.  In these circumstances, this ground strikes us as being without merit.

25.  Finally, in relation to Ground 7, it was argued that the defendant was not liable for negligence because she had taken reasonable steps to make the elevated floor surface watertight.  Again, no particulars about the allegedly reasonable steps taken were provided.  Thus, this ground too lacks any reasonable prospects of success.

26.  For the foregoing reasons, we considered that intended appeal had no reasonable prospect of success.  Nor is there any other reason in the interests of justice why the appeal should be heard.  We therefore dismissed this application with costs to the plaintiff.  Having considered the plaintiff’s statement of costs, and the defendant’s comments thereon, we assess such costs in the gross sum of HK$156,987, having made a reduction to reflect our view as to the appropriate number of hours of attendance by the plaintiff’s solicitors that should be allowed.