TOLLEMACHE COMPANY LTD AND OTHERS v. RAYMOND LUN KWOK PAO also known as PAO LUN KWOK RAYMOND

CAMP 38/2025, [2025] HKCA 750

On An Intended Appeal From [2024] HKDC 2026 &

[2025] HKDC 155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 38 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 1322 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the 1^st to 3^rd Plaintiffs’ renewed application for leave to appeal against the judgment of H H Judge Alan Kwong dated 6 December 2024, whereby the Judge dismissed the Plaintiffs’ claim against the Defendant arising out of an incident of water leakage from the Defendant’s premises to the Plaintiffs’ premises in late July 2012, leave to appeal having been refused by the Judge on 12 February 2025.

2.  Having considered the papers before us, we are of the view that it is appropriate to determine the present application on paper without an oral hearing pursuant to Order 59, rule 2A(5) of the Rules of the High Court, Cap 4A.

BACKGROUND FACTS

3.  The detailed facts of this case and the Judge’s reasons for dismissing the Plaintiffs’ claim have been set out in the written judgment of the Judge dated 6 December 2024 (the “Judgment”), and will not be repeated here. The following brief summary should suffice for the present purpose.

4.  The 1^st Plaintiff was the registered owner, and the 2^nd and 3^rd Plaintiffs the occupiers, of the property known as Apartment B22, Block B2, Woodgreen Estate, 5 Shouson Hill Road, Hong Kong (the “Plaintiffs’ Property”), a duplex unit on the ground floor and 1^st floor of Block B2.

5.  The Defendant was the registered owner of Apartment B23, Block B2, Woodgreen Estate (the “Defendant’s Property”), comprising the entire 2^nd floor and the roof (the “Roof”) of Block B2. The Defendant’s Property was immediately above the Plaintiffs’ Property.

6.  In around 2006, the Defendant and his wife (“Mrs Pao”) moved out from the Defendant’s Property. As of July 2012, the Defendant’s Property was vacant.

7.  From 22 to 24 July 2012, Typhoon Vicente hit Hong Kong, and there was heavy rainfall. Typhoon Vicente was an exceptionally strong typhoon. The Hong Kong Observatory described it as “rare among the tropical cyclones that had necessitated the issuance of the No 10 Signal since 1946”.

8.  It does not appear to be in dispute that a few hours before 5:40 pm on 23 July 2012 (when the Hong Kong Observatory hoisted typhoon signal No 8), Ms Wongsuwan (a domestic helper employed by the Defendant), pursuant to Mrs Pao’s instructions, attended the Defendant’s Property. She checked whether the windows in the Defendant’s Property were closed and tightly fastened, and removed fallen leaves on the Roof. However, for safety reasons, Ms Wongsuwan could not attend the Defendant’s Property and the Roof in the evening on 23 July 2012 when typhoon signal No 8 was hoisted. Pausing here, we note that the Defendant’s witnesses, Mrs Pao and Ms Wongsuwan, did not attend the trial to give evidence for the reasons mentioned by the Judge at §19 of the Judgment. The above matters were not, therefore, supported by any oral evidence of the Defendant’s witnesses. However, at the trial, the Plaintiffs themselves relied upon the Defendant’s pleaded case that his domestic helper cleared the fallen leaves and waste on the Roof before the passage of Typhoon Vicente for the purpose of showing that the Defendant accepted that he had a duty to maintain and/manage the drain holes[1]. The Plaintiffs also relied on the witness statements of Mrs Pao and Ms Wongsuwan that the latter would attend the Roof to clear fallen leaves whenever a typhoon was about to arrive in support of the argument that the Defendant knew and/or should have known of the risk of water seepage into the Plaintiffs’ Property, and the measures that the Defendant adopted were inadequate[2]. As will be seen below, the Plaintiffs continue to rely on this part of the witness statement of Ms Wongsuwan in the present leave application.

9.  At the trial, it was common ground that the drain holes on the Roof that were connected to the drainpipes of Block B2 were blocked by fallen leaves during the typhoon. Apparently, the rainwater accumulated on the Roof overflowed and entered the Defendant’s Property along the staircase of Block B2. Eventually, the rainwater leaked into the Plaintiffs’ Property from the Defendant’s Property[3].

10.  The Judge made the following findings of fact:

(1)  During the period between the evening on 23 July 2012 and the early hours on 24 July 2012, a substantial amount of water entered the slab between the floor of the Defendant’s Property and the ceiling of the Plaintiffs’ Property. As a result, there was continuous water seepage into the Plaintiffs’ Property in the next few months.

(2)  The locations that were affected by the water leakage included the living room on the ground floor, and the living room, cloakroom and 3 bedrooms on the 1^st floor of the Plaintiffs’ Property[4].

(3)  The main cause of the water leakage into the Plaintiffs’ Property on 24 July 2012 (and the few months thereafter) was that “fallen leaves blocked or clogged the drain holes on the Roof”[5].

11.  On 10 July 2018, the Plaintiffs commenced the present action in the District Court against the Defendant, alleging nuisance, negligence and breaches of the deed of mutual covenants in respect of Woodgreen Estate (the “DMC”), in particular Clauses 5(c), 5(d) and 17(c) thereof, on the Defendant’s part.

THE JUDGMENT

12.  The Judge dismissed the Plaintiffs’ claim after a trial.

13.  The Judge identified 2 issues as being the real issues that required his determination, namely:

(1)  Did the Defendant fail to take reasonable steps or exercise reasonable precautions to avoid water seepage in the Plaintiffs’ Property?

(2)  Did the Defendant take reasonable steps to abate the water seepage in the Plaintiffs’ Property once he had knowledge of the same?[6]

14.  In respect of the 1^st issue, the Judge held that:

(1)  The Defendant was not under any affirmative duty or responsibility to manage and/or maintain the drainage system of the building, of which the drain holes on the Roof formed a crucial part, or ensure that the drainage system would function properly. The Defendant’s obligation was only a negative one, namely, not to use the Roof in an unreasonable manner that would or might block or clog the drain holes, which might constitute nuisance or a breach of Clauses 5(d) or 17(c) of the DMC. This was because the drainage system of the building was a common facility of Woodgreen Estate, and the duty to manage, repair and maintain the same fell on the building manager[7].

(2)  Even if the Defendant was under an affirmative duty to maintain the drain holes and ensure the proper functioning of the drainage system of the building, such duty was not strict or absolute. The Defendant could not be held liable to the Plaintiffs merely because there were fallen leaves on the Roof. The Defendant would only be liable if he had failed to (i) take reasonable steps or measures to remove the fallen leaves, or (ii) exercise reasonable precautions. The Plaintiffs’ case could not get off the ground unless it could be shown that the Defendant knew that there was an excessive amount of fallen leaves on the Roof that might block or clog the drain holes, and he unreasonably failed and/or refused to remove the same[8].

(3)  On the available evidence, it could not be shown that there was an excessive amount of fallen leaves accumulated on the Roof before the passage of Typhoon Vicente, or that the Defendant failed to deal with the fallen leaves that had blocked or clogged the drain holes on the Roof before Typhoon Vicente arrived[9]. Neither could it be shown that the Defendant knew or should have foreseen that there might be water seepage into the Plaintiffs’ Property as a result of fallen leaves blocking the drain holes on the Roof[10]. The Defendant did not act unreasonably or in breach of duty even if he owed an affirmative duty to maintain the drain holes and ensure the proper functioning of the drainage system of the building.

15.  In respect of the 2^nd issue, the Judge found, based on an incident report dated 26 July 2012 prepared by Mr Lam Chi Keung, a property officer working for the building manager of Woodgreen Estate at the material times, and other contemporaneous records, that the Defendant had not abandoned his property[11]. The Judge further found that:

(1)  The Defendant, through Mrs Pao and their domestic helper, did take steps to remove the fallen leaves that blocked the drain holes on the Roof as well as the rainwater accumulated on the floor of the Defendant’s Property on 24 July 2012.

(2)  The domestic helper started taking action to remove the fallen leaves in the morning on 24 July 2012 shortly after the 3^rd Plaintiff made a complaint, and in the afternoon on 24 July 2012, the domestic helper removed the rainwater accumulated on the floor of the Defendant’s Property.

(3)  The Defendant, through Mrs Pao and their domestic helper, did act promptly and reasonably in the circumstances[12].

(4)  Once the rainwater entered the slab between the floor of the Defendant’s Property and the ceiling of the Plaintiffs’ Property, the Defendant could not have proportionately or meaningfully done anything to alleviate the situation[13].

16.  Accordingly, the Judge held that the Defendant had taken reasonable steps to abate the water seepage into the Plaintiffs’ Property on 24 July 2012 once he had knowledge of the same.

17.  For the above reasons, the Judge found that the Defendant was not liable to the Plaintiffs for nuisance, negligence or breach of Clauses 5(c), 5(d) and 17(c) of the DMC.

THE PRESENT APPLICATION

18.  The Plaintiffs’ application for leave to appeal against the Judgment was rejected by the Judge, for the reasons set out in his decision dated 12 February 2025 (the “Leave Decision”).

19.  By a summons taken out on 25 February 2025, the Plaintiffs renew their application for leave to appeal against the Judgment to the Court of Appeal. Attached to the summons is a draft notice of appeal containing three substantive grounds of appeal:

(1)  Ground 1 – the Judge erred in finding that the Defendant did not breach various duties under the DMC, namely (i) the duty to maintain the Roof in good repair and condition under Clause 5(c), (ii) the duty not to permit the Roof to be used in a manner that caused annoyance to other owners or occupiers under Clause 5(d), and (iii) the duty not to permit annoyance, damage or inconvenience to other occupiers under Clause 17(c).

(2)  Ground 2 – the Judge erred in finding that the Defendant did not have the duty to manage and/or maintain the drain holes on the Roof because the drainage system, of which the drain holes formed a crucial part, was a common part or common facility of Woodgreen Estate and it was the manager’s duty to manage and/or maintain the drainage system.

(3)  Ground 3 – the Judge erred in finding that, even if the duties under Grounds 1 and 2 existed, the Defendant was not in breach of those duties, in that the Judge failed to have any or any sufficient regard to relevant matters, including an alleged admission by the Defendant of a known risk of fallen leaves blocking the drain holes on the Roof during a severe typhoon or rainstorm, the repeated in-advance warnings by the Hong Kong Observatory in relation to Typhoon Vicente, the Court of Appeal’s observations in Born Chief, and the draft minutes in respect of a meeting of Woodgreen Estate’s management committee on 21 April 2012.

DISCUSSION

20.  The applicable principles for (i) leave to appeal from a judgment of the District Court, and (ii) appeals against findings of primary fact made by a trial judge, are well-settled, and have been summarised by the Judge at §§4-6 of the Leave Decision. They will not be repeated here.

21.  In the Plaintiffs’ Written Statement dated 25 February 2025, Mr Chiu raises three particular points which he contends the Judge failed to properly engage in the Judgment or Leave Decision.

22.  First, Mr Chiu argues that the Judge did not have regard to the Defendant’s own admission that there was a known risk of fallen leaves blocking the drain holes on the Roof during a severe typhoon or rainstorm. This admission is said to be found in Ms Wongsuwan’s witness statement, at §6, where she said: “[w]henever a severe typhoon hit Hong Kong, which very often brought with it substantial rainfall, some of the leaves falling from the said tall trees would fall on the Flat Roof and might clog up the two drain holes on the Flat Roof … if fallen leaves were carried by the rainwater to cover the metal covers of the drain holes, the drainpipes might be clogged”. Mr Chiu argues that given this known risk of cloggage of the drain holes by fallen leaves during a typhoon, it must have been obvious to the Defendant that any removal of leaves from the drain holes before Typhoon Vicente hit Hong Kong was inadequate and extra precautions should be taken.

23.  This argument has no validity. It was not a finding of the Judge that the Defendant was not aware of, or did not foresee, the risk of fallen leaves blocking the drain holes during a severe typhoon or rainstorm. The fact that it was the Defendant’s practice to instruct his domestic helper to attend the Defendant’s Property prior to the arrival of any typhoon or rainstorm to, inter alia, remove fallen leaves on the Roof was itself an implicit recognition of a risk that the drain holes might be blocked by fallen leaves. It did not, however, necessarily follow from the fact that there was a reasonably foreseeable risk of the drain holes on the Roof being blocked by fallen leaves that it was also a reasonably foreseeable risk that the accumulated rainwater on the Roof might overflow and somehow find its way down to the Plaintiffs’ Property and caused property loss or damage to the Plaintiffs. Whether the latter was a reasonably foreseeable risk is a question of fact, requiring an assessment of all relevant circumstances, including the amount of leaves that might fall onto the Roof, the severity of anticipated rainfall, whether there were similar incidents in the past, as well as the physical condition of the Roof and its relative position and orientation with respect to the staircase of Block B2. It would appear that some of these matters were not fully explored at the trial. However, on the basis of available materials before the Judge, he did not accept that the Defendant “knew and/or ought to know that the fallen leaves might cause water seepage in the Plaintiffs’ Property”, or “the Defendant should have foreseen the water seepage that gave rise to the present action”[14]. We consider that it was open to the Judge to come to such conclusions. There is no proper or sufficient basis for this Court to interfere with these findings of fact made by the Judge.

24.  Second, Mr Chiu argues that the Judge misunderstood the Plaintiffs’ reliance on the following observations by Liu JA in Born Chief Co trading as Beijing Restaurant v Tsai George & Tsai Mary [1996] 2 HKLR 188: “All in this territory would expect such a precaution to be taken against the possibility of flooding caused by inclement weather, particularly with a flat roof to which the rain water from the adjoining flat also flowed” (at 191D), and “The possibility of flooding in heavy rainfall must be or should reasonably have been within the knowledge, as the judge rightly put it, of ‘anyone living in Hong Kong’” (at 191G). These observations are said to reinforce the point made above that the possibility of flooding in heavy rainfall and inclement weather, particularly when cloggage of the drain holes was a known risk, must be or should reasonably have been within the Defendant’s knowledge, and thus the Defendant ought to have taken reasonable measures against such risk.

25.  In our view, it is clear that Liu JA did not lay down any proposition of law in the aforesaid observations in Born Chief. Those observations were, as Mr Chiu himself acknowledged, matters of common sense, and must be read in the light of the factual circumstances in that case. As pointed out by the Judge, the defendants in that case left a sliding door open leaving a 12-inch opening, and it was held that the defendants should have foreseen the risk of flooding in the plaintiff’s property which could have been avoided by closing the sliding door before the heavy rainfall began[15]. Mr Chiu has not quoted the passage in the same paragraph that immediately preceded the aforesaid observations of Liu JA (at 191C-D): “The 12-inch opening left in the sliding door was different. Anyone in Hong Kong would close windows on leaving his property unattended. Where, as here, a sliding door was left ajar, the absentee owner must have realised the possibility of flooding in heavy rainfall in Hong Kong. Such foreseeability of the potential for harm to one’s neighbours would cast a duty or responsibility upon the defendants to keep their sliding door shut”. It was in that context that Liu JA observed that “[a]ll in this territory would expect such a precaution to be taken against the possibility of flooding caused by inclement weather …” [emphasis added]. As earlier mentioned, whether there was a reasonably foreseeable risk of overflowing of the accumulated rainwater on the Roof which might somehow find its way down to the Plaintiffs’ Property and caused property loss or damage to the Plaintiffs as a result of the blockage of the drain holes on the Roof by fallen leaves is a question of fact. The Judge was entitled to come to his conclusion that such a risk was not reasonably foreseeable in the circumstances of the present case. We do not accept that the Judge misunderstood the Plaintiffs’ reliance on Liu JA’s observations in Born Chief, or incorrectly came to the view that those observations were not applicable in the context of the present case.

26.  Third, Mr Chiu argues that the Judge failed to have regard to the Plaintiffs’ unchallenged evidence in §33 of the 2^nd Plaintiff’s witness statement that the Defendant could have installed rain curtains on the Roof and employed staff to close the rain curtains whenever there was rain or rainstorm or typhoon. Mr Chiu complains that the Judge unfairly criticised the Plaintiffs for not “explor[ing] the suggestion about ‘rain curtain’ with D’s expert when she was cross-examined” when, under the expert directions, the experts were only asked to “investigate into the source and cause of the subject water seepage problem …”, but not to “opine on what precautionary measures could be put in place to prevent flooding”. Mr Chiu also argues that the Defendant’s counsel did not put to the 2^nd Plaintiff in cross-examination that rain curtain was ineffective, and thus should not be permitted to ask the court not to accept the 2^nd Plaintiff’s evidence, relying on Phipson on Evidence, 19^th edn, at §12-12.

27.  In our view, the Plaintiffs’ reliance on the so-called unchallenged evidence of the 2^nd Plaintiff is misguided. At §33 of his witness statement dated 20 September 2022, the 2^nd Plaintiff stated as follows: “Further, at all relevant times, the Defendant did not take any preventive measures, such as to install rain curtains on the Roof and employ staff to close these curtains whenever there is rain or rainstorm or typhoon”. No further details of the “rain curtains” which the 2^nd Plaintiff contended the Defendant ought to have installed on the Roof were given, such as the nature of rain curtains, the feasibility of their installation on the Roof, their effectiveness to prevent blockage of the drain holes or flooding of the Roof, or the costs of installation of the same. The Judge considered the 2^nd Plaintiff’s suggestion that the Defendant could or should have installed rain curtains on the Roof to be a “bare assertion”. The Judge pointed out that the 2^nd Plaintiff could not even explain how a rain curtain might avoid the water leakage in the circumstances of the present case, and did not address the questions of expenses, proportionality and feasibility of installing rain curtains on the Roof. The Judge concluded that the 2^nd Plaintiff’s bare assertion simply carried no substance at all[16]. In our view, the Judge was entitled to come to that conclusion.

28.  In all, none of the above three specific points raised by Mr Chiu has merit.

29.  In respect of other matters raised in the Plaintiffs’ draft grounds of appeal on which Mr Chiu has not made any specific submissions, all the major points have been adequately dealt with by the Judge in his Judgment and/or Leave Decision. We do not propose to set out the Judge’s analysis in this judgment, save to mention that we are in general agreement with the Judge’s reasoning. We do not consider that they give raise to any reasonably arguable grounds of appeal.

30.  In all, we are not satisfied that the Plaintiffs’ intended appeal has a reasonable prospect of success. Neither do we see that there is any other reason in the interests of justice why the intended appeal should be heard.

DISPOSITION

31.  The Plaintiffs’ renewed application for leave to appeal is refused, and their summons filed on 25 February 2025 is dismissed with costs to the Defendant, to be summarily assessed. We have considered the costs statement lodged by the Defendant on 11 March 2025[17], and summarily assess the Defendant’s costs in the sum of HK$80,000. The above costs order (including the assessment of costs) is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

32.  The Plaintiffs’ application for leave to appeal is totally without merit. Accordingly, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the Rules of the High Court.