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

DCCJ 813/2014

[2018] HKDC 138

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 813 OF 2014

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DECISION

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The application

1.  By way of her summons filed on 14 November 2017 (“the Summons”), the defendant seeks leave to appeal against my judgment dated 18 October 2017 (“the Judgment”) whereby I entered judgment in favour of the plaintiff, Madam Yik Yuen Ling (“Madam Yik”) for the sum of HK$473,900 with interest thereon; and granted an injunction ordering the defendant to take all reasonable steps to make waterproof the Flat Roof (which was part of Flat 4A of a building in Sheung Wan as owned by the defendant) (“the Flat Roof”) so as to prevent further seepage therefrom to the unit below (i.e. Office 3A as owned by Madam Yik) (“Office 3A”) within 90 days from the date of the Judgment.

The relevant principles

2.  Under section 63A(2) of the District Court Ordinance (Cap. 336), the court shall not grant leave to appeal unless it is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice that the appeal should be heard.

3.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.  See KHM v. HTF (HCMP 288/2011, 7 September 2011) per Hartman and Fok JJA at paras 8-9.

The background

4.  The factual background is set out in detail at paras 7 to 38 of the Judgment.  I do not need to repeat here.

5.  The 6-day trial concerned a water leakage dispute. The Flat Roof is immediately above Office 3A.  I found the water seepage was solely sourced from the Flat Roof.   I also found that the water seepage has prevented Madam Yik from operating her business in Office 3A, and she suffered damages assessed at HK$473,000 (which comprises of agreed costs for rectifying the damage done to the ceiling in the sum of HK$48,300, the relevant alternative accommodation costs incurred by Madam Yik in the sum of HK$406,000, and the pre-action surveyor fee incurred for investigating into the cause of seepage in the sum of HK$19,600)^[1].

6.  At the outset, I should mention that, sadly, Madam Yik had passed away by the hearing of this leave application.  But before this hearing, a consent summons dated 5 January 2018 was filed and submitted before a Master whereby late Madam Yik’s son (Mr Ling Tsang Cho), being the administrator of her estate, sought leave pursuant to Order 15 rule 7 that he be made a party to these proceedings as the plaintiff and substituted for Madam Yik, deceased and that the proceedings be carried on between himself as the administrator of the estate and the defendant (“the Consent Summons”).  At the time of the hearing, leave for such application had yet not been granted by the Master presumably the Master was still considering the answers to certain requisitions previously raised with Mr. Ling.  But both parties’ counsel agreed that this court could proceed to hear the parties’ submissions for the present leave application notwithstanding such leave had yet been granted.  On 30 January 2018, the Consent Summons and the supporting affirmation were transferred from the Master’s Office for my approval.  I made an order in terms of the Consent Summons on the same day.   So, before the delivery of this Decision, the proceedings would be carried on as if Mr. Ling (being the administrator) had been substituted for late Madam Yik as per Order 15 rule 7.

The salient features of this case

7.  It is also appropriate to point out some salient features as pertinent to the determination of this application.  It is common ground that the defendant’s predecessor-in-title of her unit had built an elevated floor slab (of about 6 inches thick)[2] on top of the original floor surface of the Flat Roof.

8.  It is also the unchallenged findings of this court that:-

(1)   The waterproofing membrane installed at the original floor surface of the Flat Roof (“the original floor surface”) was defective[3].

(2)   There is no evidence at all material times that there was any waterproofing membrane installed directly beneath the floor tiles at the surface of the elevated floor slab (“the elevated floor surface”)[4].

9.  In this application, the defendant has not disputed with the legal principles on nuisance as set out in paras 142 to 146, and 149 to 152 of the Judgment.

Overview of the intended grounds of appeal

10.  The draft notice of appeal (as exhibited to the supporting affirmation for the Summons) sets out 10 intended appeal grounds, which Mr. Harrison Cheung, counsel for the defendant, grouped them under five categories in his skeleton submission.

11.  It is the overview of this court that the defendant in essence re-runs at this hearing her arguments at the trial, which had been fully canvassed and rejected by this court.  The defendant also attempts by such re-arguments to appeal against the findings of facts by this court.

Intended appeal ground 1

12.  In gist, the defendant says there is insufficient evidence of the seepage sourced from the Flat Roof, and this court ought to have held that the source of water seepage is unknown.  Mr. Cheung submits that the court should have given little weight to the 1^st ponding test on 22 January 2014 because (1) it was conducted in the absence of the experts and was hearsay evidence; and (2) it was inconsistent with the 2^nd and 3^rd ponding test results.

13.  The 1^st ponding test was conducted by a consultant surveyor as appointed by the Joint Office of Food and Environmental Hygiene Department and Buildings Department (“the Joint Office”)[5].  After such test, florescent dye was found to have reappeared at the ceiling of Office 3A on the same day of the test.  This eventually led to the issuance of nuisance notice by the Joint Office to the defendant[6].  At the trial, the defendant did not challenge the result of the 1^st ponding test^[7].  After considering the totality of the evidence (and in particular both parties’ expert evidence given in relation to such test and all the other various postulated sources[8]), this court accepted the 1^st ponding test result to be clear evidence of the seepage sourced from the Flat Roof[9], and was of the view that the defendant could not grapple with such test result[10].   The MC readings taken by the Joint Office’s officers at different periods of time also support the court’s finding on the source of water seepage.  Again, the defendant has no quarrel with this court’s reasoning on the MC readings.  It was under a context that this court found that the water seepage was solely sourced from the Flat Roof^[11].  

14.  As such, with respect, this court has difficulty to follow Mr. Cheung’s submission that the 1^st ponding test is hearsay evidence when such ponding test result had in fact been fully considered by both parties’ experts.  In particular, the plaintiff’s expert (“P’s expert”) opined that the 1^st ponding test result is clear evidence showing the seepage is sourced from the Flat Roof^[12].  Even according to the defendant’s expert (“D’s expert”), his testimony given at trial is that ‘when colour dye used in such ponding test conducted at the Flat Roof reappeared on Office 3A’s ceiling, the water path should originate from the Flat Roof down to the ceiling of the unit below.’^[13]

15.  As for the negative results of the 2^nd and 3^rd ponding tests[14], again it was after careful analysis of the factual and expert evidence as a whole that this court found such phenomenon was due to the presence of secondary waterproofing work taking such effect during these two later ponding tests so as to prevent colour dye particles from reappearing at the ceiling of Office 3A^[15].

16.  Mr. Cheung submits that there was no mention of such secondary waterproofing work in the 2^nd ponding test.  However, the absence of mentioning of such work does not necessarily mean there was no such work being carried out before such test.  This court had fully considered all the evidence before it made a finding of fact by drawing the reasonable inference that the secondary waterproofing work was indeed carried out at some point(s) of time after the 1^st ponding test with the knowledge and consent of the defendant (through her cohabitee boyfriend, one Mr. Ng, who was at the material times responsible for handing the water seepage case on her behalf)^[16].  There is no appeal against such finding of fact.  In this light, the submission for this intended ground is clearly unmeritorious.

17.  Mr. Cheung pointed to P’s expert evidence that a layer of ‘debonded’ suspected waterproofing coating was found partially floating on the water during the 3^rd ponding test.  So, such floating layer could not provide any waterproofing effect to the ponding water which was kept at the Flat Roof for such a long time during the test.  However, Mr. Cheung conveniently ignored the fact that P’s expert had not mentioned about the actual size or extent of such layer as pointed out in para 45 of the Judgment.   Mr Cheung also failed to deal with this court’s observation that D’s expert had the opportunity to refer this court to a photo in support of his testimony that he saw some pieces of transparent layers floating on the water but only a small part of such layer can be seen peeled off along the edge of a floor tile at the location just next to the doorway which was nearly a full length of the Flat Roof away from Area 3 in Zone A^[17] of the ceiling of Office 3A (where the florescent dye was once found).  And D’s expert was unable to refer to any other photos to show that other part of the waterproofing layer had peeled off from other floor tiles after the 3^rd ponding test.^[18]   It was also D’s expert evidence that waterproofing coating could be created by way of painting a layer to improve the waterproofing function of a surface.[19]  The full discussion on such floating materials can be found at paras 61 to 65 of the Judgment.

18.  It was on the aforesaid evidential basis that this court found at para 65 of the Judgment that the mere phenomenon of some pieces of thin transparent layers (of unknown number or size) or a waterproofing layer (again of unknown size or extent) as described by the experts cannot be sufficient to counter the 1^st ponding test result, which shows that without some secondary waterproofing work subsequently performed at the Flat Roof and taking effect at the elevated floor surface during the 2^nd and 3^rd ponding tests, it is unlikely that no dye particles would reappear at the same location of Area A3 with the same kind of ponding test conducted on the latter two occasions.

19.  In these circumstances, I am of the view that intended appeal ground 1 is totally devoid of merits.

Intended appeal grounds 2 to 6

20.  Intended grounds 2 to 6 (as grouped under the same heading in the defendant’s skeleton submission) can be dealt with together and summarised thus.  In gist, the defendant submits that this court should have but fail to make a finding that the waterproofing membrane at the original floor surface was a common part.  It was the incorporated owners of the building (“the IO”), rather than the defendant who should be responsible for repairing such defective waterproofing membrane. (Intended grounds 2 to 3) The fact that there exists an elevated floor slab on top of the original floor surface does not shift the liability from the IO to the defendant.  The defendant had no duty to keep the elevated floor surface watertight when the waterproofing membrane could have provided the waterproofing function. (Intended grounds 4 to 6)

21.  The submission for intended grounds 2 and 3 that the court failed to make a finding of the waterproofing membrane in question to be a common part is a non-point.  As this court has made it clear in the Judgment that although it is unnecessary for this court to make a finding whether such waterproofing membrane was a common part or not, this court went on to discuss in detail the relevant law and evidence as involved in this case and then held that even if the waterproofing membrane at the original floor surface was a common part, and that the IO bears the responsibility to repair such defective waterproofing membrane, this would not absolve the defendant’s own legal responsibility under the DMC, and under the law of nuisance^[20].

22.  With respect, the main fallacy of the Mr Cheung’s argument for intended grounds 4 to 6 is that he also conveniently ignored the important legal principles elicited from a line of high authorities from both the jurisdiction in Hong Kong (viz Cheung Sau Ling v Cheung Lai Chong, and Born Chief v George Tsai) ^[21] and in England (viz Sedleigh-Denfield v O’ Callaghan, Goldman v Hargrave, and Leakey v National Trust) ^[22] holding to the effect that so long as the defendant knew or ought to have known that the water seepage occurred at the plaintiff’s premises was sourced from the defendant’s premises, the defendant could still be held liable under the law of nuisance even though she has not committed any positive act herself to cause water seeping down from her unit to the unit below, or even the water was not originated from a man-made source (such as rainwater as in the present case).^[23]

23.  In this light, the main bulk of the defendant’s submissions made on these intended appeal grounds which blinkered on the IO’s duty to repair the defective waterproofing membrane at the original floor surface but without properly addressing the legal implication of these authorities as highlighted in the preceding paragraph are simply misdirected.

The law on nuisance

24.  It is also the holding of this court that the underlying basis for the defendant’s liability under nuisance in this case is not because she was responsible for creating the nuisance.  Rather, the defendant’s wrong lies in her permitting such water seepage (as originated from a natural source, i.e. rainwater here) causing physical damage to her neighbour’s property to continue despite her knowledge of its existence. She could have but fail to take reasonable steps in her circumstances to prevent water from seeping down to her neighbour’s unit.  At all material times, the Flat Roof was within her control and she also had the reasonable means and time to take steps to abate the nuisance.^[24]

25.  Upon being asked by the court to clarify the defendant’s stance about those authorities of Sedleigh-Denfield v O’ Callaghan, Goldman v Hargrave, and Leakey v National Trust^[25] as cited and discussed in the Judgment, Mr. Cheung agreed that he has no dispute that those authorities on nuisance as cited being applicable to the present case. 

26.  At the hearing, Mr. Cheung nonetheless insisted his submission that it is not just and fair to require the defendant to make the elevated floor surface watertight when the IO has the duty to repair the defective waterproofing membrane at the original floor surface.

27.  But with those Hong Kong and English authorities as mentioned above being applicable to the present case, firstly, this court simply fails to see how the defendant can absolve its own legal duty (which is being independent of the IO’s duty to repair the defective waterproofing membrane^[26] at the original floor surface) to take reasonable steps to abate the nuisance in the circumstances of this case.   Secondly, by adopting the elevated floor slab as built by her predecessor (which existence has effectively been preventing the defective waterproofing membrane from getting repaired or replaced), it is clear that the defendant should have but failed to take reasonable steps to make the elevated floor surface watertight under the context of this case.  The elaborated reason can be found at paras 154 and 155 of the Judgment.  It is unnecessary for me to repeat here. 

28.  Mr. Cheung sought to argue that if this court is correct, whether there was an elevated floor slab would make no difference and it would be the defendant who should shoulder the responsibility in any event.   He then tried to draw an analogy by submitting to the effect that if there was no such elevated floor slab, and there was water seepage as a result of rainwater, it would be absurd to require the defendant to install yet another waterproofing membrane on top of the original floor slab.

29.  With respect, I cannot accept such argument, which is misconceived.  The short answer is that the defendant was asked to do what is reasonable in the surrounding circumstances as they actually are, rather than in a hypothetical situation. When the elevated floor slab is in place, it was obviously reasonable for the defendant to make it watertight in the present setting as explained in paras 154 and 155 of the Judgment.  Had such elevated floor slab been removed (and though this was not the scenario before the court at trial and it was only raised by Mr Cheung as a hypothetical scenario in running his submission), the court would then need to decide what should reasonably be required from the defendant to abate the nuisance (as originated from a natural source) in such circumstances.  However, even in such eventuality, I do not think the defendant could simply fold her arms and do nothing whilst knowing that rainwater has been seeping down from her unit occasioning physical damage to her neighour’s unit below.  In my view, it may still be reasonable for the defendant to take steps, say, to inform the IO to repair the defective waterproofing membrane (on the assumption that it was a common part) and/or to render conducive assistance (rather than creating obstruction) for the abatement of the nuisance as reasonably required under the circumstances. 

30.  In response to the court’s questions posed to him during his oral submission, Mr Cheung did not seek to argue that the defendant was under no obligation to inform the IO of the seepage. Instead he submitted that the plaintiff could also have informed the IO.  However, that would at most only give rise to a question of contributory negligence which needs to resolved according to the individual circumstances of each case.  And that would not per se absolve the defendant’s duty to abate the seepage in question under the law of nuisance.  Mr. Cheung fairly agreed that no case of contributory negligence along that line was pleaded or argued at trial against the plaintiff.  In these circumstances, such fact-sensitive argument cannot be raised in the intended appeal.  And it was in fact not raised in this leave application.

Defendant’s obligations under the DMC

31.  Mr. Cheung submits that the seepage was primarily originated from rainwater, which falling upon the Flat Roof was beyond the defendant’s control, and as such the defendant did not cause the nuisance and hence such kind of seepage is not covered by the DMC clauses in question (i.e. Clauses 18, 19(e) and 22). 

32.  However, firstly, as pointed out above, the defendant would be liable under the law of nuisance under the circumstances of this case by knowingly permitting rainwater to seep through the elevated floor surface of the Flat Roof down to the ceiling of the unit below.  Also, as pointed out in the Judgment, it is clear that the wordings of these DMC clauses (with which the defendant is obliged to comply) would be wide enough to cover the present scenario where the defendant as the owner of the Flat Roof though has not caused the seepage, but in fact has permitted the same as sourced from her unit to happen thereby occasioning loss and damage to the owner of the unit below (ie the plaintiff here).  The full discussion of the construction and effect of these DMC clauses can be found at paras 132 to 139 of the Judgment.

33.  It suffices to recap in this leave application that Clauses 18 covers not just acts, but also neglects or omissions on the defendant’s part to keep her unit (including the Flat Roof) in good tenable repair and condition, otherwise she is obliged thereunder to make good any loss or damage as suffered by other co-owners due to such neglect or omission.  Obviously, Clause 18 is wide enough to cover the subject neglect or omission of the defendant to keep the elevated floor surface in watertight condition.  That aside, the reasonable construction of Clause 19(e) would mean that the defendant as a co-owner has undertaken to other co-owners of the same building not to permit or suffered to be done anything in such unit which may be or become a nuisance or annoyance to or cause damage to other co-owners.  Clause 22 is of similar legal effect but it specifically deals with owners of the roof and flat roof of the building.

Defendant’ submission on Tai Fong Trade’s line of cases

34.  For completeness sake, I wish to point out that Mr. Cheung also basically repeated the submission made by the defendant’s trial counsel on the authorities of Tai Fong Trade Ltd v The IO of Nos 167 & 169 Hoi Bun Road & Anor, Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre, and梁有勝訴馮源禧及另四人 (“Leung Yau Shing case”) which had been fully canvassed and rejected by this court in the Judgment.  Detailed discussion of those authorities can be found at paras 128 to 131, 156 to 160, and 161 to 166 of the Judgment, which fully explained why those authorities have no application to the present case.

35.  In short, the court in those authorities was focusing on the determination whether the IO or the relevant roof floor owner should be held responsible for repairing the defective waterproofing membrane in question (as found to be common part), and they have no application to the present case of which the decisive issue is whether the defendant was in breach of the DMC clauses or under nuisance by knowingly permitting or allowing water seep through the elevated floor surface of the Flat Roof down to the unit below.  This court did not order the defendant to remedy the defective waterproofing membrane at the original floor surface.  Rather, the defendant was ordered to keep the elevated floor surface waterproof so as to abate the nuisance, and to compensate the damages as suffered by the plaintiff due to her breach of the DMC and her liability under nuisance. 

36.  Any reliance by the defendant on Leung Yau Shing case to suggest the IO’s duty to repair the defective waterproofing membrane could absolve her duty under the DMC and the law of nuisance was misplaced as explained in paras 161 to 166 of the Judgment. In particular, this court had specifically made it clear why such authority could provide no defence to the plaintiff’s claim for damages under the breach of the DMC and nuisance.   Mr. Cheung completely failed to address those parts of the Judgment in his written and oral submission.

37.  In these circumstances, the intended appeal grounds 3 to 6 against this court’s holding of the defendant being liable for breach of DMC and under nuisance are totally unmeritorious.  Further, strictly speaking, the defendant has not sought leave to appeal against this court’s holding in respect of the defendant’s liability for the water seepage under the cause of action of negligence (as per paras 168 to 171 of the Judgment).  For, the draft notice of appeal (to which the Summons refers) does not contain any intended appeal ground against this court’s holding on the defendant’s negligence.

38.  In any event, since this court does not see any merits in the defendant’s intended appeal against its holdings of defendant’s liability for her breach of DMC and under the law of nuisance, any potential appeal against the holding on negligence based upon Mr. Cheung’s arguments put forward in his written and oral submission would likewise bound to fail, and also become academic. 

Intended appeal ground 7

39.  The defendant submits that this court erred in holding her liable for any damages suffered by the plaintiff as a result of the water leakage caused by the drainage defect in relation to the water basin situated at the Flat Roof[27] when the defendant had taken reasonable steps to rectify the situation ‘shortly’ after the defendant had knowledge of the said leakage.

40.  First of all, there is no appeal against this court’s finding as per para 126 of the Judgment that “the leakage at the drainage pipe connected with the basin at the Flat Roof could also contribute to the seepage found at the affected areas of the ceiling as observed by the Joint Office’s officer[s] during the period somewhere between 9 March 2015 and 11 July 2015.”

41.  Also, there is no appeal against the finding at para 226 of the Judgment that “the defendant had constructive knowledge of the Flat Roof being the source of water seepage occurred at the ceiling of Office 3A from 31 March 2014 onwards notwithstanding that she was only formally notified of the result of the 1^st ponding test by way of the Joint Office’s letter of 23 June 2014.”  Again, there is no appeal against this court’s finding that it is unlikely that any repair or replacement work to fix such leakage problem was done before 15 June 2015 as per para 94 of the Judgment.

42.  On such basis, leaving aside the question of seepage as originated from rainwater for the moment, it must be right that the defendant could be held liable for any damages suffered by the plaintiff as caused by such drainage leakage occurred after the date when the defendant was found to have constructive knowledge of the source of seepage (ie from 31 March 2015 onwards)[28] but before such drainage leakage was fixed by her or her agent,^[29] which would not be earlier than 15 June 2015.  Of note is also that the defendant had chosen not to adduce any evidence to inform this court at trial as to when exactly the drainage leakage was fixed.

43.  More fundamentally, it is this court’s finding (against which there is likewise no appeal) that the seepage at the ceiling as sourced from the Flat Roof^[30] was mainly originated from rainwater^[31], and this court also found the defendant liable for such seepage for the period from 31 March 2014 onwards up to the trial hearing^[32].  Thus, this intended appeal ground would in any event be of no avail to overturn this court’s holding in respect of the defendant’s liability for damages and the grant of injunction when no merit can be demonstrated for the intended appeal grounds 1 to 6 as explained above.

Intended appeal ground 8

44.  The defendant submits that this court erred in concluding the seepage occurred at the ceiling of Office 3A was unlikely caused by the condensation water found at the floor level (as trapped within the narrow space between a drywall and the dividing wall between Office 3A and Office 3B) when it had also found that there is a real possibility that the water at the floor level was condensed from the humid air that got into contact with the cool surface of Office 3A’s floor slab and/or the dividing wall. 

45.  With respect, I see no merits at all in this intended ground.  It is also observed that, firstly, it is in substance an appeal against finding of fact.  Secondly, such intended ground was formulated by quoting only a part of this court’s reasoning, without dealing with the other related parts as discussed in the Judgment. 

46.  To begin with, colourless condensation water so found was only of a very thin layer (of a HK$5 coin thickness according to P’s expert’s description)^[33] and Mr. Cheung omitted to point this out in his   submission.  This court then found that such thin layer of condensation water had possibly been condensed from humid air (trapped within such space) having got into contact with the cool surface of Office 3A’s floor slab and/or the dividing wall[34].  However, the matter does not stop here. This court went on to observe (which Mr Cheung again omitted to mention) that there is no clear evidence of any condensation water found at the dividing wall.  This court also found at para 108 of the Judgment that the dividing wall behind the upper opening made at the drywall (near the ceiling) was much drier than its bottom part as close to the location where such accumulation of water was found.  Not only that, Mr. Cheung likewise failed to point out that the experts’ common finding that the moisture content level at different checkpoints at the middle part of the B4 wall[35] (i.e. referring to the drywall) or the area near the ceiling on both days of joint inspection are all normal, and such distribution of moisture content at B4 Wall show that the colourless water found at the floor level could not possibly be responsible for the seepage at the ceiling[36].

47.  I should also mention that any condensation theory as postulated by D’s expert in the joint expert report or as he had modified at trial by suggesting moisture coming into contact with cool surface of steel bars as embedded within the concrete ceiling trial was untested[37]. This court also explained in para 112 to 116 of the Judgment why such modified condensation theory was inherently improbable and premised on sheer speculations. Again, there is no appeal or challenge against all these reasoning of this court. 

48.  Further, before coming to the conclusion that the seepage found at the ceiling was not sourced from any condensation water owing to the coldness created by the dividing wall (i.e. including condensation water as found at the floor level) or otherwise sourced from Office 3B as D’s expert postulated, this court had considered all the factual as well as expert evidence, which included P’s expert’s evidence that the condensation water as found at the floor level of Office 3A was very unlikely to be the source of the seepage found at its ceiling[38].  

49.  With all these factual and expert evidence before this court, obviously it was entitled to find that the water accumulated at the floor level within the narrow space could not possibly be responsible for the seepage occurred at the ceiling[39].

50.  In these circumstances, with respect, Mr. Cheung, without properly addressing the aforesaid reasoning of this court at all, glaringly failed to explain how this court went wrong in making the relevant finding of fact (as supported by P’s expert evidence), let alone seriously wrong: see Hui Ling Ling v Sky Field Development Ltd (CACV 122 of 2012, 22 March 2013) per Kwan JA at para 43 as cited by Mr. Damian Wong, counsel for the plaintiff.   As such, it would also be futile for Mr. Cheung to simply submit that the condensation water would at least contribute, to a certain extent, to the high MC readings at the ceiling.

Intended appeal grounds 9 and 10

51.  These two intended grounds touch upon the question of damages only. 

52.  Under intended appeal ground 9, the defendant submits that this court erred in granting damages of alternative accommodation of 29 months (i.e. from 31 March 2014 up to 2 September 2016) (“the relevant period”) to the plaintiff^[40] when there was insufficient evidence to support the court’s finding that Office 3A was not suitable to be operated for business purpose at that period of time. The defendant says the water seepage should have been much improved because of the secondary waterproofing work done so that such improved situation of Office 3A could allow it to run as a shop.

53.  This intended ground is likewise an appeal against finding of fact.  This Court has provided the reasons in the Judgment as to why the water seepage occurred at Zone A of the ceiling alone has been serious enough to prevent the plaintiff from using it for her business at all material times, not to mention that if the seepage condition at Zones B of the ceiling are further taken into account^[41]. With respect, Mr. Cheung is basically repeating the defendant trial counsel’s arguments which had been fully considered and rejected by this court.   I see no merits in such intended ground, having particular regard to the fact that there is no appeal against this court’s factual findings that^[42]:-

(1) Water dripping occurred at Area A3 of the ceiling on and off during raining days;

(2) When all the MC records were considered as a whole, the water seepage problem at Zone A has all along been serious.

(3) The significant drop in MC readings taken at the affected areas of the ceiling on 5 December 2014 and 10 February 2015 (ie. MC readings taken by another consultant surveyor appointed by the Joint Office for the 2^nd ponding test) was only due to the presence of the secondary work, which was only of limited and temporary effect.^[43]

(4) The subsequent MC readings at Zone A of the ceiling taken on 9 March 2015, 11 May 2015, 11 and 13 July 2015 and 7 October 2015 remained persistently high.

(5) The photos produced at trial shows that notwithstanding renovation had been done to the ceiling, peeling of paints, bulged plastic, water stain, mould were still visible extensively at different areas of the ceiling, though most seriously in Zone A.  Such a dilapidated state of the ceiling was far from presentable to the plaintiff’s customers[44].

(6) The degree and extent of water seepage at the ceiling of Office 3A as revealed from the photos and MC readings as available before the Court has been serious.[45]

(7) The plaintiff’s business to be carried on in Office 3A was of such nature and mode of operation as found by this court at para 196 of the Judgment.

54.  In this light, the temporary dropping of MC readings during some interim periods had indeed been considered by this court.  But, it was after considering the overall seepage condition of the ceiling (at all three zones: Zone A, Zone B and Zone C)[46] during the relevant period and the plaintiff’s business that this court came to the conclusion that it would be serious enough to prevent the plaintiff from using Office 3A for her business during that period of time[47].  In particular, it would be unreasonable to force the plaintiff to run her business in Office 3A which was subject to the persistent and adverse influence of serious water seepage, and such problem had remained unresolved and was still subsisting by the time of trial.[48] In this light, I fail to see any merit in the intended ground 9 for appealing against such finding of fact either.

55.  For completeness sake, I also wish to point out that there is a suggestion made in Mr. Cheung’s skeleton submission that Zone A of the ceiling could be isolated off by building a drywall separating it from the rest of the premises, and part of the affected ceiling could be installed with false ceiling to cover the affected zones, and with temporary drain installed at the ceiling to drain off the seeped through water.  However, it is observed that, firstly, this was not specifically pleaded in the Re- Amended Defence or its Voluntary Particulars.  Neither was such argument advanced in the defendant’s trial counsel’s opening or closing submission.  Thus, it would be procedurally unfair and inappropriate to allow such facts-sensitive argument to be raised for the first time in appeal.  In particular, nothing was explored at the trial as to how such temporary drains could be installed at the ceiling to effectively drain off the water, and whether it was reasonable for the plaintiff to incur such costs in the circumstances. See Lehmanbrown Ltd v Union Trade Holdings Inc & Ors, HCMP 977 of 2015, 17 June 2015, per Lam VP at para 10.  In my view, it is impermissible for the defendant to raise such new point in her intended appeal.

56.  Secondly, such suggestion is unrealistic in light of the unresolved serious water seepage problem, and it also conveniently ignored the fact that the suggested arrangement would substantially and unreasonably restrict the area of the premises for the display of the statues, antiques and gems for sale at Office 3A where the plaintiff intended to carry on the same business as she did in her shop in New Street (“the Shop”)[49].  It is obviously an unreasonable demand, which should not be forced upon the plaintiff in mitigating her loss.  I see no merits in such argument in any event.

57.  As for intended ground 10, the defendant submits that I erred in concluding that the plaintiff could not have mitigated her loss, and I ought to have considered the long period of time that Office 3A left vacant could have been due to the occupation by the plaintiff’s son.

58.  With respect, I do not understand this intended appeal ground when this court has actually found at para 197 that the plaintiff had taken reasonable steps to mitigate her loss under the circumstances of this case.[50]

59.  Mr. Wong rightly pointed out that this court already mentioned at para 190 of the Judgment that: whether a loss is avoidable by reasonable action on a plaintiff’s part is a question of fact not law.   Basing on the finding that the ceiling of Office 3A (under the adverse influence of the water seepage) was in such a dilapidated state that it was unreasonable to force her to run her business there, I see no merits for the defendant to appeal against such finding of fact at all. 

60.  Further, I have also found at para 229 of the Judgment that the plaintiff has continued to rent the Shop[51] as alternative premises for her business not because she wanted to provide Office 3A to her son to reside at a resting room therein (which size is about 12% of the entire office only[52]).  Rather, it was owing to the water seepage in question that prevented her from operating her business there. The son just returned from Canada in July 2014, and since Office 3A could not be operated for her business anyway, the plaintiff let her son reside at the resting room in such circumstances.

61.  It is also this court’s finding at para 230 of the Judgment (which is again not appealed against) that but for the water seepage, the plaintiff could have moved into Office 3A to operate her business somewhere around the end of October 2013 (after a reasonable period of renovation).  However, as said, her son only came back in July 2014.  Thus, had there been no seepage, the son’s use of the resting room for his temporary residence would not have arisen at all.  There is no challenge to all these findings of fact.

62.  It is therefore clear that there is totally no merit in the intended ground 10.

Conclusion

63.  Due to the above reasons, the defendant fails to demonstrate that there is reasonable prospect of success in any of the intended grounds of appeal.  Neither do I see there is any other reason in the interests of justice that the appeal should be heard. Therefore, the defendant’s application for leave to appeal in respect of all the intended grounds is refused.

64.  For completeness sake, I should also mention that the Summons also contains an application for stay pending appeal.  Mr. Cheung fairly agreed that if no leave to appeal is granted in this case, the stay application should likewise fail.  Since I am not satisfied that there is any arguable ground of appeal, the application for stay is thus rejected.  See Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84, per Ma J (as his Lordship the Chief Justice then was) at para 9(6).

65.  In these circumstances, the Summons is dismissed in its entirety.

Costs

66.  Costs should normally follow the event. I also order the defendant to pay forthwith the plaintiff’s costs of the Summons with certificate for counsel to be taxed if not agreed.

67.  Lastly, it remains for me to thank counsel on both sides for their assistance rendered to the court.