SUM WING SUNG v. KWOK WING YAN VIVIAN

DCCJ 1264/2017

[2021] HKDC 766

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1264 OF 2017

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JUDGMENT

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THE CLAIM

1.  The plaintiff is the registered owner of the property known as Ground Floor and First Floor, Block 5, Rise Park Villas, No.38 Razor Hill Road, Sai Kung, New Territories, Hong Kong (“the plaintiff’s Property”)

2.  The plaintiff and his family lived in the plaintiff’s Property from the 1980s to 2012.  They then moved out thereof for a few years.  According to the plaintiff’s wife (“Mrs. Sum”), they moved back in around January 2016.

3.  The defendant is the registered owner of the Second Floor and the Roof of the same block (“the defendant’s Property”) which is located directly above the plaintiff’s Property.

4.  The defendant purchased the said property in December 2014, and then moved in together with her family, including her father (“Mr. Kwok”) and her mother (“Mrs. Kwok”), in around February 2015.

5.  There are no other floors in the said Block 5 of Rise Park Villas.  In other words, the plaintiff’s family and the defendant’s family are the only households living in the said block.

6.  By this action, the plaintiff claims against the defendant for negligence, nuisance and breach of Deed of Mutual Covenant (“DMC”) in that, among other things, the defendant had allowed water to leak from her property to a bedroom of the plaintiff’s Property.

THE ISSUES

7.  The issues which this court has to resolve in this trial are as follows:

(1)  Was there any water seepage problem in the plaintiff’s Property?

(2)  If there was any water seepage problem, what was the source of the water?

(3)  What was the cause of seepage?

(4)  Should the defendant be liable for nuisance and/or negligence and/or breach of DMC?

(5)  If the defendant is liable, what should be the amount of damages?

(6)  If the defendant is not liable, is the plaintiff liable to pay repair costs to the defendant?

8.  I will deal with these issues in turn below.

EXISTENCE OF WATER SEEPAGE

9.  Mrs. Sum first discovered water seepage in around late February or early March 2016 in one of the bedrooms situated on the 1^st Floor of the plaintiff’s Property (which means the upper floor thereof) (“the Affected Bedroom”). 

10.  Before I go on, it is necessary to describe briefly the setting of the Affected Bedroom at the material time which is relevant in the present action.

11.  The Affected Bedroom was supposed to be a suite according to the original plan as approved by the Buildings Department. However, the restroom therein had been converted to become part of the bedroom.  According to the evidence of the plaintiff and Mrs Sum, this conversion was not caused to be done by them, and it was already in place when they moved into the plaintiff’s Property in 1980s.

12.  At the material time, if one walked into the Affected Bedroom, one would immediately see a set of “reversed L-shape” cabinet. The long side of the L-shape cabinet was on the right which was placed against the wall, and the short side thereof was facing the door of the Affected Bedroom.  The meeting point of the short and long sides of the cabinet was at the corner of the said bedroom, and it has now transpired that such meeting point was in fact the location of a pipe chamber which was totally blocked (see further below). 

13.  On the short side of the “reversed L-shape” cabinet, there were two parts.  Roughly speaking, it may be said that the left part thereof (“the Left Cabinet”) was to the left of the beam which looked like dividing the Affected Bedroom into two sections.  On the other hand, the right part thereof was at the corner of the room (“the Right Cabinet”).

14.  The Left Cabinet had two compartments – the upper compartment and the lower compartment.

15.  The Right Cabinet was also divided into the upper compartment and the lower compartment.  Each compartment was covered by a set of double doors.  However, as far as the upper compartment was concerned, it appeared that the left cabinet door could not be opened, because that part of the compartment was basically occupied by one end of the beam mentioned above, and the “cabinet door” was in fact a “false” door.

16.  The right door of the upper compartment of the Right Cabinet could be opened.  Once opened, a U-shape pipe could be seen inside. The U-shape pipe was a pipe leading from the ceiling.  The other end of the U-shape pipe headed towards the wall surrounding the pipe chamber, which, as aforesaid, was at the corner of the “reversed L-shape” cabinet. 

17.  It is undisputed that the plaintiff had caused the “reversed L-shape” cabinet to be dismantled entirely in around late September 2016.  Once that was done, it could be seen that there was a pipe chamber at the corner of the room.

18.  The plaintiff complained that there were the following problems in the Affected Bedroom:

(1)  Water stains, paint bubbles and cracks were found at the ceiling thereof;

(2)  Intermittent dripping along the U-shape pipe;

(3)  There were moulds and black spots found in the said cabinet;

(4)  Water seepage within the pipe chamber.

Ceiling

19.  The defendant did not dispute that there were water stains at the ceiling of the Affected Bedroom from 1 March 2016 onwards. However, it was disputed that there were any paint bubbles or cracks.

20.  As far as “paint bubbles” were concerned, having considered the photographs attached to the expert report of Mr Hau Tung Chow dated 24 November 2016 (“the Expert Report”)[1], I accept that there were “burst bubbles” (which means that the paint had peeled off) at the ceiling which was near the end of the long side of the cabinet.

21.  However, it was not shown in any of the photographs placed before this court that there was any crack at all at the ceiling of the Affected Bedroom.  Neither was it mentioned in the Expert Report. I therefore do not accept that there was any crack at the ceiling as such.

U-shape pipe

22.  The defendant disputed the plaintiff’s allegation that there was water dripping down along the U-shape pipe.

23.  According to Mrs Sum, the water was dripping down intermittently.  It seemed that the water was dripping slowly too, because the bucket which she placed beneath the U-shape pipe would only be filled up to 1 to 2 inches after several days.

24.  Her evidence was supported by the Expert Report, as there was a photograph attached thereto which showed that water had dripped down and was caught by a kitchen paper.

25.  The defendant challenged the plaintiff’s evidence, and stated that when Mrs Kwok inspected the U-shape pipe on 10 September 2016, it was completely dry.  Given it was Mrs Sum’s evidence that water only dripped down intermittently, I do not think what Mrs Kwok saw or found on 10 September 2016 could assist the defendant.

26.  The defendant further relied on Mr Tsang’s evidence that he could not see any bucket beneath the U-shape pipe when he visited the plaintiff’s Property on 10 September 2016.  However, it can be seen from Mr Kwok’s witness statement that when he inspected the plaintiff’s Property on that same day together with Ms Tsang, Mr Kwok could see the bucket there[2].

27.  I would therefore accept the plaintiff’s case that there was water dripping down along the U-shape pipe at the material time.

28.  This ruling is also supported by the result of a water test conducted on 2 October 2016 which Mrs Kwok had participated in.  I will refer to this test further below.

Cabinet

29.  The defendant did not dispute that there was moulding in the Left Cabinet and the Right Cabinet.  However, the defendant contended that such moulding only appeared from 15 August 2016 (date of expert’s first inspection) onwards.

30.  The existence of the moulding is supported by various photographs attached to the Expert Report.  Some black stains could also be seen inside the short side of the cabinet.  Such moulding and black stains must have been there for some time.

31.  The defendant pointed out that no photograph was taken on 1 March 2016 by Mr Tsang to prove that there was already moulding or black stains inside the cabinet and that neither was such a matter mentioned in a letter issued by the management company dated 7 April 2020.  First of all, I do not think whether the moulding or black stains already appeared on 1 March 2016 matters.  Secondly, it is evident that Mr Tsang was only there in response to a complaint which was made for the first time to the management office. Apparently he was only there to see whether there was really water seepage problem so as to consider whether any follow-up work was required to be done.  He was not there to assess the overall damage caused to the plaintiff’s Property. I therefore do not regard the lack of photograph taken on 1 March 2016 to be a matter to which I should give much weight.

32.  In relation to the letter of the management office dated 7 April 2020, it was only a document recording matters relating to this water seepage complaint.  The fact that the moulding or black stains was not mentioned is neither here nor there.

Pipe chamber

33.  It cannot be disputed that water was seen dripping along the wall of the pipe chamber during the inspection on 2 October 2016.  The defendant also fairly accepted that such dripping must have nothing to do with the weather at the material time.

SOURCE OF WATER

34.  It is trite that the plaintiff has to prove where the water came from.  In Leung Yung Chun & Another v Chan Wing Sang & Others [2000] 1 HKLRD 456, it was held by Cheung J (as his Lordship then was) that:

“The burden of proof is clearly on the plaintiffs to show that the source of water came from Mr Chan’s flat. As rightly pointed out by Leong JA in 張秀玲及吳炳漢對鄭禮莊(CACV268/98), there is no presumption that the source of leakage would necessarily come from the flat above…” (at 461 I – J)

35.  Mr Chung submitted that, given the fact that the defendant’s Property was the only property above the plaintiff’s Property, theoretically there could only be two possible sources of water, namely, from the defendant’s Property, or through the external wall.

36.  The defendant disagreed, and submitted that there could be a third source, namely, through the weak points created by the alteration works done within the plaintiff’s Property. 

37.  Parties had made submissions on this issue by separating them into 2 parts, with each part dealing with different locations. I will therefore consider the arguments and set out my findings in the same way.

Ceiling, U-shape pipe dripping and cabinet

38.  I reject the defendant’s argument that water could go through the so called “weak points” created by the alternation works, such as the blocked window or “air pipe duct”, and caused the alleged problems to the ceiling and the U-shape pipe, because the water which came in via such a route could not be “sucked up” (a term used by Mr Chung) to those locations.

39.  Further, the alteration works inside the plaintiff’s Property had been done for more than 30 years, but there is no evidence that it had caused any water leakage problem in the past.

40.  I also do not accept that the water was coming from the external wall generally:

(1)  The defendant had drawn this court’s attention to the fact that there were strong monsoon signals and thunderstorm warnings on 2 and 6 different days respectively in the month of March 2016.  This argument cannot assist the defendant because it was Mrs Sum’s evidence that she had discovered the water leakage problem in late February 2016, and the report to the management office was first made on 1 March 2016.  All those weather reports attached to the defendant’s submissions were in relation to days which were much later than 1 March 2016.  In any event, it was Mrs Sum’s evidence that the seriousness of the water seepage problem was not affected by weather.  I accept her evidence in this regard.

(2)  Moreover, it can be seen that some of the affected parts of the ceiling were quite far away from the blocked windows and the air pipe duct, and away from the external wall generally.  

(3)  Further, as aforesaid, water coming into the plaintiff’s Property via such a route could not go up (against the force of gravity) to the ceiling.

41.  However, I should add that in arriving at the conclusion that it was not seepage through the external wall which caused the problem, I did not take into account the opinion of the plaintiff’s expert that there was no crack at the external wall, because he only based his opinion on his visual inspection of the external wall from the ground floor and his inspection position was quite far away from the external wall under observation.  Such an opinion cannot be reliable.

42.  Three videos had been played during the trial. The first one was recorded on 1 October 2016.  The second one was recorded at around 11:59am on 2 October 2016.  The third one was taken at around 12:33pm on 2 October 2016.  According to Mrs Kwok, the following was what happened on 2 October 2016:

(1)  She went to the plaintiff’s Property together with her plumber and contractor.  When they arrived, while she could see that there was water dripping down the pipe chamber, it was only dripping intermittently;

(2)  when they were inside the Affected Bedroom, her plumber and contractor asked her to go back to the bathroom inside her own Master Bedroom (“the defendant’s Master Bathroom”) (which was directly above the Affected Bedroom) to do a water test: they asked her to turn on all the taps (of the bathtub and the washbasin) and flush the toilet (for many times) inside the defendant’s Master Bathroom when she got their signal;

(3)  The second video was taken while she had turned on all the taps as instructed.  It could be seen from this video that water was dripping down continuously along the wall of the pipe chamber as well as along the U-shape pipe.   The dripping frequency was apparently much faster than the situation as reflected in the first video which was taken on the previous day;

(4)  After Mrs Kwok was asked to turn off the taps, she went back to the plaintiff’s Property, and she was told by her plumber that “they could see which pipe it was (見到係咩喉)”;

(5)  More importantly, the third video, which was taken after the Mrs Kwok had gone back to the plaintiff’s Property upon the completion of the water test, shows that water was dripping down along the U-shape pipe and the wall of the pipe chamber on an even more frequent basis. 

43.  The result of the above test renders great support to the plaintiff’s case that the source of water was the defendant’s Master Bathroom.

44.  In my view, that explains why it was mainly the area which was near the pipe chamber which was greatly affected by the water seepage problem.  It is true that it was not the only area that was affected: an area at the ceiling near the end of the long cabinet was also damaged by the wetness.  However, the damage caused to the ceiling which was further away from the short side of the cabinet was quite minimal.  More importantly, as will be seen below, it is evident that the water seepage problem was totally resolved after the replacement of certain pipes.

45.  The plaintiff suggested that water could also be seeping through the cracks of the floor of the defendant’s Master Bathroom. However, no test had been done to prove that that was the case.  I am not prepared to draw any inference in this regard.  

46.  On the basis of the above matters, my finding is that the water stains and bubbles at the ceiling, the dripping along the U-shape pipe and the moulding of the Left Cabinet and the Right Cabinet were all caused by water coming from the washbasin, bathtub and toilet inside the defendant’s Master Bathroom.

Pipe chamber

47.  Based on the videos referred to above, I have no hesitation in finding that the water seepage problem at the pipe chamber was also caused by water coming from the washbasin, bathtub and toilet inside the defendant’s Master Bathroom.

CAUSE OF LEAKAGE

48.  Having found that the water causing the water leakage problem in the Affected Bedroom was originated from the washbasin, bathtub and toilet inside the defendant’s Master Bathroom, the next question which I have to consider is the reason why there was such leakage.

49.  In this regard, a very important piece of evidence had been given by Mr Sit, the plaintiff’s contractor, who had been engaged by the plaintiff to dismantle the damaged cabinet and to convert the Affected Bedroom back to a suite (in other words, to add a bathroom back into the Affected Bedroom).  He stated the following in paragraph 6 of his witness statement:

“於大約2016年10月初，被告人的裝修承辦商及被告人父母曾來到原告人單位詳細看過喉槽裡面的幾條喉管。過了幾天，被告人的承辦商便在二樓作出維修，並更換了兩條喉管，包括連接二樓浴室內的座廁、洗手盤及浴缸的排水管及供水管。在被告人物業作出維修之後，水便沒有再從二樓漏下來…”

50.  The defendant did not cross-examine Mr Sit on this part of his evidence at all at the trial. 

51.  Not only was this piece of evidence not challenged by the defendant, this was supported by the evidence of both Mr and Mrs Kwok while they were cross-examined:

(1)  Mrs Kwok admitted that the defendant’s contractor had replaced not only the vertical drainage pipe but also certain waste pipe of the defendant’s Master Bathroom;

(2)  Mr Kwok admitted that apart from the vertical drainage pipe (which was larger in size with longer diameter), two other pipes which connected with the bathtub and the washbasin of the defendant’s Master Bathroom had also been replaced.

52.  As pointed out by Mr Sit, after the replacement of those pipes, the water leakage problem was resolved.

53.  That being the case, I am satisfied that the leakage problem was caused by the pipes connecting to the bathtub, washbasin and toilet of the defendant’s Master Bathroom.

54.  Mr Chung argued that while it was accepted that the water leakage problem was mostly resolved after the replacement of the said pipes, it was possible that there was in fact residual seepage problem in the floor slab, which could only be totally resolved after Mr Sit had injected waterproofing substance into the ceiling of the Affected Bedroom.  With respect, I do not accept this argument, because this speculation is simply not supported by the evidence of Mr Sit, who stated in his witness statement (see above) that there was no more water coming down from the 2^nd floor after the replacement of the pipes.  Mr Chung’s suggestion is also inconsistent with what the plaintiff’s solicitors stated in their letter dated 5 December 2016:

“[…] we are instructed that you had engaged a contractor to carry out certain repair works on the water pipes running from your premises to the [plaintiff’s] Premises in or about the week commencing from 10 October 2016. Since then, water leakage problem in the [plaintiff’s] Premises has been relieved […]”

55.  It was not mentioned therein that there was any further leakage problem thereafter.

56.  The defendant argued that evening if the water causing the water leakage problem did come from the defendant’s Property, the defendant should not be answerable to such a problem because the defective part of the drainage pipe was located within the plaintiff’s Property.  I do not accept this argument, because judging from the water drops which dropped from the top of the U-shape pipe and the top part of the wall of the pipe chamber, as well as the water stains of the ceiling of the Affected Bedroom, the water must have been leaked from a location above the ceiling of the plaintiff’s Property.  Furthermore, the pipes which connected with the bathtub, washbasin and toilet of the defendant’s Master Bathroom must be located within the defendant’s Property.

57.  Even if the pipes replacement work was only done at a location inside the plaintiff’s Property as alleged by the defendant, given the undisputed evidence that the pipe chamber was hollow and could reach the 2^nd floor, the pipes connecting with the washbasin, bathtub and toilet of the defendant’s Master Bathroom could still be replaced.  In other words, the exact location of the leakage could still be within the defendant’s Property.

THE DEFENDANT’S LIABILITY

58.  The plaintiff has pleaded 3 causes of action in the Amended Defence and Counterclaim, namely, nuisance, negligence and breach of DMC.

59.  For the sake of convenience, I will discuss the cause of action of nuisance first.

60.  In Clark & Lindsell on Torts (23^rd edition, 2020), the learned author had the following to say:

“[…] Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of: (a) […] ; or (b) his ownership or occupation of land […], when it is a private nuisance […]” (paragraph 19-01)

“[…] A private nuisance may be and usually is caused by a person doing, on his own land, something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by:

(1) causing an encroachment on his neighbour’s land, when it closely resembles trespass;

(2) causing physical damage to his neighbour’s land or building or works or vegetation upon it; or

(3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.”

(paragraph 19-06)

“[…] Nuisances of the second kind, causing physical damage to land or to something erected or growing upon it, occur when a man allows a drain on his own land to become blocked or makes a concrete paved drive so that the water overflows onto his neighbour’s land, […] allows buildings upon his land to become dilapidated so that they, or parts of them, fall upon his neighbour’s land […]” (paragraph 19-07)

“In the case of nuisance by encroachment or damage, liability is established by proving the encroachment or the damage to the land as the case may be […]” (paragraph 19-08)

61.  For nuisance of unduly interfering with his neighbour’s comfortable/convenient enjoyment of his land, it must be a real interference with the comfort/convenience of living according to standards of the average man, and the discomfort must be substantial to any person occupying the claimant’s premises. However, such requirement is satisfied where there is actual physical damage to property.[3]

62.  The learned author of Clark & Lindsell on Torts (23^rd edition, 2020) also stated in paragraph 19-133 thereof that:

“…where the claimant and the defendant were the occupiers of adjoining houses, and a drain which commenced on the defendant’s premises and, after collecting the sewage of several other houses, doubled back under the defendant’s house, got out of repair so that the sewage escaped into the claimant’s cellar, the defendant was held liable, although he did not know of the existence of the return drain. Again, where the defendant maintained a drain on his land and the drain became choked, so that the adjoining land was flooded, he was held liable on the ground of nuisance…”

63.  It therefore appears that, with the findings which I have made above in the previous sections of this Judgment, the plaintiff has done enough to prove that the defendant should be liable for nuisance.

64.  However, the defendant relied heavily on the authority of 張秀玲及吳炳漢對鄭禮莊(CACV 268/1998, unreported, 9 April 1999) and submitted that the defendant would only be liable for nuisance caused by water leakage if it is shown that she had knowledge that the water leakage in the plaintiff’s Property originated from the defendant’s Property.  The Defendant relied on the following part of the said Judgment:

“水可能導致「滋擾」，而法律就這項目有很明確的規範。簡單地說，有以下幾種普遍情況:

(1) 若漏水是在一處地方 (包括樓宇單位) 中發生，招致鄰舍 (包括另一單位) 損失時，而事源地方的戶主 (是使用該地方的人，不一定需要是業主) 明知漏水根源，他便是有意圖滋擾而須負法律責任。法律責任包括賠償及受禁制令禁制。

(2) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，而他又不知道漏水已發生，他就不須對漏水所招致鄰舍的損失負責。

(3) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，當他知道漏水源於他單位內，他須在無合理延誤下作出補救。否則，他須為該項漏水所招致鄰舍的損失負上法律責任。

(4) 以上三項中的「知道」，是指兩種情況：(a) 是實質地知道，或 (b) 是在通常及合理謹慎下應可知道。故此，就算戶主實質上不知道漏水的存在，因為他不在事源地方，他也不能藉此推卸責任。他身為戶主，對自己使用的地方要負法律責任。若在通常的情況下戶主應可知道有關使用地方的情況，在法律上他就被當作知情。作為地方的戶主，他應對該地方作出合理謹慎的處理。故此，對該地方的情況而言，一切他應在合理謹慎下可知道的，法律也當他知道。

(5) 第 (2) 和第 (3) 項所述的「戶主應代為負責的人」，是指一切戶主准許進入或使用戶主地方的人，包括他的家人、朋友、僱員和入內工作的人，但不包括未獲他或上述的人准許而進入地方的人。”

65.   I do not agree with the defendant that she would only be liable upon the proof of her knowledge of the water leakage. The facts in 張秀玲 are totally different and that case is distinguishable from the present case because it was held by the trial judge therein (as to which there was no appeal) that the leakage was caused by the poor workmanship of the contractor engaged by the Incorporated Owners of the building in question in replacing all the pipes of the said building.  In other words, the leakage was not caused by any act or omission on the part of the defendant therein.  Hence, the question in that case was whether the defendant therein had adopted the nuisance of the contractor.  This can be seen from pages 6 to 7 of the Judgment, in which Liu JA had the following to say:

“…在這案情下，因為滋擾當時還未發現，鄭先生一定不可以說是已經採納了滋擾。當時雙方也不知道滋擾根源是在那一個地方，怎可以說鄭先生是已經採納兆龍行的滋擾，應對吳先生及張女士負責任呢？”(emphasis added)

66.  In Clark & Lindsell on Torts (23^rd edition, 2020), the learned author explained in paragraph 19-42 as follows:

“It is clear that in cases where liability is sought to be imposed upon a defendant, not on the ground that he created the nuisance but on the ground that he permitted it to continue, proof of negligence at least is essential. As Lord Wright said in Sedleigh-Denfield v O’Callaghan [1940] A.C.880 at 905: ‘If the defendant did not create the nuisance he must, if he is to be held responsible, have continued it, which I think means simply that he neglected to remedy it when he became or should have become aware of it.’ In Sedleigh-Denfield, trespassers had interfered with the drainage system on the defendant’s land, causing water to overflow onto that of the claimant. The defendants were held liable but only on the basis that, through one of their servants, they were taken to have knowledge of the interference and yet did nothing to remedy it. Lord Atkin observed that ‘The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour’s property to make the party responsible…some degree of personal responsibility is required…’. The general principles governing liability of an occupier for nuisances not created by him were considered more recently by the Supreme Court of Victoria in City of Richmond v Scantelbury [1991] 2 V.R.38 Aus Ct. If the occupier knows or ought to know of such a nuisance, and the possibility of damage occurring in consequence is a real risk, he must take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance […]”

67.  I am of the view that given the leakage was not caused by any third party, the defendant in the present case should be taken as if she had created the nuisance by her failure to maintain the pipes and keep them in good repair.  Hence this is not an “adoption of nuisance” case, and “knowledge” on the part of the defendant is not a relevant matter to be taken into account.

68.  Having said that, in case I am wrong, I will consider below whether the defendant had knowledge of the leakage at the material time, and whether she (or her family) had acted reasonably after having such knowledge.

69.  To deal with the above issues, it is necessary to consider the evidence given by various witnesses, including the evidence of Mr Tsang Po Law, who was subpoenaed by the plaintiff to attend the trial, and Mr Kwok.

70.  At the material time, Mr Tsang was a staff of Synergis Management Services Limited (“Synergis”) which was the management company of Rise Park Villas.  According to his evidence:

(1)  On 1 March 2016, Mrs Sum informed the management office that water seepage was found at the ceiling of the Affected Bedroom.  He therefore went to the plaintiff’s Property with a Mr Chan, who was a technician employed by Synergis, to take a look.  Upon inspection, they suspected that the water came from the defendant’s Master Bathroom. They therefore went to the defendant’s Property, and found that there was a bathtub at the suspected leakage location.  Their requests to take photographs of the bathtub for record and to do a water test thereat were rejected by Mr Kwok, who said that there was no need and it was inconvenient to do so.

(2)  On 9 March 2016, he informed Mr Kwok that the plaintiff’s Property was still having water leakage problem.  Mr Kwok replied that it might be caused by the pipe of the Water Supplies Department.  He told Mr. Kwok that the seepage problem was caused by the drainage of the bathtub, and in response, Mr Kwok stated that he would ask a contractor to repair it.[4]

(3)  On 21 April 2016, he went to the defendant’s Property again with a Mr Ng, another staff of the management office.  Mr Ng enquired with Mr Kwok whether photographs of the bathtub inside the defendant’s Master Bathroom could be taken, but that was rejected by Mr Kwok.  Mr Kwok stated that he would instruct a contractor to take a look at it.

71.  On the other hand, Mr Kwok had also given evidence on what happened in early March 2016.  In his witness statement, he stated that:

“In around early March 2016, Mr Tsang of the Management Office (MO) appeared at the front door of the Defendant’s Property advising that a complaint had been received from the Plaintiff in relation to alleged water leakage and/or seepage.  Mr Tsang requested to enter into the Defendant’s Property to inspect the bathroom of the Master Bedroom (“the said bathroom”).  Without hesitation, I permitted the entry of Mr Tsang to carry out an inspection.  At that time, the said bathroom was in a dry and neat condition.  There was no sign of water leakage or seepage.  No follow up action was requested by Mr Tsang.”

72.  While giving evidence in court, Mr Kwok further explained that:

(1)  On 1 March 2016, Mr Tsang went to the defendant’s Property with a technician and informed him (Mr. Kwok) that there was a water leakage problem on 1^st Floor.  They went to inspect the defendant’s Master Bathroom.  He stood inside the bathtub and turned on the shower for some time. Mr Tsang then said it was useless and left.  Mr Tsang neither told Mr Kwok what the leakage downstairs was like, nor what he (Mr Kwok) had to do to follow-up. Mr Tsang had also not made any request to take photograph.

(2)  One or two days after 9 March 2016, Mr Kwok asked his contractor for advice and requested his contractor to go to the defendant’s Property so as to follow the matter up.  However, as he could not provide his contractor with the details of the leakage problem, his contractor asked him to get more information from the management office first.  He therefore asked Mr Tsang for more details around a week later.

(3)  On 21 April 2016, Mr Tsang and Mr Ng went to the defendant’s Property for purposes unrelated to the water seepage problem of the plaintiff’s Property.  Before they left, they requested to take a look at the defendant’s Master Bedroom.  However, they did not request to take any photograph at all.  Mr Kwok did not chase Mr Tsang for the information which he had requested for before (because this idea did not come up to him at the time), nor did he agree to ask his contractor to do any check-up.

(4)  Mr Tsang had never provided information about the water leakage as requested.  Mr Kwok had not arranged his contractor to go to the defendant’s Property and follow up the matter because he had been waiting for Mr Tsang’s reply on his request for information all along.

73.  Insofar as there is any conflict between the evidence given by Mr Tsang and Mr Kwok respectively, I would accept Mr Tsang’s evidence because:

(1)  Mr Tsang is not a party involved in the present case, whereas Mr Kwok is the father of the defendant.  I cannot see why Mr Tsang has to give evidence other than in an impartial way.

(2)  Mr Tsang’s evidence given in court has reinforced my belief above.  For example, when he was shown in court a number of photographs which captured the damage of the plaintiff’s Property allegedly caused by water leakage, he frankly told the court that some of those photographs were not taken by him.  I am satisfied that he had tried his best to assist the court by telling the truth.

(3)  As I will explain further below, in a number of aspects, Mr Tsang’s evidence made much more sense than that given by Mr Kwok.

(4)  Mr Tsang’s evidence is supported by contemporaneous records.

(5)  On the other hand, part of Mr Kwok’s evidence was contradicted by a letter issued by the defendant.

74.  I will first deal with what happened on 1 March 2016.  The main difference in the respective evidence given by Mr Tsang and Mr Kwok was whether Mr Tsang had conducted a water test at the bathtub inside the defendant’s Master Bathroom.  Mr Tsang said Mr Kwok had refused his request to do so, whereas Mr Kwok said Mr Tsang did turn on the shower for some time.

75.  If Mr Tsang did conduct a water test by turning on the water tap for the shower as alleged by Mr Kwok:

(1)  there is no reason why Mr Tsang would have to lie about it in his incident report which was filled in on the same day, in which he stated that “[…] 懷疑5-2主人房廁所位置滲水，BS曾保羅與技工陳鏡洲到5-2告知業主郭生有關主人房廁所滲水落1樓主人房天花板一事，郭生與本人及技工到廁所查看，得知是浴缸位置，職告知郭生在浴缸位置可否拍照及試水，郭生示：不需要及不方便，其後職與技工離去 […]”.  It should also be remembered that Mr Tsang did not go to the defendant’s Property alone, but with a technician of Synergis, Mr Chan.  In other words, any lie contained in the incident report would be discovered easily;

(2)  it is difficult to imagine why Mr Kwok would have failed to refer to this matter in his witness statement quoted above when he talked about what happened in early March 2016.  It must be borne in mind that the overall tone of his witness statement was, among other things, to explain how reasonable and cooperative his family had been at the material time.  “Allowing the management office to conduct water test”, in my view, is apparently something which would not have been omitted from the witness statement if this was really the truth. 

76.  When Mr Kwok gave his evidence in court, it appeared that he did not categorise what Mr Tsang did (turning on the water tap for the shower) was a “water test”.  Even if that is so, Mr Kwok could have referred to what Mr Tsang did, whatever he thought it should be called, in his witness statement, but he did not do that. 

77.  Mr Kwok’s evidence was also contradicted by the defendant’s letter issued to Synergis dated 16 June 2020 (“the 16 June 2020 Letter”).  This letter was issued in response to another letter dated 7 April 2020 sent by Synergis to the plaintiff (“the Synergis’ Letter”) which served as a summary of the development of this water leakage complaint[5].  The 16 June 2020 Letter alleged in very strong term that the Synergis’ Letter contained “false and/or inaccurate information and unfounded allegations and is misleading”.  One would naturally expect that the defendant would have stated her side of the story as accurately as possible in the 16 June 2020 Letter so as to put the record straight.  Given the fact that it was her parents who had much more involvement in the whole matter, I would also infer that the content of this letter must have been confirmed by her parents before it was issued. 

78.  In the 16 June 2020 Letter, the defendant had replied on what happened on 1 March 2016.  I would first set out the relevant paragraph (paragraph 2) in the Synergis’ Letter (to which the defendant replied by virtue of the 16 June 2020 Letter) as follows:

“我們於2016年3月1日下午約2時，接獲 貴戶報稱主人房天花滲水，我們即時派員到 貴單位視察，發現情況屬實，我們隨即到 貴單位上層查看，發現其主人房廁所之浴缸滲漏，我們要求拍照及進行漏水測試，但戶主郭生拒絕。”

79.  Pausing here, I should mention that it was Ms Chow Kei Wan[6]’s evidence that this letter was drafted by her by reference to the incident reports prepared by various staff of the management office of Rise Park Villas, and she admitted that she had not verified the content of this letter with anyone.  She had paraphrased some of the contents in the said incident reports, and it is probably because of this reason that some of the descriptions of the events in this letter were different from those contained in the incident reports.  For example, while it was stated in the Synergis’ Letter that it was discovered on 1 March 2016 that “其主人房廁所之浴缸滲漏”, it can be seen from the corresponding incident report prepared by Mr Tsang that he did not draw such a conclusion at all in the said report at the material time.  I will therefore not place any weight on the content of the Synergis’ Letter.  However, the said letter would still serve an important purpose in the deliberation of the present case, in that it had led to the issuance of the 16 June 2020 Letter on the part of the defendant.

80.  Coming back to what happened on 1 March 2020, the 16 June 2020 Letter had made the following reply:

“On or around 1 March 2016, Mr Tsang of your office inspected the master bathroom of my property (“Master Bathroom”). At that time, the Master Bathroom was dry, neat and clean. Mr Tsang did not make any comments or requests for “漏水測試” and did not request to take photos.

Therefore, the information and allegations set out in paragraph 2 are false and/or inaccurate and are misleading.”[7]

81.  It can immediately be seen that the defendant had denied that there had ever been any water test done on 1 March 2016.  This shows that Mr Kwok had just made it up in court when he said that Mr Tsang had stood inside the bathtub in the defendant’s Master Bathroom and turned on the shower for some time thereat.

82.  It is therefore my finding that Mr Tsang was telling the truth when he referred to what happened on 1 March 2016. 

83.  I now turn to consider whether, as a matter of fact, Mr Kwok had asked Mr Tsang for (and was all along waiting for) further information about the leakage.  According to him, he had to ask for such information as requested by his contractor so that his contractor could follow up on the matter.  However, he told the court that Mr Tsang had never provided him with such information. 

84.  I find that the evidence of Mr Kwok in this regard is incredible even though his allegation is consistent with what was stated in the 16 June 2020 Letter[8].

85.  Firstly, if Mr Kwok did request for any further information as alleged, and if it was indeed Mr Tsang’s fault in failing to provide Mr Kwok with such information as alleged, I am sure Mr Kwok would have included such an episode in his witness statement.  However, he had not mentioned therein about making any request for further information as such.

86.  Secondly, it is noted that the defendant had on 18 April 2016 sent a letter to the plaintiff’s solicitors (in response to the demand made by the plaintiff’s solicitors for rectification of the water leakage problem).  If Mr Kwok had made any request for information which was yet to be provided by Mr Tsang, it would be natural for the defendant to make such a request again in the said letter.  However, no such request was made.

87.  Thirdly, in the said letter dated 18 April 2016, the defendant not only did not make any request for information, she also asked the plaintiff’s solicitors to advise the plaintiff in “[making] available to [the defendant’s family] concrete supporting details that are sufficient to substantiate the cause of the alleged water leakage problem”, and stated that “then, [the defendant’s family] shall cooperate and provide assistance”.  Apparently, at the material time, the defendant’s family was not waiting for any further information.  In effect, they had already made it clear that they would not do anything unless it was proved that their home was the source of the water leakage problem downstairs.

88.  Fourthly, according to Mr Kwok’s evidence, he did not chase Mr Tsang for a reply for the alleged pending further information on 21 April 2016 when Mr Tsang was at the defendant’s Property, because Mr Kwok did not remember to do so.  Mr Kwok’s evidence was incredible:

(1)  If Mr Kwok was really waiting for further information to be provided by Mr Tsang, there is simply no reason why Mr Kwok would not chase for a reply when he was talking to Mr Tsang face-to-face;

(2)  Mr Kwok initially tried to explain for his failure to chase for the pending information by saying that the main purposes of Mr Tsang’s visit were not concerned about the seepage problem at the defendant’s Master Bathroom, and that Mr Tsang had only requested to take a look at the defendant’s Master Bedroom at the end of his visit without giving any reason.  He also said that Mr Tsang only took a look at the defendant’s Master Bedroom and left, and that Mr Tsang did not mention that the purpose of such a quick inspection was related to the water seepage problem downstairs. These assertions do not make any sense to me because I do not believe Mr Kwok (or any reasonable resident) would allow any management office staff member to go into his bedroom (which is a private place) without knowing why such an inspection is considered necessary.  In fact, in my view, such staff member would normally have explained the reason on his own initiative when the inspection request was first made.  Upon being pressed, Mr Kwok accepted that Mr Tsang had not only looked at the defendant’s Master Bedroom but also the defendant’s Master Bathroom.  Upon being further questioned, Mr Kwok finally accepted that Mr Tsang had probably mentioned that the inspection was done in relation to the water seepage problem downstairs.  In my view, it is obvious that Mr Kwok was in a desperate attempt to cover up the fact that Mr Tsang had inspected the defendant’s Master Bathroom on that day by reason of the seepage problem of the plaintiff’s Property, because Mr Kwok knew that, if he had indeed requested for any further information about the water leakage problem which was yet to be answered at the time, it is illogical if he did not chase Mr Tsang for such pending information under such circumstances.  He knew that his lie would be uncovered if he admitted that they did talk about the water seepage problem of the plaintiff’s Property on that day.

89.  To conclude, I do not believe that Mr Kwok had ever asked Mr Tsang for further information about the leakage as alleged.  In fact, as it has been shown by the defendant’s letter dated 18 April 2016, the defendant’s family was not interested in getting further information.  They had made it clear that they would only “cooperate” if it could be proved to them that the defendant’s Property was the cause of the problem.

90.  With the above findings of fact, I come back to the questions of whether the defendant or her family had knowledge of the leakage at the material time, and whether they had acted reasonably after having such knowledge.

91.  In my view, when Mr Tsang informed Mr Kwok about the water leakage problem on 1 March 2016, the defendant and her family should be taken to have knowledge about the existence of the nuisance because:

(1)  The defendant’s Property was the only flat above the plaintiff’s Property.  In other words, if there were any water seepage problems in the plaintiff’s Property, the water would be coming from either the defendant’s Property or from outside through the external wall;

(2)  Mr Kwok was made known about the water seepage complaint on 1 March 2016 which admittedly was still in a dry season;

(3)  When Mr Tsang first conveyed the plaintiff’s complaint to Mr Kwok, it was already made clear specifically that the suspected location of seepage was the bathtub inside the defendant’s Bathroom. 

92.  The defendant has relied on the often quoted legal principle that “it is not for the defendant to find out or identify the correct source of the water leakage or to prove that its origin did not come from his property”.  In my view, this principle only concerns the burden of proof in a trial on a water leakage claim.  It means that, at the end of the day, the claimant would have the burden to prove at the trial that the water causing the leakage problem was coming from the premises above (assuming that the claimant is claiming against the owner of the premises above in a court action), and the owner upstairs does not have to prove that the water is from a source other than his own premises. However, this does not mean that the said owner, after having received a water seepage complaint, is entitled to adopt a “wait and see” attitude – to wait until the claimant can provide evidence that the water was really coming from the former’s premises before agreeing to do anything.  The present case serves as a good example to demonstrate this point.  If the defendant had refused to let the plaintiff or the management office to carry out any test at all, there is no way that the plaintiff could produce any evidence, not to mention “concrete supporting details that are sufficient”[9] to substantiate the cause of the water leakage problem.

93.  Having been informed on 1 March 2016 about the water leakage problem, the defendant had not engaged any contactor to follow up on the matter despite Mr Kwok’s promise to do so.  When he was chased by Mr Tsang on 9 March 2016 about it, Mr Kwok only paid lip service that he would ask his contractor to take a look at the problem, but it is evident that he had not arranged his contractor to inspect the defendant’s Master Bathroom until much later. In my view, the defendant and her family had acted unreasonably.  If they elected to do so, I do not think there could be any difficulty (whether financially or otherwise) on their part to get their contractor to go to their home and follow up on the matter at all. 

94.  I have not lost sight of the fact that the defendant had subsequently allowed the Joint Office set up by the Food and Environmental Hygiene Department and the Buildings Department (“the Joint Office”) to do a water test in around early May 2016 and that despite such a test, the Joint Office could not confirm the source of the leakage.  However, when the Joint Office requested to do a “stage III” investigation[10], Mr Kwok withheld his consent by raising a number of “concerns” in a telephone conversation with a staff member of the Joint Office[11], including but not limited to:

(1)  His worry that any further test would damage the defendant family’s property; and

(2)  His dissatisfaction about the approach of investigation adopted by the Joint Office.

95.  While Mr Kwok is a civil engineer, I do not consider that his response was reasonable at all.  He was standing in the way to find out the source of the problem, and as a result, the water seepage problem could not be resolved earlier.

96.  Although eventually the defendant did agree to replace some pipes in October 2016 which had solved the water leakage problem, in my view, that could not absolve the defendant of her liability as damage had already been done.

97.  As the defendant and her family had failed to act reasonably after they had been informed about the water leakage problem at the plaintiff’s Property, I hold that the defendant should be held liable for nuisance and negligence.

98.  As far as the plaintiff’s case on breach of DMC is concerned, it is noted that Mr Chung had not, in his closing submissions, gone into details as to how it is said that the DMC was breached.  Those clauses in the DMC which were pleaded in the Amended Statement of Claim were not mentioned in his submissions at all. 

99.  Under such circumstances, since the above conclusion reached by this court is adequate in the determination of the question of liability, I will not proceed to consider the plaintiff’s case on breach of DMC.

100.  Further, given the above conclusion, the defendant’s counterclaim (on the repair cost incurred by the defendant) must be dismissed.

QUANTUM

101.  Having withdrawn his claim for survey fee, the remaining two heads of the plaintiff’s claim are as follows:

(1)  The sum of $286,000[12] being the costs of repair and/or reinstatement; and

(2)  The sum of $50,000 as general damages for distress, discomfort and inconvenience caused by the water leakage.

Costs of repair/reinstatement

102.  The plaintiff’s claims for the costs of repair/reinstatement are as follows:

Descriptions	Amount
Waterproofing work ($98,000 x 2)	$196,000
Protection and insurance	$8,000
Removal of cabinet and light trough	$19,600
“Painting and touching”[13]	$14,400
Replacement of cabinet	$42,000
Replacement of light trough	$4,000
Cleaning fee	$2,000
Total:	$286,000
	=======

103.  I will consider these items in turn below. However, before I do so, I should point out that the above items of claims were made on the basis of the estimation done by the plaintiff’s expert but not the actual amount of money spent by the plaintiff.  This, according to Mr Chung, was necessitated because it is accepted by the plaintiff that, after the discovery of the water seepage problem, apart from dismantling the cabinet which was damaged, the plaintiff had also decided to convert part of the Affected Bedroom back into a bathroom, and such conversion work would include work of improvement, which is recognised not to be recoverable from the defendant.  Because of this, when I assess the recoverable amount, I would have to consider the actual amount of expenses incurred as well as the expert’s estimation of reasonable cost of repair.  As far as the actual amount of cost is concerned, I will make reference to the building contract dated 16 September 2016 (“the Building Contract”) between the plaintiff and All Star Design Limited, which was owned by Mr Sit.

Waterproofing work

104.  The plaintiff claims a total of $196,000 as the costs of waterproofing work done to the ceiling of the Affected Bedroom, part of which was converted back into a bathroom in around September 2016. 

105.  Mr Chung argued that such work was done for repair and abatement, and such work, which was done by Mr Sit (the plaintiff’s contractor), “could well be one of the effective causes preventing further seepage from coming down and causing water damage to the ceiling below”[14]. 

106.  As I have ruled above, this speculation is not supported by the evidence of Mr Sit, who stated that there was no more water coming down from the 2^nd floor after the replacement of certain pipes.  It was also contradicted by the letter dated 5 December 2016 issued by the plaintiff’s solicitors.

107.  In his final submissions, Mr Chung reminded this court that Mr Sit also confirmed during re-examination that this item was part of the repair work.  I do not accept this evidence.  Such waterproofing work was also not mentioned in the Expert Report as part of the repair work.  I do not agree that this item is recoverable, because in the circumstances of the present case, such work amounts to improvement work rather than repair or abatement work.

108.  I would therefore disallow this claim.

Protection and insurance

109.  The plaintiff claims $8,000 as “basic expenses for commencing a restoration project”[15], out of which $5,000 was described as “protective measures” and the rest of $3,000 was cost of insurance.  

110.  According to the plaintiff’s expert, “protective measures” are measures which have to be done to make sure that the other part of the plaintiff’s Property which is unaffected by the seepage problem would not be damaged by the repair work to be done in the affected areas.  In this regard, the “affected areas” include not only the Affected Bedroom but also the corresponding location on the Ground Floor of the plaintiff’s Property, as the water did seep through to the ground floor.

111.  However, I cannot find any such cost in the Building Contract.  In other words, the plaintiff has not incurred any such cost as a matter of fact.  I would therefore disallow the claim of “protective measures”.

112.  Turning to the cost of insurance, I note that such cost was stipulated in the Building Contract to be in the sum of $9,000.

113.  I accept that the claim of $3,000 herein is a reasonable sum, and I would allow it in full.

Removal of cabinet and light trough

114.  The plaintiff claims for $19,600 as the total cost of removal of the cabinet and the light trough.

115.  Mr Chung made the following submission in support of the plaintiff’s cost in removing the light trough:

“[…] It is submitted that it is common sense that the light trough has to be dismantled before any waterproofing works are done on the ceiling, or in any event the light trough would be damaged after extensive waterproofing work is done on the ceiling/slab.”[16]

116.  By reason of my finding that the waterproofing work was improvement rather than repair/abatement work, I hold that the removal cost of the light trough is not recoverable herein.

117.  For the cabinet, as it cannot be disputed that it had been damaged by the water seepage, I would allow the cost of its removal.  The only question here is the amount which should be allowed.

118.  The only item in the Building Contract which seems to be related to dismantling work (apart from pulling down of walls) is item 56 (“dismantling -- ceiling/kitchen cabinet/miscellaneous”).   As the whole Building Contract has nothing to do with the kitchen in the plaintiff’s Property, I would assume that “kitchen cabinet” here actually meant “cabinet”. The cost of item 56 was stated to be $10,000, which is only around half of the cost estimated by the plaintiff’s expert.  This is a reasonable amount.  I would allow the sum of $10,000.

“Painting and touching”

119.  The plaintiff claims for $14,400 for painting work at the Affected Bedroom and the corresponding location on the ground floor of the plaintiff’s Property.

120.  There are various wall and ceiling painting items in the Building Contract, and the total amount of costs in relation thereto far exceeds $14,400.

121.  I am satisfied that $14,400 is a reasonable claim, and I would therefore allow this claim in full.

Replacement of cabinet and light trough

122.  The plaintiff claims for $42,000 and $4,000 respectively as the replacement cost of the cabinet and the light trough.

123.  As pointed out by Mr Chung, it appears that the light trough had to be dismantled only because of the waterproofing work to be done to the ceiling of the affected room.  It was for this reason that I did not allow the dismantling cost of the light trough above.  For the same reason, the replacement cost of the light trough should also be disallowed.

124.  In relation to the cabinet, I accept that it had been damaged by the water seepage problem, and as a result, I had allowed the dismantling cost in relation thereto.  However, it is evident that the plaintiff had converted the affected area into a bathroom, and as a result, the dismantled cabinet was not replaced by a new one at all.  In such circumstances, I do not agree that the plaintiff has suffered any damages at all. The replacement cost of the cabinet is therefore disallowed.

Cleaning fee

125.  The plaintiff claims $2,000 for cleaning fee, which is said to be a necessary item after repair work is done.

126.  The plaintiff has paid $5,000 for this purpose under the Building Contract.

127.  I am of the view that the claim of $2,000 is reasonable and would therefore allow such a claim.

Amount of special damages allowed

128.  To conclude, my rulings on the claims of special damages are summarised as follows:

Descriptions	Amount
Waterproofing work	$0
Protection and insurance	$3,000
Removal of cabinet and light trough	$10,000
“Painting and touching”	$14,400
Replacement of cabinet	$0
Replacement of light trough	$0
Cleaning fee	$2,000
Total:	$29,400
	======

General damages

129.  The plaintiff claims that general damages in the sum of $50,000 should be payable by the defendant because the plaintiff had suffered nuisance and inconvenience for over 7 months.

130.  Mr Chung had referred to the case of Choi Man Wing & Another v Wong Tang Hoi Alice (DCCJ 4825/2016, unreported, 31 July 2018) in which a sum of $80,000 was awarded for a water seepage problem which was unresolved for over 2 years.

131.  In Cosmos Legal Consultant Limited v Skycherry Development Limited & Another (DCCJ 2548/2009, unreported, 14 May 2013), His Honour Judge Wilson Chan (as his Lordship then was), when considering the appropriate amount of damages for inconvenience and discomfort, referred to a number of authorities:

“112. In John Sov Lau Hon Man, CACV 110/1993 (Judgment dated 5 October 1993), the court allowed HK$10,000 for water leakage for the period of 1.5 months.

113. In Chan Fei Lung v Mansion Products Limited, HCA 336/1990 (Judgment dated 22 June 1990), HK$25,000 was awarded as damages for nuisance for a period of 2 months.

114. In Wong Hong Hung v Jolly Birds Limited, DCCJ 5341/2006 (Judgment dated 24 June 2008), HK$50,000 was awarded as damages for water seepage nuisance that lasted for a little over one year.

115. In Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456, Cheung J (as he then was) considered, inter alia, the fact that the family moved into a newly built flat, how the occupants had to take shifts to replace wet cloths, the family was unable to use the air-conditioner, family embarrassed by the state of the premises that they never invited guests, and the defendant’s unreasonable behavior. The learned judge awarded HK$80,000 under this head of claim.

116.  In the present case, I am of the view that HK$60,000 is an appropriate award under this head of claim.  Although the seepage problem had lasted for over two years, there was an extended period during which Flat 42A was left vacant.”

132.  In the present case, the plaintiff alleged that he had suffered inconvenience for over 7 months.  However, it should be borne in mind that, as admitted by Mrs Sum, the Affected Bedroom, which was reserved for the use of her grandchild, was left vacant other than during Summer holiday when her grandchild came back to Hong Kong for vacation.  In 2016, her grandchild only stayed in the Affected Bedroom from June to mid-September.

133.  Having said that, while there was no one staying in the Affected Room before June 2016, I would take into account the evidence of both the plaintiff and Mrs Sum that the water seepage problem had created odour which could be smelled on the upper floor of the plaintiff’s Property.  

134.  Having considered the aforesaid matters, I consider that an appropriate amount of general damages should be in the sum of $30,000.

ORDER

135.  By reasons of the aforesaid, I give judgment in favour of the plaintiff and make the following orders:

(1)  The defendant do pay the plaintiff $29,400 being the repair cost of the plaintiff’s Property;

(2)  The defendant do pay the plaintiff $30,000 being general damages for discomfort and inconvenience.

136.  I make the following orders on interest:

(1)  interest on $29,400 to be calculated from the date of the Writ until the date of this judgment at 1% above the best lending rate of HSBC, and thereafter at judgment rate to the date of payment;

(2)  interest on $30,000 at 2% per annum from the date of service of the writ of summons up to the date of this Judgment, and thereafter at judgment rate to the date of payment.

137.  The defendant’s counterclaim is hereby dismissed.

COSTS

138.  I make a cost order nisi that the defendant shall bear the costs of the plaintiff (including all costs reserved, if any), with certificate for counsel, to be taxed if not agreed.    The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any) within 14 days hereof.  Any application to vary the costs order nisi shall, with the consent of the parties[17], be dealt with on papers.