YU SIU HUNG v. YUEN MAN CHIU ROGER

LDBM 292/2009

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 292 OF 2009

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D E C I S I O N

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1. On 21 November 2014, after a 9-day trial, this tribunal handed down a written decision dismissing all the applicants’ claims founded on breach of DMC and/or nuisance. Since the applicant could establish that the waterproofing membrane of the respondent’s bathroom had been damaged and in respect of which the respondent was liable to repair, this tribunal made an order directing the respondent to effect repair to that part of his unit. Accordingly this tribunal awarded in favour of the respondent only 80% of its costs. A costs order nisi was made to that effect.

2. By a summons dated 5^th December 2014, the applicant seeks to vary the level of respondent’s costs to be borne by the applicant from 80% to 60% and to disallow the respondent’s costs of its expert Mr. Raymond Wu. At the commencement of the hearing, Mr Wu of counsel for the applicant submitted that the applicant is now asking for an alternative, either the total costs allowed be varied from 80% to 60%, or alternatively the total costs to which the respondent is entitled remains at 80% but the costs of the respondent’s expert be disallowed to reflect the tribunal’s adverse comments that Wu’s reports are unhelpful[1].

Brief background

3. This is a case in which the applicant suffered rather extensive damages to the ceiling of his flat as a result of water leakage. He claimed water came from the unit immediately above. However, the unit above has been left vacant since 1997 save and except a brief period between mid-2005 and early 2007. Proceedings were instituted and experts were engaged with a view to identify the cause of the leakage, which is the most important issue of the claim. This tribunal does not intend to repeat its analysis as it has been fully set out in the aforesaid written decision. Suffice it to say that quite a lot of time has been spent on examination of experts. This tribunal has done a dissection of the various reports by the applicant’s expert Mr. Wong. The tribunal found his report so unhelpful and of no use at all. Likewise, the tribunal has also found the various reports by Mr. Wu, though voluminous, is of no use and not helpful as well.

4. Basically the applicant’s experts considered water seeped to the applicant’s unit by reasons of overflowing of water into the respondent’s sitting area caused by a flood taking place in the respondent’s balcony. He further said it was also caused by the defective drainage system of the respondent unit. However he ruled out the possibility of seepage through the external wall and roof.  

5. Mr. Wu prepared 2 reports of size 898 pages and 266 pages respectively. His joint report with Mr. Wong comprises 150 pages. In his report, Mr. Wu, using his own description, “apply[ied] water seepage theories[2]” to consider the likelihood of the theories advanced by Mr. Wong. After reading Wu’s reports, what he said is no more than doing visual site inspection, perusal of relevant information and applying his knowledge, i.e. his so-called water seepage theories, to come to his own hypothesis on the cause of leakage. In the tribunal’s judgment, his reports suffer at least two serious shortcomings, (i) too clumsy and difficult to read and (ii) no objective test whatsoever ever been done to verify his hypothesis. 

6. Concerning the first point, to be frank, it is a painstaking exercise to read Wu’s three voluminous reports. With no disrespect to Mr. Wu, he adopted a long-winded, over-meticulated, repetitive and an unhelpful way of presentation.

7. Take a few examples, when he was enclosing his resume in his report of 3 October 2012 (comprising 898 pages), a number of blank application forms for certain memberships of professional body were enclosed. The purpose of putting in these forms is not understood. He saw fit to enclose the entire quotation for the repair in 2003 together with the product guides of certain materials used. He also saw fit to enclose the pleadings, reports, solicitors’ correspondence and evidence filed herein. What is the point of enclosing all these if it only serves to show that he has read these documents. He also indiscriminately enclosed the rainstorm and rainfall records obtained from the Hong Kong Observatory from 2003 up until 26 September 2012. The records took up 269 pages of his report of 3 October 2012! The only part of his report which touched on the weather/rainstorm record directly is a table setting out years/periods when there were complaints of water seepage[3]. For 2004, 2005 2007 and 2009 to 2012, Mr. Wu said the applicant made no complaints of water seepage. He stated next to these years in the said table “Typhoon and rainstorms recorded”. Is it not more useful for Mr. Wu to give a quantitative summary of the relevant weather condition, e.g. the total amount of rainfall or number of black/red rainstorms or typhoons attacking that year. The description as set out in the report is unhelpful because common sense will tell every year Hong Kong will be attacked by typhoons and rainstorms. It would be a lot more helpful if he, as an expert, sets out his opinion on the relevance between the weather conditions and the report of leakage/no leakage by the applicant. He fails to do so.

8. The analysis using this weather information by Mr. Wu is, in the tribunal’s view, rather superficial. In paragraph 97 of the tribunal’s written decision this tribunal demonstrated the sealing of the balcony doors gap by plastic tapes and sheets not a break of the leakage chain by reference to the weather information. The sealing has all along been said by Wong a measure adopted by the respondent to stop water from entering into the sitting room, and thus it was used as a support of Wong’s theory. Mr. Wu has all the weather records but he fails to pick this up. It does not appear that he had made any useful use of these weather records in his analysis.

9. At the end of his first report he encloses certain articles which he considered to be relevant to the issues in dispute. These articles may be of general interest to those dealing with similar problems. However they are not directly relevant to the issues in question. What is the purpose of enclosing an article entitled “Flood remediation” which basically discussed measures to protect a house from flooding and to dry it. Although Mr. Wong was advancing a “flood theory”, in fact he is not talking about the kind of flood in UK discussed in that article. He put in too many irrelevant materials in his report.

10. Secondly, in light of his first report, he compiled his second report to substantiate his theory that water came from the roof instead of elsewhere. He conducted a survey of the roof of the building, particularly the gradient of the roof before and after its modification. He also made calculation showing rainwater caught by area over Flat A of the building may not be able to be drained away by the 2 pipes at Flats B and C. The roof was surveyed by basically visual inspection. Wu then re-stated his conclusions, namely the water leakage was caused by the defective waterproofing system on the roof and defective external walls at the material times. Again, no test has been conducted to verify his theory. It has to be remembered a finding of the roof being defective as a matter of fact is insufficient for the present purpose. The efficiency of the rain water drainage system may be poor. Puddles of water may be left after rainfall. Pockets of paint may be found on the external wall. The crucial question to answer is whether all or any of these defects (if they really are) caused the water seepage to Flat A on the 9^th floor, bearing in mind that this is a 11-storey building. The proof of causation is crucial. As an expert he simply fails to establish the causation by any objective or scientific test. He even fails to inspect the inside of upper units to see whether water did enter according to his theory, at least to establish some indirect proof. His conclusion is no more than guesswork.

11. As the tribunal has said, the joint report is useless as it is only a repeat of the polarized views of the 2 experts. No reflection or re-consideration was made by the 2 experts at the joint meeting on the hypotheses they put forward. As more elaborated in the said decision and herein, the hypotheses advanced by the 2 experts are so devoid of merits, though they were insisted on by them from start until trial.

12. That is why this tribunal considers Wu’s 3 reports not useful at all[4]. No part of his report was relied on in the disposal of the cause.

13. In this connection, this tribunal has not forgotten the detailed and enlightening remarks concerning the duties and responsibilities of experts to court by Lam J (as the learned V-P then was) in §§484-493, 498 and 500 in Chinachem Charitable Foundation Ltd v Chan Chun Chuen and Another[5]. The 2 experts herein simply fail to discharge their duty to the court. Both of them did not appear to realize the fundamental flaw of their opinion - their theories are not tested. They simply repeated and reinforced their views in the joint report. The tribunal cannot help forming a view that these experts are in fact assuming a role of an advocate for those instructing him rather than expert owing duties to court otherwise they should have easily recognized the fundamental problem of their hypotheses. The adoption of a different role blurs their vision to recognize their duties.

14. Miss Wong, counsel for the respondent submitted that the principles in Re Elgindata Ltd (No.2)[6] as adopted in the Hong Kong authority of La Chemise Lacoste SA v Crocodile Garments Ltd[7] and in Re Nina Kung[8], should be applicable. It is fair to say Mr. Wu of counsel has no quarrel with her on the applicable principles. Miss Wong submitted that the respondent, being the successful party, has not raised any new issue or allegation which is unsuccessful. It is because the allegation that water did not come through the roof or outer wall was first raised by Wong. Wu only responded by expressing that in fact it was a probable cause.

15. As analysed above, the through-the-roof or through-the-external-wall theory is untested. The experts did not see fit to meet for the purpose of understanding thoroughly the other’s opinion. This tribunal believes the weakness of the respective theories would be readily appreciated and acknowledged if these experts both adopted the approach enunciated in Chinachem Charitable Foundation Ltd. Wu’s untested theory only serves to raise one more alternative to the many possible causes of leakage. Although it can be argued that the respondent did not raise an entirely new issue, Wu who claimed to be an expert on water leakage advanced a theory which is untested. It is totally unacceptable in water leakage dispute. The respondent relied on his opinion.

16. According to Miss Wong, Wu’s costs amount to $464,000, being the aggregate of $360,000 for his reports and $104,000 for court attendance. She estimated Wu’s costs amount to 36% of the respondent’s total costs.

17. Costs are entirely a matter of discretion.  No doubt Elgindata (No.2) set out the guiding principles. However, even according to Elgindata (No.2), the court has discretion to disallow the whole or part of a successful party’s costs when the allegation of a successful party fails and significant costs have been spent. In the tribunal’s view, although Wu’s evidence only occupied about 1 and a half full day spreading over 3 days, the costs of Wu, being over one-third of the respondent’s total costs, cannot be said as insignificant at any rate.

18. Having said the above it cannot be said Wu’s costs should be totally disallowed. In his reports he made certain response to Wong’s views and water tests. This tribunal considers, being in the position of a respondent, is perfectly appropriate if he chooses to do so. After the first day of trial, Wu took video of the 2 units which helped save the tribunal’s time to do an inspection. He also helped explain how wood boards behave after being soaked in water. His work done on these areas cannot totally be ignored.

19. Taking all the matters into consideration and in particular the above, this tribunal considers it fair to disallow 50% of Wu’s costs. As his costs are estimated to be 36% of the respondent’s total costs, 50% of Wu’s costs amounts to 18% of the respondent’s total costs. Accordingly an order should be made to reflect this.

Conclusion and Orders

20. The costs order made in the tribunal’s decision dated 21 November 2014 be varied such that the applicant do bear 62% (i.e. 80% - 18%) of the respondent’s costs of the application on the District Court scale, including all costs reserved, with certificate for counsel, such order be made absolute forthwith.

21. Costs of this application be to the applicant, on District Court scale together with certificate for counsel, such costs to be made absolute if no application is made to vary the same within 14 days from today.