GET BILLION DEVELOPMENT LTD v. CHEN CHEN ENG AND ANOTHER

LDBM 40/2016

[2018] HKLdT 81

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 40 OF 2016

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JUDGMENT

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Background

1.  This is an application about a water leakage dispute between the owners and occupiers of 2 flats in Mirador Mansion, 54-64 Nathan Road, Kowloon, Hong Kong (“Mirador Mansion”).  The applicant is the registered owner and occupier of Flat E1, 11/F of the building (“11/F Flat”).  Mr Lau Choi Ming is a director of the applicant. The 1^st respondent is the registered owner of Flat E1, 12/F (“12/F Flat”) situated right above the 11/F Flat. The 2^nd respondent, who is under the control of the 1^st respondent, runs a guesthouse at the 12/F Flat.  The applicant alleged that since 2010 water started to seep through the floor slab of the 12/F Flat and caused damage to the ceiling and walls of the 11/F Flat.

The Applicant’s Claims

2.  The applicant claims for :-

(1)   a mandatory injunction requiring the respondents to rectify the water leakage problem;

(2)   a prohibitory injunction restraining the respondents from permitting continuance of the water leakage problem; and

(3)   damages (if any).

The Issues and the Law

3.  The causes of action of the applicant are (1) nuisance; (2) negligence; (3) breach of the Deed of Covenant of the Building (“DMC”) and (4) breach of section 34H of the Building Management Ordinance (Cap. 344) (“BMO”).

4.  Parties agreed that the list of issues are:-

(1)   Whether the 12/F Flat was the source of water seepage into the 11/F Flat and that there was water leakage from the 12/F Flat into the 11/F Flat since in or around 2010?

(2)   If there was water seepage from the 12/F Flat, whether the respondents are liable to the applicant in nuisance, negligence, breach of DMC and/or breach of the BMO?  In particular, whether the respondents are:-

(a)   in breach of clause 11(c) of the DMC by permitting water seepage from the 12/F Flat which may be or become a nuisance, annoyance, damage or inconvenience to the occupiers of the 11/F Flat;

(b)   in breach of the respondents’ duty under s.34H(1) of the BMO by failing to maintain the 12/F Flat in good repair and condition; and/or

(c)   being negligent at common law in failing to maintain the 12/F Flat in good repair and condition or to take reasonable care or precaution to prevent water seepage from the 12/F Flat ?

5.  There is no great dispute on the general legal principles applicable in the present case.  First of all, there is no presumption in law that the source of water leakage into the floor below must necessarily come from the flat above.  The applicant generally bears the burden to show that, on balance of probabilities, the source of water came from the respondents’ flat  (see Leung Yung Chun & Anor v Chan Wing Sang & Ors [2000] 1 HKLRD 456 and 張秀玲及另一人訴鄭禮莊 CACV 268/1998 (unreported) 9 April 1999).  Secondly, it was held in Hui Ling Ling v Sky Field Development Limited HCA 35/2007 (unreported) 8 May 2012 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.”.

“The key question in this case is whether the plaintiff succeeded in discharging her burden of proof. The question is largely a factual one, which very much turns on the evidence adduced by the parties at this trial.”

6.  After hearing submissions from parties, despite what parties have agreed as the list of issues, in my judgment, the only matters required to be decided by this Tribunal are:-

(1)   whether or not water leakage did occur in 2010 (and continues until today) at 11/F Flat; and

(2)   whether the water came from (and is still coming from) 12/F Flat.

7.  If the above questions are both answered affirmatively, the applicant should succeed its application and remedies sought by the applicant ought to be granted.  If, however, the applicant fails to discharge its burden of proof, the application should then be dismissed. In short, this case is largely a dispute of facts.

8.  Initially, parties seemed to agree with me (as suggested by the Joint Office in the letter dated 1 December 2010) that since the cause of water leakage (if there was any) was due to the defective “waterproofing layer or system” at the floor slab of the 12/F Flat, it would be useful to discuss who bore the responsibility to maintain it.  Should it be the responsibility of the owner and/or occupier of 12/F Flat, namely the respondents in the present case? Was the “waterproofing layer or system” a common part of Mirador Mansion?  If so, should the incorporated owners of Mirador Mansion (“IO”) be responsible instead?  (see Incorporated Owners  of Hong Leong Industrial Complex & Anor v HL Resources Ltd & Anor [2010] 4 HKC 463 and Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre (IO) [2014] 4 HKLRD 52) To answer the questions, I have invited submissions from counsel to help me in dealing with the matter.  For this, I truly thank for their useful research.  But having heard their submissions and having made the findings in my judgment below, it now appears to me that it is not necessary for me to decide that for this case.  And I therefore leave this interesting question to future appropriate cases, save to say that I agree with the submissions that whether or not a waterproofing layer or system is a common part of a building, is a question of fact for the trial judge.

The Water Leakage Investigation by the Joint Office in 2010

9.  The applicant started to complain about the water leakage from the 12/F Flat to the joint office of the Buildings Department and Food and Environmental Hygiene Department (“Joint Office”) in December 2009.  According to the applicant’s evidence, water leakage initially appeared on the ceilings and walls of the living room and bathroom of the 11/F Flat in 2009. On 22 December 2009, the applicant’s director and its only witness at the trial, Mr Lau, lodged complaints to the IO and the Joint Office.  The Joint Office then appointed a water leakage investigation consultant, namely the DCL Consultants Limited (“DCL”), to investigate into the incident.

10.  On 20 July 2010, DCL inspected and carried out ponding and spray water tests with coloured water on the floor slab of the shower area and the walls of the bathroom room in one of the guest rooms (namely Room 1259) at 12/F Flat.  According to the DCL’s report dated 16 August 2010, it was found that coloured water deployed in the ponding and spray water tests appeared on the ceilings of the living room and bathroom of the 11/F Flat.

11.  DCL then checked the moisture content of the ceilings of the living room and bathroom of the 11/F Flat and found that there was “apparent water moisture”.  With those observations, DCL said in its report that “Wall and floor leakage of bathroom and shower area in Room 1259 at [12/F Flat] is likely a possible source of seepage.”  In coming to this conclusion, DCL also relied on the “negative” result of another coloured water test carried out to the drainage of the 12/F Flat on 6 January 2010.

12.  No tests were carried out by DCL to the fresh and flushing (salt) water pipes and no tests were carried out to the building envelope, namely the external walls.

Facts after the DCL’s Report dated 16 August 2010 Leading Up to the Commencement of the Application

13.  After the DCL’s report in 2010 was issued, a letter dated 1 December 2010 was sent by the Joint Office to Mr Lau of the applicant about the result of investigation that,

“…政府聘用的合約顧問職員曾多次到上址及上層單位進行調查及測試。結果顯示，疑上層單位的浴室及淋浴間地台防水設施欠妥，出現滲水情況。因此，本處將根據《公眾衛生及市政條例》處理。”

14.  It is however interesting to note that, in just 23 days’ time after the written confirmation of suspected water leakage, the Joint Office gave another written confirmation dated 24 December 2010 to the applicant that there was no further water leakage at 11/F Flat and the Joint Office would no longer follow up the applicant’s compliant in 2009.  This is evidenced in the letter dated 20 November 2015 from the Joint Office to the 1^st respondent. And parties have no dispute about this.

15.  Later, according to another letter dated 19 December 2013 from the Joint Office to the applicant, it was confirmed that some further investigation was carried out since the DCL’s report in 2010 but no further water leakage was found. According to that letter,

“繼本處於2012年7月10日給你的中期回覆。本處職員於2012年10月30日到上址單位[11/F Flat]跟進個案,發現受影響天花的水漬已漸漸乾涸,滲水情況已經停止。本署職員於2013年12月10日跟上址管理處職員聯絡,確認上址滲水情況已經停止。因此本處將不再跟進你的個案。如滲水情況再度出現,請與本處聯絡,以便作出調查。”

16.  In fact, before the Joint Office’s confirmation of no further water leakage was found in December 2013, by a letter dated 22 February 2011 from the 1^st respondent to the IO, she said that she was aware of the incident of water seepage to the 11/F Flat in 2010 but was of the view that the water actually came from Flat E1 on 14/F (“14/F Flat”).  She said that,

“茲因去年年初大廈維修工程即將結束做收尾工作時14/F E1天井位的外牆處有可見的大量水24小時不斷的涌出來，導致我們12/F E1 8房, 9 房牆身和大門口窗口位有大量的水不斷流進來，至今還留有痕跡並造成大門口地面全濕，很多住客差點滑倒…不久果真由于12/F E1地台積滿了水，水開始流到11/F E1，於是11/F E1投訴我們漏水了… 自從 14/F E1漏水源頭修好後，12/F E1不見水漏進來了，地台積水也慢慢自然乾了，現差不多7-8個月沒再漏水了…” (In Traditional Chinese)

17.  Later, on 26 August 2014, the 1^st respondent wrote a handwritten short note to Mr Lau of the applicant disputing the water leakage issue but promised that, in future, if water were to be found to come from her premises, she would be responsible for it, namely,:-

“您是很有才幹的人，及明白事理的人，就有關漏水之事，我們意見雖有分歧，但我們一樣選舉您為我們法團的委員，之前12/F C1 漏水我們馬上按 (sic) 排師傅維修及油好您的天花板，這些事情您也知道的。將來如果有漏水，源頭是我們引起的，我們一定會負責修理好。”(In Traditional Chinese and emphasis added)

18.  However, Mr Lau of the applicant was still unhappy with this promise and he, through the IO, requested the Home Affairs Department to suspend the renewal of guesthouse licence of the 2^nd respondent because of the suspected continuation of water leakage from 12/F Flat since 2010 (see letter dated 14 November 2014 from IO).  However, by a letter dated 22 October 2015, the Home Affairs Department, apparently in response to the applicant’s compliant, said that there was no evidence to suggest any water seepage occurring since the written confirmation dated 24 December 2010 from the Joint Office and there was no reason for suspension of the renewal of the guesthouse license of the 2^nd respondent at all.

19.  Despite the failure in attempting to request the relevant authorities to step in to deal with the matter, the applicant, by a letter dated 12 December 2015, through its solicitors, demanded the 1^st respondent to carry out the necessary repair to the 12/F Flat for preventing further water leakage occurred since 2010.  As parties could not resolve their differences, the applicant commenced the present application against the respondents.

The Water Leakage Investigation by the Single Joint Experts in 2017

20.  After commencement of the application, this Tribunal granted leave (with parties’ consent) to appoint Mr John Ho Yuen Kuen and Mr Yeung Wing Hong both from Chun Fai Consultant Company who was a firm of Professional Building Surveyors as the single joint experts for this case (“SJE”).

21.  The SJE had 4 inspections at the properties in questions, namely on 28 March 2017, 5 May 2017, 6 May 2017 and 31 May 2017 and carried out various tests, including (1) colour dye water ponding test at all 9 shower cubicles of 12/F Flat; (2) basins and water closet pans (including the ones at Room 1259 of 12/F Flat), moisture mapping at the ceiling and walls of 11/F Flat; and (3) visual and ultraviolet (“UV”) light inspection of the ceiling and walls of 11/F Flat.

22.  According to the report of the SJE dated 30 June 2017, there was no sign of water seepage at the ceiling of the bathroom and work areas of 11/F Flat.  There was no peeling off of painting on the ceiling of 11/F Flat.  No colour dye water stain and mark observed under the UV light after the colour dye water ponding test was carried out.  And there was no significant change of moisture readings before and after the colour dye water ponding tests.

23.  Besides inspections and tests mentioned above, the SJE also took into consideration of other evidence including, inter alia, the witness statements (together with photographs and the relevant documentary evidence) and the DCL’s report dated 16 August 2010 from the Joint Office for understanding the background and the material events leading up to their investigation in 2017.

24.  The SJE concluded that “the possibility of water penetration through the defective water proofing membrane of the toilets and bathroom of the guestroom at the subject premises (Flat 12 E1) down to the affected premises (Flat 11 E1) underneath is then eliminated” and there was no sign of water mark observed / found and symptoms of water seepage at the 11/F Flat.

Analysis and Discussion

25.  Both Mr Lau and the 1^st respondent gave oral evidence at the trial. Their evidence in relation to the background of the case was not particularly controversial because it was mostly supported by the documentary evidence.  I have already outlined them above in this judgment.

26.  There were some parts of their evidence which are not challenged by the other side and for these parts, I would therefore accept them in full unless they were contradicted by any documentary evidence. For illustration, I would just give a few examples, namely parties have no dispute that the 1^st respondent had not carried out any repair work in the 12/F Flat since Mr Lau made the compliant to the Joint Office in December 2009.  And the 1^st respondent was not aware of the DCL’s report prepared in 2010 until April 2015.  No formal abatement of nuisance notice was ever issued to the respondents by any government authorities.

27.  As to the view of the cause of the water leakage, their evidence is not helpful to me at all because it was mostly self-serving opinion.  Given in this case, I have the assistance from the DCL’s report and the SJE’s report, I do not see how the conflicting opinions of these factual witnesses are of any use to me.

28.  I now turn to the analysis on the DCL’s report dated 16 August 2010.  This is the evidence which the applicant heavily relies upon for discharge its burden of proof to show that there was water leakage and the water came from the 12/F Flat.  Mr Leung, counsel for the applicant, submitted that the investigation done by DCL is admissible evidence and can be taken into account by this Tribunal when determining the source of water leakage.  I have no disagreement on this with Mr Leung.

29.  However, on balance of probabilities, I find the DCL’s report dated 16 August 2010 not very useful for my determination of the issues in this application and I now give my reasons as follows.

30.  First of all, it was a report prepared in relation to a water leakage compliant by Mr Lau more than 5 years before the commencement of this application.  Many things could have happened in these 5 years and it is very difficult to verify and test the reliability of it.  Comparatively, the SJE’s report prepared in 2017 would be a more reliable and up-to-date expert opinion for assessing the applicant’s compliant, and in particular, according to the applicant’s evidence, the water leakage never stopped.  It continued until the present day.

31.  Secondly, the DCL’s report was a, what I call, proforma report. It was not a report written specifically for the incident and it contained very limited comments of the consultant.

32.  Thirdly, in making those comments, the consultant in the DCL’s report did not come to any conclusion with much confidence or certainty.  For example, the consultant said at Paragraph III, Part B of Section 1 of Section C of the report that “Wall and floor leakage of bathroom and shower area in Room 1259 at the suspected premises is likely possible source of seepage.” (emphasis added).And in Section D of the DCL’s report, the consultant repeated the same comment of “likely possible”.  Furthermore, at Section 2 of Section C of the report, the consultant said that “the source of water seepage under investigation may be connected to” (emphasis added) the coloured water test on the floor slab of 12/F Flat.  In my judgment, the report gives a very strong impression that, at most, it could only show that there was a suspicion of water leakage and no more.  Although the consultant did say at the end of Appendix I of Proforma WS2 of the DCL’s report that the possible source was “almost certain”, no explanation as to why this was so.  In other words, it is unexplained how the assessment of “likely possible” source could then suddenly become “almost certain” source.

33.  Fourthly, the consultant, after making the remarks that “The seepage area at the ceiling of working area ceased during investigation on 23/03/2010, 20/07/2010 and 16/08/2010” (at Appendix I of Proforma WS2 of the DCL’s report), still curiously recommended the Joint Office to issue advisory letter to the respondents to abate the seepage, with formal abatement of nuisance notice pursuant to section 127 of Public Health and Municipal Services Ordinance, Cap 132 to follow.  But in fact no such abatement of nuisance notice was ever issued. On the contrary, the Joint Office confirmed within a very short period of time that there was no water leakage.  There was no evidence to suggest that the respondents had done any repair work to the 12/F Flat during this period of time.  The Joint Office never explained how this happened.  One possible explanation was that the DCL’s report was wrong and in fact there was no leakage from 12/F Flat.

34.  To argue the DCL’s report was reliable and therefore should be accepted, Mr. Leung further submitted that the Joint Office was an independent authority who had no interests to serve in this litigation.  There was no reason why it would have sided with the applicant.  

35.  I have no doubt that the Joint Office was not bias.  But it does not necessarily mean that both the Joint Office and DCL would not make any “innocent” mistake.  As I have explained in this judgment above, there is so much evidence to suggest that the investigation of DCL was full of doubts.  Some of the DCL’s findings were even contradicted by the applicant’s evidence.  For example, Mr Lau said that the water leakage since 2010 never stopped but DCL obviously disagreed and the Joint Office repeatedly said that it would not follow up the matter.

36.  On the other hand, the SJE’s report was comprehensive and the conclusion was supported by sound reasons.  I have no hesitation to accept the opinion of the SJE that there was no water leakage from 12/F Flat to the 11/F Flat. In fact, this is consistent with the factual events since the 24 December 2010 written confirmation of “no water leakage” from the Joint Office leading up to the commencement of this application in February 2016, namely despite repeated complaints of water leakage by the applicant during this period of more than 5 years, the Joint Office did not find any water leakage at 11/F Flat at all.

37.  Mr Leung invited me not to accept the SJE report because negative result as found by the SJE is inconclusive.  In support of his argument, he provided a number of judicial decisions on how negative results were considered by other courts.  I do not see how useful this exercise is.  Each case turns on its own facts.  I do not find any of these decisions helpful to me at all.

38.  Perhaps I should also mention in passing that there was another report prepared by Assured Reliance (Hong Kong) Limited.  I did not put any weight on this report as the SJE’s report has already provided sufficient assistance to me for disposal of this case.  It is therefore unnecessary for me to consider this report.

39.  By reasons of the above, I find, on the balance of probabilities, that water leakage from 12/F Flat did not occur in 2010 and continued until today at 11/F Flat.  In other words, if there were any water leakage at all, the water must have come from somewhere else, but not from 12/F Flat.

Disposal and Orders

40.  All in all, I find that the applicant fails to discharge its burden of proof and the application should be dismissed.

41.  Costs should normally follow the event and I therefore further grant an order nisi that the applicant do pay costs of this application (including all costs reserved) to the respondents with certificate for counsel on the District Court Scale, to be taxed if not agreed.  This order nisi shall become absolute unless an application is made to vary the same within 14 days.

42.  Finally, I thank counsel for their helpful assistance.