JOYBASE CORPORATION LTD v. LI KAI FAI

DCCJ3016/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3016 OF 2011

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JUDGMENT

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1.  The plaintiff is the registered owner and occupier of Unit 6 on the 11^th Floor, Raton Industrial Building, No 4 King Wong Street, Tuen Mun, New Territories (“the Premises”)whereas the defendant became the registered owner and occupier of Unit 6 on the 12^th Floor and Roof 6 Raton Industrial Building (“the Upper Flat”) in 2007.

2.  On 13.1.2010, there was a very serious water leakage which caused the floor ceiling of the store room of the Premises to collapse.  On that day Mr Lam Wing Keung, a clerk employed by Messrs CK Mok & Co, Solicitors (the tenant of the Premises), found that part of the false ceiling of the store room of the Premises had collapsed, and damaged the flush water pipe located below the false ceiling.  The store room was flooded with water coming from the broken pipe which he believed was damaged by the collapsed false ceiling.  He saw water dripping from the ceiling of the store room.  He pointed out that the water leakage occurred near the middle concrete beam of the store room.  This place is not close to the external walls.  He placed a plastic container on the floor to collect the dripping water.  This container was filled up with the water about two times in the following two months.  He emptied it twice.  Then the water dripping became less and less, and so he did not empty the container any more.  Water dripping ceased after the inspection done by the defendant and his contractors in October 2011.

The evidence of the plaintiff’s expert

3.  On 20.1.2010, Mr Andrew Kung, the plaintiff’s expert, conducted his first inspection of the Premises.  He checked the weather record.  There was no rain between 15 and 20 January 2010.  He saw water dripping from the ceiling where the false ceiling had collapsed.  This is near the middle concrete beam of the store room and not close to the external walls.  He inspected the partition wall outside the store room.  He found that there was dampness at the upper part of the wall of the Premises, and the moisture content measured by the moisture meter was 70%.  This is a high moisture content.  He found no sign of water seepage along the external wall inside the Premises.

4.  He also inspected the Upper Flat.  He found that the lavatories of the Upper Flat had been altered.  The original female lavatory was demolished and turned into an area for storage of clothes.  The original door opening of the male lavatory was blocked and a new door was opened.  The layout of sanitary fitments was also altered with only one wash hand basin and one water closet provided.  The floor level of the existing lavatory was raised, and this raised floor was immediately above the location of the collapsed ceiling of the store room of the Premises.  There was a water supply control value located near the ground level inside the existing lavatory.  He explained that in order to alter the original lavatory and to remove the original female lavatory, the original water pipes and drainage pipes must have been re-routed.

5.  On 11.2.2010, 3 samples of hardened concrete (refereed to as “CC1”, “CC2” and “CC3”) were collected at the Premises for chemical analysis of chloride content.  The test results show that the chloride content of CC1 is the highest amongst the three samples.  So there is a progressive decrease of chloride content from CC1 to CC3.  This indicates that previously the store room of the Premises had been affected by flush water flooding.  The relatively high percentage of chloride content of the test sample collected from the ceiling of the store room of the Premises shows that there was previous leakage of flush water pipe from the Upper Flat.  Water leakage of flush water pipes from the Upper Flat should be one of the causes of the water leakage into the Premises.

6.  He noted that no drainage pipe works should pass through the concrete slab between 11/F and 12/F of the Raton Building.  All the drainage pipe works should run at the external wall of the Industrial Building.  This means that the only source of water leaking from the ceiling of the store room of the Premises must be the water coming from the Upper Flat.

7.  The water dripping ceased since the inspection carried out by the defendant and his contractors in October 2011.  He opined that some works should have been carried out to the Upper Flat, so that the water leakage from the Upper Flat to the Premises had ceased.

8.  On 29.3.2012, he visited the scene again.  His findings on this occasion were similar to what he found in January 2010, save that no water dripping from the ceiling was found.  On 29.5.2012, he inspected the Premises again.  It was raining between 26 and 28 May 2012.  According to the records of the Hong Kong Observatory, there was 44.7 mm of rainfall from 26 to 28 May 2012.  He wanted to find out whether the water leakage came from the external wall.  He contacted Mr Dickie Lau, the defendant’s expert, for the purpose of conducting the test together.  But Mr Dickie Lau was too busy to do the test.  So he inspected the Premises by himself.  He did not detect any sign of water seepage from the external wall.  No works have been carried out at the external wall since January 2010.  If  water leakage came from the external wall, it would not stop by itself.  The inspection carried out on 29.5.2012 after a rainfall of 44.7 mm from 26 to 28 May 2012 showed normal reading of moisture measure of the store room of the Premises.  There was no sign of water seepage from the external wall.

9.  He opined that the only possible sources of water are either the rain water from the external wall or the water leakage from the Upper Flat, and that was no other source of water leading to the collapse of the floor ceiling of the store room on 13.1.2010.  He ruled out the possibility of water seepage originated from the external wall.  If there was water seepage from the external wall, there would be signs of water seepage, crack, concrete spalling, damp patches or peeling paint noted, along or near the external wall at the Premises or the Upper Flat.  But there were no such signs.  Water would find the shortest route to go down.  It was unlikely for water to travel to the inner part of the Premises where the floor ceiling collapsed.

10.  The lavatories of the Upper Flat had been altered and there should have been re-routing of the water pipes and drainage pipes which are likely to be buried in the raised floor of the existing lavatory of the Upper Flat which was immediately above the location of the collapsed ceiling of the store room of the Premises.  The water pipes and drainage pipes buried in the raised floor are likely to be the source of the water leakage.

11.  Water dripping occurred when the weather was fine.  But after a heavy rainfall in late May 2012 there was no water dripping.  Part of the collapsed floor ceiling was located across the middle beam.  This is far away from the external wall, where there was no sign of water seepage.  Dampness (70% moisture content measure) was found in early February 2010 at the upper part of the partition wall of the store room which was far away from the external wall.  This cannot be seepage due to rainwater.

12.  It is highly probable that the collapse of the concrete ceiling was caused by water leakage over a long period of time, causing the reinforced steel to rust and the concrete to spall.  The water leakage was very probably due to flush water from the pipes buried in the raised floor of the lavatory of the Upper Flat.  Even though the main flush water supply was turned off, it might not be able to lock it and prevent the water flow completely.  There might still be water leakage through small cracks on the pipes.

The evidence of Mr Dickie Lau

13.  Mr. Dickie Lau is the defendant’s expert.  He did not visit or inspect the Premises and the Upper Flat at all.  The defendant’s expert report was not written by him, but by his colleague.  It is unknown who wrote the report.  It is also not known who conducted the inspection referred to in the report.  He only went to see the exterior condition of the Raton Industrial Building a few days before the trial.  This is more than 3 years after 13.1.2010.  He said that he knew the location of the water leakage of the Premises.  But the location of water leakage indentified by him is very different from what Mr Lam and Mr Kung identified at the trial.

14.  He claimed that the water leakage did not come from the pipes in the raised floor of the lavatory of the Upper Flat; it  came from the external wall.  But he failed to provide any factual basis to justify his conclusion, save and except the photos seen by him.  He was not able to tell the state and condition of any crack appearing in the photos produced by him (but taken by others).  He did not know how deep any of the cracks was.  The photos only show the presence of some cracks in the external walls of the Raton Industrial Building in March 2012.  The exact locations of the cracks are not known.  There is no evidence to show that such cracks existed in January 2010.  What he said is bare assertions.  I attach no weight to his evidence.

15.  At P. 3 of the Joint Statement of Experts, Mr. Kung concluded that water seepage is not from the external wall.  He set out the reasons for reaching this conclusion.  These are sound reasons.  I accept them.  He concluded that the since the possibility of water seepage from the external wall can be ruled out, possible sources of water are

“(i) Water leakage of fresh water pipes from the Defendant’s Premises;

(ii) Water leakage of flush water pipes from the Defendant’s Premises, and

(iii) Waste water from showering or floor washing from the Defendant’s Premises”.

I accept this conclusion.

16.  The conclusion reached by Mr Kung that the water leakage came from the Upper Flat by deduction is supported by ample evidence.  I accept his evidence. The conclusion reached by Mr Dickie Lau that the water leakage came from the external wall is not supported by evidence.  I cannot attach any weight to his evidence.  I reject his conclusion.

17.  The defendant claimed that he had not carried out any renovation work. On 10.10.2011, the defendant and his contractor inspected the Premises.  Water was still dripping at that time.   19.10.2011 was a sunny day.  The consultant engaged by the Joint Office of the Buildings Department / Flood and Environmental and Hygiene Department (“the Joint Office”) found no water dripping, and the moisture content was higher than 35%.  The water dripping came to a sudden halt.

18.  10.11.2011 was a rainy day; the same consultant made another inspection.  There was no water dripping at the Premises, and the moisture content was lower than 35%.  The defendant must have carried out certain rectification work.  The moisture level was higher on 19.10.2011, and lower on 10.11.2011.  This must be due to the fact that the rectification was taking effect.

19.  In its letter dated 9.1.2012, the Joint Office stated that it suspected that the source of water leakage was the Upper Flat.  But it could not confirm the source of water leakage.  So this letter could not be of assistance to this case.

20.  The letter dated 15.5.2012 referred to the various occasions of the investigation of water seepage carried out by the consultants appointed by the Joint Office.  But there is no conclusion relating to the identification of the source of water seepage.  So this letter is also not helpful to this case.

21.  The letter dated 15.1.2013 from the Water Supplies Department and produced by the defendant shows the use of 4 cubic meters of water in July 2007 after the defendant had become the owner of the Upper Flat on 16.7.2007.  There was the use of 1 cubic meter of water in 2010.  But the defendant stated that there was no use of water.  Hence the use of water cannot be of any relevance to the issues in this case.

22.  The defendant referred to the proposed renovation work to be carried out to the Building.  It shows that the Building needs to be renovated.  It is not helpful to show the cause of water seepage in this case. 

23.  Paragraph (d) of the Fourth Schedule of the Deed of Mutual Covenant of the Building (“Paragraph (d)”) stipulates:-

“… … … nor to do or permit anything therein or thereupon which may be or become a nuisance or annoyance to or may cause damage or inconvenience to the other owners or occupiers of the said Building ……”

24.  Section 34H(1) of the Building Management Ordinance provides:-

“Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.”

25.  In allowing water to escape from the Upper Flat to the Premises, the defendant was in breach of Paragraph (d) and section 34H of the Building Management Ordinance.  Hence I enter judgment for damages in favour of the plaintiff.

26.  The defendant relies on the case of 張秀玲及吳炳漢v. 鄭禮莊 (CACV 268/1998).  This can deals with nuisance and negligence.  It is not about breach of the dead of mutual covenant, and the provisions of the Building Management Ordinance.  So this case is not helpful to him.

Quantum

27.  In the order of this Court dated 24 July 2012, the defendant agreed that the plaintiff’s costs of repair was $316,980.  Accordingly I order that the defendant do pay, within 14 days from today to the plaintiff, the sum of $316,980, with interest thereon, at judgment rate, commencing from 21.5.2013, until satisfaction.

Costs

28.  I make an order nisi, to be made absolute in 14 days’ time, that the defendant do pay costs of this action, to be taxed, if not agreed, with certificate for counsel.