LEUNG WAI KEE v. TAM YUET SHEUNG

DCCJ 5716/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5716 OF 2007

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JUDGMENT

Introduction

1. This is a typical water leakage dispute between the owners of a multi-storey residential building which has, regrettably, taken almost 6 years before it came for trial before me.

2. The Plaintiffs (“Mr Leung” and “Madam Lou”), a married couple but have since December 2010 been divorced,  are the registered owners of Flat D, 13/F, Tower 4, Lido Garden, Sham Tseng, New Territories (“Flat 13D”).

3. The Defendant (“Ms Tam”) owns the flat which is immediately above Flat 13D (“Flat 14D”).

4. Mr Leung and Madam Lou allege that water leaked from Flat 14D to Flat 13D since about July 2006 to about 5 September 2006 (for about 2 months) and premise their claim on 4 causes of action, namely: (1) nuisance; (2) negligence; (3) breaches of clauses 6, 7 and 9 of heading A, Part V of the Deed of Mutual Covenant registered in the land registry by memorial no. 4067684 (“DMC”); and (4) breach of section 34 H of the Building Management Ordinance (“BMO”).

5. They seek the relief of (1) an mandatory injunction requiring Ms Tam to carry out remedial work at Flat 14D as stated in the single joint expert report prepared by Mr Raymond Chan Yuk Ming dated 23 March 2011 (“SJE Report”); (2) a prohibitory injunction restraining Ms Tam from causing or permitting water to be leaked from Flat 14D into Flat 13D; and (3) damages in the total sum of $611,588. 

6. Ms Tam disputes both liability and quantum. She claims that since the water leakage complaint, her plumber and the joint office of the Buildings Department/Food and Environmental Hygiene Department (“Joint Office”) had inspected Flat 14D; neither of them concluded that Flat 14D was the source of water leakage into Flat 13D. In any event, the main fresh water supply to Flat 14D was turned off since 5 September 2006 and the fresh water meter removed upon her application for cancellation of the fresh water account of Flat 14D with the Water Supplies Department in 2007.

7. However, in case liability was established, she agrees to adopt the assessment of repair costs opined by the single joint expert in the SJE Report.

Issues

8. In the circumstances, the core issues for the determination by me in this trial are:-

(1)Whether Flat 14D was the source of water leakage into Flat 13D;

(2)Whether Ms Tam is liable to the Plaintiffs in nuisance, negligence, breach of DMC and/or breach of the BMO;

(3)If yes, what should be the relief and damages granted to Mr Leung and Madam Lou.

9. On these issues, Mr Leung himself and an ex-property officer of Lido Garden (Jacky Leung) gave evidence in this trial for the Plaintiffs. Ms Tam also gave evidence but called no defence witness.

10. The SJE Report is admitted as evidence without calling the single joint expert to give oral evidence in court.

Layout of Flats 13D and 14D

11. By their original design, Flats 13D and 14D are identical in their layout which comprise of 2 bedrooms, a living and dining room, a kitchen and a bathroom. The bathroom has a washing basin, a bath tub and a bathroom bowl.

12. The evidence seems clear that neither the Plaintiffs nor the Defendant has done any major alteration to the layout of their bathrooms save and except the following:

(1)Mr Leung had converted part of the living room into a bedroom. There are thus 3 bedrooms in Flat 13D: one in occupation by Mr Leung’s daughter (“Bedroom 1”), the 2^nd one by Madam Lou (if and when she is in Hong Kong) (“Bedroom 2”) and the 3^rd one by Mr Leung himself and his son (if and when he is in Hong Kong) (“Bedroom 3”).

(2)Ms Tam had torn down the non-structural dividing wall between the 2 bedrooms in Flat 14D.

13. A rough floor plan each of Flat 13D and Flat 14 D can be found at pp 78 and 80 of trial bundle B.

Chronology of Dispute

14. By way of background, Mr Leung is a retired businessman of interior renovation and related works. He and Madam Lou purchased Flat 13D in 1989. Since then, they lived there with their adult son and adult daughter until 1997 when the whole family emigrated from Hong Kong to Vancouver, Canada.

15. Ms Tam, a lecturer in business studies at a post-secondary institution, is an educated lady with a degree in social science and a master degree in mediation. She bought Flat 14D as an investment with a friend in 1989. But in 1996, she bought out the share of this friend and became the sole owner of Flat 14D. 

16. According to Mr Leung, he was in Hong Kong in July 2006 when he first noticed that the plastering of the ceiling of the bathroom inside Flat 13D started to come off.

17. Then on 2 September 2006 (Saturday) at about 7 pm, he found that the water leakage/seepage problem escalated and water was found dripping down from the ceiling along both sides of the dividing wall between Bedrooms 1 and 2. Water leakage marks could be also found at the ceiling inside the bathroom and the corridor just outside the bathroom.

18. He immediately made a complaint to the management office. He also went to knock at the door of Flat 14D but no one answered the door. He thus wrote 2 complaint letters of identical content to notify Ms Tam of the water leakage problem, one inserted into the letter box of Flat 14D on the same day, while the other one was sent by registered post (the mail chop was dated 5 September 2006). Ms Tam denies receiving any letter at her letter box, but agrees that she received the letter sent by registered mail on 11 September 2006.

19. Water continued to leak on 3 September 2006 (Sunday) which prompted Mr Leung to lodge a 2^nd complaint to the management office. He also went to knock at the door of Flat 14D twice between 10-11 pm, but in vain. This time, he wrote another complaint letter and stuck it at the main door of Flat 14D (“3/9/2006 Letter”). It is admitted by Ms Tam that she received this letter on the same day. The main content of this letter reads as follows:

“貴單位水喉漏水流落了13/F D室，導致室内装飾油漆牆纸嚴重剥落。請你們立即關水喉大制，找水喉師傅維修。我們已經找你多天了。

立即聯絡我們，685XXXXX。

如果你不聯絡我，將通知屋宇署 后果自負…”                    

20. It is not disputed (and in fact revealed by Ms Tam in the trial) that the sentence of “我們已經找你多天了” is written and highlighted in a different colour in the original letter.

21. It is also not in dispute by Ms Tam that she appreciated from the content of this letter that the matter was of urgency, but she did nothing as suggested in the 3/9/2006 Letter at once, as it was already late at night when she returned to Flat 14D.

22. When Jacky Leung, the then property officer went back to work the following Monday (4 September 2006), he went to inspect Flat 13D and took photos of the affected areas (at pp146-148 of trial bundle A). He found that water was dripping along the wall between Bedrooms 1 and 2 as well as the door of Bedroom 1. He also found that a bucket was placed on the floor near the door of Bedroom 1 to catch the dripping water. Jacky Leung’s observation clearly supports the evidence of Mr Leung on the condition of Flat 13D as at 2 and 3 September 2006.

23. The content of these photos taken by Jacky Leung on 4 September 2006 is not disputed by Ms Tam.

24. On 5 September 2006 (but Ms Tam said that it was 4 September 2006), Jacky Leung called Ms Tam and left a message for her to call back. Ms Tam called back later that day.  Jacky Leung alleged that Ms Tam admitted to him that she had observed water seepage around the rim of her bathtub, but she was busy and refused an inspection to Flat 14D by the management office (which Ms Tam denies). He also claimed that Ms Tam suggested turning off the main fresh water supply to Flat 14D (but Ms Tam denies and alleges that it was Jacky Leung who initiated this suggestion).

25. In my view, Jacky Leung is an independent witness vis-à-vis Mr Leung and Ms Tam. He has no grudge and any personal relationship with either Mr Leung or Ms Tam. His evidence is not motivated by any interest. Therefore, I am not convinced by Ms Tam’s challenge to the evidence of Jacky Leung and the accuracy of the MO Records. I find the MO Records to be true and accurate. I accept Jacky Leung as a credible and reliable witness and prefer his evidence than that of Ms Tam in case of any difference in evidence between the two.

26. In any event, the main fresh water supply to Flat 14D was turned off on 5 September 2006.

27. Mr Leung agrees that since the main fresh water supply to Flat 14D was turned off, the water leakage problem of Flat 13D has stopped.

28. On 30 November 2006 (almost 2 months after fresh water supply to Flat 14D was suspended), the Joint Office inspected Flat 14D and found no obvious defects on the sanitary fitments in the bathroom therein.

29. Nevertheless, Ms Tam cancelled the fresh water account of Flat 14D with the Water Supplies Department and the main water meter was removed in 2007. The main fresh water supply is not re-connected since then.

30. On 25 May 2007, Mr Leung (in his name only) lodged a claim against Ms Tam in the Small Claims Tribunal.

31. The dispute was later transferred to the District Court on 18 December 2007.

Issue (1) : Whether Flat 14D was the source of water leakage into Flat 13D

32. It is trite to say that there is no presumption in law that water leaking into the floor below must necessarily come from the floor above: Cheung Sau Ling & Ng Ping Hon v Cheng Lai Chong, CACV 268/1998, judgment dated 9 April 1999.

33. As a starting point, I would refer to the SJE Report which was prepared pursuant to the order of HH Judge Mimmie Chan made on 23 April 2010 and 18 January 2011 respectively.

34. The single joint expert conducted an inspection to Flat 13D on 10 February 2011 and to Flat 14D on 19 February 2011 and took the view that some form of water seepage has occurred in Flat 13D. He identified all possible causes and sources of water leakage into Flat 13D, which he set out in section 5.1.1 of the SJE Report.

35. He then performed various tests such as infrared scan test, moisture meter test, water pressure test, etc, at Flats 13D and 14D on 10 March 2011.

36. By analyzing the data and test result, he ruled out rain water from the external wall and fresh or flush water supply pipe of Flat 14D as the possible causes of water leakage. He took the view that the chances of the drainage pipes of the water closet/wash hand basin/bathtub of Flat 14D being the source of water leakage was low.

37. Upon a process of elimination, he concluded that the possibility of water leakage/seepage of surface water through the floor slab of the bathroom of Flat 14D was high and suggested that an effective water proofing layer to the floor of the bathroom of Flat 14D should be laid. In so concluding, he noted that the dye colour test carried out could not indicate the source of water leakage/seepage on the inspection day. But he offered an explanation. He pointed out that there has not been any fresh water supply and thus no water activities in Flat 14D for the past 4 years. Under this situation, the floor slab and the screed and finishes of the bathroom was in a very dry condition. Until the floor slab was fully wetted by a large amount of water for a long period of time, any dye applied during dye water tests might not be able to reach the lower floor.

38. I accept the expertise and experience of the single joint expert. I have no criticism to the methodology of investigation adopted by him. His explanation on the nil result of the dye colour test seems reasonable and logical, and above all, not challenged by the parties. That said, I cannot see why the opinion in the SJE Report should not be received by this court.

39. Further, during the cross-examination Mr Wong, Counsel for Mr Leung and Madam Lou, referred Ms Tam to the conclusion of the single joint expert (at section 6.0 of the SJE Report) and asked her if she agreed that it was a correct conclusion. In reply, Ms Tam said that she would not doubt the conclusion reached by the single joint expert but just wished him to supplement or elaborate more.

40. Upon clarification from the court, Ms Tam confirmed that she understood the content of the SJE Report and agreed to the conclusion on the source of water leakage made by the single joint expert in the SJE Report.

41. In my view, the unchallenged conclusion in the SJE Report, couple with the undisputed fact that water leakage/seepage of Flat 13D ceased once when the water activities of Flat 14D stopped (upon suspension of fresh water supply) on 5 September 2006, must mean more likely than not that the source of water leakage of Flat 13D is the floor slab of the bathroom of Flat 14D probably due to ineffective water proofing layer.

42. In reaching the above conclusion, I have not omitted Ms Tam’s evidence that the Joint Office found no obvious defects on the sanitary fitments in Flat 14D’s bathroom on 30 November 2006. However, I do not think this piece of evidence can come to any assistance to Ms Tam, for what the Joint Office had done was a mere visual inspection without performing any scientific water leakage test.  

Issue (2) : Whether Ms Tam is liable to the Plaintiffs in nuisance, negligence, breach of DMC and/or breach of the BMO

43. In order to determine if Ms Tam is liable in nuisance, the test set out by Woo JA (as he then was) in the case of Cheung Sau Ling & Ng Ping Hon v Cheng Lai Chong (supra) applies. Essentially, a defendant must be shown to have actual or constructive notice that water originated from his property. Under this test, “knowledge” can be what a defendant actually knew, or what he should have known with normal and reasonable diligence. If it can be shown that a defendant has actual or constructive knowledge that the water leakage/seepage originated from his property, he will be liable unless remedial action is taken without unreasonably delay.

44. It is Mr Leung’s case that Ms Tam was aware of his complaint of water leakage on 2 September 2006 because he inserted a letter of complaint into her letter box on that day. However, the case law requires more than this. Ms Tam must be shown to have actual or constructive notice that water originated from Flat 14D .

45. According to Ms Tam’s own confession, she received the 3/9/2006 Letter on the same day of 3 September 2006.  It is also her own evidence (just assuming that it was true) that on 4 September 2006 (ie the very next day after she received the 3/9/2006 Letter), Jacky Leung called her about the water leakage complaint of Flat 13D. And immediately upon the suggestion by Jacky Leung, she agreed to turn off the main fresh water supply to Flat 14D. She continued to suspend the fresh water supply until 2007 when she cancelled the water account for good. This would effectually mean that she would be unable to use any water for such as bathing or washing her face and teeth, any more.

46. When asked why she agreed to this suggestion, she told the court that something had to be done in order not to let the situation went worse (“要做啲嘢不致令事情惡化”).

47. Properly read, such evidence of Ms Tam reflects that deep down in her mind, she knew or must have known that water was likely to be originated from Flat 14D by the time when she read the 3/9/2006 Letter; otherwise, she would not have immediately acceded to Jacky Leung’s suggestion of suspending the fresh water supply to Flat 14D, which by itself would inevitably cause inconvenience to her.

48. Yet, after 3 September 2006, she did the bare minimal to follow up on the water leakage problem or on the remedial work. She said that she had engaged a plumber to check Flat 14D after 11 September 2006, but did not find out if the plumber was qualified and possessed the requisite licence. All she did was to continue suspending the use of fresh water in Flat 14D and later cancel the water account. As a matter of fact, Ms Tam confessed in the cross-examination that she was too busy to have the time to maintain Flat 14D.

49. Under such circumstances, I reach the conclusion (and this also my finding) that Ms Tam failed to properly and reasonably maintain Flat 14D, especially the floor slab and probably the water proof layer of the bathroom therein. Having known or must have known that water originated from Flat 14D by 3 September 2006, she failed to take any remedial step to rectify the water leakage/seepage problem. I thus find that she is liable in nuisance and in negligence.

50. It is also clear (and it is my finding ) that she was in breach of heading A, Part V of the DMC, in particular Clause 6 (which provides that an owner of Lido Garden shall indemnify all other owners against any actions or claims in respect of any loss and damage caused as a result of the negligent act of such owner arising out of the overflow of water therefrom;  Clause 7 (which states that each owner shall pay all costs, charges and expenses incurred in repairing or making good any loss or damage caused by his act, neglect and default); and Clause 9 (which provides that each owner shall maintain his unit and fixtures therein in good repair and condition to the satisfaction of the manager). 

51. I further find her in breach of section 34 of the BMO, imposing a duty on an owner owed to all other owners of a building under a deed of mutual covenant to maintain his own premises in good repair and condition.

Issue (3) : The Reliefs and Damages

Costs of repairs

52. The single joint expert opined that only those parts affected by water leakage/seepage in Flat 13D needed repair and set out in section 5.4.2 of the SJE Report all the necessary repair work to be done. He also gave his opinion on the estimated costs of such repair work, more particularly described in the scott schedule. The total estimated costs are $30,900.

53. Ms Tam has no dispute to this sum.

54. Mr Leung, however, does not agree with the single joint expert and insists that not only the affected parts, but the whole of Flat 13D required repair and/or replacement so as to give a uniformity look or shade of colour(s) upon completion of repair works. He relies on the quotations given by Hang Fung Decoration Engineering dated 14 April 2011 and by Ocean Dragon Engineering Co dated 16 April 201l. The total repair costs he asks for is $89,600. He further claims that he should be entitled to add 15% on top of this amount to reflect the inflation (which I will deal with later in my judgment). The revised amount of repair costs he now claims is $103,040.

55. Mr Wong for Mr Leung and Madam Lou refers me to the relevant legal principles on assessment of repair costs set out in McGregor on Damages (18^th ed) at paras 32-006 to 32-010.  Put in a nutshell, the costs of repair must be reasonable in that the work must be necessary and the charges must not be extravagant.

56. First of all, it is pertinent to say that the costs of repairs now claimed by Mr Leung is estimation only; he has not yet incurred any out of pocket expenses for such repairs.

57. Further, it needs no reiteration that the assessment of repair costs of $30,900 is given by the expert jointly appointed by the parties. As Mr Wong has rightly submitted to me in his opening submission, it is unusual to disregard the expert’s evidence (See: Payen Ltd v Southampton Container Tribunal Ltd [2003] EWCA Civ 1223). This is especially so when what the single joint expert has opined is in fact the necessary work for repair to Flat 13D to remedy the water leakage/seepage problem. What the single joint expert has opined is thus in line with the legal principles submitted by Mr Wong.

58. I would further add that Mr Leung’s wishful claim to be compensated for repair/refurbishment of whole of Flat 13D is without any sound basis and is self-serving in nature. Further, it is not supported by his own evidence. For example, in rejecting Ms Tam’s allegation that the water might have been originated from the external wall, Mr Leung explained that he saw only a minor crack at the external wall of Bedroom 2, which was later mended by the management office. He categorically added the wall paper there was perfectly good (“靚過鬼火”).  That being the case, why should Ms Tam be made to pay for the replacement of wall paper of that part of Bedroom 2?

59. To conclude, I find that the reasonable repair costs of Flat 13D in the circumstances are $30,900.

Alternative accommodation

60. It is the evidence of Mr Leung that it would take 45 days (per the said quotation of Hang Fung Decoration Engineering) to repair/refurbish whole of Flat 13D, during which he and his daughter would need alternative accommodation. He alleges that there is no short term tenancy available in Sham Tseng where Lido Garden is situated. Therefore, her daughter and he can only stay in a hotel in Tsuen Wan District. And since his daughter is an adult and needs privacy, 2 hotel rooms (each at $3,300 per night at say Panda Hotel, Tsuen Wan) are required for 45 days. Thus, he claims for $297,000 ($3,300 x 2 rooms x 45 days).

61. The alleged 45 days is premised on Mr Leung’s claim for repair/refurbishment of whole of Flat 13D. Since I have rejected this argument and accepted that only necessary repair work as opined by the single joint expert should be allowed, it must follow that Mr Leung’s claim for 45 days to do all necessary repair work cannot be sustained.

62. Further, as most of the necessary repair works suggested in the SJE Report involve only portion of the 3 bedrooms, the dining room, of the bathroom and the corridor outside the bathroom, I am not convinced (and thus I find) that Mr Leung and his daughter would need to move out of Flat 13D during the repair period. There are 3 bedrooms inside Flat 13D, which may be repaired in turns. They may stay in any bedroom which has been repaired or is waiting to be repaired.

63. Apart from the above consideration of necessity, I cannot help saying that this sum of $297,000 claimed by Mr Leung is unreasonably excessive, if not extravagant. In Lam Eguchi Mayumi v Fast Well Enterprise (HK) Ltd, DCCJ 3702/2008, judgment dated 31 March 2010, a case quoted and relied on by Mr Wong in his submission, the plaintiff therein made a claim for the costs of an alternative accommodation. The facts show that for a 2,500 sq ft apartment in the Repulse Bay, Hong Kong (which, without disrespect to Mr Leung, is a residential district far more prestigious and expensive than Sham Tseng or Tsuen Wan in our present case) for 45 days would cost $240,000 only, which is $57,000 cheaper than the sum now claimed by Mr Leung.

64. I further find it hard to believe (and thus I do not believe) that there is no short tenancy available in Sham Tseng or nearby districts for Mr Leung to take up, if he is willing to offer to pay a higher rent. And common sense tells that no matter how high the rent for this short time tenancy would be, it would certainly not be that high as to come anywhere close to $297,000 for 45 days.

65. The reason(s) offered by Mr Leung for 2 rooms, ie his daughter needs privacy in making phone calls, etc is not accepted by this court.

66. I conclude that this head of claim fails to meet the hurdles of necessity and reasonableness. I reject to make any award under this head. 

Storage fee & removal costs

67. Since I have rejected Mr Leung’s claim for alternative accommodation, I cannot see why storage fee and removal costs should be allowed. I will not award any amount under this head.

Damages for discomfort & inconvenience

68. Mr Leung and Madam Lou claim $100,000 under this head for themselves, their son and their daughter to cover the period from  around July 2006 to the time of completion of remedial work at Flat 14D and then repair work of Flat 13D (which exceeds 6 years).

69. Mr Wong relies on Hu Wei Hsin v Ma Hung Wing & Others, DCCJ 273/2011, judgment dated 3 June 2011) and submits that this court should not merely concern about duration of water leakage, but should also take into account the entire episode and the fact that Mr Leung and his family, being the innocent party, were made to put up with the situation as a result of the lack of responsible response of Ms Tam, the wrongdoer.

70. In Hu Wei Hsin v Ma Hung Wing & Others, the nuisance (ie burning incense in the common area of a multi-storey building) was a continuing and repeated act lasting for about 9 months which caused distress and anxiety to the pregnant plaintiff. In our case, even in the own evidence of Mr Leung, the water leakage was a one-off single incident lasting for about 2 months only. Obviously, the facts of our case are different from those of Hu Wei Hsin v Ma Hung Wing & Others which should thus be distinguished.

71. Further, it should be of note that Mr Leung and his family had emigrated from Hong Kong to Canada since 1997. Mr Leung closed his business in Hong Kong and set up various businesses in Canada of which he was in charge until 2008. The evidence shows that Madam Lou and the son did not live in Hong Kong for most of the material times. Mr Leung himself did not live in Hong Kong continuously since July 2006 up to now, either. The only possible family member who seems to stay in Hong Kong is the daughter. Yet there is no direct evidence from her as to how her life or amenities were affected.

72. In the premises, I am not persuaded that Mr Leung and all of his family members did suffer discomfort and inconvenience continuously from July 2006 up to the completion of all repair work of 13D.

73. In So John v Lau Hon Man [1993] 2 HKC 356, $10,000 was awarded for the discomfort and inconvenience caused by water leakage lasting for 1.5 months. 

74. In Leung Yung Chun v Chan Wing Sang, HCA 12235/1998, judgment dated 28 January 2008, $80,000 was awarded for the inconvenience caused by water leakage for a period of nearly 2 years.

75. I am of the view that the sum now claimed by Mr Leung and Madam Lou is too high. An award of $25,000 to cover the water leakage duration of about 2 months and the period when repair work is to be done in Flat 13D is, in my judgment, reasonable and more in line with the case law.

Air tickets

76. In his 3^rd witness statement, Mr Leung said that he and Madam Lou have incurred $89,705 (revised to 101,600 if 15% added to reflect inflation) for 12 rounds of air flight between Canada and Hong Kong from 30 April 2007 to 23 April 2012 for the purpose of litigating this water leakage dispute.

77. Upon considering the evidence, I do not believe in Mr Leung’s evidence, for it is full of inconsistency and exaggerations. The  following are some of the examples:

(1)For the air tickets booked on 18 September 2007, Mr Leung claims a sum of $696.30 (in Canadian dollars) without disclosing that such sum also covers the air ticket of his daughter from Canada to Hong Kong. When asked, he explained that his daughter had gone back to Canada for Chinese New Year and he took this trip to accompany her back to Hong Kong. The purpose of such a trip is clearly not caused by the tort of Ms Tam.

(2)For the air ticket booked on 4 February 2008, the flight took place on 13 March 2008 from Canada to Hong Kong. Mr Leung claims that the purpose of this flight was to meet his solicitors to discuss the litigation after transfer to the District Court. However, the flight itinerary shows that this flight was actually taken by Madam Lou who was not yet a party to these proceedings, as she was only added as a plaintiff in October 2011. Again, the purpose of this trip cannot be caused by the tort of Ms Tam.

(3)The same rational applies to the air flight taken by Madam Lou from Hong Kong back to Canada on 13 May 2008.

(4)The flights expenses incurred on/after 26 October 2009 are not out of pocket expenses paid by Mr Leung or Madam Lou. They were actually paid by their son. The evidence does not show that Mr Leung or Madam Lou had reimbursed their son for such flight expenses. As such, the flight expenses incurred on or after 26 October 2009 cannot be actual loss suffered by them.

78. As a conclusion, I am not convinced that in principle or from the evidence of Mr Leung, these air ticket expenses are directly caused by the tort committed by Ms Tam. I will not allow any sum under this head. 

15% added for inflation

79. It is Mr Leung’s case that 15% should be added to each and every item of damages (save and except damages for discomfort and inconvenience) to cover inflation.

80. There is no reasonable basis or supporting evidence to show why he should be awarded to 15% more of the repair costs to cover inflation. I would simply reject this claim.

Summary of Quantum

81. For clarity, I set out below the quantum of damages allowed/disallowed by me:

(1)	Repair costs	$30,900
(2)	Damages for discomfort and inconvenience	$25,000
(3)	Alternative accommodation	Nil
(4)	Storage fee & removal costs	Nil
(5)	Air tickets expenses	Nil
(6)	15% inflation	Nil
	Total:	$55,900

Injunctions

82. Since I have already found that the source of water originated from Flat 14D and since Ms Tam in cross examination conceded that the repair work advised by the single joint expert in the SJE Report in respect of Flat 14D should be done, I take the view that the circumstances and fairness of the matter does call for a mandatory injunction to repair.

83. However, in respect of Mr Leung’s application for a prohibitory injunction to restrain Ms Tam from causing or allowing water to be leaked from Flat 14D to Flat 13D, I take a different view.

84. It is trite to say that injunctions are an equitable remedy and as such therefore subject to equitable principles.  They are to be granted only where necessary, appropriate and just.  For example, where damages provide an adequate remedy, an injunction will not generally be granted.  Where one is to be granted, the same principles also dictate that an injunction should not be made any wider than necessary.

85. In the present case, Mr Leung and Madam Lou’s complaint was that of a leakage from Flat 14D, which has stopped on or about 5 September 2006. The obvious and sufficient remedy, in my view, is simply a mandatory injunction to effect due repairs, which I have no hesitation in granting.

86. To grant a prohibitory injunction as prayed is, in my judgment, unnecessary and unjust, because if such a permanent injunction were to be granted, Ms Tam might find herself facing contempt proceedings even when she had repaired the leakage, should another leakage occur in the future.

87. I therefore, refuse to impose a prohibitory injunction on Ms Tam.

Conclusion

88. For the matters set out above, I will enter judgment for Mr Leung and Madam Lou in the sum of $55,900.

89. No interest will be awarded on the costs of repair, as this sum has not been incurred by Mr Leung and Madam Lou yet.

90. There will be interest on the sum of $25,000, being damages for discomfort and inconvenience, at judgment rate from the date of Writ until the date of this judgment and thereafter at judgment rate until full payment.

91. I further grant an injunction that Ms Tam do, within 60 days from the date of this judgment, carry out all necessary remedial work (more particularly set out in section 5.4.1 (i) and (ii) of the single joint expert report prepared by Mr Raymond Chan Yuk Ming dated 23 March 2011) and purge all leakage, seepage and discharge of water from Flat 14D to Flat 13D.

92. Costs should follow the event. I thus make a costs order nisi that Ms Tam should bear the costs of Mr Leung and Madam Lou of this action (including that of the Small Claims Tribunal, if any) to be taxed if not agreed on District Court scale. I certify Counsel’s attendance for this trial before me. And Mr Leung and Madam Lou’s own costs will be taxed in accordance with Legal Aid Regulations.

93. If no application is made to vary this costs nisi, it will become absolute within 14 days from the date of this judgment.

Postscript

94. I do not think I am the first to make observations in one’s judgment after trial about a water leakage case.

95. While I appreciate that it is the right of the parties to litigate in court, the dispute in this case has clearly been blown out of proportion with substantial legal costs being spent on matters which the parties, with a bit of good sense and mutual goodwill, should be capable of resolving between themselves.

96. The most obvious example that comes to my head is the date of 21 July 2006 fixed by the learned adjudicator of the Small Claims Tribunal for parties to engage experts/licensed plumber to find out the source of water leakage. It was unfortunate that the testing did not go ahead on the appointed day. Mr Leung alleges that Ms Tam refused to turn on the main fresh water supply (which had been turned off for about 22 months) for the purpose of testing. Ms Tam, on the other hand, claims that Mr Leung refused to let her expert inspect Flat 13D before any testing or turning on the main fresh water supply should be done.

97. Had the parties then exercised their good sense and be more forbearing and co-operative on 21 July 2006 or shortly thereafter, I am sure that it was very likely that the source of leakage could have been identified and the matter solved at the level of Small Claims Tribunal.

98. If so, enormous costs and fees could have been saved; and the parties would not have found themselves bearing their own fees of the respective experts (engaged by the parties at the earlier stage of the proceedings in the District Court but was later replaced by the single joint expert) and the costs of the original trial (which was fixed for 3 days from 11 to 13 May 2009 but was refixed due mainly to deficiency in their respective expert’s report(s)).

99. As such, I regret to say that no one turns out to be a de facto winner in the present case. If Mr Leung and Ms Tam now review the whole situation, I am sure they would agree that there could be better and less expensive solutions.

100. I therefore would give a soft reminder to any party (and their solicitors) in a water leakage case that they should act with good sense and goodwill and, above all, be more pragmatic and proactive in terms of settling their dispute before the cost element gets out of control.