LAU CHUN WING ROD v. THE INCORPORATED OWNERS OF PO ON BUILDING

DCCJ 762/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

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JUDGMENT

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1. By this action, the Plaintiff sued the Defendant for injunctive relief and damages arising from water leakage from the rooftop of the building into the Plaintiff’s premises.

Background

2. The Plaintiff is the registered owner of Flat C, 16^th Floor of Po On Building, Nos 30-36 Mongkok Road, and Nos. 124A & 124B Tung Choi Street, Kowloon, Hong Kong (“the Premises”) since 5^th December 2001. The previous owner was a limited company, known as Grandmate Limited (“Grandmate”) of which one Mr. Lau Wing Cheung (“Lau”), the Plaintiff’s elder brother, was a director and shareholder. Grandmate purchased the Premises on 6^th March 2000. The Plaintiff entrusted the management of the Premises to Lau. So Lau had personal knowledge of the condition of the Premises as from March 2003.

3. The Defendant is the owners’ incorporation of the Po On Building of which the Premises forms part.

4. The Po On Building was built in or about 1966 comprising one single 16-storey block with six flats on each floor. The building has only one rooftop and the Premises is located at the top floor of Po On Building. The boundary of the rooftop is marked by parapet walls. There is a canopy on the external side of the parapet wall above the balconies of flats A, B, C and D of the 16^th floor which are all on the same side of the Po On Building facing Mongkok Road. It is common ground that the balconies of these units are now sealed by windows.

5. There is an exposed flush water pipe (“FWP”) fixed to the internal side of the parapet walls surrounding the Po On Building. It is mounted to the parapet walls by metal brackets and runs at a position slightly above the roof floor. When this FWP comes to the parapet wall over the Premises, it branches and runs vertically down into the floor immediately above the living and dining room of the Premises. It becomes embedded and runs along the floor slab immediately above the Premises. This part of the FWP later emerges at a point near the parapet wall surrounding the light well.

6. It is not in dispute that between end of 2001 and end of March 2002, pursuant to an order issued by the Building Department, the Po On Building had undergone renovation by a contractor, Kwai Hing Construction Limited (“Kwai Hing”) whose work was supervised by an Engineering company, Fortune Engineering Consultants Limited (“Fortune”) nominated by the Defendant. The works by Kwai Hing involved, inter alia, laying on the rooftop and the canopy a layer of waterproof material. It was the Defendant’s case that a free four-year waterproof maintenance was given by Kwai Hing from November 2001 to November 2005.

7. There was some dispute as to how the said FWP was embedded into the rooftop. The Defendant’s case was that originally, the part of the FWP, which runs across the rooftop immediately above the Premises, was an exposed one. During the renovation, it was decided that the old pipe was to be replaced by a new pipe of the same size in its original position. It was Defendant’s case that when this was done the pipe was not bent nor manipulated in any way. It was decided in the renovation that concrete was to be put over the FWP to such a level as to conceal completely that section of the FWP above the Premises. The entire rooftop was then smoothened and a ridge with gentle slopes towards the parapet walls was formed. Water therefore flows down the slope to the channels at the foot of the parapet walls and is collected into drains. A layer of waterproof material was painted all over the rooftop and the canopy.

8. The Plaintiff’s case is that the rooftop concrete slab was cut open and a trench was made. That part of the originally exposed FWP was then modified to run along this trench. Concrete was then poured to fill up the trench before a layer of waterproof material was put on.

9. It is this part of the embedded FWP, together with the holes made on the parapet walls that are alleged by the Plaintiff to be the root of water leakage problem to the Premises.

10. According to the Plaintiff, after gaining possession of the Premises, the Plaintiff found that there were some dampness marks on the ceiling of the Premises. He hired a decorator to do the repair.

11. He later rented the Premises to one Mr. Yip Man Wai (“Yip”) at a monthly rental of $8,000 from 20^th April 2002 to 19^th April 2004 with a break clause after one year. It was alleged by the Plaintiff that because of the serious water leakage, Yip moved out after about a year on 25^th April 2003. Before Yip moved out, several complaints about water leakage were made. Yip said the water leakage was serious enough to cause electricity disruption to the ceiling lamp. Water was also dripping to the floor from the ceiling. However, the Defendant produced a statement from Yip dated 25^th December 2004 explaining that his family moved out not because of water leakage but of, inter alia, the Plaintiff’s refusal to accede to his request for rent reduction.

12. After Yip had left, the Plaintiff inspected the Premises and found the water-leaking problem quite serious. The Plaintiff alleged that he instructed a decorator to remedy the situation. Upon the advice of the decorator, he instructed the decorator to apply a layer of black tar, which was a kind of waterproofing material on the part of the rooftop immediately above the Premises in or about May 2003. However, the water leakage problem still could not be solved.

13. The Plaintiff then made his first complaint to the Defendant by a letter dated 4^th August 2003 in his own hand writing and requested rectification. There was some dispute as to whether this letter had ever reached the Defendant. The Defendant’s version was that they had never received this letter. The Plaintiff’s 1^st complaint came only on 16^th September 2003 when the Plaintiff’s present solicitors, Tang, Wong & Cheung (“TWC”) sent them a letter. Initially, the complaint seemed to target at the buried FWP which was said to have been leaking. The Defendant responded by a letter dated 29^th September 2003 denying the water leakage being caused by the FWP. It was the Defendant’s allegation that the FWP was only buried for about one and a half years and could not have been the cause of the water leakage. The water leakage problem of the Premises was known for at least four years prior to the complaint. The Plaintiff later engaged his own expert to find out where the water came from. The leakage from the buried FWP was eliminated. The expert’s findings, namely water came from the leaks on the rooftop to the Premises, was sent to the Defendant. The Plaintiff notified the Defendant that if repair was not carried out, the Plaintiff would do the repair himself without further reference to the Defendant.

14. By a letter dated 5^th December 2003 from the Defendant’s then solicitors, Lam Fung & Co. (“LF”), the Defendant denied liability. The Defendant said that the roof was then still under “maintenance and retention period”. They were going to do “some maintenance works in Po On Building on its roof area shortly” and requested the Plaintiff to remove the black tar, which caused obstacle to the Defendant’s intended work. By that letter, the Plaintiff was told that they should not do any repair works in the common area of Po On Building without the approval of the Defendant.

15. It is not in dispute a complaint was made to the Buildings Department. By a letter dated 27^th Jan 2004, the Building Department informed the Defendant, inter alia, that the Defendant should liaise with the owner of the Premises to fix the problem as the water leakage may harm the structure of concrete slab apart from constituting a nuisance.

16. As the problem was not solved, on 12^th February 2004, the Plaintiff issued this action against the Defendant.

The Plaintiff’s Case

17. It is the pleaded case of the Plaintiff that the construction of the said FWP had damaged the waterproof mechanism of the roof. Leaks were created on the parapet walls and in the roof floor slab. As a result, rainwater entered the roof floor slab, trapped there, and eventually found its way into the Premises, causing water damage.

18. As a result, it was alleged by the Plaintiff that the then tenant Yip moved out, causing loss in rental income on the part of the Plaintiff.

19. It is the pleaded case of the Plaintiff that the rooftop and the FWP form part of the common parts of the Po On Building the good and proper repair and maintenance of which rested with the Defendant. As such the Defendant is liable to the Plaintiff on the following grounds:

i) nuisance;

ii) negligence because the Defendant –

a) knew or ought to have known that such construction, if carried out in such a way would, or would be likely, to cause leakage problem affecting the Premises; and

b) failed to take any or any sufficient step to prevent water from leaking and thereby affecting the Premises;

iii) breach of Deed of Mutual Covenant of the Po On Building (“DMC”) in failing to maintain the common parts of the building in good and proper repair, thus affecting the quiet enjoyment of the Plaintiff; and

iv) breach of section 34I(1) (b) of the Building Management Ordinance (Cap. 344) (“BMO”), causing a nuisance or hazard to the Plaintiff.

20. On the 4^th day of the trial, Mr. Victor Chan, solicitor for the Plaintiff contested that he would also rely on the doctrine of res ipsa loquitor which, he submitted, needed not be pleaded. He relied on the commentary at paragraph 18/8/20 of the Hong Kong Civil Practice 2006 in support of such contention.

21. The Plaintiff therefore seeks the following remedies against the Defendant:

i) a declaration that the Defendant is obliged to carry out waterproof works so as to prevent water from trapping inside the roof floor slab and eventually percolating through the roof and causing dampness problem to the Premises; or alternatively;

ii) an injunction restraining the Defendant by itself, its agent or servant or otherwise howsoever from continuing to maintain and keep the said water flushing pipe on the rooftop on the roof so as to be a nuisance to the Plaintiff;

iii) damages;

iv) interest; and

v) further or other relief.

The Defence and the Counterclaim

22. The Defendant denies that the alleged water leakage was caused by the leaks allegedly created by fixing of the FWP on the parapet walls and the embedding of it in the roof floor. The Defendant basically put the Plaintiff to strict proof of everything pleaded in the Re-amended Statement of Claim.

23. Further, it was the Defendant’s case that:

i) the water leakage problem is a continual one. There had been incidents of occasional water dripping or leakage from the ceiling of the Premises even before the Plaintiff had become the owner of the Premises but no complaints were made to the Defendant until around September 2003 (paragraph 6(iii) of the Re-amended Defence and amended Counterclaim);

ii) the Plaintiff failed to respond to questionnaires issued by the Kwai Hing and Good Fortune as to whether the Premises was affected by the renovation work or otherwise the work is satisfactory or not;

iii) the Plaintiff has assumed liability by appointing its own contractor to fix the water leakage problem. A layer of black tar was put on the floor of the rooftop immediately above the Premises. Such work was unauthorized and destroyed the impermeability quality of the waterproof membrane put on the rooftop by the Defendant’s contractor. Therefore, the Plaintiff is the author of its own misfortune and was liable for any consequential loss or damages;

iv) the water seepage problem is aggravated or contributed to by the extensive decoration work and re-partitioning done inside the Premises by the Plaintiff;

v) on the other hand, the Defendant had exercised due care in selecting an independent and qualified contractor to do the renovation work which includes the water proofing on the rooftop and the replacement of the old FWP. Professional engineers had been engaged to supervise the work of the contractor. A four years guarantee has been obtained in the waterproofing work. The Defendant has fulfilled its statutory and contractual duties; and

vi) in any event, the Defendant is cooperative and despite the fact that the Plaintiff refused to remove the black tar, the Defendant nevertheless paid an extra sum of HK$5,000 to remove it. The Defendant then asked Kwai Hing to honour its guarantee by putting on another layer of waterproof membrane. Another sum of HK$5,000 has also been incurred by the Defendant in appointing surveyors to prepare a report in support of its case.

24. By reasons thereof, the Defendant counterclaims against the Plaintiff for a sum of HK$10,000.

Issues

25. The following, therefore, appears to be the issues before the court:

i) what was the cause and source of the alleged water leakage?

ii) did the black tar contribute to or was it the real cause of the water leakage?

iii) was the Plaintiff’s own internal renovation the cause of the water seepage?

iv) whether there was a breach of the DMC and/or BMO?

v) whether the water leakage constitutes a nuisance? When did the Plaintiff first complain of the water leakage?

vi) was the Defendant negligent in failing to maintain the common parts of the Po On Building?

26. The first two issues hinge on expert evidence and the remaining four basically turn on facts of the case.

Summonses and Interlocutory Issues Cropping During Trial

27. I have to say that there are a lot of rooms for improvement by the Plaintiff in his preparation for trial. Obviously this is the responsibility of the Plaintiff’s solicitors. Many issues that ought to have been dealt with earlier had not been so raised at the interlocutory stage. They were raised in the course of trial. 

28. The Plaintiff issued a summons dated 27^th February 2006, just two days before the trial commenced, for leave to file and serve an expert survey report of 27^th February 2006. That report basically stated the findings of his two inspections made to the Premises in May 2005 and 21^st February 2006. Further it contained an assessment of the rental loss and compensation that the Plaintiff was entitled to receive.

29. On the first day of the trial, the application by the Plaintiff’s counsel, Mr. Louie Chan, turned out to be an application for an order for split trial. It was not in dispute that there was no prior court’s direction for a split trial. Nevertheless, Mr. Chan submitted that an agreement was reached between the respective solicitors of the parties shortly before the trial that the present trial dealed with liability only so as to save costs and to prevent overrunning. The gist of Mr. Chan’s other ground was that since the water leakage was still continuing, without fixing the problem it would be difficult for the Plaintiff to crystallize its loss, particularly the loss in rental income. Miss Liza Yip, counsel for the Defendant, opposed and denied there being any agreement.

30. After hearing submission, I accepted the Plaintiff’s argument that should the Plaintiff succeed on liability, the quantum of his loss could not be ascertained without having the water problem fixed. That could not be done some time after the liability issue was disposed of. I ordered that there be a split trial of liability and quantum and the present trial dealed with only liability. However, I considered that this issue should have been addressed by the Plaintiff at any of the three pre-trial reviews the last of which being some five months before trial. I therefore awarded costs of hearing the argument on that issue against the Plaintiff with certificate for counsel. For the purpose of taxation, two and a half hours and half of counsel’s refresher were apportioned to the hearing of this issue.

31. After my above ruling, Mr. Chan, counsel for the Plaintiff decided not to pursue the Plaintiff’s said summons and accordingly leave to withdraw was granted by me. I also ordered that the costs of and occasioned by the Plaintiff’s said summons be borne by the Plaintiff to the Defendant with certificate for counsel. For the purpose of taxation, half hour and one tenth of counsel’s refresher be apportioned to the hearing of this summons.

32. On the second day of the trial, Mr. Chan of counsel for the Plaintiff again made application to file and serve supplemental factual evidence. After hearing submission of counsel, I granted leave to the Plaintiff to file and serve supplemental witness statement on or before noon of 7^th March 2006 with leave to the Defendant to file and serve supplemental witness statement in reply before 5:00 pm on the 10^th March 2006. I also directed that costs incurred in argument of this issue be reserved until conclusion of this trial. For the purpose of taxation, one and half hour have been spent on this particular issue.

33. On the 7^th day of trial, Mr. Victor Chan, solicitors for the Plaintiff raised a jurisdictional point, namely he had not pleaded the rateable value of the rooftop pursuant to paragraph 1.2 of Practice Direction 27. However, he contested that the Plaintiff had evidence to show that the rooftop in question has a rateable value of not exceeding $240,000. He applied to put in evidence on the rateable value. Miss Yip, counsel for the Defendant objected this application on the ground that it simply came in too late. Furthermore, it was also contended the FWP formed part of the entire Po On Building and the value of which should exceed $240,000. In my judgment, this issue ought to have been raised as a preliminary issue. However, when it was raised, the trial was on the 7^th day of the trial initially set down for only three days. I considered that it was similar to applying for leave to amend the statement of claim in the middle of a trial. Since the putting in of new evidence was for the purpose of determining the real issues between the parties and that the trial was not expected to finish on that day with the upcoming hearing dates being in May 2006, I allowed the parties to put in further evidence in this respect without there and then making a ruling on the jurisdictional issue. Costs of that application are to the Defendant with certificate for counsel. For the purpose of taxation, two fifths of counsel’s refresher were allotted to the hearing of this issue, to be taxed if not agreed.  

The evidence

34. Both parties called their own expert to testify at trial. The Plaintiff’ expert is one Mr. Lai Wah Chi Patrick (“Lai”) of AA Property Services Ltd. The Defendant’s expert is Mr. Tam Fung Cheung (“Tam”) of F.C. Tam Surveyors Ltd. Apart from experts, the Plaintiff called one factual witness, Lau to give evidence. Mr. Cheung Kwok Leung (“Cheung”) and Chan Kin (“Chan”), respectively former and present committee members of the Defendant gave evidence on behalf of the Defendant. In fact in the agreed bundle of documents, the Defendant also included and would like to rely on the witness statements of the tenant Yip and another statement from a staff of Kwai Hing. Since the Plaintiff did not intend to cross-examine these two witnesses, the Defendant therefore did not call them to attend trial for examination.

35. The parties put in a bundle of correspondence and agreed documents. The authenticity of these documents was not challenged. I therefore admit all of them as evidence, subject to the weight to be attached to the documents.

Expert Evidence

Plaintiff’s Expert

36. Lai qualified as a member of the Royal Institute of the Chartered Surveyors in 1984 and a member of the Hong Kong Institute of Chartered Surveyors in 1985. His experience involved overseeing construction of residential projects until 1991. He then started his own company and was appointed building managers of over 20 buildings responsible for maintenance and management of the buildings. His experience while working as manager involved handling complaints by owners concerning water leakage and fixing the problems. In the past 5 years he was engaged by properties owners to ascertain the causes of water leakage. He conducted tests and compiled reports at an average rate of 1 in every 2 months. He had once appeared in court to give evidence concerning cause of water leakage, and this was his second time in this kind.

37. Lai produced a report dated 27^th October 2003. Some 16 photos were taken of the Premises and the rooftop. He said all these pictures were taken before the colouring test which he administered on 11^th October 2003.

38. He recalled instruction was received in early October 2003 and went to the Premises and the rooftop to conduct an inspection. He noticed that the buried FWP ran across the rooftop immediately above the living and dinning room of the Premises. He also noticed that the Premises was about 45 square feet in size comprising 2 bedrooms situated at the balcony area of the unit. The kitchen and the washroom had been relocated to a position adjacent to the partition wall with flat B with the washroom next to the bedroom. There is no demarcation between the living and dining areas. So they referred to basically one and the same room. Wooden false ceiling ran over three sides of the living and dining room except on the opposite side of the washroom and the kitchen. Fluorescent light tubes were installed at the upper side of the false ceiling. There was also one ceiling lamp in the middle of the living and dining room.

39. He considered that the physical condition of the Premises very poor. He noticed dampness marks in the ceiling and false ceiling of the living and dinning room. About 60% of the ceiling of the living and dinning room were wet. Ceiling plaster peeled off and some fell on the wooden floor. There were also dampness marks on the ceiling of the kitchen and toilet. He could also see water dripping down from one point from the ceiling.

40. He said that when he turned on the light of the living and dinning room, it blinked. He noticed that white marks appeared on the ceiling lamp cover. He explained that when water came down it carried with it white plaster and deposited on the lamp cover, leaving behind white powder marks when water evaporated. He also found similar white plaster marks on the wooden floor. He then took down the ceiling lamp and found water trapped inside that cover. That explained why white marks were found on the lamp cover and floor. The embedded wire in the hole where the wire emerged was also wet. Lai said that explained why the ceiling lamp in the living and dinning room was disrupted. The dampness along the wire caused short circuit of electricity.

41. He went into the 2 bedrooms and noticed no dampness marks in the ceiling. The two bedroom lights worked properly.

42. Later, two tests were recommended and conducted, the first being the “colouring test” and the second, “flooding test”.

43. The colouring test was done in order to test whether there was any leakage of the FWP. It was carried out on 11^th October 2003 with the cooperation of the Defendant. Red colour dye was put into the flush water tank so that flush water supply to the Po On Building was red. If the FWP were leaking, red colour marks would appear on the ceiling of the Premises a few days later. However, no red watermarks appeared. He therefore ruled out the possibility that flush water leaked from the embedded FWP to the Premises.

44. He then proceeded with the flooding test on 14^th up to 17^th October 2003. He suspected that water might come down to the Premises through the joints between the parapet wall and the roof. The methodology is this. First of all he built a “tank” using “stopper” right over the canopy area of the Premises and flooded it with water to about one inch deep. This flooding test was done for four consecutive days. Simultaneously with the flooding test, he also administered the spraying test. He sprayed the inside of the parapet wall with a hose of water just above the Premises for 15 minutes, then stopped for a while and repeated the spraying so that there would be two to three 15-minutes sprays in every two hours. In the cross-examination, Lai said he concentrated at areas of the holes right above the FWP he found on the parapet wall and the area where the FWP pierced into the floor slab. These areas were subjected to this 2-hour spraying test for four consecutive days.

45. After the flooding test accompanied by the spraying test, he did not find fresh dampness marks in the two bedrooms. However, he found new dampness marks appeared at some of the old dampness areas in the living and dinning room just outside the bedroom. These areas became wetter to touch.  Lai said in his evidence on day 3 of the trial that “…after doing the test, the circled area became very wet and the affected area expands and greater than the original area.” Lai marked the new dampness area on the first photo on page 87 of the Agreed Bundle. According to the position marked and comparing it with exhibit P2 (showing the position of the kitchen, washroom and the false ceiling marked by Lai) and page 94 of the bundle (showing the position of the embedded FWP), the new water marks appeared at one of the corners (corner A) of the living and dinning area immediately below the parapet wall and next to the washroom. It then spread. His conclusion was there were cracks in the joints between the parapet wall and the rooftop floor slab and through which water percolated down.  It was also possible that the floor slab contained weakness points.

46. Lai produced two photos that were taken while he was doing the spraying test as exhibit P3. He explained that there were two holes on the parapet wall which he suspected to be points of entry of water. He said these holes were made when metal brackets, which were used to hold the FWP in position, were driven into to the parapet wall. A bracket was a metal ring the diameter of which could be adjusted by a screw. There was also a metal nail sticking out from the ring. The nail part of the ring was driven into the concrete and the pipe would then be mounted to the wall by the ring. According to P3, it could be seen that one of the holes was still with a bracket holding the FWP while the other was uncovered. No waterproofing material has ever been put on to cover these two holes. He said he could see hairline cracks on the surface and also the top of the parapet wall.

47. Lai explained that when rainwater fell on the surface of the parapet wall, it came down along the surface of the wall. When it came to weak points, such as holes and cracks or even hairline cracks, it entered into the concrete wall, which was never water impermeable. It then spread on the roof floor slab. When it met the embedded pipe, the pipe would act like a pathway. Water then followed the path of the pipe and went down if there happened to be weak points such as cracks, causing dampness marks on the ceiling of the Premises. He said that explained why the area under the water pipe suffered the most serious water damage. His drew a diagram to explain the above as exhibit P4. 

48. Lai also opined that when the FWP went vertically into the floor slab, it certainly weakened the waterproof membrane, thus affecting the waterproofing mechanism of the rooftop. Water would enter at the point where it was cut through. This was an undesirable construction. The waterproof membrane should be laid without anything cutting through it.

49. Lai said although he might not be 100% sure whether water actually went through the areas where the FWP entered and emerges from the floor slap, he was “100%” sure water entered into the Premises through the holes on the parapet wall. Since no water marks were found in the bedrooms, and that the canopy was constructed after that of the parapet wall and the rooftop, he was of the view that the water marks were created not by the water from the “tank” on the canopy otherwise he would also expected dampness marks appearing on the ceiling of the bedroom as well.  

50. Lai explained that if dye were used in the flooding and spraying test, marks would be left on the roof and the parapet walls. So in order not to cause inconvenience to the Defendant and leaving behind marks in exposed areas, no dye was used in the test. He said that the flooding and spraying tests were very commonly used in proving whether the water proofing system works or not.

51. Lai’s view was that the black tar, which he guessed as a kind of bitumen, was a waterproofing material. It was put on that part of the rooftop immediately above the Premises originally painted with a layer of light grey material, which he believed was also a kind of waterproofing material. According to his experience, when two waterproofing materials were put together, normally they did not have any adverse effect on each other.

Defendant’s Expert

52. Tam was a Bachelor of Science in Estate Management from the Demont Fort University in the United Kingdom. He was a member of the Royal Institute of Chartered Surveyors in 1985 and a Registered Professional Surveyor (General Practice) for some three to four years, specializing in, inter alia, repair and maintenance of buildings. Although he had given evidence in court before, it related to land resumption and business cases. It was his first time giving evidence in court relating to water leakage dispute.

53. Tam first received his instruction to doing an expert report on 5^th October 2004, some one year after the report of Lai. After visiting the rooftop and the Premises, making enquiries with the Defendant, Kwai Hing and Fortune, reading tender documents, contract and the four-year free maintenance documents, he wrote up his report dated 14^th October 2004. He adopted the same as his evidence in chief.

54. In his report, he said his instruction was to, inter alia, conduct visual inspection of the rooftop and the Premises and to identify the probable source and/or cause of the alleged water damage.

55. He noticed that the rooftop had been repainted with a new layer of waterproof paint which was green in colour. The black tar painted thereon by the Plaintiff had been removed but he could still see some traces appearing at the skirting of the parapet wall. The rooftop and the canopy appeared in order and there are no chippings, i.e. breaking of the surface caused by sharp objects. The rooftop was maintained at a reasonable gradient so that water flowed to the foot of the parapet wall and was collected in water drainage. He said he had confirmed with the Defendant that this green layer was put on by Kwai Hing some time in early 2004.

56. He then made an inspection of the Premises. According to his evidence, he made the inspection on 8^th October 2004. He could see “historic evidence of damp patches” because these marks were now dry and had once been dampness patches.  He said that these marks did not occur to him as prevailing at the time of his inspection. He could see cut open pockets and exposed ceiling slab. Surface plaster peeled off and some fallen on the floor. He noticed mould growth in the historic dampness marks. However, it was due to the fact that the Premises was unoccupied with windows closed. So the humidity might have been ambient. He agreed the appearance of the internal of the Premises was worse than that shown in the 2003 report by Lai but the dampness marks were dry to touch. No dripping was detected. A bundle of photos which he had taken during his inspection of the Premises were exhibited as D1.

57. It appeared that Tam’s conclusion was that the water leakage to the Premises was caused by the use of “improper water-proofing method” and “improper material” by “unauthorized person” engaged by the Plaintiff (see conclusion of his report on page 117). At trial, his initial explanation was that the application of the black tar, whether by heat or solvent, would destroy the waterproof membrane put in place by Kwai Hing. The solvent would destroy and the heat would melt the polymer membrane. Furthermore, the tools of workers who worked on the roof would inadvertently break the membrane that they used as their work platform.

58. However, on further explanation, it seemed that Tam attributed the destruction of the waterproofing quality of the existing membrane to the difference in the coefficients of expansion between the newly added black tar and the existing membrane. Tam agreed that if the black tar was applied to the whole of the rooftop, it was waterproof because its continuity was not disrupted. Difference in the two coefficients would mean different rate of expansion when exposed under the sun, resulting in a stress along the edges of the two layers. This stress broke or weakened the structure along the edges of the black tar and the lower waterproof membrane. Cracks were created and water came in. He referred these to as “black tar joints”. Those weak joints were therefore located at the edges of the black tar one of which was at the foot of the parapet wall where Lai administered his spraying test. Water seeped through these weak points and got to the ceiling of the Premises.

59. He disagreed with the reports and views made by Lai. He said that after enquiring with Kwai Hing, the FWP in question was sitting on the rooftop already with a waterproof membrane. The FWP was then covered with cement so that the pipe became a ridge with gentle slopes. Another layer of waterproof membrane was put on.

Factual Evidence

Plaintiff’s evidence

60. Lau made two statements respectively dated 25^th September 2004 and 6^th March 2006 and adopted the same as his evidence. In his statements he basically confirmed what had been stated in paragraphs 10 to 14 above. He further said that the water leakage problem had not yet stopped as at the time of trial. In fact on 24^th May 2005, he instructed TWC to send a letter to the Oldham, Li & Nie (“OLN”), the present solicitors acting for the Defendant, enclosing the updated photos taken of the Premises and the roof and requesting, inter alia, clarification on whether new waterproofing work had been carried out. TWC also informed them that the problem of water leakage was continuing. However, OLN responded by a letter of the same date stating, inter alia,

i) the Defendant had no knowledge of any additional work recently carried out; and

ii) continual water leakage was not a new argument/allegation and they failed to see any new development in the case.

61. Lau also said that between October 2003 and May 2005, he went back to the Premises on occasions, usually after rainy days. If there was little rain, the water leakage problem might not be obvious. However, whenever there was heavy rainfall, the problem would be obvious and serious. Water could be seen dripping down from the ceiling. The dampness marks manifested most obviously in two days after the heavy downpour. He also learned from Lai that the rooftop of Po On Building belonged to the Defendant.

62. Lau was under heavy cross-examination, he basically admitted:

i) after Grandmate had gained possession of the Premises in April 2000, he had done certain renovation to the Premises, including relocation of the washroom and the kitchen, building of false ceiling, ceiling lamp and concealed wiring;

ii) Grandmate had also rented the Premises to someone who later refused to pay rent on the excuse of water leakage. He explained that he did not mention this in his written statements because he thought he should start his evidence from the time when the Plaintiff was the registered owner. Further he said it did not occur to him as a serious reason because that tenant simply had failed to pay rent about two months after moving in;

iii) when he first found out the dampness marks in December 2001/January 2002, he could find dampness marks in the living and dinning area, kitchen and washroom. There was no dripping from the ceiling. The condition was less serious than that shown in the photos taken in October 2003 annexed to the report of Lai;

iv) he had no idea of any questionnaires; complaint forms issued by Kwai Hing and Fortune in March 2002 although he was aware of renovation works being carried out to the Building. He also had no idea about the four-year guarantee from Kwai Hing;

v) in April 2002 when he rented the Premises to Yip, there was no dampness marks on the ceiling because the Premises had been renovated. He said his decorator had painted anti-leaking paint on the ceiling of the Premises. He thought it was a small problem and said it did not occur to him that he should inform the Defendant about his problem then;

vi) when Yip complained about water leakage, he went up and saw water dripping down from ceiling. Yip requested rent reduction but he refused. He told Yip that he could move out earlier if he found that he could not withstand the situation. Water leakage was something he did not know how to fix;

vii) in fact prior to writing his letter in early August 2003, Lau said he had told the secretary of the Defendant, Cheung, who was a Defendant’s witness and living next to him in Flat D of 16^th Floor, about the water leakage problem. Cheung did come in to see the problem but said it had nothing to do with him. Since Cheung seemed to have ignored him, in August 2003 he wanted to draw the matter to the attention of the chairman. He therefore sent the letter to the caretaker at ground floor for the attention of the chairman of the incorporated owners;

viii) although he threatened by a letter from Lai dated 29^th October 2003 to do the rectification work, he did not do it at the end of the day because the Defendant had warned him not to do such work without the Defendant’s approval; and

ix) he agreed that he had not told the Defendant or the Defendant’s solicitors that one of the causes of leakage was the holes on the parapet walls. He only told his lawyers about the reasons.

63. Lai was recalled again to put in his search result from the web-site of the Ratings and Valuation Department. Basically according to him, the rateable values of the rooftop together with the 1^st floor of the Po On Building were:

i) $279,000 for the year 2004 to 2005;

ii) $240,000 for the year 2005 to 2006.

64. TWC later wrote to the Commissioner for Rating and Valuation who replied by his letter of 23^rd March 2006 that the rateable value of the 1^st floor and the roof of the Building, which was described as “Roof HK CSL Antenna Site” to be the same as in the preceding paragraph. Apart from that, the rateable value of the same tenement was $240,000 for the year 2006 to 2007. He also produced certain photos taken by him to show that in fact there were four antennae sites on the rooftop of the Po On Building. They occupied three out of four corners of the rooftop of Po On Building.

Defendant’s Evidence

Cheung

65. Cheung was the secretary of the Defendant from November 2001 to 2004. He lived in flat D of 16^th floor, which was just adjacent to the Premises. The two units had once shared a common iron grille. He had lived in the flat 16D for 24 years. He adopted his statement dated 9^th November 2004 as his evidence in chief save and except the first dates in paragraphs 6 and 16 should respectively be amended to 4^th March 2002 and 29^th September 2003 instead as what had been typed.

66. Cheung said that Fortune was engaged to oversee the progress and workmanship of the renovation work carried out by Kwai Hing to the Po On Building. In or about 4^th March 2002, when work was near to completion, notices and questionnaires were issued to each and every owner by Kwai Hing and Fortune. These questionnaires invited owners to particularize their complaints if they consider the work unsatisfactory. According to Cheung, these forms and questionnaires were displayed at the building’s notice board at the lift lobby and inserted into the letterbox of each unit. Feedbacks were collected at the Defendant’s letterbox or by the caretaker manning the management office at the building. There was no negative or any feedback from the Plaintiff.

67. Kwai Hing provided a free 4-year free maintenance to the Defendant in respect of the waterproofing work at the rooftop as well as to the canopy. Any complaint concerning water leakage from the rooftop could be referred to Kwai Hing for repair. He denied having received any oral complaint regarding water leakage from Lau. He denied having received the 1^st letter from Lau dated 4^th August 2003. Neither had he ever had any conversation about water leakage with him.

68. He said that during tendering process, Kwai Hing had enclosed credentials in their papers stating that they had previously engaged in many waterproofing works. He had even called up these Kwai Hing’s former clients to enquire about the quality of work. The feedback was positive.

69. He also produced a letter from Kwai Hing confirming that the section of the FWP above the Premises was only buried and the floor levelled. There was no change in size, position or cutting open of the roof floor (page 120 of the Agreed Bundle). It was done out of good intention to protect that section of the FWP. He believed the other reason was to prevent occupiers from tripping over the exposed pipe. He said that the idea of burying the FWP was originated from the Defendant (see also: paragraph 11 and 12 of his statement). However he did not know whether the consultant Fortune had been consulted on the matter of burying the FWP. His evidence in this respect is different from that of Chan, the chairman of the Defendant.

70. He said according to his knowledge, the Building should include a canopy for flats A to D on the 16^th floor. The renovation to the common parts of the Building by the Defendant included this canopy on the 16^th floor because then the Defendant believed the said canopy being part of the common parts. He later clarified that there was no change in such belief by the Defendant up until now.

71. When he meant by “决定把咸水喉装於天台地底” in paragraph 12 of his statement was “decided to install the flush water pipe at the floor of the rooftop” and not to install by cutting open the floor slab and placing it at the bottom. He admitted that from the correspondence exchanged with the Plaintiff, he could guess that the Plaintiff had misunderstood his statement.

72. In relation to his knowledge of the internal renovation of the Premises when the Plaintiff moved in, he agreed that he did not actually witness how such renovation as stated in paragraph 23 of his statement had carried out. So the allegation of “cutting the ceiling too deep for burial of wiring” was his guesswork.

73. He said that all along the Defendant had the sincerity to solve the problem of the Plaintiff. The Defendant was cooperative with the Plaintiff in conducting the water tests. After receiving the Plaintiff’s solicitor’s letter they immediately liaised with Kwai Hing to rectify the problem. Kwai Hing requested removal of the black tar for placing a new layer of water proofing material. The Plaintiff failed to respond. In any event a fresh layer was placed after they have spent money to eradicate the black tar. He said all the above showed that the Defendant had the sincerity even the water leakage problem was not caused by the Defendant but by the Plaintiff’s own internal renovation and the black tar.

74. Cheung, however, admitted that apart from the expert evidence of Tam, the Defendant had not done any test to verify the cause of the water leakage. He said the black tar being the cause was also Kwai Hing’s theory. Kwai Hing was a professional waterproofing company. However, the liaison work between the Defendant and Kwai Hing was done through the chairman of the Defendant.

Chan

75. Chan became the chairman of the Defendant since year 2000. He relied on two statements respectively on 9^th June 2005 and 11^th April 2006. He adopted these statements as part of his evidence in chief.

76. Chan supplemented his evidence by saying that after receipt of TWC’s first letter dated 16^th September 2003, he immediately asked Kwai Hing to inspect and verify the allegation of the cause of water leakage. It was because Kwai Hing had undertaken to do all repair free. He also admitted that the Plaintiff’s expert’s report had been forwarded to the Defendant through the Plaintiff’s solicitors.

77. However, after Kwai Hing came to inspect the rooftop, it was found out that a layer of black tar on the rooftop. Kwai Hing complained that this black tar tampered with the waterproof layer on the rooftop. It was Kwai Hing’s allegation that the water leakage was possibly caused by the black tar. Kwai Hing refused to honour its free maintenance if the black tar layer was not removed. Tam was later engaged in September/October 2004 who also shared the same view of Kwai Hing.

78. Chan also advanced a new explanation as to how the waterproof membrane put in place by Kwai Hing was destroyed. It is this. The lift maintenance workers had to walk to and fro on the rooftop. They stepped on the black tar applied by the Plaintiff which was sticky. Their footsteps lifted the sticky black tar up together with the waterproof membrane. As such the first membrane put in place by Kwai Hing was broken and water leaked through those damaged parts. Kwai Hing said except this there was no other places water could find its way into the Premises.

79. Chan said Kwai Hing had sent some people to do examination as to the cause of water leakage. However what he said could be regarded as visual inspection of the rooftop and parapet walls, at most aided with torch. Kwai Hing refused to do any maintenance work because of the black tar. He could recall that a sum of $5,000 had been paid to Kwai Hing in September 2004 for removal of the black tar.

80. He admitted having written a letter to the Buildings Department on 2^nd February 2004 (page 112 of the Agreed Bundle). In that letter he said one of the causes of water leakage was cutting too deep the ceiling when the Plaintiff did his internal renovation when first acquiring the Premises.  However he admitted Kwai Hing and Fortune told this reason to him. He understood this was their deduction. He admitted he had not entered the Premises and had not actually seen how serious the problem was. The Plaintiff did not take the initiative to come to them.

81. Chan queried why the Plaintiff did not liaise with the Defendant direct to solve the problem. He was the only owner to complain about water leakage. He alleged that the Defendant was kept in the dark as to what had happened and the seriousness of the water leakage. It was not until March 2006 that he entered the Premises and saw for the first time the water leakage problem. The plaintiff had never requested to see the chairman. He only relied on letters from solicitors. Had the Plaintiff approached the Defendant at an early stage to solve the problem, the problem would have been solved easily. The water-leaking problem kept dragging on because the Plaintiff was unwilling to remove the black tar. Furthermore the Defendant had no phone number of the Plaintiff nor had he requested to see Kwai Hing.

82. So far Kwai Hing had put on waterproofing membrane for three times. The first one, which was grey in colour was put on in 2002. The second one, which was green in colour was applied in or about September 2004 after removal of black tar. The third layer, which was grey in colour, was put on in or about November 2005 shortly before the 4-year free maintenance expired.

83. Regarding the idea of burying the FWP, Chan said that it was not the Defendant’s instruction to do so. It was then suggested to the Defendant jointly by Kwai Hing and Fortune and the Defendant agreed to such proposal.

Assessment of Evidence and Discussion

The cause and source of the alleged water leakage. Did the black tar contribute to or was it the real cause of the water leakage?

84. It is obvious that Tam has never done any test to identify the probable source and/or cause of the water damage although he was expressly instructed to do so (page 1 of his report). He also does not do any test to verify his hypothesis. What he had done was, and I quote “… conducted superficial visual examination of the Roof Top Area…” (page 2 paragraph III of his report).  After reciting what he had been told by either representative of the Defendant and/or Kwai Hing and/or gathered from documents and perhaps his observation of the Premises and the rooftop, he concluded it was the unauthorized repair done on the rooftop which had adversely affected the water-proofing function of the rooftop area. Basically he identified the black tar to be the evil or one of the evils. His theory is, in a nutshell, that the difference between the coefficients of expansion of the black tar and the bottom waterproofing membrane creates a tearing force when exposed to the sun, thus creating cracks on the bottom layer. The edges of the black tar are the places where these cracks develop and were referred to him as the “black tar joints” at trial. It is through these black tar joints where water seeps in.

85. I have to say that Tam’s explanation is totally unconvincing. I have no hesitation to reject his theory. First, he has not done any test and in fact made no attempt to find out what material this black tar is. Secondly even though he considered the black tar was bituminous material and was told by Kwai Hing what the waterproof membrane was, he made no attempts to find out the coefficients of expansion of the two layers and do a calculation. Without this fundamental information, I wonder how he can reach a conclusion or come to a hypothesis that the problem is related to the differential in coefficients of expansion. The mere repetition by any expert of a chronology of events and what he has been told will not render the stuff repeated expert opinion.

86. Tam has also mentioned that the heat or solvent application of the black tar may destroy the waterproof membrane underneath. However he also said if the black tar was applied to the entire rooftop, it would function as a waterproof layer. I really do not think his theory logical and accordingly reject it. If heat and solvent are the evils that destroy the polymeric waterproof layer underneath as he has explained, the application of black tar all over the rooftop would not, as he has also suggested, have the effect of waterproofing. The damaging effect would have been found over the entire surface and not the other way round as he has alleged. I find that there is simply no evidence to suggest that the black tar has anything to do with the water leakage.

87. I also do not accept Chan’s “lifting off” theory. There is no evidence to explain how this lifting off of black tar also lifts and therefore damages the waterproof membrane beneath. No expert evidence as to how the two layers interact has been adduced.

88. On the other hand, Lai has actually carried out three tests on the roof. By the colouring test he has eliminated the possibility of water coming out from the FWP. By the flooding test simultaneous with the spraying test he found out fresh dampness marks appearing in the Premises. Although his report lacks photographs of the holes and hairline cracks as well as details about his theory and photos of the tank he built over the canopy, I consider such omission not fatal. He had supplemented all these when he gave evidence at trial. He put in two contemporaneous photos and had given a quite thorough explanation at trial. The cause and effect have been established by his tests. His evidence is therefore to be preferred comparing to that given by Tam.

89. I accept his explanation that water seeping down to the Premises is unlikely to enter through the canopy. I also find his explanation that water enters the two holes and the hairline cracks on the parapet wall and then travels along the weak points and surface of the embedded FWP logical and convincing. I also accepted his explanation that the embedment of the FWP would create weak points for water to enter into the floor slab and that the embedded pipe serves as a good pathway for water to travel. Once water finds its way into the concrete slab, water came down to the Premises through weak points. Probably there are cracks in the rooftop floor slab, particular at the joint between the parapet wall and the floor slab. That explains why water first appeared on the ceiling at a position immediately below the parapet wall, as revealed in the test.

90. From the evidence adduced at trial, there are three sets of photographs taken of the ceiling of the Premises on different dates. They are as follows:

i) the 1st set taken by Lai in October 2003;

ii) the 2^nd taken by Tam in or about October 2004; and

iii) the 3^rd set taken by Lau on 23^rd May 2005.

91. Lai said the dampness marks were wet to touch. Tam said there were “historic dampness marks” and were dry to touch. Lau said the leaking problem continued as least as at May 2005. From the 2005 photos, it is obvious that the situation of the ceiling is even worse than that of 2004 and 2003. Black moulds appeared on the ceiling of the Premises in areas, including the living and dinning area and the kitchen. The size of the dampness marks in the kitchen obviously has grown considerably compared with the 2003 photos. Tam admitted the condition in 2004 was worse than 2003 by comparing photos, although he insisted the marks were dry. From a comparison of these three sets of pictures, I have no hesitation to accept that the leakage problem of the Premises has become more serious in 2005, and that as at the date of trial, it has not been fixed.  Although I have no reason to disbelieve Tam’s observation about the dryness of the marks in October 2004, I consider his evidence not inconsistent with a finding that the water leakage problem continues since the Plaintiff’s first complaint in 2003.

92. The evidence covered by the witnesses of the two sides does not overlap in many respects, e.g. Lau said whenever there was heavy rainfall water dripped down. The Defendant’s witnesses did not mention anything about that. As the Defendant’s witnesses did not enter the Premises for an inspection between 2003 and 2005, it is not surprising to note that they are quite unable to challenge Lau’s evidence. On the other hand, Lau is unable to comment on details of contacts between Kwai Hing and the Defendant. So who is to be believed boils down to credibility of witnesses.

93. Lau did not appear to me a very reliable witness. It appeared that he was over-cautious and sometimes evasive in answering questions put to him in the cross-examination. He also appeared to me not having a very good recollection of what had happened. That might perhaps explain why his answers were not specific on some occasions. On the other hand, the other two witnesses from the Defendant appear to be straightforward and honest, though they also sometimes could not give detailed recollection of the matter.  So for my finding of facts, if Lau’s evidence is not contradicted by direct evidence of Cheung, Chan and Tam, I would accept Lau’s evidence only if such is corroborated by documentary evidence or evidence of Lai. When his evidence conflicts with that of Cheung or Chan and is not supported by others, I prefer to accept that of Cheung and Chan, unless otherwise stated by me.

94. As I have explained above, my finding of continuing water leaking in the Premises is supported by the photos taken by the parties. Furthermore, I also accept Lau’s evidence that whenever there was heavy rainfall, the leaking problem becomes more serious. When there is no rain or little rain the problem is not so great. That conclusion is supported by objective evidence. Mr. Chan, solicitor for the Plaintiff has produced useful rainfall record of Hong Kong for, inter alia, 2003 and some months of 2004 obtained from the Hong Kong Observatory website. It is noted that Lai do the inspection in early October 2003 and find that there was dripping from the ceiling. According to the rainfall information for September 2003 (page 225 to 226 of the Agreed Bundle), the total rainfall for that month is 394mm, which is about 131.5% of an average month for September. Tam did the inspection in early October 2004. According to the rainfall record for September and October 2004 (pages 233 to 240), the rainfalls for the two months are respectively 167.3mm and 2.3mm. These figures represent only 55.8% and 1.6% of the usual rainfall for the two months. Obviously September and October 2004 are dry months. That offers an explanation as to why those “historic” marks were dry to touch.

95. So the answers to the first two issues raised in paragraph 25 above are answered against the Defendant’s favour.

Was the Plaintiff’s own internal renovation the cause of the water seepage?

96. Cheung has confirmed that he had not actually seen the cutting of the Premises’ ceiling to conceal the wiring. It is no more than his guesswork. Neither Chan nor Tam has personal knowledge of this fact. I do not believe Kwai Hing and Fortune had direct knowledge of this fact as well. Although Lau had confirmed that in the renovation, wiring of the Premises was concealed, there is no evidence to suggest the cutting into the ceiling was “too deep” that causes or contributes to the water leakage. No survey of the Premises has been carried out by the Defendant in this respect. Neither was there any scientific test to confirm this hypothesis. The Defendant’s contention that it is the Plaintiff’s own internal renovation which contributes to the water leakage is not substantiated by evidence. Accordingly I find against the Defendant on this issue. In fact I am surprised to note that the Defendant’s solicitors choose to adopt this defence, and in fact maintain it up to trial when in fact the evidence in this respect is obviously so flimsy.

Other Factual Evidence

97. One of the major discrepancies is whether Lau has ever talked to Cheung about the water leakage. Lau said he had and Cheung denied. In fact this part of the evidence is important to the action on nuisance. However, this important piece of evidence had never been mentioned in Lau’s written statements. Presumably that had not been explained to his solicitors otherwise such fact should have been pleaded or contained in statements. So as a finding of fact I do not believe Lau has ever orally informed Cheung about the water leakage problem in the Premises.

98. Cheung also said the Plaintiff’s first written complaint dated 4^th August 2003 never reached them. However, in a letter dated 23^rd December 2004 from OLN, solicitors for the Defendant, to TWC, solicitors for the Plaintiff, OLN has this to say (page 124 of the Agreed Bundle):

 “However, not until early of August 2003 our client received the very first complaint of the alleged problem”

Given the open admission and that there is no evidence to suggest letters other than the one dated 4^th August 2003 have been sent out in August, as a finding of fact, I prefer to accept that the Plaintiff’s letter of 4^th August 2003 reached the Defendant on or about the same date.

99. Concerning how the FWP was buried, I prefer to accept the version advanced by the Defendant, i.e. it was not laid by cutting open the existing floor slab. In fact there was no factual evidence from the Plaintiff direct to support the cutting theory. The only support, according to the Plaintiff’s solicitor Mr. Chan, is paragraph 12 of Cheung’s witness statement. However, Cheung has already explained that “决定把咸水喉装於天台地底” actually means “decided to install the flush water pipe at the floor of the rooftop”. He has expressly clarified that cutting open the floor slab and placing it at the bottom was not what he intended to mean. Kwai Hing had also confirmed that the FWP was only replaced by a new one at the original position. I have no reason to reject this statement although it is hearsay.

100. As Cheung had said it was the chairman who liaised with Kwai Hing, I prefer to accept Cheung’s version that Kwai Hing and Fortune initiated the burial of the FWP and the Defendant approved the proposal.

101. I also find it as a fact that the water leakage problem suffered by the Premises was in existence prior to December 2001 and the Defendant knew about this fact. Defendant in fact admits this: see paragraph 6(iii) and (iv) of the Re-amended Defence and Amended Counterclaim and letter from the Defendant to the Plaintiff dated 29^th September 2003. After the renovation by Kwai Hing, such problem persists.

102. Regarding whether Yip, the tenant, walked out because of the water leakage in the Premises, there is conflicting evidence before the Court. Yip had put in a statement and the Plaintiff has chosen not to cross-examine him on this statement which he disagreed. Given that when Yip moved out, it was SARS time in Hong Kong when rentals of real properties in Hong Kong had dropped, I prefer to accept Yip’s statement that he moved out not because of the leakage problem but because of the failure on the part of the Plaintiff to accede to his request for rent reduction.

Whether there was a breach of the DMC and/or BMO? Was the Defendant negligent in failing to maintain the common parts of the Po On Building?

103. The Plaintiff has not identified, either in the pleading or in the submission, a particular provision of the DMC that the Defendant has breached. I do not think it is the Court’s duty to find the particular provision that suits the Plaintiff’s case best. As such I do not find his claim for a breach of the DMC substantiated.

104. Section 18 (1)(a) of the BMO stipulates that:

“(1) The corporation shall-

(a) maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition;

(b) carry out such work as may be ordered or required in respect of the common parts by any public officer or public body in exercise of the powers conferred by any Ordinance;

(c) do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building.”

105.  Section 2 of the BMO defines “common parts” of the building as:

 “(a) the whole of a building, except such parts as have been specified or designated in an instrument registered or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b) unless so specified or designated, those parts specified in the First Schedule.”

106. By the First Schedule, “parapet walls” are common parts. I do not think that the parties will argue the FWP not forming part of the common part of the Po On Building.

107. My finding of facts is that water enters the Premises through the holes and hairline cracks on the parapet walls and the weak points where the FWP entered the floor. It also comes through the weak point when the FWP enters the floor slab. It travels down through cracks in the floor slab and the embedded FWP, and not through the canopy. However for completeness, I do, by the principles set out in Lily Lai Yin & others v The I.O. of Albert House & other, unreported, HCPI 828/97, Suffiad J at page 16 to 24, consider “canopy” as well as “rooftop” common parts of the Po On Building. Firstly, there is no evidence to show that the canopy and the rooftop have been expressly or designated in any instrument registered in the Land Registry as being for the exclusive use, enjoyment or occupation by any owner. The first assignment of the Premises did not include the roof of the Premises. The balcony was included but the canopy thereof was not. It can therefore be inferred that at the time of the first assignment, the canopy is either non-existent or has been expressly excluded in the assignment, just like the rooftop.

108. Secondly, the Defendant, being the incorporated owners of the Po On Building, has all along its asserted rights over the rooftop, the FWP and the canopy. It is the Defendant’s evidence that when the waterproofing membrane was applied during the facelift renovation of the Building, it was applied to the rooftop as well as to the canopy. When the Plaintiff intended to do the repair, the Plaintiff was even warned not to do so without their approval: e.g. the Defendant’s letter of 17^th November 2003 (page 107 of the Agreed Bundle), LF’s letter of 5^th December 2003 (page 109 of the Agreed Bundle).

109. By reasons of the above, the Defendant has a duty and therefore owes a duty of care to maintain the rooftop and FWP under section 18 of the BMO.

110. Miss Yip, counsel for the Defendant, contends that the Defendant has already taken all reasonable, necessary and practicable steps to maintain the rooftop and FWP in a state of good and serviceable repair and clean condition and hence it has discharged its duty under the BMO as well as the DMC:

i) the Defendant has exercise due care in selecting the independent and qualified contractor, namely, Kwai Hing, to do the work, including the waterproofing work on the roof;

ii) an engineer consultant, Fortune has been appointed to overseeing the work of Kwai Hing;

iii) questionnaires and complaints were sent to owners and the Plaintiff simply did not respond;

iv) a 4-year guarantee from Kwai Hing to repair and water leakage from the rooftop has been obtained from Kwai Hing; and

v) despite the fact that the black tar was in the way to the remedial work by Kwai Hing, the Defendant nevertheless paid an extra sum to remove the black tar and do another waterproof membrane against. 

111. In Tsang Hing Cheung, certain paragraphs in chapter 5 of the 18^th edition of Clerk & Lindsell on Torts were cited with approval. These paragraphs have now become paragraphs 6-52, 6-53 and 6-63 of the 19^th edition (2006) of Clerk & Lindsell on Torts. It will be useful to cite the relevant parts of these paragraphs as follows:

 “Introduction  If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work and in this respect the employees of the contractor, whilst acting as such, stand in the same position as their employer, so that the employer of the contractor is not liable for the torts committed by the contractor’s employees. … Again if the employer authorized or ratified the independent contractor’s tort then, on normal principles, he will be jointly liable for such tort.

Exceptions to the general rule: non-delegable duties  To the general rule that an employer is not liable for the negligence of an independent contractor there are certain apparent exceptions. … If the circumstances are such that the law imposes a strict or absolute duty upon the employer, then he cannot discharge his duty by delegating performance of the work in question to an independent contractor. If, therefore, the duty is not fulfilled, the employer is liable even though the immediate cause of the damage is the contractor’s wrongful act or omission. The contractor, by his acts, put the employer in breach of a personal duty. …At the very least, the non-delegable duty is “a duty not merely to take care, but a duty to provide that care is taken.” So that, if care is not taken, the duty is broken.

Statutory duty  Where a statute requires a person to do a particular act, and an independent contractor employed by him fails to do that act, he cannot escape liability by pleading that the fault was not his, but was that of his independent contractor. … Statutes creating non-delegable duties of this kind are extremely numerous, and it is a question of construction whether any given statute imposes such a duty upon the defendant. …”

112. I consider the above paragraphs in Clerk & Lindsell correctly set out the proposition of law in this respect. The Plaintiff made no submission on whether Kwai Hing is a competent independent contractor. Cheung had confirmed that before the Defendant confirmed appointment of Kwai Hing he had checked its track records by calling Kwai Hing’s ex-clients. This piece of evidence remains unchallenged. I am satisfied that the Defendant has exercised due care in the process of selection and has selected an apparently competent contractor.

113. However, the fact of this case is that Kwai Hing and Fortune initiated the burial of the FWP. The Defendant approved the proposal. So I do think the authority of TsangHing Cheung cannot assist the Defendant, at least to the extent of liability arising out of the burial of the FWP.

114. Furthermore, a mandatory word “shall” is used in section 18(1) of the BMO. I consider that a positive duty is imposed on the incorporated owners in respect of all the duties set out thereunder. Although in section 18(2)(c) it is provided the incorporation may, in its discretion retain and remunerate a manager or other professional trade or business firm or person to carry out any of the duties or powers of the owners incorporation under the BMO or DMC, the carrying out of such duties is expressly stipulated in the said provision to be on behalf of the owners incorporation (my emphasis).  So even assuming Kwai Hing were a professional person (which I do not consider them to be as there is insufficient evidence in this regard) the duties under the BMO is discharged on behalf of the Defendant. In order words, the works are still done for the incorporated owners. My construction of the section 18(1) of the BMO is therefore that this particular provision imposes an absolute duty on the Defendant to maintain the common parts in a state of good and serviceable repair. Such duty is non-delegable. I do not think the Defendant can hide behind Tsang Hing Cheung.

115.  Although the Defendant initially appeared to be cooperative in permitting the Plaintiff to do the water test after receipt of his complaint, I do not consider that they are “easy going” as they have tried to portrait. The evidence before the Court showed that the Defendant only approached Kwai Hing asking them to honour the 4-year free maintenance. It only looked to Kwai Hing to come up with solution and has done nothing more. On the other hand, Kwai Hing only sent staff to do visual inspection of the rooftop and then came up with the black tar and internal renovation theories for the water leakage. Neither Kwai Hing, Fortune nor the Defendant saw fit to carry out scientific test to verify their hypotheses. These hypotheses are only possibilities and I have already ruled that they are without basis. The Defendant, Kwai Hing and Fortune did nothing sufficient to investigate into the Plaintiff’s complaint. From day one it seems that they have a firm belief in these unsubstantiated theories of black tar and internal renovation.

116. It is submitted on behalf of the Defendant that it had the sincerity to repair. I disagree totally. The Defendant relied on and awaited Kwai Hing to take remedial action and in the meantime, accused the Plaintiff being the author of his own misfortune. According to the Defendant’s pleadings and evidence they knew there is water leakage in the Premises but still they accused the Plaintiff to be responsible for their own misfortune. What appears to me to be objectionable is that when TWC sent a bundle of photos in May 2005 to OLN, solicitors for the Defendant, OLN replied in an indifferent manner. From the tone of the letter of OLN, the Defendant simply did not bother to explain that the Defendant had put on another layer of waterproofing membrane some time ago. The solicitors simply ignored the complaint by saying that there was nothing new in the development of the water leakage. This high-handed approach is echoed by the evidence of Chan who accused the Plaintiff of engaging lawyers and not approaching the Defendant direct by himself. I cannot accept the Defendant has sincerity in handling the matter.

117. There were later applications of water proofing paints on two more occasions by Kwai Hing. However, without identifying the evils, I wonder how such applications can help. Judging from the evidence of Cheung and Chan, even if the black tar were removed earlier, either by the Plaintiff or the Defendant, the result would not have been different. From the photographs taken in 2005 and 2006, the paints have not even covered the parapet walls. The reason is simple: they do not bother to find out what is the cause of the water leakage. So in my judgment, even if the black tar were immediately removed on request of the Defendant, the Defendant would still rely on Kwai Hing to honour the 4-year maintenance, and what Kwai Hing would have done would be no more than repainting the rooftop again, or perhaps for a few more times. I do consider any remedial action done to the rooftop, if administered blindly without first having diagnosed the problem, is meaningless and does not amount to taking reasonable steps in maintaining the roof.

118. The Defendant said that they have issued questionnaires to owners. However, these questionnaires were only inserted in the letterbox and displayed at different places in the Building. Given that there are owners which owned the units in the Building as investment and do not normally residing in the Building, just like the Plaintiff in the present case, I wonder how the Defendant can argue that reasonable steps have been taken to bring the questionnaires to the attention of the Plaintiff.

119. I therefore find the Defendant in breach of section 18 of the BMO by failing to maintain the common part in good serviceable condition. I also find that the Defendant negligent in the maintenance of the rooftop of Po On Building and in agreeing to the burial of the FWP which serves as a pathway, facilitating water percolating and traveling in the rooftop.

Whether the water leakage constitutes nuisance? When did the Plaintiff first complain of the water leakage?

120. Given my findings above, I do not think the Defendant has any defence at all to the action on nuisance. By allowing rainwater to flow from the common areas to the Premises, the enjoyment of the Premises by the Plaintiff is affected. The Plaintiff has obviously suffered damages. It is settled law that the exercise of care and skill by a competent contractor or every effort made by the Defendant to prevent a nuisance afford no defence to an action on nuisance. As I have found above, the first time the Defendant was made aware “formally” of the water leakage was 4^th August 2003. Thereafter, the water leakage continues. The water leakage constitutes a nuisance for which the Defendant is liable.

Section 34I of BMO and Res Ipsa Loquitor

121. In view of my above findings, I do not think it necessary for the Plaintiff to invoke the doctrine of res ipsa loquitor, which is only relied on by a party when the cause of water leakage is unknown.

122. Given also my above finding in favour of the Plaintiff I think it is unnecessary for me to deal with whether section 34I has been breached. However, I think section 34I of BMO is not applicable. Section 34I(1)(b)(ii) provides:

“No person may-

(b) use or permit to be used the common parts of a building in such a manner as –

(ii) to cause a nuisance or hazard to any person lawfully in the building”

123. In my judgment, the word “use” connotes the using and/or enjoyment and/or dealing with the common parts in an active sense. In the present case, I do not think the Defendant has “actively use” the common area i.e. the rooftop and the parapet wall, or permitted them to be in such use as to cause a nuisance. I do not think section 34I of BMO engages in the present action.

The jurisdiction Point

124. Section 52(1) (c) of the District Court Ordinance states that:

 “The Court shall have jurisdiction to grant and to enforce injunctions of whatsoever nature and as the case may require and to make binding declaration of right –

(c) in all matters affecting immovable property, including any right, licence or easement in, to, through or over any immovable property and any agreement, covenant or condition respecting immovable property, where the annual rent or the rateable value, determined in accordance with the provisions the Rating Ordinance (Cap.116) or the annual value, whichever is the less, of the property does not exceed $240,000,

notwithstanding that any claim for damages or for any other relief or remedy which the Court is competent to grant shall be made in the proceedings.” (my emphasis).

125. In the present case, the rateable value of $240,000 obtained from the Rating and Valuation Department (for year 2005/2006 and 2006/2007) refers to the antenna sites on the 1/F and on the rooftop in question. There is no evidence from the Defendant to show that the other part of the rooftop attracts rateable value according to the Rating Ordinance. Nor is there any evidence to show the annual rent or annual value of the other part of the rooftop. Furthermore, Chan had in paragraph 8 of his statement dated 11^th April 2006 clarified that the Defendant had entered into contract with a telecommunication company to install antenna only on certain part of the rooftop at a monthly rental of $20,000 as at the date of his statement. It is also understood from Chan’s evidence that at least since 2004 when the Plaintiff instituted the action, there is only one telecommunication company that entered into tenancy agreement with the Defendant. According to Chan’s evidence, the annual rental for the antenna sites of the rooftop as at 2006 is exactly $240,000. There is no evidence of other rental agreement having been entered into between the Defendant and any third party.  So the evidence before me is that as at the date of the trial, the actual annual rental for the entire rooftop is $240,000. I therefore consider that I have jurisdiction to grant any injunction and declaration respecting the rooftop under section 52(1) (c) of the District Court Ordinance.

126. The Defendant intends to argue that at the time when the action was commenced the rateable value of the rooftop exceeded $240,000 (i.e.$279,000) according to the Rating and Valuation Department. With due respect I do not see any merit in this argument. If the rateable value exceeded $240,000, no doubt the Plaintiff has to take out the action in the Court of First Instance. However, when the rateable value or annual rental of the property in question falls within the jurisdiction of this court, I fail to see why this case cannot be transferred to this Court for determination.

127. At some stage of the trial Miss Yip sought to argue that the little buried FWP formed part of the Po On Building and therefore the rateable values of the entire Building should be considered. She cited no authority to support her proposition. For my part, I am prepared to adopt a liberal approach to construe section 52(1)(c) bearing in mind section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which reads:

 “An ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit.”

128. Such approach was adopted by H.H. Judge Andrew Cheung (as he then was) in Ma Yu Cheung v Yu Wai Chun and another, unreported, DCMP 268/2001, 22^nd November 2001 at paragraphs 23 to 31 in the construction of section 36 of the District Court Ordinance which also concerns the jurisdiction of this Court. I consider that the “immovable property” in respect of which an injunction or a declaration is granted refers to the rooftop of the Po On Building in the present case i.e. the part of the building affected, and not the entire Po On Building. 

The Counterclaim

129. It is the pleaded case of the Defendant that in order to rectify the unauthorized works, i.e. the putting down of the black tar, the Defendant has spent a sum of $5,000 for the necessary remedial work. Another $5,000 refers to the fee paid to Tam. In the Defence to Counterclaim the Plaintiff basically pleaded by reasons of the breach of the BMO and DMC and nuisance caused, the Defendant is not entitled to the amounts counterclaimed.

130. In respect of the claim for expert fee of $5,000, by reasons stated in the preceding paragraphs it is obvious that such claim must fail. I also consider the Plaintiff reasonable to put on a waterproof black tar with a view to stop the water leakage. Although his self-help measure is not successful I consider it reasonable in the circumstances. It offends common sense if the Defendant is allowed to recover any sum arising from its own default in maintaining the roof properly. I consider that the Plaintiff has a valid defence and accordingly dismiss the counterclaim.

Conclusion and Orders

131. The remedy sought by the plaintiff is in the form of a declaration that the Defendant is obliged to carry out waterproof work and alternatively an injunction to restrain the Defendant from maintaining the FWP on the roof and also for damages to be assessed. Having heard and read submission of the parties, I do consider it just and equitable in the circumstances to grant both, with slight modification, against the Defendant. I therefore make the following orders:

i) an injunction restraining the Defendant, either by itself, its agent or servant or otherwise howsoever, from continuing to maintain and keep the part of the flush water pipe immediately above the Premises from being embedded in the rooftop floor of Po On Building so as to constitute a nuisance to the Plaintiff;

ii) a declaration that the Defendant is obliged to carry out waterproofing work on the rooftop of the Po On Building as well as to the parapet walls so as to prevent water from trapping inside the rooftop floor slab of the said Building and eventually percolating through the roof and causing water damage to the Premises;

iii) the Defendant do pay the Plaintiff damages to be assessed;

iv) the counterclaim be dismissed;

v) save and except the costs orders which I have already made against the Plaintiff in the course of trial, there be a nisi order that the Defendant do pay the Plaintiff costs of the claim and the counterclaim, including any reserved costs order, with certificate for counsel for the first three days of trial, to be taxed if not agreed; and such order be made absolute within 14days unless either party makes application to vary the same; and

vi) there be liberty to apply generally for directions for the assessment of damages.