WONG PING CHUN v. GIANT KING CORPORATION LTD

DCCJ 4020/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4020 OF 2012

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DECISION

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1.  This is the defendant’s application for leave to appeal to the Court of Appeal against the Judgment handed down by this court on 16 March 2016.

2.  Judgment was given for the plaintiff (“P”) in his claim against the defendant (“D”) in respect of water leakage from the defendant’s flat on the 8^th Floor (“the 8/F Flat”), a top floor flat, to the plaintiff’s flat on the 7^th Floor (“the 7/F Flat”) directly below in a multi-storey residential building situated at 233 Shau Kei Wan Road, Hong Kong.  The affect area was in the small room in the 7/F Flat (“the Damaged Room”).

3.  This court made the following order for P against D in the Judgment:-

(1)  An order that D do carry out works in the 8/F Flat to rectify the water leakage problems of the Damaged Room at its own cost within 42 days from the date of the Judgment;

(2)  Payment of damages at the total sum of $156,750;

(3)  Payment of further damages at the rate of $2,460 per month from April 2016 until such time when D has complied with and carried out the order made in (1); and

(4)  An order nisi (later became absolute on 30 March 2016) that D shall pay the costs of P of the whole action, to be taxed if not agreed, with certificate for counsel.

4.  D’s counsel Mr Lawrence Cheung informed the court that D had carried out works in the 8/F Flat in compliance with Order (1) by 30 April 2016.

Grounds of appeal

5.  D argues that this court erred in finding liability in concluding that water seepage from the 8/F Flat into the Damaged Room in the 7/F Flat had been proved for the following reasons:-

(1)  No sufficient consideration had been given to the two letters from the Buildings Department/ Food and Environmental Hygiene Department Joint Office (“the Joint Office”) dated 25 October 2012 to P and 15 January 2013 to D respectively to the effect that the source of seepage could not be confirmed as a result of tests conducted on 9 May 2012 in the 8/F Flat;

(2)  D’s expert conducted dye water ponding on the Roof on 14 October 2014 and did not find dye water seeping into the 7/F Flat, nor in the Damaged Room; and

(3)  P’s expert conducted dye water ponding on 30 November 2014 in the bathroom in Room B of the 8/F Flat (directly above the Damaged Room) but did not find dye or eosin yellowish water at the ceiling of or in the Damaged Room.

6.  On quantum, D argues that this court erred in assessing damages as follows:-

(1)  Damages for loss of rental income in respect of the Damaged Room should not be allowed as P had failed to prove liability; alternatively, such damages should be reduced for reasons that P had failed to mitigate his loss by carrying out prompt and necessary repairs to the Damaged Room, or renting it out at a reduced rent despite the damaged condition;

(2)  No loss of rental income should be allowed during the period from the time the Joint Office conducted tests on 9 May 2012 and could not confirm the source of water seepage, up to the time when P’s expert conducted tests on 30 November 2014 and could not find any dye water seeping from the bathroom in Room B of the 8/F Flat to the 7/F Flat, or for any shorter period in between when water seepage had stopped (“the Cessation argument”);

(3)  P’s claim for repair and renovation cost of the Damaged Room at $27,300 was based on a quotation the breakdown of which is not reliable nor credible; no expert evidence is adduced to support that the damage was all caused by the water seepage problems; and

(4)  D’s counsel raises a new argument in court that causation of the alleged loss of rental income was not proved, ie P has not proved that the water seepage problems in the Damaged Room had caused the tenant to move out.

7.  D’s counsel confirms in court that D will not challenge (despite so stated in D’s draft Notice of Appeal) the monthly rental figures of the Damage Room adopted in assessing quantum of damages in the Judgment.

Legal principle

8.  Section 63A(2), District Court Ordinance, Cap 336 states the following:-

“Leave to appeal shall not be granted unless the judge… hearing the application for leave is satisfied that:–

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.”

Discussion

9.  The grounds of appeal listed in paragraphs 5 and 6 are considered and dealt with as follows.

The two Joint Office letters

10.  Before issue of the two letters, the Joint Office pursuant to tests conducted previously in 2011 issued and served a Nuisance Notice dated 21 October 2011 on D, stating the nuisance to be “water seepage through the floor slab and its enclosing walls of the bathroom of (Room B of the 8/F Flat) and (the Roof) to the ceiling of (the 7/F Flat)…”.  D was demanded to repair within 28 days the bathroom in Room B of the 8/F Flat and the Roof to abate the nuisance.

11.  Evidence shows that D had carried out repair works of the floor and surrounding walls in the bathroom in Room B of the 8/F Flat before 13 April 2012.  No dye water seepage was noted in the Damaged Room pursuant to the dye water ponding test conducted on 9 May 2012, but the water seepage problems persisted (as stated in the two Joint Office letters dated 25 October 2012 and 15 January 2013).

12.  It is stated in the 25 October 2012 Joint Office letter that “no other source of seepage could be confirmed” (“無法確定其他的滲水源頭”) (emphasis added).  This may only mean that no source of water seepage other than that confirmed in the Nuisance Notice, ie the bathroom in Room B of the 8/F Flat, could be confirmed.

13.  No clear meaning or conclusion can be made out of or drawn from the two Joint Office letters.  The makers were not called to explain the meaning and findings of the Joint Office.  Such should not be taken as conclusive evidence that water seepage of the Damaged Room was not caused by seepage from the 8/F Flat.

14.  This court had duly considered the two Joint Office letters in assessing liability (Judgment: paragraphs 25 to 30, 88).

15.  The Joint Office had only conducted dye water ponding in the bathroom in Room B of the 8/F Flat on 9 May 2012 and later checked the results by visual inspection.  P’s expert had conducted tests and checks using additional methods other than mere visual inspection.  This court was entitled to consider the totality of the evidence and accept the evidence of P’s expert, in particular the tests results using methods of electrical conductivity sensing and infra-red scanning, in coming to the conclusion on liability.

Tests/ observation by the experts

16.  Dye water ponding conducted by D’s expert on the Roof on 14 October 2014 and by P’s expert in the 8/F Flat on 30 November 2014 did not reveal seepage of dye or eosin yellowish water at the ceiling or in the Damaged Room – these matters have been considered and dealt with (Judgment: paragraphs 48 to 50, 58, 70(4)).  This court was entitled, on the totality of the evidence, to accept the conclusions of P’s expert and reject those of D’s expert as detailed in the Judgment.

Plaintiff’s failure to mitigate loss and damage

17.  P gave evidence that he had first arranged and carried out repairs in the Damaged Room in early 2011.  Water seepage problems persisted as a result of which he could not keep his tenant who terminated the tenancy and left on 27 February 2011.

18.  This court had considered matters of mitigation including further possible repairs and attempt to rent out the Damaged Room by P (Judgment: paragraphs 105 to 108).  D has not made valid challenge to P’s evidence in this regard.

The cessation argument

19.  D’s counsel argues that no loss of rental income should be allowed from the date of the Joint Office tests on 9 May 2012 up to the time when P’s expert conducted tests on 30 November.  This argument is entirely new and not pleaded, nor was it raised at trial.

20.  There is no substance in this argument.  There is no evidence of cessation of damage or water seepage during this period.  On the contrary, it is clear from the P’s unchallenged evidence and from the two letters from the Joint Office to P and D dated 25 October 2012 and 15 January 2013 respectively that water seepage problems in the Damaged Room had persisted all this time.  

Repair cost claimed at $27,300

21.  The P’s evidence is that the quotation dated 30 April 2012 was on works required to be done in the Damaged Room and necessitated by the water seepage. No challenge was made by D at trial on the items listed in the quotation as to amounts or whether they were related to damage due to water seepage.  This quotation is substantially lower than an updated quotation obtained closer to trial, though P agreed at trial to limit his claim as pleaded based on the 30 April 2012 quotation.

22.  D argued at trial that the proposed renovation would result in “betterment” of the Damaged Room, hence the cost should be reduced.  This argument was considered and rejected (Judgment: paragraphs 97 to 101).

23.  This court was entitled to come to the conclusion on the whole of the evidence that the renovation cost claimed was reasonable and should be allowed.

Causation of loss of rental income

24.  The P’s evidence is that the tenant of the Damaged Room terminated the tenancy and moved out on 27 February 2011 due to the water seepage damage in the room.  The renovation carried out in early 2011 could not stop the persistent continuing water seepage problems.

25.  No challenge was made by D at trial.  There is no evidence to suggest otherwise, eg the tenant had moved out due to reasons other than the water seepage damage.

26.  There is no substance in this argument.

27.  D’s arguments on the grounds of appeal (set out in paragraphs 5 and 6 herein) do not assist its application for leave to appeal.

28.  I am not persuaded that I have erred in points of law or fact in the Judgment.  There is no reasonable prospect of success in the proposed appeal.  I do not believe there is any other reason why the appeal should be heard by the Court of Appeal in the interests of justice. 

Conclusion

29.  I therefore dismiss D’s application for leave to appeal.

30.  I make a costs order nisi that D shall pay the costs of this application to P, to be taxed if not agreed.  The costs order shall become absolute after 14 days.