YUNG YUK YIN v. THE INCORPORATED OWNERS OF KEYMOUNT LODGE

DCCJ 4059/2018

[2021] HKDC 813

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4059 OF 2018

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J U D G M E N T

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Contents

Paragraphs

A.   INTRODUCTION

1.  This is an action concerning the building management of Keymount Lodge (“Building”), a residential building located at Ting Kau, New Territories.

2.  The plaintiff is the registered owner and occupier of Flat 2B of the Building (“Flat 2B”).

3.  The defendant is the incorporated owners of the Building (“IO”). Whilst formally representing all the owners of the Building, it is in reality representing all the owners except the plaintiff in these proceedings.

4.  The plaintiff’s claims in this action mainly relate to an alleged failure by the IO to maintain or keep in repair the external walls of the Building, resulting in water seepage and concrete spalling in Flat 2B.  It is also alleged that the IO is bound by resolutions passed at (1) the annual general meeting on 29 August 2017 (“1^st Owners’ Meeting”), and (2) the meeting of the management committee of the Building (“Management Committee”) on 25 October 2017 (“MC Meeting”), to carry out repair works to the external walls.  The plaintiff claims damages and an order for the IO to repair the external walls.

5.  The IO counterclaimed against the plaintiff for outstanding management fees and contribution to the IO’s reserve fund, totalling $152,486.95.  It is common ground that the plaintiff has since settled the full amount of the IO’s counterclaim on 3 October 2019, leaving only the issue of costs to be determined at this trial.

6.  The plaintiff is the only factual witness of her case, while the IO has called its present chairman, Mr Cheung Ngam Lam (“Mr Cheung”),[1] to give evidence.  Both parties have adduced expert evidence on the issues of water seepage and quantum of damages.  The plaintiff’s expert is Mr Yeung Tak Wah Denny (“Mr Yeung”), and the IO’s expert is Mr Wong Shun Tai Stewart (“Mr Wong”).

B.  BACKGROUND

7.  In this section, I set out the undisputed background facts chronologically, specifying the more major factual disputes where they appear.

8.  The Building was completed in 1991.  It consists of 26 residential units and 39 car parking spaces.  A company called Plotio Property and Management Company Limited (“Management Company”) was appointed as the first manager of the Building under the Deed of Mutual Covenant dated 8 October 1991 (“DMC”), and has since been responsible for the management of the Building.

9.  The plaintiff purchased Flat 2B in 1997 and has resided there with her family since taking possession.

10.  In early August 2017, the plaintiff first discovered water seepage in the ceiling of her master bedroom in Flat 2B (“Bedroom Ceiling”) after heavy rain.  According to her case, water seepage was later found in the northern wall (“Wall A”) and southern wall (“Wall B”) of her living room.[2] She made a complaint to Mr Wong Wing Him Ray (“Mr Ray Wong”), an assistant estate manager of the Management Company, soon thereafter.  There is a dispute as to whether the plaintiff only complained about water seepage in the Bedroom Ceiling or in Walls A and B as well.

11.  On 21 August 2017, Mr Ray Wong arranged a representative from Sun Win Construction Company Limited (“Sun Win”), an independent contractor, to inspect Flat 2B.  Sun Win’s representative confirmed that there was water seepage in Flat 2B, and opined that it might be related to defects in the external walls outside Flat 2B.  Sun Win later provided a fee quotation of $24,000 for repair works to be performed on the external walls.

12.  On 29 August 2017, at the 1^st Owners’ Meeting, Mr Ray Wong reported the water seepage problem in Flat 2B, and quotations obtained from Sun Win and another contractor for the repair works to be done to the external walls. According to the plaintiff’s case, a resolution was unanimously passed at the meeting for the IO to engage Sun Win to carry out repair works to the external walls for the quoted fee of $24,000 (“1^st IO Resolution”). The IO claims that no resolution was passed at the 1^st Owners’ Meeting in relation to the alleged repair works.

13.  After the 1^st Owners’ Meeting, Mr Cheung, then secretary of the IO, prepared a draft agreement providing that the IO and the plaintiff would jointly engage an independent surveying firm to ascertain the exact cause of water seepage in Flat 2B.  Mr Cheung also offered to carry out waterproofing works to the external walls by himself at his own costs.  The plaintiff did not sign the draft agreement, nor did she accept Mr Cheung’s offer.  The IO later agreed that fee quotations from surveying firms should first be obtained before the parties were to sign the draft agreement.  It is common ground that no such fee quotations were ever sought.

14.  At the MC Meeting on 25 October 2017, the Management Committee, by a majority, passed a resolution to engage Sun Win to carry out repair works to the external walls outside Flat 2B for the quoted fee of $24,000 (“MC Resolution”).

15.  Soon after the MC Meeting was concluded, Mr Cheung issued a letter dated 25 October 2017 which was circulated among the owners of the Building, including the plaintiff.  In his letter, Mr Cheung noted that the Management Committee should not have resolved to engage Sun Win without first confirming the exact cause of water seepage in Flat 2B.  He also suggested that the IO should ask Sun Win to conduct a water spray test on the external walls, and if no water leakage was to be found, there would be no need to conduct any repair works.

16.  In the light of the objections from Mr Cheung and other owners as to the MC Resolution, an extraordinary general meeting of owners was convened by Mr Law Fan Chi (transliterated) (“Mr Law”), then chairman of the IO, on 29 November 2017 (“2^nd Owners’ Meeting”).  According to the minutes of the meeting, the IO passed a resolution that the plaintiff shall engage a professional at her own costs to investigate the cause of water seepage in Flat 2B (“2^nd IO Resolution”).  The parties are in dispute as to whether such resolution was validly passed.

17.  On 3 July 2018, Mr Yeung, on the instruction of the plaintiff, produced his survey report (“Mr Yeung’s 1^st Report”) on the cause of water seepage in Flat 2B.  He stated that the moisture content on the internal surface of Walls A and B, as well as that of the western wall (“Wall C”) and northern wall (“Wall D”) of the master bedroom of Flat 2B,[3] increased after a water spray test had been conducted on the corresponding external walls.  This, according to Mr Yeung’s opinion, indicated water seepage from the external walls to the internal walls of Flat 2B.

18.  On 23 August 2018, the plaintiff produced Mr Yeung’s 1^st Report to the IO.  Thereafter, on 4 September 2018, Mr Cheung, as chairman of the IO, gave notice to convene a general meeting of owners on 28 September 2018 (“3^rd Owners’ Meeting”) to discuss the plaintiff’s water seepage complaint and whether major repair works should be performed on all external walls of the Building to resolve the issue of water seepage once and for all.

19.  On 11 September 2018, the plaintiff commenced these proceedings by a specially endorsed writ, which was served on the IO on the same day.

20.  On 28 September 2018, at the 3^rd Owners’ Meeting, the IO, by a majority, passed a resolution to engage contractors to perform major repair works to all external walls of the Building (“3^rd IO Resolution”), in that all mosaic tiles and waterproofing render on the external walls would be removed and replaced by new ones.

21.  As Mr Cheung confirmed in his oral testimony, the IO has not yet engaged any contractor to carry out the major repair works pursuant to the 3^rd IO Resolution.

22.  It is common ground that the general condition of the external walls of the Building has been poor since 2017.  There are defects in the external walls, including Walls A, B, C and D, as evidenced by the debonding of mosaic tiles, cracks and spalling of concrete thereon.

C.  THE PARTIES’ PLEADED CASES

C1.    The plaintiff’s case

23.  The plaintiff’s pleaded case is as follows.  The water seepage problem in Wall A, Wall B and the Bedroom Ceiling (surrounded by Walls C and D) was caused by defects in the external walls, being common parts of the Building for which the IO is liable under the Building Management Ordinance (Cap 344) (“Ordinance”) and the DMC.

24.  The plaintiff avers that the IO has been made aware of the defects in the external walls since August 2017 but has failed to take appropriate steps to rectify those defects, including to implement the 1^st IO Resolution and the MC Resolution to carry out repair works to the external walls.

25.  The plaintiff claims that, as a result of the water seepage problem, there were cracks and spalling of concrete on Wall A, Wall B and the Bedroom Ceiling.  She had to engage her own contractor to carry out interior repair works in Flat 2B in December 2018.  She claims: (1) a mandatory injunction that the IO shall carry out repair works to the external walls outside Flat 2B; (2) the costs of repair at $73,500; (3) the costs of her temporary accommodation while repair works were carried out in Flat 2B at $29,323; (4) the survey fees of Building Diagnostic Consultants Limited (“BDC”) and Asian View Limited (both in respect of the preparation of Mr Yeung’s expert reports) at $13,300 and $28,000 respectively; and (5) damages for discomfort and inconvenience at $115,117.

C2.    The IO’s case

26.  The IO denies that it is liable for the water seepage problem in Flat 2B.  It avers that such problem is not caused by any defects in the external walls.  The IO was only made aware of the water seepage problem in the Bedroom Ceiling, but not in Walls A and B.  The IO followed up the plaintiff’s complaint by (1) offering to carry out waterproofing works by Mr Cheung himself at his own costs, and (2) seeking the plaintiff’s undertaking to reimburse the fees of engaging a surveying firm to investigate the source of water seepage, but both proposals were rejected by the plaintiff.

27.  The IO avers that no or no conclusive resolution was passed at the 1^st Owners’ Meeting or the MC Meeting.  It was only at the 2^nd Owners’ Meeting that a conclusive resolution was passed, requiring the plaintiff to engage her own expert to investigate the source of water seepage in Flat 2B.

D.  THE ISSUES

28.  The main issues to be resolved may be summarised as follows:

(1)  whether the water seepage in Flat 2B was caused by the defects in the external walls of the Building, and if so, whether the IO should be held liable for breach of duties under the Ordinance and the DMC, nuisance and/or negligence;

(2)  whether the IO is bound by the 1^st IO Resolution and the MC Resolution to carry out repair works to the external walls outside Flat 2B;

(3)  if the IO is liable, what reliefs should be granted to the plaintiff.

29.  The parties have also raised a number of pleading and evidential issues, which I shall deal with in the relevant sections below.

E.  WHETHER THE IO IS LIABLE FOR WATER SEEPAGE IN FLAT 2B

30.  There is no dispute that the burden rests on the plaintiff to prove, on a balance of probabilities, that the defective state of the external walls of the Building caused water seepage in Flat 2B.  Causation is a question of fact.  The fact that there might be other leakage paths would not relieve the defendant from liability for water seeped from the external walls into the plaintiff’s property: Wong Ping Chun v Giant King Corporation Limited, DCCJ 4020 of 2012 (16 March 2016),[4] §15.  The court, in applying the “but for” test, is not concerned to identify all possible causes, but with the effective cause of the resulting damage in order to assign responsibility for such damage: Loke Yuen Jean Tak Alice v Wong Kit Ying and Anor [2019] HKCFI 1895, §§60-62; Clerk and Lindsell on Torts (23^rd ed, 2020), §2-09.

E1.    The parties’ expert evidence

E1a.  Mr Yeung’s evidence

31.  The plaintiff relies on the expert evidence of Mr Yeung, whose professional qualifications include, among other things, being (1) a registered professional engineer under the Engineers Registration Ordinance (Cap 409) since 2001, and (2) a registered professional surveyor under the Surveyors Registration Ordinance (Cap 417) since 2004.  Mr Yeung’s qualifications are not disputed, and I accept that Mr Yeung has the relevant expertise to provide expert opinion on the cause of water seepage in the present case.

32.  The IO takes issue on the admissibility of Mr Yeung’s 2^nd expert report dated 2 January 2019 (“Mr Yeung’s 2^nd Report”) on the ground that it was adduced by the plaintiff without leave of the court. 

33.  It is right to point out that the expert directions given by the court at the hearings on 23 January 2019 and 21 May 2019 did not limit the parties to adduce only one report from each of their respective experts.  Further, the IO did not take any issue on the admissibility of Mr Yeung’s 2^nd Report at any of the aforesaid hearings.  In any event, the material findings made in Mr Yeung’s 2^nd Report have been canvassed by both experts in their without prejudice meeting on 11 September 2019 and joint statement dated 10 December 2019 (“Joint Statement”).

34.  For the above reasons, I am of the view that the IO’s objection to the admissibility of Mr Yeung’s 2^nd Report is not substantiated.

35.  The IO also challenges the credibility of Mr Yeung’s evidence on the grounds that he failed to disclose in his 1^st Report (1) the fact that he had not personally performed the survey on 27 June 2018 and (2) the details of the qualifications of the persons who carried out the survey, contrary to the Code of Conduct for Expert Witnesses (“Code of Conduct”), Appendix E to the Rules of the District Court (Cap 336H).  Paragraph 8(b) and (f) of the Code of Conduct provides:

“A report by an expert witness must (in the body of the report or in an annexure) specify –

…

(b)  the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed);

…

(f)  any examinations, tests or other investigations on which he has relied, and the identity and details of the qualifications of the person who carried them out.”

36.  Mr Yeung made it clear in §3.1 of his 1^st Report that the survey on 27 June 2018 was performed by three staff members of BDC as named therein rather than by himself personally.  The tests conducted and equipment used during the survey were set out in the report.  The infrared thermographic images as well as coloured photos showing the protimeter readings in the moisture content survey and the condition of the external and internal walls were also appended to the report.  These are contemporaneous records of the test results upon which Mr Yeung’s opinion was based.  On the above basis, I do not find Mr Yeung to be in breach of paragraph 8(b) of the Code of Conduct as alleged by the IO.

37.  It appears to me, however, that there is some force in the IO’s argument that Mr Yeung did not set out the details of the qualifications of the persons who carried out the survey in his 1^st Report.  Nevertheless, I note that Mr Yeung did in his 1^st Report identify the persons who carried out the survey, and set out the job position of one Mr Leung Kin Wing who prepared the draft report for Mr Yeung’s approval.  Mr Yeung further explained in his testimony that those three persons who carried out the survey were educated up to tertiary level, had worked with him on previous occasions, and were trained and experienced in carrying out the survey.  This part of Mr Yeung’s testimony is not challenged by any rebuttal evidence.

38.  On the whole, I find Mr Yeung’s expert evidence to be reliable notwithstanding some shortcomings which affect the weight to be given to those aspects of his evidence.  His opinion on the cause of water seepage in Flat 2B is based on scientific and empirical findings from infrared thermographic scans, moisture content survey, hammer tapping test and visual inspection conducted by both BDC and himself personally.  His opinion is also consistent with the initial findings made by Sun Win, the independent contractor engaged by the Management Office.  It is noteworthy that, during cross-examination, Mr Yeung did not jump to a defensive mode and fairly accepted some of the weaker points in his evidence (which I shall deal with below).  This, in my view, is a telling indicium of the professionalism and impartiality of an expert witness: Chinachem Charitable Foundation Limited v Chan Chun Chuen, HCAP 8 of 2007 (2 February 2010),[5] §487, per Lam J (as Lam VP then was).

E1b.  Mr Wong’s evidence

39.  The IO relies on the expert evidence of Mr Wong, the admissibility of which is disputed by the plaintiff on the ground that he is not qualified as an expert to give evidence on the cause of water seepage in the present case.

40.  In Shenzhen Futaihong Precision Industry Co Ltd and Others v BYD Company Limited and Others [2018] HKCA 408, Lam VP cited the Final Report on Civil Justice Reform in which the Working Party identified (at §596) the following as conditions for admissibility of expert evidence:

(1)  the subject matter of the opinion must fall within an area in which expert evidence may properly be given;

(2)  the witness must be qualified as an expert to give the evidence of the type in question; and

(3)  his evidence must be relevant to the issues being litigated.

The Working Party cited a judgment of King CJ in R v Bonython (1984) 38 SASR 45 in which condition (2) was explained:

“The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issue before the court.”

41.  In the present case, Mr Wong stated in his curriculum vitae as of December 2019 that he had 35 years of experience in investigating water seepage matters, and that he had handled the investigation of 8,000 water seepage claims.  His professional qualifications included being a member of “Royal Chartered The Australian Institute of Building [sic]” and the Society of Operations Engineers since 2012, and a member of “Chartered Association of Building Engineer, UK [sic]” since 2013.

42.  Mr Wong accepted in his oral testimony that he is neither a registered professional engineer nor a registered professional surveyor in Hong Kong.  Nonetheless, according to Mr Wong, his memberships with “Royal Chartered The Australian Institute of Building [sic]” and “Chartered Association of Building Engineer, UK [sic]” are recognised in Hong Kong under reciprocal recognition agreements between these organisations and the Hong Kong Institution of Engineers (“HKIE”), such that he is qualified as a professional engineer in Hong Kong.  He also emphasised in his oral testimony the importance of these memberships as being two of the most significant qualifications he holds because of their reciprocal recognition status with HKIE.

43.  However, it is pertinent to note that there is no professional organisation named “Royal Chartered The Australian Institute of Building [sic]” or “Chartered Association of Building Engineer, UK [sic]”, and the correct names should be “Australian Institute of Building” and “Chartered Association of Building Engineers” respectively.  More importantly, as a matter of fact, neither the Australian Institute of Building nor the Chartered Association of Building Engineers has any reciprocal recognition agreement with HKIE, contrary to Mr Wong’s testimony.[6]

44.  In my view, Mr Wong, who professed to be the most senior engineer in Hong Kong with a wealth of experience in testifying as an expert witness in court proceedings, did not provide a full and accurate picture of his professional qualifications at this trial.  He is well aware that, as an expert witness, he has an overriding duty to help the court impartially and independently on matters relevant to his area of expertise: see paragraph 2 of the Code of Conduct.  He is also aware that his qualifications were subject to judicial criticism on previous occasions.[7] Yet, he still provided incorrect information to this court on his own qualifications, which led to some confusion as to the status and quality of those qualifications, and is in my view unsatisfactory.

45.  On the other hand, I note that Mr Wong’s testimony that he has handled more than 8,000 water seepage cases over the past 37 years is not challenged. It therefore appears to me that Mr Wong has acquired by experience sufficient knowledge of the subject of water seepage, and on such basis, I am not prepared to reject Mr Wong’s evidence on the ground of admissibility alone.

46.  Nevertheless, in view of the above matters, I must be cautious in approaching Mr Wong’s evidence.  On the whole, I have considerable reservations about the reliability of Mr Wong’s evidence, whether as contained in his expert report dated 22 September 2019 (“Mr Wong’s Report”), the Joint Statement or in his oral testimony.  In particular, I find the following aspects of his evidence to be unsatisfactory and to have greatly diminished the weight that can be placed on his evidence as a whole.

47.  First, the moisture content survey conducted by Mr Wong on 2 December 2018 was incomplete.  Out of the 16 spots on Wall A, some of the protimeter readings on spot numbers 1, 10 and 13, and photos showing such readings, were missing.[8] As a result, the court is unable to assess whether water might have seeped from the external wall to the internal wall of Flat 2B at those spots.  No satisfactory explanation was given by Mr Wong as to why, despite his vast experience in preparing expert reports for court proceedings, he failed to keep a complete record of the protimeter readings during his survey.  One cannot rule out the possibility that those readings were not included in Mr Wong’s Report because they might be unfavourable to his opinion.

48.  Secondly, Mr Wong did not conduct any infrared thermographic scan on Wall A before the water spray test on 2 December 2018.  He only took 2 infrared images after the water spray test was completed.  Therefore, no meaningful comparison could be made as to the respective temperatures of Wall A before and after the water spray test, in order to deduce whether there might be water seepage from the external wall into the internal wall of Flat 2B.

49.  Thirdly, since the tests carried out by Mr Wong were incomplete, he had limited objective evidence available to form an opinion on the possible cause(s) of water seepage in Flat 2B.  Instead, he resorted to conjectures.  He proffered six reasons why there was water seepage or why the waterproofing capability of the external walls had been undermined, none of which can be substantiated on the evidence:

(1)  Mr Wong first suggested that water seeped through the edges of the timber boarded window opening for air-conditioning unit on Wall A.  However, it is common ground that timber boards, if exposed to water, would be moistened and even decay over time.  In this regard, Mr Wong accepted in cross-examination that the timber board in question was in good condition, and there is no evidence that it was moistened or decayed at all material times. It is inherently improbable that the timber board would remain in good condition without any moistening or decay if water had seeped through its edges.  In my judgment, there is no evidential basis for Mr Wong to put forward the timber board as a cause of water seepage on Wall A.

(2)  The second reason given by Mr Wong is that water seeped through the window frames on Walls A and B because the “silicone grouting [sic]” around the window frames was worn out.  He said water seepage through the window frame on Wall A would affect spot numbers 4, 10, 11 and 12 thereon.

(a)  As stated above, Mr Wong did not keep a complete record of the protimeter readings at spot 10 for a comparison of the moisture content thereat to be made before and after the water spray test.

(b)  In respect of spots 4 and 11, there was a decrease in Mr Wong’s own protimeter readings at those spots after water spray test was performed, which contradicts his opinion that water seeping through the window frame would increase the moisture content at spots 4 and 11.

(c)  As for spot 12, Mr Wong’s opinion is that there was a hole drilled by the plaintiff[9] (“Spot 12 Hole”) which caused water to seep through that hole (see sub-paragraph (3) below).  He only raised the alleged correlation between water seepage through the window frame and spot 12 for the first time during cross-examination.

In my view, Mr Wong has not produced any objective evidence to support his opinion that there was water seepage through the window frame on Wall A.

(3)  The third reason given by Mr Wong is that water seeped through the Spot 12 Hole on Wall A.  According to him, the Spot 12 Hole was drilled by the plaintiff or her contractor “years ago”[10] in order for a water pipe to pass through the external wall into Flat 2B.  However, there is no objective evidence to support the alleged existence of any hole at spot 12.  As Mr Wong acknowledged during cross-examination, there was no penetrating hole on Wall A at the time of his inspection, and the alleged hole at spot 12 was filled from the inside of Wall A so he could not see it when he inspected Wall A.  In other words, there is no evidence as to the alleged existence of the Spot 12 Hole at all.

(4)  In this respect, Mr Wong also said that his opinion on the Spot 12 Hole is supported by the plaintiff’s own evidence in one of her witness statements that her contractors installed water pipes as part of a large scale renovation after she took possession of Flat 2B.  However, it is common ground that the plaintiff did not make any such statement in her witness statements, and there is no evidence that such alleged pipework, if any, was conducted on Wall A, let alone through spot 12.  Mr Wong never corrected this mistake throughout his oral testimony.  This, in my view, is telling that Mr Wong did not fully adhere to his overriding duty to the court, which is to use his own professional expertise to assist the court impartially without regard to the exigencies of litigation.

(5)  The fourth reason given by Mr Wong is that there are multiple drilled holes on the external walls for anchor bolting.  He said that those holes were created by the renovation workers of Flat 2B and Flat 3B “a few years ago”.  He has since clarified in his oral testimony that those holes did not constitute a cause of water seepage but only undermined the waterproofing capability of the external walls outside Flat 2B.  It has also transpired from his cross-examination that he did not have any evidence as to who, when and how those holes came to exist.  He could not rule out the possibility that it was the IO, rather than the plaintiff and/or the owner(s) of Flat 3B, who had erected scaffolds outside Flat 2B and Flat 3B leaving those holes on the external walls.  In my view, even taking Mr Wong’s evidence at its highest, those drilled holes did not amount to a material cause of water seepage in Flat 2B.

(6)  The fifth reason given by Mr Wong in his expert report is that some “impact vibration force” was created when the plaintiff’s contractors demolished the internal walls in Flat 2B “years ago”, causing “affection [sic] and crack damage” to the waterproofing render on the external Walls A and B.  In the Joint Statement, he stated that “certain impact force” led to “certain crack damage” or “loosening [of] the cement sand finish on the external wall facade”, undermining the waterproofing capability of the external walls outside Flat 2B.  Notably, Mr Wong did not know when the demolition works were conducted, whether those works involved any structural alteration, and whether any “impact vibration force” (the extent of which is not known to him) was so serious as to create cracks to the waterproofing render on the external walls.  In any event, even taking Mr Wong’s evidence at its highest, any alleged impact vibration force did not amount to a material cause of water seepage in Flat 2B.

(7)  The sixth reason given by Mr Wong is that the renovation works carried out in Flat 3B “years ago” caused water to seep from the floor of the master bathroom to the master bedroom of Flat 3B, and then into the Bedroom Ceiling of Flat 2B.  He also suggested that there was another “water seepage path” originated from Flat 3B, namely, water seeping through the window frame of the master bedroom of Flat 3B to the floor thereof, and then into the Bedroom Ceiling of Flat 2B.

(8)  However, Mr Wong’s opinion in this regard is not supported by any scientific evidence since he did not conduct any test, such as moisture content survey, water dye test and water ponding test, in respect of the Bedroom Ceiling or Flat 3B.  The photos he took in Flat 3B show that the floor of the master bathroom and master bedroom of Flat 3B was covered by ceramic tiles and did not have any water stains or visible defects.  His opinion that there might be water pipe leakage from Flat 3B to the Bedroom Ceiling of Flat 2B is contradicted by the findings of the Joint Office set up by the Buildings Department and the Food and Environmental Hygiene Department in their letter to the plaintiff dated 17 December 2018.  Further, the location of water seepage which Mr Wong identified to be related to Flat 3B is in fact different from the water seepage areas identified by the plaintiff in the Bedroom Ceiling. All these matters show that there is no evidential basis for Mr Wong to attribute the water seepage problem in the Bedroom Ceiling to Flat 3B.

As Lam J (as Lam VP then was) observed in Chinachem Charitable Foundation Limited, supra, §492, in many instances, the proliferation of issues is the hallmark of an expert struggling to defend an indefensible position by generating new issues as smokescreen.  In the present case, Mr Wong evidently engaged in a proliferation of expert issues, albeit unsubstantiated by evidence, with a view to defending the IO’s case.  This is, in my judgment, highly unsatisfactory.

50.  Fourthly, Mr Wong did not verify the source of information in support of his opinion.  For instance, he did not carefully read the plaintiff’s witness statements before alleging that the plaintiff made a statement in relation to the pipework in Flat 2B.  As to the Spot 12 Hole, he did not verify whether it existed or not, and if it did exist, who caused it, but he nonetheless made a bold assertion that it was drilled by the plaintiff or her contractor.  He asserted that the multiple drilled holes on Wall A were caused by the renovation workers of Flat 2B and Flat 3B without first ascertaining with the Management Office whether any scaffolding works had been performed on the external Wall A, and if so, by whom and when.  He said that he was told by a lady that renovation works had been carried out in Flat 3B “years ago”, but he did not verify the identity of this lady and whether she had personal knowledge of the renovation works in Flat 3B.  Inclusion of information the validity of which is doubtful inevitably undermines the expert’s credibility in the court’s assessment: Chinachem Charitable Foundation Limited, supra, §484.

51.  Fifthly, Mr Wong repeatedly stated in his expert report that the liability of water seepage in Flat 2B lies with the plaintiff.  This goes beyond the scope of his instructions, viz. to investigate the cause(s) of water seepage in Flat 2B.  During cross-examination, he sought to explain away this by suggesting that he did not know that the parties were in litigation.  But it is not open to him to say so.  He set out the action number of, and the parties to, these proceedings on the first page of his expert report.  He also made repeated references to “the Plaintiff” in the report.  Thus he must have known that the parties were in litigation when he prepared his expert report.  In my view, instead of putting forward his own independent professional opinion, Mr Wong sought to assume the role of an advocate on behalf of the IO, thereby undermining the reliability of his expert opinion.

52.  Overall, I consider it necessary to take a heavily guarded approach to Mr Wong’s evidence.

53.  With the above analysis of expert evidence, I shall now turn to the cause(s) of water seepage in Wall A, Wall B and the Bedroom Ceiling.

E2.    Wall A

54.  The plaintiff relies on (1) the infrared thermographic scans performed by BDC on 27 June 2018, (2) the moisture content surveys performed by BDC on 27 June 2018 and by Mr Yeung on 18 December 2018, (3) the hammer tapping tests performed by BDC on 27 June 2018 and by Mr Yeung on 18 December 2018, and (4) the visual inspection performed by BDC on 27 June 2018 and by Mr Yeung on 18 December 2018, in support of her claim that water seeped from the external Wall A into the internal Wall A.

55.  In my view, although Mr Yeung did not personally perform the tests on 27 June 2018, the results of those tests were contemporaneously recorded in the infrared thermographic images and coloured photos taken by BDC.  There is no suggestion of any impropriety in the tests conducted by BDC, or the infrared images and photos taken during the tests.  I note that the test results shown in the infrared images and photos taken by BDC on 27 June 2018 are consistent with those of the tests conducted by Mr Yeung personally on 18 December 2018. I shall therefore consider all those results as a whole.

56.  Based on the infrared thermographic images produced in Mr Yeung’s expert reports, there was evidence of water seepage on Wall A from the external wall to the internal wall after water was sprayed on the external wall for 60 minutes.  The moisture content surveys similarly showed that the moisture level on the internal Wall A generally increased after a water spray test was performed on the external Wall A, indicating water seepage through the external wall.  The coloured photos, together with the hammer tapping test and visual inspection conducted by Mr Yeung, confirmed that there were defects including cracks and debonding of mosaic tiles on the external Wall A, through which water could seep into the internal wall.

57.  On the other hand, the IO relies on (1) the moisture content survey performed by Mr Wong on 2 December 2018, and (2) Mr Wong’s opinion that water seeped through (a) the timber board at the window opening on Wall A, (b) the window frame on Wall A, and (c) the Spot 12 Hole, with the multiple drilled holes and the impact force created by demolition of internal walls in Flat 2B being contributing causes, to support its position that water seepage did not come from the external walls, and even if it did, the IO should not be held liable for the same.

58.  According to Mr Wong’s moisture content survey, water only seeped from the external wall to the internal wall at spot 12 on Wall A, which he said was attributable to the Spot 12 Hole.  As explained above, the survey performed by Mr Wong was selective and incomplete, such that one is unable to assess whether there might be water seepage at other spots on Wall A.

59.  As for the Spot 12 Hole, I reject Mr Wong’s opinion that there existed such a hole on Wall A for the reasons stated above.  I also find that Mr Wong was unable to show exactly where the Spot 12 Hole was.  In his expert report, he exhibited four photos purportedly showing spot 12 on the internal Wall A,[11] but it is clear that the location of spot 12 was different on each of those photos.

60.  Mr Wong’s evidence as to how he interpreted the results of the moisture content survey is also unsatisfactory, in that during cross-examination he was hesitant and unable to provide a clear answer as to what percentage difference in the protimeter readings would he consider to be evidence of water seepage.

61.  On the whole, I find the results of Mr Wong’s moisture content survey unreliable, and would not place any weight on the same.

62.  As to Mr Wong’s opinion on the causes of water seepage on Wall A, I find all those causes to be unsubstantiated on the available evidence as explained in §49 above.

63.  For the above reasons, I am satisfied, on a balance of probabilities, that the defects in the external wall of the Building constitute an effective cause of the water seepage problem in Wall A.

E3.    Wall B

64.  In respect of Wall B, the plaintiff relies on (1) the infrared thermographic scans performed by BDC on 27 June 2018, (2) the hammer tapping tests performed by BDC on 27 June 2018 and by Mr Yeung on 18 December 2018, and (3) the visual inspection performed by BDC on 27 June 2018 and by Mr Yeung on 18 December 2018, in support of her claim that water seeped from the external Wall B into the internal Wall B.  It is common ground that no moisture content survey has been performed by BDC or Mr Yeung on Wall B.

65.  Mr Wong did not perform any scientific test on Wall B.  His opinion, based on his visual inspection on 2 December 2018, is that water seeped through the window frame on Wall B, with the impact force created by demolition of internal walls in Flat 2B being a contributing cause.  As explained above, I reject Mr Wong’s evidence as to the alleged impact force.  As for his opinion that there was water seepage through the window frame, I find that there is no evidential basis for him to suggest so in the absence of a moisture content survey to compare the condition of Wall B before and after a water spray test.

66.  Turning to the evidence adduced by the plaintiff, I accept Mr Yeung’s evidence that, based on his hammer tapping test and visual inspection, there was spalling of concrete caused by water seepage on Wall B.  However, I find the infrared thermographic images taken by BDC on Wall B[12] to be problematic, in that they purported to show the condition of Wall B at a particular time, albeit with different infrared readings.  Mr Yeung accepted in his oral testimony that he did not verify the measurement time of those images, and did not realise the problem when he prepared his 1^st Report.

67.  It also appears to me that, without conducting a water spray test together with a moisture content survey and/or infrared thermographic scan, the plaintiff has not adduced evidence to establish the causal link between the water seepage in Wall B and the defects in the external wall.

68.  On the whole, I find that there is insufficient evidence available to conclude that the water seepage problem in Wall B was caused by the defects in the external wall.

E4.    Bedroom Ceiling

69.  In respect of the Bedroom Ceiling, the plaintiff relies on (1) the infrared thermographic scans performed by BDC on 27 June 2018, (2) the moisture content survey performed by Mr Yeung on 18 December 2018, (3) the hammer tapping test performed by Mr Yeung on 18 December 2018, and (4) the visual inspection performed by BDC on 27 June 2018 and by Mr Yeung on 18 December 2018, in support of her claim that water seeped from the external Walls C and D into the Bedroom Ceiling.

70.  On the other hand, Mr Wong did not perform any scientific test on Wall C, Wall D or the Bedroom Ceiling.  His opinion, based on his visual inspection on 2 December 2018, is that water seeped from the floor of Flat 3B to the Bedroom Ceiling, with the multiple drilled holes on the external wall being a contributing cause.  As explained in §49 above, I find that there is no evidential basis for Mr Wong to put forward any of these reasons as a cause of water seepage in the Bedroom Ceiling.

71.  I find that the infrared thermographic images taken by BDC on Walls C and D suffer the same problem as those in the case of Wall B, and I do not place any weight on the same.  On the other hand, I accept the results of the moisture content survey performed by Mr Yeung, showing that the moisture level on the Bedroom Ceiling generally increased after a water spray test was performed on the external Wall C, indicating water seepage through the external wall.  The coloured photos taken by BDC, together with the hammer tapping test and visual inspection conducted by Mr Yeung, confirmed that there were defects including debonding of mosaic tiles on the external Walls C and D, through which water could seep into the internal wall.

72.  For the above reasons, I am satisfied, on a balance of probabilities, that the defects in the external walls of the Building (viz. Wall C and Wall D) constitute an effective cause of the water seepage problem in the Bedroom Ceiling.

E5.    Liability of the IO

73.  Pursuant to section 18(1) of the Ordinance, the IO shall maintain the common parts of the Building in a state of good and serviceable repair and clean condition.  The same duty is owed by the IO to all owners of the Building under Clause V.B(3) of the DMC.  It is common ground that the external walls constitute common parts of the Building within the meaning of the Ordinance: see section 2 of the Ordinance and paragraph 1 of Schedule 1 thereto.

74.  The IO’s duty under section 18(1) of the Ordinance is not a strict or an absolute one.  The overall duty imposed on the IO is one of proper management, which entails doing all that is reasonably required of a manager in the circumstances: Lo Yuk Chu v Hang Yick Properties Management Ltd [1996] 4 HKC 278, 282C-D, per Power ACJ; followed in Lam Suk Yee and Anor v The Incorporated Owners of Kam Kim Mansion [2018] HKCFI 2760,[13] §122.

75.  Section 18(1) of the Ordinance does not provide an insurance to the extent that if some part of the building becomes in disrepair the IO automatically and necessarily become liable.  Liability may arise if there is fault or if, having been made aware of a defect which requires remedy, the IO fails to take appropriate steps: Lau Chun Wing Rod v The Incorporated Owners of Po On Building, CACV 20 of 2007 (1 November 2007), §12, per Rogers VP; followed in Lam Suk Yee, supra, §122.

76.  The IO’s case, premised on Mr Cheung’s evidence, is that the plaintiff only complained about the water seepage problem in the Bedroom Ceiling in August 2017.  She did not raise any issue in respect of the internal walls of Flat 2B until these proceedings were commenced in September 2018.  Also, according to Mr Cheung, in around late August 2018, he asked Mr Ray Wong about the water seepage problem in Flat 2B, and he was told that the plaintiff had indicated to Mr Ray Wong that there was some bulging of the wallpaper near the bay window of her flat but she was not concerned with it.  On such basis, the IO’s focus was always on the Bedroom Ceiling but not the internal walls of Flat 2B.

77.  I find Mr Cheung’s evidence in this regard to be contradicted by the contemporaneous documents produced by the IO, including documents prepared by Mr Cheung himself.

(1)  The first draft of the 1^st Owners’ Meeting minutes, prepared by Mr Ray Wong, stated (at §10.1) that “管理公司表示接獲2B業主投訴， 指其天花及牆身漏水，經承辦商檢查後懷疑外牆滲水” (emphasis added).  This record is consistent with the plaintiff’s case that she complained to Mr Ray Wong in August 2017 about the water seepage problem in the Bedroom Ceiling and the internal walls of Flat 2B.

(2)  In a message circulated by Mr Cheung in the WhatsApp chat group of the owners of the Building (“WhatsApp Group”) on 31 August 2017, he stated that “平台天面2B的損壞都很嚴重，一併查明是誰責任”.  This shows that, back in late August 2017, the IO was made aware that the scope of the plaintiff’s complaint was not limited to water seepage in the Bedroom Ceiling alone, and that it was necessary to ascertain who should be liable for the damage caused to Flat 2B.

(3)  In a draft agreement prepared by Mr Cheung after the 1^st Owners’ Meeting, which was circulated by Mr Law in the WhatsApp Group on 3 September 2017, it was stated that, in addition to the plaintiff’s complaint of water seepage in the Bedroom Ceiling, “甲方 [i.e. the IO] 亦知悉平台天面亦即2樓B室單位之樓底出現嚴重滲漏水跡”.

(4)  In another letter issued by Mr Cheung to the owners of the Building dated 7 October 2017, he referred to a telephone conversation between himself and Mr Law, during which Mr Law stated that he had already discussed with the plaintiff as to the scope of examination of water seepage in Flat 2B, namely, “2B天面漏水和平台天面漏水事宜（即2B的樓底）”.  Again, this shows that the IO knew that the water seepage problem in Flat 2B was not limited to the Bedroom Ceiling.

78.  In Mr Cheung’s testimony, he disputed the accuracy of the first draft of the 1^st Owners’ Meeting minutes prepared by Mr Ray Wong.  He relied on the final (or third) version of the meeting minutes, which he signed on 5 October 2018 (viz. after the commencement of these proceedings and more than a year after the 1^st Owners’ Meeting), as the accurate record of the meeting.  In this final version, the reference to water seepage to the internal walls of Flat 2B (“及牆身”) in §10.1 was deleted.

79.  I find Mr Cheung’s dispute on the accuracy of the first draft of the 1^st Owners’ Meeting minutes to be unsubstantiated for the following reasons:

(1)  First, these draft minutes constitute a contemporaneous record made by Mr Ray Wong, an independent third party, as to his report to the IO on the plaintiff’s water seepage complaint.

(2)  According to Mr Cheung’s testimony, the plaintiff first raised her water seepage complaint directly with Mr Ray Wong in around early August 2017.  Mr Cheung also accepted that he was not privy to, and therefore did not have any personal knowledge of, the conversation between the plaintiff and Mr Ray Wong. In the premises, Mr Cheung was not in a position to challenge the accuracy of Mr Ray Wong’s record of his report based on his own conversation with the plaintiff.

(3)  On 2 October 2017, Mr Cheung informed the other owners via the WhatsApp Group that he had reviewed the first draft of the 1^st Owners’ Meeting minutes prepared by Mr Ray Wong and revised §10.1 of the minutes by adding a postscript (“Postscript”).[14] At that time, Mr Cheung did not delete the reference to water seepage in the internal walls of Flat 2B (“及牆身”) in §10.1.  In other words, the second draft of the meeting minutes, as revised by Mr Cheung, still recorded the plaintiff’s complaint to have covered the Bedroom Ceiling and the internal walls of Flat 2B.

(4)  The reference to the internal walls in §10.1 of the 1^st Owners’ Meeting minutes was only deleted in the third version thereof, which was signed by Mr Cheung after the commencement of these proceedings.  It appears that Mr Cheung made the deletion after he had been allegedly told by Mr Ray Wong in late August 2018 that the plaintiff was not concerned with the water seepage problem in the internal walls.  But it is inconceivable that the plaintiff was not concerned with the same (or that she had told Mr Ray Wong so), since she had engaged Mr Yeung to investigate the cause of water seepage to Walls A, B, C, and D in July 2018, and provided a copy of Mr Yeung’s 1^st Report to the IO on 23 August 2018 to pursue her claim of water seepage.

(5)  I am also mindful that the IO has not called Mr Ray Wong as a witness at the trial.  Without the benefit of hearing from Mr Ray Wong, the court should be slow to find a professional estate manager to have failed to discharge his duties towards the IO in preparing meeting minutes based on Mr Cheung’s bare assertions alone.

80.  More importantly, in my view, the IO was made aware of the defects in the external walls of the Building and their potential correlation with the water seepage problem in Flat 2B as early as August 2017.

(1)  On 9 August 2017, Mr Ray Wong informed the IO via the WhatsApp Group that the plaintiff had made a water seepage complaint in relation to the Bedroom Ceiling.  In response to Mr Cheung’s question as to who should be held liable, Mr Ray Wong pointed out that the liability rests with the IO if it concerned the external walls of the Building (“外牆的話是法團責任”).  Mr Ray Wong also informed the IO that he had arranged for a contractor (viz. Sun Win) to inspect Flat 2B and provide a fee quotation for the repair works to be done to the external walls.

(2)  On 21 August 2017, Sun Win’s representative confirmed upon inspection that there was water seepage in Flat 2B, and opined that it might be related to defects in the external walls outside Flat 2B.

(3)  On 29 August 2017, during the 1^st Owners’ Meeting, Mr Ray Wong reported to the IO that it is Sun Win’s opinion that the water seepage problem in Flat 2B might be related to defects in the external walls.

(4)  On 31 August 2017, Mr Cheung suggested in the WhatsApp Group that a surveying firm be engaged to find out the exact location of water seepage, given that the seepage in the Bedroom Ceiling occurred 5 feet from the external wall.  Shortly thereafter, Mr Ray Wong pointed out that the external walls of the Building were clearly problematic because there had been numerous occasions when mosaic tiles thereon fell off (“外牆多次掉紙皮石，好明顯有問題”).

(5)  On the same day, Mr Law informed the owners in the WhatsApp Group that all related parties agreed that the IO would look for another company to find out the exact location of water seepage, and upon ascertaining who should be liable, the responsible party was to carry out repair works and bear the related costs.

81.  As Mr Cheung acknowledged during his cross-examination, upon learning the potential correlation between the water seepage problem in Flat 2B and the defects in the external walls of the Building, the IO was obliged to investigate the cause of such water seepage and take appropriate remedial action if it was caused by the defects of the external walls.  However, the IO never engaged any professional surveying firm, as Mr Cheung himself suggested in the WhatsApp Group on 31 August 2017, to carry out such investigation until after these proceedings were commenced by the plaintiff in September 2018. Consequently, no remedial action has ever been taken by the IO in relation to the water seepage problem in Flat 2B.

82.  The reasons proffered by the IO for not engaging (1) any professional surveying firm to investigate the cause of water seepage in Flat 2B, and/or (2) Sun Win to carry out repair works to the external walls, are, in my view, unconvincing.  First, the IO relies on Mr Cheung’s offer to the plaintiff in early September 2017 to carry out waterproofing works on the external walls by Mr Cheung himself at his own costs.  However, as Mr Cheung accepted in his oral testimony, he does not have any expertise in performing waterproofing works. In the circumstances, I do not find Mr Cheung’s offer to be a plausible substitute for repair works done by a professional contractor such as Sun Win, nor do I find the plaintiff’s rejection of the offer to be unreasonable.

83.  The second reason relied on by the IO is that the plaintiff refused to provide an undertaking to reimburse the fees of engaging a surveying firm to investigate the source of water seepage in Flat 2B.  However, it is also the IO’s own case, as evidenced in Mr Cheung’s testimony,[15] that the IO agreed in early October 2017 that fee quotations from surveying firms should first be obtained before the parties were to agree on the fee arrangement.  Yet, no such fee quotations were ever sought.  No explanation has been given by the IO in this regard.

84.  In the circumstances, at all times before the commencement of these proceedings, the only independent opinion received by the IO in relation to the water seepage problem of Flat 2B was that of Sun Win’s.  Despite Mr Cheung’s claim that Sun Win is not a professional surveying firm, it remains that no independent professional opinion was ever sought by the IO to contradict the opinion of Sun Win that the water seepage problem in Flat 2B might have been caused by the defects in the external walls.

85.  In his oral testimony, Mr Cheung criticised the opinion provided by Sun Win in that Sun Win did not identify the exact location of water seepage on the external walls by reference to a sketch plan, nor exclude the possibility that the water seepage in Flat 2B might come from higher floors.  However, he also accepted that the IO never asked Sun Win or any other professionals to provide further opinion on the same until it engaged Mr Wong after the commencement of these proceedings.

86.  It is also telling that, even after the plaintiff produced Mr Yeung’s 1^st Report to the IO on 23 August 2018, the IO still did not take any immediate action to investigate and remedy the water seepage problem in Flat 2B.  The 3^rd IO Resolution to carry out major repair works to all external walls of the Building does not, in my view, address the real issue, namely, the water seepage problem in Flat 2B which had persisted since early August 2017.  In any event, as confirmed by Mr Cheung, such resolution has not yet been implemented by the IO up to at least June 2021, citing delay occasioned by the COVID-19 pandemic.

87.  In the premises, I find that the IO, on its own case, failed to take appropriate steps to investigate and remedy the water seepage problem in Flat 2B after having been made aware of the same, thus failing in its duty of proper management of the Building under section 18(1) of the DMC and Clause V.B(3) of the DMC: Lau Chun Wing Rod, supra, §12; Lam Suk Yee, supra, §122.

88.  For the same reasons, I also find that the IO is liable in nuisance and negligence to the plaintiff for its failure to remedy the defects in the external walls of the Building, causing water seepage, and thereby damage, to Wall A and the Bedroom Ceiling of Flat 2B: Lau Chun Wing Rod, DCCJ 762 of 2004 (14 August 2006),[16] §120; Southern Ever Trading Limited v The Incorporated Owners of Joy Garden, CACV 322 of 2003 (9 July 2004), §30.

F.  VALIDITY AND EFFECT OF THE OWNERS’ RESOLUTIONS

89.  Clause VI.11 of the DMC provides:

“Subject to Section VII hereof any resolution on any matter concerning the Land and/or the Block passed at a duly convened meeting by a simple majority of the Owners present in person or by proxy and voting in proportion to the number of Undivided Shares held at such meeting shall be binding on all the Owners Provided as follows:

(i) The notice convening the meeting shall specify the intention to propose a resolution concerning such matter.

(ii) Any resolution purported to be passed at any such meeting concerning any other matters shall not be valid.

(iii) No resolution shall be valid if it is contrary to the provisions of this Deed.”

90.  The plaintiff claims that the IO is bound by the 1^st IO Resolution and the MC Resolution to carry out repair works to the external walls outside Flat 2B.  The IO denies that any resolution was passed at the 1^st Owners’ Meeting in relation to the water seepage problem in Flat 2B.  As for the resolution passed at the MC Meeting, the IO claims that it has been superseded by the 2^nd IO Resolution requiring the plaintiff to engage a professional at her own costs to investigate the cause of water seepage in Flat 2B.

F1.    The 1^st IO Resolution

91.  The IO’s case is that, at the 1^st Owners’ Meeting, the owners present in person or by proxy did not vote on or pass any resolution to engage Sun Win to carry out repair works on the external walls outside Flat 2B for the quoted fee of $24,000.

92.  However, this part of the IO’s case is inconsistent with the contemporaneous documents produced by the IO in these proceedings:

(1)  The first draft of the 1^st Owners’ Meeting minutes, prepared by Mr Ray Wong, recorded the 1^st IO Resolution (at §10.1) as follows: “經各出席業主商討後一致同意由最低價者『正暉』[viz. Sun Win] 以 $24,000進行2B外牆防水及打針工程” (emphasis added).

(2)  This contemporaneous record remains intact in the second draft circulated by Mr Cheung in the WhatsApp Group on 2 October 2017, as well as in the final version signed by Mr Cheung on 5 October 2018.  Pursuant to paragraph 6(2) of Schedule 3 to the Ordinance, the minutes of the proceedings at every general meeting of the IO shall be certified by the person presiding over the meeting as containing a true record of the proceedings of the general meeting to which they relate.  If no resolution had ever been passed at the 1^st Owners’ Meeting in relation to the engagement of Sun Win to perform repair works to the external walls outside Flat 2B, it is inconceivable that such a record would have been approved by Mr Cheung (being the person presiding over the meeting) on behalf of the IO as a true record of the proceedings of the meeting.

(3)  In both the second draft and the final version of the meeting minutes, Mr Cheung included the Postscript under §10.1 which reads:

“會後記：由於有業主建議聘請公證行查證滲水源頭，為此管理公司已將此事告知2B業主並初步同意先由公證行查證滲水源頭後才另行報價進行維修。故此是項議決將擱置不會進行。” (emphasis added)

Therefore, according to Mr Cheung’s own record, a resolution as per §10.1 of the meeting minutes was duly passed at the 1^st Owners’ Meeting, although it has subsequently been shelved.

(4)  On 31 August 2017 (viz. 2 days after the 1st Owners’ Meeting), Mr Ray Wong wrote in the WhatsApp Group that he had provided his opinion in relation to the water seepage problem in Flat 2B at the 1^st Owners’ Meeting, and a resolution was passed (“已在會議中通過”).  This is consistent with the final version of the 1^st Owners’ Meeting minutes approved by Mr Cheung.

93.  Mr Cheung accepted in his oral testimony that the matters contained in the Postscript, including the shelving of the 1^st IO Resolution, were never discussed or approved by the owners at the 1^st Owners’ Meeting or at the subsequent meetings of the IO.  These matters, therefore, cannot be binding on the owners of the Building under the DMC.

94.  For the above reasons, I find that a resolution was unanimously passed at the 1^st Owners’ Meeting for the IO to engage Sun Win to carry out repair works on the external walls outside Flat 2B.  Such resolution has not been implemented by the IO up to date.

F2.    The MC Resolution

95.  Pursuant to section 29 of the Ordinance, the powers and duties conferred or imposed by the Ordinance on the IO shall be exercised and performed on behalf of the IO by the Management Committee.

96.  There is no dispute that, at the MC Meeting, a resolution was passed by the majority of the Management Committee to engage Sun Win to carry out repair works to the external walls at the quoted fee of $24,000.  At the same meeting, the Management Committee also approved the standard procedure adopted by the Management Company in handling water seepage complaints by the owners.

97.  The IO claims that the MC Resolution has been superseded by the 2^nd IO Resolution, requiring the plaintiff to engage a professional at her own costs to investigate the cause of water seepage in Flat 2B.  Further, it contends that the plaintiff is not permitted to take issue on the 2^nd IO Resolution by reason that she has not pleaded it as an issue.

98.  I shall first deal with the pleading point raised by the IO.  It is right to point out that:

(1)  The plaintiff averred in §15 of her statement of claim that the IO convened the 2^nd Owners’ Meeting on 29 November 2017 to overturn the 1^st IO Resolution and the MC Resolution.

(2)  In §12 of the defence and counterclaim, the IO admitted that a general meeting of owners was held on 29 November 2017, but denied the remainder of the plaintiff’s averment in relation to the 2^nd Owners’ Meeting.

(3)  On 16 July 2019, the plaintiff filed and served a request for further and better particulars of, among other things, §12 of the defence and counterclaim, raising questions as to the voting process of the 2^nd Owners’ Meeting and the validity of the 2^nd IO Resolution passed thereat.

(4)  The IO did not respond to such request in its answer dated 9 September 2019.

99.  Based on the above, I am of the view that the plaintiff has duly raised the validity of the 2^nd IO Resolution as an issue in her pleadings. In any event, it cannot be said that the IO was taken by surprise or that there was no opportunity for the IO to meet the plaintiff’s claim on this front. Even though the IO chose not to answer the plaintiff’s request for further and better particulars on this particular point, it did canvass the issue in detail in its evidence and submissions at the trial.  I find that there is no substance in the pleading point raised by the IO.

100.  Turning to the proceedings of the 2^nd Owners’ Meeting, according to the meeting minutes approved by Mr Law, a total of 14 votes were cast in both the first and second rounds of voting:

(1)  seven votes were cast in favour of a proposal requiring the plaintiff to engage a professional at her own costs to investigate the cause of water seepage in Flat 2B; and

(2)  seven votes were cast in favour of a proposal for the IO to engage a contractor to conduct repair works to the external walls as per the MC Resolution.

In light of the equality of votes, Mr Law cast a second vote[17] in favour of the first proposal, which was passed as the 2^nd IO Resolution.

101.  However, the validity of the 2^nd IO Resolution is at issue by reason that (1) the number of owners present at the meeting is unclear, and (2) the voting mechanism adopted was seemingly inconsistent with the provisions of the DMC.

102.  First, the meeting minutes approved by Mr Law contain inconsistent records of the number of owners who attended the 2^nd Owners’ Meeting. In the preamble of the minutes, owners of 13 flats were listed to be present in person or by proxy.  However, the minutes went on to state that out of 25 owners of the Building, 12 (or 48%) of them attended the meeting.  Further inconsistency could be found in §2 of the minutes, stating that a total of 14 votes were cast in relation to the 2^nd IO Resolution.

103.  The confusion as to the number of owners present at the 2^nd Owners’ Meeting ensued in Mr Cheung’s testimony.  In his witness statement, he stated that 12 owners (including himself and the plaintiff) attended the meeting.  But in his examination-in-chief, he said that the number of owners attending the meeting should be 14 rather than 12.  He later explained during cross-examination that since a total of 14 votes were cast, it would follow that 14 owners were present at the meeting.

104.  Secondly, and in my view more importantly, the counting of votes at the 2^nd Owners’ Meeting is evidently inconsistent with the voting mechanism prescribed in the DMC.  According to the meeting minutes, a total of 14 votes were cast.  Based on Mr Cheung’s explanation, it would mean that each owner present in person or by proxy at the meeting was entitled to one vote.

105.  On the contrary, Clause VI.7 of the DMC provides:

“Every Owner shall have one vote for each Undivided Share in the Land and the Block vested in him and in the case of Owners who together are entitled to one such Undivided Share such Owners shall jointly have one vote for each Undivided Share and in case of dispute the first named of such Owners shall have the right to vote.”

Schedule 1 to the DMC went on to stipulate that the owner(s) of each flat shall have 20 undivided shares, and those of each car parking space shall have one undivided share.[18]

106.  In the light of the provisions of the DMC, there was no legal basis for the IO to have counted only one vote for each owner attending the 2^nd Owners’ Meeting.  For instance, an owner who owned one flat and two car parking spaces should be entitled to 22 votes (which corresponded to his undivided shares in the Building).  Mr Cheung was unable to explain in his testimony why the voting mechanism adopted at the 2^nd Owners’ Meeting was inconsistent with that prescribed in the DMC.

107.  It is noteworthy, by contrast, that the IO adhered to the voting mechanism prescribed in the DMC at the subsequent general meetings of owners, in that the votes were counted by reference to the owners’ respective undivided shares in the Building rather than one vote per owner.

(1)  The 3^rd Owners’ Meeting, presided by Mr Cheung, was attended by 20 owners.  §§2 and 3.1 of the meeting minutes approved by Mr Cheung[19] recorded that a total of 405 votes were cast in relation to the resolutions thereunder.

(2)  The general meeting of owners on 16 May 2019, presided by Mr Cheung, was attended by 14 owners.  §§3 and 6 of the meeting minutes approved by Mr Cheung recorded that a total of 235 and 298 votes were cast in relation to the respective resolutions thereunder.

(3)  The general meeting of owners on 16 August 2019, presided by Mr Cheung, was attended by 17 owners.  §4 of the meeting minutes approved by Mr Cheung recorded that a total of 364 votes were cast in relation to the resolution thereunder.

108.  In view of these matters, I find that there was an anomaly in the voting mechanism adopted by the IO at the 2^nd Owners’ Meeting which is inconsistent with that prescribed in the DMC, thus rendering the 2^nd IO Resolution invalid.

109.  In the premises, I do not accept the IO’s submission that the 1^st IO Resolution and the MC Resolution have been superseded by any subsequent resolution passed at the 2^nd Owners’ Meeting.

110.  For the above reasons, I find that the IO remains bound by the 1^st IO Resolution and the MC Resolution to carry out, or cause to be carried out, repair works to the external walls outside Flat 2B.

G.  REMEDIES

G1.    Damages

111.  The plaintiff claims damages as follows: (1) the costs of repair at $73,500; (2) the costs of temporary accommodation during repair works were carried out in Flat 2B at $29,323; (3) the survey fees of BDC and Asian View Limited at $13,300 and $28,000 respectively; and (4) damages for inconvenience and loss of amenities at $115,117.

G1a.  Costs of repair

112.  The plaintiff claims the costs charged by her contractor named Sky One Engineering Limited (“Sky One”) for the repair works done to the internal Wall A, Wall B and Bedroom Ceiling in December 2018.[20] According to the invoice issued by Sky One dated 8 December 2018, the total costs of repair amounted to $73,500.

113.  The IO disputes the amount claimed by the plaintiff under this head. According to Mr Wong’s opinion, the reasonable costs of repair should be $18,345.

Item 1:  Demolition of defective concrete and repair works to Walls A, B and Bedroom Ceiling

114.  Sky One charged a sum of $32,000 for this item.  Mr Wong opined that a reasonable sum should be $4,200, representing the costs of replastering and repainting the Bedroom Ceiling (viz. 120 square feet x $35).

115.  I do not accept Mr Wong’s opinion in this respect.  He acknowledged in the Joint Statement that concrete spalling was found in Wall A, yet he did not provide for the costs of demolition of defective concrete and repair works to Wall A.  He did not explain why the size of the damaged area was 120 square feet only.  He provided no supporting evidence as to his claim that the cost of replastering and repainting one square foot of wall surface amounted to $35.

116.  I consider that the sum charged by Sky One for this item is reasonable. As I have found that the IO should not be held liable for the water seepage damage to Wall B (which accounted for 4.5% of the entire damaged areas), the total amount allowed under this item would be $30,560 ($32,000 x 95.5%).

Item 2:  Replastering and replacing wallpaper on Wall A

117.  Sky One charged a sum of $13,500 for this item.  Mr Wong opined that a reasonable sum should be $5,000, representing the costs of material and labour for replastering and replacing wallpaper on Wall A (viz. 100 square feet x $50).

118.  I do not accept Mr Wong’s opinion in this respect.  He provided no supporting evidence as to his claim that the costs of material and labour for replastering and replacing wallpaper amounted to $50 per square foot.  He was unable to explain why he did not allow for the contractor’s profit which was ordinarily charged by renovation contractors at 30% of the costs of material and labour, as he did in respect of Item 5 below.

119.  I consider that the sum charged by Sky One for this item at $13,500 is reasonable, and would allow the same in full. 

Item 3:  Replastering and replacing wallpaper on Wall B

120.  Sky One charged a sum of $8,000 for this item.  Since I have found that the IO should not be held liable for the water seepage damage to Wall B, I would not allow any sum in respect of this item.

Item 4:  Replastering and repainting of Bedroom Ceiling

121.  Sky One charged a sum of $12,000 for this item.  Mr Wong opined that a reasonable sum should be $4,500 (viz. 90 square feet x $50).

122.  Mr Wong adopted the same unit cost of $50 for this item as he did in respect of Item 2, meaning that he only allowed the costs of material and labour, but not the 30% contractor’s profit which he applied in Item 5 below. For the same reasons as stated above, I am unable to accept his opinion in this regard.

123.  I consider the sum charged by Sky One for this item at $12,000 to be reasonable, and would allow it in full.

Item 5:  Protection of floor tiles and furniture

124.  Sky One charged a sum of $6,000 for this item.  Mr Wong opined that a reasonable sum should be $2,145, representing material costs at $1,000, labour costs of one worker for half-day work at $650, and 30% contractor’s profit at $495.

125.  It seems to me that the sum charged by Sky One for this item is on the high side.  Mr Wong’s opinion appears to be a more reasonable estimate of costs, save that in respect of the labour costs, I would allow $1,300 for half-day work by 2 workers in view of the scope of protection work done in the living room and master bedroom of Flat 2B.

126.  In the premises, I would allow a sum of $2,990 [($1,000 + $1,300) x 1.3] as reasonable costs for this item.

Item 6:  Costs of wallpaper on Walls A and B

127.  Sky One charged a sum of $2,000 for this item.  Mr Wong opined that the costs of wallpaper should have been included in Items 2 and 3 above.

128.  The invoice issued by Sky One made it clear that the costs of wallpaper and the manual costs of replacing wallpaper were separately charged.  I consider the sum charged by Sky One for this item at $2,000 reasonable, and would allow it in full.

Summary

129.  In the premises, I would allow the plaintiff’s costs of repair at the total sum of $61,050 ($30,560 + $13,500 + $12,000 + $2,990 + $2,000).

G1b.  Costs of alternative accommodation

130.  According to the plaintiff’s case, because of the repair works carried out by Sky One in Flat 2B, she had to move to a serviced apartment near the Building named Bay Bridge Lifestyle Retreat between 9 December 2018 and 11 January 2019 (totalling 34 days).  She claims the costs of such alternative accommodation at $29,323, as evidenced by the invoice issued by Bay Bridge Lifestyle Retreat dated 30 November 2018.

131.  The IO disputes the amount claimed by the plaintiff under this head. According to Mr Wong’s opinion, the reasonable costs of alternative accommodation should be $5,600 ($800 x 7 days), on the basis that the replastering, repainting and replacement of wallpaper should only take 7 days, and the general market price of accommodation in 2019 was $800 per day.

132.  I do not accept Mr Wong’s opinion in this respect.  As explained above, he did not take into account the time required for the demolition of defective concrete and repair works to Wall A in view of the concrete spalling thereon. He also provided no supporting evidence as to his claim that the general market price of accommodation in 2019 was $800 per day.

133.  On the other hand, I am mindful of the plaintiff’s oral testimony that, in addition to the above repair works carried out by Sky One, she also engaged contractors to perform renovation works to the toilet walls and to replace all window frames in Flat 2B.  These additional works were not related to the water seepage problem caused by the defects in the external walls.  Accordingly, the IO should not be held liable for the costs of alternative accommodation incurred in respect of those works: 886HK Limited and Anor v Amjad Nadeem [2018] HKDC 405,[21] §22.

134.  In the Joint Statement, Mr Yeung opined that the repair and reinstatement works to Flat 2B in relation to the water seepage problem should take 14 days.  His evidence in this regard is not challenged.  On such basis, and taking into account the intervening Sundays and public holidays, I am of the view that it would be reasonable to allow the costs of alternative accommodation from 9 to 28 December 2018 (totalling 20 days) to be attributable to the repair works done to remedy the water seepage problem.

135.  In the circumstances, I would allow the rounded off sum of $17,249 ($29,323 x 20/34) under this head of claim.

G1c.  Survey fees

136.  The plaintiff claims the survey fees charged by BDC and Asian View Limited in respect of the preparation of Mr Yeung’s 1^st and 2^nd Reports.  These fees should form part of her legal costs incurred in these proceedings: Hong Kong Civil Procedure 2021, Vol. 1, §62/App/20(3); Yim Wai Ling and Anor v Yuen Chik Wah and Anor, DCCJ 663 of 2013 (12 August 2016), §95.  Thus I would not allow the same as damages.

G1d.  Damages for discomfort and inconvenience

137.  The plaintiff claims a sum of $115,117 under this head, relying on John So and Anor v Lau Hon Man and Others, CACV 110 of 1993 (5 October 1993), §43, and 886HK Limited, supra, §§8 and 23.  In John So, a sum of $10,000 was awarded under this head for water seepage and repair works which lasted for 2.5 months (at §17), whereas in 886HK Limited, the parties agreed a sum of $100,000 under this head for water seepage and repair works which lasted for around 4.5 years (at §§7, 11 and 19).

138.  The IO contends that no damages should be awarded under this head since water seepage had ceased before the IO received Mr Wong’s Report in September 2019.  This contention is, in my view, misplaced.   It is well established that damages for nuisance are assessed by reference to the interference with the plaintiff’s enjoyment of her property: 886HK Limited, supra, §§8 and 9(d); McGregor on Damages (21^st ed, 2020), §§39-020 and 39-021.  In my judgment, the plaintiff suffered discomfort and inconvenience caused by the water seepage problem since early August 2017, and such nuisance only abated in late December 2018 when Sky One completed the repair works to the damaged areas in Flat 2B.  All in all, the nuisance lasted for around 17 months.

139.  Furthermore, the IO disputes the admissibility of §5 of the plaintiff’s witness statement, as well as the sick leave certificates and referral letters issued by the plaintiff’s treating doctors, in respect of her claim that she suffered neck injury, left shoulder injury and eczema between September 2017 and September 2018 as a result of the distress caused by the water seepage problem.  It is noteworthy that the plaintiff has not adduced any expert medical evidence to support the alleged causal relationship between the water seepage problem and her injuries.  In the absence of such expert medical evidence, I place no weight on her claim and documents adduced in this regard.

140.  Taking into account all the relevant circumstances, including the duration and scope of water seepage in Wall A and the Bedroom Ceiling of Flat 2B, and inflation since the awards in John So and 886HK Limited were made, I consider that a reasonable sum to be awarded under this head is $50,000.

G1e.  Summary

141.  In summary, the plaintiff is entitled to general damages for discomfort and inconvenience in the sum of $50,000, and special damages for costs of repair and alternative accommodation in the total sum of $78,299 ($61,050 + $17,249).

G2.    Injunctive relief

142.  The plaintiff claims a mandatory injunction that the IO shall carry out repair works to the external walls outside Flat 2B.  The IO argues that there is no urgency for repair works to be carried out on the external walls because (1) the repair works done by Sky One have abated water seepage, and (2) the IO has resolved to perform major repair works to all external walls of the Building.

143.  In my view, while it is common ground that the repair works done by Sky One to the internal walls of Flat 2B have abated water seepage, the defects in the external walls outside Flat 2B, viz. the debonding of mosaic tiles, cracks and spalling of concrete, remain in place up to date.  If no repair works are carried out to the external walls, it is highly likely that water seepage would resurface and cause recurrent damage to Flat 2B.

144.  As stated above, even though the IO resolved at the 3^rd Owners’ Meeting to perform major repair works to all external walls of the Building, such resolution has not yet been implemented.  According to Mr Cheung’s testimony, no contractor has yet been appointed by the IO.  No time estimates have been provided by the IO as to when would the envisaged major repair works be carried out.

145.  In these circumstances, I find that damages alone would not be an adequate remedy to the plaintiff, and that a mandatory injunction is necessary and warranted in order to rectify the water seepage problem in Flat 2B.

146.  Having heard the parties on the proposed terms of the injunctive relief, I will make an order that the IO do rectify or cause to be rectified the defects in the external Walls A, C and D within 70 days from the date of this judgment.

H.  CONCLUSIONS AND ORDERS

147.  For the above reasons, I find that the water seepage problem in Wall A and the Bedroom Ceiling of Flat 2B was caused by the defects in the external walls (viz. Walls A, C and D) for which the IO is liable.  The IO is also bound by the 1^st IO Resolution and the MC Resolution to carry out, or cause to be carried out, repair works to the external walls of the Building.

148.  There will be an order that the IO do rectify or cause to be rectified the defects in the external Walls A, C and D within 70 days from the date of this judgment.

149.  I allow the plaintiff’s claims for general damages for discomfort and inconvenience in the sum of $50,000, and special damages for costs of repair and alternative accommodation in the total sum of $78,299.

150.  I make an order nisi that the IO shall pay interest on (1) the award for general damages at 2% per annum from the date of service of the writ to the date of judgment, and (2) special damages at half of the judgment rate from 9 December 2018 to the date of judgment, thereafter at the judgment rate until full payment: Pierhead Garden Management Company Limited v The Incorporated Owners of Pierhead Garden [2021] HKCFI 678, §140.

151.  On the issue of costs, it is fair to say that the plaintiff is successful to a substantial extent on her claim raised in the action.  Overall, I think the IO should pay the plaintiff 80% of the costs of her claim.  As for the counterclaim, the IO should be regarded as the successful party since the plaintiff has paid the full amount of counterclaim, inclusive of interest, to the IO shortly after the counterclaim was issued.

152.  I therefore make an order nisi that:

(1)  the IO do pay 80% of the plaintiff’s costs of her claim, with certificate for counsel, to be taxed if not agreed;

(2)  the plaintiff do pay the IO’s costs of the counterclaim, to be taxed if not agreed; and

(3)  there be no order as to costs in respect of the parties’ joint letter dated 29 April 2021 on the further conduct of the part-heard trial.

The orders nisi shall become absolute upon the expiry of 14 days after the date of this judgment if there is no application to vary the same within the 14-day period.