WONG KIT MAN also known as WONG CARMEN KIT MAN AND ANOTHER v. THE INCORPORATED OWNERS OF KIU HING MANSION

DCCJ 1466/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1466 OF 2015

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JUDGMENT

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Introduction

1.  This is a dispute arising from water leakage in the plaintiff’s residential property.  The plaintiffs were the registered owners of the property known as Flat B, 26/F, Kiu Hing Mansion (the “Property”).  26^th floor was the top floor of Kiu Hing Mansion (the “Building”).  The defendant was the incorporated owners of the Building.  The plaintiffs commenced the present action against the defendant claiming that the Property suffered water leakage caused by the disrepair of the external wall (the “External Wall”) outside the Property.  The plaintiffs sought damages and an order mandating the defendant to repair the External Wall.

Background not in dispute

2.  Each floor of the Building has three flats, namely, Flat A, Flat B and Flat C.  All of them faced the same direction, namely, the windows of the living room facing King’s Road.  They did not adjoin each other.  They were separate.  Thus, each flat had one external wall facing King’s Road, and the left (facing Tin Hau Temple Road) and right (facing Lau Sin Street) of the flat also had one external wall.  Like all the flats of the Building, the windows of the living room (the “Living Room”) of the Property faced King’s Road.  Facing the windows, on the left (nearer Tin Hau Temple Street) of the Living Room was the largest bedroom (the “Large Bedroom”) of the Property.

3.  It was common ground that on the exterior of each of the three flats on 26^th floor, there had been a structure of similar size and similar shape at a similar location, namely, outside the parapet and just above the windows, starting from one end of the flat towards the other, although there was no evidence on since when the structures had been there.  It was also common ground that in respect of the Property and Flat 26C, above such a structure were eaves.  For convenience, I shall refer to such a structure and the eaves outside the Property as the “Supporting Structure” and the “Eaves”.  The Supporting Structure was about the size of 300 mm wide and 200 mm high.  In respect of the Eaves, the Buildings Department issued letters to the plaintiffs and the defendant respectively on 11 February 2015 and 1 April 2015, demanding the removal of the Eaves as unauthorized structure.  The Buildings Department, however, did not take any other action in respect of the Supporting Structure.  While the plaintiffs refused to describe the Eaves as illegal, there was no evidence before me to traverse the decision of the Buildings Department to issue the demand.  I thus find that the Eaves were an illegal structure.

4.  The Eaves were fixed onto the Supporting Structure with some metal supports affixed into the Supporting Structures, so that the Eaves were tilted slightly down with the metal supports.  The metals had rusted to a considerable extent.  Cracks were found on the Supporting Structures.  There was no evidence that the plaintiffs had since caused any maintenance or repair to the Eaves.

5.  Cracks were also found on the External Wall facing Tin Hau Temple Road of the Large Bedroom near the Supporting Structures.  Unlike the External Wall facing King’s Road, there were no eaves on this external wall facing Tin Hau Temple Road.

6.  There was no dispute that there was water leakage in the Large Bedroom and the Living Room Property.  In respect of the Large Bedroom, the damage caused by the water leakage was mainly found at and near the upper corner of the part of the External Wall facing Tin Hau Temple Street that that facing King’s Road.  In respect of the Living Room, damage was mainly found on the ceiling and the beam above the window of the Living Room.

Parties’ respective cases

7.  In gist, the plaintiffs’ case was that the water leakage constituted nuisance, that this nuisance was caused by the disrepair of the External Wall, and that the External Wall was a common part the repair and maintenance for which the defendant was responsible.  Thus, the plaintiffs claimed damages and a mandatory injunction mandating the defendant to repair the External Wall to prevent further water leakage.

8.  The defendant disagreed.  Its defence, in essence, was that the plaintiffs themselves caused the water leakage.  The defendant alleged that the plaintiffs’ construction of the Supporting Structure and the Eaves damaged the External Wall or the aging of the Supporting Structure and delamination of the waterproof membrane of the Eaves led to rainwater seepage through the External Wall.

9.  In their Amended Reply, the plaintiffs denied that the Supporting Structures and the Eaves were the causes of the water leakage.  Further, they denied having constructed the Supporting Structure, but admitted that the Eaves were constructed by them.  The plaintiffs further pleaded that in any event, those structures were constructed in reliance on the defendant’s representation that the plaintiffs were responsible for the External Wall and the defendant’s recommendation that the plaintiffs should follow Yuen Hing’s advice.  The plaintiffs further averred that they would be willing to remove the Eaves upon a Court order, the reason being, the 1^st plaintiff explained in her oral testimony, that if they removed the Eaves without the defendant agreeing to repair the External Wall, the Property would lose its protection by the Eaves from rainwater.

Issues

10.  Thus, in respect of liability, the issue is what was the cause of the water leakage.  More specifically, I have to decide (1) whether the water leakage was caused by the disrepair of the External Wall or whether it was caused by the damage occasioned by the Supporting Structure and/or the Eaves to the External Wall; and (2) if it was the latter, who should be responsible for such damage.

11.  There was also an issue arising from the plaintiffs’ claim based on the cause of action of misrepresentation.  The plaintiffs alleged that the defendant made two misrepresentations (one in 2000 and the other in 2003) to the plaintiffs in reliance on which the plaintiffs caused certain works (including the construction of the Eaves and the Supporting Structure, if I was to find that the Supporting Structure was constructed by the plaintiffs) to be done to address the water leakage problem. I shall further discuss them in the analysis of the relevant parts of the evidence below.

12.  The last main issue arises from the defendant’s counterclaim, namely, whether the plaintiffs should remove the Supporting Structure and the Eaves.

Evidence and fact-findings

13.  The 1^st plaintiff gave oral evidence for the plaintiffs.  Mr Chan Chung Fai (“Mr Chan”) of the manager of the Building (the “Manager”) gave oral evidence for the defendant.  Mr Chan started his employment with the Manager only in 2008.  He knew nothing that took place prior to 2008.  Not even from any records, because according to him, the Manager did not have any records.  Therefore, my main task is to assess the 1^st plaintiff’s evidence against the defendant’s limited evidence, which, as will be seen, did not traverse much of the 1^st plaintiff in respect of events subsequent to 2008.

1998 – 2000

14.  The plaintiffs purchased the Property in October 1998.  They obtained possession of the Property shortly thereafter.  They alleged that shortly after they obtained possession of the Property, they discovered cracks on the concrete ceilings and water leakage in the bedrooms and the Living Room.  They had some repair works carried out to address the problem.  They moved into the Property in 1999.  A few months later, they discovered water stain on the wall of the Large Bedroom.  The situation became worse during the rainy seasons in 1999.  They complained to one Mr Chow of the Manager, but he did not undertake any remedial work.  Instead, Mr Chow told them, according to paragraph 8 of the 1^st plaintiff’s witness statement, that:-

“The repair of the Building will take place soon. This will not be done now. You should tell the contractor when the repair will take place.” (my literal translation)

15.  Thus waited the plaintiffs.

2000 – 2003

16.  In November 2000, by which time the water leakage problem had become even worse, the repair of the Building happened to take place.  The contractor for the repair of the Building was one Yuen Hing (my transliteration).  Meanwhile, the plaintiffs complained to the Manager again about the water leakage problem in the Property.  According to paragraph 11 of the 1^st plaintiff’s witness statement, one Mr Chow of the Manager represented in response that:-

“This location is irrelevant to the Building, and thus the incorporated owners would not pay. You have to pay the contractor to solve it out of your own pocket.” (my literal translation).

The 1^st plaintiff alleged that though doubting the truthfulness of the representation that the water leakage location was a private area, the plaintiffs then contacted Yuen Hing.  Yuen Hing suggested waterproofing work and adding the Eaves onto the Supporting Structure.

17.  The two quotes of Mr Chow’s representation in paragraphs 14 and 16 above constituted the alleged first misrepresentation made by the defendant to the plaintiffs.  However, the plea for this alleged misrepresentation, found in paragraph 8(2) of the Amended Statement of Claim, was that:-

“Mr Chow denied the Defendant’s liability for the said water seepage and/or leakage and represented orally to the Plaintiffs that it was the Plaintiffs’ own responsibility to repair the External Walls and [the Roof] (“the 1^st Misrepresentation”).”

18.  Clearly, the evidence does not fit the plea.  In the first quote, Mr Chow simply told the plaintiffs to wait, without saying who was responsible.  In the second quote, “this location” in the context should mean the location of the water leakage in the Property.  This location, being the interior, and was a private area, but not a common part.  Thus, the defendant would not be responsible.  I do not find that such a representation was false.  Any contention of the plaintiffs that “this location” meant the External Wall and/or the Roof must be rejected as out of context. 

19.  In their desperate attempt, the plaintiffs also rely on the quotation issued by Yuen Hing in August 2000 stating that the work done to the exterior was private work.  The quotation was given by Yuen Hing, not the defendant.  Although Yuen Hing was the defendant’s contractor in respect of the repair of the Building, Yuen Hing was not an agent for the defendant in dealing with the plaintiffs’ water leakage problem.  At most, it was that the defendant recommended Yuen Hing to the plaintiffs.

20.  Thus, I find that there was no 1^st Misrepresentation.

21.  According to the plaintiffs’ evidence, before taking up Yuen Hing’s suggestion to add the Eaves, the plaintiffs made an enquiry with Mr Chow about whether or not the Manager would remove the Eaves. Mr Chow answered, according to paragraph 14 of the 1^st plaintiff’s witness statement, that:-

“Yuen Hing is our contractor. If they think doing so could allay the water leakage, then you just do it, but you should not have it exceed certain lengths, and that would be okay.” (my literal translation)

22.  Thus, in reliance on this assurance or “recommendation” (an expression used in the plaintiffs’ Amended Reply), they engaged Yuen Hing to carry out some construction works on the roof immediately above the Property (the “Roof”) and the External Wall.  In particular, as appeared from the quotation issued by Yuen Hing on 30 August 2000, construction of the Eaves was to be done.  In carrying out the works, the workers of Yuen Hing told the plaintiffs that there were cracks in the External Wall facing King’s Road and some cracks were large enough to allow fingers to put in.  According to the plaintiffs, the construction works were finished in around November 2000. 

23.  While the Statement of Claim pleaded that after the work in 2000, “the water seepage and/or leakage suspended” and the Amended Statement of Claim pleaded that “the water seepage and/or leakage suspended temporarily”, the 1^st plaintiff, giving evidence for the plaintiffs, alleged that the water leakage still recurred as a matter of months later when there were rains.  I find the plaintiff’s evidence in this respect incredible.  The receipt issued by Yuen Hing for the work contained a clause of warranty for five years.  When asked about this warranty, the plaintiffs alleged for the first time that they did request Yuen Hing to follow up, and they also requested the Manager to contact Yuen Hing to follow up, and that however they received no response. I do not believe such allegation.  If it were true, it would be natural that the 1^st plaintiff would have mentioned such important matter in her witness statement.  In disbelieving such allegation, I also pay regard to the subsequent qualification of the suspension of water leakage by adding the word “temporarily” in the Amended Statement of Claim as mentioned above. 

24.  Having considered the above evidence, I find that there was water leakage prior to 2000, but there was no water leakage from 2000 onwards until 2003 as found below.

25.  In her evidence, she alleged that in 2003, she engaged another contractor Chun Tat to carry out works to address the recurring water leakage problem and she paid HK$13,000.  Based on this receipt, she claimed part of her alleged monetary loss, alleging that she caused such works to be done as a result of her reliance on the 1^st Misrepresentation.  However, the items on the receipt issued by Chun Tat, for example, painting all the walls of the Property and replacement of basins, did not relate to any water leakage problem at all.  In cross-examination, the 1^st plaintiff pointed out that part of the painting of the walls and the repair of the beam in a room related to the water leakage.  Nevertheless, it is not clear at all whether these works were necessitated by any water leakage, or by some other causes.  What is clear is that the 1^st plaintiff exaggerated her monetary loss.  In assessing her overall credibility especially in respect of her alleged loss, I should bear this in mind.

26.  That said, I accept her evidence that there was indeed water leakage in 2003, on the strength of a handwritten slip dated 22 November 2003 issued by the Manager to the plaintiffs saying that “the relevant waterproofing work on the roof had been finished on 21 November 2003”.  This slip showed that there must have been some communication between the plaintiffs and the Manager in respect concerning water leakage in the Property, and as a result, the Manager caused waterproofing works to be carried out on the Roof.  I also find that after the works on the Roof, water leakage was resolved; otherwise, the plaintiffs would have made complaints and the defendant would have followed up.

27.  I pause here to note that the parties agreed that the Roof was not the cause of the water leakage now under complaint in the present action.  It follows that if there were any water leakage caused by the disrepair in the Roof in the past, this was just some background only, and is irrelevant to the resolution of the dispute before me.  However, I must also bear in mind that whenever there were any works done on the Roof purportedly to address any water leakage, it does not necessarily follow that the water leakage must have been caused by the disrepair of the Roof.  Without any evidence of investigation into the cause of water leakage, it is equally possible that at the time, the parties wrongly thought that the water leakage was caused by the disrepair of the Roof, but actually it was caused by something else, for example, disrepair of or damage to the External Wall.

28.  It remains for me to point out here that while the plaintiffs pleaded in the Amended Statement of Claim that in 2003, the defendant, through the Manager, made another representation similar to the 1^st Misrepresentation, the repair of the Roof done by the Manager, which was evidence corroborated by the handwritten slip and accepted by me, does not sit well with such alleged representation.  Indeed, in the 1^st plaintiff’s evidence, she did not mention any such representation in 2003.  Thus, I find that there was no 2^nd Misrepresentation.

2003 – 2007

29.  According to the 1^st plaintiff’s evidence, the plaintiffs moved out of the Property in 2003, considering whether or not to let out the Property, leaving some belongings in the Property and sometimes allowing their overseas relatives to stay in the other bedroom without water leakage when they came back to Hong Kong.  Eventually, the plaintiffs did let out the Property in 2007.  It is unclear from the 1^st plaintiff’s witness statement whether or not there was any water leakage between 2003 and 2007, although in the witness box, she alleged that the leakage still persisted and it would become obvious during rains. 

30.  What is clear is that there was no evidence of any works carried out in the period in relation to any water leakage until 2007.  Nor was there any evidence of complaint.  In the circumstances, I find that the water leakage did not recur for the period from 2003 to 2007.

2007

31.  Before letting it out in 2007, the plaintiffs engaged a contractor called Chun Tat to carry out works including waterproofing of the Roof and patching up the interior with water leakage.  The plaintiffs successfully let out the Property in April 2007, to commence on 1 June 2007.

32.  Also in April 2007, knowing that the repair of the Building was to take place later, the plaintiffs complained to the Manager about the water leakage.  In reply, the Manager referred the matter to its contractor W&K.  However, nothing was done in response except a visit paid by a Mr Ho of the Manager.

33.  In May 2007, the plaintiffs sought advice from one contractor named Blente Marble on how to solve the water leakage problem. Blente Marble gave the plaintiffs a quotation suggesting waterproofing works on the Roof.  However, the plaintiffs did not accept this suggestion, thinking that it was the defendant who was responsible for the Roof.  She said that prior to that, around 2003, she had been talking with the neighbours and became aware that the External Wall must be within the defendant’s responsibility.  As a result, the plaintiffs only requested Blente Marble to carry out waterproofing works in the corner of the Large Bedroom.

34.  In December 2007, the tenant complained to the plaintiffs about water leakage from the ceiling of the Property.  In turn, the plaintiffs complained to the Manager.  However, there was no response. 

35.  The repair of the Building took pace towards the end of 2007.  Neither the contractor nor the defendant requested the plaintiffs to remove the Eaves. 

36.  All these show overwhelmingly, and I so find, that towards April 2007, there had been water leakage in the Property again. In making this finding, I have not overlooked the defendant’s contention that had there been water leakage, the tenancy agreement with the tenant (as well as all subsequent tenancy agreements) would have stipulated in the plaintiffs’ interest that the Property had water leakage problem.  It was understandable why the plaintiffs did not stipulate such conditions of the Property – as the 1^st plaintiff explained, had they done so, they would encounter difficulty in letting out the Property.

2007 – 2013

37.  In 2009, the tenancy terminated prematurely. The 1^st plaintiff alleged that it was due to the persistence of the water leakage in the Property.  Since then until 2013, the Property was let out.  The 1^st plaintiff alleged that the rate was lower than the market rate, relying on two advertisements distributed by estate agents in 2016.  One advertisement referred to “Kiu Hing Mansion” with “new renovation” (my translation) at an asking monthly rent of HK$23,000 and the other referred to “Kiu Hing Mansion” with “beautifully renovated large bedroom” (my translation) at an asking monthly rent of HK$25,000.  Putting aside that there was no expert valuation done pursuant to Master’s Order of 21 March 2016, these advertisements of asking rents, not professional valuation, not telling exactly what the flats in question and not for the relevant periods, obviously do not assist me in finding the market rate.  In a nutshell, there is no evidence whatsoever before me to show the market rate at any material time.  Thus, I make no finding that the rates of the tenancy agreements were lower than the market rates. 

38.  In late February 2013, the tenant at that time moved away, according to the plaintiffs, again due to the water leakage.  The plaintiffs complained to the Manager.  Mr Chan of the Manager told them to repair the interior of the Property first, so as to demonstrate that any water leakage was caused by the exterior but not the interior of the Property.  The plaintiffs were resigned to do so, and spent HK$18,000 for the repair.  Water leakage persisted.  As a result, on 15 April 2013, the Manager finally engaged a contractor to do the injection work in the interior of the Property to fill up the cracks in the walls of the Large Bedroom.  That such injection works were carried out was not in dispute.  Against this undisputed backdrop, I accept the 1^st plaintiff’s evidence that there was water leakage in late February 2013 and the Manager did require the plaintiffs to, and the plaintiffs did, carry out interior works.

39.  Unfortunately, shortly after the injection work, on 16 June 2013, when an estate agent was inspecting the Property with a potential tenant, they discovered that there was water leakage in the Living Room.  The plaintiffs complained again to the Manager.  The defendant also accepted that there was such a complaint in June 2013.

40.  There was no evidence before me as to any works carried out after 2007 until 2013.  It must follow from my finding of water leakage in 2007 that the problem continued thereafter, and did not stop despite the injection work carried out in 2013.

2014

41.  In 2014, the plaintiffs sought advice from another contractor.  It suggested removal of the Eaves, to be paid by the plaintiffs, and repair the cracks in the External Wall, to be paid by the defendant.  The plaintiffs chose to remove the Eaves only.  However, according to the plaintiffs, the defendant refused to allow the plaintiffs to remove the Eaves.  Apparently, the refusal was because the plaintiffs requested the defendant to promise to ensure that there would not be any water leakage after removal of the Eaves.

42.  Some correspondence between the parties themselves ensued.  In essence, the plaintiffs demanded the defendant to solve the water leakage problem, while the defendant demanded the plaintiffs to remove the Eaves, alleging that the Eaves were the cause of the water leakage.

Summary of fact-findings

43.  In summary, I make the following findings:-

(1)  The Property suffered water leakage before 2000.

(2)  The Property ceased to suffer water leakage from 2000 to 2003.

(3)  The Property has suffered water leakage in 2003.

(4)  The water leakage ceased after the Roof was repaired in 2003.

(5)  Water leakage recurred in 2007 and has not ceased since then.

(6)  The plaintiffs carried out the interior works in the Property in 2013 because the defendant asked the plaintiffs to do so to prove that the water leakage was not due to the exterior.

(7)  Since around 2003, the plaintiffs must have been aware that the defendant was responsible for the External Wall and the Roof.

(8)  The Eaves were added in 2000 upon the defendant’s assurance that they would not be removed.

(9)  There were no 1^st and 2^nd Misrepresentations, and thus they could not have relied on any of the Misrepresentations since then.

44.  In respect of the 1^st and 2^nd Misrepresentations, besides the factual findings that there were no such Misrepresentations and no reliance, I add that they were not actionable because of the time limit by virtue of section 4 of the Limitation Ordinance (Cap 347).  The loss allegedly suffered by the plaintiffs in reliance on the Misrepresentations were incurred the latest in 2007, more than 6 years before the present action was commenced.  Further, given that even according to the plaintiffs, they became aware that the defendant was responsible for the External Wall and the Roof in around 2003, any time extension they may invoke under section 31 of the Limitation Ordinance would not assist them.  Insofar as the plaintiffs alleged that the repair done in 2013 was done in reliance on the Misrepresentations, I reject such allegation given my finding as summarised in paragraph 43(6) above.

45.  There is one factual determination I have yet to make, namely, whether the Supporting Structure was added by the plaintiffs as alleged by the defendant or whether it had existed by the time when the plaintiffs purchased the Property in 1998 as alleged by them.  Since the expert evidence to be analysed below touched upon this issue, I shall leave the matter to be determined there.

Expert evidence

46.  As regards the cause of the water seepage, each side adduced an expert report on the cause of the water seepage and the quantum of the damages.  Mr Andi Hau of Hong Kong Building Inspection & Structural Diagnostic Limited prepared his report for the plaintiffs on 23 October 2014. For that purpose, Mr Andi Hau conducted, by himself or by his colleagues, three inspections respectively on 1, 12 and 14 August 2014.  Mr Jacob Tsang of K&K Chartered Architect & Associates prepared his report on 15 June 2015 for the defendant.  For that purpose, Mr Jacob Tsang conducted one inspection on 4 June 2015.  Mr Andi Hau and Mr Jacob Tsang prepared a joint expert report on 8 July 2016.  For that purpose, they carried out a joint inspection on 20 May 2016.  The scopes of their reports were both to identify the causes of the water leakage and the quantum for remedial works, but no others.

47.  Both experts agreed that there was damage to the decoration and fitting out works within the Property as a result of the water seepage, and that the damage was mainly found at the ceiling and upper wall portion of the Living Room and the Large Bedroom.  However, they disagreed over the cause of the water seepage and the quantum of the work to remedy the damage.

48.  For the quantum, the difference between Mr Hau (HK$60,000) and Mr Tsang (HK$51,000) was HK$9,000 only.  While it was the duty of the court to decide, this would be disproportionate in spending time and costs on this difference at trial.  On the first day of the trial, I asked whether the parties could agree to a sum, and the parties sensibly came back with an agreed figure HK$55,500.

Disagreements between experts

49.  In relation to the causes of the water leakage, the following particular disagreements were identified in the joint expert report:-

(1)  Whether or not water seeped through the Supporting Structure as the only path of the water seepage.

(2)  Whether or not the Eaves and the Supporting Structure had any effect on the water-permeability of the External Walls.

(3)  Whether or not the existence of the Eaves and the Supporting Structure, even not causing water seepage at the beginning when they were installed, caused water seepage subsequently as a result of poor workmanship, substandard materials and/or lack of maintenance.

(4)  Whether or not the Eaves and the Supporting Structure themselves were damage to the external walls.

For convenience, I shall refer to them as “Expert Issue (1)”, “Expert Issue (2)”, “Expert Issue (3)” and “Expert Issue (4)” respectively.

Preliminary issue – Supporting Structure

50.  One preliminary issue arose from the clarification made by Mr Hau in his examination-in-chief in respect of the Supporting Structure.  In essence, his clarification was that the Supporting Structure was a lintel as part of the Building according to the building plan approved by the Buildings Department; in other words, the Supporting Structure was not an added structure as alleged by the defendant. 

51.  Perhaps because of the definition “Additional Structure” used in the pleadings to describe the Supporting Structure, it had not been clear to me that whether or not the Supporting Structure was part of the Building was an issue.  The impression I had after reading the pleadings and the evidence was that the issue had been whether or not the Supporting Structure had already existed by 1998 when the plaintiffs purchased the Property, and this would be purely a factual issue.  The parties seemed to be labouring under a similar impression until Mr Hau’s evidence.  Otherwise, there would have been expert evidence on whether or not the Supporting Structure was part of the Building.

52.  Be that as it may, Mr Tsang disagreed to Mr Hau’s opinion.  He testified that it was structurally impossible to have the Supporting Structure as part of the Building.  He did refer in his expert report to the building plans, and he did opine that this Supporting Structure was added subsequently.  However, as I said, the experts were directed to give opinion on the causes of the water leakage and the quantum, but no others. While the issue of whether or not the Supporting Structure was part of the Building was briefly discussed in the joint expert report, it was discussed incidentally.  Mr Hau, in his cross-examination, time and again said that he did not make his clarification earlier because he was instructed to determine the causes of the water leakage and the quantum only, and in fact, in the joint expert report, he just referred to the plaintiffs’ instructions that the Supporting Structure had existed before their purchase of the Property. Although having read Mr Tsang’s report, he must have been aware that a dispute existed between the parties over who constructed the Supporting Structure, I accept that due to the scope of the terms of reference, he did not really investigate whether or not the Supporting Structure was part of the Building, but instead, relied upon the plaintiffs’ instructions that the Supporting Structure had already existed by the time of the plaintiffs’ purchase of the Property in 1998.  In the circumstances, I do not think that there was any sufficient evidence before me to allow me to make a finding of whether or not the Supporting Structure was part of the Building.  However, having analysed the evidence as below, I do find that the Supporting Structure had already existed by 1998.

(1)  Outside each of the three flats on 26^th floor, there had been a structure of similar size and similar shape at a similar location.  It is inherently unlikely that the plaintiffs could add the Supporting Structure of such similarities to the Property.

(2)  In the quotation issued by Yuen Hing in 2000 for adding the Eaves, there was not an item about adding such a structure, which was a large and heavy structure and the addition of which must involve some metal supports installed into the External Wall.  If Yuen Hing added the Supporting Structure, it is inherently unlikely that the quotation would not reflect this substantial item.

(3)  Although the 1^st plaintiff became aware of the existence of the Supporting Structure only in 2014 when Mr Tsang’s report was served on the plaintiffs, she was adamant that the Supporting Structure should have existed before she purchased the Property in 1998.  While I reject this answer as illogical and unbelievable, (1) and (2) above still stand.

53.  The Supporting Structure had already existed by 1998 perhaps because it was part of the Building as planned, or because sometime prior to 1998, the Supporting Structure was added around the same time as the similar structures added to Flats A and C.  The true cause, however, is unimportant for the present purpose.  What is important is that before the plaintiffs’ purchase of the Property, the Supporting Structure had already existed on the exterior of the Building.  Whether the Supporting Structure was a common part or whether it was subsequently added onto the exterior, this fell within the responsibility of the defendant, because it was responsible for common parts and to take any action in respect of any structure added onto common parts.

Expert Issue (1)

54.  In respect of Expert Issue (1), there was no dispute that rainwater seeped through the cracks on the Supporting Structure into the Living Room.  There was however dispute over where the water came from to the corner of the Large Bedroom.

55.  Mr Hau opined that the water seeped through the cracks on the External Wall of the Large Bedroom facing Tin Hau Temple Street. Mr Tsang disagreed.  He relied on the microwave moisture measurement results obtained by Mr Hau.  The results showed that there was little moisture in the cracks while there was significant moisture found near the corner of the Large Bedroom, which was adjacent to the External Wall facing King’s Road.  He explained that if the water seeped through the cracks, there should have been substantial moisture found near the cracks.  He further opined that the water leakage in the Large Bedroom was also caused by the water seeping through the cracks found on the part of the Supporting Structure outside the Large Bedroom.

56.  To this, Mr Hau only said that it was possible for the water to travel through the ceiling to the corner.  However, he did not explain why the moisture in the cracks would be so little.

57.  Having considered their explanations, I accept Mr Tsang’s opinion that though there were cracks in the External Wall of the Large Bedroom facing Tin Hau Temple Street, water did not seep through those cracks.  Instead, the water leakage was caused by the water seepage through the cracks on the Supporting Structure.

58.  In summary, I find that the water leakage in the Living Room and the Large Bedroom was caused by the water seepage through the Supporting Structure.

Expert Issues (2) – (4)

59.  I shall consider Expert Issues (2) to (4) together.  They boil down to this: whether the Supporting Structure and the Eaves caused damage to the External Wall such that water seeped through.

60.  In respect of the Supporting Structure, Mr Tsang opined, on the basis that the Supporting Structure was an addition, that there must have been metals connecting the Supporting Structure and embedded into the External Wall as a result of the addition, and such embedment must have had adverse impact on the structure of the External Wall.  I accept that as a matter of common sense.  I go further to find that whether or not the Supporting Structure was an addition or part of the Building, there bound to be such metal embedment into the External Wall.  I do not understand Mr Hau to dispute that; in fact, he said that “the water seepage could be travelled [sic] via the exterior cracks and voids in the Premises”.  What he said appeared to be (in my view inappropriately for an expert to do so) that the Eaves and the Supporting Structure were authorised by the defendant and thus it was the responsibility for the defendant. 

61.  The real question is how in the first place the water could seep through the Supporting Structure into the External Wall and thus into the Property.  If this was due to the fault of the plaintiffs, the defendant would not be liable to the water leakage.  The converse is also true.

62.  As I described in paragraph 4 above, the metal supports of the Eaves affixed into the Supporting Structure rusted.  Mr Tsang explained that in all likelihood, the metals embedded inside the Supporting Structure had also rusted.  He further explained that when the metals rusted, it would expand, and thus cause and enlarge cracks inside, letting water seep through.  Mr Hau did not dispute that, but simply advanced an argument (again, inappropriately as an expert) that since the Supporting Structure was a common part, the defendant should be responsible for the cracks.  In the circumstances, I have no doubt in accepting Mr Tsang’s opinion.  This is also consistent with my finding that after the construction of the Eaves in 2000, the water leakage ceased until 2003, that it recurred in 2003 but ceased again after the repair of the Roof in 2003, and that it recurred again in 2007 and has since then been there.  It was the gradual process of rusting that caused and expanded the cracks in the Supporting Structure so much so that the water leakage recurred in 2007 and the continuance thereafter.   

Summary of fact-finding in respect of the causes of the water leakage

63.  In summary, I find that it was the rusting of the Eaves constructed by the plaintiffs that caused cracks on the Supporting Structure, and through these cracks, water seeped through into the External Wall and into the Property.

Liability in respect of the water leakage

64.  The Eaves were constructed upon the plaintiffs’ instruction.  Although the Supporting Structure fell within the responsibility of the defendant, it was the Eaves that caused the cracks on the Supporting Structure for the water to seep through leading to the water leakage in the Property.  Thus, the defendant was not liable for the water leakage.

65.  In coming to this conclusion, I have considered the plaintiffs’ submission that the causation of the water leakage, even on a finding that the Eaves damaged the Supporting Structure to allow water to seep through, was broken by the defendant’s failure to discharge its statutory duty under section 18 of the Building Management Ordinance (Cap 344) to maintain the exterior including the Supporting Structure.  The plaintiffs’ argument was like this.  Even if the plaintiffs damaged the Supporting Structure to the extent that water seeped through to cause the water leakage, the defendant was still liable to maintain the Supporting Structure as a common part or as a part allowed onto the exterior on the common part, and the defendant’s failure to do so in breach of its statutory duty was the causation of the water leakage, or broke the causation initiated by the damage of the Eaves.  In such a situation, the plaintiffs argued, the defendant should do the maintenance first, and then claim the plaintiffs for damages for the loss and damage caused by the plaintiffs’ Eaves. 

66.  I reject the plaintiffs’ argument.   But for the Eaves, there would not have been such damage, and there would not have been water seepage into the Property.  The plaintiffs must have reasonably foreseen that there would be water leakage if they added the Eaves which were bound to cause damage to the Supporting Structure when time passed by without proper maintenance of the Eaves.  The plaintiffs must also have reasonably foreseen that the defendant would not promptly maintain and repair the Supporting Structure especially when the Eaves were still there, despite the maintenance and repair of the Supporting Structure being the defendant’s duty.  Thus, the failure to maintain did not break the causation. 

67.  The situation here would be better understood if a third party is the wrongdoer.  A third party damaged the external wall.  The damage caused the water leakage to the plaintiff’s property.  The plaintiff sued the building management for failure to maintain and keep the external wall from damage by outsiders.  The building management issued a third party notice against that third party.  The third party cannot be heard to mount a defence against the building management claim that because the building management did not repair the damage on the external wall done by the third party, the third party should not be liable.  The question would just be whether the building management should start the repair meanwhile claiming against the third party.  It would be a question of whether the building management had taken reasonable steps to mitigate.

68.  In the present case, it must be remembered that the water leakage occurred inside the Property, and the cause of the water leakage was not clearly known.  Insofar as it was thought that the Roof was the cause, the defendant did repair the Roof in 2003.  In 2007, the plaintiffs complained to the defendant about water leakage inside the Property, but the cause was not known, and the plaintiffs did not chase the defendant for response.  (I should add that while the defendant had a duty to maintain the exterior of the Building, it did not have any duty to investigate the cause of water leakage in the Property.)  Insofar as it was found after the interior work in 2013 that the exterior was the cause, the defendant did the injection work and required the plaintiffs to remove the Eaves.  The defendant, in my view, had taken reasonable steps.  The causation of the water leakage was not broken.

69.  Finally, I have not overlooked the plaintiffs’ allegation that the Eaves were constructed upon the 1^st Misrepresentation and the assurance or recommendation by the defendant.  In respect of the 1^st Misrepresentation, I have already found that there was none as alleged.  In respect of the assurance or recommendation, it must be understood in context.  The assurance or recommendation was given in response to the plaintiffs’ enquiry of whether the defendant would remove the Eaves, and thus the answer was that the defendant would not because it was recommended by Yuen Hing and that the plaintiffs could do so without worrying that they would be removed.  Such assurance or recommendation could by no means be regarded as instructions, authorisation, estoppel or acquiescence in respect of the Eaves.  It was after all the plaintiffs’ own decision to adopt Yuen Hing’s suggestion to add the Eaves.

70.  In any event, given that the Eaves were illegal, the defendant simply did not have any authority to instruct, authorise, allow or acquiesce in the construction: see Hollywood Shopping Centre Owners Committee Limited v The Incorporated Owners of Wing Wah Building Mongkok Kowloon, HCA 1582/2007, 16 August 2010 at paragraphs 48 – 56 per Recorder Yuen SC.  The plaintiffs undertook the construction at their own risk.

Counterclaim

71.  In the circumstances, the Eaves must be removed, and the Supporting Structure has to be reinstated.  For reinstatement, I accept the plaintiffs’ evidence that in 2000 when the Eaves were added, there had already been cracks on the Supporting Structure.  However, practically, it is impossible to know what exactly were the conditions as at that time.  Thus, doing the best I can, the reinstatement here I shall order is, insofar as practicable, to remove also all the metal supports on and embedded into the Supporting Structure and re-fill the cracks caused by such metal supports and the removal of the Supporting Structure and such metal supports.

72.  As regards the Supporting Structure, since this was not added by the plaintiffs, they are not liable to remove this structure even assuming that it was not part of the Building as planned.  On the contrary, as part of the exterior, the defendant is responsible for the Supporting Structure.  It is the defendant’s decision whether to remove it or not.  Further, for example, if after the proper reinstatement by the plaintiffs as shall be ordered, water seeps through the Supporting Structure, it would appear that the defendant would be liable.  I emphasise here that the defendant also, and it must in any event, acknowledge that it is liable to maintain the exterior of the Building.  I also emphasise that my finding above that its failure to maintain the Supporting Structure did not break the causation is related to the causation of the water leakage in the specific context of the present case, but should not be understood to mean that the defendant is not responsible for the exterior of the Building even after the proper reinstatement of the Supporting Structure.

Conclusion

73.  In conclusion,

(1)  The plaintiffs’ claim shall be dismissed.

(2)  The defendant’s counterclaim shall be allowed to the extent that the plaintiffs shall remove the Eaves (but not the Supporting Structure) and reinstate the Supporting Structure in the manner prescribed in paragraph 71 above within 8 weeks from today, with liberty for both parties to apply. 

   (In this regard, as I mentioned above, it is practically impossible to restore the Supporting Structure back to the conditions as at 2000.  The parties should be sensible in the implementation of this Order.  Any dispute arising from the implementation of this Order should be resolved economically and proportionately, hopefully not to necessitate another round of expert evidence as to whether this Order has been properly implemented or not. After all, the plaintiffs and the defendant, though not physically living there, share common interest and common good in the Building.  After all, the defendant is liable to maintain the exterior of the Building.  The parties should take any adversarial resolution of the dispute as the last resort.

   Also, at the risk of stating the obvious, the 8 weeks I grant should not prejudice any actions which the Buildings Department shall think fit to take.)

(3)  Costs should follow the event.  However, a considerable time was spent on the liability in respect of the Supporting Structure, an issue which the defendant has lost.  I shall broadly assess that 25% of the costs has been spent on this issue.  Thus, I make a costs order nisi that the plaintiffs shall pay the defendant 75% of the costs (including all costs reserved) with certificate for counsel, to be taxed if not agreed.