方寶儀 v. 涵碧別墅業主立案法團

LDBM 320/2014

[2023] HKLdT 39

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 320 OF 2014

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BETWEEN

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JUDGMENT

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The Applications

1.  This is a hearing for assessment of damages. There is a related summons for an injunction against the 1^st respondent which is heard at the same time.

Background Facts

2.  The applicant is the owner of Flat No. 4B, Block 6, Hamburg Villa, Nos. 8 & 10 Eastbourne Road, Kowloon Tong, Kowloon, Hong Kong (“Flat 4B”). Flat 4B is one of the units on the top floor of Block 6, Hamburg Villa. And the 1^st respondent is the incorporated owners of Hamburg Villa.

3.  There is an earlier action, LDBM 87/2010, when the applicant claims against the 1^st respondent for leakage of water through the roof to Flat 4B. It is found after trial (with judgment given on 27 January 2012 by Deputy District Judge Kot (as she then was)) that the source of leakage was from a flushing water tank on the roof which is to be maintained by the 1^st respondent. Damages was awarded to the applicant including costs for renovation of Flat 4B.

4.  And after the judgment in LDBM 87/2010, it is the applicant’s case that, renovation was carried out at Flat 4B. Then the applicant found that there is further water leakage to Flat 4B causing further damages to Flat 4B, which is the subject claim of this application which has been taken out in 2014.

5.  Initially, the applicant acted in person but later she is acting through solicitors. According to the Re-re-amended Notice of Application filed on 25 July 2016, the applicant avers that the 2^nd respondent is the owner of Flat 4A of the said Block 6, the other unit on the top floor of Block 6 adjacent to Flat 4B. The roofs on Flat 4A and Flat 4B are in the management and control of the 1^st respondent. It is claimed that, in breach of the Deed of Mutual Covenant applicable to the Hamburg Villa, the 2^nd respondent wrongfully occupied the roof and erected fence to the roof, which damaged the waterproofing membrane in the floor slab of the roof, causing water to seep or leak into Flat 4B one month after the said renovation was completed. It is claimed that the 1^st respondent also has liability. While the applicant has discontinued the claim against the 2^nd respondent, this is the background information which has to be considered with the claim for injunction which I shall come to later.

Damages and Reliefs Claimed

6.  The applicant set out the items of damages that she claims that are due to leakage in her Re-re-amended Notice of Application, including –

a. Renovation works $561,500

b. Costs for moving out to alternate accommodation $676,760

c. Nuisance and inconvenience $80,000

7.  These are still the 3 main items of claims in this assessment. Given the time between the Re-re-amended Notice of Application and the assessment, there are updating to the claims in these items. I refer to the closing submission of Ms. Lau, counsel for the applicant for the amount of damages. Relying on the opinion of the expert Mr. Stewart Wong, the costs of renovation is claimed at $782,250. The costs of alternate accommodation during renovation work and accommodation expenses when the applicant has moved out at different periods between 2015 to 2019 is claimed at the total of $325,000. Additional claim for damaged items (including a television set, a sofa, a cabinet and some furs) at $117,800. Damages for nuisance and inconvenience is claimed at $450,000.

8.  While I am at the claim of damages, there was at one stage an application by the applicant to further amend her application to include some medical expenses and related heads of claim. I have indicated that these may be personal injury claims. Without ruling on jurisdiction, I alert the applicant there would be the additional medical expert evidence required. And on reflection, the applicant agrees to withdraw the application.

9.  The applicant also claims against the 2^nd respondent for an order to remove the unauthorized structure on the roof over Flat 4A (which is later discontinued) and that upon removal, the 1^st respondent shall repair and maintain the waterproof membrane/layer of the roof over Flat 4A and Flat 4B. The unauthorized structure on the roof over Flat 4A has been removed and the injunctive relief is in respect of the repair to the waterproofing membrane/layer which I shall come to shortly.

Interlocutory Judgment and Injunction Claim

10.  It is not disputed that the roof is part of the common parts of Hamburg Villa and in the control of the 1^st respondent, and they have the duty to maintain. By a notice of admission filed by the 1^st respondent on 17 June 2016, the 1^st respondent admitted the liability caused by leakage from common areas and would only dispute the quantum of damages. For some reason, no application for interlocutory judgment has been taken out or has the case be set down for trial/assessment. The parties did seek directions on evidence. In particular, leakage expert reports have been obtained. The matter has been ongoing for some time and there is no concrete progress.

11.  Only by a summons taken out by the applicant dated 21 January 2022, the applicant seeks interlocutory judgement on liability with damages to be assessed, and some injunctive relief. By an order given by this Tribunal upon agreement of parties on 18 February 2022 (“the February Order”), and based on the Re-re-amended Notice of Application filed on 25 July 2016, it is ordered that interlocutory judgment be entered against the 1^st respondent with damages to be assessed.

12.  The summons also seeks the following injunctive reliefs –

I. The 1^st respondent, whether by itself, its servants, agents or otherwise, until further order of the Tribunal, be restrained from causing water seepage to [Flat 4B];

II. The parties shall adopt the repair methodology as proposed by the applicant’s expert Mr. Stewart Wong, that is to cover the whole roof of [Flat 4B] and the adjacent Flat No. 4A, including the curb dividing the roof above [Flat 4B] and Flat No. 4A;

13.  There is no agreement on the methodology of repair and the application for injunction is adjourned to be argued with the assessment of damages. Case management directions has been given. By the February Order, leave was granted to the applicant to file and serve the expert report of Mr. Stewart Wong on the repair methodology. (Mr. Stewart Wong has also given expert report on the costs of renovation of Flat 4B which I shall come to later.) The expert of the 1^st respondent, Mr. Simon Cheung has filed and served his expert report in reply and the experts have filed and exchanged the updated joint expert reports. (Mr. Simon Cheung has also commented on the costs of renovation.)

14.  The matter came before me for assessment of damages and for injunctive reliefs.

15.  Mr. Wong, counsel for the 1^st respondent submits that the 1^st respondent has no objection to an order that the respondent shall carry out all necessary repair and/or remedial work to the waterproofing membrane of the roof against leakage, but without specification on the methodology.

List of Issues

16.  I adopt the analysis of issues for determination as set out by Mr. Wong. There are 2 main areas for determination. First on quantum of the damages, and the issues are –

i. What is the extent of damage caused by the water seepage to Flat 4B;

ii. What is the reasonable cost of repair for the extent of damage caused to Flat 4B;

iii. Whether and to what extent application should be allowed to claim for relocation and transport expenses; and

iv. What should be the appropriate amount of damages to be awarded for nuisance and inconvenience.

17.  The second area in dispute is on the injunctive relief, that whether a certain methodology as suggested by the expert of the applicant shall be stipulated for the repair of the roof in the order.

The Applicant’s case (Factual Witnesses)

18.  There are 3 witnesses for the applicant, the applicant herself, her son Mr. Lee Wing Ho (“AW-2”), and the expert Mr. Stewart Wong (“AW-3”).

19.  I start with the evidence of the applicant herself. She adopted her witness statements dated 12 June 2016, 15 August 2016, 10 April 2017 and 22 September 2022 as her evidence-in-chief, and produced the exhibits attached thereto.

20.  The applicant said there were unauthorized structures on the roofs of both Flat 4A and Flat 4B. In 2006, the Building Authority issued order for the illegal structures to be removed. After the applicant had removed the illegal structure, rain water leaked into Flat 4B during a heavy rain. As a result, her tenant claimed against her for damages, which she paid. Her tenant later left. The applicant engaged contractor to lay 3 layers of waterproofing membrane.

21.  And in 2007, the 2^nd respondent’s contractor demolished the unauthorized structure he built. It was raining and water leaked into Flat 4B, and units at 2^nd and 3^rd floors. The applicant claimed against the 2^nd respondent for damages.

22.  And in 2008, the flushing water tank leaked and caused leakage into Flat 4B again. This resulted in her application against the 1^st respondent in Lands Tribunal under application LDBM 87/2010 and it was order by this Tribunal on 27 January 2012 that

“57. 法庭頒令：

i. 答辯人須在本命令頒下的三個月內，維修該大廈天台防水層及鹹水箱;

ii. 答辯人須付申請人維修該單位的工程費用176,900元；

iii. 答辯人須付申請人以往維修該單位及天台防水層的工程費用158,100元；

iv. 答辯人須付申請人在維修該單位期間需支付的臨時住宿開支62,500元；

v. 申請人就滋擾的申索被撤銷；

vi. 申請人須在本命令頒下的三個月內，清拆天台圍欄及護牆；

vii. 除以上第vi段外，答辯人其他的反申索項目被撤銷；

viii. 本命令附加罰則通知；

ix. 本命令無須親自派送；

x. 答辯人須付申請人本案的訟費，…”

23.  According to the applicant, the 1^st respondent had repaired/maintained the roof in 2012. And in or about September or October 2012, water ponding test for leakage has been carried out and there was no leakage. And in late 2012 to 9 February 2013, she renovated Flat 4B.

24.  But in mid-March 2013, after some heavy rain, water leakage appeared again in the ceiling of Flat 4B and she raised complaints to the 1st respondent. She also engaged expert to investigate the leakage in April 2013.

25.  The applicant complains that the 1st respondent refused to maintain the roof and had claimed that the leakage was from the external wall. At the request of the applicant, another ponding test for leakage was carried out in 12 July 2013 with no leakage identified.

26.  The applicant claims that the leakage is caused by the workdone by the 2^nd respondent when he removed the unauthorized structure from his roof over Flat 4A in 2007 as aforesaid.

27.  The applicant also produced a quotation from Yum On Engineering Co which set out the costs of remedial work to Flat 4B, which was given on 12 April 2016. The quotation has been analysed by AW-3 to assess the costs of renovation which I shall come to later.

28.  The witness statement dated 15 August 2016 is more a submission on production of supplemental expert report. And the expert report attached is by another Mr. Wong which is not relied on by the applicant.

29.  The witness statement dated 10 April 2017 is prepared with the assistance of the applicant’s solicitors. In support of her claims for damages, she sets out the damage to the various areas in Flat 4B due to leakage. She said the rendering of the ceiling and wall of the sitting room is damaged by the water leakage with some photographs produced. She also refers to the report of her expert and said the steel bar in the ceiling slab is rusted seriously in a number of opened up areas in the ceiling.

30.  She also said the fax machine and telephone set in the sitting room had been damaged by the moisture and dust. There was an old television which has been damaged. A sofa in the sitting room had also been damaged. She claimed for compensation for these items. During cross examination, she said the items had been discarded. No receipt or evidence has been produced on their price when acquired. In her last witness statement dated 22 September 2022 (which I shall come to shortly), she claims $4,800 for the television, and $30,000 for the sofa. She also claims the loss of a small cabinet in the sum of $3,000.

31.  And for the master bedroom, the applicant also claims that the ceiling has been affected by the leakage. Paint and dust would fall from the ceiling after heavy rain. The areas in the ceiling opened up by the expert also show that the steel bar has heavy rusting.

32.  She also claimed that the wardrobe is damaged. And she had to replace the bed.

33.  As for the room for helper, there were cracks on the rendering on the ceiling. After heavy rain, paint or dust would drop from the ceiling. And due to high humidity, the bed was damaged and she had to replace the bed.

34.  For the corridor, the ceiling has cracks. Paint or dust would drop after heavy rain. And the areas opened up by expert show that the steel bar was heavily rusted. The wooden flooring was damaged, that it turned black, and come loose.

35.  The ceiling of the guest toilet has the same problem of cracks and I do not repeat. The wooden cabinet therein was damaged and replaced by a mirror.

36.  The ceiling of the master toilet has the same problem of cracks including the rusting steel bar.

37.  For the guest rooms, one of them has false ceiling and because of the water leakage, the false ceiling has collapsed. For the other guest room, the ceiling has cracks on the rendering and concrete. Paint and dust would fall after heavy rain.

38.  She also gives a breakdown of the costs for renovating Flat 4B in the sum of $461,580, which was based on the expert report of AW-3 dated 15 August 2016. She further claims–

i. Cleaning, replacing the electric wiring at the flooring, and alternate accommodation at the total sum of $81,000;

ii. In respect of her clothing and other accessories used for her professional performance, she claims the costs for moving them to storage and returning at the charge of $88,260; and

iii. Replacing a new wardrobe for the master bedroom at $47,000.

39.  These figures are further updated in the latest report of AW-3. I would instead consider the similar with the updated claims in the report of AW-3 later. The applicant also claims for loss arising from nuisance and disturbance which I shall come to in the submission of her counsel. She also claims reimbursement for expert fees.

40.  The last witness statement from the applicant is dated 22 September 2022. She submits that the waterproofing membrane/layer of the roof should be repaired according to the methodology of her expert AW-3, given in his expert report. She repeats that the ceiling inside Flat 4B is badly damaged and there has been incidence when stone piece came off from the ceiling (石塊整塊脫落掉下). She also complains that the 1^st respondent has not treated her complaints seriously. They were delaying the repair/maintenance work.

41.  And further, the applicant has some additional heads of claims for damages including –

i. Costs for alternate accommodation – the applicant has to move out from Flat 4B due to the humidity and condition from time to time. She claims rental expenses for the period from May - October 2015, August - October 2016, June - October 2017, July & August 2018, May – September 2019 for the total sum of $175,000.

ii. 8 pieces of fur which were damaged by the humidity and she claims the sum of $80,000.

42.  Mr. Wong, counsel for the 1^st respondent questioned the applicant on her need for alternate accommodation between 2015 to 2019. The applicant said it was due to her asthma and she could not stand the humidity and dust. She moved out herself to rent a room from a landlady. She agrees that she has no rental receipt because the landlady does not want to be involved. And she cannot give the address. She only has the receipt when she stayed in hotel which has been given to her former solicitors.

43.  Mr. Wong put to the applicant that she has not suffered loss of sofa, television and furs because of the leakage which the applicant reconfirmed her evidence. But no receipt for their price or value has been produced, save some photographs of the furs.

44.  Mr. Wong put to the applicant that she has not renovated Flat 4B after receiving the damages in LDBM 87/2010, which is denied.

45.  And there is an exhibit to the witness statement which is another quotation from her contractor and the costs of repair exceeds $1.5 million. As this is not relied on by Ms. Lau, I do not have to deal with the quotation.

46.  The other factual witness for the applicant is her son Lee Wing Ho, AW-2. He adopted his witness statement dated 22 September 2022 as his evidence-in-chief together with the exhibits thereto attached.

47.  He said since 2013, the wall of Flat 4B attached to Flat 4A started to have concrete peeling. The ceiling of the sitting room started to have water mark.

48.  He said in April or May 2013, he received an anonymous letter with photo showing that the whole roof become flooded after rain. It was suspected that there was no waterway on the roof.

49.  AW-2 has taken a number of photographs and videos which have been produced by the applicant in her witness statement. AW-2 said in the water testing on 3 December 2013 by the owner of Flat 4A, the surrounding wall had leakage. And the ceiling of Flat 4B had bulges and the paint and concrete peel off. The ceiling on the staircase outside Flat 4A and Flat 4B also had leakage with dust dropping.

50.  AW-2 said Flat 4A had carried out waterproofing construction. But the 2^nd respondent was not co-operative with water ponding test and at one stage, the 1^st respondent had to issue written warning on the wall of the carpark (with a photo produced) asking people to keep away as there was peeling of external wall. AW-2 had reported to Police. Upon his complaint about Flat 4A, Building Authority visited Flat 4B on 4 June 2015 and issue a letter to the 1^st respondent on 3 July 2015. The letter is produced and the Building Authority said after inspection at Flat 4B, the meeting point between ceiling and wall has leakage (天花頂與牆身交界有滲水情況). The 1^st respondent was requested to maintain the building. But AW-2 said the 1^st respondent has failed to follow up.

51.  AW-2 also produced a number of photographs of the conditions of Flat 4B which shows that there were open crashes in the premises. Steel bars are visible.

52.  The other witness for the applicant is Mr. Stewart Wong, AW-3, the expert. I shall consider his evidence with the other experts later.

The 1^st Respondent’s case (Factual Witness)

53.  The respondent has one factual witness, 潘潤冰女士 (“RW-1”) and one expert witness Mr. Simon Cheung (“RW-2”).

54.  RW-1 adopted her witness statement dated 27 April 2022 as her evidence-in-chief. RW-1 is the current chairperson of the 1^st respondent. She gives her witness statement in response to the witness statement of the applicant.

55.  On reasonable or necessary renovation for Flat 4B, RW-1 is repeating the expert opinion of RW-2 dated 15 January 2016 and submits that leakage was caused by aging of the waterproofing membrane/layer of the roof causing leakage to occur at a wall inside Flat 4B which is adjacent to Flat 4A, and a wall near the air-conditioner. According to RW-2, there is no leakage in other areas in Flat 4B. RW-1 admits that the wall of the sitting room was affected by the leakage and should be repaired by the 1^st respondent. However, there is no evidence to suggest that the ceiling of the sitting room of Flat 4B was affected by leakage.

56.  As for the master bedroom, room for helper, kitchen, corridor, guest room, the 2 toilets, she claims that there is no expert evidence to prove that they are caused by leakage from the roof and the 1^st respondent does not have to bear the costs of repair.

57.  RW-1 also refers to the witness statement of the former chairperson of the 1^st respondent, 鄭冠民先生, dated 18 July 2017. (As Mr. Cheng has not attend the trial, no weight is given to his witness statement.) In particular, she refers to a quotation attached to the witness statement of Mr. Cheng, which RW-1 said it was prepared by the contractor of the 1^st respondent who had entered Flat 4B for inspection. Though the quotation was prepared 5-6 years ago, it is useful for reference purpose. I presume she is referring to the areas in Flat 4B that the 1^st respondent accepts it has been affected by leakage.

58.  I do not give weight to the quotation as they are out of date and the maker has not given evidence. Anyway, RW-2 has commented on the updated quotation/valuation of AW-3 and I would consider later. RW-1 is not an expert and she cannot give opinion evidence of costs of repair.

59.  RW-1 also submits that only part of the living room has been affected by the leakage and there is no reason for the applicant to move out of Flat 4B during the period as claimed. Further, the applicant does not have to move away her clothing and accessories for performance.

60.  As for the repair of the waterproofing membrane/layer of the roof, she submits that the 1^st respondent only need to carry out the work as recommended by RW-2. Between 4-8 April 2022, the work has been done and she believes there is no further leakage to Flat 4B. She complains that the applicant has refused to allow the 1^st respondent to carry out test against leakage.

Expert Evidence

61.  There are 2 experts and I begin with the evidence of AW-3. He has prepared a number of solo reports, and 2 joint reports with RW-2. He has given a list setting out his qualification, and in gist, he is a building engineer with a number of membership in different professional bodies. Mr. Wong has cross examined him on his expertise as surveyor but at the closing, Mr. Wong only disputes the credibility of AW-3.

62.  I start with the first report of AW-3 dated 15 August 2016, prepared on the instruction of the applicant. AW-3 is of the opinion that the leakage in Flat 4B originated from the roof of Hamburg Villa. I remind myself that liability has been admitted and for this trial, the report gives the background to consider the injunction reliefs. No ponding test has been conducted with this report. AW-3 tested the moisture percentage and the temperature at different places in Flat 4B.

63.  Based on the said quotation from Yun On Engineering Co, AW-3 commented on the costs of renovation/repair, and come to his opinion that the costs is the total sum of $461,680. I shall come to these item with updated costs given in his later reports. Alternate accommodation is recommended.

64.  He produced a joint report prepared with RW-2 in March 2019. According to paragraph 2, the report was prepared according to the order of this Tribunal to investigation –

a. Origin of water seepage

b. The cause of water seepage

c. The quantum of damages caused to the applicant

65.  There were some photographs taken and AW-3 opines that the damage to Flat 4B, at different locations in Flat 4B are caused by leakage from the roof.

66.  AW-3 and RW-2 have carried out green water ponding test on the roof for 72 hours. AW-3 also commented on the temperature change of the roof as he measured from the ceiling of Flat 4B. He opines that this is proof of misplacing of heat insulation material in the floor slab of the roof. As a result of failing to install heat insulation material in the floor slab of the roof, the high temperature in the floor of the roof caused more concrete spalling in the ceiling of Flat 4B.

67.  It would be easier to compare the opinion given by RW-2 at this juncture. And RW-2 is a Chartered Building Surveyor. His other qualification has been set out in his reports and there is no dispute.

68.  According to the statement of RW-2 in the said joint report, he has been appointed as the expert of the respondent. He has visited Hamburg Villa 16 times from late November 2015 to Mid-March 2019. He has not taken any temperature survey until he knew it was an issue raised by AW-3. He said he did not feel or experience any high temperature at the common areas or internal areas of Flat 4B during site visit or water leakage test. And he commented that reinforced concrete and cement screeding is not perfect insulation building materials. Slightly higher temperature is reasonable.

69.  And further, no open up investigation has been carried out to the floor slab of the roof and RW-2 considered it not appropriate to opine on the insulation structure of the roof.

70.  He also refers to Buildings Department’s Code of Practice for Overall Thermal Transfer Value issued in April 1995. As Hamburg Villa was built before the Code, it is not applicable.

71.  RW-2 opines that, after the test in 2015 and the green water ponding test in 2019, no water leakage, or water seepage from the roof to Flat 4B was detected. Therefore, no repair work has to be carried out by the 1^st respondent.

72.  Green water ponding test has been carried out for 3 days. According to AW-3, green colour spots appeared at the living room and the common staircase leading to Flat 4A and Flat 4B. AW-3 also relies on change of humidity to prove that there was leakage to other areas of Flat 4B. This is not agreed by RW-2 who retains his observation that there is no leakage detected.

73.  AW-3 recommended the following works to be carried out for renovation (and his revised figures in the 2^nd joint report is set out in brackets with figures in italic font for comparison) –

a	To repair all the rusted steel bars (The amount amended in the 2nd joint report due to area affected and market price)	$114,000   ($166,250)
b.	To pave polymer modified repair mortar on ceiling (Same amount in the 2nd joint report)	$47,500
c.	To remove debris (The amount amended in the 2nd joint report due to market price)	$13,000   ($30,000)
d.	To re-paint all walls (Same amount in the 2nd joint report)	$105,000
e.	To replace all electricity sockets (Same amount in the 2nd joint report)	$60,000
f.	New electricity meter box (Same amount in the 2nd joint report)	$8,500
g.	To replace all teak wood flooring (The amount amended in the 2nd joint report due to market price)	$120,000   ($144,000)
h.	To replace all teak wood skirting (The amount amended in the 2nd joint report )	$10,000   ($15,000)
i.	To replace timber for the main entrance (Same amount in the 2nd joint report)	$8,000
j.	To repair and repaint 7 timber room doors (The amount amended in the 2nd joint report due to change in unit price)	$14,000   ($21,000)
k.	Replacement of one wardrobe in master bedroom (The amount varied to claim replacement for 2 wardrobes)	$15,000     ($35,000)
l.	All the above together with insurance, protection for the furniture, engaging service of Authorised Person for making application to Building Authority, general cleaning gives a total of HK$560,000.
	(The insurance, protection for furniture, service of Authorised Person, general cleaning has been slightly amended in the 2nd joint report. With additional items of storage of household and transportation, the total claim is $782,250, with another claims for alternate accommodation during renovation for 3 months at $150,000.)

74.  I shall analysis these figures in the 2^nd joint report later. RW-2 made no comments to these figures in the 1^st joint report as he retains his view that no repair work is required.

75.  AW-3 has commented on the damages for nuisance and this is a legal issue for counsel. This part of his report would not be considered when I come to assess the damages for nuisance and inconvenience.

76.  AW-3 also adduced a report dated 28 June 2021 when he claims to attend Flat 4B for a follow up inspection on 26 June 2021. On cross examination, he said there were heavy rain on 23 June to 26 June 2021, and the condition of the roof is equivalent to water ponding test. He had to go back to check. Mr. Wong challenges him that he has not informed the expert of the 1^st respondent before he proceeded to carry out the examination. He said the applicant’s solicitors should have notified the 1^st respondent but he agrees that RW-2 was not present. Mr. Wong also puts to AW-3 that there is no order from this Tribunal to carry out the test. But AW-3 said not everything needs direction from this Tribunal.

77.  In this report, AW-3 measured the moisture at different locations in Flat 4B and said if the moisture reading is or over 35, it indicates affection by water seepage from the roof above Flat 4B. In summing up, he commented that water seeps through the roof. Further, “water presently seeps through the floor area of the roof between [Flat 4B] and [Flat 4A] bringing in water seepage dampening and damaging to the ceiling of living room of [Flat 4B]”. There are no details on why he could come to this conclusion in the report.

78.  And he recommended new waterproofing work to be made which covers the roof of both Flat 4A and Flat 4B. There is a modified version on the methodology in his later report.

79.  In the trial bundles, there is some correspondence/discussion between the 2 experts about a joint report that was carried out in 2022 after the February Order. RW-2 has prepared a single expert report dated 23 November 2021. It is stated that the report was conducted pursuant to the orders of this Tribunal given on 22 July 2021 and 2 September 2021. 72 hours’ coloured water ponding test was carried out.

80.  A patch of pale blue dye stain was observed on the ceiling and internal wall of the guest room. RW-2 is of the opinion that the stain was caused by defective common facilities of the waterproofing membrane as installed by the appointed contractor of the 1^st respondent in 2020. Reinstatement works to the room was recommended but no suggestion was given as to repair the defective workdone by the contractor. (As a remark, it is the case of the 1^st respondent that maintenance to the waterproofing membrane has been carried out in 2020 and which the applicant said it has been carried out without her agreement or approval.)

81.  AW-3 has also provided a solo report dated 8 December 2021. He summarized his earlier report and I do not repeat. He has also given some assessment of the damages which I take is replaced by the next joint report I am coming to.

82.  I shall refer to the most up-to-date joint report from the experts given in March/April 2022 for the damages claimed, and the opinion by the experts on the reasonableness of the amount claimed. And as I am dealing with each head of claim, I would also consider if the “damage” is caused by water leakage and I have to rely on earlier findings by the experts which I have set out above.

Discussion and Ruling (Including consideration of the 2^nd joint report)

83.  Looking at the history given by the applicant, there was leakage through the roof before this action and that result in the judgment in LDBM 87/2010. It is not disputed that maintenance/repair has been done to the roof by the 1^st respondent after the judgment in 2012. As mentioned above, the initial water ponding test is negative.

84.  I could infer that any leakage arising from after this maintenance would be a problem from the waterproofing membrane as repaired. There was suggestion of aging of the waterproofing membrane by RW-2. As the waterproofing membrane must be part of the floor slab and common parts of the building, it has to be maintained by the 1^st respondent.

85.  The 1^st respondent has admitted liability and my assessment is to identify the damage to Flat 4B arising from leakage that happened after the 2012 maintenance, and the reasonable damages to be awarded.

86.  I shall start with the costs to repair all the spalled concrete and steel bars on the ceiling. AW-3 assessed there was an area of 950 sq ft x 70% would require renovation. (In the first joint report, AW-3 assessed 60% of the area would require repair.) RW-2 assessed only 18 sq meters (about 180 sq ft) of spalled concrete area, and that require renovation.

87.  One has to assess if the ceiling and wall problem is caused by the leakage through the roof (including the waterproofing membrane). As early as the test done by Building Authority in 2015, there is leakage found. There shows that the maintenance of the roof is not satisfactory, or that the aging has worsen. And the damages from leakage has to be compensated by the 1^st respondent.

88.  Even at the examination by RW-2 in November 2021, there is water leakage into a guest room of Flat 4B. This is done after the maintenance to the waterproofing membrane in 2020. One could infer that the original condition would be worse and this supports the evidence of the applicant. Cracks and damped ceiling are observable, even without expert assistance.

89.  The area affected is the main dispute. RW-1 and RW-2 submits that it is limited to one area in the sitting and one guest room.

90.  From the various spalled concrete areas from the photographs, they are all over the place. I consider AW-2 a very reliable witness and the photographs he took can show that the ceiling of all parts in Flat 4B have been affected in different locations. There may be difference in seriousness. While Mr. Wong has commented on the answers given by the applicant as set out in his closing submission and submits that she is not reliable, which I do not repeat. Having considered her evidence, I am not convinced that she is not reliable. There are matters she claimed that I disallow later, but that would not affect the overall credibility of the applicant.

91.  With the expert reports prepared at different times, and the evidence of the applicant and AW-2, I have no hesitation to conclude that the leakage has occurred after LDBM 87/2010, and continued. I also accept the evidence of the applicant on the areas affected. Mr. Wong seeks to argue that only the sitting room and the guest room has leakage and therefore the area in other parts with leakage or damage is caused by the leakage in the last occasion, I do not agree.

92.  Mr. Wong argues that the applicant has not renovated Flat 4B after the judgment given in 2012. There is no direct evidence from the 1^st respondent that the applicant has not carried out any renovation after the last action. Being the incorporated owners, they would be in a position to show the Tribunal the record if no workers entered Flat 4B for renovation in 2012/2013. Having considered the evidence of the applicant, I do not agree with Mr. Wong that the applicant has not renovated Flat 4B.

93.  In the situation, I found that the ceiling of Flat 4B has been damaged by the leakage and the 1^st respondent has to compensate the applicant for reasonable costs of repair and maintenance. And it would not be useful to maintain the ceiling without repairing the steel bars. And straightly speaking, the steel bars are common parts and should be maintained by the 1^st respondent.

94.  RW-2 recommended patch repair, and that is the reason why the area recommending repair would be much less than the area assessed by AW-3. Patch repair could be engaged in some situation. But here we are dealing with 2 maintenance works on the floor slab of the roof. First, the waterproofing membrane/layer has to be repaired, which I shall come to shortly. Without the waterproof membrane repaired, there could be further damage to the steel bar through leakage in future.

95.  The roof is also supported by the steel bars, and is part of the whole building. For RW-2 to recommend patch repair, he has to ascertain the area being affected is limited to the exposed areas. No assessment has been done. On the balance, I prefer the methodology of AW-3 in carrying out the repair to the ceiling. And after all, he assesses 70% of the area that requires renovation and that would be a sensible approach.

96.  Mr. Wong has challenged the credibility of AW-3. I do observe that he has in some occasions been over conscientious to check the source of leakage. As an expert, he is not acting in the interest of the applicant only. He is to assist this Tribunal and acting according to the direction of this Tribunal is important, because his scope of opinion is to be given by direction of this Tribunal or so agreed between the parties. After cautioned myself on his evidence, I find his opinion is reliable.

97.  In conclusion, I accept the evidence of AW-3 and found that the costs of renovation of the ceiling and the wall is reasonable and necessary. I have compared the unit price suggested by AW-3 and RW-2 and consider that the unit price of AW-3 is reasonable. I take into account the inflation which is reflected in the increase of cost in the 2^nd joint report.

98.  The damages for renovation, which is items a-d of the items of works at paragraph 73 above, using the figures at the 2^nd joint report: $166,250 + $47,500 + $30,000 + $105,000 = $348,750.

99.  The second claim is for replacement of all electricity wiring and socket, and to replace the meter. There is no evidence that the electricity wiring has been damaged and why a new meter has to be replaced. But from the photographs, it can be observed that there are lighting and electric socket on the ceiling and the wall. Particularly with the ceiling, they could be damaged in the process of the renovation. There is incidence of leakage affecting some sockets. I would therefore allow 50% of the claim, i.e. $30,000. The claim for a new meter is rejected. There is an additional claim for replacing 12 light fittings in the 2^nd joint report. There is no explanation for the damage and I would disallow the claim. If those are the light fitting on the ceiling, they would be sufficiently covered by the award I just gave at $30,000.

100.  The claim for replacing all the teak wood flooring is disputed. It is not a situation that the leakage is dropping continuously onto the flooring. If so, the test result would be much more serious and easily observable. In conclusion, I would disallow this head of claim. For the same reason, I would disallow the claim to replace the teak wood skirting.

101.  AW-3 recommended the replacement of the main door and repair and repaint of 7 room doors. There is no explanation why these have to be replaced or repainted. I would therefore disallow these items. I would also disallow the claim to replace timber for the main entrance.

102.  It is claimed that 2 wardrobes were damaged by the leakage and the replacement would cost $35,000. (The applicant also claims $46,000 for wardrobes in her witness statement.) The evidence from the applicant is not clear, in particular how the wardrobes are so damaged that it has to be replaced. I would disallow this item.

103.  And to carry out the work I allowed, I agree that the contractor has to take out third party insurance. The value as recommended by both experts are close and I allow $5,000.

104.  And given that I allow a full renovation of the ceiling, moving out for a period for all residents is inevitable and reasonable. RW-2 suggested that one month would be sufficient. It may be so for patch repair but surely for a full renovation, a 3 months’ period is reasonable. AW-3 submits that a sum of $150,000 should be allowed which I agree. AW-3 also suggests $45,000 for costs of renting a storage place. Since I have allowed the alternate accommodation, it would also accommodate all personal belongings. The claim for storage is duplication and is disallowed. I would allow a sum of $20,000 for moving out and back to Flat 4B.

105.  And protection works at $10,000 is reasonable, which include protection for the teak wood flooring which I have not allowed replacement, and any furniture that may be left behind.

106.  AW-3 claims a sum of $30,000 for engaging authorized person to submit forms and report to Building Authority. RW-2 refers to the regime of minor works (item 2.15 MW), and opines that it is not required to appoint authorized person to submit forms, which I agree. This item is disallowed.

107.  The applicant claims costs for her accommodation in 2015 to 2019 in the total sum of $175,000. There is no proof of the rent/fees she paid. The suggestion that the landlady does not want to be involved would give her no evidence to support. The applicant must remember that the burden is on her to prove her damages. She has chosen not to give even the address or any proof of payment. On the balance, she could not establish her loss. I therefore disallow this claim as there is no evidential proof.

108.  The same difficulty with evidence for the claim of television set and sofa. They would be disallowed. And for the furs, again there is no proof of the costs. And the damage could not be reviewed from the photographs. The applicant said they were losing hair. Doing the best, and I accept her evidence, and this would be a case for a nominal sum for cleaning. I would allow $8,000.

109.  And finally, I allow the claim of $10,000 for cleaning works after completion of the renovation. The quantum is agreed by the experts.

110.  Summing up, I therefore allow the costs of renovation at the total sum of HK$ ($348,750 + $30,000 + $5,000 + $150,000 + $20,000 + $10,000 + $8,000 + $10,000) = $581,750.

111.  The claim for expert fees must be disbursement in the costs of the applicant and whether they are necessary and proper, and the reasonable amount would be matter for the taxing master.

112.  The applicant also claims general damages for nuisance and inconvenience and I consider that it is appropriate to award damages on the facts of this case. As for the amount, Mr. Wong submits that there is no scientific formula, which I agree.

113.  I note that the claim for nuisance and inconvenience was rejected in the former action. Hence I would only consider the period of inconvenience from 2013, when it is alleged that the new leakage commenced, up to the trial. It is not a short period of time.

114.  As commented by HH Judge Andrew Li in Lam Ting Kwan and Another v Teamwell Corporation Ltd DCCJ17/2016 at paragraph 141, that “the damages shall reflect the length, the degree and the extent of the water seepage. It should also reflect the lack of response and action on the part of the defendant over the years because they have aggravated the distress, inconvenience and discomfort experienced by the affected party.”

115.  In this case, the period would be around 10 years. I note the complaint by the applicant that the 1^st respondent has not responded to her complaints and have not taken earlier action. This can be seen from the expert report of RW-2 that in the test of 2021, there is still leakage, notwithstanding some repair work has been done by the 1^st respondent.

116.  In Lam Ting Kwan’s case, for a nuisance period of 8 years, $100,000 was awarded. Mr. Wong fairly refers to Cheung Wu Yau Tao v Chui Siu Har [2020] HKDC 885, that for a nuisance period of 10 years, a sum of $200,000 has been awarded. Ms. Lau submits that the damages should be assessed at $450,000 which is very much on the high side. I assess the sum at $180,000.

117.  The damages as assessed –

a. Renovation (including alternate accommodation during repair work) = $581,750

b. Damages for nuisance and inconvenience = $180,000

c. Claims by the applicant for alternate accommodate between 2015-2019 dismissed

Injunction

118.  That left me with the summons application for injunction.

119.  For the first injunctive relief, that “the 1^st respondent, whether by itself, its servants, agents or otherwise, until further order of the Tribunal, be restrained from causing water seepage to [Flat 4B]”, I assume this is an interim injunction. I do not have to deal with it. The main argument is whether to allow the second injunctive relief which reads –

“The parties shall adopt the repair methodology as proposed by the applicant’s expert Mr. Stewart Wong, that is to cover the whole roof of [Flat 4B] and the adjacent Flat No. 4A, including the curb dividing the roof above [Flat 4B] and Flat No. 4A;”

120.  In the 2^nd Affirmation of the applicant affirmed on 16 February 2022, the applicant exhibited the methodology of the waterproofing works as suggested by AW-3 and marked “FF-5”. I do not repeat all the contents.

121.  In gist, AW-3 recommended that waterproofing works has to be carried out for both the roof over Flat 4A and Flat 4B. He has also recommended the construction procedure and materials to be used. And besides waterproofing work, he further recommended installation of 2 inches of thermos form boards covering the entire floor of the roof of Flat 4A and Flat 4B.

122.  In opposition to the summons application, RW-1 has filed her affirmation dated 16 February 2022. She repeats that in or about October 2020, the 1^st respondent has engaged a contractor, Yucheng Engineering Company to replace the waterproofing layer on the roof above Flat 4B. Thereafter, no complaint of leakage was received from the applicant.

123.  She also refers to the report by RW-2 that there was leakage detected in the test carried out in 2021 and adopted the opinion of RW-2 given in his single expert report dated 23 November 2021, and claims that the leakage was due to defective common facilities of the waterproofing membrane carried out by Yucheng. She is of the view that the reinstatement works should be confined to the waterproofing layer on the roof above Flat 4B.

124.  She also refers to the opinion of RW-2 and said that the repair should be partial, as the source of leakage on the roof above Flat 4B was tiny and limited. The 1^st respondent would oppose repairing the whole roof, including the areas over Flat 4A, Flat 4B and the curb. RW-1 also raised the concern that the occupier of Flat 4A may be affected.

125.  I also refer to the joint report of the experts on methodology as directed by the February Order.

126.  On the methodology, AW-3 stated that after the repair to the roof in 2020, there is still seeping from the roof into Flat 4B whenever there is rain. He therefore commented that the contractor failed to put thermos form board serving as heat insulator under laid the floor screeding. He suggests that both of the waterproofing membrane and the thermos installation board layer have to be replaced.

127.  AW-3 also refers to the unauthorized structure erected on Flat 4A and opines that the waterproofing membrane has been damaged when it was erected, and further tampered when it was removed. When cross examined, he refers to a photograph to show the size and location of the structure.

128.  RW-2 opines that the full replacement of new waterproofing layer is not necessary. He opines that after the test in November 2021, only a small area in the guest room has sign of leakage. He therefore recommended to adopt patch repair.

129.  He also said that there is no statutory requirement to insert the polyfoam insulation of the main roof. It is an extra requirement which he does not recommend.

130.  I would start with whether the whole roof (over both Flat 4A and Flat 4B) should be repaired. As RW-2 agrees, this is one of the way to prevent leakage. But the applicant should only be entitled to what is sufficient and the question is whether repairing the roof to Flat 4B is sufficient.

131.  The difficulty with repairing the roof over Flat 4A is that, there is no evidence on the condition of the roof, or if there is any leakage to Flat 4A. And the claim against the 2^nd respondent has been discontinued. The 2^nd respondent would not have a chance to comment if they agree to the workdone. While the roof is the common parts, the work may affect Flat 4A and there is no reason why they should not be heard before this Tribunal could direct the 1^st respondent to carry out works that may affect his (or his tenant/licensee) enjoyment of Flat 4A.

132.  The unauthorized structure on Flat 4A has been removed and there is no evidence on whether the waterproofing membrane on Flat 4A has been damaged when the structure was removed. And the water ponding test was conducted over Flat 4B and the curb. The suggestion that the damaged part of the waterproofing membrane at Flat 4A would affect Flat 4B is not supported with proof. The opinion of AW-3 could be guesswork.

133.  Hence on the area of repair, I am prepared to direct that the 1^st respondent shall cover the roof of Flat 4B.

134.  Whether there should be a heat insulation layer on the roof is not an issue in this application. If AW-3 is to establish that the lack of heat insulation layer would create leakage, he has to give full reason for his opinion. I note that AW-3 mentioned about the temperature issue in his first report. But the issue before this Tribunal as raised by the applicant is on leakage, and not on defective design or workmanship of the roof by the developer. I agree with Mr. Wong that this issue of insulation is not a matter in this application. And as commented by RW-2, the insulation structure of the roof is unknown as the experts have not opened up the roof for investigation, or make reference to building plans.

135.  RW-2 recommended patch repair. As I found against his suggestion that the leakage is restricted to some area/room in Flat 4B, I consider that the applicant is entitled to a full repair of the waterproofing membrane/layer of Flat 4B.

136.  As for the detailed methodology to be engaged in construction, I do not think it is a matter for adjudication by the Tribunal. Generally speaking, if the leakage is remedied, the applicant would get what she asked. I fail to see why an injunction that the 1^st respondent shall maintain the roof of Flat 4B to prevent leakage is not sufficient.

137.  With the above finding, I would grant the following injunctive relief: -

(1) The 1^st respondent, whether by itself, its servants, agents, tenants, occupiers, or otherwise howsoever, be restrained from causing water seepage to Flat 4B;

(2) The 1^st respondent do within 3 months from the date of this Order and at its own costs carry out and complete such proper and necessary repairs and/or works to rectify and stop any water seepage or leakage from the roof over Flat 4B, in particular to repair and remedy the whole of the waterproofing membrane over Flat 4B.

Costs

138.  I give an order nisi that the applicant do have costs of this application (including all costs reserved) with certificate for counsel to be taxed at District Court scale if not agreed. The order nisi shall become absolute within 14 days unless application has been taken out by either parties to vary the same.