WIDE POWER CORPORATION LTD v. THE INCORPORATED OWNERS OF MANHATTAN COURT

HCA 1485/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1485 of 2013

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J U D G M E N T

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1.  The plaintiff in this action was the owner of apartment 8F on the 7th floor of a building known as Manhattan Court, 1 Alnwick Road, Kowloon, Hong Kong.

2.  It purchased the property in April 2010.  At that time, according to the opening written submissions of the plaintiff’s counsel, there were already on the roof above the plaintiff’s apartment some railings and airconditioning units which were allegedly illegal structures.  They extended over much of the roof and, on the face of it, have obviously been tolerated by the Incorporated Owners of the block, as managers of the building.

3.  More importantly as far as this action is concerned, there was serious leakage of water into the apartment and the internal signs of this must have been apparent at the time of its purchase by the plaintiff.

4.  The plaintiff sues the Incorporated Owners, the defendants, as the entity responsible for this defect and the internal damage and consequential financial losses suffered by the plaintiff.

5.  The plaintiff sold the apartment, it is alleged, at a loss caused by the aforesaid defect and its consequences, in August 2014.

6.  It commenced this action in August 2013.  By then, according to its case, the plaintiff had had to carry out the necessary remedial work on the roof, though of course such work was confined to the plaintiff’s own area of the roof above its apartment.

7.  Before I consider the case as pleaded and identified in the submissions of the parties’ respective counsel, I need to state a number of matters which require immediate attention.

8.  This case was called on for trial before me on Monday, 18 July 2016 with an estimate of five days duration.  The date of trial had been fixed as long ago as November 2015.

9.  It was clear from my perusal of the papers that there was no agreed chronology.  Both counsel had submitted their own versions of a chronology. That is unhelpful.

10.  Secondly, there was no agreed statement of facts.  That is a singular omission.  Its purpose is to reduce unnecessary conflict, evidence and consideration for the judge.  It clears the decks in a contest.

11.  Thirdly there is no statement of agreed issues.  The purpose of this is to enable all minds to concentrate on what is relevant and to be argued.

12.  All these matters are part and partial of essential preparation. They also reduce unnecessary costs.  They concentrate the mind of counsel. They enable a judge to approach the trial with a concentration on the material matters.

13.  It does not require a court, in its interlocutory perambulations as parties gnaw over a bare bone, to make specific directions to these ends.  They should be done as a matter of common sense and professional obligation.

14.  A fourth matter emerged in a different context and has been illustrated in so many cases.  Solicitors for either or both parties, having lodged bundles for trial, persist in sending additional statements, affidavits, and documents to be unserted into the bundles.  Judges’ clerks are not to be misused to compensate for the inadequacies of solicitors.  Nor should a judge be expected to do that also.

15.  I suspect that where solicitors indulge in such lazy practices and rely on court staff to do this work for them, they nonetheless include costings in their bills as if they had done the work themselves.  In future as far as I am concerned the papers will remain as left by them for the solicitors or their clerks to do the work themselves.

16.  The consequence of all these omissions is that I adjourned the case for all the steps to be taken properly.  That meant that a whole day was lost.  The trial in effect commenced on the second day shortly before 11 am.

The plaintiff’s case as pleaded

17.  The plaintiff relies upon an alleged breach of the Deed of Mutual Covenant in that the manager of the building failed “to keep in good repair and condition the main structure and fabric of the building its equipment, apparatus, services and common areas and when necessary to replace any part or parts thereof which require replacement” [Clause 9(c)4] and failed “to keep in good repair and condition all water pumps, wells (if any) tanks, pipes, sewers, drains, etc. in the said building which are for the common use of the occupiers of the said building”.

18.  Under the Building Management Ordinance (Cap 344) section 18(1)(c) the defendants as the corporation (the Incorporated Owners) were obliged to:

“do all things reasonably necessary for the enforcement of the obligations contained in the Deed of Mutual Covenant for the control, management and administration of the building.”

19.  The nature of the management’s duty has been considered in a number of cases over the years and is conveniently encapsulated in the Court of Appeal’s decision in Ho Yuk Chu v Hang Yick Properties Management Ltd [1996] 4 HKC p.278:

“The overall duty imposed on the respondent [Incorporated Owners] by The Deed of Mutual Covenant is one of proper management. Such management entails doing all that is reasonably required of a manager in the circumstances.”

20.  Both in that decision and in Lau Chun Wing Rod v The Incorporated Owners of Po On Building CACV 20/2007 The Court of Appeal made it clear that the Incorporated Owners do not assume absolute liability as if it were an insurer if any part of the building becomes in disrepair, or where for example a drain becomes obstructed through no failure on its part to act reasonably as a manager should.  The operative words are underlined for emphasis.

21.  The court’s decision went on to state — as a matter of straightforward law and common sense‑ :

“liability may arise if there is fault. It also arises if, having been made aware of a defect which requires remedy, the Incorporated Owners fail to take appropriate steps.”

22.  There was consideration of the term “wilful default” in the 19^th century decision of Re Young & Harston’s Contract (1886) 31 Ch D 168 (at page 174‑175) by Bowen L J:

“The term …… is not a term of art …… default, is a purely relative term, just like ‘negligence’. It means nothing more, nothing less, than not doing what is reasonable under the circumstances ……”

“[wilful] amounts to nothing more than this. That he knows what he is doing, and intends to do what he is doing, and is ‘a free agent’.”

23.  In short the plaintiff asserts that the water damage was caused by water leaking through the roof and in particular the waterproof (as it was intended to be) membrane, on the roof.  That membrane covered, or was intended to cover the whole roof, not just the common parts.  The leakage therefore resulted from a failure to maintain that overall protection which existed for the benefit of all owners of individual units, and was so intended to exist when it was installed.  That is also a matter of common sense.

24.  In Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd [2010] 4 HKC 46 the Court of Appeal upheld Sakhrani, J’s decision at first instance to the effect that the waterproof layer or membrane was a fixture used in connection with the enjoyment of any other flat or other portion of the building within the meaning of item 11 in Schedule 1 of the Ordinance.  The roof is a common part identified in item 3 of the same Schedule.

25.  It was of course a finding of fact by the trial judge but equally so, on the facts before me, supported by the expert evidence on both sides, the concrete roof was an integral unit covering the full extent of the roof.  It was not a series of separate roofs.  Similarly the waterproof membrane was laid as an integral unit or layer over the whole of the roof and was not divided up into separate units.  If that had been the case it would have a multiplicity of weaknesses at every join which would call for separate treatment to ensure the essential degree of waterproofness.  It would not make sense in the construction of the roof and the need for overall complete protection, for there to be separate membranes over the roof area of each individually owned unit.  Regulation 48 of the Building (Construction) Regulations (Cap 123) provides that every roof shall be waterproof.  There is only one roof embracing a building unit.

26.  It was not suggested by the defendant, in the case before me, to the experts (Architects) that there were separate concrete roof units with separate waterproof membranes above the individual property unit.  Indeed it would have been surprising if it had been suggested and I am confident that the respective architects would have found it astonishing.

27.  The fact that Regulation 48 did not specify whether a waterproof layer or membrane in a roof slab was a common part is immaterial. For a roof to be waterproof as provided for in the regulation, it would require waterproofing treatment either by way of a membrane or a layer or some other form of treatment.  It was therefore an integral common part, however composed or described.  The alternative is to indulge in meaningless semantics.

28.  I also adopt the conclusion of Godfrey Lam, J. in Wing Ming GarmentFactory Ltd v Wing Ming Industrial Centre [10] [2014] 4 HKLRD 52 (at page 74) that:

“If the waterproofing membrane is situated in the floor slab and the floor slab is to be regarded as a common part, then equally the membrane is a common part. It is one continuous layer serving the whole of the floor below [i.e. beneath it] including common areas on that floor ……”

29.  The waterproofing membrane is a common part and the Incorporated Owners have the duty under section 18(1)(a) of the Building Management Ordinance:

“to maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition.”

30.  It is common ground in this case that the roof slab covers the whole of the roof and the waterproof membrane likewise.  They are common parts.  The duty on the management of the Incorporated Owners is clear under section 18(1)(a).

31.  The defendant’s case as extracted from the excess verbiage of its defence and counterclaim can be summarised as follows:

(1)  The owner is not to make any structural alteration to the building.

(2)  he area of roofing above the plaintiff’s unit is the plaintiff’s own responsibility.  The defendant does not owe a duty of care with regard to it.

(3)  If the water seepage was caused by damage to the common parts by the plaintiff or his predecessor‑in‑title there is no duty of care owed by the defendant.

32.  It goes on to complain of the installation of railings, air‑conditioning compressor, an air‑hose to the compressor/ air‑conditioner, drainage pipe and a spotlight.  Interestingly it does not complain about the installation of what appear to be lamplights at various points on the roof.

33.  All these are alleged to be illegal structures or unlawful building works carried out by the plaintiff or his predecessor in title.  I shall deal with this collection of so‑called illegal structures in due course.

The plaintiff’s evidence

34.  This is straightforward and the experience of Mr Kwan and his colleagues must have been consistently frustrating.

35.  After initial remedial work internally, which it was hoped would solve the problem, a tenant was acquired in or about June 2010, but because of the recurring problem of water seepage, dripping with resultant damage to furniture and fittings the tenant terminated his letting by agreement in February 2011.

36.  Thereafter followed a catalogue of complaints both oral and written which the defendant either ignored, or failed to deal with properly or so delayed any action that drastic measures were eventually required.  As this juncture I make it clear that I found Mr Kwan, the plaintiff’s shareholder and director, a wholly credible and indeed reasonable witness whose evidence I accept in its entirety.

37.  After the departure of the tenant the plaintiff was unable to let the flat but that prospect was scarcely feasible in view of the persistence of the water seepage problem and consequent damage to the interior.  Telephone calls to the management did not produce any satisfactory result and another attempt to engage a constructor to do remedial work was unsuccessful.

38.  So in November 2011 written and e‑mail contact was made with the management office which obtained some positive reaction though no positive achievement.

39.  A letter of 18 November 2011 succinctly set out the history of the problem ending with the plea — “Please the Management Office can deal with the issue and soon as possible”.  This was e‑mailed on the same day.  There was also telephone contact.  It seemed to suggest that this was the first occasion on which the management had been alerted to the problem.

40.  On 23 November 2011 the plaintiff sent a follow‑up letter which included reference to water seeping out of the roof‑top fresh water tank constantly, defective water‑pipes in the common areas, ageing tiles, cracking between the tiles and the roof‑top surface, and the belief that the water‑proof coating of some parts of the building had already broken down …… “we hope that the Management Office and Incorporated Owners of Manhattan Court paid utmost attention to them and do whatever is necessary …… as soon as possible …… so as to avoid any extensive damage caused”.

41.  The need for urgent and effective action was clearly spelt out as was the fact that the problem had persisted for sometime despite measures taken by the plaintiff as flat owner.  A photograph of water seepage was sent with the e‑email.

42.  Five days later, on 28 November 2011 a reply was sent by the Management Office saying:

“We take this opportunity to confirm that we have taken necessary action concerning the wet floor near the water tank on the roof.”

43.  The photographs were enclosed allegedly “showing the floor is very dry now.  Kindly take note of it”.

44.  No detail was given of what was meant by necessary action.  There was no suggestion that the plaintiff was or might be in any way responsible. Nor was there any mention of any structures, unlawful or otherwise, on the roof, which the plaintiff was required to remove.

45.  As became apparent there was no record in the management documentation of any work having been carried out by it between the 23 and 28 November as declared in the e‑mail to which I have referred.

46.  In the course of this trial the defendants have not produced any record of any meeting by the management or its committee if such existed.  No minute or record of any complaint, no record of any remedial work carried out, or payment made to any contractor so employed, no note of any telephone call by or on behalf of the plaintiff, nor copy of any letter sent to the plaintiff complaining of any failure in any regard in relation to the roof or any structures on it have been produced.  This topic will be dealt with separately under a discrete heading.

47.  Matters drifted on unresolved with further complaints from the plaintiff as a result of the problem continuing until solicitors acting for the plaintiff wrote to the defendant on 20 August 2012.  That letter set out the history of the problem since April 2010 when the plaintiff purchased the apartment including reference to the e‑mail contact of November 2011.  The effect of the typhoon on 23 July 2012 seems to have been the catalyst.

48.  The failures of the Incorporated Owners were set out.  Photographs of the current state on the roof were sent.  Urgency was stressed.  A site visit on or before 23 August by the defendant was requested amongst other steps.

49.  It was informed that the plaintiff was already conducting renovation and repair work but it was presently suspended to give the defendant the opportunity to investigate and carry out remedial work.  The plaintiff would resume his work if the defendant failed to respond.

50.  There was a follow up letter on 22 August with an increasing sense of urgency with a deadline of 27 August for action by the defendant.

51.  The next day another letter was sent by the plaintiff’s solicitors stating that the plaintiff would now proceed to carry out the necessary repair and replacement.

52.  Eventually by letter of 5 September the defendant responded.  In the meantime the plaintiff had proceeded with the work in accordance with the notice given by its solicitors in their letters.

53.  The defendant said that it had never received “any letter or notification” from the plaintiff prior to 20 August 2012.  In other words they had no record of any contact from the plaintiff regarding the water problem over the period since its purchase in April 2010.

54.  It raised the possibility of water leaking to the common area from the cement/sand layer causing damage to the tiles which have “popped up”.  It also suggested that the metal balustrade (seemingly the railing or metal fencing barrier) might have been built on the common area after the waterproofing work.

55.  The defendant failed to take up the opportunity either to carry out the necessary work itself or to monitor or supervise the plaintiff’s contractors as it carried out the work.

56.  It transpired that the problem was solved — at least for the time being.  The roof slab incorporating the new waterproof membrane above the plaintiff’s apartment was somewhat thicker than the original and the defendant, who could have done the work itself or at least overseen that aspect, nonetheless complained about it later.  Later when I review the expert evidence I will deal with this.  The plaintiff’s contractor finished its work in November 2012 so there was ample opportunity for the defendant’s management to intervene if it wished to or thought it necessary.

57.  One other matter became apparent and that was the lack of connection to the sea‑water supply pipe.  Each flat had its own link to the supply but the plaintiff’s was missing and that was found to be so in November 2012 at the time of the work being carried out for the plaintiff by his contractor.  Until the short‑term tenant moved out the supply was in order but the flat was empty from February 2011 until the works of August‑November 2012. The maintenance of the vertical feeder pipe was the responsibility of the defendant as was the horizontal pipe which led to the exterior of the flat. Somehow there had been disconnection and the plaintiff made it clear in his evidence that he was not responsible.  I think it far more likely that the management was responsible by act or omission for its removal since it was responsible for the maintenance of the external part of the building which included the feeder pipe and individual links which were made available to the tenants.

58.  The plaintiff had not received any satisfactory response from the defendant to the claims it made through its solicitors and proceedings were commenced in August 2013.

The Expert Evidence

59.  Both sides called an Architect in support of their cases although it was apparent from their reports and the joint report that there was insiginificant difference between them.

60.  Mr Wong Man Hong was a forthright witness whom I found refreshingly practical, and helpful.

61.  His first report of 3 September 2012, completed before the work carried out by the plaintiff’s contractor, gave an important picture of the state of affairs.  I will extract the essential findings.

62.  His assessment of the internal damage caused by the water seepage noted the cracks and spalling concrete on the whole of the ceiling.  The water‑proof membrane had been damaged thus leading to water penetration.  Any delay in remedial work on the roof area, and particularly in respect of the waterproof membrane, might induce even more serious problems.

63.  In reviewing the replacement slab of membrane on the roof above the flat he considered that two layers were not necessary but conceded that in view of the nature of the problem and the plaintiff’s concerns, it was not unreasonable to use two layers even though this added to the weight.  The photographs taken by him fully illustrated the extent of the internal problem. It indicated to his expert eyes substantial and widespread failure of the membrane.

64.  He produced a plan of the roof area of the plaintiff’s flat on which was recorded that the membrane was composed of rock asphalt when applied at the time when the building was first finished off, some 30 odd years ago.  At that time, membrane of this material was considered to have a life expectancy of up to 15 years.

65.  In a later report he expressed his view that since the railings (or balustrade), and the air conditioner and its pipe work were positioned on a concrete plinth and not directly on to the waterproofed roof floor slab, those installations would not damage the membrane itself and so not cause any degradation of the membrane. Once the new membrane had been applied in late 2012, the seepage had ceased though the items on the roof remained in situ.  Therefore those items were not causative.

66.  After the defendant’s Architect Mr Christopher Chiu had made an inspection in 20 June 2015, the two architects provided a joint report.  Before I come to that it is important to note that Mr Chiu’s site inspection lasted about one hour and was carried out well after the plaintiff's contractor had completed the work begun in late 2012 and well after the defendant had had their own work carried out in 2014.  It was also disadvantaged by the fact that Mr Wong’s inspection in 2012 had noted the situation before the remedial work.

67.  They jointly concluded that the water seepage had been through the defective waterproofing membrane on the roof above the plaintiff’s flat.  The removal of alleged unauthorised building works on the roof was not relevant to the water seepage, nor was the additional (or rather, enhanced) slab relevant.

68.  They disagreed in the following respects.  Mr Wong considered that cause of the seepage was “normal dilapidation of the waterproofed membrane”. The seepage was scattered in various locations on the roof.  There was no evidence that the two metal bars (from a lamp unit, or a spotlight or the railings/barriers) had pierced the membrane.

69.  On the other hand Mr Chiu considered that the bars had pierced the membrane when originally fixed, and thus allowed seepage through crevices spreading through the concrete slab above the roof of the flat of the plaintiff.

70.  I prefer the evidence of Mr Wong for a number of reasons.  He had had a much earlier opportunity of seeing the situation in 2012 than had Mr Chiu.

71.  He carefully considered the nature of the structures vis-à-vis the roof surface and found evidence to suggest that waterproof material had cladded (my word) the base of the pole so as to prevent water seeping through at the point where the poles/or posts entered the roof slab.  There were also signs of rust or corrosion, well above that base level so as to indicate that there had been protection, or insulation significantly above the upper surface of the roof itself.  Mr Wong had been able to view an overall picture at a much earlier stage than had Mr Chiu.

72.  It may have been a situation where there were two causes — degradation of the waterproof material itself allied to the odd area where the membrane had been weakened by extraneous forces — the tiles or cement and sand have been loosened and broken in a number of areas as a consequence of weather conditions, a circumstance with which both experts agreed, and, possibly the weakening of the waterproof material cladding the lower part of the poles or posts.

73.  Mr Chiu’s estimate of the effective life on the original membrane at 30 to 40 years is somewhat optimistic.  Hong Kong’s testing weather conditions with sub‑tropical rainstorms, periods of intense humidity and temperature variations, and typhoons, would put exposed materials to the limit of their durability.  In any event this membrane, applied in the mid to late 1970’s, was at the end of its life on even Mr Chiu’s estimate.  There is no evidence that it was replaced, improved, enhanced or repaired at any time since installation.  There are no records of its history since installation.  As Mr Wong pointed out the quality, composition and durability of modern materials have improved considerably over the intervening years.

74.  One aspect of Mr Chiu’s evidence was of particular interest.  Although he appears to have given the rest of the roof area no more than a casual glance, and acknowledged that there were other railings/barriers and lamplights (as I call them) — they are shown on the photographs, he was able to say that although they may have been regarded as illegal structures in the past, the lighting since 1998, after the cessation of Kai Tak as Hong Kong’s airport, would probably not be regarded as such.  The railings, or steel barriers, whatever description one adopts seem to have existed as safety barriers to protect persons from falling from the roof area.  Whatever their status the management of the defendant appears not to have taken any steps to require their removal by any co‑owner and certainly not by the plaintiff.

The defendant’s evidence

75.  Mr Eddy Chui has been the Chairman of the Incorporated Owners since 2013.  He was a committee member in 2011.  The e‑mails, and letters associated with them, of November 2011 had never come to the notice of the Incorporated Owners.  There was a form of management at that time in the hands of a Mr Chow.  The defendants had not been able to trace any letters, notes, minutes, reports or memoranda relating to the management’s activities prior to the letter of 20 August 2012 from the plaintiff’s solicitors.

76.  It was clear from this that the defendants were in considerable difficulty.  If there existed any real management over the years in relation to the roof, its maintenance, any objectionable structures on it, there was a complete absence of evidence to that effect.  But of course, as Mr Chui has to accept, the designated Management, however constituted, was the servant or agent of the Incorporated Owners who were liable for its shortcomings — its acts or omissions.

77.  He conceded that the structures on the roof appeared to have been there for a long time.  They seemed to be of a reasonable height so he was not alerted to any problem.  They were cleared away in 2015, he said, though it is not apparent what remain, if any.

78.  The work involved in 2015 was the renovation of the entire roof of the building. By that time the plaintiff had ceased to own the flat in question so any question of payment for this work was not relevant.  Moreover the invitation to the plaintiff to be involved in inspecting what was revealed and the nature of the work to be carried out, could not be taken up, by reason of there being a new owner, and the defendants did not take the necessary steps to provide the plaintiff with the opportunity to inspect.

The illegal unauthorised structures

79.  I will deal with those allegations as identified in the pleadings although some are clearly unsustainable.

The railings

80.  These are not confined to the area immediately above the plaintiff’s unit.  They appear from the photographs to be on some areas throughout the roof.  There is an obvious sensible purpose.  They help to act as a barrier against any person falling from the roof.  At the time of their original erection they were of the same type and height indicating some collective direction or concerted action.  It is alleged that the plaintiff erected them over other units.  Why it should have done so, save with the agreement of them all, is not entirely understood.

The air conditioning units

81.  There are several of these, again seemingly identical.  They are all mounted as far as I can see, on concrete plinths perhaps with some form of bolting into that plinth to fix them safely.  Their need is clearly understood.  They required electrical linkage as well as compressor units.

The lamp standards with lights

82.  Some form of illumination must have been required in the event of maintenance activity at night.  Not all rooftop problems occur in daylight. Once again the number of them indicates a pattern of collective activity in their installation.  It is difficult to see how any of this activity could have escaped the notice of the management.  As in the case of the spot lamps on a pole stand, electrical connections must have been required.

83.  I am satisfied that all these structures were on the roof long before the plaintiff purchased the flat.  He did not erect any.  There are similar structures on other areas of the roof above other flat units.

84.  It is possible that some were erected with the approval of the management.  It is equally possible that the management was itself responsible for their installation.  There was no effort by the defendants, their servants or agents, to remove them, or cause them to be removed, or to complain to any occupiers about their existence until at the earliest in 2012 and even then it was a tentative and far from positive suggestion to the plaintiff’s solicitors.  The plaintiff was not responsible for any of these structures or their maintenance.  Over the years there had, at the very least, been an attitude of acquiescence by the defendant in their existence and continuation.

Conclusions

85.  The water causing damage to the plaintiff’s flat seeped through the formerly waterproof membrane which formed an integral part of the roof slab.

86.  The membrane, an integral part of the roof, was a common part and therefore to be maintained by the Incorporated Owners in accordance with the Deed of Mutual Covenant and the Buildings Management Ordinance.

87.  The cause of the seepage was the failure of the defendants to maintain the roof properly by ensuring that the membrane achieved its purpose, ie. waterproofing the roof.

88.  Over years the membrane had aged and degraded, in the prevailing climatic conditions and had not been replaced or repaired or otherwise properly been maintained.

89.  The water had seeped directly through the membrane as a result of wear and tear, which I find to be the case on the balance of probabilities, and was aggravated by the degradation in the sand and cement screed and tiles which were positioned on top of the said screed to afford some seal or protection or insulation for the membrane against damaging weather conditions.

90.  Alternatively or additionally, waterproof membrane cladding or extensions around the base of metal poles supporting lamps and/or spotlights and/or railings, had so degraded through lack of maintenance appropriate to prevailing weather conditions that water was able to permeate through the base of the poles beneath the membrane.

91.  The latter cause, though more minor, would simply have caused an addition to the water already seeping through the degraded, unrepaired, unmaintained membrane.

92.  The alleged illegal structures in the form of such posts, poles, railings and lamp posts had been in situ either long before the plaintiff became the owner of the unit in question and was not responsible for their installation maintenance or continuation.  He had never been asked to remove them.

93.  These structures were entirely the responsibility of the defendants, and were attached to or on the common parts.  The defendants had no effective management committee or manager and had no system or proper system of maintenance and repair and failed to comply with its obligations under the Deed of Mutual Covenant and the Buildings Ordinance.

94.  It failed to pay any or sufficient attention to a long term problem having been given many reminders and complaints.

95.  The plaintiff was to no extent responsible for the cause or the results of the water seepage and fulfilled its responsibility to notify the defendants of the nature and extent of the problem and reasonably carried out necessary attempts to identify and cure the problem.

Damages

96.  I will follow the sequence of the claims according to the Statement of Claim.

Costs of renovation work

97.  This total sum to include all the necessary work is HK$601,110.  I am satisfied that there should be no deduction on the basis of the use of two layers of waterproofing material instead of one.  The plaintiff and his contractor is not to be criticised for being extra cautious.  The long‑standing problem had been neglected by the defendants for a substantial period of time and they failed to use the opportunity afforded to them of either doing the work themselves or monitoring and/or supervising the work done by the plaintiff’s contractor who had to be particularly careful to confine the area of work to that section of the roof above the plaintiff’s unit.

98.  All the work was necessarily carried out and was the direct result of the defendant’s failure and neglect, and the amount is entirely reasonable.

The loss of rental income

99.  The water seepage had caused the tenant to terminate his tenancy by agreement with the plaintiff.  That was foreseeable.

100.  Equally, whilst the problem persisted, it was foreseeable that the flat could not be let.  That state of affairs was the direct result of the defendant’s failure.  The plaintiff has reasonably confined the period of loss claimed to that from January 2011 until August 2012 when the remedial work was commenced.  I allow it in full in the sum of HK$560,000.

The loss of the sea‑water feeder pipe

101.  I have accepted the plaintiff’s evidence.  He was not responsible for its disconnection and disappearance.  The only reasonable explanation for its disappearance between February 2011 and August 2012 is that the defendants’ management failed in yet another respect in its maintenance of the common parts and facilities.  It may have deliberately disconnected and misplaced the unit, having become aware, as it must have done at some stage, that the flat was unoccupied.  There are no records to assist on this and no evidence from anyone in the management office over the material time.

102.  I allow it at HK$18,120.  The plaintiff does not pursue claims for loss of amenity, and inconvenience; the latter must have been substantial for this period of time.  Nor does it pursue damages for the registration of the “lis pendens” which was unarguably wrong.

103.  The total claim allowed is therefore HK$1,179,230.

Judgment

104.  There will be judgment for the plaintiff for HK$1,179,230 together with costs to be taxed if not agreed.

105.  The defendant’s counterclaim fails and is dismissed with costs to the plaintiff.  There was no basis for the alleged breaches by the plaintiff as I have made clear in the course of this judgment.  There is therefore no entitlement to any injunction in any event since the defendants claim to have removed all the structures and the plaintiff ceased to be an owner sometime ago.  Lest there be any misunderstanding concerning my findings, the defendants were themselves responsible for any of the structures of which they complain; alternatively they acquiesced in the installation, and continuation of such and failed to exercise any proper and reasonable maintenance of the roof and its appurtenances.