FUNG HING WANG AND ANOTHER v. TANG CHUNG KEUNG RAYMOND

HCA 189/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

ACTION NO. 189 OF 2007

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J U D G M E N T

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1.  The plaintiffs are applying for an interlocutory injunction until trial or further order to restrain the defendant from allowing water leakage at the roof of the plaintiffs’ guest bathroom.

The facts

2.  The 1^st plaintiff is the registered owner of Flat B, 18/F, Block 2, Elegant Terrace (“Flat 18B”), and the 2^nd plaintiff is the tenant of Flat 18B, which is occupied by Mr. Lawrence Ong, director of the 2^nd plaintiff.   The defendant is the registered owner of Flat B, 19/F, Block 2, Elegant Terrace (“Flat 19B”).  Flat 19B is right on top of Flat 18B.  Flat 19B is leased to Mr. Dennis Wong.

3.  On 20 September 2006, Mr. Ong found water dripping at the ceiling of the guest bathroom of Flat 18B.  The defendant was notified of it.

4.  On 22 September 2006, the defendant and a plumber engaged by the management office visited Flat 18B and Flat 19B.  The plumber inspected the bathtub joint and found it was in good condition.  The plumber advised the defendant to seal the bathtub knob to see if that would rectify the leakage problem.  On 23 September 2006, the defendant fixed a new coat of silicon on the bathtub knob.

5.  On 26 September 2006, the defendant was informed that the leakage continued.  Another plumber of the management office advised that the hot water pipe to the bathtub and wash basin concealed in the wall of the bathroom of Flat 19B might be the possible source of water leakage.

6.  On 29 September 2006, the 2^nd plaintiff instructed the firm of solicitors which he is a partner to issue a warning letter to the defendant.

7.  Meanwhile, the defendant instructed his own contractor to replace a hot water pipe.  That was done on 30 September 2006.

8.  On 24 October 2006, the 2^nd plaintiff’s solicitors wrote again stating that the leakage had aggravated since 23 October 2006.

9.  The defendant’s son and the contractor carried out another inspection of the bathrooms of Flat 18B and Flat 19B.  A test was conducted by pouring plenty of water into the bathtub in the guest bathroom of Flat 19B.  There was no effect on the rate of leakage at the Flat 18B bathroom.  The bottom of the bathtub in Flat 19B was dry.

10.  Between 3 to 6 November 2006 (4 days), the defendant’s tenant stopped using the bathroom of Flat 19B.  Then the defendant’s son, contractor and the representative of the management office carried out 2  inspections.  The non-use of the Flat 19B guest bathroom had no effect on the water leakage problem.

11.  On 27 November 2006, the Joint Office of the Food and Environmental Hygiene Department (“FEHD”) and Buildings Department carried out a colour water test was on all drainage outlets of the bathroom of Flat 19B.  No colour dye was discovered in the water samples collected on 5 December 2006.  There was no evidence that the seepage problem was caused by defective drainage.

12.  On 5 December 2006, a reversible water pressure test was conducted.  The main water supply to Flat 19B was turned off.  There was no evidence that the seepage was caused by the water supply mains.

13.  On 22 December 2006, the 1^st plaintiff instructed NY  Architects and Associates to examine the water dripping problem.  In the report dated 28 December 2006, Mr. Norman Yiu stated that he examined the ceiling of the guest bathroom of Flat 18B.  He discovered clean water was dripping slowly onto the bathtub.  The clean water was running, without any doubt, from the unit above, i.e. Flat 19B.  It caused the ceiling plaster to become torn off and the bathtub traced with distinct worn-out mark.  Mr. Yiu believed that the water leakage was caused by the concealed water supply pipe within Flat 19B.  Unless prompt rectification work was carried out, it would cause serious damage to the steel reinforcement of the concrete slab as well as the building structure.

14.  On 2 January 2007, the defendant requested the management office to conduct a pressure test on the hot water pipes and the result showed that the hot water pipes were not leaking.  The defendant also replaced all bathtub joints as a matter of caution.

15.  Mr. Ong further affirmed that since 22 January 2007, the water began to drip to one further area immediately above the electric water heater, and he worried the electric water heater might explode if contacted with the dripping water.

Relevant principles

16.  Mr. Yung for the defendant submitted that although the interlocutory injunction is prohibitive in terms, it is in fact a mandatory injunction.  In Tech Focus Ltd v. Austria Property Management Ltd &  anor CACV 130/2003, Rogers VP held that an injunction to restrain the defendants from allowing water to seep from the roof area to the plaintiffs’ property was in fact a mandatory injunction to prevent water leakage.

17.  In the present case, having considered the concealed nature of the source of the water seepage, and what the defendant has already done in response to the problem, I agree that the interlocutory injunction sought is mandatory in nature.

18.  The principles in relation to the grant of interlocutory mandatory injunctions are summarized by Chadwick J in Nottingham Building Society v. Eurodynamics Systems PLC [1983] FSR 468,474:

“In my view, the principles to be applied are these, first, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’ in the sense described by Hoffmann J in Films Rover International Limited v. Canon Films Sales Limited [1987] 1 WLR 678 at 68E-F; that is :

‘In the sense of writing an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial); or alternatively in failing to grant an injunction to a party who succeeds (or would succeed) at the trial.’

Secondly, in considering whether to grant a mandatory injunction the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action thereby preserving the status quo.

Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish his right at a trial.  That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will the risk of injustice if the injunction is granted.

But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage.  Those circumstances will exist where the risk of injustice of this injunction is refused sufficiently outweigh the risk of injustice if it is granted.”       

19.  The summary above was approved by the English Court of Appeal in Zockoll Group Ltd v. Mercury Communications Ltd [1998] FSR  354.

20.  Further, it is very important that mandatory injunctions are framed in precise terms so that the defendant knows exactly what he must do and what steps he must take (see Tech Focus Ltd v. Austria Property Management Ltd & anor).

Plaintiffs’ case

21.  Ms. Cheng for the plaintiffs referred to Third Schedule of the Deed of Mutual Covenant of Elegant Terrace which provided that each owner shall at his sole expense repair and maintain the water supply: potable and flushing water installation, including storage tanks, pipework control valves, water heaters, taps and sanitary facilities (para. 8(a)(i)), and drainage installations: waste pipes and sewage waste drainage (para.  8(a)(v)).

22.  Ms. Cheng referred to s.34H(1) of the Building Management Ordinance (Cap. 344) which provides that:

"Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition."

23.  The plaintiff relied on the expert report of Mr. Norman Yiu that the leakage was caused by the concealed water pipe within Flat 19B. Ms. Cheng submitted that there is no contrary expert opinion to contradict Mr. Yiu.

24.  Approaching the matter differently, Ms. Cheng referred to the floor plan of Block 2 and the photographs of the ceiling of the Flat 18B guest bathroom, showing a contained spot of dampness in the ceiling.  She referred to the pamphlet of FEHD in that water will travel the shortest distance.  She submitted that visual inspection will raise the presumption of res ipsa loquitur, and in the absence of contrary evidence, an inference that the source of the leakage was from Flat 19B guest bathroom right on top is to be drawn.

25.  Ms. Cheng also complained of the uncooperative attitude of the defendant.  Although the defendant undertook certain remedial measures on his own initiative, he never sought the opinion of the expert, nor sought to approach the matter jointly with the plaintiffs’ expert.  Ms. Cheng criticized that the defendant’s action was wrong.  Hence, the defendant failed in its duty to identity the source of the water leakage.

Defendant’s case

26.  Mr. Yung submitted the owner of the downstairs premises cannot assume that whenever water leakage occurs, the cause is necessarily the damaged water pipe within the upstairs premises (see 張秀玲及吳炳漢對鄭禮莊 (Cheung Sau-ling & Ng Bing-hon v. Cheng Lai-chong  (transliteration)) CACV 268/98 per Leong JA (as he then was) at para. 21), and the burden is on the plaintiff to prove the source of water leakage is from the defendant’s premises.

27.  The colour water test for the drainage pipes and the reversible water pressure test for the main water supply did not identity any source of water leakage.

28.  Mr. Yung submitted that the plaintiffs failed to demonstrate by any persuasive evidence that the source of the water leakage is from Flat  19B.  He criticized Mr. Yiu’s opinion as highly speculative and of little evidenctial value.  Mr. Yiu never attended Flat 19B.  He merely made observation from Flat 18B.  He did not conduct any scientific test, and proferred the belief that the source of the water leakage was the concealed water pipe within Flat 19B.

29.  Mr. Yung also criticized Mr. Ong’s allegation of explosion of the water heater as far-fetched.

30.  The defendant exhibited the plan of Elegant Terrace which shows that the guest bathrooms of Block 1 and Block 2 are adjoining.  Mr. Yung suggested that possible sources of leakages such as bathrooms of other flats could not be excluded.

31.  Mr. Yung also queried the 1^st and 2^nd plaintiffs’ interests in maintaining the cause of action of nuisance.  The 1^st plaintiff has entered into an agreement to sell Flat 18B with completion on 29 March 2007, and the 2^nd plaintiff’s tenancy agreement has expired on 7 January 2007 and he is holding over.  It was submitted that the 1^st and 2^nd plaintiffs’ interests in Flat  18B will probably have ceased at the time of trial.

Consideration

32.  The affidavit evidence on each side are not challenged and I take them at face value as the relevant circumstances.

33.  Liability for water seepage may be founded in negligence or knowingly suffering the nuisance, but the key issue is the source of the water leakage.  Without identification of the source, the liability of the defendant is not founded, let alone the framing of the precise terms of the injunctive order which can be complied with by the defendant, and supervised and enforced by the court.  In looking at the evidence at the interlocutory stage, I must be satisfied to a sufficiently high degree of assurance that the source of the water leakage emanated from Flat 19B.

34.  Much have been said about the colour water test.  But the test was targeted at the sewage drainage system.  Likewise, the water pressure test only targeted the main water supply.  Sources of water leakage may go beyond the drainage system and the main water supply, and lie in say, concealed hot water pipe or other joining pipes.  Be that as it may, those tests are inconclusive in the present case.

35.  Ms. Cheng submitted that water travels the shortest distance, and the guest bathrooms of Block 1 and Block 2 are separated by thick adjoining wall, and it is impossible for water to seep from Block 1 to Block 2.  However, it is generally known that water does not only travel vertically down the concrete floor slap, but also horizontally through weakness points in the concrete.  Shortest distance must be taken to mean the shortest distance through paths of weaknesses.  Hence, visual observation of the ceiling is not a scientific and reliable test of determining the source of water seepage.  It is trite that the worth of an expert opinion lies in the foundation upon which the opinion is expressed. With respect, Mr. Yiu’s opinion seems to have been based on belief and little else, and I fail to see the probative value thereof.

36.  I note that in the letter dated 21 December 2006 by the management company to the defendant, it was stated that the water dripping at the ceiling of the premises below might be due to several sources.

37.  Modem technology such as infra red thermo scanner which detects difference in temperature caused by the seepage of water may be helpful in determining the trail and source of water seepage with more accuracy and assurance than visual inspection.

38.  In neighbourhood water seepage cases, cooperation of the neighbours concerned is very important.  Unwillingness to cooperate in allowing access or facilities in finding out the source of leakage and/or remedying the problem may be relevant in finding liability.  Unreasonable refusal to cooperate may of course be remedied by suitable interlocutory order by the court.  However, I do not find that the defendant has been guilty of unreasonableness as suggested by the plaintiffs.  Further, I cannot axiomatically say that simply because the water seepage persisted, the remedial action taken by the defendant such as the replacement of the hot water pipe is wrong and misguided.  It may be possible that the problem lies elsewhere.

39.  I find that the duty lies on the plaintiffs to prove the source of the seepage has emanated from Flat 19B.  They have sought to do so by their expert, but the expert and all the circumstances do not give me sufficient assurance of the source of the problem.  I suggest that the plaintiffs’ expert visit Flat 19B, or the adjoining flat in Block 1, if necessary, to conduct the necessary test to identify the source of the seepage.

40.  In view of my conclusion on the identification of the source of water seepage, it is not necessary to deal with the points of the 1^st and 2^nd plaintiffs’ interests in Flat 18B.  But had I been satisfied on the evidence before me, I see no reason why an occupant for the time being could not have sought an interlocutory injunction if the cause of action in negligence were made out.

41.  In the circumstances, the application for interlocutory injunction is refused.

42.  After hearing the parties on costs, I order that the plaintiffs do pay the costs of the application to the defendant, to be taxed if not agreed.