WONG KAN TAI v. MAN KAU KAN AND ANOTHER

DCCJ 14290/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 14290 OF 2000

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J U D G M E N T

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1. This is a claim by the Plaintiff the registered owner of Shop 3 on Ground Floor and Cockloft, Shun Hing Building, Nos. 1-9 Pau Cheung Square, Nos. 19-27 Sai Tai Street, Nos. 1-3 On Ning Road, Yuen Long, New Territories (hereinafter referred to as "the Plaintiff's Shop") against the Defendants, the registered owners of Flats B and C on 1st Floor, Balcony and Flat Roof, Shun Hing Building, Nos 1-9 Pau Cheung Square, Nos 19-27 Sai Tai Street, Nos 1-3 On Ning Road, Yuen Long New Territories (hereinafter referred to as the "the Defendants' Flat") for damages arising from water leakage and nuisance with damp patches appearing at the ceiling of the Plaintiff's Shop. The dampness has rendered the plaster at the ceiling of the Plaintiff's Shop to become loosened and the paint finish to peel.

2. The Plaintiff's claim is based on negligence more particularly referred to in paragraph 8 of the Statement of Claim and nuisance. The Plaintiff applies for an injunction to restrain the Defendants by them or their servants or agents from repeating or continuing the said nuisance or any nuisance of a like kind and damages to be assessed.

3. The loss and damage is particularized in paragraph 9 of the Statement of Claim.

The Plaintiff's Case

Evidence of Wong Wai Nam

4. The Plaintiff's younger Wong Wai Nam (PW1) was authorized by the Plaintiff to give evidence on behalf of the Plaintiff. His witness statement was adduced as his evidence in chief. In his witness statement he referred to the first event of water leakage in about early 1995. Damp patches appeared on the ceiling and wall of the Cockloft of the Plaintiff's Shop. The dampness had caused blistering and peeling of the affected paintwork on the ceiling and walls. The rear part of the ceiling and walls in the rear of the Plaintiff's shop was affected to varying degrees in the same way.

5. PW1 then engaged a surveyor Messrs. Proficient Surveyors & Co ("the Surveyor") to investigate as to the cause of the water leakage. After inspection it was confirmed that the source of water leakage came from the Defendants' Flat and was attributable to the unauthorized alteration of the flat roof and light well in the Defendants' Flat to become a covered extension of the Defendants' flat. The Survey Report dated 24th June 1996 (hereinafter referred to as "the 1st Report") recommended that the Defendants do various remedial works at his flat to remedy the water leakage.

6. The Plaintiff complained to the Defendants' tenants and the Defendants' representative Mr. Man Ping Yau. However they took no action. The Plaintiff's solicitors Messrs. Laurence Pang & Co. wrote to the Defendants on about the 12 July 1996 informing the Defendants of the water leakage into the Plaintiff's Shop and requesting the Defendants to rectify the problem.

7. Eventually the Defendants agreed to engage a plumbing contractor to carry out the maintenance and repair works to resolve the water leakage problem. According to PW1 such work was never done.

8. The second complaint of water leakage occurred in about 1998. This time the water leakage problem became more serious. PW1's complaint to the Defendants and the Defendants' tenant did not bear fruit. PW1 filed a complaint to the Regional Council related to the water leakage problem. The Defendants' representative then contacted PW1 and eventually an agreement was reached whereby the Defendants' representative and the Defendants' Tenant agreed that the repair costs estimated by a licenced plumber at $18,000 would be contributed to in the following way:-

a. a sum of $9,000 to be contributed by the Defendants;

b. a sum of $4,500.00 to be contributed by the Defendants' Tenant;

c. a sum of $4,500.00 to be contributed by the Plaintiff.

9. PW1 stated that the Defendants' tenant handed him two post-dated cheques in the total sum of $13,500 in purported payment of the agreed contribution of the Defendants. However these two cheques were dishonoured upon presentation for payment. PW1 then found that the Defendants' tenant moved out of the Defendants' Flat. The Defendants' representative Man Ping Yau, who was contacted asked PW1 if he had kept the dishonoured cheques. PW1 said, "if you have no intention to pay, why should I return them?" The Defendants' representative Man Ping Yau, told PW1 not to contact him any more. Under cross-examination, when it was put to PW1 that he did not ask the Defendants for payment pursuant to the 1998 Agreement, PW1 stated that he did ask the Tenant surnamed Yiu.

10. No repair work was carried out. The Plaintiff had paid a deposit of $3,000 to the plumbing contractor to carry out the work when he received the two cheques from the Defendants' Tenant. However this deposit was forfeited when the work was not proceeded with

11. In or around March 2000, the water seeped from the Defendants' Flat into the Cockloft of the Plaintiff's Shop again. The Plaintiff again instructed his solicitors to write a letter which was sent to the Defendants on the 27 March 2000 demanding the Defendants to rectify the water seepage problem.

12. On the 19 May, 2000, the Surveyor was again engaged to prepare a 2nd Survey Report.

13. On the 20 July, Messrs. Laurence Pang & Co, the Plaintiff's Solicitors sent a copy of this 2nd Survey Report to the Defendants demanding them to carry out the remedial work in the Defendants' Flat. PW1 also requested the Defendants to allow any of their workers to pass through the Defendants' Flat to carry out necessary repair to the Plaintiff's Shop but such request was refused.

Evidence of Wong Shun Tai, Stewart

14. He is the surveyor who prepared the survey report dated 24 June 1996 (1st Report) and that dated 19 June 2000 (2nd Report). His 1st Report is at pages 76 to 93 of the Bundle of Documents (BD) and his 2nd Report is at 113 to 130 of the BD. The Defendants' Solicitor stated that the contents of the two reports are not challenged.

Contents of the 1st Report

Condition of the Plaintiff's premises

(a) that the ceiling of rear cockloft had been saturated and dripping points were visible at the ceiling of various areas in the toilet, corridor, staircase and utilities area.

(b) that the ceiling plaster and paintwork of the affected ceiling and walls were blistered and peeled respectively.

(c) that part of the ceiling and walls in the rear G/F shop were dampened to varying degrees. Sections of the ceiling and wall plaster and paintwork became blistered and peeled caused by the effect of the down flow water seepage.

Condition of the Defendants' premises

(a) By the signboard indication, we observed that the Flat 21 and 23 1/F. are currently occupied by a tenant known as Fungbo Direct Sale & Trading Co. The said two flats are cut open at wall enabling common accessibility within the internal two flats.

(b) The rear part of the said two flats have been altered in that they have been extended at their back to the light well area. The premises extension covers the light well space at the position as coloured 'pink' on the attached floor plan for reference.

(c) There are vertical common waste water stacks which are originally attached on the external wall of the 1/F, embraced within inside these premises extension. We noticed that the said waste water stacks with the open hoppers are sheltered in the wall partitions in the said premises extension of 1/F No 21 & 23 flats. (see photographs No. 1 to 6 and 10).

(d) The hoppers were at the material time of our inspection, found choked and the undrained waste water filled the hoppers. The down flow waste water which could not be drained, would overflow from the hoppers to the floor of the premises extension. Water would therefore find its way to seep through the slab down to the floor below.

(e) The extended rear premises of No. 23 1/F flat has been converted to become a toilet. Water pipes are laid in walls and floor of this newly finished floor covered on top of the Client's rear premises.

(f) The floor of the No. 23 1/F toilet is inevitably dampened while the occupant is taking shower or washing activities are in proceeding within the rear part of its premises.

Water Leakage

15. Water leakage test conducted showed that there was water leakage in the concealed water pipes laid in the floor and walls of the 1st Floor premises.

Cause of Water Leakage

16. The cause of water seepage at the Client's premises is attributable to the facts that the 1/F landlords have made building alteration to convert the light well public space to become part of its premises in that the floor extension and santitary pipe fitting laid in the said extension structure were not properly finished well, i.e. in leaky condition. In addition, the communal vertical waste water stacks and hoppers lie within the said building extension leaving the over flow water from the hoppers to moisten the floor slab between 1/F and cockloft resulting water penetrates the slab structure from 1/F to enter the Client's cockloft ceiling then flows further down to the G/F ceiling and walls and terminates at its floor.

17. The Report recommended the remedial works to the Defendants' premises and repairs to the Plaintiff's premises stated therein.

Contents of the 2nd Report

Condition of G/F 23 Sai Tai Street

Condition of Cockloft of No. 23 Sai Tai Street

Survey of 1/f Shun Hing Building, No. 21 & 23 Sai Tai Street

20. That there is a party brick or concrete wall (to be clarified) about 15' L X 9' H which is the wall separating 1/F. flat roofs i.e. No. 21 & No. 23 demolished, see the position at the sketch attached.

Communal waste water pipes

21. There are 4 communal waste water pipes, 2 numbers of which attached to the external wall of No. 23 vertically lined from 5/F. down to the manhole on G/F. passed through the flat roof, 1/F. floor slab No. 23 and 2 numbers of which attached to the external wall of No. 21 vertically lined from 5/F. down to the manhole on G/F. passed through the flat roof, 1/F. floor slab No. 21. There are four hoppers, 2 positioned at the floor slab of flat roof, 1/F., No. 21 and 2 positioned at the floor slab, 1/F., No. 23 (see arrows pointed in photo P.16, P.17, P.21).

Cause & Water Leakage Origin

23. The Report recommended remedial work to the Defendants' premises as stated therein. It also gave an estimate of the costs of the repair to the Plaintiff's premises.

24. Upon cross-examination, Mr. Wong admitted that he was not sure if there was a party wall separating the flat roofs of 1st Floor of No. 21 and 23 at time of the purchase of the property at the sale of these properties by the developer to the first owner, the Defendants.

Evidence of Man Ho Yan

25. He is the tenant of the Defendants. His evidence only states that since March 2000 renovation work has been carried out in the whole building. He obtained the consent of Man Ping Yau, the Landlord's representative to remove the asbestos roof which was an unauthorized extension over the flat roof area.

26. He refers to a complaint from the tenant of the Plaintiff made to him on the date when the asbestos roof was being dismantled in relation to water seepage of the ceiling of ground floor premises. When he offered to remedy the defect being himself a decorator, the said tenant refused.

27. He also gave hearsay evidence that a staff of the construction company that carried out the renovations of the building informed him that the tenant of the Block C ground floor shop would not allow the construction worker to enter into the said shop to change the waste water pipe situated therein.

Evidence of Man Ping Yau

28. He is the representative of the Defendants. He stated that in relation to the first complaint of the Plaintiff in 1996 related to the water leakage onto the Plaintiff's ground floor shop premises, he had had discussions with the Plaintiff's representative PW1 related to the repair of such. Arising from that, he entered into an agreement with the Plaintiff's representative PW1, to remedy the water leakage from the Defendants' premises. An oral agreement was reached whereby if the Defendants contracted a plumbing contractor to carry out repairs to the satisfaction of the then tenant and current tenant of the Plaintiff's premises, whereupon the Plaintiff would not make further claims against the Defendants. The Defendants then entered into an agreement with their tenant Ms. Kong Kwai Bo (hereinafter referred to as "Kong") whereby the Defendants would pay $30,000.00 for the repairs. The said agreement entered into on about 2nd July 1996 is at page 142 of the BD. It was made between the Defendants' representative and the Defendants' tenant. The Defendants stated that the repairs had been completed and he had paid the $30,000. Both Kong and the Plaintiff's tenant expressed satisfaction with the repairs. No survey was done in relation to the effectiveness of the repairs.

29. In about 1998, PW1 made an oral complaint against him in respect of the water leakage under the flat roof extension area of Block C of the 1st Floor of the Defendants' premises. PW1 stated that a sum of $18,000.00 would be required for the repairs. Although he was not permitted by the Plaintiff's tenant to inspect the aforesaid water leakage and on a without admission of liability basis, he agreed to pay half of the cost for remedying the water leakage in the sum of $9,000. This he refers to as "the 2nd oral agreement". However PW1 did not request him to pay this sum and he did not pay this sum. Were he requested to pay, he would have paid.

30. In March 2000 he received a letter from the Plaintiff's solicitor related to the water leakage. He telephoned the Plaintiff to enquire about the execution of the 1998 oral agreement and learnt that no repair work had been carried out by the Plaintiff. That was because Kong's husband paid him a cheque for $3,000 in respect of the repair. Such cheque was dishonoured. Kong moved out and could not be located.

31. On about 20 July 2000, he received a further letter from the Plaintiff's solicitors Messrs. Lawrence Pang & Co. with the 2nd Report from the surveyor.

32. He stated that the altered or unauthorized extension into the flat roof was done by his tenant not by the Defendants. He stated that the unauthorized roof structures were dismantled when the Owners' Incorporated were doing renovation work in the building. In relation to whether he has proof that the repair work was done in 1996, he stated that he paid Kong the $33,000.00 this was the sum of $30,000.00 for the repair of the water leakage and the waste water drain and the water supply pipe and to make sure that the hoppers were repaired so that they did not leak and the pipes did not leak and that there were no leakage in the hidden pipes.

33. He stated that the waste water pipes on the external wall of the premises from 5th Floor of the building to the flat roof to the ground floor together with the hoppers related thereto located on the flat roof is a common facility and the responsibility for repair should be a common responsibility of all the owners of the building. This could be shown in the plan of the building of the water supply pipes and the waste water pipes.

34. In fact there is a renovation agreement dated 21 January 2000 made between Fu Lee H.K. Construction Company Limited and the Incorporated Owners for the renovation of the building. On about March to mid August, the four waste water pipes with their hoppers were replaced.

35. It was denied that it was necessary to remedy the floor slab of the Defendants' premises in order to remedy the water leakage problem. It was also stated in relation to the proposal in the 2nd Survey Report that the Defendants should remedy the gaps between the hoppers and the floor slab of the Defendants' premises, that instead of this proposal repairs should be done in the ceiling of the Plaintiff's premises. Furthermore it was stated that the Fu Lei Construction Company Limited had already done the repairs.

36. In effect the Defendants denied liability in respect of the claim.

The Issues

37. I agree with the Plaintiff's Counsel that there are in effect three issues to be decided. These are:-

1. Whether on balance of probabilities, the said 1996 agreement has been carried out by the Defendants;

2. Whether the Defendants are liable for the water leakage;

3. If the Court finds the Defendants liable, the amount of general damages and the amount of special damages.

1st Issue

38. Wong Wai Nam (PW1) stated that the remedial work related to the 1996 complaint had not been. However under cross-examination he stated that he did not know if it had been done. The evidence of the Defendants related to this is also indirect and consists of double hearsay evidence. The Defendants' witness, Man Ping Yau (DW2) relied on a Chinese Agreement between himself and the Defendants' then tenant Madam Kong. I agree with the Plaintiff's Counsel that the said Agreement did not mention how the remedial works were to be carried out. There was no quotation of works attached to it or the works to be included for the price. All that DW2 could say was that he paid the sums stipulated in the said Agreement and a further sum of $3,000 to the Plaintiff's tenant for decoration of the Plaintiff's tenant's premises. He relied on what the Defendants' tenant told him that the Plaintiff's tenant had shown satisfaction in the work.

39. The Defendants' Solicitor relies on the reply of PW1 to her cross- examination. She referred to the letter from his solicitors written to the Defendants dated 27 March 2000 which states in the 2nd paragraph thereof that the condition of leakage referred to in their letter dated 12 July 1996 had improved but had recently resumed again. The Defendants' Solicitor asked PW1 whether that letter was written pursuant to his instructions. PW1 said 'yes'. The Defendants' solicitor submitted that the reference in that letter from the Plaintiff's solicitor to the Defendants stating that the condition had improved would indicate that some renovation work must have been done in 1996.

40. The Defendants' Solicitor further refer to the causes for leakage into the Plaintiff's premises stated in the 1st and 2nd Survey Reports being different. This she submitted would show that there must have been repairs done since the 1st Report. However, it is clear that by the time of the 2nd Report, the Defendants had removed the unauthorized extension and enclosure of waste water pipes in the flat roof of his premises. Hence the cause for water leakage created by the aforesaid unauthorized extension and enclosure of waste water pipes would no longer apply. Water penetration from overflow water from the hoppers into the floor slab between the 1st Floor and the cockloft seem to be a cause of water leakage in both Reports. In the 2nd Survey Report however, there is specific reference to waste water passing through the floor slabs of the 1st floor to the Plaintiff's premises because of the worn and pervious condition of the said floor slab. By the time of the 2nd Survey Report, the floor tiles on the flat roof laid there during the unauthorized extension of premises had been removed (see photos 2, 5, 6,7,9,10 of the 1st Survey Report and photos 16,17,18 & 21 of the 2nd Survey Report).

41. Having considered all the evidence, I come to the conclusion that even were repairs conducted in 1996, such repairs had not been comprehensive or effective or of lasting effect.

2nd Issue

42. The causes of the water seepage stated in the 2nd Survey Report has been referred to above. The first cause relates to overflow of water from the four hoppers. The overflow of water passes through gaps between each hopper and the 1st Floor slab and seeps through to enter and drip out from the ceiling of the plaintiff's cockloft down to the cockloft and to the Ground Floor shop. The 2nd cause is the dilapidated, worn and pervious condition of the Flat Roof and the toilets of the Defendants' premises. This allowed the overflow of water to pass through the floor slabs to enter and drip from the ceiling of the Plaintiff's cockloft.

43. The question as to who is responsible for the repair and maintenance of the flat roof is an important issue. It is pleaded in paragraph 12 of the Defence that the flat roof is the "External Parts" of the building within the meaning of Clause 4 of the DMC and therefore the Defendants are not wholly or solely liable for keeping it in good and tenantable repair and condition.

44. Clause 4(b) of the DMC states:-

"Each of the parties hereto shall pay his due proportion of the costs of keeping in good and tenantable repair and condition the foundation, the side walks, main walls, supports, beams, gutters, fences, chimneys and all external parts of the said building and all the drains, well water tanks, electric pumps, pipes, conduits and all pumping apparatus (if any) intended for the general service of the said building (except as regards damage caused or resulting from any act or default or negligence of any of the parties hereto their respective servants or agents or tenants or licensees) and the common entrance halls, staircases, landings and passages."

45. I agree with the Plaintiff's Counsel that it is clear that the Defendants are and were at all material times the registered owner of the said flat roof. The Land Search record at pages 134-137 of the BD state this. Further the First Schedule of the DMC at p.65 of the BD state

"Each of the parties hereto shall at all times hereafter subject to the provisions of Clause 14 hereof have the full right and privilege to the exclusion of every other party to the use occupation and enjoyment of the part or parts of the said building which is or are more particularly described and set out in the Second Column of the First Schedule hereto opposite to the name of such party set out in the First Column of the First Schedule hereto with the appurtenances thereto and the entire rents and profits of such part or parts."

46. In the First Schedule of the DMC (p.65 of the Bundle), the Defendants were allotted Flats B and C on the First Floor together with the balcony attached and portion of flat roof thereof.

47. It is clear from the DMC that the Defendants did have full right and privilege to the exclusion of every other party to the use occupation and enjoyment of the flat roof.

48. The Defendants' Solicitor states that in view of Clause 4(b) of the DMC, and the fact that the flat roof is an external part, the Defendants had the right to use and occupation and enjoyment thereof but did not have to be responsible for its repair.

49. The Plaintiff's Counsel refers to Clause 2(d) of the DMC which provides:-

"the part for the time being entitled to the exclusive use occupation and enjoyment of any top floor flats shall ..... have the exclusive right to the use of that portion of the roof directly above his flat ..... provided that ..... such party shall be responsible for maintaining and keeping such portion of the said roof in good repair and condition."

50. Clause 2(d) links up the responsibility for maintaining and keeping the part of roof in good repair with the one to whom exclusive right to use occupation and enjoyment of such part of the roof has been given, namely the owner of the top floor flat directly below such part of the roof. It seems to me that the same principle must be the underlying principle with respect to flat roof. The owner of that part of the flat roof to whom the exclusive use occupation and enjoyment has been given must have the responsibility for maintaining and keeping that part of the flat roof in good repair.

51. The Plaintiff's Counsel submits that by reference to the aforesaid, the true construction and effect of Clause 1, 2 and 4 and the First Schedule of the DMC, correct construction of Clause 4 would clearly not include the flat roof of the Defendants' premises as an "external part" within its meaning in Clause 4.

52. Further, Section 34H of the Building Management Ordinance states:-

"(1) 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. (Amended 69 of 2000 s.14)

(2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant."

53. In my view it is clear from the aforesaid that the true construction and effect of Clause 1, 2, 4 and the First Schedule of the DMC, in the light of Section 34H of the Building Management Ordinance, that the Defendants are and were at all material times responsible for maintaining and keeping their flat roof in good repair and condition. This would necessarily entail that the flat roof would be impermeable to water.

54. The Defendants' Solicitor had indicated at the commencement of the trial that they did not challenge the contents of the two Survey Reports. The 2nd Survey Report and its opinions stated therein are not challenged. I accept the opinion of Mr. Steward Wong that the flat roof and the toilets of the Defendants' premises are dilapidated, worn and pervious without remedial maintenance allowing waste water to pass through their floor slabs to enter and drip out from the ceiling of the Plaintiff's cockloft.

55. The Defendants' Solicitor submitted that the likely cause of the water overflowing from waste water stacks and hoppers is that the waste water stacks in the Plaintiff's part of the premises must have been blocked. This is pure speculation and there is no evidence that this is so. Hence such speculation could not be accepted. Even though the 1st Survey Report refers to the hoppers having been choked, there is no basis to come to the conclusion that the waste pipes beneath are blocked. There is no evidence related to the design of hoppers, for instance whether there are grates under the hoppers or cross-examination as to how or why hoppers have become choked. The reference to the hoppers being choked did not appear in the 2nd Survey Report.

56. The Defendants' Solicitor stated that the party wall referred to in paragraph 7 at page 4 of the 2nd Survey Report was not there at the time the property was purchased. Further the sealing of the gaps between the hoppers of the drainage pipes and the floor slab at the flat roof of the Defendants' premises is the responsibility of the Incorporated Owners. She submitted that the Defendants should not be responsible for water leakage arising from the gap between the two.

57. The Defendants' Solicitor further submits that the repair of the floor slab should not be the responsibility of the Defendants rather it is a common part. Clause 4(b) of the DMC which states the parts of the building which each of the parties to the DMC "shall pay his due proportion of the cost of keeping in good and tenantable repair and condition", does not include the floor slab of premises. Since the floor slab between upper and lower premises is not included as parts which is to be maintained by the parties to the DMC, logically, the floor slab between upper and lower premises would have to be maintained as to the top side by the owner of premises above and the underside by the owner of premises beneath.

58. Even were I wrong in coming to this conclusion, the Defendants have the responsibility for maintaining and keeping in good repair the flat roof of the premises so that it is impermeable to water. The Defendants' responsibility to ensure that the flat roof is kept in good repair and condition so that it would be impermeable to water would necessarily include the condition that there would be no gap between the hoppers and the flat roof surface which would allow water overflowing from hoppers to flow through the gaps into the floor slab beneath the flat roof.

59. I agree with the Plaintiff's Counsel and Defendants' Solicitor that there was no obligation on the part of the Defendants to keep the communal stacks and hoppers in good repair and condition. However the Defendants do have a responsibility to keep the flat roof in good repair and condition and all that that entails referred to aforesaid. Apart from that the Defendants also have to take any and/or adequate steps and/or precaution to prevent water and/or other fluid from seeping and/or escaping to the Plaintiff's premises when the water overflowed from the hoppers or waste water stacks onto the flat roof. In my view the Defendants had failed in these responsibilities.

60. The Defendants' Solicitor submitted that the Defendants should not be found to be wholly responsible for the water leakage. The Defendants' Solicitor stated that liability for water leakage should be apportioned because the repair done by the Incorporated Owners had caused the water leakage. There is no evidence of such. Secondly the Defendants' Solicitor submitted that the repair of the waste water pipe and hoppers had been ineffective thus causing the overflow of water. There is no evidence of this. Thirdly the overflow of water from the hoppers was caused by blockage of that portion of the waste water pipe that went below the floor slab between the Defendants' flat roof and the Plaintiff's cockloft. There is no evidence of this. The 1st Survey Report stated that the hoppers were choked. The 1st Survey Report was prepared at the time when the hoppers were enclosed by decoration work done on the Defendants' premises. Neither the 1st Survey Report nor the 2nd Survey Report state that that portion of the waste water pipe was blocked. Furthermore DW1's evidence seemed to point to the fact that repair for that part of the waste water pipe was included in the repair contract between the Incorporated Owners and Fu Lee H.K. Construction Company Limited. This would show that the Incorporated Owners recognized that responsibility for repair of such lay with themselves. Also there is no evidence to show that even were there blockage in this section of the waste water pipe, the cause of such blockage lay with the Plaintiff or the responsibility for remedy of such blockage. Fourthly the Defendants' Solicitor submitted that the Plaintiff's tenant had been uncooperative so as to cause the blockage of such portion of the waste water pipe to continue. Since there is no evidence of blockage in such portion of the waste water pipe, this submission could not stand. Furthermore there is no direct evidence apart from hearsay evidence from DW1 that the Plaintiff's tenant had refused to allow the Fu Lee H.K. Construction Company Limited to carry out the repairs to change the waste water pipe that went through the floor slab between the Defendants' flat roof and the ceiling of the Plaintiff's cockloft. Also there is no evidence that such section of the waste water pipe had not been changed and removed at the end of the repair work carried out by Fu Lee H.K. Construction Company Limited. Little weight could be given to this evidence. I therefore am of the view that there is no evidence to support the Defendants' Solicitor's submission that liability for the water leakage should be apportioned as submitted.

61. Having considered the aforesaid I come to the conclusion that, were the flat roof in good repair and condition and hence, impermeable to such overflow of water, the overflow of water would not have leaked into the Plaintiff's premises. As the Defendants had failed to keep the flat roof in good repair and condition as aforesaid, the Defendants' failure to do so and failure to take any and/or adequate steps and/or precaution to prevent water and/or other fluid from seeping and/or escaping to the Plaintiff's premises when the water overflowed from the hoppers or waste water stacks onto the flat roof had caused water leakage to the Plaintiff's premises. I therefore find that the Defendants are liable for the leakage problem into the Plaintiff's premises.

3rd Issue

62. In relation to damages, the Plaintiff claims general damages for inconvenience and discomfort. The Plaintiff's Counsel refers to the case So John & Anor v Lau Hong Man & Ors [1993] 2 HKC 356. In that case it was held that general damages for inconvenience and discomfort could be awarded in a breach of contract action. The action was brought for damages for breach of Clause 10 (c) of the DMC. The Plaintiffs lived in the premises wherein damage was caused by water leakage. It was held that the escape of water from one person's premises to another's was a classic instance of nuisance in the eyes of the law.

63. The Defendants' Solicitor submitted that as the Plaintiff had let out his premises to a tenant, the nuisance caused could not affect his enjoyment of the premises. The Plaintiff could not bring a claim for nuisance. Hence neither damages for inconvenience and discomfort nor the remedy of injunction is available to the Plaintiff. Authorities cited included Lai Sai Kee v Yim Ping Wai (unreported, 6 June 1997; A5351 of 1997), Hunter v Canary Wharf Ltd. [1997] 2 All ER 426.

64. In Lai Sai Kee v Yim Ping Wai, the Plaintiffs, the owners of a shop and cockloft in Maple Street, and Fuk Wa Street, Kowloon took out an action against the proprietor of a licensed fixed pitch stall with the cause of action based on nuisance. The nuisance complained of is the creation of a great noise, spreading a bad smell, producing fire, flames and sparks from cutting, trimming and sewing metal bars in a scavenging lane.

65. The Defendants' Solicitor in that case referred to Jones v Chappel 20 L.R. Equity Cases 539 and in particular the judgment of Sir George Jessel MR at page 543 where he said "The injury is a temporary nuisance because the source might be stopped and the steam engine might cease working at any moment. It is only an injury to the occupier and the landlord cannot bring an action because before his estate comes into possession, the nuisance may have ceased or the person committing it may choose to make it cease the moment the estate comes into possession."

66. Rogers J. as he then was, in his judgment in relation to what is in the nature of a temporary nuisance stated, "it is the nature of the nuisance must be looked at. I have already recited the relevant part of para. 4 of the Statement of Claim, those are matters which could cease at any moment. Questions of noise must presumably cease at night when work stops, presumably the bad smell also does. But in any event all these matters could cease almost at a moment's notice. Since the Plaintiffs are not the persons in possession of the shop and cockloft which is the particular premises, it seems to me that their action must fail."

67. In Hunter v Canary Wharf Ltd.at para d of page 435, it states,

" since the tort of nuisance is a tort directed against the plaintiff's enjoyment of his rights over land, an action of private nuisance will usually be brought by the person in actual possession of the land affected, either as the freeholder or tenant of the land in question, or even as a licensee with exclusive possession of the land (see Newcastle-under-Lyme Corp v Wolstanton Ltd [1946] 2 All ER 447 at 455-456, [1947] Ch 92 at 106-108 per Evershed J); though a reversioner may sue in respect of a nuisance of a sufficiently permanent character to damage his reversion."

again at para g and h at page 438, it states,

"It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of the persons who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally however, as Foster v Warblington UDC shows, this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected."

68. The Plaintiff is a reversioner being the landlord of property which had been let out under a tenancy. The nuisance being one of water leakage causing damage to the property must be one of a sufficiently permanent character to damage his reversion. It could easily be envisaged that the continued water leakage if unabated could in due course cause even greater damage to his property than is reported on in the Survey Reports. According to paragraph 9 at page 5 of the 2nd Survey Report, it is stated "The Owner and Tenant of Cockloft and G/F, No. 23 Sai Tai Street have been suffering long time water leakage caused damage to the structure of its premises". In my view, this is a case where the Plaintiff, the reversioner could bring an action of private nuisance for a mandatory injunction to require the Defendants to do the remedial works at the 1/F No. 21 and 1/F No. 23, Sai Tai Street as recommended in para 7 (2) and (3) of page 4 of the 2nd Survey Report so as to put a stop to the continuance of the nuisance which could cause damage to the structure of the Plaintiff's premises. In the light of the evidence of Mr. Steward Wong, the Surveyor that he could not maintain his contention that there was a party brick or concrete wall about 15' wide and 9' high at the position as indicated in the 1/F sketch attached to the 2nd Survey Report, I am of the view that the reinstatement of such as stated in para. 7(1) at page 4 of 2nd Survey Report is not required. In my view, were, such a wall not in existence at the time of purchase of the Defendants' property from the developer, the flat roof not having been affected by its removal, it need not be rebuilt.

69. However, as the Plaintiff did not himself suffer the discomfort arising from the water leakage, general damages therefore would not be allowed. I also grant the special damages claimed for repair of the Plaintiff's premises as particularized in paragraph 9 of the 2nd Survey Report at 118 of BD. I find such items proved as the Defendants' Solicitor had stated at the outset that she did not oppose the contents of the Survey Reports.

70. The Plaintiff's representative, PW1, when giving evidence referred to a reduction in rent in the sum of $5,000 p.m. from 1st September 2001, given to the Plaintiff's tenant due to the nuisance caused arising from the water leakage. However, the Plaintiff could provide no documentary proof of this. This could not be allowed. In relation to the loss of $3,000 arising from the forfeiture of the deposit paid to the contractor when the Defendants failed to pay their agreed share of the decoration cost pursuant to the 1998 oral agreement, there is no receipt showing payment of this. I would not allow this without documentary proof therefore.

71. I therefore give judgment as follows:-

Judgment for the Plaintiff against the Defendants in the sum of $63,000.00 together with interest thereon at judgment rate from date of claim until judgment and thereafter at judgment rate until payment. I grant an order nisi that costs of the action be to the Plaintiff to be paid by the Defendants to be taxed if not agreed with Certificate for Counsel.

I grant a mandatory injunction against the Defendants requiring them to do the following remedial works within 90 days:-

(1) That the gaps between the hoppers of drainage pipes and the flat slab at the flat roof of 1/F. No. 21 and 1/F. No. 23 should be sealed tight ensuring no water can pass through into the floor slab to the Cockloft and G/F. of the Plaintiff's premises.

(2) That the flat roof of 1/F. No. 21 and 1/F. No. 23 should be properly mended and trowelled with damp proof course preventing dampness from passing through the floor slab of 1/F. No. 21 and 1/F. No. 23 to enter Cockloft and G/F. of the Plaintiff's premises.