NG CHOI SAU YUM aka CHOI SAU YUM v. KWONG MAN POR AND OTHERS

DCCJ 4200/2020

[2024] HKDC 1213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4200 OF 2020

---------------------------------------

---------------------------------------

-------------------------

JUDGMENT

-------------------------

Introduction

1.  This is a water seepage case.

2.  The plaintiff is the registered owner of Flats 3A and 3B (“3A” and “3B”) on 3/F, No 59 Ming Fung Street & No 54 Fei Fung Street, Kowloon (“the Building”). The Building is also known as “Fei Fung House” (飛鳳樓).

3.  The 1^st defendant is the registered owner of Flat 4A of the Building (“4A”).

4.  The 2^nd defendant is the registered owner of Flat 4B of the Building (“4B”).

5.  The 3^rd defendant is the Incorporated Owners of the Building, which was incorporated on 20 January 2015.

6.  At the outset, I should mention some of the salient features of this case.

7.  The Building is a Chinese tenement building (唐樓), consisting of 12 units (two units on each floor), built in 1967. It lacked maintenance and had not undergone any renovation until 2019, the time at which the major renovation was carried out (“the major renovation”).

8.  The Deed of Mutual Covenant of the Building was entered into on 31 July 1967 (“the DMC”).

9.  In this case, there is unauthorised building work in each of the units concerned. That is, the plaintiff re-constructed 3A and 3B into a combined unit, with the common wall in between them being removed. The 1^st and 2^nd defendants have converted their respective units, ie 4A and 4B, into various subdivided units (劏房) for rental purposes. Each subdivided unit has its own bathroom. As such, there are six or seven bathrooms in total being constructed in 4A and 4B.

10.  The plaintiff has retrieved testing data from the Joint Office of the Buildings Department and the FEHD (“the Joint Office”), which conducted investigations, moisture measurement tests, and coloured water tests in 3A & 3B and 4A & 4B on 22 May, 6 & 19 June, and 17 July 2019. The test results were mixed. This court does not find the test results to be helpful as they were not produced by the Joint Office by way of an expert report, and those test results were non-conclusive. The parties would rely on their own experts.

11.  However, the only benefit this court can derive from the Joint Office’s records is:

(1)  the photographs provided by the Joint Office showed that the internal conditions of 3A and 3B were not in a habitable state. I confess that this is one of the most serious cases of water leakage I have ever seen. Speaking of which, I was referring to the internal damage and deteriorated conditions that were caused. The internal conditions were appalling. There was concrete spalling on the ceilings, peeling paint, and mould everywhere (covering almost the entire ceiling and walls) inside the premises. It looked damp and mildewed all over the place. It appears to me that the plaintiff has not done any repairs to address the problem of water leakage for many years.

(2)  The chloride test showed that the water leaked from 4A and 4B was positive, meaning it was salt water from the toilet system, which would cause much more damage to iron exposure.

The plaintiff’s case

12.  The plaintiff is an 85-year-old lady. Consequently, the entirety of the proceedings was carried out by her daughter, Ms Ng On Mei (hereafter referred to as “Mei”), who was acting as the authorised representative and testifying in court as the plaintiff's witness (PW1).

13.  The plaintiff purchased the properties 3B in 1967 and 3A in 1982. Subsequently, she has resided there with her family over 37 or 52 years. The plaintiff's husband passed away in 2012. The current residents of the properties include the plaintiff, her three daughters, and her grandson.

14.  In early 2019, water seepage/leakage issues were identified in 3A and 3B. The cause of these issues was attributed to 4A, 4B, and the external wall of the Building.

15.  It is not disputed that the external wall formed the common parts of the Building.

16.  In the Statement of Claim, the plaintiff pleaded quite a number of causes of action by way of further and alternative cases, outlining the defendants’ alleged failures or breaches. The plaintiff’s case asserted that the defendants had not maintained their properties, including the 3^rd defendant’s duties on the external wall, resulting in water seepage and damage to the plaintiff's flats. Additionally, the plaintiff alleged that the defendants had breached the DMC and/or the Building Management Ordinance (“BMO”), and had acted negligently and/or caused a nuisance.

17.  Essentially, the plaintiff’s case is that the defendants are responsible for the water leakage and subsequent damage to her properties.

The issues

18.  The plaintiff has alleged that there were four areas suffered from water leakage:

(1)  3A’s bathroom;

(2)  3A’s kitchen;

(3)  3B’s bathroom;

(4)  3B’s living room.

I will examine each area in turn to determine which party is liable for the water leakage.

19.  There is another matter that requires attention. On 16 May 2019, the electrical distribution board (often referred to as the breaker box) (“the distribution board”) in 3B’s living room exploded and caught fire, due to water dripping from 4B. The plaintiff's family has determined that 3A and 3B were no longer safe or suitable for habitation. As a result, they had relocated to a hotel and later serviced apartments, where they had resided for over one year. The plaintiff is seeking reimbursement for the cost of alternative accommodation, which amounts to a total of $380,168 for two rooms for the entire family. The question is whether the plaintiff is entitled to such reimbursement, asserting that the 3^rd defendant is also liable for the same.

The plaintiff’s claim and settlement with D1 and D2

20.  The plaintiff commenced proceedings against all three defendants on 12 August 2020.

21.  The plaintiff claims damages as follows:

(1)  Costs of alternative accommodation in the total sum of $380,168, namely:

(a)  Hotel stay from 16 to 19 May 2019 at Penta Hotel: $7,128; and;

(b)  Serviced apartments stay from 20 May 2019 to 28 July 2020 at Harbourview Horizon Hotel: $373,040;

(2)  Costs of remedial/renovation works done in the total sum of $122,600:

(a)  For 3A, $43,300; and

(b)  For 3B, $79,300;

(3)  Surveying and professional fees in the total sum of $87,500:

(a)  For 3A, $37,000; and

(b)  For 3B, $50,500;

(4)  General damages to be assessed; and

(5)  Interest and costs.

22.  The surveyor's reports indicated that the conversion of 4A and 4B into various subdivided units might have resulted in water leakage and damage to 3A and 3B, respectively.

23.  In such instances, the 1^st and 2^nd defendants reached a settlement (on a non-admission of liability basis) with the plaintiff by paying $150,000 and $105,000, respectively, on 8 September 2020 and 20 December 2021, with no order as to costs.

24.  It remains for the 3^rd defendant to contest the proceedings.

25.  The plaintiff is seeking to recover approximately half of the costs of the renovation works and surveyor reports for 3A and 3B, as well as one-third of the alternative accommodation fee from the 3^rd defendant. These were calculated based on an equal share of liabilities with the respective owners of 3A and 3B. As for general damages, the plaintiff seeks $50,000 from the 3^rd defendant for inconvenience.

The 3^rd defendant’s case

26.  The building owners reached a consensus on the necessity of maintaining the Building, leading to the establishment of the Incorporated Owners in 2015.

27.  The 3^rd defendant signed the Maintenance Contract with Yan Cheong Construction Engineering Limited on 18 April 2019’ and received subsidies under the government under the “Integrated Building Rehabilitation Assistance Scheme” (樓宇維修綜合支援計劃). The 3^rd defendant proceeded with the maintenance works on the external walls of the entire building on 20 May 2019 (“the major renovation”) (大維修).

28.  The major renovation was completed to the satisfaction of the owners, the Consultant (YSL Surveyors Limited), and the 3^rd defendant on 11 September 2019. (Notwithstanding Mei denied that she and her sister (Ng On Ling, being the Treasury of the Incorporated Owners) were actively involved in the major renovation, I accept the evidence of Madam Liu Wan (the wife of the Chairman) (DW1) that they were and that they were aware of the renovation being satisfactorily completed).

29.  Prior to and following the completion of the major renovation, the plaintiff only raised concerns regarding water leakage from 4A to 3A and from 4B to 3B. The plaintiff did not complain against the 3^rd defendant regarding water leakage from the external walls. The 3^rd defendant was not made aware of the issue until they received a demand letter from the plaintiff’s solicitors on 18 September 2019.

30.  The 3^rd defendant denied the plaintiff’s claim and said that the plaintiff’s apportionment of damages was entirely arbitrary. It was Madam Liu’s evidence that the 3^rd defendant strongly objected to the plaintiff’s extravagant spending on alternative accommodation fees.

Legal principles

31.  The general principle is that there is no presumption that the water leakage was necessarily caused by the flat immediately above, and the doctrine of res ipsa loquitur does not apply. It is not for the defendant to identify the source of leakage or to prove it did not come from the defendant’s flat. The onus is on the plaintiff to establish that the leakage originated from the defendant’s flat (Hui Ling Ling v Sky Field Development Limited, unrep., CACV 122/2012, 22 March 2013).

32.  I consider this principle applies equally to the external wall, especially when there are other contributing factors, such as water leakage from the unit above.

Analysis

33.  There are five solo reports produced by the plaintiff’s expert, Mr Chung Wai Hoi of Hong Kong Building Inspection and Structural Diagnostic Limited (“HKBI”):

(1)  3A Report dated 21 August 2019 (“3A 1^st Report”);

(2)  3B Report dated 21 August 2019 ("3B 1^st Report”);

(3)  3A Report dated 11 May 2020;

(4)  3B Report dated 11 May 2020; and

(5)  3A & 3B Report dated 7 September 2021.

34.  There are two solo reports produced by the 3^rd defendant’s expert, Mr Chan Kwok San Coxon, registered architect:

(1)  3A Report dated 8 September 2021; and

(2)  3B Report dated 8 September 2021.

35.  Both experts together produced a Joint Expert Report dated 30 November 2021 (“the Joint Expert Report”).

36.  Ms Chan, counsel appearing for the plaintiff, suggested that, since the 3^rd defendant’s expert was only engaged after the major renovation in 2019, the 3^rd defendant’s expert could only conduct a “desk-top study” on the plaintiff’s expert reports without carrying out any test at the premises. I do not agree.

37.  In this regard, I accept the submission made by the 3^rd defendant’s counsel Mr Yuen that the 3^rd defendant only received a complaint from the plaintiff (ie a demand letter from the plaintiff’s solicitors dated 18 September 2019) after the major renovation was completed on 2 September 2019. The external wall of the whole building had been newly refurbished, and the 3^rd defendant had signed off on the completion as satisfactory on 11 September 2019. As a result, the 3^rd defendant’s expert was unable to conduct any tests on the external walls in relation to the plaintiff’s complaint. I believe it is appropriate for Mr Chan to draw on his expertise to provide feedback on Mr Chung’s reports.

38.  Having considered all the expert reports and the evidence given by both experts in court, I prefer Mr Chan’s evidence to Mr Chung’s. I find Mr Chung’s opinion not reliable for the following reasons:

(1)  In response to Mr Yuen's query regarding the apportionment of liabilities related to water leakage between the external walls of the Building and the internal walls of the respective flats, Mr Chung asserted that all external walls are only part of the common areas of the building. Consequently, he refuted any claim of ownership over the internal walls of the flats. I am unable to accept Mr Chung’s evidence in this regard as his opinion would mean that the flat or unit for sale to any individual owner would have included no covering walls. This concept is of the utmost illogical. I will address this matter in greater detail at the conclusion of this judgment.

(2)  For the first two solo reports (the main reports) provided by Mr Chung, the floor plans included were not drawn to scale. For example, a wall measuring 3.0 meters would be shown twice as long on the floor plan as a wall measuring 3.7 meters. All the floor plans provided were distorted in shape. I do not find it easy for any expert to work with distorted floor plans to substantiate his opinion in identifying the source of leakage, although he later provided the official building plan in his last solo report.

(3)  During cross-examination, Mr Chung was reminded by Mr Yuen that whenever he answered that he “does not exclude the possibility” (不排除可能性), it should bear the meaning of “one of the possibilities” and that it was “not unlikely to occur”. Mr Chung confirmed that this was indeed his intention. However, on re-examination, Mr Chung revised his testimony to indicate that all opinions previously marked as having a possibility, now fell into the “very unlikely” category, and “the possibility is very low and negligible” (微乎其微). Additionally, he affirmed that some of the answers were, in fact, “impossible” (不可能發生). I have counted that Mr Chung has changed a total of 15 of his answers consecutively in this way, all without providing any valid reasons.

39.  Therefore, except for a few points that were agreed upon by Mr Chan, which I will mention below, I would reject Mr Chung’s evidence as unreliable.

3A Bathroom and Kitchen

40.  According to the 3A 1^st Report, the plaintiff’s expert conducted water spray tests on the external walls outside the bathroom and the kitchen of 3A on 17 May 2019 (before the major renovation of the Building commenced). The result showed that there was water seepage from the external wall into the premises. Mr Chung concluded that, in addition to his finding that 4A was the direct source of the water leaking into 3A, the external wall was also part of the source. Mr Chan did not dispute those results.

41.  The only issue the 3^rd defendant raised was the question of liability for the damage to the external wall. As can be seen from the photographs included in the plaintiff’s solo reports and the Joint Expert Report, it is apparent that there were cracks and voids in the external walls outside 3A Bathroom and 3A Kitchen. Mr Yuen relies on the proviso in Clause 6 of the DMC for the liability to pay the costs and expenses of keeping the external wall in good and tenable repair and condition, which states:

“PROVIDED ALWAYS that damage caused by or resulting from any act or default or negligence of any particular owner and his servants or agents or tenants or licensees shall be made good by such owner at his own expense or if the same shall have been made good at the expense of the other co-owners then the amount expended thereby shall be recoverable from his as a debt.”

42.  It is not in question that the photographs clearly show the presence of leftover screws or stubs and a rusted L-shaped steel angle (or angle iron) located just above the windows on the external walls outside 3A Bathroom and 3A Kitchen. However, there was a difference of opinion between the parties as to whether these leftover components had caused the cracks and voids and, therefore, the leakage of water.

43.  The evidence presented by the experts, as well as the parties’ counsel submissions, led to a significant change in favor of or against each party. Mr Yuen initially submitted that the point of contact of the leftover screws had the higher readings under the water spray test, and therefore the screws must have caused the water leakage. He was advancing the argument that the responsibility for repair should fall on the plaintiff, given that the screws and steel angle must have been inserted by the plaintiff.

44.  Ms Chan was able to provide the court with a helpful clarification regarding the results of the water spray test data on the ceiling of 3A Kitchen. She explained that the area where the leftover screws were embedded did not actually have the highest readings due to the flipped image on the photographs taken at the external wall and the internal wall. The 3^rd defendant’s expert under cross-examination conceded that it was indeed the case. (There is no disagreement between the parties’ experts that the measuring points behind the leftover screw and cracks outside 3A Bathroom have the highest readings).

45.  Therefore, Ms Chan submitted, as per the plaintiff’s expert evidence, that the water leakage was caused by the cracks in the concrete of the external walls due to the age of the Building and not by the leftover screws. However, I disagree with Ms Chan and Mr Chung on this point.

46.  In my view, it is indisputable that the leftover screws (one stainless steel stud and one rusted screw stud, both of which appear to be at least 1 cm in diameter thick) had caused the cracks and voids in the concrete of the external wall. As shown in the photographs, there were several deep cracks and voids being developed, all emanating from the contact point where the leftover screws had been injected and embedded. I also found that the leftover rusted steel angle caused some cracks (as pointed out by the plaintiff’s expert, Mr Chan). I accept Mr Chan’s evidence that “it is difficult for anyone to deny that the cracks and voids were caused by the leftover screws”.

47.  I also accept Mr Chan’s explanation that there was capillary action, ie water which by its very nature absorbs and spreads to different areas, and that it is not possible to control how and where the water spreads within the concrete, which is at least 100 mm thick for an external wall. This accounts for why the readings taken on the internal wall immediately behind the screw holes are not necessarily the highest readings in the water spray test.

48.  In this regard, I also agree with the plaintiff’s expert opinion that, while accepting that there was capillary action, the essence is that the integrity of the concrete/external wall had been broken, and therefore, rainwater would be able to seep or leak through the external wall.

49.  Now, the remaining question is who attached the screws and steel angle to the external wall, causing damage to the integrity of the concrete. Mei denied that it was the plaintiff who did this. She maintained that she had no idea why there were leftover screws and a steel angle outside the plaintiff's premises.

50.  Mr Yuen drew the court’s attention to a photograph taken in July 2021 by the the 3^rd defendant’s expert showing that a canopy with a similar L-shape steel angle was being installed on the external wall outside 3B. I accept Mr Chan’s evidence, and I find, that the rusted L-shape steel angle at 3A was a supporting frame for canopy installation and was left over by the plaintiff after its removal. There are no other reasons suggested by the plaintiff as to why an L-shape steel angle was installed above the window. I reject Mr Chung’s correction to his answer from “possible” to “very low possibility” in this regard.

51.  Although there was no direct evidence that the screws and steel angle belonged to the plaintiff, I have no hesitation in finding that they did. It is common ground between the parties that the external wall of the Building had never undergone any maintenance or renovation works prior to 2019 and that the plaintiff’s family had lived there at least for the past 37 years (since 1982). Therefore, it is reasonable to conclude that no one other than the plaintiff would be able to install a canopy or attach any screws on the external wall outside the plaintiff’s premises without their notice or permission. They must have been carried out by the plaintiff, ie the plaintiff’s contractors.

52.  In the circumstances, I reject the plaintiff's suggestion that the cracks and voids were formed due to the building's age. I accept Mr Chan’s evidence that, as shown by the photographss, the cracks were due to the screws, not the old age of the Building.

53.  In conclusion, I find that there was water seepage or leakage through the cracks and voids on the external wall outside 3A Bathroom and 3A Kitchen. These cracks and voids were caused by the leftover screws and steel angle, which were previously installed or injected by the plaintiff. In other words, the integrity of the concrete external wall was broken and damaged by the plaintiff. I find that the proviso in Clause 6 of the DMC is applicable, and the plaintiff is liable for the costs and expenses of such necessary repairs. The plaintiff’s claim against the 3^rd defendant in those two areas fails.

3B Bathroom

54.  It is the evidence of the plaintiff’s expert that the water leakage to 3B Bathroom was caused by the defective waterproofing layer on the external wall. His opinion was based on visual inspection and the result of the Electrical Conductivity Sensing Survey and Infra-red Scan Survey which showed that there was more moisture than usual in the ceiling area near the external wall of the bathroom.

55.  However, I am unable to accept Mr Chung’s conclusion for the following reasons. First, Mr Chung did not conduct any water spray test on the said external wall outside 3B Bathroom, and he was silent in his report as to whether the water source affecting 3B Bathroom was rainwater.

56.  Although the test results showed more moisture in the ceiling and the beam areas near the external wall, it cannot be concluded that the water was coming from the external wall as there had been no rainfall in the last five days, and the moisture could be coming from the above unit. There is no presumption that the water must have come from the external wall.

57.  I accept Mr Chan’s comments that, for this reason alone, there is insufficient data to support the existence of water leakage from the external wall.

58.  Second, I do not accept Mr Chung’s assertion that, because the area above in 4B was a bedroom area (Bedroom A), there should be no water leakage from 4B into 3B Bathroom. I believe that Mr Chung's conclusion is too simplistic and that he has failed to consider the effect of the subdivision of the above units.

59.  In fact, the official building plan (provided by Mr Chung only in his 5^th solo report) shows sewage pipe outlets (SPO) and wastewater pipe outlets (WPO) located on the side of the external wall immediately above 3B Bathroom and to the right of 4A’s Bedroom A. To the left of Bedroom A, it abuts the bathroom of Bedroom B. Therefore, one should be able to envisage that in order to connect the sewage and wastewater pipes from Bedroom B’s bathroom to the outlets, it is likely that these pipes would have run underneath the raised floor slab or platform.

60.  The experts of both parties did not dispute this arrangement of drainage pipes as a common feature of subdivided units. Mr Chung accepted that it was possible (and I reject his change of evidence to “the possibility is none”). Mr Chung also accepted that, for subdivided units, there must be a raised floor slab to let the drainpipes of the toilets of the three subdivided units connect to the SPO and WPO. Therefore, I do not believe Mr Chung can simply base his opinion on the fact that there was a bedroom immediately above 3B Bathroom and ignore the possibility that there was a raised floor slab with drainage pipes underneath. Further, it was also Mr Chung’s finding in the 3B 1^st Report that the salt water facilities of the bathroom at 4B Bedroom B had been leaking. Therefore, I do not accept Mr Chung’s conclusion that there was no water leakage from the bedroom area and I find that his conclusion was incorrect.

61.  Mr Chan also drew the court’s attention to a photograph taken outside 3B Bathroom and 4B Bedroom A. It shows that drainpipes had been re-connected to the SPO and WPO. I agree with Mr Chan’s assessment that the rearrangement of the drainpipes for the subdivided units would have resulted in water leakage on the external wall.

62.  Similarly, it is Mr. Chung’s evidence that the removal of the original bathroom at 4B and its conversion into a bedroom, if the sealing of the pipe holes was not good, could lead to water leakage to the ceiling of 3B Bathroom. It is also Mr Chung’s evidence (upon reading the 2015 HKBI Report, which will be mentioned below) that the damages to 3B Living Room had been caused by 4B’s salt water ever since 2015. Therefore, it is reasonable to assume that there had been a continuous water leakage problem in the drainage system of 4B.

63.  I therefore find that it is more likely than not that the drainage system of 4B caused the water leakage (if any) on the external wall outside 3B Bathroom.

64.  In light of the aforementioned, it is my assessment that the owner of 4B, rather than the 3^rd defendant, should be held accountable for the requisite repairs under the DMC.

65.  I also find that the plaintiff has not adduced sufficient evidence to establish that the source of leakage was caused solely by the 3^rd defendant or at all.

66.  In the circumstances, the plaintiff’s claim against the 3^rd defendant under this head cannot succeed.

3B Living Room

67.  3B Living Room, together with the bedrooms, makes up most of 3B, except the area for the 3B Bathroom. Since 3B was converted into a combined unit with 3A, there is no kitchen.

68.  The plaintiff’s expert concluded that the source of the water leakage in 3B Living Room was not the external wall. He found that the sole source of water leakage affecting 3B Living Room was the toilet drainage and the waterproofing layer underneath the raised floor slab of 4B (due to the construction of subdivided units), which damaged the distribution board in 3B.

69.  In light of the conclusion reached by the plaintiff’s own expert, I find that the 3^rd defendant is not liable for any damages caused by the water leakage from 4B to 3B Living Room. This will have a significant impact on the plaintiff’s claim against the 3^rd defendant for the costs of alternative accommodation, which will be discussed below.

70.  In summary, I do not accept the plaintiff's claim that the 3^rd defendant in any way failed to fulfill its duty under the DMC or the BMO, whether specifically in relation to the water leakage of the above-mentioned four areas or in general. The plaintiff’s claim against the 3^rd defendant must be dismissed.

Alternative accommodation

71.  If I was wrong in any of the above findings, I should also consider whether the plaintiff’s alternative accommodation was justified.

72.  In the course of her giving evidence, Mei said that the primary reason for relocating from 3A and 3B was the explosion of the distribution board in 3B. She said that, after an electrician immediately inspected the distribution board, it was unsafe for her family to stay there. They were then moved to a hotel or service apartments.

73.  The court suspected that, despite the merger of 3A and 3B into a single unit, there should still be another distribution board or electricity supply in 3A to which a registered electrician could connect electricity to supply 3B. Mei readily admitted that this was the case. She was then asked to indicate the location of the distribution board for 3A, and she confirmed that the distribution board for 3A was or could be in use.

74.  Mei attempted to justify the move with an additional reason, namely that there was water dripping in 3A Bathroom. Mei confirmed to the court that the final reason was that there was no electricity supply in 3B, and there was water dripping in 3A Bathroom, which made neither 3A nor 3B suitable for accommodation. I must reject that explanation. I consider that the plaintiff’s family could use the bathroom in 3B if the plaintiff could have electricity connected from 3A. Therefore, there should be no question of relocation.

75.  Further, if 3A could not be used simply because of the water dripping in the bathroom, then I do not see any reason why the 3^rd defendant should be responsible. It would be obvious that the constant water dripping was caused by the broken drainpipes in the above unit (4A) and not by the rainfall from the external wall.

76.  Regarding whether there would be an inconvenience to the plaintiff’s enjoyment (such as relatives visiting during Chinese New Year, as Mei suggested), Mr Yuen was very helpful in drawing the court’s attention to the photographs contained in an expert report made by the plaintiff’s surveyor HKBI (the same surveying company but carried out by a different surveyor) dated 4 December 2015 (“the 2015 HKBI Report).

77.  The situation is as follows. In 2015, there was an earlier incident of water leakage from 4B to 3B. The plaintiff commenced litigation against the owner of 4B in 2016 (“the 2016 proceedings").

78.  A comparison of the photographs from 2015 and 2019 showed that the interior of 3B had remained virtually unchanged. Mr Yuen submitted, and I agree, that the plaintiff and her family have been residing in the same interior condition at least since 2015. Whilst it may not be necessary for the court to accept Mr Yuen’s suggestion that the serviced apartments at Harbourview Horizon have 270-degree sea views and clubhouse facilities, I reject the plaintiff’s claim for any general damages for the reasons that Mr Yuen has put to Mei, and it is not necessary for me to repeat here.

79.  Furthermore, the 2015 HKBI Report had already warned the plaintiff that the water leakage from 4B might have caused damage to the distribution board. However, Mei confirmed that, despite receiving HK$62,600 from the owner of 4B as part of the 2017 settlement, the plaintiff did not undertake any repairs or renovations in 3B, apart from a few minor works. Mei answered the court that the minor works in question were essentially limited to dusting the floor. I find that the plaintiff did not make any repairs or renovations in 3B.

80.  In this regard, I also agree with both experts that the degree of damage would worsen if the repairs, such as covering the concrete spalling and refilling the gaps and voids, were not carried out in a timely manner.

81.  In the premises, it is evident that the lack of repairs after the settlement of the 2016 proceedings was a significant contributing factor in the fire and explosion caused by water dripping from 4B into 3B Living Room. I find that the relocation of 3A and 3B was not caused by or related to the 3^rd defendant.

82.  As to the question of whether it is justified for the plaintiff’s family to stay in a serviced apartment for over one year, Mr Yuen submitted, and I accept, that the plaintiff’s expert did not return to the premises to conduct further tests until March 2020 (ie 6 months after the completion of the major renovation in September 2019), and the result of the tests was that the water leakage from all sources (ie from 4A, 4B, and the external wall) had ceased. I do not accept Mei’s explanation that they had to wait for the Joint Office to conduct further inspection and then the plaintiff could instruct the surveyor to assess whether the water leakage had completely stopped.

83.  In this respect, I do not accept Ms Chan’s submission that it was incumbent on the 3^rd defendant to prove to the plaintiff’s satisfaction that the repair works had been completed. I reject the plaintiff’s contention that she or her family members were unaware of the details of the works to be carried out as part of the major renovation and that they were unaware that the major renovation would include the refurbishment of the external wall outside their units. I believe that no alternative accommodation should be allowed for a prolonged period after the defendants have repaired the water leakages, except for a reasonable period for internal refurbishment.

84.  Regarding the percentage of damage caused by rainwater or salt toilet water, although I agree with Mr Chan that the corrosive effect of salt water is much greater than that of rainwater, I do not think it should be 95% to 5%. It should depend on the facts of each individual case, such as the severity of the damage to the external wall, and the frequency of the usage of the toilet facilities upstairs. There is no evidence of such detail given in this trial.

My observation

85.  In his opening submissions, the 3^rd defendant’s counsel raised the question (as pleaded in the Defence) of whether the external wall and the internal wall formed one integrated wall and how liability should be apportioned if water ingress occurred through the crack in that wall.

86.  I mentioned at trial that practitioners, or even surveyor experts, are often faced with this difficult question when the deed of mutual covenant is silent as to the definition of an external wall. The abstract question revolves around delineating the boundary between the exterior and interior when cracks and voids emerge on either or both sides of the wall.

87.  Of course, I have already rejected the plaintiff’s expert’s opinion outright that the boundary walls of the unit were only external walls and no portion of them should be treated as internal walls. Mr Chung said that there was nothing in the DMC or the BMO to distinguish or categorise the thickness or to say which part of the external wall would become the internal part, and therefore there should be no internal wall behind the external wall. I certainly did not agree.

88.  Mr Yuen submitted in his closing that he would no longer pursue his argument on this point. I believe that it was probably because no satisfactory expert evidence could be obtained at trial.

89.  In fact, it came to my attention that property developers have started to address this problem in their deed of mutual covenant. The new trend is for the developer to specify in great detail the correct proportions of all the external walls, or even the curtain windows, identifying parts that belong to the common parts of the building as well as the parts that belong to the individual flat owners.

90.  For instance, a more recent deed of mutual covenant would define and describe the Flat as having “the inner half of the external walls of the building enclosing and facing the individual flat.” It would also define the Common Area as “including the external walls of the building but excluding the inner half of the external walls enclosing and facing the flat.” I believe this new form of deed of mutual covenant is a significant improvement in clarifying the long-standing ambiguity present in the old version.

91.  For those old version deeds of mutual covenant which do not specify different proportions of the external walls, my observation is that, unless such parts are expressly specified, it would be fair to adopt half for the external wall and half for the internal wall of the unit. Of course, this will be subjected to reading the deed of mutual covenant together with other related registered instruments in discerning the common intention of the parties with regard to the external wall (see: Donora Co Ltd v Tsuen Kan Center (IO) (2024) 27 HKCFAR 166).

Conclusion

92.  For the above reasons, the plaintiff’s claim against the 3^rd defendant is dismissed.

93.  The plaintiff shall pay the 3^rd defendant the costs of the proceedings, to be taxed if not agreed, with a certificate for counsel.