CHENG PAN AND ANOTHER v. YAU LAI WAH

HCA 376/2015

[2021] HKCFI 325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 376 OF 2015

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J U D G M E N T

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A. Introduction

1.  The plaintiffs (“P1” and “P2”, and together “Ps”) and defendant (“D”) are neighbours in the vertical sense.  Their properties (“Ps’ Property” and “D’s Property”) are both inside Yee Wa Building (the “Building”), with D’s Property directly above Ps’ Property.  On 8 February 2015, large amount of “soil water” was discovered to be leaking onto Ps’ Property.  It is Ps’ case, denied by D, that D was responsible for that.  Ps are seeking damages, together with an injunction to abate the leakage, which they say have been continuing.  The main issues before me are whether D is liable to the leakage as alleged, and if so the quantum of damages which she should be held responsible for.

2.  Mr Philip Li appeared for Ps.  Ms Selina Kung appeared for D.

B.  Yee Wa Building

3.  The Building is a composite development located at Un Chau Street, Cheung Sha Wan, Kowloon.  It is about 50 years old.  It comprises 3 adjoining 12-storey blocks.  Each block has on the ground floor two shops, and on each of the upper floors (1^st to 11^th) 2 residential units.  The Building has 6 street numbers (namely Nos 403, 405, 407, 409, 411 and 413 of Un Chau Street), in effect one number to half of each block.  No 403 hence comprises one shop and the 11 residential units above it within one block, and No 405 comprises the other shop and residential units above it in that same block.  Nos 403 and 405 together form one block served by the same lift and set of staircases.  The other two blocks have the same configuration, and have their separate lifts and sets of staircases.

4.  This case concerns the shop at the Ground Floor of No 403 (ie Ps’ Property) and the residential unit on the 1^st Floor of No 403 (ie D’s Property). 

5.  The Deed of Mutual Covenant of the Building (“DMC”) is dated 19 May 1972.  It contains inter alia the following covenants:

“ 3(f)  That each of the parties hereto and every owner shall not obstruct the said common parts, services and facilities and shall use the same in a proper and careful manner so as not to cause any damage thereto or any obstruction or inconvenience to any of the other owners and further shall not use the same or any of them for any other purpose than those for which they are respectively intended.

3(g)  That each of the parties hereto shall not at any time detrimentally alter any part of the structure of the said Building or cut into or main any of the columns beams or floor slabs but use the same in a proper and careful manner so as not to cause any injury or damage thereto.

…

3(p)  That the parties hereto shall keep in good repair and condition the shops and floors of the said Building to the exclusive use occupation and enjoyment of which they are respectively entitled under these presents and shall not allow or permit or suffer the same to become so dilapidated or to be in such state of disrepair so as to constitute a health or fire or other hazard to the other portions or portion of the said Building…

(s)  That neither the parties hereto nor any of the owners of the said Lot and Building shall at any time:

…

(ii)  cause or suffer or permit to be done anything in or upon the said Building which may create unnecessary noise or which may be or become a nuisance annoyance or inconvenience to the occupiers of the other parts of the said Building or of properties in the neighbourhood.”

C.  Ps, and Ps’ Property

6.  P1 and P2 are husband and wife.  Mr Cheng Yiu Fai is their son (“Son”). Ps have since 1985 been the joint registered owners of the shop on the Ground Floor of the Building (ie Ps’ Property).

7.  Since about 1987, P2 has been operating an estate agency business at Ps’ Property.  The Son has been the manager of the business.  P1 seldom attends Ps’ Property. 

8.  For use as an office for their business, Ps’ Property has been partitioned into different rooms.  Towards the back of Ps’ Property there is a back yard (the “Back Yard”).  It was according to the approved building plan an open yard.  Until about August 2016, there was a metal roof over the same, covering about 85% of the Back Yard.  It is not in dispute that that roof was an unauthorized building work.

D.  D, and D’s Property

9.  D on 17 October 1997 bought D’s Property.  On that same day, D’s husband also purchased the 1^st Floor of No 405.  Between 1997 and early 2010, and between March 2011 and February 2015, D’s Property was rented out.

10.  D’s Property comprises a residential unit and portions of the 1^st Floor flat roof (the “1/F Residential Unit” and “Flat Roof” respectively, and together the “1^st Floor” or D’s Property).  The Flat Roof is a private flat roof which the owner of the 1^st Floor has the exclusive right to use[1].

11.  As has been observed above, D’s Property is directly above Ps’ Property.

12.  Sometime in 2010, D engaged a contractor called Hung Yat Design and Decoration (“Hung Yat”) to carry out certain works on inter alia pipes located in D’s Property (the “2010 Works”).  Exactly what were carried out however are in dispute.

13.  According to the approved building plans, the Flat Roof was an open one.  At some stage prior to 2015, it had become entirely enclosed and covered.  There is no dispute that that was the result of unauthorized building works.  Some of the unauthorized building works were removed in about August 2016.  Nothing turns on those removal works.

14.  On 8 February 2015, soil water leaked into Ps’ Property.  The soil water contained human wastes and urine.  D accepted during cross-examination that the leakage was serious.   D received a complaint.  D then engaged Hung Yat to carry out certain other works on inter alia pipes located in D’s Property (the “2015 Works”).  The circumstances that led to the 2015 Works and what they exactly were are not agreed.

15.  The parties are in dispute as to whether water leakage had continued or ceased after completion of the 2015 Works.

E.  The pleaded cases

E.1.  Ps’ pleaded case

16.  The Writ herein was issued on 18 February 2015.  It was indorsed with a Statement of Claim.  The Amended Statement of Claim in the current form (“ASOC”) was filed on 30 June 2015.

17.  Ps aver that since around 8 February 2015, large quantities of soil water have been continuously escaping from D’s Property into Ps’ Property[2]. They aver that the problem was caused by D’s negligence (or that of her occupants, tenants, servants or agents), and that it constituted a breach of the DMC.  The particulars of negligence and breach provided by Ps under paragraph 4 of the ASOC are as follows:

“ (a)  Making of unauthorised modifications and/or alterations to the water pipes or drainage system in [D’s] Property and thereby causing the soil water to escape on to [Ps’] Property; and

(b)  Failing to ensure by inspection, maintenance or repairs that water would not escape from [D’s] Property on to [Ps’] Property.

(c)  By reason of (a) and (b) above, [D] is in breach of Clauses 3(f), 3(g), 3(p) and 3(s)(ii) of the DMC.

(d)  [Ps] will rely on the fact that there has been a continuous escape of soil water from [D’s] Property onto [Ps’] Property since 8 February 2015, as sufficient evidence of negligence and/or nuisance by [D].”

18.  It is Ps’ further and/or alternative claim that the soil water constituted a nuisance caused or permitted by D (or by D’s occupants, tenants, servants or agents)[3].

19.  As regards loss and damage, Ps plead (1) HK$200,000 for estimated cost of concrete repair and redecoration works on the structural ceiling; (2) HK$40,000 for estimated cost of insurance for reinstatement works; (3) HK$40,000 for estimated cost of protection, general cleaning and sterilisation; and (4) HK$30,000 for estimated cost of packing, transportation and temporary storage for before and after the reinstatement works[4].

20.  Ps further aver that Ps’ Property is practically unusable so that they have suffered a loss of enjoyment and use of the premises and/or a loss of rental in the amount of HK$50,000 per month[5].

21.  In addition to the above damages, Ps also seek an injunction restraining D from allowing water to escape from her property to Ps’ Property so as to cause a nuisance[6].

E.2.  D’s pleaded defence, and the further and better particulars provided

22.  In her Defence, D denies that soil water have been continuously escaping onto Ps’ Property and put Ps to strict proof thereof[7].

23.  D avers that in about 2011 or 2012, she was informed by the management office that there were water seepage problems in Ps’ Property.  With the consent of the Incorporated Owners of Nos 403 and 405 (the “IO”), she engaged a contractor to re-route the part of the common sewers and pipes that were located in D’s Property (ie the 2010 Works). Thereafter, there were no complaints of any water seepage problems, whether from Ps, the occupants of Ps’ Property or the occupants of D’s Property.  She denies that she and/or any of her agents has made any unauthorised modifications and/or alterations to the common sewers and pipes in D’s Property[8].

24.  D further denies that the escape of soil water onto Ps’ Property was caused by the negligence of her (or of her tenants or agents) or was a breach of the DMC.  She avers that on or around 8 February 2015, she received an oral complaint from one Ms Wong (who, as it became clear by the time of the trial, was in fact P2) of water seepage from D’s Property to Ps’ Property.  Upon investigation, D’s contractor informed her that the common sewage pipes and the manhole connecting the entire building located in Ps’ Property were clogged.  However, Ps refused D’s offer to help Ps remedy the situation by unclogging the manhole and the common sewage pipes located in Ps’ Property.  D therefore had no alternative but to instruct her contractor to carry out unclogging works which involved re-routing parts of the common sewage pipes located in D’s Property (ie the 2015 Works).  The 2015 Works were commenced on about 9 February 2015 and were completed within a week, upon which D’s contractor attended Ps’ Property and one Mr Cheng confirmed that there was no longer any water seepage problem in Ps’ Property[9].

25.  In respect of Ps’ plea of loss and damages, D avers that the damages claimed in relation to any escape of soil water allegedly caused by the alterations of the common sewers or pipes were not reasonably foreseeable at the time[10]. She likewise pleads that the loss of rental income as claimed by Ps is too remote and/or not reasonably foreseeable[11]. D further avers Ps have been using and occupying Ps’ Property for their own real estate agency business at all material times[12].

26.  In her Answer to Ps’ Requests for Further and Better Particulars of the Defence (the “D/F&BP”), D has provided, among others, the following particulars:

(a)  In respect of the 2010 Works:

(i)  D obtained the consent of the IO during a telephone conversation with Ms Wong, the then Chairlady of the IO, in or around June 2010.  At the time, Ms Wong requested D to engage a contractor to repair the part of the common sewers and pipes located in D’s Property and to pay the repairing fees first.  Ms Wong promised D that the IO would reimburse her in due course by exempting her from payment of the monthly management fees[13];

(ii)  The 2010 Works was carried out in or around June 2010 by Hung Yat.  They were re-routing of the common sewers and water pipes from underground to aboveground and replacing the old common water pipes with new water pipes[14];

(iii)  D was reimbursed by the IO for the costs of the 2010 Works by being exempted from payment of the monthly management fees for the period from July 2010 to March 2011 at HK$1,000 per month for the first two months and HK$1,200 per month for the subsequent seven months[15];

(b)  In respect of the 2015 Works:

 (i)  Ps verbally refused and forbade D and/or Hung Yat from unclogging the manhole and the common sewage pipes in Ps’ Property because Ps “did not want the release of the foul toilet water from the manhole and the common sewage pipes to affect [Ps’] Property”[16];

(ii)  The 2015 Works were undertaken by Hung Yat, and “involved creating a new common piping route so that the clogged water can escape through another manhole instead of the manhole located in [Ps’] Property.  The works involved re-routing the common sewage pipes in [D’s] Property from underground to aboveground and to connect the same to the manhole for the release of the clogged water”[17].

E.3.  Ps’ reply

27.  In their Reply, Ps aver that even if D had obtained the consent of the IO to re-route the common sewers and pipes located in D’s Property, the re-routing works are still unauthorised modifications and/or alterations since D had failed to obtain the consent of the Building Authority for the same.  Further or alternatively, the escape of the soil water from D’s Property onto Ps’ Property was caused by the negligence of D (or her tenants or agents) and/or constituted nuisance irrespective of whether D had obtained the consent of the IO and/or the Building Authority[18].

F.  The issues

28.  Parties have agreed on a statement of issues in dispute.  It sets out the following issues:

(a)  What was the cause and source of the water leakage at Ps’ Property discovered on or around 8 February 2015 (“Issue 1”);

(b)  Whether the water leakage at Ps’ Property discovered on or around 8 February 2015 was caused by the negligence of D (“Issue 2”);

(c)  Whether the water leakage at Ps’ Property discovered on or around 8 February 2015 constituted a nuisance caused by D (“Issue 3”);

(d)  Whether there was any water leakage at Ps’ Property after D carried out re-routing works on the common sewage pipes at D’s Property on or around 9 February 2015 (“Issue 4”);

(e)  If the answer to (d) above is in the affirmative, whether the water leakage was caused by the re-routing works and/or was from D’s Property (“Issue 5”);

(f)  Whether the re-routing works on the common sewage pipes were carried out in accordance with the required standard (“Issue 6”);

(g)  What the cost of the remedial works is to stop the water leakage and to repair the damages to Ps’ Property (“Issue 7”); and

(h)  What the quantum of damages (if any) is for Ps’ loss of enjoyment and/or rental income if liability can be established (“Issue 8”).

G.  The witnesses

G.1.  Parties’ witnesses 

29.  Ps have called 2 factual witnesses.  They are P2 and the Son.  P2 has given one witness statement[19] (“P2/WS”).  The Son has given two[20] (“Son/WS1” and “Son/WS2”).

30.  D gave evidence.  She is the only factual witness for the defence.  She has given one witness statement[21] (“D/WS”).

31.  In respect of experts:

(a)  Relevant to the water seepage problem:

(i)  Ps’ expert is Mr Simon Cheung Wai Sum (“SC”):

(1)  SC is a Chartered Building Surveyor, Registered Professional Surveyor (Building Surveying) and Registered Inspector (List of Surveyors);

(2)  SC carried out inspections on 9 and 11 February 2015.  He then rendered his expert report dated 12 February 2015 (the “SC/2015 Rep”)[22];

(3)  SC conducted further inspection on 4 February 2016.  He then rendered his further report dated 14 March 2016[23] (“SC/Rep”).  The SC/2015 Rep is appended to the SC/Rep as Appendix IX;

(ii)  D’s expert is Mr George Lo (“GL”):

(1)  GL is an Authorised Person, Registered Structured Engineer, Registered Geotechnical Engineer and Registered Inspector; 

(2)  His report was filed on 5 August 2016[24] (“GL/Rep”);

(iii)  SC and GL have together prepared two joint expert reports[25](“J Report/1” and “J Report/2”);

(iv)  SC and GL have both been called to give oral evidence.  Expertise is not in dispute;

(b)  Relevant to the open market rental value of Ps’ Property:

(i)  Ms Lam Wai I (“Lam”) has been engaged as the joint expert, whose report is dated 28 April 2017 (“Lam/Rep”)[26];

(ii)  Lam/Rep has been adduced without Lam being called.

G.2.  The credibility and reliability of the factual witnesses

32.  I remind myself when considering a witness’ credibility the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, with contemporaneous conduct and documents, and the internal consistency of the witness’ evidence.  I need to consider the totality of the evidence.  I warn myself against attaching undue weight on demeanour, though demeanour is obviously relevant when considering credibility.

33.  For the following reasons, I do not find D to be a credible or reliable witness:

(a)  Upon cross-examination, she claimed that on 8 February 2015, P2 called her about the seepage problem.  She first attended Ps’ Property herself. She then called her contractor.  On the same day, her contractor attended Ps’ Property.  The 3 of them discussed about the problem.  D gave quite some details on that discussion, that:

「 問： 咁妳係唔係一個人單獨去個鋪頭睇，定係妳同妳嘅師傅一齊去睇㗎？

答： 初初係我自己去睇，睇完之後我就跟住call咗師傅即刻過嚟，…

問： 妳係…

答： …同一日。

問： 同一日，即係…

答： 係。

問： …個師傅係即刻…

答： 稍後先嚟嘅。

問： 稍後係2015年2月8號。

答： 2月8號，係。

問： 係，就晏少少就入去睇。咁跟住就同一日，你就要求黃女士畀你同你嘅師傅喺佢嘅單位入面做啲維修嘅工作，咁但係佢就拒絕咗。

答： 我哋大家喺度協商，應該點樣處理好，咁就師傅睇完嗰個情況之後，就覺得係話...

…

答： 係，咁就師傅睇完之後，就要求係話，就覺得條渠同埋個沙井之間係有堵塞咗嘅，咁然後就要求話，可以嘗試喺沙井嗰度通渠先。

問： 喺二--妳講緊係喺2015年2月8號。

答： 8號，係，應該係…

問： 應該係...

答： …下晝嘅時間囉，係。

問： 咁位置呢？當然你哋喺邊度㗎？

答： 喺鋪頭入面嘅。

問： 就當時在場嘅有妳、…

答： 係，師傅，係。

問： …黃女士、師傅喇。

答： 係，三個人。

問： 咁鄭耀輝先生喺唔喺度㗎？

答： 唔喺度。咁然後就但係--當其時黃女士就話，佢話『唔好喇，喺我下面做呢，就會係--我唔想搞到我間鋪咁污糟，妳不如喺妳上面搞喇』咁樣。

官： 係。

  答：   咁然後我係--我話，『咁呢條公家喉嚟嘅，我哋應該係咪要搵番個管理處嚟睇，咁就然後就一方面就係話，我都嘗試下睇下盡快先解決呢個滲水問題先喇』咁，咁就佢就講，『妳盡快去搞喇，因為漏得咁緊要』，咁就我話『好喇』咁，就之後我就聯絡嗰--嘗試聯絡嗰個主席喇，但係打電話係打唔到，亦都叫咗嗰個管理處，問咗佢幫手聯絡嗰個主席㗎，但係就一路都搵唔到㗎，咁就直至到係即係喺嗰個--我哋最終決定就係話，咁我話『咁我哋臨--暫時就決定做一個臨時喉，做咗--解決咗滲水先』，我話『因為咁堵塞呢，都幾嚴重下，我都驚影響到我個單位』，咁就然後就係決定咗去做囉。」

(b)  However, none of those matters are mentioned in D/WS;

(c)  More importantly, in D/WS, at §13[27], D in fact says that her contractor only attended Ps’ Property on 9 February 2015.  She specifically says that her contractor only attended Ps’ Property the day after she called him;

(d)  When asked about the inconsistencies, D claimed that §13 of D/WS had been “mistyped” (“打錯”), which explanation I do not accept;

(e)  I also find D’s evidence in that regard inherently most improbable:

(i)  The seepage problem on 8 February 2015 was serious. D herself during cross-examination accepted that it was so.  Further, as described by SC at §5.2.3 of SC/2015 Rep[28], “[s]erious water dripping on the structural ceiling and walls were noticed and 3 large plastic containers were placed on floor to collect the pale yellowish dripping water from the structural ceiling.  It also noted that a bad smell from the collected dripping water”;

(ii)  There is no dispute that the liquid was in fact soil water containing faeces and urine;

(iii)  Despite the seriousness of the problem, D claimed that P2 nonetheless refused to allow D’s contractor to access the manhole at Ps’ Property because P2 was concerned that that could make Ps’ Property dirty.  But Ps’ Property was already dirty as a result of the leakage.  The alleged refusal and the alleged reason for the same make no sense at all;

(f)  D has also been inconsistent as to who allegedly refused D’s contractor access to the manhole.  Both in the Defence[29] and the D/F&BP[30], D claims that the “Plaintiffs” did.  However, during cross-examination, D accepted that she in fact had not met P1;

(g)  Her evidence under cross-examination as to the nature of the 2010 Works is also inconsistent with what she has said in D/WS:

(i)  At §6 of D/WS[31], in respect of the 2010 Works, she says that “該裝修工程包括更換二樓平台的地台及於二樓平台鋪設新的防水層，工程費用約5萬港元 ”;

(ii)  Upon cross-examination, she said that that was wrong, and that she did not change or replace the floor surface of the Flat Roof, but just the grout between the floor tiles;

(iii)  At §8 of D/WS[32], she said further in respect of the 2010 Works that Hung Yat “把部份原有的污水喉及清水喉廢除，然後安裝新的污水喉及清水喉從403號二樓平台的地面經過”;

(iv)  During cross-examination, when being asked as to why the two new pipes are not shown in photographs P11[33] and P12[34] taken on 9 February 2015, she said that part of paragraph 8 of her witness statement was also wrong.

34.  I have also considered the evidence of P2 and the Son.  I find their evidence inherently probable.  I have detected no material inconsistencies, whether internal or external.  I find them to be honest and reliable witnesses. 

35.  To the extent of any difference between the evidence of P2 and the Son of the one part and that given by D of the other, I prefer and accept the evidence given by P2 and the Son.

G.3.  The 2 experts

36.  I have considered SC’s evidence.  He inspected Ps’ and D’s Properties on 9 and 11 February 2015.  Though he could not have access into the 1^st Floor Residential Unit, he was able to observe the Flat Roof from outside.  He rendered the SC/2015 Rep afterwards.  He was able to give evidence on the extent of the seepage on 8 February 2015.  He was also able to give evidence on the state of the Flat Roof, in so far as he could observe it from outside, before the 2015 Works.  Photographs were taken.  He carried out another inspection on 4 February 2016 after which he rendered SC/Rep. Photographs were again taken.  The 2 sets of photographs have been compared for changes.  In general, I find his evidence reasonable, consistent with the photographs taken at various stages, and is convincing. 

37.  I have considered GL’s evidence.  I do not find his evidence helpful or convincing:

(a)  He first inspected D’s and Ps’ Properties only in April 2016;

(b)  In respect of SC’s opinions expressed in SC/2015 Rep, he merely in J Report/1 says that he could not agree as he was not involved at that stage;

(c)  In GL/Rep, regarding the leakage after the carrying out of the 2015 Works, GL says at §4.14[35] that:

“ Regarding the leakage on the G/F after the [2015 Works], although defective waterproofing is a common cause of water seepage, the overall condition of the external wall is poor as explained in the photographs above and so the possibility of other causes of water seepage cannot be ruled out. Therefore, I opine that the leakage can be one or the combination of the following reasons

•  Defective external wall of G/F due to poor maintenance

•  Damage to the building due to adjacent construction activities

•  some abandoned pipe openings, A/C supporting frame and unauthorized metal roof at the external wall of G/F

•  Defective waterproofing system of the private roof of 1/F”

(d)  GL expresses similar views in J Report/2;

(e)  He however did not carry out any test on the ceiling itself to check for the source of leakage;

(f)  All he has sought to do is to raise other possibilities for the leakage;

(g)  Whilst those might be possibilities, GL has not tried to offer any proof that they had indeed contributed to the leakage;

(h)  He points to some cracks on the external walls.  There is however nothing in the reports which records that he has done any test to those cracks;

(i)  Importantly, the cracks he pointed to are at levels lower than the ceiling of Ps’ Property.  Even assuming that water had entered those cracks, they could not have been the cause of the leakage;

(j)  The existence of signs of cracks by itself provides little proof that there was structural damage to the Building, and even less that any such structural damage caused the leakage;

(k)  When asked whether he has any photographs which show more cracks at a higher level, his answer was “暫時無”;

(l)  Those abandoned pipe openings, air-conditioner supporting frame and unauthorized metal roof are also mostly at a level lower than the ceiling of Ps’ Property.

H.  Findings of facts

38.  I make the following specific findings of facts.

39.  I accept SC’s evidence that sometime prior to 9 February 2015:

(a)  Unauthorized metal yard structure had been erected covering the entire areas of the Flat Roof;

(b)  The floor of the Flat Roof had been raised and was tilted.  The approval communal soil pipes were embedded inside the raised floor slab of the Flat Roof;

(c)  The floor of the Flat Roof was elevated by about 5 to 6 inches, which SC was able to explain to the Court in the course of his oral evidence with reference to the approved plans and photograph P44 annexed to SC/Rep[36].

40.  I record that SC has also expressed certain opinion to the effect that there had been unauthorized alterations to the communal rain water pipes and communal waste water pipes.  I do not find those opinions relevant save as background.  I would however if necessary also accept those opinions, which are consistent with the photographs produced.

41.  D pleads at §7(a) of her Defence that as part of the 2010 Works, she engaged a contractor to re-route the part of the common sewers and pipes which were located in D’s Property.  I so find.

42.  At §8 of D/WS[37], she said in respect of the 2010 Works that Hung Yat “把部份原有的污水喉及清水喉廢除，然後安裝新的污水喉及清水喉從403號二樓平台的地面經過”. But no such pipes on the floor of the Flat Roof can be seen in photographs P11[38] and P12[39] taken on 9 February 2015.

43.  D says, at §6 of D/WS[40] in respect of the 2010 Works, that “該裝修工程包括更換二樓平台的地台及於二樓平台鋪設新的防水層，工程費用約5萬港元”.  D adopted D/WS as her evidence-in-chief without seeking leave to make any change thereto.

44.  Upon cross-examination, D claimed §6 of D/WS was wrong, and that she did not change or replace the floor surface of the Flat Roof, but just the grout between the floor tiles.  She claimed that the Flat Roof had been raised when she purchased D’s Property, and she only knew about it subsequently.

45.  I reject her denial in that regard.  On balance, I find that it was part of the 2010 Works contracted by D that the floor of the Flat Roof was changed and the waterproofing membrane re-laid.  I also draw the inference that in the course of changing the floor of the Flat Roof, D elevated the floor and caused the original communal soil pipes to be embedded under the floor of the Flat Roof.

46.  On 8 February 2015, large amount of soil water leaked into Ps’ Property.

47.  The leakage was serious, and I accept P2’s and the Son’s evidence in that regard.

48.  In respect of the cause of the leakage, I accept the agreed opinion of SC and GL that the original communal sewage pipe embedded in the floor of the Flat Roof of D’s Property was leaking, and soil water seeped down into Ps’ Property.  I accept also SC’s opinion in SC/2015 Rep[41] as explained by him under cross-examination that the waterproofing system of the floor of the Flat Roof, whilst not the source of the leakage, was defective and could not hold the leakage.

49.  I reject D’s evidence about she and her contractor attending together Ps’ Property on 8 February 2015.  I reject also her evidence that she and her contractor offered help but was turned down by P2.  I accept P2’s evidence that D on 8 February 2015 just visited Ps’ Property briefly for several minutes, and did not offer any help as alleged.  P2 made repeated demands and requests to D to carry out repairs or to take remedial actions.  On 10 February 2015, Ps through their solicitors wrote to D and urged her to take constructive remedial action immediately[42].

50.  SC in SC/Rep[43] compares the photographs he took in February 2015 with those he took in February 2016 after the 2015 Works. In respect of the 2015 Works, I accept his findings[44] that:

(a)  The original communal soil pipes which were embedded inside the elevated surface when inspected in February 2015 were cut off.  New pipes were instead installed above the elevated floor of the Flat Roof to re-route the soil water from the 2^nd to 11^th floors of the Building;

(b)  The original communal waste water pipes used to discharge waste water from 2^nd to 11^th floors of the Building had also been re-routed using new pipes installed above the elevated floor of the Flat Roof.

(c)  The original communal soil and waste pipes which had been cut off and made redundant were however allowed to remain embedded inside the elevated floor surface of the Flat Roof.  Their openings can be seen from the parapet wall;

(d)  Two drainage pipes at the parapet walls on the Flat Roof facing the rear lane that used to discharge waste water had been cut off.  One drainage pipe left a hole at the parapet wall.  The other was re-routed to discharge waste water to the surface channel of No 405.

51.  I reject D’s evidence[45] that her contractor had told her that and one Mr Cheng confirmed to him that there was no longer any water seepage problem in Ps’ Property.  Her contractor has not been called as a witness.  I accept the Son’s evidence that around middle of February 2015, a person introducing himself to be D’s contractor went to Ps’ Property.  He told the Son that he had carried out some works to the common sewage pipes and asked whether the water leakage had stopped.  At that time, large amount of water was still leaking onto Ps’ Property.  The Son therefore told the contractor so and requested him to fix the problem as soon as possible.  I accept further his evidence that since around March 2018, the leakage problem has improved.  There has been no more dripping, though there have still been damp patches.

52.  After the 2015 Works, leakage continued.  Indeed, GL under cross-examination agreed that that was so.  His evidence in this regard is as follows:

「 問： 好喇，我首先想問一問你，可能你頭先都聽到喇，被告就喺2015年2月之後就做咗少少維修嘅工作，喺佢嘅單位嘅平台。

答： 唔。

問： 咁工作就包括安裝咗兩條新嘅喉管喇。

答： 唔。

…

問： 咁首先你認唔認同改--即係圖片入面見到新加咗兩條喉管之後，仍然有漏水嘅問題喺原告人嘅單位入面？

答： 都同意嘅。

官： 聽唔到。

  答： 同意。」

I.  Issue 1 — the cause and source of the leakage on 8 February 2015

53.  The experts are able to reach agreement on this issue[46]. Their opinion is that the “original embedded communal sewage pipe running on [D’s Property] was found leakage and then seeped downward to [Ps’ Property]”. I have so found above.  I have also found that the waterproofing system of the floor of the Flat Roof, whilst not the source of the leakage, was defective and could not hold the leakage.

54.  Relying on Hui Ling Ling v Sky Field Development Ltd, unrep, HCA 35/2007 (8 May 2012), per Recorder Yuen SC at §23, Ms Kung submitted that Ps bear the burden of proof to establish, on the balance of probabilities, that the source of water was from D’s Property.  I have made my finding that it was.

55.  For completeness, I accept SC’s evidence given in Court that when he conducted the inspection in February2015, he inspected the manholes within the Back Yard and nearby.  He found that none of them were congested.  I do not accept that the congestion of any of the manholes was the cause of the leakage on 8 February 2015.

J.  Issue 2 — Whether the leakage on 8 February 2015 caused by D’s negligence

56.  Parties deal also with the issue of breach of DMC under this Issue.  I will do the same.

57.  Ms Kung submitted that Ps have to prove firstly, that (1) D owes a duty of care to Ps in maintaining the communal soil and waste water pipes in D’s Property and the waterproofing membrane of the Building; (2) that D has breached the duty by failure to maintain; and (3) the failure to maintain has caused damages to Ps’ Property.

58.  I have found that it was D who caused the original soil pipes to be embedded in the elevated floor of the Flat Roof and the waterproofing membrane re-laid.

59.  In this regard, I accept Mr Li’s submissions[47], relying on Yik Yuen Ling v Tso Wing Yan, unrep, DCCJ 813/2014 (18 October 2017) and Cheng Pan v Chan Cheong Shun [2018] HKDC 1189, that by modifying the Flat Roof and embedding and re-routing the original soil pipes, D has rendered the embedded pipes and the waterproofing membrane physically inaccessible for repairs by the IO.  Given the literal close proximity between Ps’ and D’s Properties, the obvious foreseeability of loss, I agree that it is fair, just and reasonable to impose a duty upon D to keep the embedded soil pipes and the waterproofing membrane in proper repair.

60.  Relying on the Building Management Ordinance Cap 344[48], Wide Power Corporation Ltd v The Incorporated Owners of Manhattan Court, unrep, HCA 1485/2013 (29 July 2016) at §§24-30, 85-87 and Tai Fong Trade Ltd v The Incorporated Owners of Nos 167 & 169 Hoi Bun Road, unrep, LDBM 1/2006 (11 November 2008), §§26-28, Ms Kung submitted that D owes no duty of care to Ps in maintaining the communal soil and waste water pipes and the waterproofing membrane as they are the common parts of the Building.  In none of those cases were the relevant parts of the buildings in dispute embedded in the way like D did in the present case.  Those cases are in my view distinguishable.

61.  By failing to keep the Flat Roof, the embedded soil pipes and waterproof membrane under repair so as not to allow any soil water to leak into Ps’ Property, D has in my view breached her duty, which breach is causative of Ps’ losses.

62.  In respect of the DMC:

(a)  By embedding the communal soil pipes in the elevated floor of the Flat Roof, or by allowing those soil pipes to be so embedded, I am of the view that D was in breach of clause 3(f) of the DMC by obstructing the same;

(b)  By elevating the floor of the Flat Roof so as to embed the soil pipes, or by allowing those to be done, I am of the view that D was in breach of clause 3(f) of the DMC by having detrimentally altered the same;

(c)  I am also of the view that D has failed to keep good repair of the Flat Roof and its floor which embedded the communal soil pipes, so that she was in breach of clause 3(p) of the DMC;

(d)  I will come back to Clause 3(s)(ii) after I have considered the question of nuisance.

63.  I deal with 2 further points here:

(a)  Alleged consent of the IO to D to undertake the 2010 Works:

(i)  I have summarized D’s case in that regard;

(ii)  The solicitors acting for Ps have written to the IO on the matter, who on 23 June 2015[49] wrote back in reply denying that the alleged consent had been given.  It further said that D took it upon herself to stop paying management fees to offset the expenses she had allegedly incurred;

(iii)  Given my view on D’s credibility as a witness, I do not accept D’s evidence in this regard;

(iv)  In any event, the alleged consent by the Chairlady was not that of the IO, and as revealed by the letter in reply from the IO, no owners’ meeting had been convened in that regard;

(b)  Negative covenants running with the land:

(i)  relying inter alia on The Incorporated Owners of Fortune Mansion, Tsuen Wan v Chiu Ng Ling [2010] 2 HKC 67 and The Incorporated Owners of Marina Cove v Chu Kam Tai and another [2012] 2 HKLRD 107, Mr Li submitted that in the case of a negative covenant which runs with the land, an existing owner will remain liable to a continuing breach committed by his predecessor-in-title;

(ii)  Hence, even if the floor of the Flat Roof was raised and the communal soil pipes embedded by D’s predecessor-in-title, D would still be liable to the breaches;

(iii)  If necessary, I would accept that submissions of Mr Li.

K.  Issues 3 — Whether the leakage on 8 February 2015 a nuisance caused by D

64.  Ms Kung, relying on Clerk and Lindsell on Torts 22^nd ed, Ch §§20-01 and 20-10, 20-40 to 20-42, summarized[50] the relevant principles on private nuisance in effect as follows:

(a)  “Nuisance” may be defined as an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise of enjoyment of his ownership or occupation of land or other of some easement, profit, or other right used or enjoyed in connection with land;

(b)  The law recognises that everyone must put up with a certain amount of discomfort and annoyance caused by legitimate activities of his neighbours;

(c)  Ordinary domestic use of premises therefore cannot constitute a nuisance, even though interference with the enjoyment of neighbouring premises is caused, if that interference results solely from the construction defects for which the defendant is not responsible;

(d)  The courts in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property;

(e)  No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society, to be determined by reference to all the circumstances of the particular case;

(f)  Where liability is sought to be imposed upon a defendant, not on the ground that he created the nuisance but on the ground that he permitted it to continue, proof of negligence at least is essential.  If the occupier knows or ought to know of such nuisance, and the possibility of damage occurring in consequence is a real risk, he must take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance.

65.  Ms Kung further cited Cheung Sau Ling & Ng Ping Hon v Cheng Lai Chong, unrep, CACV 268/1998 (9 April 1999), where Woo J (as he then was) summarized the relevant principles on nuisance as follows (the judgment being in Chinese):

「 漏水可能導致『滋擾』，而法律就這項目有很明確的規範。簡單地說，有以下幾種普遍情況:

(1) 若漏水是在一處地方 (包括樓宇單位) 中發生，招致鄰舍 (包括另一單位) 損失時，而事源地方的戶主 (是使用該地方的人，不一定需要是業主)明知漏水根源，他便是有意圖滋擾而須負法律責任。法律責任包括賠償及受禁制令禁制。

(2) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，而他又不知道漏水已發生，他就不須對漏水所招致鄰舍的損失負責。

(3) 若漏水不是事源地方戶主自己或自己應代為負責的人所招致，當他知道漏水源於他單位內，他須在無合理延誤下作出補救。否則，他須為該項漏水所招致鄰舍的損失負上法律責任。

(4) 以上三項中的『知道』，是指兩種情況: (a) 是實質地知道，或(b) 是在通常及合理謹慎下應可知道。故此，就算戶主實質上不知道漏水的存在，因為他不在事源地方，他也不能藉此推卸責任。他身為戶主，對自己使用的地方要負法律責任。若在通常的情況下戶主應可知道有關使用地方的情況，在法律上他就被當作知情。作為地方的戶主，他應對該地方作出合理謹慎的處理。故此，對該地方的情況而言，一切他應在合理謹慎下可知道的，法律也當他知道。

  (5)  第(2) 和第(3) 項所述的『戶主應代為負責的人』，是指一切戶主准許進入或使用戶主地方的人，包括他的家人、朋友、僱員和入內工作的人，但不包括未獲他或上述的人准許而進入地方的人。」

66.  The above are not disputed by Mr Li, and are not controversial.  I apply them.

67.  I have found that it was D who caused the floor of the Flat Roof to be elevated, the waterproofing membrane to be re-laid, and the communal soil pipes to be embedded.  Soil water leaked into Ps’ Property on 8 February 2015. D became aware of that.  I have rejected D’s evidence that she together with her contractor attended Ps’ Property and offered to help.  I have accepted P2’s evidence that D only attended Ps’ Property briefly on 8 February 2015 and did not offer to help.  The leakage was not abated that day.  Ps’ solicitors had to write to D and urged her to take constructive remedial action immediately.  The seepage of soil water interfered with Ps’ enjoyment of Ps’ Property, is not ordinary domestic use of premises, and in my view constituted private nuisance.

68.  Ms Kung’s main submission on this issue was in fact made on the basis that it was not D who elevated the floor of the Flat Roof and embedded the communal soil pipes, and that it was P2 who had declined D’s offer for assistance.  She submitted[51] that Ps have to firstly, satisfy the Court that D knew or ought to have known of the existence of the nuisance and secondly, that she was negligent in that she failed to take effective steps to abate the nuisance taking into account her actual capacities and circumstances.

69.  Given my findings above, and in particular my rejection of D’s evidence on her alleged offer to help, I would if necessary have held that D2 had committed actionable nuisance on the basis submitted by Ms Kung even if it were D’s predecessor-in-title who elevated the floor of the Flat Roof and embedded the communal soil pipes.

70.  Given my findings relevant to this Issue, I find that D has also breached Clause 3(s)(ii) of the DMC.

L.  Issue 4 — Whether water leakage after the 2015 Works

71.  I have found that D did not as she claimed immediately offer help.  I have rejected D’s evidence that her contractor had told her that and one Mr Cheng confirmed to him that there was no longer any water seepage problem in Ps’ Property.  I have accepted the Son’s evidence that he did not say that to D’s contractor.

72.  On 4 February 2016, SC inspected Ps’ Property again.  That was one year after the main leakage.  He conducted moisture tests on the ceiling at various spots.  He confirms, in the light of the moisture content readings, that there was still seepage at various spots[52].

73.  As I have pointed out above, GL under cross-examination agreed that leakage continued after the 2015 Works. 

M.  Issue 5 — Whether water leakage after the 2015 Works caused by the re-routing works and/or was from D’s Property

74.  I have set out above the nature of the 2015 Works caused to be done by D.

75.  In respect of the source of the leakage after the 2015 Works, SC has expressed the following opinion[53]:

“ After routing concealed drainage works at the [Flat Roof], the water leakage on the structural ceiling and walls of [Ps’ Property] was come [sic] from the defective waterproofing system of the [Flat Roof] and unknown drainage pipe(s) (the exact routing of the unknown drainage pipe(s) cannot be traced/determined by visual inspection) inside the [Flat Roof].”

76.  SC expresses similar opinions in J Report/2[54]:

“ The serious water leakage on structural ceiling of [Ps’ Property] after [D] carried out the re-routing works on the common sewage pipes was sourced and caused by the defective waterproofing system on [the Flat Roof]. The leaking water was allowed to seep downwards to the structural ceiling of [Ps’ Property]. Eventually, the pale-yellow leaking water dripping down to the floor of [Ps’ Property].”

He has also in J Report/2 expressed his views as to why other possibilities can be excluded.

77.  I accept SC’s opinion.  As I have observed above, the possibilities suggested by GL are no more than unsubstantiated possibilities.

78.  During cross-examination, D accepted that since the 2010 Works, no further waterproofing works had been done to the floor of the Flat Roof.

79.  I find that despite the 2015 Works, there remained seepage from D’s Property, the waterproofing of the floor of the Flat Roof remained defective, and the seepage remained unabated.  

N.  Issue 6 — Whether the re-routing works on the common sewage pipes were carried out in accordance with the required standard

80.  SC and GL are able to agree on this issue[55]:

“ Both experts agreed and opined that statutory requirement of Building (Standards of Sanitary Fitments, Drainage Works and Latrines) Regulations and workmanship for re-routing of a common sewage pipes running of [the Flat Roof] was technically achieved by the appointed contractor.”

81.  However, GL accepted during cross-examination that the 2015 Works were covered by the Minor Works Control Scheme.  The Buildings Department was required to be notified of the same.  But to GL’s knowledge, the Buildings Department had not been.

82.  In that sense, the 2015 Works were unauthorized.

O.  Conclusion on liability

83.  On the basis of my findings above, I hold that Ps have established its case on liability against D on all bases of negligence, breach of DMC and nuisance.

P.  Issue 7 — The cost of the remedial works to stop the leakage and to repair the damage to Ps’ Property

84.  Relying on McGregor on Damages (20^th edition) at paragraphs 37-006 to 37-010, Mr Li submitted the costs of repair must be reasonable in that the work must be necessary and the charges must not be extravagant.  The principle is not in dispute.

85.  SC and GL deal with the issue in J Report/2.  The items of works they deem necessary and their costs are set out in a table under §7.1 of the J Report/2 (the “Table”).  They are not able to reach agreement.  SC’s total estimated costs is HK$495,000.00 and GL’s total estimated costs is HK$155,000.00.

86.  SC was cross-examined by Ms Kung on the estimate:

(a)  Item 6 of the Table[56] is “Quality supervision by qualified building professional and site foremen” at the costs of HK$90,000;

(b)  SC’s oral evidence in relation to that Item is as follows:

「問：咁呢一項就其實喺你之前嗰啲專家報告就冇提及㗎喎，點解喺呢一度就需要呢？

答：第一，喺512頁item 6呢一個所謂個quality supervision呢，法例上係冇要求嘅，法律上冇要求嘅，咁但係我喺呢方面覺得嗰個範圍同埋做嗰個情況呢，可以做得好啲個質素呢，就需要聘請呢一個qualified building professional嘅，係，咁樣。

問：唔。咁點解啲報告冇提及嘅，呢一項？

   答：冇考慮咗呢個項目喇，係，咁樣。」

(c)  In the light of that explanation, I disallow Item 6 as being not necessary;

(d)  I otherwise accept SC’s estimate.  I accept Mr Li’s submissions that GL have omitted necessary and reasonable costs such as the labour costs for the erection of a metal propping and working platform, and the costs for minor works application by a registered contractor;

(e)  I assess the damages under this head at HK$405,000.

Q.  Issue 8 — Damages (if any) for Ps’ loss of enjoyment and/or rental income

87.  In his written closing, Mr Li submitted that:

(a)  Ps accept that the open rental market value of Ps’ Property is HK$42,000.00 per calendar month as assessed by Lam;

(b)  Ps are claiming for loss of enjoyment and use of Ps’ Property, or alternatively, loss of rental income for the following periods from 8 February 2015;

(c)  As set out by the Son in Son/WS2, Ps’ Property is 1050 ft² in total.  Since the water leakage, Ps have only been able to use the front 200 ft².  Excluding the Back Yard structure which has been unaffected (355 ft²), 495 ft² of the premises have been and still is unusable.

(d)  HK$42,000 x (495/1050) x 48 months (8 February 2015 to 20 February 2019) = HK$950,400.

88.  For alleged loss of rent, Ms Kung has highlighted P2’s and the Son’s evidence that Ps’ Property has never been rented out. Ps’ Property has been used as their estate agency business since 1987.  I accept Ms Kung’s submission that no basis for loss of rental income has been made out.

89.  For loss of enjoyment, Ms Kung submitted that the law is that there is no scientific way of translating inconvenience and discomfort into a sum of money, and the award has to be a conventional sum.  In the case of Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456, the court awarded $80,000 for damages and inconvenience caused by the water leakage which lasted for a period of nearly 3 years.  In the case of Lee Wai Chuen v Cheung Chor Keung, unrep, DCCJ 3098/2006 (7 January 2011), the court awarded $50,000 for damages, distress, discomfort and inconvenience caused by the water leakage which lasted for a period of about 2-3 years.  In the case of Ngan Ping Chi v Lam Chi Hao Louis, unrep, DCCJ 462/2003 (31 December 2003), the court awarded $20,000 for damages, distress and inconvenience caused by the water leakage which lasted for a period of over 2 years.

90.  I accept the approach submitted by Ms Kung.  I have further considered the following matters:

(a)  The leakage on 8 February 2015 was a serious one.  Soil water was involved.  The discomfort and inconvenience is considerable;

(b)  On the other hand, the situation has been improving, and clearly so since March 2018.  I do not accept that the parts of Ps’ Property which may remain affected are entirely unusable;

(c)  In any event, the front part of Ps’ Property (which could still be used) would be most valuable to Ps’ business, and a pro rata calculation is in my view not appropriate.

91.  In all the circumstances, I assess the damages under this head at HK$400,000.

R.  Permanent Injunction?

92.  I note that none of the agreed issues relate to the grant of an injunction.

93.  I note again that the leakage has improved.

94.  I have further considered Chiu Hung Shun, Paul v So Ka Tai, unrep, CACV 136/2005 (5 December 2005) cited by Ms Kung[57]:

(a)  Chiu Hung Shun is itself a water leakage case;

(b)  The plaintiffs there sought a permanent injunction “to restrain the 1^st and 2^nd Defendants or any of them from doing the following acts or any of them that is to say, causing, permitting, allowing or suffering water to be leaked, seeped and discharged from the Defendants’ premises into the Plaintiffs’ premises”;

(c)  The trial judge refused to grant the injunction sought.  The plaintiffs appealed;

(d)  In dismissing that part of the appeal, Ma CJHC (as he then was) observed at §16, inter alia, that:

“ … In my view, the Judge was right to have refused to grant the Plaintiffs such an injunction: -

(1)  Injunctions are an equitable remedy and as such therefore subject to equitable principles. They are to be granted only where necessary, appropriate and just. For example, where damages provide an adequate remedy, an injunction will not generally be granted. Where one is to be granted, the same principles also dictate that an injunction should not be made any wider than necessary; otherwise, for example, the party subject to the injunction may find himself in contempt of court (for this is in many ways the prime remedy for a breach) of an order that goes beyond what the party benefiting from the injunction could realistically have expected or have been entitled in the first place.

(2)  In the present case, the Plaintiffs’ complaint was that of a leakage from the Defendants’ premises. The obvious remedy, in the absence of any special circumstances, was simply a mandatory injunction to effect due repairs, no more. This was precisely what the Judge ordered.

(3)  I have already mentioned the aspect of a contempt of court.  If a permanent injunction were to be granted as the Plaintiffs wish, the Defendants might find themselves facing contempt proceedings even when they had repaired the leakage, should another leakage occur in the future …”

95.  In my view, the same observations are apposite on the facts of the present case.

96.  I decline to make the permanent injunction sought.

S.  Overall conclusion

97.  I give judgment in favor of Ps in the total sum of HK$800,500. 

98.  I dismiss Ps’ claim for a permanent injunction.

T.  Interest and costs

99.  I grant interest at judgment rate from the date of the Writ to the date of judgment, and thereafter at judgment rate until payment.

100.  I make a costs order nisi that Ps shall have 80% of the costs of the action, to be taxed if not agreed.  Any application for variation shall be made by letter within 14 days to this Court, in which case further directions will be given on the papers.