LAM SUK YEE AND ANOTHER v. THE INCORPORATED OWNERS OF KAM KIN MANSION

CACV 24 /2019

[2019] HKCA 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2019

(ON APPEAL FROM HCA NO 748 OF 2011)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP:

1.  This appeal was brought by the plaintiffs against the judgment of Deputy High Court Judge To on 19 December 2018, given after a six-day trial. The judge found in favour of the defendant, which is the incorporated owners (“the IO”) of K K Mansion at No 123 Caine Road, Hong Kong (“the Building”). He granted a mandatory injunction requiring the plaintiffs to remove certain unauthorised building works in their premises counterclaimed by the IO with nominal damages and dismissed the plaintiffs’ claim for injunctive relief and damages arising out of water leakage to the plaintiffs’ premises. The plaintiffs sought to set aside the judgment against them on the claim and counterclaim.

Background

2.  The background matters are taken from the findings in the judgment below and non-controversial documents.

(1) The layout and ownership

3.  The Building is a multi-storeyed building constructed in 1973. According to the occupation permit issued on 11 June 1973, the occupation of various storeys of the Building (from bottom to top) was permitted for the following purposes:

“Playground Floor[1]: 1 covered playground, 1 transformer room and 1 switch room for non-domestic use.

3^rd Lower Ground Floor: Covered carport & lavatories for non-domestic use.

2^nd Lower Ground Floor: Covered carport & lavatories for non-domestic use.

1^st Lower Ground Floor: Covered carport & lavatories for non-domestic use.

Ground Floor: 2 shops with 1 store room and lavatories for non-domestic use.

1^st to 15^th Floors (inclusive): 6 flats per floor for domestic use.

16^th to 27 Floors (inclusive): 5 flats per floor for domestic use.

Roof: 1 machine room & 1 store room for non-domestic use.”

4.  The Building is situated at the junction of Caine Road and Shing Wong Street.  The main entrance of the Building and the shops on the Ground Floor abut on to Caine Road.  The four lower ground levels have access to Shing Wong Street via the side entrance of the Building.

5.  The deed of mutual covenant (“the DMC”) in respect of the Building was executed on 8 September 1973.  Under the DMC, the covered playground on the Playground Floor was allocated 10 shares out of 1,720 equal undivided shares and the carports on the First, Second and Third Lower Ground Floors including all the parking spaces were allocated 68 shares. They were among those parts of the Building for the exclusive use, occupation and enjoyment of the owners holding the shares as allocated.  The transformer room and the switch room on the Playground Floor were designated as common parts and facilities, so was the driveway of the carports.

6.  The IO was incorporated on 29 January 1993.  It appointed International Property Management Ltd (“the Manager”) to assist in the management of the Building. Under the Building Management Ordinance, Cap 344, the rights in relation to the driveway of the carports, being a common part of the Building, have been exercised by the IO to the exclusion of the owners (section 16) and it has the duty to maintain the driveway “in a state of good and serviceable repair and clean condition” (section 18(1)).  The covered playground is located immediately below the driveway of the Third Lower Ground Floor (“LG3”).

7.  The plaintiffs became the registered owners of the covered playground by an assignment dated 11 December 2007.  The premises assigned to them as tenants in common were described in the assignment as “covered playground (including the store-room thereat) underneath the Third Lower Ground Floor at the northern side of the Building”.

8.  Not later than 2002, one or more of the plaintiffs’ predecessor in title had changed the original design of the covered playground and divided it into three units.  It is not known who had arranged for the alterations to be made and when they were made[2].  The judge has made these pertinent findings:

“The three units

22. The Playground Level is located below LG3. Its northern long side faces a scavenger lane with a parapet wall of about 1.1 metre high. Its southern side is the slope against which and on which the Building stands. The western end is a staircase leading up to LG3. The eastern end is the exit to Shing Wong Street. The boundary of the covered playground is about two-third the width between the northern and southern side, leaving a narrow common passage or right of way between the western staircase and eastern exit. In its original design, the Playground Level was completely open to the north above the parapet wall, and there was no partition between the covered playground and the common passage.

23. The three units were constructed by erecting a partition on the boundary dividing the covered playground from the common passage. The vertical space between the parapet wall and the underside of the driveway of LG3 is covered by sliding windows and a few small walls. The covered playground is internally sub-divided into the three self-contained units. Unit A is at the eastern end of the covered playground. Unit C is at the western end with Unit B at the middle between those two units. Each unit has individual door exit to the common passage. The covered playground or the three units occupy a total area of 2,380 square feet.

24. Unit A has an open layout with a partitioned kitchen and partitioned bathroom. The walls and floors are tiled. There are one split type and one window mounted air conditioners. The kitchen is fitted with a sink with cabinet, a table top with a two head cooker with LPG cylinder and an exhaust fan opening to the common passage. The bathroom is fitted with a water closet, basin with cabinet, a bath tub and an exhaust fan opening to the common passage.

25. Unit B is internally divided into three rooms. There are three window-mounted air conditioners. The walls and floors are tiled. The main room includes an open kitchen fitted with a range hood and four head electrical stove, a sink, a counter top and an exhaust fan opening to the common passage outside. There are two mattresses placed in the main room. The bathroom is located in the middle room where there is a timber frame bunk bed. It is fitted with a water closet, a basin with cabinet, a bath tub and an exhaust fan opening to the common passage.

26.       Unit C is internally divided into two rooms and a storeroom.  There are two window-mounted air conditioners and two exhaust fans opening to the scavenger lane.  The walls and floors are tiled.  The main room includes an open kitchen fitted with a range hood and four head electrical stove, a sink and cabinet, a counter top and an exhaust fan opening to the common passage.  There is a toilet and a washing machine.  The bathroom is located in the inner room.  It is fitted with a water closet, a basin with cabinet, a bath tub, a shower and an exhaust fan opening to the common passage.”

9.  The covered playground was assigned to the plaintiffs subject to the existing lettings and tenancies.  The tenancy of Unit C expired in September 2007, the tenancies of the other two units expired in April and October 2008.  None of them were renewed and all three units were since left vacant.

(2) The water leakage and repairs

10.  The judge rejected the evidence of Tong Chun Keung (“Tong”), the husband of the first-named plaintiff Lam Suk Yee, that he had made an oral complaint to the Manager of water leakage into the three units as early as December 2007, before the completion of purchase of the covered playground.  The judge preferred the evidence of Cheng Bing Cheong, the property asset manager of the Manager, which was based on contemporaneous records kept by the Manager, and found that the IO first received complaint from Tong of water leakage on 4 July 2008[3].

11.  The Manager responded promptly to the complaint. It inspected the units and took advice from the IO’s consultant engaged for the renovation of the Building, and obtained quotation for repair works.  On 28 October 2008, the Manager received a quotation from Pacific Ocean (Construction) Engineering Co (“Pacific Ocean”) for very extensive two-stage works involving removing the surface concrete of the floor slab of LG3 and re-laying the waterproof membrane with epoxy mixture at the price of $218,000.  Up to that stage, the judge found there was no unreasonable or undue delay in carrying out remedial works[4].

12.  There was no follow up by the Manager for the next six months between October 2008 and 17 April 2009, and a total lack of explanation for the inaction[5]. Progress resumed in April or May 2009 when the Manager received further advice from the IO’s consultant and invited quotations for an alternative method of repairing the surface of LG3 and grouting.  The works contemplated did not involve re-laying the waterproof membrane.  The quotation of Diploma Construction & Engineering Co Ltd (“Diploma”) at $138,000 was accepted and a purchase order was issued to Diploma to execute the works on 30 July 2009[6].  The judge held that had the alternative method been considered in parallel with the method of re-laying the waterproof membrane with epoxy mixture, at least two months could have been saved[7].

13.  On 12 August 2009, being frustrated with the slow progress, the plaintiffs sought help from the Food and Environmental Hygiene Department (“FEHD”).  The FEHD conducted a coloured water test on the drainage pipes in the Building on 24 August 2009.  It confirmed leakage but was unable to identify the source[8]. Two specialist contractors were subsequently engaged by the FEHD to investigate.

14.  On 8 and 12 October 2009, inspection and water tests were conducted by Brighspect Limited (“Brighspect”) and a report dated 8 January 2010 was furnished.  The judge found the usefulness of this report “very limited”, as it merely confirmed the fact of leakage and water infiltration from the floor slab of LG3, which was not in dispute, and ruled out leakage from drainage pipe as unlikely[9].

15.  Some time before 21 January 2010, Wong Kam Kau Engineering Company Limited (“WKK”) carried out investigation at LG3 and the three units.  It opined that the suspected cause of leakage was damage in the floor slab of LG3[10].

16.  The Manager had made several requests to Tong for access to the units to carry out repair works.  On 21 August 2009, Tong agreed to allow access to Diploma.  There is no dispute that Tong was informed by the Manager on 24 August 2009 repair works would commence on 26 August[11]. The judge rejected Tong’s evidence and accepted the Manager’s evidence that on 25 August, Tong suddenly informed the Manager he was unable to arrange access to the units and the work arrangement was cancelled as a result[12].  It was not until 6 November 2009 that Tong agreed to give access to Diploma to commence works on 19 November 2009 and deposited the keys to the units with the Manager.  The judge found that the plaintiffs were responsible for the four months’ delay between August and November 2009[13].

17.  Between 2 December 2009 and 20 January 2010, Diploma carried out the repair works (“the First Repairs”).  The works were not effective.  A water test was carried out by Diploma on 22 January 2010. About a month later, Tong complained to the Manager about water leakage. During an inspection, the Manager’s representative saw some water stain and damage to paintwork.  On 23 April 2010, Diploma conducted a second water spraying test at LG3.  On 26 April, a joint inspection by the Manager, the IO’s consultant, Diploma and Tong was carried out in the units.  Water marks were observed.  The consultant identified other water leakage locations at the light well and the toilet in LG3 and advised follow up works.  Diploma undertook to touch up the damaged paintwork in the units at no costs to the IO.

18.  In about May 2010, Tong informed the Manager that the plaintiffs would not allow the Manager to touch up the damaged paintwork at the ceiling of the units or to execute further repair works because the plaintiffs would be taking legal action against the IO and seeking damages. Further requests to Tong to allow access were to no avail[14]. On 26 July 2010, the plaintiffs’ solicitors issued a letter to the IO demanding immediate remedial action within 14 days to stop the water leakage.

19.  In July 2010, the IO invited quotations for the follow up works and quotations were received from several contractors in August 2010.  On 30 August 2010, a purchase order to execute the works was issued to Pacific Ocean.  Repairs were carried out in the light well and the toilet by Pacific Ocean between November and 13 December 2010 (“the Second Repairs”).  No works were carried out inside the three units due to Tong’s stance of refusing access to the units for carrying out the touch up works.

20.  From the time of the first complaint on 4 July 2008 to the completion of the Second Repairs on 13 December 2010, it took 17 months for the repairs to be carried out.  The judge considered the IO responsible for its failure to make the primary decision whether to use the epoxy method or grouting method, which occasioned at least two months’ delay. The IO was also responsible for the unexplained delay of six months between October 2008 and 17 April 2009.  The judge held that the other delays were caused by the plaintiffs’ uncooperative attitude in refusing access for Diploma to carry out repair works.  Given the usual difficulties associated with water leakage, the judge found that had the IO proceeded with the works regularly, the repairs could have been completed within nine months.  There was a total delay of eight months[15].

21.  On 28 April 2011, the plaintiffs issued the writ and statement of claim in this action.

22.  Four years later, both parties appointed a single joint expert, Nigel Ko of Infrared Engineering & Consultants Ltd (“IREC”), to seek to identify the leakage path by thermographic technique.  On 30 June 2015, he conducted a water spraying test on the driveway of LG3 by using a hose at a pressure of 25 lbs per sq inch.  He noted water dripping on the ceiling of Unit B and confirmed there was leakage on the floor slab of the driveway but was unable to identify a significant leakage path[16].

(3) User restriction and unauthorised building works

23.  Between 23 June 2011 and 25 May 2012, there was correspondence between the IO, the District Lands Office and the Buildings Department in relation to the IO’s complaints[17] about the conversion of the covered playground into three enclosed units and the unauthorised building works in the covered playground.  The IO sought enforcement action by the authorities and the removal of the units and reinstatement of the covered playground as a covered playground.  The District Lands Office replied that there was no user restriction under the Government lease so it could not take enforcement action.  The Buildings Department responded in 2012 that under the current policy the unauthorised building works were not given priority for enforcement action and would keep the situation under review.

24.  It was only on 25 September 2017 that the Building Authority eventually issued a Superseding Notice to the plaintiffs under section 24C(1) of the Buildings Ordinance, Cap 123, notifying them that the solid walls with metal gates and structures erected in the enclosed area at the covered playground have been erected in contravention of the Buildings Ordinance and that the Superseding Notice would be registered in the Land Registry against their property if the works identified were not demolished by the stated time.  The Superseding Notice was registered in the Land Registry against the plaintiffs’ property on 15 December 2017.

The judgment below

25.  There is no dispute that the IO is under a duty to maintain the driveway on LG3 which was where water leaked or seeped into the ceiling of the three units.  The dispute is whether the IO was in breach of its duty. The issues are what is the standard of care reasonably required of the IO to discharge the duty of proper management and whether on the facts the IO had discharged that standard.

26.  The judge held that the standard of care depends on what the DMC and the circumstances required, and that the duty must be fair, just and reasonable in the circumstances[18]. The standard of care required to discharge the duty of care must be that which is appropriate to the design, construction and the intended user of the covered playground and LG3[19]. The duty imposed on the IO was not an absolute duty to ensure no leakage of water from the driveway in LG3 into the covered playground below.  Nor was there a duty on the IO to ensure that the driveway in LG3 was maintained in such a condition as to enable the covered playground below to be fit for habitation[20].

27.  The judge distinguished the cases cited to him by the plaintiffs’ counsel, Mr K M Chong[21] regarding water leaking into a residential unit, having regard to the unique feature in the present situation which was leakage “from a semi-open driveway into the premises below which were converted from what was originally planned and constructed as a semi-open covered playground”[22].  Both LG3 and the Playground Floor were designed and constructed to be semi-open and hence vulnerable to weather condition.  The judge held that the standard of care was discharged if the driveway was maintained in such a way that the covered playground below may be used and enjoyed for the intended use as a covered playground[23].

28.  The judge accepted the expert opinion of the IO’s building surveyor, Mr Samson Wong, that given the design, construction and intended user of LG3 and the covered playground, some minor leakage or seepage is expected or permitted, so long as it does not affect the proper enjoyment of the covered playground as a playground and the risk of leakage from accumulation of water on the floor slab of LG3 (such as rain water from the opening above the parapet wall[24], water carried by wheels of cars driving on the driveway and the carports, water left behind by car owners when washing their cars, water left behind by cleaners after washing the driveway) is adequately guarded against[25]. Provided there is no water dripping and the leakage or seepage had only resulted in dampness on the underside of the floor slab of LG3, ie the ceiling of the covered playground, which would be evaporated or carried away by the ventilation or flow of air in the Playground Floor under the original design of the Building, the IO would have discharged its duty of care[26].

29.  The judge agreed with the expert opinion of Samson Wong that the conversion of the covered playground into three enclosed and self-contained units in effect turned the covered playground into an air-tight chamber.  The emulsion paint and tiles on the ceiling and walls would prevent or obstruct water moisture in the concrete slab from escaping.  Had the units been occupied, the windows would have been opened or air conditioners would have been turned on and moisture would have been removed.  All these factors contributed to the effect that any moisture or water which seeped through the floor slab and which would otherwise have evaporated and carried away by open air would accumulate and cause damage to the concrete and paintwork[27].

30.  The only evidence relied on by the plaintiffs is the dripping of water and seepage in the IREC report in 2015 and the seepage in the Brighspect report, the WKK investigation and the FEHD investigation in 2010.  All that the Brighspect report, the WKK investigation and the FEHD investigation proved was leakage before the First Repairs and Second Repairs were carried out; they do not shed light on the effectiveness of the repairs.  As for the dripping of water noted in the IREC Report four and a half years after the Second Repairs, the judge took the view that the dripping of water after the water spraying test conducted with an “unusually high pressure” of 25 psi is no evidence that there will be dripping under normal heavy rainstorm and typhoon situations[28]. He also accepted Samson Wong’s opinion that the damage was caused and aggravated by the air-tight chamber effect during the four and a half years[29].

31.  There is no evidence that failure to carry out preventive maintenance to minimise the loss of concrete in the floor slab of LG3 caused by the leakage affected the enjoyment of the covered playground as a covered playground[30]. Given the unlawful conversion of the covered playground and the non-permitted use of the units, the plaintiffs have failed to prove the leakage before the First Repairs was the result of the IO’s breach of duty[31].  There is no evidence of any leakage after the Second Repairs were completed, and no evidence what the situation would be had the covered playground not been converted into an air-tight chamber and kept closed for four and a half years.  The plaintiffs have failed to discharge their burden of proving breach of duty.  As the plaintiffs failed to discharge the burden of proof, the IO’s delay in taking action becomes a non-issue[32]. Accordingly, the claim in negligence was dismissed.

32.  As for the cause of action in nuisance, the judge held that on the facts of this case, nuisance overlaps with negligence and the test is one of reasonableness having regard to the background, which included the approved plan of the Building, the design, construction and intended use of the driveway in LG3 and the covered playground below[33]. LG3 and the Playground Floor were designed and constructed so that the covered playground could be enjoyed as a covered playground.  The plaintiffs’ predecessor in title upset the balance by converting the covered playground into units for domestic use, which was not a permitted use under the occupation permit.  The IO was not required to re-adjust the balance by taking on additional measures to upgrade the waterproofing standard of the floor slab or prevent the ingress of rain water to LG3[34]. As the claim in nuisance was launched on a false premise, it was dismissed.

33.  The IO’s counterclaim was founded on clause 22(i) of the DMC, which provided that the owners shall not at any time “use or cause or suffer or permit to be used the unit or units of the said Building of which they are entitled to the exclusive use occupation and enjoyment … for any illegal unlawful or immoral purpose”.  The judge found that the covered playground was converted into the three units for domestic use[35].  Further, he found there were unauthorised building structures in respect of the external partitions[36], the windows on the parapet wall, the kitchen without windows in Unit A, the kitchens without fire resistant partition in the three units, the toilets without windows in the three units, the exhaust fans facing the common passage, and the metal gate at the entrance of Unit C[37].

34.  Whilst a change of user from that stated in the occupation permit may not be “illegal” in the sense that it is not a criminal offence[38], the judge held that the word “unlawful” in clause 22(i) is of wider import and encompasses criminality and defiance of the law generally, whether enacted by statute or evolved under common law and whether criminal or civil in nature[39]. In light of the change of user from the permitted use of non-domestic to the non-permitted use of domestic and the unauthorised building works, the judge held that the covered playground is being used for an unlawful purpose, and the unlawfulness was confirmed by the Superseding Notice issued by the Building Authority[40]. There was clear breach of clause 22(i).

35.  The judge considered the injunctive reliefs sought and granted to the IO a mandatory order directing the plaintiffs to demolish all those unauthorised building works which constituted breaches of the Building (Planning) Regulations and the Building (Construction) Regulations[41].

This appeal

36.  Mr Chong sought to challenge the judgment against the plaintiffs on the claim and the counterclaim.  As we have indicated to him in the course of argument, he failed to engage the crucial findings of law and fact in the judgment to persuade this court how and why the judge went wrong in order for us to intervene.  His arguments on appeal are by and large repetition of his submissions made to the judge and rejected for the reasons given in the judgment.  This is not the proper approach to conduct an appeal.

37.  I will consider first his arguments regarding the counterclaim, followed by those on the claim.  He had made the point that it was “exceptionally strange” for the judge to deal with the counterclaim first in the judgment.  I do not find anything inappropriate or strange about this. As submitted by Mr Anthony Cheung, who appeared for the IO here and below, the lawfulness of the conversion of the covered playground was considered first in relation to the counterclaim as this formed an important part of the relevant background for the determination of the appropriate standard of care.

The arguments in respect of the counterclaim

38.  Mr Chong repeated his arguments below that the user of land is determined by the Government lease not the occupation permit, and that the user under the occupation permit may be deviated from so long as the deviation is permitted under the Government lease.  He again contended that use for the purpose of clause 22(i) of the DMC must mean actual user and reiterated that in the absence of evidence of actual user (stressing that the premises had been left vacant ever since the expiry of the tenancy agreements of the three units), it was not open to the judge to find that the plaintiffs’ premises had been used for domestic purposes. 

39.  These arguments are to no avail.  The judge had dealt with them and explained fully why actual user is misconceived and not relevant[42].

40.  As pointed out by the judge, the Buildings Ordinance and the occupation permit only distinguished between domestic and non-domestic user.  The definitions of “domestic” and “non-domestic” in the Buildings Ordinance are obviously relevant.  “Domestic” means “a part that is constructed or intended for habitation” and “non-domestic” means “a part that is constructed or intended for use otherwise than for habitation”. Actual user of the premises at any given time is beside the point, as user in the context of the Buildings Ordinance and the occupation permit refers to the character or status of a building or a part of the building, as determined by the building plans submitted by the architect and approved by the Building Authority, and, on completion of the building, by the occupation permit issued[43].  The cases on actual user and primary user in the contexts of land resumption and adverse possession cited by Mr Chong are simply not relevant[44].

41.  The judge is right to reject Mr Chong’s contention that only the Government lease controls the user of the land[45]. That the District Lands Office had declined to take enforcement action in June 2011 on the basis there was no user restriction under the Government lease is immaterial.  The District Lands Office had informed the IO by letter that the enforcement responsibility against unauthorised building works is within the jurisdiction of the Buildings Department and it had referred the IO’s allegation to the Buildings Department for follow-up action, even though there was no contravention of the Government lease[46].

42.  According to the occupation permit of the Building, the covered playground on the Playground Floor was approved for non-domestic use as a covered playground.  That was the status or character of that part of the Building.  The occupation permit did not state that any non-domestic use was allowed for the Playground Floor, nor did the judge so find in §32 of the judgment as Mr Chong wrongly contended. The status or character of the covered playground was altered when the approved semi-open design was enclosed by solid walls with metal gates and structures and partitioned internally into three self-contained units.  As the judge has found, the evidence is overwhelming for the proper inference to be drawn that whoever converted the covered playground into the three units as they now stand did so with the intention that they were to be used for domestic purposes as residence[47]. The judge’s finding that the covered playground was converted into the three units for domestic use is unassailable.  The permitted domestic plot ratio has been exceeded as a result of the conversion.  No steps have ever been taken to seek approval for the conversion[48]. The judge is clearly right to hold that such change of user is unlawful and in breach of clause 22(i) of the DMC.

43.  In addition to the change of user, the judge also found there were unauthorised building works, the unlawfulness of which was confirmed by the Superseding Notice.  That was another reason for holding there was breach of clause 22(i).  Mr Chong’s contention that “since the change of user was unlawful, the structures within [the plaintiffs’] premises were unauthorised building works” is a distortion of the judge’s reasoning in §§83 and 87 of the judgment.

44.  There is no substance in any of the arguments advanced on behalf of the plaintiffs in respect of the counterclaim.

The arguments in respect of the claim

45.  Mr Chong submitted that in determining the appropriate standard of care, the judge had never considered the capacity of the IO as the owner of the driveway of LG3 and merely focussed on the management duty imposed on the IO under section 18(1) of the Building Management Ordinance.  He criticised the judge for holding that only a “rather low standard of care”[49] was required of the IO and that the standard of care required is “such standard as was prevailing at the time of entry into the DMC”[50].  Mr Chong contended that the judge was unduly restrictive to hold that the standard of care is discharged “if the driveway is maintained in such a way that the covered playground below may be used and enjoyed for the intended use as a covered playground”[51].  He mentioned that apart from the covered playground on the Playground Floor, there are adjacent to it a transformer room and a switch room and these common facilities are sensitive to water.

46.  Reliance was again placed on the dicta of Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903 to 905, as in the court below, to support counsel’s contention that it was the IO’s duty, as the owner of the driveway of LG3, to maintain it and this duty was not absolved or lightened just because the change of user of the covered playground is unlawful as held by the judge. 

47.  The above submissions of counsel are not to the point and his criticisms of the judgment are unjustified.

48.  In considering the standard of care for the plaintiffs’ cause of action in negligence, the judge focussed on the duty imposed on the IO under the Building Management Ordinance to maintain the driveway “in a state of good and serviceable repair”[52].  Having considered two decisions of the Court of Appeal[53], the judge held that this duty is not an absolute duty but is “one of proper management, which entails doing all that is reasonably required of a manager in the circumstances”[54]. It is of little moment that the judge did not refer to the IO’s capacity as the owner of the driveway in discussing the standard of care for negligence.  He had borne in mind this capacity of the IO when he came to consider the cause of action in nuisance[55]. As the judge had held, on the facts of this case, nuisance overlaps with negligence and the test is one of reasonableness, which brings the parties back to the factual background[56].

49.  The reasons for holding that a “rather low standard of care” was required of the IO are due to the peculiar features of this case, which have been explained in considerable detail by the judge and summarised earlier in this judgment.  In determining what is fair, just and reasonable for the standard of care, the judge is right to have regard to the DMC and what is appropriate to the design, construction and the intended user of the covered playground and LG3.  It would not be fair, just or reasonable to require the IO to comply with a higher standard of care as would be owed to the owners of residential units in the Building, when the unlawful conversion of the semi-open covered playground into an air-tight enclosure was not anticipated by the parties to the DMC.  The judge is entitled to find, on the expert opinion evidence accepted by him, that the plaintiffs had failed to prove that the IO had breached its duty.

50.  The dicta of Lord Wright in Sedleigh-Denfield v O’Callaghan do not assist the plaintiffs on the facts of this case. As Lord Wright had stated at 903, “a balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with”, and “it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society”.  It is misconceived to think that the law of nuisance would require a higher standard of care to be placed on the IO in the particular circumstances of this case.

51.  As for the effect of leakage on the transformer room and the switch room of the Playground Floor, this was only canvassed cursorily in the cross-examination of Samson Wong.  There is no or no sufficient evidence to establish that leakage from accumulation of water on the floor slab of LG3 had actually caused damage to the transformer room or the switch room, or that the risk of leakage to these common facilities had not been adequately guarded against by suitable water proofing layer.  The judge cannot be criticised for not mentioning this in the judgment.

52.  Mr Chong made great play that the judge had regarded the unlawful conversion of the covered playground into the three units as a kind of user of “abnormal sensitivity” and criticised the judge’s reliance on Robinson v Kilvert (1889) 41 Ch D 88 as wrong in law.[57]  He referred to the comments of Buxton LJ in Network Rail Infrastructure Ltd v Morris [2004] Env L R 41 at §§35 to 36 that the law of nuisance has moved on since Robinson v Kilvert, that the concept of “abnormal sensitivity” was developed at a time when liability of nuisance was thought to be strict and “it is difficult to see any further life” in this concept.  In the modern era, what is required is an analysis of the demands of reasonableness in a particular case, which the court is to assess in terms of foreseeability.  The particular rule of “abnormal sensitivity” is now subsumed under the general view of the law of nuisance.

53.  It is important to bear in mind that the test is not that of foreseeability alone (as contended by Mr Chong), but of foreseeability as an aspect of reasonableness (Network Rail Infrastructure at §33, and the dicta of Lord Phillips, MR at §19).  On a fair and proper reading of the judgment, I am satisfied that the judge had applied the correct test of the law of nuisance.  As the judge had found, the unlawful conversion of the semi-open covered playground into enclosed units with an air-tight effect is a deviation from the permitted and normal use[58].  It would not be reasonable to put the IO under an additional duty to upgrade the waterproofing standard of the driveway or require the IO to take steps in ensuring that the plaintiffs could enjoy the units for a non-permitted use[59].  In effect, the judge had applied the test of foreseeability as an aspect of reasonableness.

54.  Mr Chong prayed in aid the leakage of water had caused structural damage to the plaintiffs’ premises and complained that even on the judge’s finding, the IO had delayed for eight months in carrying out the repairs.  Having read the relevant parts of the transcript in the cross-examination of Samson Wong referred to by Mr Chong, I am not satisfied that the expert witness had actually agreed with counsel there was structural damage, nor did the judge make any finding to that effect.  More importantly, unless the plaintiffs have discharged their burden of proving breach of duty, delay in carrying out the repairs, structural damage to their premises, and loss of rental income from the loss of use of the premises are all irrelevant.

55.  It is unnecessary to address the arguments of Mr Chong on ex turpi causa and that the judge was wrong in refusing to award damages due to his finding that the user of the plaintiffs’ premises was unlawful, as the plaintiffs have not got over the hurdle to prove there was breach of duty of the IO and that such breach had caused the damage.

56.  Lastly, Mr Chong contended that the IO had breached its duty to maintain the common parts in that the repairs were carried out blindly without first having diagnosed the problem, relying on dicta to that effect in some cases.  This is not a proper use of authorities.  Whatever was said in another case must be considered with regard to the facts found in that case.  In the present case, there is no or no sufficient evidential basis to support that kind of finding in other decided cases.

Conclusion and costs

57.  None of the arguments advanced on appeal by Mr Chong are of merit.  The plaintiffs’ appeal must be dismissed.

58.  As there is no dispute that costs should follow the event, the plaintiffs should pay the costs of the IO in this appeal.

Hon Yuen JA:

59.  I respectfully agree with Kwan VP’s judgment.

Hon Au JA:

60.  I agree.