CHENG PAN v. CHAN CHEONG SHUN

DCCJ 2849/2016

[2018] HKDC 1189

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2849 OF 2016

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JUDGMENT

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1.  This is a water-leak case.

2.  The plaintiff is the owner of a ground-floor shop (“the Plaintiff’s Property”) and the defendant owns the flat above including a flat roof (“the Defendant’s Property”).

3.  The plaintiff’s case is that there has been continuous water leakage from the Defendant’s Property to the Plaintiff’s Property since around 15 February 2016 (although Mr. Cheng, the witness for the plaintiff (who is the son of the plaintiff), gave evidence that the water leak has stopped as of 5 July 2018). He seeks an injunction “to restrain the defendant from allowing water to escape from his property to the Plaintiff’s Property so as to cause a nuisance” and also claims various damages for repairs and loss of rent.

4.  The Defendant’s Property comprises of a flat and a flat roof which runs along the back of the flat and along one of the sides of the flat (see p.118 of Trial Bundle A).

5.  It is not in dispute that the defendant has altered the flat (which used to be an elderly home) into 7 sub-divided flats (so called “劏房” in Chinese). Each of these flats has its own tiny toilet and shower area separated from the bed by a drawing divider. These were in fact “open shower” areas with no “shower-tray” so shower water would go onto the floor with a draining hole.

6.  It is also not in dispute that the defendant has either put up or adopted existing illegal structures on the flat roof including the entire raised floor (which buried the existing pipes running on the surface), various metal structures and alterations to various pipes and drains.

Issues in dispute

The sources of the water leak

7.  There were 2 expert reports available.

8.  The first one is a Single Expert Report by Mr. Simon Cheung (“Mr. Cheung”) dated 31 May 2016 (“SER”). He was instructed by the plaintiff. The SER was based on a site inspection on 5 April 2016.

9.  Mr. Cheung is a Chartered Building Surveyor and no objection has been raised against his expertise. The court therefore accepts Mr. Cheung as an appropriate expert in this matter.

10.  No water leak test was done as Mr. Cheung could not gain access to the Defendant’s Property at the time.

11.  Mr. Cheung has documented the various sites of water leakages and spalling concrete found on the ceiling of the Plaintiff’s Property (p.118 of Trial Bundle A). The water leakages were extensive: there were leakages near the front, the middle as well as near the back of the Plaintiff’s Property.

12.  There were potentially several sources of water leakage. The areas of leakage in the front were directly under the defendant’s sub-divided flats. Areas in the middle were under the flat roof of the Defendant’s Property near the external wall. The areas near the back of the shop were also under the flat roof.

13.  Water leak tests could only be conducted more than 1 year later when access to the Defendant’s Property was granted.

14.  However, by this time, the defendant has demolished all the sub-divided flats including all the pipes and drains inside the flat. Any alleged water-proofing material, if any, inside the sub-divided flats had also been demolished so there was no point in conducting any water leak test inside the flat.

15.  Two water leak tests, a colour dye ponding test and a water spray test were conducted by Mr. Cheung and Ms. Rosanna Lau (“Ms. Lau”), the expert instructed by the defendant.

16.  Ms. Lau is a Chartered Engineer. Her expertise in this matter was not challenged and she is therefore also accepted by the court as an appropriate expert.

17.  The experts had labelled various areas of water leakage identified in the ceiling of the Plaintiff’s Property from “Zone A” to “Zone I” (p.402 of Trial Bundle B). Within each zone, there were individual spots labelled with numbers for use for Protimeter (an electrical conductivity sensing device) to measure moisture content (“MC test”) before and after each test.

18.  In addition, Ms. Lau also used an Infrared scan to detect water leakage (“IR test”). This device measured surface temperature on the assumption that the wetter it was, the lower the surface temperature would be.

19.  During the trial, Mr. Cheung objected to the use of the IR test as it was not the agreed methodology.

20.  Nevertheless, the experts were in agreement as to the limitations of the IR test (for example, that it could only provide an overview and would not give precise measurements of the degree of wetness) and, as pointed out by this court near the end of trial after hearing evidence from both experts, the results from both the MC test and IR test were largely consistent with each other.

The colour dye ponding test

21.  The colour dye ponding test was conducted on the flat roof on 31 July 2017.

22.  This was intended to test for any water leakage from the flat roof. The test was not performed inside the flat because, as discussed above, there was no point doing it there when everything has been demolished.

23.  The “MC test” results shows that the flat roof was responsible for water leakages in Zones B, D, G and H (pp. 390 to 394 of Trial Bundle B) with obvious increase of moisture content after the test.

24.  The only discrepancy between the MC test and the IR test was whether Zone F was caused by water leakage from the flat roof. The IR test seems to show a change in surface temperature but the MC test does not show a change in moisture content. I would regard the results inconclusive but Zone F is a small area in any case.

The water spray test

25.  The water spray test was conducted on 21 August 2017. The test intended to test whether the external wall was responsible for the water leakages.

26.  The test has to be performed under a “controlled” condition because the water sprayed onto the external wall would run onto the flat roof which has already shown to be leaking by the colour dye ponding test.

27.  Therefore, a yellow plastic cover was used to cover the flat roof as far as possible, but this “control” was compromised in some extent because of the scaffolding on the flat roof at the time of the test: the yellow sheet could not cover the areas near the boundary wall of the neighbouring flat.

28.  The “MC test” showed that there was increase in moisture content in Zones D, E and H.

29.  No water spraying was performed near Zone H. Mr. Cheung’s explanation was that this was where the water after being sprayed would run off at the back of the flat roof. Since we already knew from the colour dye ponding test that there was water leakage from that area of the flat roof, this result should be disregarded.

30.  I agree.

31.  Both Zones D and E were near the boundary wall of the neighbouring flat and were not covered well by the plastic sheet.

32.  However, as far as Zone D was concerned, since the colour dye ponding test already showed that there was leakage from the flat roof onto Zone D, this positive MC test result could not conclusively show that leakage from the external wall was a likely cause.

33.  However, Zone E was negative in the colour dye ponding test thus we know that this was not caused by leakage from the flat roof. Thus, one could conclude that Zone E was likely caused by water leakage from the external wall.

34.  I note that Mr. Cheung gave evidence that he thought Zone E (like Zone D) was caused by water leakage from the flat roof as the area above it was not covered by the plastic sheet during the water spray test. But (as I have explained near the end of the trial having heard all the expert evidence) I think Mr. Cheung must have simply over-looked that Zone E was negative in the colour dye ponding test so that effectively ruled out the possibility that it was caused by any water leakage from the flat roof.

35.  I can therefore conclude from the two water leak tests that Zones B, D, G, H were caused by water leak from the flat roof and Zone E was caused by water leakage from the external wall. There were inconclusive results regarding Zone F. Zone I was negative in both tests so the leakage was neither from the flat roof nor the exterior wall. It was located in the back of the Plaintiff’s Property.

Zones A and C

36.  Zone A and C were also negative in both the colour dye ponding test and water spray test so the leakage was neither from the flat roof nor the exterior wall.

37.  These zones were near the front of the Plaintiff’s Property directly under the defendant’s flat so one might suspect that the source could be from there.

38.  The presence of such sub-divided flats were mentioned in the SER despite Mr. Cheung having no access into the actual property. Mr. Cheung explained the “tell-tale signs”: two electric meters outside, floor inside the flat being raised as observed from outside the front door (to accommodate the extra piping above the original floor level) etc.

39.  Of course, all traces of these have been removed by the time of inspection by both experts for the Joint Expert Report (“JER”).

40.  Madam Yau, the defendant’s witness, told the court that she had put water-proofing on the floors in the open shower areas. She explained how she had put “明喉” (external observable water-pipes) so she could inspect for water leaks (and there were none). She told the court that she has even conducted her own blue dye water leak tests in September 2016 and found no leakage from the sub-divided flats.

41.  I do not find Madam Yau an honest witness: all these evidence was new and not in any of the defendant’s witness statements. One would have thought that if Madam Yau has gone to such length to prevent and test for water leaks, it would have been the first things that she would state on evidence.

42.  When asked by the court why she would not even take a photograph to record the “negative” findings of the blue dye test nor inform the plaintiff immediately to “prove her innocence”, Madam Yau could not provide any convincing answer.

43.  Madam Yau clearly was lying about the water leak test. I will elaborate more later.

44.  For the same reason, I would also seriously doubt that Madam Yau has bothered to put in any water-proofing for the sub-divided flats as she now alleged. If she has, I would expect that she would be the first to show the evidence of such instead of demolishing everything before allowing the experts to inspect.

45.  Further, the defendant in his witness statement admitted that in December 2016, he demolished the sub-divided flats and disconnected all the pipes and the purpose was to “確保沒有再漏水或滲水”. This would be an admission that the plaintiff was aware that there was water leak from the sub-divided flats.

46.  Madam Yau has adopted the defendant’s witness statement but when this passage was pointed out to her in court, she said she did not agree with that and claimed that she was just “not careful” with the wordings in the defendant’s witness statement.

47.  I would have thought that if Madam Yau was such a careful person as to perform her own water leak test etc., she would have been very careful not only to state the negative findings in her witness statement, but to ensure that there was no statement to suggest the contrary.

48.  On the other hand, I am convinced by Mr. Cheung’s expertise in identifying the areas of darkened concrete on the floor as likely area of wetness (with corresponding mouldy areas in the ceiling or walls). These were the likely the shower areas of the sub-divided flats because there was no window or ventilation in such areas so the dampness would persist.

49.  Mr. Cheung also found other areas of likely water-leakage stains corresponding to water pipes near the front door of the Defendant’s Property.

50.  The presence of such darkened concrete also meant that any alleged water-proofing in the sub-divided flats must have been ineffective because whatever water-proofing Madam Yau claimed that she had installed during the construction of the sub-divided flats, this had not prevented water from reaching the concrete flooring.

51.  The severe water leakage incident in July 2017 also supports that the source of water leak in Zones A and C must be from inside of the defendant’s flat.

52.  According to Madam Yau, there was a severe rain storm in July 2017 and the flat roof was flooded. This caused water to run into the defendant’s flat causing flooding inside the flat (with all the sub-divided flats and alleged water-proofing demolished). It was not in dispute that   there was severe water leakage at the front of the Plaintiff’s Property around Zones A and C (as well as other areas) (see paragraph 17 of Witness Statement of Cheng Yiu Fai).

53.  Since the water leak tests performed by the experts showed that water leaks from the flat roof and the external wall would not affect Zones A and C, this incident showed that the source of water leak in these two zones must be from the flooding inside the defendant’s flat.

54.  I would therefore conclude that the source of the water leaks in Zones A and C was from inside the defendant’s flat, initially from leakages from these shower areas etc. and later, after removal of the sub-divided flat, by any episode of flooding of the flat from water ingress from the flooded flat roof.

55.  This would also confirm that any alleged water-proofing done by Madam Yau in the sub-divided flats was just as ineffective as if there was none (There was, of course, no water proofing at all inside the flat in July 2017).

56.  Madam Yau, in defence, claimed that the July 2017 flooding of the flat roof was caused by building materials left there (the exterior wall of the building was under renovation at the time) blocking the drains.

57.  However, Mr. Cheung found the following illegal alterations in the flat roof: a) blockage of one of the two drainage pipes of the flat roof b) division of the flat roof between the adjoining flats by a wall so water could not escape via the drains of the flat roof of the adjoining flat c) raising of the level of the flat roof illegally which increased the risk of water ingress indoors (regulations required the flat roof floor to be 150mm below the level of the interior floor of the flat but Mr. Cheung measured that it was only 70mm below the level at the doorway).

58.  As such, I am of the view that the defendant could not escape responsibility for the ingress of water into the flat.

Knowledge of the complaint of the water leak and delay in remedial measures

59.  Madam Yau claimed that the plaintiff has no knowledge of the water leak until receiving the writ in June 2016. She said that she did not receive the lawyer’s letter because there was no proper mail box. She said that the only complaint of water leak she received was from another property (next to the current property in question) which was back in 2013 and 2014.

60.  However, I cannot imagine that everyone including the management office, Mr. Cheng, her mother and the plaintiff’s lawyers could not contact the defendant or Madam Yau about a severe and continuous water leak for 4 months, especially when Madam Yau gave evidence that she visited the Defendant’s Property about once or twice a month during that time. She seemed to be perfectly able to keep in contact with the management office for her own complaint regarding the sewage pipe alterations in the exterior wall of the flat above as well as other water leak complaints in another property in previous years.

61.  On the other hand, Mr. Cheng gave evidence that immediately after discovery of the water leak around 15 February 2016, the management office was contacted. The staff from the management office (whom they called “Ah Suk”) told them within one to two days that he had contacted Madam Yau and reassured that she was aware of the situation.

62.  Mr. Cheng had also been trying to call Madam Yau directly but could not get through. He said that only the tenant of the shop managed to get through to Madam Yau around October 2016 when he gave the tenant Madam Yau’s telephone number. This led him to suspect that Madam Yau had simply barred the calls from his phone.

63.  It was clear that there were severe water leakages right from the beginning (as recorded in the SER as early as 5 April 2016) so one would expect that the plaintiff must have done everything to try to contact Madam Yau.

64.  Madam Yau’s case (as she now claimed in court) was that once she was aware of the water leak in June 2016, she had done the following:

i)   asked her builder “sifu” to investigate (and found no water leak from the defendant’s flat);

ii)   inspected the shop downstairs herself (and found no sign of water leak, contrary to the findings in the SER); and

iii)   performed her own water leak test (with no report, photographs etc. to document the results).

Yet she never informed the plaintiff, kept any records nor stated any of these in her witness statement.

65.  In fact, it was not until December 2016 (when Madam Yau’s tenants in the sub-divided flats have all left) that she demolished the sub-divided flats. When cross-examined on the reason why she demolished all the fresh water, salt water and sewage pipes in the sub-divided flats, Madam Yau said that she wanted to “cut all water supply to show that the water leak could not have come from the defendant’s flat”.

66.  The question must be that if Madam Yau has done all the inspection, investigation including the blue dye test, and that all the results were negative, she would simply need to show these results to the plaintiff to “prove her innocence” instead of incurring more costs to demolish the sub-divided flats.

67.  And even if she did not keep any records of her alleged blue dye water leak test, she could simply instruct the experts to perform another water leak test inside the sub-divided flats to confirm what she already knew. It made no sense to demolish everything (including all the evidence that might support her defence) as Madam Yau did.

68.  Further, if the purpose of the demolishment was to show that the sub-divided flats were not the cause of the water leak, Madam Yau would need to contact the plaintiff and then show that if the water leak had continued despite the demolishment, the source could not have been from the flat. Yet she never contacted the plaintiff.

69.  On further questioning, she claimed that she told “Ah Suk” (of the management office) of the demolishment, and she had subsequently inspected the shop personally for water leaks and again found none. Since Madam Yau all along claimed that she had been inspecting the shop and never found any signs of water leakage, one wonders what purpose of this exercise was (since she could only “prove her innocence” if the water leak had continued despite the demolishment).

70.  It was therefore clear that Madam Yau was lying as it suited her.

71.  I would therefore accept the plaintiff’s version of events over the defendant’s. I would think that the plaintiff would not incur costs to instruct lawyers, commission the SER and initiating legal action unless all efforts to contact the plaintiff to resolve the water leak issues were frustrated.

72.  Instead, Madam Yau must have been aware of the water leak very soon after 15 February 2016 but she chose not to do anything about it until the tenants of the flats had all moved out by December 2016. She never performed the blue dye water leak test and she must clearly know that the sub-divided flats were a source of water leak. This was the reason why she demolished the flats as well as the water supply, and she wanted to do that before the experts could test for water leakage.

73.  I find that Madam Yau has clearly delayed any remedial work. In fact, even though the defendant has demolished the sub-divided flats and the metal structures etc. outside in December 2016, she did not demolish the raised flat roof floor, take down the partition wall or unblock the flat roof drain, thus the risk of flooding and water ingress into the flat had remained (which caused the severe episode of water leak in July 2017).

Liability

Zone E

74.  The defendant should not be liable for the water-leakages in Zone E since the source was the exterior wall.

Zones A and C

75.  The defendant should be held liable for water-leakage in Zones A and C as this was from the interior of the defendant’s flat.

The remaining Zones

76.  As for Zones B, D, G and H, the source of water leakage was from the defective water proofing in the flat roof.

77.  There is a dispute between the parties as to whose responsibility it was to maintain the water-proofing of the flat roof.

78.  The defendant’s Counsel, Mr. Adrian Leung (“Mr. Leung”), argued that it is well established that the waterproof layer / membrane is regarded as a common part of the building even if the flat roof was owned by the defendant (Wing Ming Garment Factory Ltd. v Incorporated Owners of Wing Ming Industrial Centre [2014] 4HKLRD 52).

79.  However, there is no dispute that the defendant has illegally modified or adopted the illegal modifications on the flat and the flat roof. These includes (as described in details in section 5.4 of the SER) adopting the raised floor of the flat roof (the aim, according to Mr. Cheung, was to bury the drains running on the surface of the floor of the flat roof to create a flat surface in order to build illegal structures on it); putting floor tiles on top of this raised surface (which was kept in poor condition with uneven surface and pooling of water); erecting unauthorised metal yard structure on the flat roof; cutting and re-routing various pipes and drains including blocking of one of the two drainage pipes of the flat roof; building an authorised wall dividing the flat roof (as mentioned above) etc..

80.  Having done all these, I would think it disingenuous for the defendant now to try running a defence suggesting that the Incorporated Owners Committee should be responsible for any defect of the water proof membrane and that “if the Incorporated Owners Committee needed to enter the premises to repair the same, the defendant would have fully co-operated with any repair work”.

81.  In Yik Yuen Ling v Tso Wing Yan [2018] HKDC 138, Deputy District Judge Simon Ho stated:

“In the circumstances of this case, I hold that it is just fair and reasonable to impose a common law duty upon the defendant to keep the elevated flooring at the Flat Roof (as built as her predecessor and adopted by her) in proper repair and condition so as not to allow water (be it sourced from rainwater or otherwise) seeping through its elevated floor surface down to and damaging the ceiling of Office 3A..while knowing or ought to have known of such seepage and that the waterproofing membrane at the original floor surface had already become defective, and yet the presence of the elevated flooring as adopted by her has been preventing such waterproofing membrane from getting repaired or replaced.”

82.  Mr. Leung, argued that the Yik case should not apply to this case. He suggested that the Judge there relied on a clause on the DMC which has no equivalence here.

83.  However, I think each case must be decided on its own facts.

84.  Here, given that the water proof membrane was rendered physically inaccessible for repair by the defendant’s illegal structures, the defendant should have demolished the illegal structures immediately so to allow access for repair when he has knowledge of the water leak. If the defendant failed to do so, the court should impose a common law duty on the defendant, with or without any obligation under the DMC, to ensure that his own illegal work was waterproof.

85.  In other words, if the plaintiff has put up a physical barrier to prevent the Incorporated Owners from discharging its duty, it is only just and reasonable to deem that the plaintiff has assumed the duty upon himself and be liable for any failure in discharging the same, unless and until he has dismantled that physical barrier.

86.  I also note that Madam Yau herself gave evidence in court that she took upon herself to put a layer of water proof paint on the flat roof after removal of the metal structure in December 2016 (though none of these ever came out in any witness statement). I would be highly suspicious of whether the defendant has actually done so given the question on her credibility. But this shows that, in the very least, Madam Yau sees the need to tell the court that the defendant has not relied on the Incorporated Owners but has taken up that work himself.

87.  I would therefore hold the defendant responsible for the water leakage affecting Zones B, D, G and H.

88.  As discussed above, the liability of the water leaks in Zones F and I is inconclusive.

89.  In conclusion, I find the defendant negligent in both allowing water leakages from the Defendant’s Property into Zones A, B, C, D, G and H of the Plaintiff’s Property and in failing to do any remedial work to stop the water leak in a reasonably timely manner. In altering various parts of the Defendant’s Property which caused or contributed to the water leaks, I also find the defendant in breach of the DMC, in particular, clauses 3(f), 3(g), 3(p) and 3(s)(ii).

Damages

Loss of rent

90.  The plaintiff was claiming that the loss of rent from 1 April 2016. There was some confusion as Mr. Cheng initially thought that he was taking a potential client to inspect an empty shop around 15 February 2016 when he detected the water leakage. However, he later freely admitted that he might have got the date wrong. He only remembered that he was working during a holiday season and he had assumed it must have been Chinese New Year. He admitted that this could have been during Easter.

91.  In any case, irrespective of the circumstances of how the water leak was first discovered, a contemporaneous record could be found in the letter dated 31 March 2016 from the plaintiff’s solicitors to the defendant (p.45 of Trial Bundle A). This letter clearly documented that there was “serious and continuous water leakage” starting “on or about 15 February 2016”. It also stated that this caused “substantial disturbance” to the business of the then tenant, a grocery shop, and that the tenant terminated its tenancy agreement on 1 April 2016.

92.  Madam Yau claimed that the grocery shop was there until late May or June 2016. As I have grave reservations about Madam Yau’s credibility, I would prefer the evidence stated in the solicitor’s letter.

93.  The plaintiff has produced a provisional tenancy agreement dated 9 June 2016 (p.170 of Trial Bundle A) and a tenancy agreement dated 19 June 2016 (p.173 of Trial Bundle A).

94.  There was a suspicion as to whether the two agreements were in fact signed by the same or similar tenant. The tenant in the provisional agreement was a Wellbest Legend Limited and the authorised signatory was a Mr. Wong Kin Chiu. The same person (with the same HKID number) signed as one of the tenants in the proper tenancy agreement.

95.  The provisional tenancy agreement specified a term of lease from 12 June 2016 to 11 June 2019 but the proper tenancy agreement specified a term of lease from 1 August 2016 to 31 July 2019. Both agreements specified the monthly rent of HK$39,000.

96.  The plaintiff’s case was that the water leak had caused a delay in finding a new tenant during this period and claimed for a loss of rent between 1 April 2016 and 31 July 2016 when the new tenancy commenced.

97.  One important question in assessing this period of loss of rent is whether it is usual for a tenant to have one and a half month of “rent free” period, and if not, whether the water leak has anything to do the tenant demanding such terms (perhaps after signing the provisional agreement).

98.  However, Mr. Cheng quite fairly admitted that this “rent free” period was not unusual. He said that he did not know what was discussed because the negotiation of this tenancy agreement was dealt with by the plaintiff himself.

99.  As such, I do not hold that there was evidence that the water leak was the cause of the “rent free” period. I would only allow a claim of loss of rent from 1 April 2016 to the date of the signing of the provisional tenancy agreement, i.e. 9 June 2016.

100.  As for the amount of rent, the plaintiff accepts that the open rental market value of the Plaintiff’s Property from April 2016 should be HK$41,000 as assessed by the parties’ single joint valuation expert. The court holds that the decrease in rent has been caused by the water leak problem.

101.  It is not disputed that the new tenant terminated the tenancy early on 5 March 2018 (after only 19 months). Mr. Cheng said that the tenants repeatedly complained about the severe water leak problem and were persuaded to stay until after the Chinese New Year in 2018.

102.  Mr. Cheng also said that they have put up the property for rental at HK$45,000 after that. There was 2 potential client looking at the property but did not make any counter-offer, presumably after seeing the water leak problem. After this, which was about 1 month after the termination of the previous tenancy, Mr. Cheng decided to withdraw the property from the market until the water leak problem can be solved.

103.  Mr. Cheng also gave evidence in court that, as of 5 July 2018, there was no evidence of further water leak.

104.  I accept such evidence.

105.  As such, I would allow a claim of loss of rental income as follows:

i)   1 April 2016 to 9 June 2016 (or about 2.25 months): HK$41,000 x 2.25 = HK$92,250

ii)   1 August 2016 to 5 March 2018 (or about 19 months): HK$(41,000-39,000) x 19 = HK$38,000

iii)   6 March 2018 to 5 July 2018 (about 4 months): HK$41,000 x 4 = 164,000

Total loss of rental income is therefore HK$294,250

Claim for loss and damage to the Plaintiff’s Property

106.  As for the claim for loss and damage to the Plaintiff’s Property, Mr. Cheung estimated that the repair costs should be HK$473,000 (he stated HK$438,000 in the JER but it was a miscalculation and he corrected it in court) but Madam Lau estimated HK$53,333.3.

107.  The main reason for the difference was that Mr. Cheung’s estimation was based on the assumption that much of the damages were structural damages and Ms. Lau’s estimation was based on an assumption that there were little structural damages. Both experts, however, agreed that the exact extent and nature of the damage could not be easily ascertained by just inspection on the surface. These areas needed to be opened up for proper investigation.

108.  As such, the experts’ estimations can be taken as the upper and lower limits. I intend to take a broad-brush approach and take the average on the assumption that, upon proper investigation, some areas have structural damage and others have not.

109.  Thus the water leak repair costs for all zones in the Plaintiff’s Property should be HK$(473,000 + 53,333.3)/2 = HK$263,166.65

110.  However, I have held that the defendant should not be liable for Zone E and there is inconclusive evidence regarding Zones F and I. This would be 3 out of 9 zones so I would again take a broad-brush approach and reduce the costs of repair by 33% and award a rounded up figure of HK$175,500.

Injunction

111.  As the plaintiff confirmed during the trial (as of July 2018) that there was no longer any water leak, an injunction is no longer necessary (Chiu Hung Shun v So Ka Tai CACV 136/2005). There may be some problems with the drafting of the injunction but the court does not need to go into that given the circumstances.

Summary

112.  I would award damages in the sum of HK$294,250 for loss of rent and HK$175,500 for damages to the Plaintiff’s Property.

113.  The loss of rent award should attract interest at half judgment rate. As this loss was incurred in a continuous period from 1 April 2016 to 5 July 2018 (roughly 26 months), I would take a broad-brush approach and award interest from a nominate date in the middle of this period, i.e., 1 May 2017, to the date of payment of the award.

114.  For the award for damage to the Plaintiff’s Property, as there is no evidence that the plaintiff has incurred any repair costs yet, this should be treated as a future cost for repair so no interest should be awarded.

115.  I would therefore give the following orders:

i)   Damages on loss of rent be awarded at HK$294,250 with interest at half judgment rate from 1 May 2017 to the date of payment;

ii)   Damages on damage on the Plaintiff’s Property be awarded at HK$175,500; and

iii)   Order nisi for costs of the action be to the plaintiff to be taxed if not agree with certificate for counsel.