YEUNG YI LAN v. THE INCORPORATED OWNERS OF KAM SHING BUILDING

DCCJ 4794/2021

[2024] HKDC 2140

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4794 OF 2021

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

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

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

JUDGMENT

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

1.  This is a dispute concerning water leakage from the flat roof and external wall on the rooftop of a multi-storey building down to the property right under the roof.

Background and Procedural History

2.  The plaintiff was at all material times and is still the owner of the property known as Flat B, 22/F, Kam Shing Building at No. 33 Heung Wo Street, Tsuen Wan, New Territories (the “Property”). The defendant is the Incorporated Owners of Kam Shing Building (the “IO”) registered on 4 August 1976 and was at all material times responsible for, inter alia, the property management and maintenance of the common parts of Kam Shing Building.

3.  The plaintiff purchased the Property on 8 March 2013 and kept it as a rental property. In other words, the Property has been rented out since then, and neither the Plaintiff nor her family members have ever resided in it.

4.  In around May 2020, the plaintiff was informed by her tenant that there was water seepage in the Property, which caused the peeling off of surface paint and spalling of concrete at the ceiling of the bathroom. The plaintiff informed the management company accordingly.

5.  Around 15 June 2020, the plaintiff engaged an expert, Mr Leung of Silver Consultants Engineering Limited (“Mr Leung”), to investigate the cause of the water seepage. Mr Leung opined that the water seepage that occurred at that stage was due to the damaged external wall at the roof. A copy of Mr Leung’s investigation report containing his opinion was given to the IO.

6.  The IO thereafter repaired the external wall in question in October 2020 and April 2021. However, the effectiveness of the said repair has yet to be checked and therefore uncertain. Meanwhile, the mold inside the Property (which the plaintiff believes was caused by the water seepage) persisted during that period.

7.  On the arrival of the rainy season in June/July 2021, the paint inside the Property started to peel off again, and the tenant further noticed some water stains and water began to drip from the ceiling of the bedroom. The wardrobe inside the bedroom was also damaged by water.

8.  In light of the water dripping inside the Property, in July 2021, the plaintiff commissioned Mr Leung again to investigate the cause of the water drippage. This time, Mr Leung was of the view that it was caused by the failing waterproofing layer on the roof.

9.  The Deed of Mutual Covenant of Kam Shing Building (the “DMC”) provides the following:

“Clause 3: Each owner shall hold his part of the said Building and the said premises subject to and with the benefit of the following rights privileges and obligations namely:- […]

(e) The right for the owner or occupiers for the time being of any part of the said Building with or without servants, workmen and others at all reasonable time on notice (except in case of emergency) to enter into and upon the other parts of the said Building and the common areas thereof for the purposes of carrying out any work necessary for the maintenance and repair of the said building or any part thereof causing as little disturbance as possible and making good any damage caused thereby.

(f) Full right and privilege for the agent of the said Building…to enter into and upon each part of the said Building for the purpose of rebuilding, repairing, renewing, maintaining… the said Building or any part or parts thereof…any other apparatus and equipment used or installed for the benefit of the said premises and Building or any part thereof as part of the amenities thereof and not by any individual owner for his own purposes or enjoyment.

Clause 4: Each owner shall be bound by and shall observe and perform the following covenants provisions and restrictions:- […]

(c) It shall be the duty of the Manager to manage and provide services in respect of the said Building and in particular the Manager shall arrange for…repairing renewing maintaining and cleansing of the common parts services and facilities.

(k) The Manager shall have power and authority to do all or any of the following acts and things namely:- […]

(v) To repair renew maintain service clean and paint the said Building or any of the common areas and common facilities thereof and for such purpose to engage and to enter into contracts with any person firm or corporation.

(r) The common parts services and facilities referred to in this Deed shall include the following:- […]

(ii) The sewers, gutters, drains… and other apparatus and equipment used or installed for the benefit of the said Building as part of the amenities thereof and not by any individual owner for his own use or purposes.

Clause 10: Each party hereto hereby covenants with the other as follows:- […]

(c) Not to use his part of the said Building for any illegal or immoral purposes nor do or permit anything therein or thereupon which may create unnecessary noise or may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the said Building…”.

10.  At that time, the IO failed to take any effective steps to stop the water seepage from the roof. Other than the Property, the other property on the same floor, Flat 22A, was also affected by water seepage.

11.  On 15 October 2021, the plaintiff commenced the present action against the IO seeking, inter alia, (a) a mandatory injunction that IO do carry out all necessary repair works to the external wall and the waterproofing layer at the flat roof within 28 days and at its costs and expenses to stop and prevent any further water seepage down to the Property, (b) an injunction to restrain the IO, whether by itself, its servants or agents from causing or permitting nuisance by permitting or allowing water to come into the Property, (c) damages including the costs of repair to be incurred, damages for distress, inconvenience and discomfort etc. Details of the plaintiff’s claims are set out in the Amended Statement of Claim dated 28 March 2022.

12.  On 5 May 2022, the IO filed its Amended Defence. The plaintiff filed her Reply on 24 June 2022.

13.  On 28 November 2022, the IO took out a Third Party Summons seeking to join the owner of Flat 23C of the same building, Mr Yung Kei Cho Raymond (“Mr Yung”), as the third party to the present action. The hearing of the Third-Party Summons was set down on 27 July 2023.

14.  However, the IO failed to attend the scheduled hearing on 27 July 2023; the Third-Party Summons was therefore dismissed by the court with costs.

15.  Pursuant to the court’s directions, the plaintiff filed the expert report of Mr Leung dated 29 May 2023 on 18 July 2023 and her witness statement on 30 October 2023 . Subsequently, with the leave of the court, the plaintiff filed her supplemental witness statement on 26 July 2024.

16.  Regarding the IO, despite an unless order made against it on 4 September 2023, the IO failed to file any witness statement in this action. Nor has it served any expert report.

17.  The IO has not attended any court hearing since 7 February 2023.

The trial

18.  On the date of the trial, the IO again did not appear. Upon being satisfied that the IO had been properly notified of the hearing and all the relevant documents, including the hearing bundles, the plaintiff’s opening submissions and list of authorities, had been properly served on the IO, I allowed the trial of this action to proceed in the absence of the IO.

The parties’ respective cases

19.  The plaintiff’s case is set out in her Amended Statement of Claim dated 28 March 2022. Her case can be summarized as follows:

(1)  The plaintiff was at all material times and is still the owner of the Property;

(2)  The Property was damaged by water seepage from the roof of Kam Shing Building;

(3)  The water seepage in the Property was caused by the defective external wall and waterproofing layer at the roof of Kam Shing Building;

(4)  The external wall and defective waterproofing layer in question form part of the common parts of Kam Shing Building;

(5)  The IO, being the Incorporated Owners of Kam Shing Building, at all material times owed a duty to repair, maintain or keep the said external wall and waterproofing layer in good and proper state of repair and condition under the Building Management Ordinance, Cap 344 (“BMO”) (in particular, sections 16 and 18 thereof), the common law and the DMC;

(6)  In breach of the said duty, despite the plaintiff has given due notices, the IO at all material times failed to repair the waterproofing layer in question; the water seepage inside the Property continued and is still on-going;

(7)  Further or alternatively, the IO’s failure has caused nuisance to the plaintiff, resulting in physical damage to the Property and unlawful interference with the plaintiff’s right of quiet use and enjoyment of the Property;

(8)  As a result, damage was and is being caused to the interior of the Property, and the plaintiff has suffered and continues to suffer loss and damage;

(9)  Because of the ongoing water seepage, unless restrained by the court, the plaintiff continues to suffer loss and damage and the extent of loss increases over time;

(10)  In the premises, the plaintiff is entitled to and therefore claims:

(a)  A mandatory injunction compelling the IO to carry out all necessary repair works to the external wall and the waterproof layer on the roof;

(b)  An injunction to restrain the IO, whether by itself, its servants or agents or otherwise howsoever, from causing or permitting nuisance by permitting or allowing water to come into and about the Property;

(c)  Damages for (i) stress, distress, inconvenience, discomfort, annoyance, anxiety, worry and loss of enjoyment of the Property, (ii) the costs and expenses of repair of the Property, (iii) the costs of removal and/or replacement of the damaged furniture and fixtures in the Property (iv) the costs of substituted accommodation required during the period of repair works, and (v) the cost of cleaning required upon completion of the repair works; and

(d)  Interests.

20.  Regarding the IO, as mentioned above, it has only filed a Defence, which was subsequently amended on 5 May 2022; no witness statement or expert report was filed.

21.  According to the IO’s Amended Defence, the IO admitted that it had notice of the water seepage in the Property; it also accepted that, at the material times, it owed a duty to repair and maintain the external wall and waterproofing layer in question, and that no repair had been carried out to the defective waterproofing layer at the roof.

22.  However, the IO contended that the source or cause of the water seepage in the Property was unknown, and it put the plaintiff to strict proof. It further denied liability on the following grounds: (a) the IO had repaired the external wall in around April 2021, (b) as to the waterproofing layer, it had discharged its duty by making requests to Mr Yung for access to the roof and, because of Mr Yung’s refusal, it was not able to carry out the necessary repair; and (c) the plaintiff failed to mitigate her loss by failing to carry out the necessary repair to the waterproofing layer at the rooftop herself.

23.  As the IO did not appear, no evidence was adduced in support of its defences.

The plaintiff’s evidence

24.  At the trial, the plaintiff was represented by Mr Kevin Leung of counsel (“Mr K Leung”). The plaintiff gave evidence herself. She adopted her witness statement and supplemental witness statement as her evidence in chief. She provided clarifications on various matters orally by way of answers to the questions posed by this court. Quite apart from the fact that the plaintiff impressed me as an honest and reliable witness, her evidence was consistent with contemporaneous documents and supported by photographs. I accept her evidence.

25.  The plaintiff’s evidence can be summarized as follows:

(1)  The plaintiff acquired the Property on 8 March 2013, and she rented it out in the market until September 2021. The tenant moved out in September 2021 because of the water seepage inside the Property.

(2)  The Property is right under the flat roof of Flat 23C, which is part of Flat 23C and therefore under the exclusive use and occupation of its owner, i.e. Mr Yung.

(3)  Water seepage into the Property first appeared in May 2020, and it occurred at the ceiling of the Property’s bathroom. At that time, it caused paint peeling and concrete spalling at the bathroom ceiling. The management company was duly informed at the time. The plaintiff engaged Mr Leung (who also served as the plaintiff’s expert in this action) to investigate the cause of the water leakage. Mr Leung produced an investigation report on 23 June 2020 (“2020 Report”), in which he opined that the water seepage was due to the damaged external wall at the roof. The cost incurred by the engagement of Mr Leung on that occasion was HK$20,000.[1]

(4)  At a meeting in September 2020, the plaintiff informed the IO that the damaged external wall at the roof caused the water seepage in the Property. A copy of the 2020 Report was passed to the IO. [Note: According to the photograph reproduced in the 2020 Report, the damaged external wall noted by Mr Leung at the time should perhaps be described as the parapet wall on the roof.]

(5)  In October 2020, the IO hired a contractor, Jyu Fung Marble Engineering Co, to repair the damaged external wall. However, as there was no more rain between November 2020 and March 2021, the effectiveness of the repair work was yet to be checked. When it started to rain in March 2021, mold began to grow on the wall and ceiling inside the bathroom and kitchen of the Property.

(6)  On 12 November 2020, the plaintiff commenced an action in the Small Claim Tribunal (“SCT”) seeking to recover from the IO the costs of the investigation by Mr Leung and the necessary repair or reinstatement to be carried out inside the Property. At the request of the presiding adjudicator of the SCT, and with access to the flat roof granted by Mr Yung, the IO carried out further repair work to the external wall in April 2021. However, despite further repair work, mold continued to appear when it rained.

(7)  The plaintiff did not carry out any repair work to the damaged ceiling inside the Property at that stage.

(8)  Around June to July 2021, the tenant once again complained about the paint peeling. This time, water stains and water dripping were also observed on the bedroom ceiling, mold appeared, and the wardrobe inside the bedroom was also damaged by water. There were also signs of water seepage inside the kitchen.

(9)  Because of the water dripping inside the Property, the plaintiff requested Mr Leung to investigate further. Mr Leung produced a further report on 19 July 2021 (“2021 Report”), in which he opined that the water leakage at that time was caused by the defective waterproofing layer at the roof.

(10)  In an attempt to stall or reduce the water seepage inside the Property, thus reducing the extent of impact and degree of annoyance to the tenant, on 25 August 2021, the plaintiff hired KWN Man Engineering Company (貴民工程公司) and, at its suggestion, to carry out injection grouting at the ceiling of the Property; a sum of HK$8,000 was incurred for such work.

(11)  On 30 August 2021, the plaintiff’s solicitors, Messrs CL & Co., issued a letter to the IO, demanding it to remedy the water seepage problems in the Property and compensate the plaintiff for the loss and damage suffered. A copy of the 2020 Report and 2021 Report were sent to the IO for its information. The IO did not respond.

(12)  Around September 2021, the plaintiff stopped renting out the Property[2] and instead let her relative stay in the Property to help monitor the water leakage situation.

(13)  As the IO took no action, the water leakage inside the Property got worsened. On 24 April 2022, the plaintiff hired KWN Man Engineering Company to carry out further injection grouting at the ceiling of the Property; this time, the plaintiff incurred a cost of HK$13,000.

(14)  In around May 2023, given the approaching rainy season, the plaintiff and the owner of Flat 22A planned to carry out the required repair to the waterproofing layer on the roof to reduce further water damage to their respective properties that would otherwise be caused by leakage during the rainy season. They therefore jointly wrote to the IO on 17 May 2023 requesting the latter to respond and carry out the repair work within 14 days, failing which they would proceed with the repair work and recover the corresponding costs from the IO. Again, the IO did not respond and took no action.

(15)  Subsequently, the plaintiff obtained a quotation (dated 25 June 2023) from Yuk Tsing Engineering Company for the replacement of the waterproofing layer on the roof at a sum of $160,000.

(16)  As the IO did not respond to the plaintiff’s letter dated 17 May 2023 and took no action to repair the waterproofing layer, on 8 July 2023, the plaintiff and the owner of Flat 22A wrote to the IO again, notifying the latter that they would engage Yuk Tsing engineering company to proceed with the repair work as described in its quotation and the costs to be incurred would be recovered from the IO. A copy of Yuk Tsing’s quotation was attached for the IO’s reference.

(17)  For carrying out the repair work, the plaintiff and the owner of Flat 22A sought and obtained the permission of Mr Yung (the owner of the flat roof) and further took out insurance for such work. The plaintiff paid her part of the insurance premium of $2,486.85.

(18)  However, on around 21 July 2023, the IO objected to the plaintiff’s proposal and threatened to report the matter to the police if the plaintiff proceeded with the work. In such circumstances, the plaintiff abandoned the idea and proceeded no further with Yuk Tsing.

(19)  Between 18 September 2023 and 30 September 2023, the IO carried out temporary maintenance works on the roof; however, the nature and effectiveness of such work were unknown.

(20)  The situation in the Property has not improved. Around mid-October 2023, the plaintiff carried out further injection grouting in the bedroom and kitchen[3]. However, after heavy rainfall, water continued to drip from the ceiling. When the IO was notified of the water dripping, the IO merely said it would revisit the matter when the next rainy season arrived.

(21)  By late October 2023, mold began reappearing at the ceiling of the Property.

(22)  Upon the arrival of the rainy season in April and May 2024, the leakage from the roof caused the water damage in the Property to intensify again.

(23)  Over the period from around May 2020 to the present, the plaintiff has repeatedly requested the IO to repair the waterproofing layer on the roof, but to no avail.

(24)  As of the date of the trial, the Property was still affected by water seepage.

26.  On the cause of the water leakage, the plaintiff called Mr Leung to give expert evidence in support of her claims. For this action, the plaintiff filed and served Mr Leung’s expert report dated 29 May 2023.

27.  To prepare his expert report for this action, Mr Leung conducted tests and inspections inside the Property and Flat 23C on 3 April 2023.

28.  During his inspection, Mr Leung performed the following tests:

(1)  High-resolution infrared scanning (「高清紅外線掃瞄」)

Under this test, it was shown that the ceiling of the living room, kitchen, bathroom and bedroom of the Property all contained high levels of water saturation.

(2)  Electrical conductivity moisture detection (「導電感應濕度計測試」)

Under the test, again, the living room, kitchen, bathroom and bedroom of the Property all showed a high level of moisture at the ceiling.

(3)  Water sample test (「水樣本測試」)

(a)  The water sample test involves collecting water samples from the dripping water or the stalactite formed to test for salt and ammonia. If salt or ammonia is present, the dripping water would likely be from the flush water system or sewage. If neither is present, then the water would probably be from the freshwater system or rainwater.

(b)  It was found that the samples collected do not contain salt or ammonia. Further, taking into consideration that there were no water pipes or bathrooms at the corresponding locations on the roof, Mr Leung concluded that the dripping water was probably rainwater.

29.  Mr Leung also carried out a visual inspection of various locations inside the Property, and on the roof, the hamper-tapping test was performed at the same time. It was observed that there was extensive peeling of paint, water stains and cracks on the ceiling and walls inside the Property. Irregular crack lines were also observed on the surface of the roof slab.

30.  Based on the results of the tests and his inspections, Mr Leung produced his expert report on 29 May 2023. He was of the view that the external wall (or the parapet wall) on the roof that had caused water seepage back in 2020 had been repaired. As to the water seepage starting in around June 2021, he concluded that it was caused by or was a result of the defective waterproofing layer at the rooftop. At trial, Mr Leung further testified that the waterproofing layer on the roof was likely to be a continuous layer of material (marked as the “waterproofing felt” on the building plan) covering the entire roof. He therefore opined that the proper method of repair would be to replace it with a new waterproofing layer.

31.  Furthermore, Mr Leung also observed that the water seepage in the Property was so severe that there was a risk of falling off of concrete. Considering the extensiveness of the area affected, the Property was unsuitable for habitation.

32.  In Mr Leung’s expert report, he has also provided his view on the proper way to make good the damage done inside the Property; details are set out in section 4.1 of his report. He estimated the corresponding costs of making good of the Property was $111,401.70.

33.  At the hearing, Mr Leung adopted his expert report and further answered the queries raised by this court.

34.  During questioning, Mr Leung was shown photographs of the Property taken by the plaintiff in early September 2024, about one and a half years after Mr Leung’s inspection, on which his expert report was based. Mr Leung noticed that the extent of damage caused to the Property, as shown in the photographs, was much larger and more serious than at the time of his inspection in April 2023. He therefore opined that the actual costs of repair to be incurred to the plaintiff would be higher than the estimate stated in his expert report. He recommended that the costs of repair or reinstatement would better be assessed upon completion of the rectification work. I should also mention that, as suggested by Mr Leung, which makes sense to this court, the plaintiff should only repair the damaged ceiling, walls and furniture inside the Property after the waterproofing layer at the roof is replaced and the water seepage stops.

35.  On the whole, Mr Leung’s evidence is coherent and sensible. Besides, there is no evidence to challenge Mr Leung’s opinion. I therefore accept his evidence in full.

Legal principles

36.  In a multi-storey building, there is no presumption that the water seepage inside a property necessarily comes from the property right above, 張秀玲及吳炳漢 訴 鄭禮莊 , unreported, CACV 268/1998, 9 April 1999, page 10.

37.  The onus is on the plaintiff to establish, on the balance of probabilities, that the source of water seepage/leakage originated from a source or was due to matters for which the defendant is liable; it is not for the defendant to identify the source of the water seepage/leakage: Hui Ling Ling v Sky Field Development Limited, unreported, HCA 35/2007, 8 May 2012, para 23.

38.  The waterproofing layer or membrane laid on the roof, which serves to keep rainwater from getting into the flats below, is part of the common parts of the building, Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre (IO) [2014] 4 HKLRD 52 at paragraphs 96 to 99.

39.  Further, as held by Sakhrani J (as he then was) in Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd [2009] 4 HKLRD 692 (at para 60), “… the waterproofing layer or system was a fixture used in connection with the enjoyment of any other flat or other portion of the building within the meaning of item 11 in Sch 1 of the [Building Management] Ordinance”. His judgment was upheld on appeal: [2010] 4 HKC 463, at para 10.

40.  Pursuant to paragraphs 1 and 4 of Schedule 1 of the BMO, the external walls and, in this instance, the parapet walls on the roof are common parts of the Building.

41.  The IO, therefore, at all material times, has a duty to keep both the external/parapet wall and the waterproofing layer in question in a state of good and serviceable repair under section 18(1(a) of the BMO.

Analysis

42.  On the unchallenged evidence from the plaintiff and Mr Leung, which I accept, together with a significant number of contemporaneous photographs showing the damage done to the interior of the Property (at different stages) and the condition of the roof, this is a clear case of seepage of rainwater from the roof down to the Property. And there is nothing before the court to justify the defendant’s failure to repair and/or maintain the defective layer of waterproofing felt on the roof.

Water leakage due to the defective external wall in 2020

43.  Regarding the water seepage caused by the defective external or parapet wall on the roof before June 2021, the evidence shows that it was rectified by the IO either in October 2020 or April 2021.

44.  As held in Lau Chun Wing Rod v The Incorporated Owners of Po On Building (unreported, CACV 20/2007, 1 November 2007), section 18(1)(a) of the BMO does not have the effect of turning the Incorporated Owners into an insurer for all damage done due to disrepair of the common parts of the building for which the Incorporated Owners are responsible. The Incorporated Owners will only become liable “if there is fault” or “if, having been made aware of a defect which requires remedy, the Incorporated Owners fail to take appropriate steps” (at para 12).

45.  A similar duty to maintain the common parts of the building as may be imposed on the Incorporated Owners by the DMC is also not absolute, PC Fortune Company Limited v The Incorporated Owners of Kwong Fu Building [2009] 5 HKLRD 787 [P#6][4] at para 29:

“… Essentially, an obligation imposed by the deed of mutual covenant on the incorporated owners to maintain the common facilities is not an absolute duty. As long as the incorporated owners have acted reasonably in the circumstances, the duty is discharged. Liability may arise if there is fault or if, having been made aware of a defect which requires remedy, the incorporated owners failed to take reasonable and appropriate steps…”

46.  In the present case, the external (or parapet) wall in question was located on the roof, which was under the exclusive occupation of Mr Yung; there is no evidence showing that the IO was in any way at fault or failed to take appropriate steps to remedy the defect after having been notified of the water leakage when it occurred in 2020. The wall may well have been repaired by the IO as early as October 2020. Hence, on the evidence, the IO was not liable for the damage caused by the water seepage through the damaged external wall in 2020.

47.  In any event, the plaintiff confirmed at the hearing that no repair was carried out for the damaged ceiling at that stage. With the benefit of hindsight, had any repair work been performed by the plaintiff, it would have been damaged shortly thereafter because of the further water seepage starting in June 2021. As the plaintiff has not incurred any costs in repairing the damaged ceiling, nothing material arises from the water damage caused by the damaged or defective external/parapet wall on the roof in 2020.

Water leakage through the defective waterproofing layer on the roof after June 2021

48.  About the further water damage after June 2021 caused by rainwater seeping through the defective waterproofing layer on the roof down to the Property, the IO was plainly liable for it under sections 16 and 18(1)(a) of the BMO, because it failed to carry out effective repair to the said waterproofing layer to stop the leakage, despite repeated requests made by both the plaintiff and the owner of Flat 22A.

49.  None of the defences pleaded by the IO in its Amended Defence stands:

(1)  The contention that the IO has at the material times discharged its duty under the BMO and common law by making requests to Mr Yung for access to the flat roof, which Mr Yung refused, is unsustainable.

(2)  Section 40 of the BMO provides:

“(1) A member of a management committee and any other person authorized in that behalf by the management committee may, on reasonable notice to the owner or occupier thereof, enter a flat at any reasonable time for the purpose of –

(a) Inspecting, repairing, maintaining or renewing –

(i) Any common parts in the flat; or

(ii) Any other property in the flat the condition of which does or may affect adversely the common parts or other owners;

(b) Abating any hazard or nuisance which does or may adversely affect the common parts or other owners.

(2) A magistrate may, if satisfied by information on oath that it is necessary for any person to break into any flat which he is empowered to enter under subsection (1), by warrant authorize such person to break into the flat in the presence of a police officer.

(3) Notwithstanding section 19(2), any costs incurred by the management committee in connexion with the exercise by it of the powers conferred by subsection (1)(a)(ii) or (b) shall be recoverable by the corporation as a civil debt from the owner of the flat in respect of which such costs were incurred.”

(3)  The IO should have taken the necessary legal action, empowered by the BMO, to obtain lawful entry into the flat roof for the essential repair work, which, I find, the IO failed to do without justification.

(4)  The alternative defence about the plaintiff’s failure to mitigate her loss by not repairing the defective waterproofing layer herself cannot get off the ground.

(5)  Leaving aside the effect of section 16 of the BMO, under which the plaintiff’s rights, powers, privileges and duties in relation to the common parts of the building have to be performed by the defendant, being the Incorporated Owners of the Building, to the exclusion of the plaintiff, the plaintiff has actually proposed and taken step to carry out the repair work in July 2023. It was, however, prevented by the IO.

50.  In relation to the plaintiff’s claim in nuisance, it is trite that the Incorporated Owners are under a general duty not to create or allow nuisance from the common parts to the other parts of the building which are exclusively occupied by individual owners, PC Fortune Company Limited v The Incorporated Owners of Kwong Fu Building [2009] 5 HKLRD 787 at para 24. On the facts, the plaintiff’s case in both negligence and nuisance is also made out.

Injunction

51.  The plaintiff seeks an injunction to restrain the IO from allowing the water seeping into the Property to continue and to compel the IO to carry out all necessary repair works to the external wall in question and the waterproofing layer under the flat roof.

52.  It is both the plaintiff’s and Mr Leung’s evidence that the once defective external wall on the roof had been repaired by the IO in April 2021 at the latest; and the defective waterproofing layer on the roof caused the subsequent water leakage after June 2021. As such, in my view, the injunctive relief in relation to the repair of the external wall was not called for as at the date of the commencement of the present action.

53.  As to the defective waterproofing layer under the flat roof, the IO was made aware of the need to remedy it as early as August 2021; up to the present, despite repeated requests made by owners of the 22/F, no effective remedial work has been carried out by the IO, and the Property is still seriously affected by the on-going water seepage. Notably, the extent of physical damage to the interior of the Property increases and gets more serious over time.

54.  It was held by the Court of Appeal in Lo Yu Chu v Kam Fu Lai Development Co Ltd. [1994] 3 HKC 18 (at 28F-G) that,

“It will be rare that damages will be an adequate remedy for a nuisance which the defendant proposes to continue unless restrained by injunction from doing so. Remedies at law are especially unsuitable where reliance on them renders it necessary to bring repeated proceedings for damages, such as where continuing wrongful acts are expected to take place. In such cases, the right to obtain an injunction is particularly valuable …”.

55.  This is therefore an appropriate case where an injunctive relief ought to be granted to compel the IO to carry out the necessary repair to the waterproofing layer under the flat roof to stop the water leakage.

56.  As to the terms of the injunction, counsel for the plaintiff proposed in his closing submissions the following:

“A mandatory injunction that D does, within 56 days from service on D of the Order to be made herein, commence works to effect due and effective repair to stop and rectify the leakage or seepage of water from the Waterproofing Layer into P’s Premises, including but not limited to:

(a) Excavating and clearing the floor and surrounding walls of the Roof to a height of 300mm, removing the original cement sand protection layer and waterproof layer down to the stone substrate;

(b) Repairing the cracked stone substrate (if any);

(c) Applying a 45-degree, 50mm thick waterproof cement sand slope at the wall corners;

(d) Applying a layer of waterproof cement sand slurry that is about 25 mm thick;

(e) Applying a layer of waterproof membrane (e.g. SikaTop-300 Seal or equivalent) that is about 2 mm thick;

(f) Once the waterproof membrane has dried, conducting a water test for 48 hours;

(g) Applying another layer of waterproof cement sand protection layer that is about 40mm thick, with added chicken mesh, and ensuring proper drainage;

(h) Applying an insulation layer that is about 150mm; and

(i) Applying finishing (e.g. floor tiles);

With certificate of satisfaction to be issued by an independent authorized person to be appointed by the parties, with liberty to apply if the parties could not agree on the candidate.

In the event that D does not commence the aforesaid works within 56 days from service on D of the Order to be made herein, P be at liberty to effect the aforesaid works at the cost of D.”

57.  The plaintiff’s counsel submitted that the method of repair set out in the proposed terms of the injunction was based on the opinion given by Mr Leung to the plaintiff after trial. It is inappropriate, to say the least, to refer in the closing submissions to opinions obtained after the trial. Such an opinion was not part of the expert evidence adduced by the plaintiff.

58.  Leaving aside the impropriety on the plaintiff’s part by referring to Mr Leung’s opinion given privately to the plaintiff after the trial, which is not part of the evidence adduced in this action, the method of repair outlined in the proposed terms is, in my view, both imprecise and unclear, rendering the injunction, if granted accordingly, unenforceable. For instance, the requirement of “Excavating and clearing the floor and surrounding walls of the Roof to a height of 300 mm …” is incomprehensible; the term “stone substrate” is not common and does not have a commonly accepted meaning in the building industry; it is also unclear as to what is to be done by “Applying a 45-degree, 50 mm thick waterproof cement sand slope at the wall corners”; further, the proposed requirement for “applying finishing (e.g. floor tiles)” is also not precise enough to enable the IO to know what is to be provided.

59.  More importantly, it is not for the court to dictate what remedial work must be done to stop the water leakage in question. There are many ways to waterproof a building roof; different waterproofing systems are available in the market, and different materials may be used under different systems. As one can imagine, these different waterproofing systems with different materials are of varying quality and durability, and some are more costly than others. To decide what system to adopt in a particular case, one has to balance between different factors, including price, quality, durability and ease of installation, taking into account the particular circumstances of the building. The IO is no doubt in a better position to make that decision.

60.  Under the BMO and the DMC, the IO is only required to maintain the common parts in a state of good and serviceable repair and clean condition although this may require the replacement of the existing waterproofing layer with a new waterproofing system if necessary, e.g. if the existing system is beyond repair or it is not cost-effective to do so.

61.  The building plan of Kam Shing Building provided by Mr Leung in his expert report shows that the existing waterproofing system at the roof merely involves a layer (of an unknown thickness) of “waterproofing felt on cement screeding laid to fall”; this is clearly different from the system described by the plaintiff in her proposed formulation of the injunction, which is probably a system of a different quality and durability; notably, the two layers of waterproofing cement sand screed and a further layer of insulation of 150 mm thick proposed do not exist in the existing system. The IO is not obliged and should not be forced to provide a better waterproofing system so long as effective repair work is carried out to stop the leakage.

62.  The plaintiff further seeks an order that in the event that the IO fails to commence the required work within 56 days, the plaintiff be allowed to proceed with the work at the IO’s costs. My first observation is that this is not part of the reliefs claimed by the plaintiff in its Amended Statement of Claim. As the IO did not appear at the trial, as a matter of principle, the plaintiff is not entitled to this further order, which is not expressly claimed, see Hong Kong Civil Procedure 2025 ed Vol 1 commentary 18/15/6.

63.  Further, under section 16 of the BMO, the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by the corporation (i.e. the Incorporated Owners) to the exclusion of the owners, this provision is couched in mandatory terms, See Wah Fan v Incorporated Owners of Ki Tat Garden (Phase I) [2003] 3 HKLRD 1 at 8H-J. As such, despite the fact that the IO has taken a stance in its Amended Defence that the plaintiff ought to have carried out the necessary repair herself, this court may not have the power to make an order effectively empowering the plaintiff to carry out repair work to the waterproofing layer in question.

64.  For the above reasons, I am not prepared to adopt the formulation proposed by the plaintiff; the usual form of injunctive reliefs should be made. In deciding the time to be given for the repair or replacement of the waterproofing layer, while sufficient time ought to be given to the IO to go through the procurement procedures required under the BMO, I also bear in mind the practical requirement or the preference that work of this nature should be carried out and completed before the next rainy season. Upon consideration, I consider that a period of 90 days, instead of 56 days as the plaintiff proposed, would be appropriate.

Damages

65.  Regarding damages, in Mr K Leung’s closing submissions, the plaintiff only pursues the following four items:

(1)  Costs of repair or reinstatement of the Property, in the sum of HK$111,401.70;

(2)  Costs of the two injection grouting works performed in August 2021 and April 2022 respectively, at a total sum of HK$21,000;

(3)  Costs of cleaning to be carried out inside the Property after the repair work, in a sum of HK$1,600; and

(4)  Damages for stress and inconvenience, in the sum of HK$80,000.

66.  The plaintiff adduced no evidence in support of the other claims pleaded, namely (a) the cost of substituted accommodation during repair, (b) the costs of removal, relocation and re-instalment of the furniture, fixtures and belongings in the Property, and (c) travel expenses.

67.  On the premises, these other damages claims are deemed to be abandoned by the plaintiff.

Costs of repair and cleaning up

68.  The plaintiff is clearly entitled to the costs of repair or reinstatement of the Property damaged by the water leakage since June 2021. The amount claimed is based on Mr Leung’s estimate of $111,401.70; details are set out in section 4.2 of his expert report. As mentioned above, Mr Leung said his estimate was based on the extent of water damage caused to the Property in April 2023, and on the basis of the photographs taken in September 2024, the current damage is more extensive, and the actual costs of repair or reinstatement to be incurred would probably be higher. Notwithstanding that, Mr K Leung submitted in his closing that, for the present claim, the plaintiff is content with a lower sum as estimated by Mr Leung. I am satisfied that the actual loss suffered by the plaintiff under this head is likely to be more than the amount claimed, I therefore allow the amount in full.

69.  As to the further costs of cleaning claimed by the plaintiff, although Mr Leung has already included in his estimate a sum of $1,500 for “清拆及清理泥頭垃圾” (dismantling and carting away construction debris), this is not meant to be a fine cleaning that ought to be done to a residential property after any repair or reinstatement work. I would therefore allow a further sum of HK$1,600 claimed by the plaintiff for fine cleaning of the Property after the completion of the repair or reinstatement work, which appears to be reasonable.

Costs of the injection grouting works carried out in August 2021 and April 2022

70.  Reasonable costs incurred by the plaintiff to abate the nuisance is recoverable, Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 at 353D-F. It was the plaintiff’s evidence that the grouting works in question were required to reduce the adverse impact on the tenant caused by the water leakage. Although the protection provided by such works was only temporary and appears to be ineffective in stalling the water leakage, I am of the view that it was a reasonable step taken by the plaintiff in the circumstances; had the IO duly performed its duty under the BMO or the law, the said grouting works would not have been necessary.

71.  The amounts claimed, which were not challenged by the IO in any event, do not appear to be excessive; they are also supported by receipts issued by the contractor performing the works. The associated costs incurred are, therefore, recoverable.

Damages for stress and inconvenience

72.  The plaintiff purchased the Property as a rental property. According to the plaintiff’s evidence, she stopped renting out the Property in around September 2021, and thereafter, she asked her relative to stay in the Property to ‘monitor’ the water leakage. As the evidence shows, her relative would report to her when there was a sign of water seepage in the Property.

73.  In most of the cases cited by the plaintiff where damages for discomfort and inconvenience were awarded, the claimants in those actions were also the occupiers of the premises affected by nuisance; as such, the claimants in those actions personally experienced or endured the discomfort caused by the nuisance.

74.  In the present case, the plaintiff has not been residing in the Property[5] and thus was not required to endure any personal discomfort as might be caused by the water leakage. The question therefore arises as to whether a landlord, who is not in occupation of the property, is entitled to damages for stress and inconvenience in nuisance.

“Beyond physical and other damage to the land leading to pecuniary loss, a nuisance may cause annoyance, inconvenience, discomfort, or even illness to the claimant occupier due to the physical effect on the land. Recovery in respect of these principally non-pecuniary losses is allowable and may be regarded as part of the normal measure of damages in the cases the claimant has been disturbed in the physical occupation of their home.” McGregor on Damages, 22^nd ed. para 40-022 (emphasis added)

75.  In this regard, the plaintiff has cited no authority directly in point.[6] I am therefore not satisfied that a landlord, not in occupation of the property, is entitled to recover damages for stress, discomfort and inconvenience under the tort of nuisance.

76.  One of the recognised heads of loss in nuisance is the diminution in the amenity value of the property during the period for which the nuisance persisted. It was held by Lord Hoffman in Hunter v Canary Wharf Ltd 1997 AC 655 that:

“In the case of nuisances “productive of sensible personal discomfort,” the action is not for causing discomfort to the person but, as in the case of the first category, for causing injury to the land. True it is that the land has not suffered “sensible” injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.

I cannot therefore agree with Stephenson L.J. in Bone v. Seale [1976] 1 W.L.R. 797 when he said that damages in an action for nuisance caused by smells from a pigsty should be fixed by analogy with damages for loss of amenity in an action for personal injury. In that case it was said that “efforts to prove diminution in the value of the property as a result of this persistent smell over the years failed.” I take this to mean that it had not been shown that the property would sell for less. But diminution in capital value is not the only measure of loss. It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted. To some extent this involves placing a value upon intangibles. But estates agents do this all the time.”

77.  As this is not compensation for the discomfort caused to the occupier of the property, the compensation cannot be increased because more people are in occupation. Lord Hoffman further explained in Hunter v Canary Wharf Ltd:

“It follows that damages for nuisance recoverable by the possessor or occupier may be affected by the size, commodiousness and value of his property but cannot be increased merely because more people are in occupation and therefore suffer greater collective discomfort. If more than one person has an interest in the property, the damages will have to be divided among them. If there are joint owners, they will be jointly entitled to the damages. If there is a reversioner and the nuisance has caused damage of a permanent character which affects the reversion, he will be entitled to damages according to his interest. But the damages cannot be increased by the fact that the interests in the land are divided; still less according to the number of persons residing on the premises.

…

Once it is understood that nuisances “productive of sensible personal discomfort” do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in the land falls into place as logical and, indeed, inevitable.”

78.  For this claim, no evidence was adduced by the plaintiff on either the personal discomfort (if any) she or her family members experienced or the diminution in amenity value of the Property by reason of the water leakage.

79.  The plaintiff’s evidence in this regard[7] was merely about the extra work and inconvenience caused to her and her family members in trying to resolve the water leakage problems in the Property and pursuing her claim against the IO by way of legal actions. This is, however, not a recognised recoverable loss in the tort of nuisance.

80.  That said, it is trite that general damages for discomfort and inconvenience occasioned by breach of contract are recoverable, and usually a conventional sum is awarded, So John v Lau Hon Man [1993] 2 HKC 356 at 358H-359C. Like in So John, there exists in the present case an identical provision in the DMC, under clause 10(c), which provides:

“Each party hereto hereby covenants with the other as follows:- […]

(c)  Not to use his part of the said Building for any illegal or immoral purpose nor do or permit anything therein or thereupon which may create unnecessary noise or may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the said Building…”

81.  On the facts, the IO has, since June 2021, been and is still in breach of clause 10(c) of the DMC; the plaintiff is therefore entitled to damages for discomfort and inconvenience. As to quantum, upon considering the extent of suffering and the corresponding sum awarded under this head in the following cases cited by the plaintiff: Choi Man Wing & Anor v Wong Tang Hoi Alice (unreported, DCCJ 4825/2016, 31 July 2018) at §70; Cosmos Legal Consultant Limited v Skycherry Development Limited & Anor (unreported, DCCJ 2548/2009, 14 May 2013) at §116; Chung Yin Ha v Tse Shui Sam (unreported, DCCJ 2605/2016, 22 February 2019) at §§51-55; and Lee Tsz Yeung & Anor v Ho Chung Yan Joanne (unreported, DCCJ 179/2022, 19 June 2024) at §§37-40, I consider that, given the fact that the plaintiff has not resided in the Property and thus did not experience similar levels of personal discomfort as the claimants in those cases did, an award of HK$50,000 under this head would be appropriate in the circumstances, and I so order.

Conclusion

82.  For the reasons set out above, I give judgment for the plaintiff and make the following orders:-

(1)  The IO do, within 90 days from the date of this judgment, carry out at its costs and expenses and complete all necessary repair works to the waterproofing layer (and, if required, the external wall) at the roof of Kam Shing Building at No. 33 Heung Wo Street, Tsuen Wan, New Territories to stop and prevent seepage and/or leakage of water (including rainwater) down to the Property;

(2)  The IO, whether by itself, its servants or agents or otherwise, be restrained from causing or permitting leakage or seepage of water (including rainwater) from the roof down to the Property;

(3)  The IO shall pay the plaintiff damages in relation to the costs of repair or reinstatement of the Property in a total sum of $111,401.70;

(4)  The IO shall pay the plaintiff damages in relation to the costs of the injection grouting works in the total sum of $21,000;

(5)  The IO shall pay the plaintiff general damages in the sum of $50,000;

(6)  The IO do pay interests on the said sums as follows:

(a)  interest on the sum of $21,000 shall run from 24 April 2022 at 1% above the HSBC Best Lending Rate per annum up to the date of this judgment and thereafter at judgment rate until payment in full;

(b)  interest on general damages at 2% per annum from the date of the writ to the date of this judgment and thereafter at judgment rate until full payment; and

(c)  interest on the sum of $111,401.70 at 1% above the HSBC Best Lending Rate per annum from 3 April 2023 to the date of this judgment and thereafter at judgment rate until full payment.

83.  Costs should follow the event. Accordingly, the plaintiff shall have the costs of this action, including any costs reserved. The said costs are to be taxed, if not agreed, with certificate for counsel.

84.  The above costs order is made on a nisi basis, which shall become absolute unless an application to vary (by way of summons) is made within 14 days.