LAU SIN YEE v. THE FINANCIAL SECRETARY INCORPORATED

DCCJ 311/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.311 OF 2007

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DECISION

Background

1.   This is Miss Lau, the Plaintiff's, application for an interim mandatory injunction to require the Defendant forthwith to carry out "all necessary repairs and/or remedial works to stop the water leakage from the Defendant's Premises", and an injunction to restrain the Defendant from repeating, continuing, causing, permitting or allowing water leakage from the Defendant's premises.

2.   Miss Lau is the registered owner of Flat 2 on the 2nd floor of Block A, Beverly Hill, 6 Broadwood Road, Hong Kong ("the Plaintiff's Premises").  The Defendant's property is situated directly above Miss Lau's premises, being Flat A2 on the 3rd floor of the same building ("the Defendant's Premises"). 

3.    Miss Lau complains of leakage of water in her premises since "about 2003 to 2005", with signs of leakage and damage in localized areas set out in paragraph 4 of the Amended Statement of Claim, being the main bathroom, the ceiling outside the main bathroom, the guest bathroom, the walls and ceiling in the guest bathroom, the wall and ceiling adjacent to the guest bathroom, and the wall and ceiling in the corridor outside the guest bathroom.  Miss Lau claims in the Amended Statement of Claim that all areas of water leakage in her premises have dried up except an isolated area at the ceiling of the guest bathroom above the toilet.  Miss Lau claims that the leakage of water in her premises was caused by the Defendant's failure to prevent the escape of water from the Defendant's Premises into the Plaintiff's Premises, and in particular, by the Defendant's negligence in failing to maintain the amenities in the Defendant's main bathroom and guest bathroom, by the Defendant's nuisance and by the Defendant's breach of the Deed of Mutual Covenant governing the building.  Miss Lau seeks by her Amended Statement of Claim a mandatory injunction that the Defendant carries out all necessary repairs "to stop the water leakage from the Defendant's Premises through the location at the ceiling of the guest bathroom above the toilet in the Plaintiff's Premises"; and an injunction to restrain the Defendant from repeating, continuing, causing, permitting or allowing "water leakage from the Defendant's Premises including through the location at the ceiling of the guest bathroom above the toilet in the Plaintiff's Premises"; and damages. The injunctions sought in the action are confined to Miss Lau's complaints of continuing leakage in the guest bathroom.  Her claims of water leakage in the other areas of the Plaintiff's Premises are restricted to damages only.

4.   By its summons issued on 2 August 2007 ("Summons"), Miss Lau seeks interim injunctions in terms of the permanent injunctions she seeks in the action, save that the location of the water leakage is slightly extended.  The interim mandatory injunction sought by the Summons is to require the Defendant to carry out repairs and remedial works "to stop the water leakage from the Defendant's Premises through the location at the ceiling of the guest bathroom above the toilet and … at the ceiling of the guest bathroom in the shower unit above the plug area in the Plaintiff's premises".  The interim prohibitory injunction is to restrain the Defendant from repeating, continuing, causing, permitting or allowing water leakage from the Defendant's Premises including through the same identified locations.

5.    In its Defence, the Defendant denies that the water leakage in the Plaintiff's Premises was caused by the Defendant.  The Defendant claims a number of specific and material facts.  It claims that color water tests had been conducted to all drain outlets of the Defendant's Premises on 17 January 2005 to check if there was any water leakage caused by defective drainage pipes in the Defendant's Premises, and that the results of such tests were negative.  It also claims that there had been a burst of the pipe inside the common pipe duct area adjacent to the Defendant's main bathroom on 3 February 2005, that remedial works had been done by the management of the building, and that on 21 June 2005, water was found at the bottom of the common pipe duct area adjacent to the Defendant's guest bathroom.  Water had been pumped out from the common pipe duct area by management of the building, and in June 2005, the Defendant caused the mastic sealant surrounding the bathtub in the Defendant's guest bathroom to be replaced.  The damaged marble moulding at the lower part of the wall of the Defendant's guest bathroom was also replaced, and waterproofing material was applied to the marble moulding, walls and the floor surface of the Defendant's guest bathroom.

6.    The Defendant also claims that on 17 August 2005, it was discovered at a site inspection that water had accumulated beneath the bathtub of the main bathroom of Flat B1 on 3rd floor ("Flat B1/III") of  Beverly Hill, which bathroom was adjacent to the Defendant's main bathroom.  On 30 March 2006, water had been pumped out from the common pipe duct area adjacent to the Defendant's guest bathroom by the building management.  The Defendant claims that since about 31 March 2006, the bathtub, water basin and toilet bowl of the Defendant's guest bathroom had not been put to use.  On about 19 April 2006, water was found at the bottom of the common pipe duct area adjacent to the Defendant's guest bathroom.  On the same day, water pressure test was conducted for the pipes inside the Defendant's guest bathroom, and no reduction in pressure was detected.  The Defendant claims that in about May 2006, the leakage in the common pipe duct area adjacent to the Defendant's guest bathroom was fixed by the building management.

7.    By its Defence, therefore, the Defendant has raised 2 possible causes of the water leakage: the common pipe adjacent to the Defendant's guest bathroom the repair and maintenance of which should be the responsibility of the management of the building; and the bathtub in the main bathroom within Flat B1/III which was adjacent to the Defendant's main bathroom.  The Defence also shows that the Defendant had taken measures to test and stop any water leakage from the Defendant's Premises.

8.     In support of her application for interim injunctions, Miss Lau made an affirmation in relation to the leakage in the guest bathroom of her premises which was continuing and deteriorating.  She exhibited 2 expert reports to support her claim that the water leakage was caused by the Defendant.  These are the reports of Dr. Lam of the Hong Kong Polytechnic University, respectively dated November 2005 and November 2006.  Dr. Lam set out in his reports his inspections made on 13 September 2005, 13 October 2005, 3 April 2006, 24 May 2006 and 17 November 2006, and his findings on the cause of water leakage into the Plaintiff's Premises.

Applicable legal principles

9.    As this is an application for the grant of interlocutory injunctions pending trial, the principles are whether there is a serious question to be tried, and whether the balance of convenience lies in favor of granting or refusing the relief sought.  Since Miss Lau seeks a mandatory injunction in her Summons, her counsel accepts that she has to establish a strong prima facie case, in that the court must feel a high degree of assurance that, at the trial, it would appear that the injunction was rightly granted.  In reliance upon Films Rover International Ltd. & Ors. v. Cannon Film Sales Ltd. [1987] WLR 670, Counsel for Miss Lau argues that even if the court does not feel a “high degree of assurance” about Miss Lau's chances of establishing her right at trial, the present case falls within the type of exceptional cases in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it.

10.   In relation to the prohibitory injunction, although it seeks to restrain the Defendant from allowing or permitting the leakage, I accept the submissions of Counsel for the Defendant that this is in effect a mandatory injunction requiring the Defendant to take steps to prevent the leakage.  The same principles therefore apply to this part of Miss Lau's application.

11.   In determining cases in which a plaintiff claims relief on the basis of water leakage constituting nuisance at common law, the tests are clearly set out in the case of Cheung Sau Ling and Ng Bong Hon v. Cheung Lai Chong 張秀玲及吳炳漢對鄭禮莊CACV 268/1998 (unreported, 9 April 1999).  The defendant must be shown to have actual or constructive knowledge that the leakage of water originated from the defendant's property.  "Knowledge" can be what the defendant actually knew, or what the defendant should have known with normal and reasonable diligence.  However, the onus of proof remains on the plaintiff, and it is not for a defendant to prove that the seepage of water did not originate from the defendant's premises, nor to prove that it had not created the nuisance.  Obviously, whilst a defendant is entitled to require and wait for the plaintiff to produce the necessary evidence as to the cause of the water seepage, and to commission its own experts if it so requires to carry out investigations and to verify the cause of water seepage as alleged by the plaintiff, a defendant does so at its own risk because if the courts ultimately finds and accepts the plaintiff's evidence that the water seepage in question originated from the defendant's premises and that it should have known this, then it will have to accept liability in relation to the damage sustained by the plaintiff in the interim as a result of the water seepage.

12.   Applying the test adopted in the Cheung Sau Ling case to the principles for the grant of mandatory injunctions, Miss Lau therefore has to establish a strong prima facie case, in that I have to be satisfied to a sufficiently high degree of assurance that the Defendant's Premises are the source of the water leakage into the Plaintiff's Premises.

Whether strong prima facie case

13.   On the facts of the present case, Miss Lau relies on Dr. Lam's findings in his reports that the water leakage in the Plaintiff's Premises was caused by the Defendant.  There is no evidence that Dr. Lam's findings had been sent to the Defendant prior to the service of Miss Lau's affirmation, such that the date of the Defendant's knowledge of the alleged findings of the source of leakage should be the date of service of Miss Lau's affirmation at the earliest.  On the basis of Dr. Lam's inspection of the Plaintiff's Premises on 13 September 2005 and 13 October 2005, which inspections included visual inspections as well as litmus paper testing of the PH values of liquid collected, Dr. Lam concluded in his November 2005 report that the leakage of pipe ducts concealed in the guest bathroom on the 3rd floor is the likely source of water leakage into the guest bathroom at the Plaintiff's Premises. 

14.   For the purpose of compiling the November 2005 report and making the conclusions which he did, Dr. Lam did not carry out any inspection of the Defendant's Premises.  He referred in his report to 4 possible sources of water leakage, being: (1) water pipes concealed in the ceiling of the Plaintiff's Flat; (2) rainwater penetrating through the external wall; (3) pipe ducts concealed in the guest bathroom; and (4) leakage from toilets, bathtubs and showers on the 3rd floor.  Dr. Lam excluded water pipes concealed inside the ceiling of the Plaintiff's Premises as a possible source, for the reason that these pipes had been tested “about one to two years ago” and no signs of water leakage had been observed from water pressure tests.  According to Dr. Lam, the water pipes concealed in the ceiling were also far away from the areas where water leakage occurred.  Dr. Lam excluded the external wall as the source of the leakage, as he was of the opinion that the external wall was in good condition and penetration of rainwater through the external wall was hence unlikely.  Dr. Lam concluded that leakage of the pipe ducts in the guest bathroom on the 3rd floor is the likely cause of water leakage, as the pipe ducts chamber was humid and damp, the surface of the pipe ducts was covered by water droplets, and water collected was tested to be fresh water.  In Dr. Lam's opinion, "it is likely" that water leaked from the pipe ducts concealed in the duct chamber on the 3rd floor, and found its way through the concrete ceiling, to seep into the guest bathroom at the Plaintiff's Premises.  Dr. Lam did not explain if the pipe ducts in question were common pipes, or pipes which served the Defendant's Premises exclusively.

15.   In his November 2006 report, Dr. Lam referred to his inspection of the Defendant's Premises on 3 April 2006.  He observed that there was continuous flooding in the guest bathroom in the Defendant's Premises in the area under the bathtub, and in the duct chamber.  About 10 litres of water was collected and removed from under the bathtub and the duct chamber on 3 April 2006.   Dr. Lam also claims that on 3 April 2006, he observed that waterproofing had been applied under the bathtub in the guest bathroom at the Defendant's Premises, that there were signs of water leakage from the sink in the guest bathroom at the Defendant's Premises, and that there were signs of water leakage on the wall outside the guest bathroom at the Defendant's Premises.

16.   Dr. Lam concluded in his November 2006 report that there are two possible sources for the water found under the bathtub and inside the duct chamber in the guest bathroom at the Defendant's Premises: the bathtub itself, and the pipe ducts inside the duct chamber.  He considered that "it is highly likely" that water was leaking under the bathtub, and such water slowly penetrated through the concrete ceiling into the guest bathroom of the Plaintiff's Premises.  It was suggested that water was still leaking after the application of waterproofing under the bathtub.  Dr. Lam's conclusion in paragraph 6.5 of his November 2006 report is that the cause of water leakage in the guest bathroom of the Plaintiff's Premises "is most likely due to water leakage under the bathtub" in the guest bathroom of the Defendant's Premises.

17.   The Defendant has in its Defence filed on 7 March 2007 alleged that the source of the water leakage in the Plaintiff's Premises may be the common pipe ducts area adjacent to the Defendant's guest bathroom and the accumulation of water beneath the bathtub in the main bathroom at Flat B1/III.  These sources were not investigated or considered in Dr. Lam's November 2005 and November 2006 reports as possible causes of the water leakage.  Nor was Dr. Lam instructed thereafter to consider and deal with these alleged sources.  Even if Dr. Lam did not consider the common pipe duct area to be a possible source of the water leakage into the Plaintiff's Premises, he should explain this and justify such exclusion.  Nor did Dr. Lam explain whether the water which was seen under the bathtub in the guest bathroom in the Defendant's Premises could have accumulated as a result of leakage from the common pipe duct area, or from Flat B1/III.

18.   Importantly, Dr. Lam had acknowledged in his November 2006 report that the guest bathroom in the Defendant's Premises had not been in use since 30 March 2006.  However, he did not explain in his report how water could still have accumulated under the bathtub in the guest bathroom during his inspection on 3 April 2006, and how he justified his conclusion that the water leakage in the Plaintiff's Premises had leaked from the bathtub (which was not in use) and had penetrated through the ceiling into the guest bathroom of the Plaintiff's Premises.

19.   Further, Dr. Lam had concluded earlier in his November 2005 report that there are 2 likely sources of water leakage into the ceiling outside the main bathroom of the Plaintiff's Premises, and they are the main bathroom in the Defendant's Premises, and the main bathroom in Flat 3 on the 3rd floor.  In his November 2006 report, Dr. Lam also referred to the main bathroom in Flat 3 on the 3rd floor as a possible source of water leakage into the ceiling of the main bathroom and ceiling outside the main bathroom of the Plaintiff's Premises.  If Flat 3 on the 3rd floor can be a source of the water leakage in the main bathroom of the Plaintiff's Premises, Dr. Lam did not explain whether it can also be a source of the water leakage in the guest bathroom of the Plaintiff's Premises.

20.   Against such doubts raised, there is also the Defendant's allegation that the water colour test in January 2005 and the water pressure test in April 2006 conducted by the Defendant to check for possible water leakage from the Defendant's Premises had been negative.

21.   From the evidence, therefore, there are doubts raised as to whether the water leakage in the guest bathroom of the Plaintiff's Premises is in fact caused by defects in, or lack of maintenance of, the Defendant's Premises.  I cannot accept on the evidence now available that there is a strong prima facie case that the water seepage in the Plaintiff's Premises originated from the Defendant's Premises.  The Defendant is entitled to cross-examine Dr. Lam in relation to his findings, and the court is yet to be satisfied by Dr. Lam that the water leakage indeed originated from the bathtub in the Defendant's guest bathroom, as he alleges, and not from any other source such as the common pipe adjacent to the Defendant's guest bathroom, or Flat B1/III, or any other flat on the 3rd floor.

22.   On the current evidence made available at the hearing of the Summons, I do not feel a high degree of assurance that Miss Lau will be able to establish her right to the mandatory injunction she seeks at trial.

Balance of convenience

23.   Proceeding to the balance of convenience to decide whether the risk of injustice in refusing the mandatory injunction sufficiently outweighs the risk of injustice if it is granted, and whether, even if there is a serious question to be tried for the grant of any prohibitory aspect of the injunctions sought, it is important to bear in mind that the terms of the injunctions sought are very wide.  They require the Defendant to carry out all necessary repairs and remedial works "to stop water leakage from the Defendant's Premises", through the location at the ceiling of the guest bathroom in the Plaintiff's Premises.  If the injunctions are granted, even if the Defendant's Premises are not in fact the ultimate source of the water leakage into the Plaintiff's Premises, the Defendant will still be in breach and liable in contempt for acting in breach of the injunctions, for failing to stop the leakage into the Plaintiff's Premises.  If the source of leakage is in fact the common pipe, or Flat B1/III or another flat on the 3rd floor, even if the Defendant carries out repair and remedial works to the bathtub within the Defendant's premises, as identified by Dr. Lam, water may still come from the source and accumulate in the Defendant's guest bathroom, and leak into the Plaintiff's Premises, so as to render the Defendant liable for breach of the injunctions if they are granted by the court.  This injustice and the risk of being in breach of a court order and possibly the risk of contempt cannot be adequately compensated by damages.  I bear in mind that in this case, the Defendant has taken some reasonable steps to prevent any water leakage that may he caused by the Defendant.  It carried out water tests, made some repairs and stopped use of the guest bathroom since March 2006.

24.   I am not satisfied that the balance of convenience is such that either the mandatory injunction or the prohibitory injunction should be granted in the terms sought by the Summons. No doubt Miss Lau suffers great inconvenience and discomfort in having to bear with the water leakage.  However, at this stage, the source of the leakage has not been clearly identified.  If the court is satisfied at trial on the evidence adduced that the water leakage is caused by the Defendant’s nuisance, or negligence, or breach of covenant, then suitable orders can be made to compensate for Miss Lau's loss and damage, including any diminution in value of the Plaintiff's Premises as may be proved, which are all monetary, and appropriate permanent injunctions can be granted.  In the interim, the more sensible approach would be to proceed to trial as soon as possible.

25.   The Plaintiff's Summons is dismissed, with costs, and certificate to counsel.