東樂大樓業主立案法團 v. 黃志剛

LDBM 72/2018

[2023] HKLdT 34

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 72 OF 2018

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J U D G M E N T

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BACKGROUND

1.  The applicant in this case is the Incorporated Owners of the Tung Lok Building (the “Building”). The respondent is the owner of residential unit Flat 2D of the Building.

2.  The applicant sues the respondent for breach of the provisions of the Deed of Mutual Covenant (“DMC”) of the Building as well as section 34I of the Building Management Ordinance (Cap 344) (“BMO”).

3.  The incident that gave rise to these proceedings was the backflow of water from the flush toilet of the respondent’s flat on 4 May 2017 which flowed from the respondent’s flat to elevator L2 (“the Elevator”) of the Building, causing it damage. The applicant arranged their lift contractor, CKP Building Service Systems Ltd, to repair the Elevator and incurred the repair cost of $165,680.

4.  According to the original drainage design of the Building as shown in the relevant approved plan, the storm drain should go from the roof all the way to the platform on the 1^st floor for discharge.

5.  After the overflow, the applicant discovered that the storm drain of the Building had been altered by some party without obtaining permission from the authority concerned or the applicant. As a result of the alteration, the storm drain did not extend from the roof to the 1^st floor platform but ended outside the external wall of Flat 2D (i.e. the respondent’s unit) and was connected to the sewage pipe serving this unit.

THE APPLICANT’S CASE

6.  The applicant contends that it was the respondent or his predecessor-in-title who carried out the alternation by connecting the storm drain to the sewage pipe. Such alteration was in violation of the DMC, led to the subject overflow incident and caused loss and damage to the applicant.

7.  The applicant seeks, inter alia, mandatory injunction to compel the respondent to reinstate the relevant sewage pipes on the external wall of the building and also seeks damages for the repair costs incurred in the sum of $165,680.

THE RESPONDENT’S CASE

8.  The respondent does not dispute about the inconformity of the pipes on the external wall outside his unit with the approved plan nor does he dispute about the occurrence of the incident on 4 May 2017. The respondent admits that on that day, there was overflow of sewage from the flush toilet inside the small room of his unit through the main door of his flat to the lift lobby and then to the Elevator. There was heavy rain at the time of the overflow.

9.  Subject to the issue of liability, the respondent does not dispute the reasonableness of the repair costs of $165,680.

10.  The respondent disputes liability along this line. When he acquired Flat 2D on 23 September 1996, the flat consisted of 2 bedrooms, 1 big room and 1 small room. The respondent alleges that since his becoming the owner of Flat 2D, he has made no structural alterations to it or permitted anyone to carry out alteration. He was not aware of any illegal sewage pipe or continuous breach of the DMC until after the subject incident.

11.  On causation, the respondent contends that the backflow of water was caused by the owner/occupier of Flat 2A who had connected their illegal sewage pipe (i.e. pipe D) to the respondent’s illegal sewage pipe (i.e. pipe A). The locations of illegal sewage pipes A and D will be further explained in the ensuing discussions.

12.  About the mandatory relief sought by the applicant, the respondent submits that it shall not be granted because the applicant acquiesced or waived the legal obligations of the respondent and its predecessor. Even if a mandatory injunction is granted, the extent of the injunction is disputed because the respondent does not have the authority to enter Flat 1D and the 1^st floor platform to reinstate the storm drain.

ISSUES IN DISPUTE

13.  The issues in dispute agreed between the parties are:

(1)	Whether the respondent did connect the sewage pipe (排污喉管) on the external wall of the Building with the storm drain (雨水渠) of the Building (the “Alteration”), or permit others to carry out the Alteration;
(2)	Whether the Alteration constituted breach of Clauses 7-10 of the DMC and section 34I of the BMO;
(3)	Whether the damages and/or loss suffered by the applicant was caused by the Alteration;
(4)	Whether the damages and/or loss suffered by the applicant was a reasonably foreseeable consequence of the Alteration, and whether the sum claimed by the applicant is reasonable; and
(5)	Whether a mandatory injunction ordering the respondent to reinstate the sewage pipe (排污喉管) on the external wall of Flat 2D ought to be granted.
(6)	Whether the applicant was capable of acquiescing, and did acquiesce to the respondent’s carrying out the Alteration and whether the applicant was capable of waiving, and did waive the legal obligations of the respondent.

EVIDENCE

14.  About factual evidence, Mr 鄭建華, the chairman of the Incorporated Owners of the Building, made two witness statements for the applicant. His evidence covers among other things the incident of backflow of water on 4 May 2017, the damage and repair to the Elevator and the action taken by the applicant against the respondent afterwards.

15.  The respondent has three factual witnesses. The first witness is Ms 蘇月葵, the respondent’s wife. Her evidence covers previous incident(s) of backflow of water from the toilet of the respondent’s unit and the connection of sewage pipe by her neighbor (i.e. Flat 2A) to the pipe of the respondent’s unit.

16.  Another witness is Mr 陳振龍, property agent of the respondent whose evidence covers the previous incident(s) of backflow of water from the toilet of the respondent’s unit, and his communication with the tenant of Flat 2A.

17.  The last witness is Mr 黃志剛, the respondent himself. His evidence mainly covers his purchase of Flat 2D, that he did not alter the pipes of Flat 2D, the lack of action by the applicant towards unauthorised connection of pipes in the Building and some of his personal opinion about the insurance of the Building.

18.  On expert evidence, parties jointly appoint Dr Lam Siu Shu Eddie as their single joint structural engineering expert. In §5.13 of his report, Dr Lam observed several illegal alterations of pipes that are relevant to the backflow of water on 4 May 2017 :-

(1)	The storm drain was cut outside Flat 2D, such that rain water cannot be discharged at the 1st floor platform;
(2)	Illegal sewage pipes A, B and C were installed;
(3)	The storm drain was connected to illegal sewage pipe B; and
(4)	Illegal sewage pipe C was connected to the legal sewage pipe.

19.  Dr Lam includes in his expert report some plans and photos[1] to show the locations of the relevant sewage pipes and the storm drain. They are reproduced at Appendix A to this judgment for easy illustration.

20.  Dr Lam observes that Flat 2D had been converted into two subdivided units each of which has a toilet. The subject backflow occurred in the toilet (which was an additional erection) in one of the two rooms of Flat 2D (i.e. the small room). The sewage pipe of the additional flush toilet in the small room was protruding through the external wall of Flat 2D to connect with an illegal sewage pipe A outside.

21.  Dr Lam also observes that the owner or occupier of Flat 2A had erected a toilet (which was also an additional erection) and connected the sewage pipe of that additional toilet (i.e. illegal sewage pipe D) to the respondent’s illegal sewage pipe A. However, he points out that the illegal sewage pipe D had already been disconnected from illegal sewage pipe A sometime prior to the backflow incident.

22.  As to the sequence of the modifications to the various drainage and sewage pipes, Dr Lam assessed that first, the storm drain was cut outside Flat 2D and connected to illegal sewage pipes B and C, and then connected to the (legal) sewage pipe. These were built at the same time (“1^st Change”).

23.  Secondly, as to when illegal sewage pipe A was built, it should be built at the same time or after the 1^st Change (“2^nd Change”). Dr Lam finds it more likely that the illegal sewage pipe A was affixed at the same time as illegal sewage pipes B and C. Dr Lam added that the toilet in the small room and the illegal sewage pipe A should be built at the same time, otherwise illegal sewage pipe A would be erected for no purpose.

24.  Lastly, illegal sewage pipe D was probably built after illegal sewage pipe A (“3^rd Change”). Timing wise, according to the respondent’s factual evidence Dr Lam opined that the additional toilet in Flat 2A and the related illegal sewage pipe D should be completed on 6 March 2017.

25.  When asked by the respondent’s counsel whether the connection of illegal sewage pipe D to illegal sewage pipe A would increase the load of the sewage pipes, Dr Lam explained that sewage pipes were designed for many toilets, and it is impossible that two toilets alone would exceed its design volume.

DISCUSSION

Issue 1 (Responsibility for Alteration) & Issue 2 (Breach)

26.  Mr Albert Wan on behalf of the applicant submits that from expert evidence it is clear that there was a time when there were only illegal sewage pipes A, B and C. Before illegal sewage pipe D was built, illegal sewage pipes A, B and C were used exclusively by Flat 2D. Particularly, the cutting of the storm drain and connecting it to illegal sewage pipes B and C (i.e. the Alteration) all happened at the same time, all these make it inherently improbable that the Alteration was carried out by someone other than the owner/occupier of Flat 2D or their agent.

27.  Mr Wan relies on §17(d) of the Agreement for sale and purchase of Flat 2D executed between the respondent and his predecessor-in-title wherein the respondent expressly acknowledged that upon the purchase he would be responsible for any unauthorised structures found to exist on the property. It is submitted that such being the case, the respondent cannot now evade responsibility by disowning the illegal alterations done by his predecessor-in-title to the property.

28.  It is submitted that the Alteration constitutes a breach of the DMC and section 34I of the BMO.

29.  The DMC provides, inter alia, that:-

“8. Each of the parties hereto shall not make any structural alteration to the said building or to the floor of which he is entitled to the exclusive use, occupation and enjoyment and shall not make any alteration to any installation or fixture so as to affect or likely to affect the supply of water, electricity or gas and shall not cut or damage any of the main walls or beams or floors of the said building.

…

10. Each of the parties hereto shall not use or cause or suffer or permit to be used the floor of which he is entitled to the exclusive use, occupation and enjoyment or any part thereof for any illegal, unlawful or immoral purpose and shall not do or cause or suffer or permit to be done anything therein or thereupon which may create unnecessary noise or which may be or become a nuisance, annoyance or inconvenience to the occupiers of the other parts of the said building or of the premises in the neighbourhood.”

30.  Section 34I of the BMO provides that:

“34I. Common parts
(1)	No person may—
	(a)	convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);
	(b)	use or permit to be used the common parts of a building in such a manner as—
		(i)	unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or
		(ii)	to cause a nuisance or hazard to any person lawfully in the building.
(2)	Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

31.  It is Dr Lam’s expert evidence that illegal sewage pipes A, B and C were designed to be the sewage pipes for use by the toilet in the small room of Flat 2D. Mr Wan emphasizes that illegal sewage pipes A, B and C lead from and run for the benefit of Flat 2D and that these pipes have been and are still being used for the benefit of Flat 2D, the respondent’s property.

32.  Citing Chan Siu Mei Cary v The Incorporated Owners of Grammy Centre[2], the applicant submits that under such circumstances, it is open to the court to infer that the respondent is responsible for the pipes as they lead from and run for the benefit of his property.

33.  As for the particulars of breaches of the DMC and the BMO, Mr Wan points out that firstly, there was a structural alteration by connecting the foul water drainage pipe to the main sewage system. Connecting the sewage pipe with the storm drain clearly constituted a structural alteration to the Building which is in breach of Clause 8 of the DMC.

34.  Secondly, according to Dr Lam the said alteration posed a risk of water backflow especially during heavy rainfalls which indeed happened on 4 May 2017. This constituted a breach of section 34I(1)(b)(i) and (ii) of the BMO.

35.  I agree with Mr Wan’s analyses. On a balance of probabilities, I find it more likely than not that the owner of Flat 2D, be it the respondent or his predecessor-in-title, did either by himself or through his agent/servant make the Alteration that is, to connect the sewage pipe(s) on the external wall outside Flat 2D with the storm drain of the Building.

36.  Mr Samson Hung on behalf of the respondent argues that the respondent should not be responsible for the backflow incident because he had no knowledge of the Alteration which could have been done by his predecessor-in-title. In fact, the respondent in his oral testimony denied having made or being aware of the Alteration. This was challenged to be incredible by Mr Wan who spotted various inconsistencies between the respondent’s evidence and some undisputable documentary proof.

37.  In my view, Mr Hung’s submissions can be rejected without having to reach a conclusion about the respondent’s credibility. It is because even assuming that the Alteration was made by the respondent’s predecessor-in-title, by allowing or tolerating the pipes to remain in that particular situation or condition, the respondent should be considered as having continued or adopted the breach and shall be held responsible.

38.  In any event, section 41(3) of the Conveyancing and Property Ordinance, Cap.219 provides that a covenant shall run with the land and, in addition to being enforceable between the parties, shall be enforceable against the occupiers of the land and the covenantor and his successors-in- title and persons deriving title under or through him. It is trite that for breach of a negative covenant, the successor-in-title shall be liable even though the breach was committed by his predecessor-in-title[3]. The respondent’s defence by shifting responsibility to his predecessor-in-title is doomed to fail.

39.  To conclude, I find that the Alteration constituted breaches of the DMC and section 34I of the BMO for which the respondent shall be held liable.

Issue 3 (Causation)

40.  The applicant submits that the damage and/or loss suffered by them was caused by the Alteration.

41.  To the contrary, the respondent contends that the backflow was caused by the unauthorized connection of the sewage pipe of Flat 2A (i.e. illegal pipe D) to Flat 2D’s pipe (i.e. illegal pipe A).

42.  According to the respondent’s wife, Madam So, she discovered the unauthorized connection of pipes by the owner/occupier of Flat 2A on about 14^th April 2017 when there was backflow of sewage water from the toilet in the small room of Flat 2D. Madam So then made a complaint to the caretaker of the Building who was not helpful according to her.

43.  On about 26 April 2017, the same backflow problem recurred in the same toilet. With the assistance of her estate agent, Madam So managed to contact the occupant of Flat 2A who admitted having inadvertently connected their sewage pipe to Flat 2D’s illegal sewage pipe A. Flat 2A’s occupant promised to rectify the situation and did, on about 3^rd May 2017, disconnected their sewage pipe (i.e. illegal sewage pipe D) from Flat 2D’s sewage pipe (i.e. illegal sewage pipe A). The respondent alleges that it was probably due to Flat 2A’s omission to clear the passageway of the pipes coupled with the heavy rain at the material time that caused the overflow on 4^th May 2017.

44.  A few points in Dr Lam’s report and evidence are crucial to the question of causation. First, in §5.15 of Dr Lam’s report, he opines that the Alteration (i.e. connecting the storm drain with the sewage pipe) is detrimental to the effective drainage of rain water because the rain water would exceed the loading of the sewage pipe and when that occurs, backflow will happen.

45.  Secondly, blockage was found inside illegal sewage pipe B when emergency sewage cleanup was carried out on the same day after the backflow incident. In §5.29 of his report and also in his oral evidence, Dr Lam opines that the cause of blockage of the illegal sewage pipe B can either be:- (a) a single large blockage; or (b) an accumulation of large amount of excrement.

46.  Dr Lam believes possibility (b) should be more likely from what Dr Lam observed in the videos capturing the process of sewage cleanup.

47.  If the blockage was caused by (b) (i.e. accumulation of excrement over a period of time), Dr Lam opines that it was probably caused by Flat 2D because the toilet in Flat 2A had just been newly installed. Small blockage needs months to accumulate and it is impossible to block the pipe in normal use within just a month.

48.  If the blockage was caused by (a) (i.e. one-off large blockage), Flat 2A should not be the cause either because the illegal sewage pipe outside Flat 2A (which was 3-inch pipe with 3.5 inch outer diameter) is smaller than the illegal sewage pipe outside Flat 2D (which was 4-inch pipe with 4.5 inch outer dimeter).

49.  Dr Lam considers the prior incident of backflow on 14 April 2017 an important indicator of the condition of the pipes. It suggests that the pipe itself was not in a good condition and the blockage was probably due to accumulation instead of a one-off occurrence.

50.  In §6.9 of his report, Dr Lam opines that the damage to the Elevator was directly caused by the backflow of water.

51.  At this juncture, I pause to highlight that Dr Lam actually is the single joint expert jointly appointed by the parties. Whilst the respondent disagrees with Dr Lam’s expert opinions and calls upon him for cross-examination at trial, they have not sought leave from the tribunal for them to adduce evidence from another expert in order to counter Dr Lam’s opinions.

52.  I consider Dr Lam’s expert opinion sensible and logical whereas the respondent’s attribution of fault to the owner/occupier of Flat 2A in causing the blockage hence overflow purely speculative. I do not see any reason why Dr Lam’s expert opinion shall not be taken.

53.  I find that the damage and/or loss suffered by the applicant as a result of the overflow was caused by the Alteration for which the respondent is responsible. There was no novus actus interveniens that broke the chain of causation between the respondent’s breach of the DMC and the applicant’s loss or damage.

Issue 4 (Reasonable Foreseeability & Quantum)

54.  Following from the above discussions, it is clearly reasonably foreseeable to a reasonable man that cutting the storm drain of a building and illegally connecting it with the sewage pipe of a residential unit would be detrimental to the drainage of rain water because if the rain water exceeds the loading of the sewage pipe, backflow of water will just be a matter of course.

55.  As mentioned in §5.16 of Dr Lam’s report, the website of the Buildings Department warns residents about the risk blockage/overflow caused by connecting storm drain with sewage pipe.

56.  Even on the respondent’s own case, he did encounter previous incident(s) of water back flow from the toilet before 4 May 2017. So from the respondent’s personal experience, it should be reasonably foreseeable to him that backflow of water may happen again and that should that occur in a vigorous manner during heavy rain, the large amount of water may flow via his unit to the lobby and then the elevator, resulting in damage.

57.  I find that the damage to the Elevator is a reasonably foreseeable consequence of the Alteration.

58.  The respondent has no dispute on quantum. I find the repair costs of $165,680 reasonable and shall allow it in full.

Issues 5 & 6 – Injunction & Acquiescence / Waiver

59.  The applicant’s position is that a mandatory injunction shall be granted to compel the respondent to reinstate the sewage pipe (the applicant does not require the respondent to reinstate the storm drain to the 1^st floor platform). It is submitted that damages would not be adequate because if the present illegal connection of pipes are not rectified, there will be risk of recurrence of backflow of sewage water in the future.

60.  The respondent contends that the applicant has acquiesced in his breach, if any, of the DMC because the applicant knew or ought to know about the presence of the illegal sewage pipes on the external wall but has not taken any enforcement action against it. There were also similar breaches of the DMC committed by others which the applicant had tolerated and had not taken action for years.

61.  Making reference to section 34I(1)(a)[4] and section 34K[5] of the BMO, Mr Hung submits that since there was a management committee of the Building, the applicant should be in a position to approve the respondent’s conversion of the common parts including the storm drain. He further submits that under such circumstances, the applicant should not be entitled to enforce the DMC against the respondent in respect of those breaches it has acquiesced in.

62.  Citing The Incorporated Owners of Dragon View v Nalpak Ltd (HCA 3356/1986, 18 January 1989), the respondent submits that it is not just and equitable to grant the mandatory injunction to compel the respondent to reinstate the sewage pipes.

63.  To the contrary, Mr Wan submits that the applicant is not capable of acquiescing or waiving the respondent’s breach of clause 8, 10 of the DMC or section 34I of the BMO, nor could it acquiesce matters which are not within its power to grant expressly.

64.  The applicant cites The Incorporated Owners of Hoi Luen Industrial Centre v Ohashi Chemical Industries (Hong Kong) Ltd [1995] 2 HKC 11 (CA) where Godfrey JA held at 12I-13D that:

“…incorporated owners are placed under a statutory duty to do all things reasonably necessary for the enforcement of the obligations contained in the Deed of Mutual Covenant: see s.18(1)(c). When, then, the incorporated owners find that there is a breach of covenant being perpetrated by one of the owners, it is not only their right but their duty to seek to enforce the covenant. And one of the duties of the manager under the Deed of Mutual Covenant here, for example, is expressed as follows in part B of section 5:

1. The Manager will manage the Land and the Building in a proper manner ... the Manager shall have the following duties ... :

(15) to remove any structure, ... fitting or other things in or on any part of the Land and the Building which have been erected in contravention of the terms of this Deed.

It follows that in the instant case the plaintiffs were not only entitled but bound to take proceedings for the enforcement of these covenants. It follows, too, that they could not have granted expressly to this defendant or any other owner of any unit in the building the right to act in contravention of the Deed of Mutual Covenant as this defendant has done. What cannot be done expressly cannot be done impliedly. …”

(Emphasis added)    

65.  The Incorporated Owners of Champion Court v Pang Ping Fan Peter [2008] 5 HKC 312 is also cited where Yuen JA said at 322, §17:

“…incorporated owners cannot acquiesce in the retention of illegal structures is by now well-established. The rationale is that since it is not within the power of the incorporated owners to expressly permit illegal structures to the constructed, it is consequently not within their power to acquiesce in their retention…”

(Emphasis added)    

66.  The applicant submits that in the present case, the illegal sewage pipes A, B and C are illegal structures as they are connected to the storm drain, contrary to section 32 of the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations (Cap 123I). The applicant has no power to acquiesce their retention or to waive the right to require the respondent to remove such illegal structures.

67.  Mr Wan further submits that regardless whether the applicant is legally capable of acquiescing or waiving breaches, the applicant did not as a matter of fact acquiesced in or waived the respondent’s breaches because the applicant in fact was not aware of the illegal connection of pipes or cutting of the storm drain prior to the subject overflow incident. The situation was only discovered on 5 May 2017.

68.  Even if the applicant was aware of some other illegal arrangements/connection of pipes, which is not admitted, that does not bar relief against a more severe case of breach which caused serious backflow of sewage water causing damage to the Elevator, an important facility for the common use of the residents in the Building.

69.  I agree with Mr Wan’s analyses and make a finding of fact that the applicant did not acquiesce or waive the respondent’s breaches.

70.  As to whether an injunction shall be granted, I note that Dr Lam actually does not observe the sort of difficulty which the respondent complains about in the execution of the reinstatement works as he considers that reinstating the storm drain is possible and practicable. In any case, since the applicant is not requiring the respondent to reinstate the storm drain to the 1^st floor platform, the potential difficulty in having access to the platform as raised by the respondent should not arise.

71.  About the Dragon View case cited by the respondent, it can be distinguished because the alteration in that case (enlargement of window) had caused no harm to anyone since the alteration whereas in the present case, the damage caused to the Elevator is actual and the risk of future recurrence is real.

72.  In my view, damages would not be an adequate relief and injunction to compel reinstatement of the sewage pipes pertaining to the respondent’s unit is clearly necessary. I see no injustice or inequity in the grant of an injunction to compel the respondent to reinstate the sewage pipes which I hereby so grant.

Unpleaded Case (Admissibility of Evidence about Vertical Pipe)

73.  In the afternoon of the first-day trial, Mr Hung when examining the respondent without applying for leave in advance asked the respondent to amplify his witness statements. Worse still, Mr Hung led a line of questioning relating to the existence of a vertical pipe connected to the illegal sewage pipe A which clearly has never been pleaded or mentioned in the respondent’s Re-Amended Notice of Opposition, nor any of the witness statements filed for the respondent, nor in Mr Hung’s written or oral opening submissions.

74.  Of course Mr Wan raised serious objections to this. I asked Mr Hung to clarify the intention of this line of questioning and was told that the questions were to show that the illegal pipes outside Flat 2D were not for the exclusive use of the respondent.

75.  I was disapproved of Mr Hung’s manner of examination-in-chief which was calculated to bring out evidence of a wholly unpleaded case with an effect of ambushing the applicant. This was procedurally unfair to the applicant which had not had the chance to gather and adduce evidence about this unpleaded issue.

76.  Mr Wan also made clear that if the respondent was allowed to elicit evidence about this unpleaded issue of vertical pipe, the applicant would have to seek adjournment in order to deal with the situation. After some exchanges between the bench and the bar, and having taken instructions from the respondent, Mr Hung confirmed that he would not insist on “supplementing” the respondent’s witness statements and would not apply for leave to adduce factual or expert evidence (by asking the witnesses during oral examination) in relation to vertical pipes[6]. Therefore, the trial continued on the understanding that Mr Hung would desist from running the unpleaded case about vertical pipe.

77.  After the oral testimony of a number of factual witnesses, Mr Hung called the respondent’s estate agent, Mr Chan, to give evidence. After Mr Chan’s adopting his witness statements, Mr Hung applied for leave to clarify with Mr Chan “the specific questions about the location in the photos and the identity of persons in some Whatsapp conversation” and I granted leave for Mr Chan to so clarify.

78.  In response to Mr Hung’s questioning, Mr Chan awkwardly mentioned several times that the illegal sewage pipe A is connected to other vertical pipes of the Building. His way of answering was unnatural and dubious, sounded like he had been prompted in advance and was trying to slip in evidence on behalf of someone about the unpleaded issue of vertical pipe(s).

79.  The tribunal sensed the oddity and reminded Mr Hung of his own confirmation earlier that no case about vertical pipes shall be run and no question in that regard shall be asked. The tribunal emphasized that it was upon such open confirmation on Mr Hung’s part that the unpleaded case about vertical pipe(s) ceased to be a live issue for disposal by the tribunal and the trial continued. His attempt to resurrect this unpleaded case afterwards by slipping in evidence during the examination-in-chief of Mr Chan was highly inappropriate.

80.  What happened next was Mr Hung tried to shift blame to the tribunal for according to him it was the tribunal which granted leave for him to conduct examination-in-chief of Mr Chan in the first place. This led to the tribunal having to correct Mr Hung for the sake of proper record that leave had been granted for him to do examination-in-chief only to ask “specific questions about the location in the photos and the identity of persons in some Whatsapp conversation” and the evidence he managed to elicit from Mr Chan clearly exceeded that but goes to the unpleaded issue of vertical pipe which he openly confirmed not to pursue.

81.  Despite it was expressed by the tribunal and the applicant’s counsel that such evidence from Mr Chan ought to be disregarded, Mr Hung without proffering any valid reasons or basis insisted that those evidence shall be admissible. To avoid wasting further trial time in such senseless debate, the tribunal directed that subject to Dr Lam’s availability, he shall be called the next day to answer questions about the vertical pipes on a de bene esse basis and the admissibility of such evidence shall be dealt with in the judgment.

82.  The next day, Dr Lam was questioned on, inter alia, his opinion and observations on the vertical pipe. Dr Lam opines that the vertical pipe which Mr Chan referred to is the air-conditioning pipe which were added after completion of the Building because the original building plan did not include fins for placing air-conditioners. Dr Lam surmises that that the illegal sewage pipe A and the vertical pipe could possibly be affixed at a similar time.

83.  About the original route of the vertical pipe, Dr Lam observes two possibilities. First, the vertical pipe originally went down to the 1^st floor but was at some stage afterwards altered to connect to the illegal sewage pipe A because of the alteration made by Flat 2A. If this possibility represents the reality, he would say that before the vertical pipe was altered to connect to the illegal sewage pipe A, illegal sewage pipes A, B and C had still been exclusively used by Flat 2D which means his previous analyses[7] about the respondent’s likely involvement in the Alteration still apply.

84.  The second possibility is that when the vertical pipe was first erected, it was already made connected to the illegal sewage pipe A. Dr Lam adds that if this represents the reality, it still does not change the fact that the toilet in the small room of Flat 2D and the illegal sewage pipe A were built at the same time for there would otherwise be no purpose for there to be the illegal sewage pipe A.

85.  Having summarized Dr Lam’s evidence about the vertical pipe, I shall now turn to the admissibility of the evidence about the vertical pipe(s).

86.  In Grand Power International Limited v Chan Sing Hoi Enterprises Limited [2020] 2 HKLRD 142 which is also a building management case tried in the Lands Tribunal in the first instance, the Court of Appeal found that justice would best be served in the circumstances of that case by refusing to allow a party to run an unpleaded case.

87.  Similar to the Grand Power case, the respondent in the present has been legally represented since January 2019 by the latest. If, as the respondent’s Counsel put, the connection between the illegal sewage pipe A and the vertical pipe is an important aspect of the respondent’s case, such material facts should have been pleaded or mentioned in his opposition. However, the same has not been raised in the respondent’s Re-Amended Notice of Opposition nor any of the witness statements filed by the respondents, nor the joint instructions to the single joint expert, nor even in the Mr Hung’s opening submissions.

88.  Mr Wan submits that if the respondent is permitted to slip in this unpleaded case only at the stage of examination of witnesses, the applicant would be severely prejudiced. This I fully agree. Apparently, the applicant had been deprived of the opportunity to gather and adduce factual evidence regarding the connection between the illegal sewage pipe A and the vertical pipe. Mr Wan, as Counsel for the applicant, was obviously handicapped in his questioning Dr Lam on the vertical pipe due to complete lack of factual evidence from the applicant’s side. For procedural justice and fairness, I have no hesitation to find that the evidence about the vertical pipe shall be inadmissible.

89.  Even if the evidence about the vertical pipe is admissible, on substance and merits, they are not going to affect the outcome of this trial at any rate. I do not see how the existence of a vertical pipe connecting to illegal pipe A could be said to have led to the overflow on 4 May 2017. After all, Dr Lam has not seen any need to change his opinion on the cause of the incident with the vertical pipe factored in in his assessment.

90.  Undisputedly, the pipe alterations in this case involve: (a) cutting the storm drain outside Flat 2D’s unit which made it impossible for the rain water to be discharged at the 1^st floor platform; (b) connecting the storm drain to the illegal sewage pipe B; (c) erecting an illegal sewage pipe A to the toilet of Flat 2D for excrement discharge; and (d) causing the illegal sewage A to protrude from Flat 2D’s toilet through the external wall and to connect with illegal pipes B and C. Had the pipes not been altered this way with the sewage drains and storm drain mingled together, there would not be overflow of water flooding out from the toilet (additional erection) in Flat 2D during the heavy rain on 4 May 2017. This simple cause and effect is not going to be disturbed by the existence or non-existence of the vertical pipe is question.

DISPOSITION

91.  By reason of the above analyses, I made rulings in favour of the applicant on all the 6 issues.

92.  I order that the respondent shall pay the applicant the sum of $165,680 being the reasonable sum of repair costs of the Elevator together with interest thereon at 1% above the best lending rate of HSBC from the date of the Notice of Application until the date of this judgment and at judgment rate from the date of judgment until full payment.

93.  I also grant a mandatory injunction to compel the respondent to reinstate the sewage pipes outside or relating to Flat 2D on the external wall of the Building within 70 days from the date of this judgment failing which the applicant shall be at liberty to carry out the reinstatement works at the reasonable costs of the respondent.

94.  There is no reason why costs shall not follow the event. I order that the respondent do bear the applicant’s costs of this application (which certain covers the costs occasioned by the respondent’s insistence to run the unpleaded case about the vertical pipe(s) at trial) to be taxed on the District Court scale if not agreed with certificate for Counsel.

Appendix A