COX KAN, HAY TUNG AMY AND ANOTHER v. JENHON INTERNATIONAL LTD

DCCJ 3470/2020

[2023] HKDC 678

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3470 OF 2020

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BETWEEN

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DECISION

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1.  This is a water leakage case. The 1^st and 2^nd Plaintiffs (the “Plaintiffs”) filed an application on 20 May 2022 (the “Summons”) for an order that their expert be permitted to carry out two water tests, namely (i) dyed water ponding test (the “Ponding Test”) and (ii) colour dye test of drainage pipes and fitments (the “Pipes Test”) in the Defendant’s premises for ascertaining the cause or source of water seepage.

BACKGROUND

2.  Both the Plaintiffs and the Defendant’s premises are situated in Garden Terrace on Old Peak Road, where the Plaintiffs’ flat is directly under the Defendant’s. The first sign of water leakage was found in March 2019 at the ceiling of the dressing room in the master bedroom of the Plaintiffs’ premises. The Plaintiffs engaged Smart Joy Surveying Consultants Ltd (“Smart Joy”) to make inspection of their premises and investigate the source of leakage. The Plaintiffs commenced the present proceedings against the Defendant on 9 July 2020, i.e. about 16 months after the first sign of leakage.

3.  The Defendant allowed the Plaintiffs’ expert to make a visual inspection of its premises some 11 months later, i.e. on 11 June 2021. At this point of time, 27 months have already been lapsed since the Plaintiffs first complained about the leakage.

4.  Later on 3 January 2022, upon the parties’ consent summons and joint application, Master June Cheung made an order for a joint expert inspection (the “Expert Order”) to be conducted at the Defendant’s premises no later than 19 January 2022, and a without prejudice meeting between the experts to be held within 28 days thereafter for the purpose of preparing a joint expert report (the “JER”). According to the timetable set down by Master Cheung, the JER should be compiled and lodged with the Court no later than 6 April 2022.

5.  Mr Jacob Tsang (“Tsang”) from Smart Joy and Sr Patrick Lau (“Lau”) were engaged by the Plaintiffs and the Defendant as their respective experts. It is not in dispute that Tsang had compiled three investigation reports before the Expert Order, two of which were made without inspection of the Defendant’s premises. From the email correspondence between the experts, I do not think the following can be disputed:-

(a) The joint site inspection of the Defendant’s property on 11 January 2022 was of ‘preliminary’ nature;

(b) Tsang proposed to conduct a 24-hour Ponding Test and Pipes Test of which the latter required scaffolding erection on the external wall of the Defendant’s flat;

(c) Lau did not reject Tsang’s proposed methodologies but showed concern as to the duration of the Ponding Test and the costs involved with the scaffolding;

(d) Lau never proposed any methods to be adopted instead; and

(e) Lau did not make any further response after Tsang gave him the quotation of the costs involved in the testing in an email dated 30 January 2022.

6.  Somehow the experts’ discussion stopped abruptly after the last email from Tsang on 7 February 2022 and was taken over by the Defendant’s solicitors who expressed their disagreement to the methods proposed by Tsang. The Defendant refused to have the proposed tests conducted as it believed to be inconsistent with the Plaintiffs’ pleaded case, and thus the tests should be seen as a fishing exercise. Secondly, it is the Defendant’s pleaded case that there are no active pipes in the floor slab between the Plaintiffs and the Defendant’s premises, and thus the Defendant believed neither the Ponding Test nor the Pipes Test would be able to resolve the issue in dispute.

THE DEFENDANT’S OPPOSITIONS

7.  The Defendant provided details as to how the inlet and outlet pipes of an old water heater in their dressing room area had been modified between 2005 to 2018 and thus persuaded the Court to accept that no water runs to and from these pipes between the floor slab of the Plaintiffs’ and Defendant’s premises. Ms. Lam, counsel for the Defendant, relied on the principles laid down in Hui Ling Ling v Sky Field Development Limited unreported, HCA 35/2007, and argued that the Defendant does not have the burden to prove that the source of the water leakage did not come from its property. She suggested that there are other units located above the Defendant’s premises and the Court should not make any presumption that the water seepage must have been caused by the Defendant’s premises.

8.  Ms Lam then criticized the proposed Ponding Test and Pipes Test as being irrelevant to the pleadings of the Plaintiffs. It is the Defendant’s interpretation that the Plaintiffs’ case is based on the abandoned waste pipe in the dressing room and no allegations as to a defective waterproof layer were made. The Defendant also contended that since the complaint location of the seepage has always been the dressing room, and thus to expand the testing area to the master bedroom’s bathroom is a fishing exercise for evidence.

9.  With respect, I disagree with Ms Lam’s argument based on the following observations.

THE LEGAL ANALYSIS

10.  First, the principle that “no presumption that the water leakage was necessarily caused by the flat immediately above the plaintiff’s unit” should not be read in isolation but to be considered in the context of each case. It will be advantageous to understand the origin of this principle in order to appreciate the message the court wanted to convey.

11.  Leong JA in §21 of 張秀玲及吳炳漢 v 鄭禮莊 CACV 268/1998 said:-

「在香港，因樓宇結構，樓齡或缺乏保養維修或其他人為因素而出現滲水，有水由高層漏入下層，引致損失的個案，確實不少。上層業主與下層業主往往因此不和，繼而演變為爭吵，以致法律糾紛。雙方為此在訴訟上長時間互相糾纏，最終，即使是勝訴的一方，在精神和金錢上，亦不是沒有損耗。上下層業主關係的破裂達到無可彌補的地步，日後彼此更難相處。其實，如果上下層業主能互相協助，解決方法未必一定要訴之於法庭。問題發生時，最重要的是先找出滲水的原因。要達到這個目的，有關業主就需要合作。下層業主不應一旦發現有滲水情況，就先入為主，認定是直接上層單位內喉管損壞所引致，及上層業主對此是有知悉的，因而要求該業主立即採取行動。若稍有延誤，就以法律行動對付。因為法律並沒有假定下層滲水是上層引致。雖然如此，上層業主在接到投訴後，亦應當合理與投訴的業主磋商，以避免不和，同時讓下層業主在適當及合理的情況下，派員入單位內作適當的測試，找出滲水的原因，盡快協助解決問題。但是下層業主亦有責任監督測試小心進行，防止損壞單位的設備或引起使用者不便。若測試結果是滲水出自上層單位，該層單位業主就必須在可能範圍內，盡快解決問題，不然，他會被視為採納滋擾。因而負上賠償的法律責任。」

12.  The plaintiff in 張秀玲alleged that water was leaking from the defendant’s flat which was directly above him, however, with the cooperation of the defendant, it was found that the source of leakage was actually caused by some poor workmanship of piping on the defendant’s external wall. The significance of the quoted passage from Leong JA was that plaintiffs should be slow in identifying their upstairs neighbour as the only source of water leakage, and parties were encouraged to investigate the matter diligently.

13.  On the other hand, the defendant in Hui Ling Ling was fully cooperative and allowed multiple tests be done in the defendant’s premises (in fact more than what Tsang suggested in this case) which exemplified the thinking expressed by Leong JA in張秀玲. The test results allowed the experts to conclude that there were four possible sources of water leakage for the court’s consideration. After careful analysis of those test results, the court decided that the source, on the balance of the probability, was unlikely to be the defendant’s premises but rather the external wall.

14.  Thus, the facts of this case must be distinguished from Hui Ling Ling because the court was given sufficient factual and expert evidence at the trial to evaluate and weigh different possible causes of the leakage on a balance of probabilities in that case. While it is an established principle that no presumption should be made that water leakage must be caused by the premises directly above, this does not mean that every defendant can deny the plaintiff’s reasonable request for investigation, so as to an opportunity to the Court to reach a fully informed decision.

15.  On the same token, while the defendant does not have the burden to prove that the source of leakage did not come from his property, it does not give rise to an absolute privilege for the defendant to deny the plaintiff a fair chance to establish his case by reasonable inspection. As such, powers are given to courts under the District Court Ordinance (Cap 336) s 47B and Rules of District Court (Cap 336H) Order 29 r3 & 7A for authorizing entry, testing and inspection of property ‘which is the subject matter of the cause’ for the purpose of obtaining full information or evidence.

PONDING TEST

16.  The Defendant averred that the Amended Statement of Claim pleaded the abandoned waste pipe of the Defendant’s dressing room being the cause of the water seepage and the ceiling of the Plaintiff’s dressing room being the pleaded location of leakage. It is not disputed that the Ponding Test is to test the integrity of the waterproofing layer in the Defendant’s master bathroom and Ms Lam urged the Court to consider that such test should not be allowed as it is not relevant to the pleaded issues in this case.

17.  The Defendant relied on Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 to support its contention that the Court should not accept unpleaded issues to be raised from the evidence which is to be or has been adduced. But the facts in Kwok must be distinguished from this case and the Court should be slow in applying the relevant principle in this application. Kwok was a case based on breach of contract and the Statement of Claim had undergone four amendments before went to trial. The plaintiff lost their case and eventually went before the Court of Final Appeal where the plaintiff relied on a case based on joint and several liability, which was never pleaded. Ma CJ (as he then was) said in §19 that:-

“… In support of his submission here, counsel stated that only material facts, rather than law, must be pleaded. This is of course correct but an agreement to establish a case on the basis of joint and several liability must – like any other agreement – be properly pleaded: when and how the agreement was made, its material terms, the consideration therefor, breach, the sum due… … However, nothing in the rest of the Statement of Claim was even remotely sufficient to raise the case the Plaintiff sought to argue before this Court.”

18.  It is trite that the pleadings should be capable in defining issues in a trial and dictate the course of proceedings both before and at trial. Ma CJ in §21 also stated that pleadings must be drafted fairly and precisely so to inform the other party in the litigation of the stance of the pleading party so that proper preparation is made possible. However, I do not read the learned Judge’s dictum to be laying this down as an invariable rule at the stage of interlocutory application especially in a case involved technical issues. In a case of contractual dispute, there will be little difficulties for parties to furnish a concise Statement of Claim by particularizing material issues as suggested in the quoted passage from Ma CJ. On the contrary, in the context of water seepage cases, the litigating parties knew very little about the cause of the leakage at the pleadings stage. More often than not, the party affected by leakage problem could only draw inferences from the affected areas and to raise possible causes of leakage that cannot be confirmed without proper investigation.

19.  This was also why plaintiffs in water seepage cases are only required to plead the facts within his knowledge and are allowed to seek leave to amend the pleadings, if so required, after obtaining the relevant expert report. See Chau Yuen Heung v Jekco Elevators Ltd [2021] HKCFI 1095 at §§88-90 per Marlene Ng J.

20.  In the present case, the Plaintiffs’ expert prepared two reports, which essentially identified the water pipes to and from the Defendant’s premises’ water heater as the source of the alleged water leakage. A third investigation report was prepared after the Defendant finally agreed to let Tsang to conduct a visual inspection two years after the first sight of leakage. Tsang supplemented a third report and opined that “there should be an abandoned waste pipe” that served the original wash basin in the Defendant’s dressing room that played an important role in the alleged water leakage.

21.  I form the view that defective waterproofing layer and piping (external or internal) are the most common causes of water leakage and although no allegation is made as to the waterproofing layer in the Statement of Claim, the expert did not rule out such possibility in his reports subject to further investigation. Such allegation is neither irrelevant nor farfetched considering the fact that the dressing room is just a small room within the master bathroom. The Court took the view that a defective water proofing layer in the bathroom would be a possible cause, and thus worth investigating if water does flow from the floor slabs of the bathroom to its connecting dressing room.

PIPES TEST

22.  The Defendant also argued that the proposed Pipes Test is irrelevant and had concern over its effectiveness. Based on the close proximity between the bathroom and the dressing room and the extensive modification of the piping work that had undergone in the Defendant’s premises, I do not see why this can be irrelevant. I further found the Defendant’s concern over the effectiveness being irrelevant as the Defendant does not possess any relevant professional qualifications to justify such comments and there is simply no room for her to make such bold assertion. The Defendant decided to exclude its expert in furthering any discussion with Tsang, this Court is left with no choice but to accept Tsang’s opinions as to the usefulness and relevance of the Pipes Test.

23.  Ms Lam also urged the Court to take into account of the dye test that was conducted by the Joint Office of the Buildings Department and Food & Environmental Hygiene Department (the “Joint Office”) and its nominated independent contractor back in 2019, none of which could identify any source of water seepage. With respect, the mere fact that the Joint Office and its contractor’s results were negative could hardly provide a good reason for the Defendant to reject the Plaintiffs’ requests to carry out those further investigations. The Defendant ought to appreciate that there could well be many possible causes of water leakage problems, and the Joint Office’s results could at most negate one such possible cause. It is thus clear to me that further investigations requested by Tsang were reasonable and necessary in all circumstances of this case to ascertain the true cause of the water leakage

CONCLUSION

24.  In my judgment, the Defendant’s refusal to allow the Plaintiff’s expert to carry out the tests proposed by Tsang is unreasonable because the appropriate test and methodology are matters for the experts to decide, not the parties. (See 皇河實業有限公司v Wan Chiu Yuen and Chan Mei Wah, DCCJ 4448/2011 at §§9, 13-14) It was the Defendant’s choice to exclude its expert’s participation, and the Court is not going to speculate as to the reasons why Lau did not file any affirmation to support the Defendant’s opposition. No evidence showed that Lau disagreed to the methodologies proposed by Tsang and the exhibited email correspondence between the two experts could hardly allow me to draw any adverse inference on the inappropriateness of the Ponding Test and Pipes Test.

25.  By now, it would have been more than a year past the original deadline for the production of a joint expert report. There has been an inordinate and inexcusable delay since the issue of the writ in this case, and the Ponding Test and Pipes Test should be conducted without any further delay.

26.  By reasons of the above, it is ordered that:-

(1) Unless the Defendant do inform the Plaintiffs in writing within 7 days from the date hereof that it wishes to engage its expert Lau to take part in the Ponding Test and Pipes Test, the Defendant be debarred from seeking further joint inspections of the subject premises for the preparation of the joint expert report;

(2) If Lau is to continue representing the Defendant in conducting the Ponding Test and Pipes Test, all experts are to carry out the said tests at the Defendant’s premises on a date no later than 21 June 2023;

(3) Unless both parties’ experts could agree on the methodologies to be adopted in the Ponding Test and Pipes Test, the said tests are to be carried out according to the methods stated in the Recommended Testing Method Statements prepared by Tsang (the “RTMS”);

(4) In the event that the Defendant does not opt to engage any expert, the Defendant do, within 21 days from the date hereof, permit the Plaintiffs, through their authorized representatives and experts, to enter into and stay at, for such reasonable duration, the Defendant’s premises for the purposes of making necessary preparation, performing and completing inspection and tests set out in the RTMS and to take photographs and notes in relation thereto;

(5) The Defendant do provide reasonable cooperation to the Plaintiffs in the execution of this order;

(6) Each expert is to prepare and exchange his own draft report on or before 12 July 2023 and to have a without prejudice meeting on or before 26 July 2023 for the purpose of preparing a joint expert report;

(7) The experts are to prepare a joint expert report to be filed into Court on or before 23 August 2023;

(8) The parties shall file and serve their witness statements as to facts and quantum, accompanied by its statement of truth on or before 13 September 2023, and such witness statements shall stand as evidence-in-chief, unless the Court directs otherwise;

(9) The CMC originally listed for 22 September 2023 at 9:30 am in Court 16 do stand.

COSTS

27.  Costs should follow the event. The Defendant is to pay forthwith the Plaintiffs’ costs of and incidental to this Summons, with certificate for counsel. All parties have already submitted their Statement of Costs for summary assessment, and the Defendant’s solicitors are invited to submit their opposition in relation to the Plaintiffs’ costs within 14 days from the date hereof. I also order that the costs order nisi shall be made absolute if no application to vary the same is made within 14 days hereof.