TOLLEMACHE COMPANY LTD AND OTHERS v. RAYMOND LUN KWOK PAO also known as PAO LUN KWOK RAYMOND

DCCJ 1322/2022

[2024] HKDC 2026

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1322 OF 2022

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BETWEEN

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JUDGMENT

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A. Introduction

1.  The Plaintiffs’ claims in this action are concerned with Typhoon Vicente, which wreaked havoc in Hong Kong 12 years ago from 22 to 24 July 2012.

2.  The parties were at the material times owners and/or residents of Woodgreen Estate, which is a luxurious residential development on No 5 Shouson Hill Road. It comprises 7 low rise residential buildings, each of which is 3-storey tall.

3.  The 2^nd and 3^rd Plaintiffs are a married couple. The 3^rd Plaintiff is a majority shareholder and director of the 1^st Plaintiff, which is the registered owner of Apartment B22, Block B2, Woodgreen Estate (the “Plaintiffs’ Property”). The 2^nd and 3^rd Plaintiffs have been living in the Plaintiffs’ Property at all material times.

4.  The Plaintiffs’ Property is one of the 2 duplex units on the ground floor and first floor of Block B2[1]. It comprises a private garden.

5.  Prior to 6 February 2018, the Defendant was at all material times the registered owner of Apartment B23, Block B2, Woodgreen Estate (the “Defendant’s Property”). The Defendant’s Property was immediately above the Plaintiffs’ Property as well as the other duplex unit in Block B2 (ie Apartment B21). The Defendant’s Property comprised the entire 2^nd floor on Block B2 and the roof (the “Roof”) of Block B2.

6.  It is not in dispute that in around 2006, the Defendant and his wife (hereinafter “Mrs Pao”) moved out from the Defendant’s Property, and they lived in a place that was about 5 minutes away from Woodgreen Estate. As of July 2012, the Defendant’s Property was vacant.

B. The Respective Case of the Parties

B1. The Plaintiffs’ Case

7.  From 22 to 24 July 2012, Typhoon Vincente hit Hong Kong, and there was heavy rainfall.

8.  On 24 July 2012, an excessive amount of rainwater accumulated on the Roof. The rainwater leaked into and/or poured down along the staircase into the Defendant’s Property. The water level on the floor of the Defendant’s Property exceeded 1 inch in height, and the water eventually leaked into the Plaintiffs’ Property.

9.  There was severe water leakage in multiple locations, including the living room on the 1^st floor, the living room on the ground floor, the cloakroom and the 3 bed rooms on the 1^st floor as well as the bathroom on the ground floor.

10.  As a result of the water leakage, the plastering and paints on the ceilings and walls in the Plaintiff’s Property cracked and peeled off. Further, the 2^nd and 3^rd Plaintiffs’ personal belongings (such as some Chinese paintings, handbags and clothes) were damaged.

11.  It is the Plaintiffs’ case that:-

(1) On the alleged admission on the part of Mrs Pao, the water leakage was ascribed to the fact that vegetation and waste blocked the drainage system on the Roof.

(2) The Defendant failed to maintain the drainage system on the Roof and failed to inspect the same regularly.

(3) The Defendant failed to properly maintain and/or close the windows of the Defendant’s Property, as a result of which rainwater entered and accumulated.

(4) As the Defendant did not clear the rainwater accumulated in the Defendant’s Property, the same continued to pour into the Plaintiffs’ Property for more than a week.

12.  In these premises, the Plaintiffs contend that the Defendant is liable for:-

(1) nuisance;

(2) negligence; and

(3) breach of clauses 5(c), 5(d) and 17(c) of the deed of mutual covenants in respect of Woodgreen Estate (the “DMC”), whereby the Defendant was (i) to keep his Property and the Roof in good repair and condition; and (ii) not to cause nuisance, annoyance, inconvenience or damage to other owners or occupiers.

B2. The Defendant’s Case

13.  The Defendant does not dispute the fact that there was water leakage in the Plaintiffs’ Property back in late July 2012. However, he disputes liability and/or responsibility.

14.  The Defendant stresses that Typhoon Vicente had exceptional devastating effect. In this connection, the Defendant avers that:-

(1) During the period from 2006[2] to 2012, there were no less than 10 occasions where the Hong Kong Observatory hoisted No 8 typhoon signal. In each of these occasions, there was no water leakage, and the windows of the Defendant’s Property were not damaged by the typhoons and/or rainstorms.

(2) Typhoon Vicente was so exceptionally strong that the Hong Kong Observatory described the same as “rare among the tropical cyclones that had necessitated the issuance of the No 10 Signal since 1946”.

15.  Further, relying on clauses 4(b), 4(j)(V) and 4(p) of the DMC, the Defendant contends that the drainage system on the Roof was a common part of Woodgreen Estate, and as such the manager of Woodgreen Estate was the one who had the responsibility to maintain and repair the drainage system.

16.  Without prejudice to the aforesaid contentions, it is the Defendant’s case that:-

(1) The leaves of (i) a white jade orchid tree in the garden of the Plaintiffs’ Property; and (ii) two trees that were in the common area of Woodgreen Estate often fell onto the Roof. Some of these fallen leaves might block or clog the two drain holes that were connected to drainpipes that ran along the external walls of Block B2.

(2) Although the Defendant and Mrs Pao moved out from the Defendant’s Property in 2006, their maid (namely Ms Wongsuwan Bang-On (“Ms Wongsuwan”)), returned to the Defendant’s Property once a week. Whilst she collected mail, she removed the fallen leaves on the Roof.

(3) Whenever a typhoon was about to hit Hong Kong, Mrs Pao would instruct Ms Wongsuwan to attend the Defendant’s Property in order to (i) check whether there were fallen leaves on the Roof; and (ii) remove the same (if any).

(4) In accordance with the usual practice, on 21, 22 and 23 July 2012, Ms Wongsuwan did, pursuant to Mrs Pao’s instructions, attend the Defendant’s Property. She removed the fallen leaves on the Roof. In particular, a few hours before 5:40 pm on 23 July 2012 (when the Hong Kong Observatory hoisted typhoon signal No 8), Ms Wongsuwan did attend the Defendant’s Property to (i) check whether the windows were closed and tightly fastened; and (ii) remove fallen leaves on the Roof.

(5) However, for safety reasons, Ms Wongsuwan could not attend the Defendant’s Property and the Roof in the evening on 23 July 2012 when typhoon signal No 8 was hoisted.

17.  In these premises, the Defendant contends that he acted reasonably and was not at fault.

18.  Whilst the Defendant denies that the water accumulated on the floor of his Property reached a height of 1 inch, he says that Mrs Pao sent their domestic helper(s) to sweep the floor and remove the carpets (which were wet). Further, air-conditioners and dehumidifiers were turned on in order to evaporate and dehumidify the dampness on the floor.

19.  Mrs Pao and Ms Wongsuwan respectively made a witness statement on the Defendant’s behalf. However, they did not testify in the present trial. The reason was that the daughter of the Defendant and Mrs Pao, namely Ms Connie Pao (who also had a very close relationship with Ms Wongsuwan), tragically and unexpectedly passed away on 11 October 2024 after she lost consciousness during a family trip[3]. This was about a month before the present trial commenced.

20.  I refuse to draw an adverse inference that had Mrs Pao and Ms Wongsuwa testified, unfavourable facts would have been exposed. The tragic death of Ms Connie Pao is documented and incontrovertible. I understand the hardship and grievance suffered by Mrs Pao and Ms Wongsuwan. I am not of the view that they evaded the present proceedings due to worries about exposing unfavourable facts (if any).

21.  However, inevitably, I am unable to place weight on the contents of Mrs Pao and Ms Wongsuwan’s witness statements as they did not testify in Court and were not cross-examined by the Plaintiffs’ legal representatives.

22.  Mr So (for the Defendant) indicated that despite the absence of viva voce testimony, the Defendant will rely on the pleas made by the Plaintiffs as well as the contemporaneous documents, such as the incident report dated 26 July 2012 (the “Incident Report”) prepared by Mr Lam Chi Keung (who worked for Woodgreen Estate’s manager as a property officer at the material times).

C. Relevant Legal Principles

C1. Burden of Proof

23.  It is well established there is no presumption that the source of the water leakage must come from the premises immediately above: see 張秀玲 訴 鄭禮莊 (CACV 268/1998, 9 April 1999) at para 21 (per Leong JA, as he then was).

24.  The onus is on the plaintiff to prove or establish that the leakage originated from the defendant’s property, and it is not for the defendant to identify the source of the leakage: see Hui Ling Ling v Sky Field Development Ltd (CACV 122/2012, 22 March 2023) at para 42 (per Kwan JA, as she then was).

C2. Nuisance

25.  The “essence of nuisance is a condition or activity which unduly interferes with the use and enjoyment of land”: Clerk & Lindsell on Torts (24^th Ed) at para 19-01.

26.  The learned authors of Clerk & Lindsell on Torts (24^th Ed) pointed out that (see para 19-05):-

“private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by: … (2) causing physical damage to his neighbour’s land/building and works upon it; or (3) unduly interfering with his neighbour’s comfortable/convenient enjoyment of his land.”

27.  The courts have repeatedly held that water leakage can constitute nuisance: see eg 張秀玲 訴 鄭禮莊 (supra) at para 26 (per Woo J (as he then was)).

28.  The liability for nuisance is not strict or absolute. If an owner or occupier nullifies the nuisance emanating from his land without undue delay after he became aware of it, he would not be liable. In Sedleigh-Denfield v O’Callagan & ors [1940] AC 880 at 904 to 905, Lord Wright stated:-

“…… The liability for a nuisance is not, at least in modern law, a strict or absolute liability. …… But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it. This rule seems to be in accordance with good common sense and convenience.”

(see also: Leakey & ors v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485, 517-518 (per Megaw LJ); Loke Yuen Jean Tak Alice v Wong Kit Ying & Ors [2019] HKCFI 1895 at para 55 (per Marlene Ng J))

29.  However, if the defendant has knowledge that the nuisance emanates from his land but fails to take reasonable steps to nullify or abate the same within a reasonable time, he will be liable. In Sedleigh-Denfield v O’Callagan & ors (supra) at pp 894-895, Viscount Maugham stated:-

“The statement that an occupier of land is liable for the continuance of a nuisance created by others, eg, by trespassers, if he continues or adopts it — which seems to be agreed — throws little light on the matter, unless the words “continues or adopts” are defined. In my opinion an occupier of land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so…”

(see also: Loke Yuen Jean Tak Alice v Wong Kit Ying & Ors (supra) at para 55; Yik Yuen Ling v Tso Wing Yan (DCCJ 813/2004, 18 October 2017) at paras 149-150 (per Deputy District Judge Simon Ho)

30.  Thus, a defendant who does not have actual or constructive knowledge that the water seepage emanated from his property is not liable. However, once the defendant has the requisite actual or constructive knowledge, he will be liable unless remedial action is taken without delay: see Leung Wai Kee & Anor v Tam Yuen Sheng (DCCJ 5716/2007, 10 July 2012) at para 43 (per Deputy District Judge Grace Chan); Tin Kin Ka Clara v Chan Koon Cheong & Anor (DCCJ 3139/2012, 11 May 2015) at paras 54 to 55 (per His Honour Judge Andrew Li).

C3. Negligence

31.  Depending on the circumstances, a property owner may owe a duty of care to his neighbours to maintain his property in proper repair and condition so as not to allow water seepage. In Yik Yuen Ling v Tso Wing Yan (supra) at paras 169-171[4], Deputy District Judge Simon Ho stated:-

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

170. I also hold that the kind of harm done to the ceiling of her neighbour’s property by water seeping down from the elevated floor surface of the Flat Roof is clearly foreseeable to the defendant as a result of her failure to take reasonable steps to make the elevated floor surface watertight. (see: Born Chief (supra), at p 191F-H; Lam Kit Yee v Lam Shuk Lam & Anor (DCCJ 3115 of 2011, 10 March 2017), per DDCJ Lawrence Ng, at para 88)

171. Thus, I also hold the defendant liable to the plaintiff under negligence.”

32.  In Chu Cheung Cheung and Tsang Yee Ping Ellia Angela v the Incorporated Owners of Provident Centre No 21-53 Wharf Road, North Point Hong Kong & Ors [2024] HKDC 1899 at paras 67-69 and 189(2), I, referring to Leung Tsang Hung and Lee Wai Yu v The Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480 at para 25, pointed out that the law on negligence and the law on nuisance coincide in the sense that where an owner knows or ought to know that the conduct or omission relating to his land will cause harm to his neighbor, he is under a duty to avoid and/or abate such harm.

C4. Duties under the DMC

33.  In the context of building management, the authorities suggest that while incorporated owners and managers have duties to maintain common parts of buildings under section 18(1) of the Building Management Ordinance (Cap 344) and deeds of mutual covenants, such duties are not absolute and they are only required to do what are reasonable and unnecessary in the circumstances: Lau Chun Wing Rod v The Incorporated Owners of Po On Building (CACV 20/2007, 1 November 2007) at paras 12 to 13 (per Rogers VP); and Lo Yuk Chu v Hang Yick Properties Management Ltd [1996] 4 HKC 278 at 281-282E (at paras 11 to 11) (per Power ACJ).

34.  In Lo Yuk Chu (supra) at paras 7 to 11, Power ACJ expressly rejected the contention that the deed of mutual covenants imposed “absolute or strict duties” on the manager. His Lordship held the mere fact that the provisions in the deed of mutual covenants were not qualified by expressions such as “taking reasonable steps” did not support the conclusion that the obligations thereunder were absolute or strict.

35.  In my view, the Defendant’s duties to maintain his Property (including the Roof) in good condition and repair under the DMC could not be absolute. Unless the provisions of the DMC provide otherwise[5] (which was not the case), the Defendant was only required to do what were reasonable in the circumstances. In the present case, none of the provisions in the DMC remotely suggested that the Defendant’s duties were absolute or strict. It would be surprising if the individual owners have an absolute duty to maintain his property, but incorporated owners and managers are only required to do what are reasonable in the circumstances. This dichotomy does not make sense.

D. Deliberation

D1. The Extent of Water Leakage in the Plaintiffs’ Property

36.  The water leakage in the Plaintiffs’ Property is evidenced by the photos and videos adduced by the Plaintiffs and the letters issued by the Food and Environmental Hygiene Department (“FEHD”). Such contemporaneous evidence is simply incontrovertible.

37.  I also accept the opinion expressed by the parties’ experts, namely Mr Andrew Kung (who is engaged by the Plaintiffs) and Ms Lau Shan La (who is engaged by the Defendant):-

(1) Mr Kung relies on the images in respect of the infrared scans conducted by ThermalTech Consultancy Co Ltd in the evening on 26 July 2012. It can be seen that the temperature in the locations that were affected by the water leakage was much lower than the temperature in the locations that were not affected. As explained by Mr Kung, this showed that there was water in the locations with low temperature. I accept Mr Kung’s opinion.

(2) Ms Lau, who inspected the Plaintiffs’ Property on 8 May 2023, fairly pointed out that there were flaky plasters, cracks and water stain on the walls and ceilings in multiple locations, and these were signs that the Plaintiffs’ Property was previously affected by water leakage. I accept Ms Lau’s opinion.

38.  I find that:-

(1) There was severe water leakage in the Plaintiffs’ Property on 24 July 2012.

(2) During the period between the evening on 23 July 2012 and the early hours on 24 July 2012, a substantial amount of water entered the slap between the floor of the Defendant’s Property and the ceiling of the Plaintiffs’ Property. As a result, there was continuous water seepage in the next few months.

(3) The locations that were affected by the water leakage included the living room on the 1^st floor, the living room on the ground floor, the cloakroom and the 3 bedrooms on the 1^st floor.

D2. The Causes of the Water Leakage

39.  On the evidence before the Court, the plausible causes of the water leakage were as follows.

Drain Holes on the Roof were Blocked or Clogged by Fallen Leaves

40.  When the 2^nd Plaintiff testified, he pointed out that as of July 2012, the two trees that were planted in the common area adjacent to Block B2 were tall enough to reach the Roof. The 2^nd Plaintiff’s evidence in this regard is not disputed.

41.  In the premises, it is common ground that the drain holes on the Roof that were connected to the drainpipes of Block B2 were blocked by fallen leaves. Thus, the rainwater accumulated on the Roof overflowed and entered the Defendant’s Property along the staircase of Block B2. Eventually, the rainwater leaked into the Plaintiffs’ Property from the Defendant’s Property.

42.  In this connection, I accept Mr Andrew Kung’s opinion. It is unlikely there was waterproofing membrane underneath the floor on the Defendant’s Property[6] (except the areas in the kitchen and the bathroom). Thus, when a substantial amount of water accumulated on the floor of the Defendant’s Property, the same would seep into the Plaintiffs’ Property.

Windows in the Defendant’s Property were Broken and/or Damaged

43.  The Plaintiffs suggest that the rainwater entered the Defendant’s Property through (i) a window that was broken (“Window A”)[7]; and (ii) a window that could not be closed tightly (“Window B”)[8].

44.  Insofar as Window A is concerned:-

(1) As evidenced by a photo taken on 24 July 2024, Window A was broken. I accept that some rainwater must have entered the Defendant’s Property via Window A.

(2) Nonetheless, according to the floor plan annexed to Mr Andrew Kung’s expert report[9], Window A was in a location that was immediately above Apartment B21, not the Plaintiffs’ Property. Indeed, Window A in a room that was far away from the area that was immediately above the Plaintiffs’ Property.

(3) In the absence of any evidence and scientific analysis, it is impossible to ascertain the amount of rainwater (if any) that entered via Window A and flowed to the side that was immediately above the Plaintiffs’ Property.

(4) In this connection, it is Mr Lam’s evidence that there was no water accumulating on the side of the Defendant’s Property that was immediately above Apartment B23[10]. The implication was that the rainwater that entered the Defendant’s Property via Window A was limited, and the same could not have flowed to the side that was immediately above the Plaintiffs’ Property.

(5) Anyhow, having said that Window A was in a room that was far away from the area immediately above the Plaintiffs’ Property, I am not of the view that Window A had a substantial or meaningful impact on the water leakage in the Plaintiffs’ Property.

45.  As regards Window B:-

(1) The location thereof was not shown or evidenced by any floor plan. However, Mr Lam Chi Keung (ie a property officer working for Woodgreen Estate’s manager at the material times) said that Window B was on the side that was immediately above the Plaintiffs’ Property. This suggestion is consistent with his Incident Report dated 26 July 2012.

(2) In his oral evidence, Mr Lam also said that Window B was damaged. In particular, Mr Lam said that Window B could not be closed tightly as the lock did not function properly.

(3) For the following reasons, I have reservation about Mr Lam’s evidence regarding Window B, and I am not inclined to accept the same:-

(a) Mr Lam was the person who drafted the Incident Report. In the Incident Report, Mr Lam clearly stated that the windows in the Defendants’ Property were closed, and some of them were tied up with ropes/strains. Contrary to Mr Lam’s oral evidence, the Incident Report did not suggest that the windows in the Defendant’s Property malfunctioned and/or were damaged.

(b) Likewise, in his witness statement, Mr Lam did not suggest that any of the windows in the Defendant’s Property malfunctioned and/or was damaged.

(c) Further, given the lapse of time (ie 12 years), I am doubtful as to whether Mr Lam could recall the details regarding the condition of the windows in the Defendant’s Property.

(4) In any event, even if Window B could not be closed tightly as alleged, the photos taken on 24 July 2012 show that the gaps between the body of the window and the window frame were extremely narrow.

(5) In the premises, despite the heavy rainfall in the evening on 23 July 2012 and the early hours on 24 July 2012, only a limited amount of rainwater could enter the Defendant’s Property via these narrow gaps. I am not of the view that Window B had a substantial or meaningful impact on the water leakage in the Plaintiffs’ Property.

External Wall of Block B2

46.  There was a heated debate as to whether the external wall of Block B2 was also a cause of the water leakage in the Plaintiffs’ Property.

47.  FEHD engaged an independent firm, namely Paul Wong Consultant Engineering Ltd (the “Independent Consultant”), to carry out an investigation in respect of the water leakage in the Plaintiffs’ Property. On 22 September 2012, 15 December 2012 and 5 January 2013[11], the Independent Consultant measured and recorded the moisture level in various locations within the Plaintiffs’ Property. Whilst 22 September 2012 was a rainy day, 15 December 2012 and 5 January 2013 were rainy days.

48.  The Independent Consultant opined that the external walls of Block B2 was not a cause of the water leakage. However, the Independent Consultant’s report did not explain the basis of such opinion.

49.  Ms Lau has examined the data obtained by the Independent Consultant. She observes that the moisture level on 22 September 2012 was significantly higher than the moisture level on 15 December 2012 and 5 January 2013, and a plausible explanation was that the rainwater penetrated into the damaged part of waterproofing membrane in the external wall of Block B2. On this basis, Ms Lau opines it is impossible to rule out the possibility that one of the causes of the water seepage was the external wall of Block B2. Further, Ms Lau points out that there was an error in the report prepared by the Independent Consultant. It was stated that 22 September 2012 was a sunny day when it was indeed a rainy day. This mistake raised concerns that the Independent Consultant might have incorrectly assumed that high moisture level was recorded on a sunny day.

50.  In attempt to challenge Ms Lau’s opinion, Mr Byron Chiu (for the Defendants) pointed out as evidenced by the contemporaneous correspondence between the Defendant and FEHD, some workers were carrying out renovation works in the Defendants’ Property as of 15 December 2012. In response, Ms Lau fairly accepted that if the renovation works in question affected the waterproofing system in the Defendants’ Property, the same would affect the data collected on 15 December 2012 and 5 January 2013. However, there is no evidence showing what the renovation works in mid-December 2012 were about.

51.  In the premises, I agree with Ms Lau it is impossible to rule out the possibility that the external walls of Block B2 were a cause of water seepage.

52.  Nonetheless, there is insufficient evidence for the Court to draw a conclusion. As Ms Lau fairly pointed out, without conducting tests and analyzing the data arising from these tests, neither herself nor Mr Kung could express an affirmative view as to whether the external wall was a source of the water leakage in the Plaintiffs’ Property.

Sum Up

53.  To sum up, based on the available evidence, I find that:-

(1) The main cause of the serious water leakage in the Plaintiffs’ Property on 24 July 2012 (and the few months thereafter[12]) was that fallen leaves blocked or clogged the drain holes on the Roof.

(2) Window A did not have a substantial or meaningful impact of the water leakage in the Plaintiffs’ Property. It cannot be shown that the rainwater that entered the Defendant’s Property via Window A flowed to the side that was above the Plaintiffs’ Property.

(3) Window B did not have a substantial or meaningful impact of the water leakage in the Plaintiffs’ Property. Only a limited amount of rainwater could have entered the Defendant’s Property via Window B.

(4) It is impossible to rule out the possibility that the waterproofing membrane in the external wall of Block B2 was defective. However, I am unable to conclude whether this was a cause of the water seepage in the Plaintiffs’ Property.

D3. Was the Defendant unreasonable and/or in breach of duty?

The Nature of the Defendant’s Duties

54.  The Plaintiffs’ claims against Defendant are premised on (i) nuisance; (ii) negligence; and (iii) breach of clauses 5(c), 5(d) and 17(c) of the DMC: see paragraph 12 above.

55.  As pointed out in Sections C2 and C3 above, the law of nuisance and the law of negligence do not impose absolute or strict duties on the Defendant. He was only required to take reasonable steps and exercise reasonable precautions to avoid causing nuisance and/or harm to the Plaintiffs and to abate the nuisance and/or the harm once he had knowledge in respect thereof.

56.  Insofar as the duties under the DMC are concerned:-

(1) Mr Chiu accepts that the following duties were not absolute or strict, and thus the Defendant was only required to do what was reasonable in the circumstances:-

(a) the duty to maintain the Roof in good repair and condition under clause 5(c);

(b) the duty not to permit the Roof to be used in a manner that caused nuisance to other owners or occupiers under clause 5(d); and

(c) the duty not to permit nuisance to other occupiers under clause 17(c).

(2) However, Mr Chiu contends that the following duties under the DMC were strict and absolute, and he emphasizes that these duties have nothing to do with the law on nuisance at common law (which does not impose strict or absolute duties):-

(a) the duty not to permit the Roof to be used in a manner that caused annoyance to other owners or occupiers under clause 5(d); and

(b) the duty not to permit annoyance, damage or inconvenience to other occupiers under clause 17(c).

(3) On the facts of the present case, I am not of the view that the duties mentioned in sub-paragraph (2) above were applicable at all. The Defendant did not “permit” the Roof to be used in a manner that caused any annoyance, damage and/or inconvenience; nor did he “permit” any annoyance, damage or inconvenience at all. During the period between the evening on 23 July 2012 and the early hours on 24 July 2012, Typhoon Vincente blew off a substantial amount of tree leaves. These fallen leaves fell onto the Roof and eventually blocked and/or clogged the drain holes. The Defendant was simply on the receiving end. He did not do anything that “permitted” Typhoon Vincente to blow off tree leaves; nor did he do anything “permitting” the fallen leaves to (i) fall on the Roof; and/or (ii) block and/or clog the drain holes.

(4) In any event, even if the duties mentioned in sub-paragraph (2) above were applicable (which is not the case), it is plain to me that the dichotomy suggested by Mr Chiu did not exist. Not an iota of the provisions in the DMC suggest that the drafter of the DMC intended to create such dichotomy, which is plainly artificial. Furthermore, for the reasons set out in section C4 (see paragraphs 33 to 35) above, I am of the view that the relevant provisions of the DMC only required the Defendant to do what was reasonable in the circumstances in order to avoid harmful consequences (ie annoyance, damage or inconvenience) to other owners and/or occupiers.

57.  The Defendant may only be liable to Plaintiffs if it is shown that (i) he could have foreseen that the Defendant’s Property would cause water leakage in the Plaintiffs’ Property during typhoons or heavy rainstorms; and (ii) he should have reasonably taken steps and/or reasonably exercised precautions to avoid the water leakage in the Plaintiffs’ Property but failed to do so; and/or (iii) he failed to take reasonable steps to abate the water leakage in the Plaintiffs’ Property after he had the requisite knowledge in respect thereof.

58.  In my view, the Defendant must have foreseen that if his Property was in a defective state or dire condition, there was a risk that water seepage might occur in the Plaintiffs’ Property in the event of typhoon or heavy rainstorm. After all, the Defendant ought to know that he was under a duty (under the DMC and the common law) to maintain his Property in proper and satisfactory condition so as not to cause nuisance, annoyance, damage or inconvenience to his neighbors.

59.  In the premises, the real issues to determine are as follows:-

(1) Did the Defendant fail to take reasonable steps or exercise reasonable precautions to avoid water seepage in the Plaintiffs’ Property?

(2) Did the Defendant take reasonable steps to abate the water seepage in the Plaintiffs’ Property once he had knowledge in respect thereof?

Did the Defendant fail to take Reasonable Steps or Precautions to avoid Water Seepage in the Plaintiffs’ Property?

60.  I will first deal with the Plaintiffs’ complaint in respect of the drainage system.

61.  It is Plaintiffs’ pleaded case that the Defendant failed to (i) maintain and/or inspect the drainage system on the Roof regularly; and (ii) exercise reasonable care to prevent or minimize the known risk of damage to the Plaintiffs and/or their Property[13].

62.  As pointed out in paragraph 53 above, I find that the main cause of the water leakage was that some fallen leaves blocked or clogged the two drain holes on the Roof.

63.  In this connection, Mr Chiu (for the Plaintiffs) stresses that the drain holes were located on the Roof and the Roof was part of the Defendant’s Property. Mr Chiu then goes on to contend that the Defendant must be under a duty to ensure that the drain holes were not blocked by any object. Mr Chui also emphasizes it is the Defendant’s pleaded case[14] that his servant cleared the fallen leaves and waste on the Roof before the passage of Typhoon Vincente, and this shows the Defendant accepted that he had a duty to maintain and/or manage the drain holes.

64.  I am not persuaded by Mr Chiu’s submissions. For the following reasons, I am of the view that the Defendant did not have the responsibility or duty to manage and/or maintain the drainage system in Block B2 (of which the drain holes were a crucial part):-

(1) The following provisions of the DMC are pertinent:-

(a) Clause 4(p) provided that “drains, water-courses… pipes…” are common parts or common facilities and that other apparatus and equipment used or installed for common benefit also constituted common parts or common facilities.

(b) Clauses 4(b) and 4(j)(V) provided that the manager had the duties and authority to manage, repair and/or maintain the common areas and common facilities.

(c) Clause 3(f) provided that the manager had the right and privilege to enter the Roof for the purpose of, inter alios, “rebuilding… repairing… maintaining, cleansing… any drains, water-course… pipes…” upon giving reasonable notice.

(2) The drainpipes as well as the drain holes must be common areas and/or common facilities of Woodgreen Estate. Thus, upon giving reasonable notice, the manager could enter the Roof for the purpose of, inter alios, rebuilding, repairing and/or maintaining the drainpipes that were underneath the floor as well as the drain holes that were on the surface of the floor.

(3) The drainpipes and the drain holes were integral parts of the same drainage system. They were installed for common benefit. Indeed, the drain holes were the entrances or openings of the drainage system, and they were connected to the drainpipes. If the drain holes did not exist, the drainage system could not function, and the drainpipes would be useless.

(4) In the premises, it is artificial to suggest that whilst the manager was responsible for maintaining the internal part of the drainage system (ie the drainpipes) that was underneath the floor on the Roof, the Defendant was responsible for maintaining the external part of the drainage system (ie the drain holes) that appeared on the surface of the Roof. This dichotomy does not make sense to me.

(5) If the Defendant used the Roof in an unreasonable manner that blocked or clogged the drain holes, his conduct might constitute nuisance and/or breach of clauses 5(d) and 17(c) of the DMC. However, it does not mean that the Defendant had an affirmative duty to ensure that a common facility of Woodgreen Estate functioned properly. This was the duty was of the manager.

(6) In other words, whilst the Defendant should not do anything that obstructed a common facility from functioning (which might constitute nuisance or breach of the DMC), he did not have an affirmative duty to ensure that a common facility functioned properly.

(7) I do not lose sight it is the Defendant’s pleaded case that his servant (ie Ms Wongsuwan) removed the fallen leaves on the Roof before the passage of Typhoon Vincente. However, this is neither here nor there:-

(a) First of all, even assuming that the Defendant’s pleaded case is to be accepted, the conduct on the part of the Defendant and/or Mrs Pao could be ascribed to the fact that they wished to avoid the risk of water leakage in the Defendant’s Property[15]. This could be regarded as an act of self-help, and the stance and/or conduct on the part of the Defendant and/or Mrs Pao were, to say the least, equivocal.

(b) In any event, for preset purposes, the Defendant and/or Mrs Pao’s subjective understanding of the duties under the DMC was irrelevant. The issue before the Court is whether the owner of the Defendant’s Property had a duty to maintain the drain holes, such that the drainage system in Block B2 could function properly. This is a legal question, and the task of the Court is to ascertain the objective intention evinced by the provisions of the DMC.

65.  Even if the Defendant were under an affirmative duty to maintain the drain holes and to ensure that the drainage system of Block B2 functioned properly, for the following reasons, I am not of the view that there was any breach of duty and/or unreasonable conduct on his part.

66.  Having said that the duties and/or obligations on the part of the Defendant were not absolute or strict (see paragraphs 33 to 35 and 54 to 59 above), the Defendant could not be liable to the Plaintiffs merely because there were fallen leaves on the Roof. Even if the Defendant had a duty to remove the fallen leaves, the Court must be satisfied that the Defendant failed to take reasonable steps and/or measures to remove the fallen leaves and/or to exercise adequate precautions.

67.  According to the 2^nd Plaintiff[16], the typhoon signals hoisted by the Hong Kong Observation on 23 and 24 July 2012 were as follows:-

Date and Time	Signals/Warnings
3:40 pm on 21 July 2012	Standby signal No 1
5:20 am on 23 July 2012	Strong wind signal No 3
5:40 pm on 23 July 2012	No 8 gale or storm signal
11:20 pm on 23 July 2012	No 9 increasing gale or storm signal
12:45 am on 24 July 2012	No 10 hurricane signal
3:35 am on 24 July 2012	No 8 gale or storm signal
10:10 am on 24 July 2012	Strong wind signal No 3
10:10 am on 24 July 2012	Standby signal No 1
11:15 pm on 24 July 2012	All signals were cancelled

68.  Assuming that the Defendant had a duty to maintain and manage the drain holes, the Plaintiffs’ case may only take off the ground if the Defendant knew that there was an excessive amount of fallen leaves on the Roof that might block and/or clog the drain holes, but he unreasonably failed and/or refused to take steps to remove the same.

69.  There is not a shred of evidence showing that an excessive amount of fallen leaves accumulated on the Roof before the passage of Typhoon Vincente. Neither the 2^nd Plaintiff nor Mr Lam[17] suggested that they inspected or visited the Roof before or during the passage of Typhoon Vincente.

70.  The Plaintiffs say that Mrs Pao made an admission, which was recorded in the Incident Report prepared by Mrs Lam. According to the Incident Report, the following events took place in the morning on 24 July 2012:-

(1) At 9:15 am[18], Mr Lam received the 3^rd Plaintiff’s complaint regarding the water leakage in the Plaintiffs’ Property.

(2) At 10:35 am[19], Mr Lam attended the Plaintiffs’ Property. He saw water leakage in multiple locations and took photos in respect thereof.

(3) At 11:00 am, Mrs Pao made a telephone call to Mr Lam. Mrs Pao told Mr Lam that some fallen leaves blocked or clogged the drain holes on the Roof, and this caused water leakage in the units below. Mrs Pao also said that her domestic helper(s) had attended the Roof in order to remove the fallen leaves. Mrs Pao also said that Mr Lam could attend the Roof to carry out an inspection.

(4) At 11:03 am and 11:06 am, Mr Lam, the 2^nd Plaintiff and a Mr Kwan (an independent contractor who was often involved in the works in Woodgreen Estate) attended the Defendant’s’ Property[20] in the presence of the domestic helper(s) employed by the Defendant and/or Mrs Pao. Mr Lam saw that there was rainwater accumulated on the side that was immediately above the Plaintiffs’ Property. In some locations, the height of the water reached almost 1-inch. However, the windows were closed, and some of these windows were tighten up with ropes/strains.

(5) At 11:10 am, Mr Lam, the 2^nd Plaintiff and Mr Kwan attended the Roof. There was no rainwater accumulating and there was no blockage.

(6) At 11:15 am, Mrs Pao made a telephone to Mr Lam, and told him that her domestic helper(s) had already dealt with the blockage.

71.  I am of the view that the Plaintiffs’ reliance on the alleged admission on the part of Mrs Pao is misplaced. None of the entries in the Incident Report suggested Mrs Pao said that there were fallen leaves on Roof before Typhoon Vincente arrived and/or begun to intensify. Mr Lam (who had a conversation with Mrs Pao at around 11:00 am on 24 July 2012) did not suggest that this was the case.

72.  The entries in the Incident Report only show that as of the time when Mr Lam and Mrs Pao had a telephone conversation at 11:00 am on 24 July 2012, Mrs Pao had already known that the drain holes on the Roof were blocked or clogged by fallen leaves, and she believed that this was the reason why there was water leakage in the units below the Roof. Mrs Pao did not say that the fallen leaves had already blocked or clogged the drain holes on the Roof before Typhoon Vincente arrived and/or started intensifying, but she and/or the Defendant did not deal with them. There is not a shred of evidence showing that this was the case.

73.  Bearing in mind that Typhoon Vincente was exceptionally strong and powerful, it was most likely that a substantial amount of fallen leaves were blown off during the period between the evening on 23 July 2012 and the morning on 24 July 2012 (when typhoon signal no 8, storm signal no 9 and hurricane signal no 10 were hoisted). Naturally, some of the fallen leaves would fall onto the Roof. When the rainwater flushed these fallen leaves to the drain holes, the same were blocked and/or clogged.

74.  In light of the danger involved, the Defendant, Mrs Pao and/or their domestic helpers could not have (and should not have) attended the Roof to clear the fallen leaves during the passage of Typhoon Vincente. I agree with the submission of Mr So (for the Defendant) that the Defendant could not have done anything in the circumstances.

75.  In this connection, Mr Chiu suggests that the Defendant should have installed a device called “balloon grating” on the drain holes. However, whilst there is no evidence showing that this device would have been effective in the circumstances, it is obvious that Mr Chui’s suggestion is made with benefit of hindsight. In any event, I accept Ms Lau’s opinion that it is uncommon to apply balloon grating on roofs of buildings, and this kind of device could easily cause hygiene problems.

76.  In his oral opening submissions, Mr Chiu also suggested that the Defendant should have applied waterproofing membrane on the floor of the Defendant’s Property[21]. In his written closing submissions, Mr Chiu further submits that in light of the previous incidents of water leakage in the Plaintiffs’ Property, the Defendant knew and should have known it was necessary for him to take adequate steps to protect the Plaintiffs’ Property. Relying on So Kwok Yan Bernard v Lau Wing Chung (DCCJ 2343/2012, 20 March 2015) at para 115[22] (per His Honour Judge Andrew Li), Mr Chiu also suggests that so long as it is shown that the Plaintiffs suffered discomfort or inconvenience that originated from the Defendant’s Property, a cause of action based on nuisance was constituted. Thus, the onus shifted to the Defendant to prove that he had already taken all reasonable steps to avoid or abate the nuisance. Since the Defendant is unable to adduce evidence from any witness, he fails to discharge the onus required of him.

77.  For the following reasons, I reject Mr Chiu’s submissions:-

(1) Insofar as the facts are concerned:-

(a) Mr Chiu relies on the 2^nd Plaintiff’s evidence that there were numerous incidents of water seepage in the past. In this connection, the 2^nd Plaintiff said that it was necessary to install stainless steel water catches on the ceiling in the study room and bed rooms in order to alleviate the problem.

(b) However, the incidents in the past were irrelevant to the water leakage on 24 July 2024 (which was ascribed to the strength of Typhoon Vincente, the heavy rainfalls and the fallen leaves that blocked the drain holes on the Roof). The causes of the water seepage and the magnitude of the problems were entirely different.

(c) The 2^nd Plaintiff has not provided any meaningful details as to the water leakage in the past, and the cause(s) of these water leakage incidents was/were unknown. There is no evidence showing that (i) the previous incidents concerned a scenario where rainwater entered the Plaintiffs’ Property via the Defendant’s Property during or after typhoons or rainstorms; or (ii) the previous incidents concerned blockage of the drain holes on the Roof.

(d) In the premises, the incidents in the past shed no light on the matters that gave rise to the present proceedings. It cannot be said that due to the previous incidents, the Defendant should have foreseen and/or contemplated that water seepage might occur in the Plaintiffs’ Property on 24 July 2024.

(e) The same analysis applies to the draft minutes (the “Draft Minutes”) in respect of the meeting of Woodgreen Estate’s management committee on 21 April 2012. Whilst the Draft Minutes purportedly recorded that the 2^nd Plaintiff complained about water seepage, the same only contained some bare assertions that the Defendant was responsible for maintaining the Roof and that the Roof probably contributed to water leakage in the units below. The Draft Minutes did not mention anything about the drain holes on the Roof or the problem relating to the fallen leaves. More fundamentally, there is no evidence showing that the Draft Minutes were provided to the Defendant before 24 July 2012. There is simply no basis to suggest that the Defendant should have foreseen the water leakage on 24 July 2012 by reason of the Draft Minutes. In any event, for the reasons elaborated below, I have serious doubt about the contents of this document, and I am not of the view that it is reliable.

(f) For completeness, I also reject the suggestion that the Defendant should have applied waterproofing membrane on the floor of the Defendant’s Property[23]. This suggestion is extreme and grossly disproportionate. As pointed out by Mr Andrew Kung, it is uncommon to apply waterproofing membrane on the floor of a residential property (except the areas in the kitchen and bathroom).

(2) Insofar as the law is concerned:-

(a) It is incorrect to assume that a cause of action based on nuisance is constituted once the plaintiff suffers some discomfort or inconvenience that originates from the defendant’s land.

(b) As pointed out in Section C2 above, the liability for nuisance is not strict or absolute, and a land owner or occupier is only liable if he fails or refuses to take reasonable remedial steps within a reasonable time to nullify or abate the nuisance emanating from his land after he has the requisite actual or constructive knowledge: Sedleigh-Denfield v O’Callagan & ors (supra) at pp 894 to 895 (per Lord Wright) and 904 to 905 (per Viscount Maugham); Loke Yuen Jean Tak Alice v Wong Kit Ying & Ors (supra) at para 55 (per Marlene Ng J); Tin Kin Ka Clara v Chan Koon Cheong & Anor (supar) at paras 54 to 55 (per His Honour Judge Andrew Li); Yik Yuen Ling v Tso Wing Yan (supra) at paras 149-150 (per Deputy District Judge Simon Ho); Leung Wai Kee & Anor v Tam Yuen Sheng (supra) at para 43 (per Deputy District Judge Grace Chan, as she then was).

(c) In my view, So Kwok Yan Bernard v Lau Wing Chung (supra) does not support Mr Chiu’s contention at all. His Honour Judge Andrew Li did not suggest that whenever a plaintiff suffers some discomfort or inconvenience emanating from the defendant’s land, a cause of action based on nuisance is ipso facto constituted and thus the burden shifts to the defendant to prove that he had taken reasonable steps to avoid the nuisance.

(d) In So Kwok Yan Bernard, the defendant persistently generated excessive noise (see paragraphs 33 to 39 and 88 to 99 of the judgment). Against this background, His Honour Judge Andrew Li Judge pointed out that if the defendant sought to allege that the use of his property was within the scope of reasonableness, the burden was on him to prove this by way of adducing the necessary evidence (see paragraphs 113 to 114 of the judgment). Since the plaintiff did not know and could not have known the activities in defendant’s property, the learned judge’s ruling made ample sense. This was based on the trite legal principle that he who alleges must prove the allegation with evidence.

(e) In the premises, I cannot see how So Kwok Yan Bernard (supra) might avail the Plaintiffs. The learned Judge’s discussion was concerned with whether the defendant’s use of his property was reasonable, not whether the defendant took reasonable steps to avoid and/or abate the nuisance in question (which is a constituting element of the cause of action).

78.  Mr Chiu also pointed out that as stated in Mrs Pao and Ms Wongsuwan’s witness statements, Ms Wongsuwan would attend the Roof to clear fallen leaves whenever typhoons were about to arrive. Relying on this assertion, Mr Chiu submits that the Defendant knew and/or should have known the risks that there would be water seepage in the Plaintiffs’ Property, and the measures that he adopted were inadequate.

79.  Despite Mr Chiu’s effort, I am unable to accept his submissions:-

(1) It might be true that Mrs Pao would instruct Ms Wongsuwan to clear the fallen leaves on the Roof whenever a typhoon was about to arrive. However, it does not follow the Defendant knew and/or ought to know that these fallen leaves might cause water seepage in the Plaintiffs’ Property.

(2) Since the Roof was above the Defendant’s Property (ie the internal area on the 2^nd floor of Block B2), it appears to me that Mrs Pao’s concern was to avoid water leakage in the Defendant’s Property. This was self-help. I am not of the view that the conduct of Mrs Pao and/or Ms Wongsuwan was necessarily referable to the Plaintiffs’ Property.

(3) Indeed, there is no evidence showing that there was a previous occasion where:-

(a) a huge amount of rainwater entered the Plaintiffs’ Property via the Defendant’s Property during or after a typhoon or a rainstorm;

(b) the drain holes on the Roof were blocked or clogged, as a result of which there was water seepage in the Plaintiffs’ Property; or

(c) there was serious water leakage in the Defendant’s Property during or after a typhoon or a rainstorm, such that the Defendant might appreciate the risk that the water accumulated in his Property might leak into the Plaintiffs’ Property.

(4) In the premises, I am not persuaded by Mr Chiu’s submission that the Defendant should have foreseen the water seepage that gave rise to the present action. This suggestion is not borne out by the evidence before the Court.

80.  For all the above reasons, I find that:-

(1) The Defendant was not under any duty to maintain the drain holes on the Roof and/or to ensure that the drainage system in Block B2 functioned properly.

(2) Even if the Defendant were under such duty, there was no breach of duty, unreasonable conduct and/or negligence on his part.

81.  I now deal with the Plaintiffs’ complaint in respect of the windows in the Defendant’s Property.

82.  As pointed out in paragraph 53 above, I find that:-

(1) Whilst some rainwater must have entered the Defendant’s Property via Window A, it cannot be shown that such rainwater flowed to the side that was immediately above the Plaintiffs’ Property.

(2) Only a limited amount of rainwater could have entered the Defendant’s Property via Window B.

83.  In the premises, I do not accept the suggestion that Window A and/or Window B were a substantial cause of the water seepage in Plaintiffs’ Property.

84.  In any event, the evidence does not show that the windows of Defendant’s Property were damaged and/or left open before the Typhoon Vincente arrived and that there was any unreasonable conduct on the part of the Defendant regarding the windows.

85.  In light of the exceptional strength and power of Typhoon Vincente, it was likely that Window A was broken by the strong winds during the period between the evening on 23 July 2012 and the morning on 24 July 2012[24]. If there were any damage to the lock of Window B as alleged (which created the alleged narrow gaps), it was also likely that the damage was caused by the strong wind during this period.

86.  Neither the 2^nd Plaintiff nor Mr Lam suggested that they paid attention to the condition of the windows in the Defendant’s Property before Typhoon Vincente arrived and/or intensified. They did not adduce any photos that show the condition of Windows A and B before 24 July 2012. There is simply no evidence before the Court at all.

87.  The Draft Minutes in respect of the meeting on 21 April 2012 does not support the Plaintiffs’ case that the windows in the Defendant’s Property were not properly maintained before the Typhoon Vincente arrived:-

(1) The Draft Minutes only purportedly recorded that the Defendants’ Property was unoccupied for approximately for 4 years, visibly deteriorating and had its windows left open.

(2) The Draft Minutes did not suggest that the windows in the Defendant’s Property were damaged, broken and/or could not be properly closed.

(3) The suggestion that the windows in the Defendant’s Property were left open does not avail the Plaintiffs’ case. There might be occasions where the Defendant’s domestic helper(s) opened some windows when she/they returned to the Defendants’ Property. However, it does not follow that the Defendant and/or his domestic helper(s) left the windows open before Typhoon Vincente arrived.

88.  In any event, it appears to me that the contents of the Draft Minutes are dubious and unreliable. There are more questions than answers. My observations are as follows:-

(1) According to the contents of Draft Minutes, the 2^nd Plaintiff did not attend the meeting on 21 April 2021. As such, it is uncertain as to how he could have made complaints during the meeting, though I cannot rule out the possibility that he made complaints to some individual members of the management committee before the meeting took place.

(2) The contents regarding the 2^nd Plaintiff’s complaint about the state of the Defendants’ Property were somehow coloured in red, and the implication is unknown.

(3) There is no evidence from the person who prepared the draft minutes, ie a Mr Peter Newall (who was the chairman of the management committee). There is also no evidence from any of the members who attended the meeting.

(4) As such, it is doubtful as to what was discussed during the meeting on 21 April 2012 and how the words that were coloured in red came about.

(5) As demonstrated by Mr So during cross-examination, the Draft Minutes had not been approved by all the members of Woodgreen Estate’s management committee, and the same had never been finalized.

(6) When Mr Lam testified, he said that he was responsible for preparing the minutes in respect of the meeting of Woodgreen Estate’s management committee, but the Draft Minutes was an exception[25].

(7) In my view, it was too much a coincidence that the 2^nd Plaintiffs’ complaint regarding the state of the Defendants’ Property was only reflected by the dubious red words in the Draft Minutes, but not the contents of other minutes prepared by Mr Lam at the material times[26].

89.  For all the above reasons, I find that even if Window A and/or Window B were a substantial contributing factor of the water leakage in the Plaintiffs’ Property (which was not the case), the evidence does not show that:-

(1) Window A and/or Window B were broken, damaged and/or could not be properly closed before Typhoon Vincente arrived and/or begun to intensify; and

(2) There was any unreasonable conduct, breach of duty and/or negligence on the part of the Defendant in relation to Windows A and Window B.

Did the Defendant take reasonable steps to abate the water seepage in the Plaintiffs’ Property once he had knowledge in respect thereof?

90.  As evidenced by the Incident Report:-

(1) At 9:15 am on 24 July 2012, the 3^rd Plaintiff’s complained about the water leakage in the Plaintiffs’ Property.

(2) At 11:00 am (ie around 2 hours after the 3^rd Plaintiff made a complaint), Mrs Pao informed Mr Lam that her domestic helper(s) had attended the Roof in order to remove the fallen leaves that blocked or clogged the drain holes.

(3) When Mr Lam, the 2^nd Plaintiff and Mr Kwan attended the Roof at 11:10 am, the blockage was clear and there was no rainwater accumulating on the Roof.

91.  The Incident Report also shows that at 17:45 pm on 24 July 2012, Mr Lam had a conversation with her supervisor, ie Ms Karen Ng. Mr Lam knew Mrs Pao informed Ms Ng that her domestic helper(s) had attended the Defendants’ Property to remove and/or deal with the rainwater that was accumulated[27].

92.  Although the Defendant and Mrs Pao did not live in Woodgreen Estate, the evidence shows that they did not abandon the Defendant’s Property. Apart from the contemporaneous records in the Incident Report, there is also a series of contemporaneous correspondence showing that the Defendant liaised with FEHD and the Buildings Department regarding the source of the water leakage and the progress of the investigation. Further, as mentioned, in December 2012, workers were engaged to carry out renovation works in the Defendant’s Property.

93.  I accept Mr So’s submissions it is inherently unlikely that the Defendant (and/or Mrs Pao) would do nothing about the fallen leaves that blocked or clogged drain holes on the Roof and the rainwater accumulated in the Defendant’s Property[28]. Anyhow, the assertion that the Defendant and/or Mrs Pao did not take steps to remove the fallen leave and/or rainwater is not consistent with the contemporaneous records in the Incident Report.

94.  In the premises, I find that:-

(1) The Defendant, through Mrs Pao and their domestic helper(s), did take steps to remove the fallen leaves that blocked drain holes on the Roof as well as the rainwater on the floor of the Defendants’ Property[29] on 24 July 2012.

(2) The domestic helper(s) started taking action to remove the fallen leaves in the morning on 24 July 2012 shortly after the 3^rd Plaintiff made a complaint, and in the afternoon on 24 July 2012, the domestic helper(s) removed the rainwater accumulated on the floor of the Defendants’ Property[30].

(3) The Defendant, through Mrs Pao and their domestic helper(s), did act promptly and reasonably in the circumstances.

95.  I do not lose sight of the fact that as recorded in the Incident Report, at 17:50 pm on 24 July 2012, the 3^rd Plaintiff complained to Mr Lam that the water leakage continued. As pointed out, the continuous water seepage was ascribed to the fact that the rainwater had entered the slap between the floor of the Defendant’s Property and the ceiling of the Plaintiffs’ Property (which took place during the heavy rainstorm between the evening on 23 July 2023 and the early hours on 24 July 2024). Unfortunately, once the rainwater entered the slap, the Defendant could not have proportionately and/or meaningfully done anything to alleviate the situation.

Sum Up

96.  For all the above reasons, I am unable to conclude that the Defendant is liable to the Plaintiffs for nuisance, negligence and/or breach of clauses 5(c), 5(d) and 17(c) of the DMC.

D4. Quantum

97.  Given the aforesaid findings and conclusion, the question of compensation does not arise. However, for completeness, I will briefly set out my views. Had I ruled in favour of the Plaintiffs on liability, I would have awarded damages in their favour as follows.

Reparation Expenses

98.  Both Mr Kung and Ms Lau have expressed opinion in regard to the expenses required for repairing the Plaintiffs’ Property. I prefer Mr Kung’s opinion, which is in line with the quotation provided by Mr Kwan back in 2012[31].

99.  As pointed out by Mr Chiu, the Plaintiffs’ Property is a luxurious apartment. As such, I must not ignore the aesthetic appearance. For instance, it is not realistic to suggest that only a few specific tiles that were damaged should be replaced. For the sake of consistency, it would be necessary to replace all the tiles in the areas that were affected by water seepage, even though some of the tiles (which were installed a long time ago) were not damaged.

100.  However, as Mr Kung fairly accepted during cross-examination, there was duplication in respect of the works under some of the items set out in his report.

101.  Having considered the items set out in the reports and joint report prepared by the parties’ expert, the relevant circumstances and the submissions from counsel, I am of the view that an award of HK$1,050,000 would be fair and appropriate.

Accommodation Expenses and Storage

102.  I am not of the view that it would necessary for the 2^nd and 3^rd Plaintiffs to move out from the Property when the reparation works are carried out. I am also not of the view that it would be necessary to remove the furniture in the Plaintiffs’ Property.

103.  The Plaintiffs’ Property is sizeable. There is no reason why the reparation works may not be carried out in a truncated manner or on a “zone-by-zone” basis. I accept that the 2^nd and 3^rd Plaintiffs will experience some inconvenience under this approach, and this will be taken into account when I assess the Plaintiffs’ claim for general damages in respect of discomfort and inconvenience.

Personal Belongings and Electrical Appliances

104.  It appears that the clothes and electrical appliances that were damaged by the water leakage had aged and might not be valuable. However, I accept that the 3^rd Plaintiff’s handbags were valuable. I also accept that the Chinese paintings (which could only be repaired by professionals) were valuable.

105.  On the available evidence, I am of the view that an award of HK$80,000 would be fair and appropriate.

General Damages for Loss of enjoyment, Inconvenience and Discomfort

106.  I take into account that:-

(1) The Plaintiffs’ Property is a luxurious apartment located in a prestigious area.

(2) Whilst the water leakage in the Plaintiffs’ Property was very serious on 24 July 2012, there was no longer water leakage as of 5 January 2013.

(3) The 2^nd and 3^rd Plaintiffs would experience inconvenience and discomfort when the Plaintiffs’ Property is repaired.

107.  I am of the view that an award of HK$50,000 would be fair and appropriate.

Sum Up

108.  In the premises, had the Plaintiffs succeeded on liability, I would have awarded damages of HK$1,180,000 in their favour:-

Reparation Expenses	HK$1,050,000
Personal Belongings and Electrical Appliances	HK$80,000
General Damages for Loss of enjoyment, Inconvenience and Discomfort	HK$50,000
Total:-	HK$1,180,000

E. Disposition and Order

109.  I have considerable sympathy for the 2^nd and 3^rd Plaintiffs. They had every reason to feel aggrieved by the matters that gave rise to the present proceedings. However, on the evidence before the Court, I am unable to find that the Defendant was at fault or that there was any breach of duty, wrongdoings and/or unreasonable conduct on his part.

110.  In the premises, I have no alternative but to dismiss the Plaintiffs’ claims against the Defendant in this action.

111.  Costs should follow the event.

112.  I make a costs order nisi that the Plaintiffs should pay the Defendant’s costs in the present action (including all costs previously reserved) to be taxed if not agreed (with certificate for counsel).

113.  I thank Mr Chiu and Mr Roger So as well as the parties’ experts (namely Ms Lau and Mr Kung) for the assistance rendered to me.