黃嘉謀 v. 油塘工業大廈第三座業主立案法團

DCCJ 4931/2021

[2026] HKDC 770

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4931 OF 2021

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DECISION

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Introduction

1.  Before me is a summons taken out by the 1^st Defendant (“the IO”)  for leave to appeal against my judgment handed down on 7 January 2026 (“the Judgment”)  [2026] HKDC 44.

2.  The draft Amended Notice of Appeal runs to 15 pages and advances a total of 13 grounds of appeal.

3.  I must consider whether any of these grounds has a reasonable prospect of success, or whether there is some other reason in the interests of justice why the appeal should be heard, pursuant to section 63A(2)  of the District Court Ordinance (Cap 336).

Ground 1

4.  Ground 1 complains that I wrongly permitted the Plaintiff to advance a case that the water seepage originated from both the Tank and the Roof, as found by the single joint expert (“the SJE”): see paragraphs 31 to 40 of the Judgment.

5.  Mr Lee submits that references in the Statement of Claim and certain pre-litigation documents suggest that the Plaintiff’s claim was confined to water seepage from the Tank only.  He further argues that the Plaintiff’s written opening submissions made no reference to seepage from the Roof.

6.  I do not consider there is any reasonable prospect of success in this ground. During oral opening submissions at the trial, Mr Simon So (together with Mr Herman Ho)  clearly advanced the Plaintiff’s case on the basis that the water seepage originated from both the Tank and the Roof, in line with the SJE’s findings.  The IO objected, contending that the Plaintiff should not be permitted to rely on seepage from the Roof.  I therefore directed the parties to address this issue further in their closing submissions.

7.  In paragraphs 31 to 40 of the Judgment, I explained in detail why seepage from the Roof formed part of the Plaintiff’s pleaded case, identifying specific references in the Statement of Claim supporting that conclusion.  While there may be other parts of the Statement of Claim where this is not expressly stated, that does not logically lead to the conclusion that the case was not pleaded.  Taken as a whole, it was clear that the IO was aware that the Plaintiff would run a case that the seepage also originated from the Roof.

8.  I therefore refuse to grant leave on this ground.

Grounds 2 and 3

9.  Ground 2 challenges my ruling disallowing the IO from advancing two factual cases (a)  that there were pre-existing conditions affecting the Premises, and (b)  that the installation of air-conditioning units on the Roof and the affixing of radiator pipes to the external walls between 2015 and 2018 may have caused the water seepage (See paragraphs 81–84 of the Judgment).

10.  Ground 3 challenges my finding on the cause of the seepage, as set out in paragraphs 85 to 99 of the Judgment.

11.  In respect of Ground 2, Mr Lee submits that I erred in holding that the case concerning radiator pipes affixed to the external walls was not pleaded, relying on paragraph 7(b)  of the Amended Defence and Counterclaim.  However, as I explained in paragraph 83 of the Judgment, reading the paragraph in context, that paragraph does not contain an allegation relating to radiator pipes affixed to external walls.

12.  As to the alleged pre-existing condition of the Premises, Mr Lee accepts that this was not pleaded, but contends that it should nevertheless have been permitted because there was oral and documentary evidence on the point.  I reject this submission.  It is trite law that parties’ cases are confined by their pleadings, not by the evidence.

13.  Even if I were wrong, I have in paragraphs 85 to 99 made a factual finding that these alleged other sources were not the source of the water seepage. 

14.  I am not persuaded that the Court of Appeal would interfere with my factual findings in this regard.

15.  It is well established that an appellate court will only intervene if the trial judge’s findings are plainly wrong: Ting Kwok Leung v Tam Dick Yuen (2002)  5 HKCFAR 336. As reiterated by the Court of Appeal in Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105 at §19, intervention is warranted only where there are palpable errors, such as findings unsupported by evidence, findings based on a misunderstanding of the evidence, or conclusions that no reasonable judge could have reached.  It is not sufficient that the appellate court might have reached a different conclusion.

16.  I am not persuaded that any such palpable error in my assessment of the evidence has been identified.

17.  Mr Lee further argues that I placed undue weight on the SJE’s report.  I reject this submission. Upon my enquiry during oral opening submissions, Mr Lee expressly accepted the SJE’s conclusions.  The SJE had clearly ruled out other possible sources of seepage, including the external walls and other private main roofs.  These conclusions were accepted by Mr Lee at trial, and now it is not open to him to argue that the SJE’s findings should not have been relied upon.

18.  I refuse to grant leave on either ground.

Ground 4

19.  Ground 4 challenges my finding that the Plaintiff was a credible and reliable witness. This ground is entirely misconceived.

20.  Merely advancing submissions disputing credibility does not make the ground reasonably arguable.  Mr Lee has failed to demonstrate that my assessment was plainly wrong or that no reasonable judge could have reached the same conclusion.

21.  I refuse to grant leave on this ground.

Grounds 5 to 8

22.  Grounds 5 to 8 concern my findings that the IO failed to take reasonable steps to address the water seepage.

23.  I did not overlook the actions taken by the IO relied upon by Mr Lee.  Nevertheless, for the reasons set out in paragraphs 133 and 134 of the Judgment, I found that those actions fell far short of what was reasonable or appropriate.  I am not persuaded that this conclusion was in any way wrong that would possibly be disturbed by the Court of Appeal.

24.  Leave is refused on these grounds.

Ground 9

25.  Ground 9 concerns quantum generally.  Mr Lee submits that the Plaintiff failed to establish causation of his losses, again relying on the alleged pre-existing condition of the Premises and the installation of air-conditioning units and radiator pipes.

26.  As leave is refused on Grounds 2 and 3, leave is likewise refused on this ground.

27.  During Mr Lee’s oral submissions, he advanced an additional argument, said to fall within Ground 9, concerning causation.  He submitted that the Plaintiff has failed to prove how the delay on the part of the IO caused additional loss, as distinct from any loss suffered prior to the alleged delay.  I should note that this argument does not appear in the draft Amended Notice of Appeal.  This point has also not been adequately argued before me at trial.

28.  I agree with Mr So that this argument is not engaged.  In the Judgment, I have accepted the Plaintiff’s case that the water seepage started in 2015.  I have also accepted the Plaintiff’s evidence that he and his wife had made repeated complaints to the IO from 2015 onwards.  I also found that the IO did not take reasonable action since 2015. 

29.  I refuse to grant leave on this ground.

Ground 10

30.  Ground 10 challenges my rejection of the IO’s submissions on foreseeability of loss of rental income at paragraph 148 of the Judgment.

31.  Mr Lee submits that I failed to correctly apply the principle that the assessment of remoteness requires attention not to abstract foreseeability, but to the defendant’s actual or constructive knowledge of the specific loss-generating circumstances.  He argues that there was no evidence that the IO knew, or ought to have known, that the Premises were intended to be used for rental purposes.

32.  I accept that this ground has a reasonable prospect of success.  Leave to appeal is therefore granted on Ground 10.

Ground 11

33.  Ground 11 concerns the calculation of loss of rental income by reference to the rateable value assessed by the Rating and Valuation Department (paragraphs 150 to 153 of the Judgment).

34.  Mr Lee merely repeats his arguments made at trial without identifying any error in my analysis.  I am not persuaded that this ground has a reasonable prospect of success.

35.  In his oral submissions, Mr Lee further submits that there is a question of law concerning whether a trial court is entitled to only rely on the rateable value assessed by the Rating and Valuation Department in assessing the market rental of a property, which he says requires the Court of Appeal to clarify in the interests of justice. 

36.  I do not agree.  In my view, this is merely a question of assessment of evidence before the trial judge, and the weight to be placed on the evidence before him or her.  I do not agree that the Court of Appeal should be asked to consider this question.

37.  Leave is refused on this ground.

Ground 12

38.  Ground 12 challenges the grant of injunctive relief.  Reliance is placed on paragraph 160 of the Judgment, where I stated that “the IO cannot be said to have ruled out the possibility of using the Fresh Water Tank in the future”.  It is argued that I applied the wrong test and wrongly placed the burden on the IO.

39.  This submission reflects a narrow and selective reading of the Judgment.  My reasons for granting injunctive relief are set out comprehensively from paragraphs 158 to 162.  I see no reasonable prospect of success on this ground.

40.  Leave is refused on this ground.

Ground 13

41.  Ground 13 challenges my rejection of the IO’s submission that the Plaintiff did not come to the Court with clean hands (paragraphs 164 to 171 of the Judgment).

42.  Mr Lee again merely repeats submissions made at trial, which were considered and rejected in the Judgment.  No specific error has been identified.

43.  Leave is refused on this ground.

Conclusion

44.  Leave to appeal is granted solely on Ground 10, against the award of loss of rental income in the sum of $659,720 together with interest thereon. 

45.  I now hear parties’ submissions on costs.

[Parties made submissions on costs]

46.  The IO has succeeded in its application for leave to appeal, but on only 1 out of 13 grounds.  I have taken into account the IO’s conduct in challenging almost every aspect of the Judgment, including pleadings, credibility findings, factual and expert evidence, liability, quantum and relief.  Most of the time was spent on grounds which I rejected. 

47.  In the exercise of my discretion, I order that: (1)  10% of both parties’ costs of the Summons be in the cause of the appeal, with certificate for counsel; and (2)  90% of the Plaintiff’s costs of the Summons be in the cause of the appeal, with certificate for counsel.

48.  I thank Mr So and Mr Lee for their assistance.