TSOI YUET HUNG v. CHING SUK MAN BOW

DCCJ 2720/2019

[2026] HKDC 1489

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2720 OF 2019

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JUDGMENT

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GENERAL BACKGROUND

1.  At all material times, the Plaintiff is/was the registered owner and occupier of Flat D on 12/F (“12D”) of a residential building in Tuen Mun; the Defendant (“D”) was the registered owner of Flat D on 13/F (“13D”) of the same building until 2025. P commenced the present action in May 2019 against D because of the water seepage at 12D starting from around October 2018. According to P’s evidence, such water seepage ended in around October 2019 after certain works.

2.  P initially entered into interlocutory judgment against D on 18 August 2020 with damages to be assessed. The judgment was set aside on 7 September 2023; D later filed a Defence on 31 May 2024.

3.  D gave notice to act in person in April 2025 in place of her previous solicitors, but has since taken no active step in the proceedings. She was debarred from relying on factual evidence because of her failure to exchange witness statement, and she further failed to attend the Case Management Summons hearing and Pre-trial Review (“PTR”) of this case. She also failed to attend the trial before this Court. Having considered the various affirmations of service filed by P, this Court is satisfied that P has properly served on D various documents including the Trial Bundle, the order fixing the trial date of this action and the PTR order. It was obviously D’s own choice to be absent from the proceedings.  

4.  In the trial hearing, P was represented by Mr Oscar Tam of Counsel and called P to adduce her witness statement. I have the benefits of being explained the material documentary evidence in the Trial Bundle (particularly the photographs showing the extent of water seepage at 12D, expert reports obtained from P’s surveyor and documents related to quantum). At the end of the hearing, I reserve my judgment for this action, which I now give with reasons.

THE CLAIM AND CASE OF P

5.  P’s claim against D is based on (i) breach of their building’s Deed of Mutual Covenants (“DMC”); (ii) private nuisance and (iii) negligence. P alleges that the water seepage at 12D originated from the piping problems at 13D.

6.  P and D became respective owners of 12D and 13D long before the presence of water seepage at 12D.  On around 29 October 2018, P discovered dampness and water droplets on various parts of the walls in the bathroom, corridor and master bedroom of 12D. Upon inspection, a technician of the building’s management office (“MO”) found multiple watermarks on the false ceiling near the bathroom door, gathering of water above that false ceiling for over 0.5 cm in depth, water dripping out from the overhead storage compartment above the corridor’s false ceiling, as well as water traces, falling-off of paint and water droplets here and there. Such water seepage continued until 31 October 2018.

7.  Water seepage was again reported to the MO in November 2018, but the source could not be identified at that time. On 10 January 2019, water seepage was seen spread to a new location close to the bathroom window beam of 12D. P then appointed a surveyor to attend 12D the same day for inspection. The surveyor provided a report on 25 February 2019 setting out the following views:

(1)  For the seepage area at 12D’s master bedroom, corridor and bathroom door, 13D’s embedded fresh water supply pipe was most likely to be the source;

(2)  Further droplets at the bathroom ceiling was likely to be caused by waste water from the broken soil and waste water pipe at 13D’s external wall, which penetrated the inner wall of 12D; and

(3)  External weather cause was not a cause of the water seepage.

8.  P relies on various clauses within the DMC to show that each co-owner of the building shall be responsible for and indemnify other co-owners for loss of or damage to property caused by acts of negligence and overflow of water, and keep/maintain the interior of their units and all pipings thereto in good repair and condition.

9.  P also relies on the physical locations of 12D and 13D to support the existence of a duty of care from D to P. It is argued that D must have actual or constructive knowledge that the water seepage at 12D originated from her flat 13D. In terms of nuisance, once D knew or should have known about its existence, in law, D must remedy the problem without unreasonable delay (Yeung Yik Chun v Wong Lai Ming & Anor [2023] HKDC 1160). D had however continuously failed to investigate and/or remedy the situation.

10.  To establish that failure, P prays in aid the communication records between the MO and D, which included a recommendation to D to find out the source of water seepage at the inception of P’s complaint in October 2018. P further says that upon the service on D in May 2019 of the Writ of this action, which was indorsed with a Statement of Claim containing a gist of the aforesaid surveying report, D must have known about the position that the piping problems at 13D were probably the sources of 12D’s water seepage. Yet D remained inactive in dealing with the problems; she only allegedly changed the toilet stool of 13D.

11.  In August 2019, the MO directly informed D that the water seepage at 12D was caused by 13D’s broken external pipes. Still, no meaningful works were carried out until October 2019, almost a year after D was informed of the water seepage at 12D. According to what P and the MO understood from D’s contractor, who had attended 12D to inspect the seepage problem, pipes replacement works were carried out at 13D on around 6 September 2019 and 12 October 2019. The works, particularly the latter one, successfully stopped the problem. This fact, said P, shows that if D had taken action earlier and in a more reasonable manner, P would not have suffered the loss/damage for almost a year.

THE DEFENCE

12.  In the Defence filed in 2024, D says 13D was occupied by a tenant and not herself at the material times; she denies she had caused or permitted any water leakage and put P to strict proof of the same. She says after being informed of the complaint on 31 October 2018, an inspection of 13D by her and the MO’s security guard found no leakage or dampness. In early 2019, the Joint Office of the Food and Environmental Hygiene Department and Buildings Department carried out a colour-water test and did not conclude or suggest that 13D was the source of 12D’s water seepage. Since April 2019, D had arranged further discussions/inspections with P and/or the MO, and the condition showed continuing improvement. In November 2019, P informed D that no further follow-up action was necessary.

13.  In the Defence, D refers to a change of toilet stool on 13 June 2019, but she does not refer to the carrying out of any pipe replacement works in September or October 2019.

14.  D also disputes the reliability of P’s surveying report because it was prepared without inspecting 13D and she was, said D, not informed of its contents. D argues the source of water seepage could be the building’s common part.

15.  As D has filed no evidence, the above pleaded positions of D have no evidential support and remain to be bare assertions. In the Reply and P’s witness statements, P accepts that she did meet D and there were follow-up inspections by the MO’s staff, but P’s descriptions of what happened in those meetings/inspections and the number of such meetings/inspections are different from D’s descriptions.

16.  One undisputed fact can however be deduced from the Defence – even though D claims to be not the occupier of 13D from October 2018 to October 2019, she effectively admits that she had actively handled the situation in that period. P’s position is that D was thus not handicapped in addressing the situation. She had retained a “measure of control” over 13D in the said period; she could have remedied the situation earlier.

ISSUES

17.  By reason of the above, the issues in the Trial are simply:

(1)  whether the water seepage at 12D was caused by any piping problems of 13D;

(2)  if yes to (1), whether D had taken reasonable action between October 2018 and September/October 2019 to address the problems; and

(3)  if yes to (1) and no to (2) (i.e., D has failed to discharge her duty under the DMC and/or tort), what amount of damages should D pay to P.

DETERMINATION ON LIABILITY (ISSUES 1 AND 2)

18.  In the trial hearing, this Court was shown various photographs taken by P or the surveyor engaged by her, and the records of communications maintained by the MO. This Court is satisfied that water seepage did occur in 12D from around October 2018 to October 2019. The extent of water seepage was significant.         

19.  Mr Tam then took me to specific paragraphs of P’s surveyor report explaining the causation of such water seepage (see paragraph 7 above). As the findings and opinion in P’s report appear credible, and D has only filed a Defence but adduced no evidence to rebut the report, this Court is satisfied that, on a balance of probability, the source of water seepage at 12D was (i) 13D’s embedded fresh water pipe and (ii) the broken soil and waste water pipe at 13D’s external wall. They were all within D’s control at the material times of the seepage.

20.  Apart from the report, it is P’s evidence that D’s contractor told her and the MO that certain piping replacement works were carried out in September/October 2019, and water seepage has since October 2019 vanished. Such evidence is again not rebutted. It reinforces the inference that the source of water seepage at 12D must be 13D’s piping problems.

21.  The assertions that P’s surveyor report is not reliable (because the surveyor did not inspect 13D) and the Government departments had examined 13D but did not find water seepage have been considered. However, in the circumstances of this case, those assertions do not weaken P’s evidence. For the Government’s examination, this Court has no evidence as to what had been done, its methodology and whether the use of fresh/flushing water was stopped on the relevant day(s). This Court has to give more weight to the comprehensive and self-explanatory report from P’s side despite its limitation.

22.  This Court is also satisfied that, prima facie, D could have addressed the problem earlier. While D was not completely irresponsive, from the MO’s record it can be seen that D was informed of the situation early in time but her initial reaction (including the change of a toilet stool in 13D) did not resolve the problem effectively. Engagement of contractor by D was apparently commenced just in July 2019; there is no evidence from D to explain why the engagement could not start earlier. There is also no rebuttal to P’s position that D must have known about the opinion on causation in P’s report at least in May 2019 because such opinion was mentioned in the Statement of Claim served that month.                

23.  I am satisfied that D has failed to take reasonable action until around September 2019. She was in breach of her contractual duties under the DMC and her duties under the general laws of nuisance and negligence by reason of her lack of proper response from October 2018 to September 2019. D should be legally liable for P’s loss and damage arising from the water seepage at 12D in that period.     

DETERMINATION ON QUANTUM (ISSUE 3)

24.  P claims actual financial loss in terms of cost of reparation and alternative accommodation. P also seeks general damages for inconvenience, discomfort and distress.

25.  After the cessation of water seepage, P obtained a quotation dated 11 March 2021 from a contractor for the repair works required at 12D. The amount of renovation fee quoted, with a detailed breakdown, was HK$169,405 in total. A receipt issued by P’s contractor dated 1 July 2021, of the same amount, is also available in the Trial Bundle. The works at 12D were apparently carried out in a period between the two dates in 2021.

26.  The quotation included certain items which were unrelated to the subject water seepage, e.g. change of socket at 12D’s kitchen, as P has made no complaint of water seepage about the kitchen. It also seems some works at the bathroom and about the electricity system of 12D did not wholly arise from the complained water seepage – there must be a natural wear and tear reason for the works to be carried out. As P said in her witness statement, she started living in 12D in year 2000.

27.  Additionally, P procured in 2026 a supplemental report from the same surveyor she previously engaged in 2019 to give an independent assessment of the labour and material costs required for conducting the reparation works at 12D (which he suggested in his previous report in 2019) if such works were carried out in around 2021. The amount the surveyor arrived at was HK$112,774.10.

28.  In these circumstances, I find it appropriate to award just HK$112,774.10 as P’s financial loss in respect of the cost of reparation.

29.  As to the cost of alternative accommodation, P claims a sum of HK$10,000 for having to rent a hotel room for living in April and May 2021 when the aforesaid reparation work was carried out. Credit card payment record of P’s son for such payment is available in the Trial Bundle. It shows that HK$10,000 was incurred on 1 April 2021. I note from the supplemental report of P’s surveyor that a total of 43 “labour days”, fewer than 2 months, would be required for completing such works. Moreover, as P’s contractor should have carried out all the works set out in the quotation given, consistent with my above finding, part of the time spent was not strictly related to the water seepage. As a broadbrush figure, I will only allow half of the hotel cost as an item of financial loss (i.e. HK$5,000).

30.  On general damages, I have taken into account the factors that (i) the water seepage lasted for about 1 year; (ii) water seepage was eventually abated; (iii) P remained in 12D during the entirety of the period of nuisance; (iv) the time spent by P to deal with the problem in liaising with D and the MO; (v) some water traces carried a yellowish colour (which were consistent with the surveyor’s opinion that 13D’s soil and waste water pipe was one source of seepage). I have considered comparable cases including Yeung Yik Chun op cit, Loke Yuen Jean Tak Alice v Wong Kit Ying & Ors. [2019] HKCFI 1895, Yan Wing Fai Rick & Anor v Century One Limited (unrep, DCCJ 2773/2009, 2/2/2011) and Wong Hon Hung & Anor v Jolly Birds Ltd (unrep, DCCJ 5341/2006, 24/6/2008). In my view, P’s claimed amount of HK$40,000 is appropriate and should be allowed in full.    

DISPOSITION

31.  I allow P’s monetary claim against D at the amount of HK$157,774.10 ($112,774.10 + $5,000.00 + $40,000.00). Injunctive reliefs pleaded in the Statement of Claim were certainly not required (and not pursued by P’s counsel in Trial) because the water seepage has been abated since October 2019. Costs of this action should be paid by D to P, to be taxed if not agreed, on party-and-party basis, with certificate for counsel.

32.  Pre-judgment interest on the financial loss of HK$117,774.10 is awarded at half judgment rate from 1 May 2021 to the date of this judgment. The hotel bill should be paid in around mid-April for no financial charge to arise from the credit card payment on 1 April 2021. The evidence shows that the reparation cost was actually paid after 11 March 2021 but before 1 July 2021. All these dates were significantly after the date of writ on 29 May 2019. To make things not unnecessarily complicated, I find it appropriate to make 1 May 2021 the broadbrush commencement date of pre-judgment interest for both heads of financial loss. I adopt half judgment rate (currently standing at 4% per annum) as opposed to 1% above the HSBC Best Lending Rate (currently standing at 6% per annum) because this case is founded on DMC and breach of tort, as opposed to commercial transactions.

33.  Pre-judgment interest on the general damages of HK$40,000 is awarded at 2% per annum from the date of writ (29 May 2019) to the date of this judgment by drawing analogy with the usual pre-judgment interest for Pain, Suffering and Loss of Amenities in personal injuries case. Interest accrued after this judgment, for all heads, is certainly on judgment rate.