LAM CHIN PANG AND ANOTHER v. WAN SUI YING

DCCJ 3391/2015

[2018] HKDC 1169

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3391 OF 2015

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JUDGMENT

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INTRODUCTION

1.  This is a water seepage case.  The plaintiffs claim that there has been water seepage from the defendant’s unit to the plaintiffs’ unit since August 2014, and the cause of the water seepage is the defective toilet sewage pipes and toilet water pipes in the defendant’s property.  The plaintiffs say that the defendant is liable to remedy the situation and pay damages to the plaintiffs.  The defendant disputes all these.  I would first set out the agreed facts as a background.

2.  The plaintiffs are the owners of Flat 3 on 11/F (“1103”), Block A, May Shing Court (“the Estate”), whereas the defendant is the owner of the unit immediately above 1103, namely Flat 3 on 12/F (“1203”) of the same building.

3.  The plaintiffs claim that since August 2014, they discovered water dripping from the ceiling of the sitting room and the kitchen of 1103.  After being notified of the plaintiffs’ complaint in August 2014, the defendant engaged a contractor to conduct inspection.  Without admitting any liability, the defendant engaged contractors to conduct some works in or around September 2014 and early 2015 respectively. The plaintiffs claim that the leakage problem in 1103 was not resolved after the defendant’s works ending in or around May 2015.

4.  In late 2014, the joint office of the Buildings Department and the Food and Environment Hygiene Department (“the Joint Office”) appointed Prudential Surveyors International Limited (“Prudential”), who conducted inspections at 1103 on 5 December 2014, 27 January 2015, 9 March 2015 and 1 June 2015.  Prudential also inspected 1203 on 27 January 2015.  Prudential produced an undated report (“the Prudential Report”) sometime thereafter.

5.  Both the plaintiffs and the defendant have engaged experts to inspect 1103 and 1203.  The plaintiffs’ expert is Ms Lau Shan La (“LSL”).  The defendant’s expert is Mr Lau Wing Wai Patrick (“PL”).  The expertise of the two experts is not disputed.  Each of the them has made several reports and those reports are evidence in this trial. The two experts have also produced a joint report dated 14 July 2017 (“the Joint Report”).  The Joint Report is also evidence in this trial.

6.  LSL is of the opinion that the water seepage problem is caused by the defective toilet sewage pipes and toilet water pipes in 1203.  PL is of the view that the source of dampness should be flush water, originating from the deteriorated and worn-out pipeline at the interconnection point between the vertical communal pipe and the floor slab of 1203 (“the Interconnection Point”)[1].

7.  On 24 October 2017, the plaintiffs suggested replacing the communal pipes at the case management conference and doing further tests after such replacement works to observe the before and after situation.  The court ordered the plaintiffs to lodge a letter from the management office of the Estate (“the MO”) concerning the proposed timeline of the works and a statement setting out the probative value of the proposed tests after such replacement.  LSL took the moisture content readings at 1103 on 3 and 9 November 2017.  Those readings are produced in the agreed list of data dated 5 January 2018.

8.  On 5 May 2018, the MO conducted works to change the 3 sets of communal pipes running from around 3 feet above the floor of 1203 to around 2 feet below the ceiling of 1103 from metal pipes to UPVC pipes.  The defendant wrote to enquire about the leakage situation at 1103 on 7, 16, and 28 May 2018.  The plaintiffs have by their letter dated 29 May 2018 stated that they did not intend to engage experts to conduct any subsequent inspections and tests.

9.  The last tenancy of 1103 was terminated on 15 February 2015.  The rateable value of 1103 for the financial year 2015-2016 is HK$103,920, for the financial years 2016-2017 and 2017-2018 are HK$114,360, and for the financial year 2018-2019 is HK$129,120.

THE PLAINTIFF’S CASE

10.  The plaintiffs’ pleaded case is that the cause of the water seepage problem is the defective toilet sewage pipes and the toilet water pipes in 1203, not any other pipes.  This is clear from the following pleas in the Statement of Claim (with emphases added):-

“8. Since August 2014, the Plaintiffs discovered water dripping from the ceiling of the sitting room and the kitchen of Ps’ Lower Property.  By a Survey Report dated 12th May 2015 (the “Survey Report”) prepared by Hong Kong Survey Limited, it was revealed that the said water leakages and seepages were caused by the defective toilet sewage pipes and toilet water pipes from D’s Upper Property.”

“13. Further and/or in the alternative, the damage was caused by the Defendant’s negligence.

……

(3) Failing to keep the toilet water pipes and sewage pipes of the D’s Upper Property in good repair and condition;

……

(5) Failing to devise or enforce any or any adequate system for the inspection and maintenance of the toilet water pipes and sewage pipes of the D’s Upper Property which would have ensured that the water leakage was detected earlier and remedied;”

“14. Further and/or in the alternative, in failing to maintain the toilet water pipes and sewage pipes of the D’s Upper Property ……”

“19. As the defective toilet water pipes and sewage pipes are yet to be repaired, the risk of water seepage continues ……” (Emphasis added)

11.  The plaintiffs say that the defendant is liable to them since the water leakage problem is a nuisance, and further or alternatively, the defendant is negligent in causing or permitting the occurrence and continuation of the water leakage problem.  The plaintiffs also say that the defendant has breached various duties imposed on her in the deed of mutual covenant of the Estate and in the Building Management Ordinance.  Although various causes of action have been pleaded, whether the plaintiffs can succeed on liability depends upon whether they can prove that the cause of the water seepage is the defective toilet sewage pipes and the toilet water pipes in 1203.

12.  The plaintiffs claim an injunction requiring the defendant to rectify and make good the toilet water pipes and sewage pipes of 1203 and to eliminate any or any further water seepage and/or nuisance.

13.  The plaintiffs also claim loss of rental income, and costs for repairing and making good various parts of the damaged ceiling in 1103.

14.  There is a claim for a declaration that the defendant shall indemnify the plaintiffs for all damages and costs incurred by the plaintiffs in the statement of claim.  However, in her final submissions, Ms Victoria Yue, counsel for the plaintiffs, has made it clear that the plaintiffs are now not pursuing this claim.

15.  There is also a claim for damages for loss of amenity, distress and inconvenience caused by the water leakage problem.  However, this claim is also not pursued in the trial.

16.  The plaintiffs claim costs of engaging expert and costs of the expert reports as damages in the statement of claim.  In my view, those costs cannot be classified as damages.  Those costs are part of the costs incurred by the plaintiffs.  Whether the plaintiffs can recover those costs depends upon whether the plaintiffs can get a costs order in their favour at the end.

17.  The plaintiffs’ daughter, Ms Lam Lai Yi (“Lam”) has given evidence in the trial to support the plaintiffs’ case.

THE DEFENDANT’S CASE

18.  The defendant does not admit the claim made by the plaintiffs and denies liability.  The defendant has given evidence in the trial to support her case.

THE ISSUES

19.  Based upon the pleadings, the issues to be resolved are as follows:-

(1)   Whether the cause of the water seepage problem in 1103 is the toilet sewage pipes and toilet water pipes in 1203 as claimed by the plaintiffs;

(2)   If yes, whether an injunction should be granted and in what terms;

(3)   If liability is established, what should be the quantum of damages.  

THE LAW

20.  It is well established that the issues in a trial are defined by pleadings, not by evidence.  One cannot slip in an unpleaded issue by saying that there is evidence on the issue.  As said by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd[2]:-

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-

“(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues.  Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained.  It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.”

22. …… one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings.” (Emphasis added)

21.  The purpose of pleadings is to define the real issues in dispute and to ensure that the litigation is conducted in a fair way.  It is pertinent to note what has been said by Yuen JA in Chan Kong v Chan Li Chai Medical Factory (Hong Kong) Ltd[3] [2009] 2 HKLRD 455:-

“15. …… It is well established that pleadings need to be clear - because pleadings are the foundations on which the rest of the action stand. The reason why parties to litigation must ensure that the real issues in dispute are defined in advance in the pleadings is so that there is an unambiguous framework for the many interlocutory steps that follow in an action, such as discovery of documents, interrogatories and witness statements, as well as for the conduct of the trial itself. A statement of claim should make it clear to the reader what the plaintiff's cause of action is, and it should set out the material facts which provide the basis for him to pursue that cause of action. It is not adequate for a plaintiff just to set out his story extensively and then to allege a number of breaches of rights for which he claims relief. Put another way, it should not be left to the reader to guess how the dots should be connected.

16. The more complex the facts and the more complicated the claim, the more important it is for the pleader to get it right.  That is because the more obtuse the pleading, the more capacity there is for genuine misunderstanding or specious opportunism.  And the more blind alleys are left in a pleading, the more expensive and time-consuming the litigation will be.” (Emphasis added)

22.  Accordingly, it is important to bear in mind that the crux in this trial is whether the plaintiff’s pleaded case, not any other case, is proved.  If there is evidence showing that the source of water leakage is not those alleged by the plaintiffs in their pleadings but somewhere else, the plaintiffs cannot hold the defendant liable to this.

23.  The plaintiffs bear the burden to prove the water leakage problem as pleaded in their pleadings.  There is no presumption that the source of leakage would necessarily come from the flat above[4].

24.  In respect of assessing the evidence given by factual witnesses, a useful guidance can also be found in Lee Fu Wing v Yan Po Ting Paul[5], in which DHCJ Au (as he then was) said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-

(1) Whether the party’s case is inherently plausible or implausible.

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4) The demeanour of the witnesses.”

25.  In respect of expert evidence, the court is not bound by the opinion expressed in the reports made by the experts, and can and should make its own judgment by considering all the materials available.  See Grand Wayfair Investment Company Limited v Chan Yung Kan[6].

PLAINTIFF’S SUMMONS FOR PRODUCING FURTHER DOCUMENTS

26.  Before turning to the evidence, I have to set out my determination on the summons filed on the plaintiff on 3 August 2018 (“the summons”).  By that summons, the plaintiffs seek leave to produce further documents set out in the plaintiffs’ 3^rd supplemental list of documents (“the further documents”).

27.  The further documents can be divided into the following 3 categories:-

(1)   Category A: Documents recording events since the works replacing the communal pipe between 1103 and 1203 on 5 May 2018.  The plaintiffs say that these documents have always been in the possession of the defendant since the dates of existence.

(2)   Category B: Documents concerning the valuation of the loss of rental income for not being able to let out 1103; and

(3)   Category C: Documents concerning the valuation of the repair costs of 1103.

28.  The summons is opposed by the defendant.  I directed that the further documents would be read in the trial on de bene esse basis and I will determine the summons at the end of the trial.  After hearing all the evidence given and the submissions made in the trial, I come to the conclusion that the application as per the summons cannot be allowed, and the summons ought to be dismissed.

The law on late discovery

29.  The plaintiffs are seeking leave to rely upon documents disclosed at a very late stage of these proceedings.  In the pre-trial review held on 26 June 2018, the plaintiffs did not mention that they intended to adduce and rely upon the further documents in the trial.  The plaintiffs did not seek leave to rely upon the further documents shortly after the pre-trial review, but only filed the summons on 3 August 2018, ie 18 days before the commencement of the trial.

30.  In respect of late discovery, in Hong Lok School Ltd & Others v Chow Sai Yiu & Others[7], DHCJ Lam (as he then was) said:-

“6. In the light of the above, I am of the view that it behoves a litigant giving discovery at the eleventh hour (as in the case of the plaintiffs here) to provide the court and the other side with full and accurate information as least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from his opponents,

(a) the reasons why these documents were not disclosed earlier;

(b) the provenance and the makers of these documents;

(c) the relevance of these documents to the issues before the court;

(d) the availability or non-availability of the makers to attend trial for cross-examination in case his opponents make an application under [s.48 of the Evidence Ordinance].”

31.  Hong Lok School Ltd was decided before the CJR.  After the CJR, the court is even more jealous to ensure that the trial would proceed as scheduled.  Last minute applications fly in the fact of the underlying objectives of the CJR.  In Liu Chen v Chan Poon Wing[8], DHCJ Marlene Ng said:-

“36. Let me say as a general observation that the court is generally unhappy with last minute applications at the commencement of assessment hearing for further evidence to be filed or for further discovery to be made. After the CJR, the court is even more jealous to ensure that the assessment of damages will proceed as scheduled, and that the hearing will not be burdened with last-minute applications that take up valuable time thereby prolonging the assessment hearing, causing an adjournment and/or increasing costs for the party(ies). To say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, cost-effectiveness and fairness between parties enshrined in Order 1A of the RHC.

37. In the circumstances, after the implementation of the CJR, if there is any last minute application (which necessarily must be a rare occurrence), the court will not expect anything less than what was required even prior to the CJR, namely, a full account for the lateness of the application.  In addition, it is further expected that the applicant will place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives.  Failure to do so may result in the court rejecting the application without further ado, especially if there is a history of breach of court timetables or if there is something in the conduct of the applicant that gives rise to suspicion of conscious manoeuvring.”

32.  Whether a late application for further discovery should be allowed is a balancing exercise and the considerations are largely three-fold[9]:-

(1)   The merits of the proposed application, ie whether the application if granted will assist the court in securing “the just resolution of disputes in accordance with the substantive rights of the parties” as stipulated in the Rules of the District Court, Order 1A rule 2(2).

(2)   The presence or absence of any real prejudice to the other party.

(3)   Any conscious flouting of rules of court, practice directions and/or case management timetables, or any over-reaching or deliberate maneuvering on the part of the applicant.

Serious delay

33.  One of the grounds of the objection advanced by Mr Patrick Siu, counsel for the defendant, is that there is a serious and unexplained delay in the plaintiffs’ application.  Mr Siu draws my attention to the order made by the court on 8 May 2017. It is stipulated in the order that:-

“5. All interlocutory application(s), if so advised, be taken out by 25 August 2017;

……

10. Any party who is unable to comply with any of the above directions shall take out an application for extension of time within 7 days after the due date for compliance”

34.  Notwithstanding this clear order, the plaintiffs did not make any application for disclosing the further documents.  Even in the pre-trial review held on 26 June 2018, there was no application for leave to rely upon the further documents in the trial. The application was only made 18 days before the commencement of the trial.

35.  Mr Siu submits that there is serious delay in the plaintiffs’ application.  The plaintiffs have never put forward any explanation, let alone satisfactory explanation, for the serious delay.  With respect to Ms Yue, the plaintiffs are unable to offer any convincing rebuttal on this delay point.

36.  In my view, the serious and unexplained delay is a strong factor against the plaintiffs’ application. 

Category A – Events since replacing the communal pipes

37.  The MO finished the works replacing the communal pipes between 1103 and 1203 on 5 May 2018.  The plaintiffs intend to disclose the Category A documents, which may be evidence showing that the water seepage problem in 1103 is still ongoing after the replacement work.  The plaintiffs are trying to say that the water seepage problem has no connection with the Interconnection Point but is caused by the defective private pipes in 1203.

38.  Ms Yue submits that the Category A documents are always in the defendant’s possession and the defendant has an obligation to make discovery of these documents.  There is no prejudice to the defendant if the documents are produced as evidence in the trial.  The documents are part of the relevant factual background. 

39.  Mr Siu submits that it must be borne in mind that according to an affirmation made by Lam on 14 November 2017 (“the Affirmation”), the water seepage problem had significantly rebated by October 2017[10]. In the Affirmation, Lam said:-

(1)   On 24 October 2017, this court directed the parties to give a detailed proposal concerning replacement works of the communal pipes.  Lam then contacted the MO to inspect 1103 to determine what works had to be carried out.

(2)   A Mr Kwan of the MO (“Kwan”) attended 1103 and did inspection on 24 October 2017.  Kwan measured the moisture content and the readings was 15-20%[11].  Kwan attended 1103 again on 27 October 2017 and 31 October 2017.  On these occasions, the moisture content readings taken by Kwan were within the range of 15%-20%.

(3)   Kwan pointed out that the moisture content readings were relatively low during his visits.  Lam also took some readings herself between 24 October 2017 and 1 November 2017.  Lam’s results corroborated with Kwan’s results.

(4)   Lam asked LSL to come to 1103 to conduct inspection.  LSL visited 1103 on 3 November and 9 November 2017.  During these visits, LSL also recorded relatively low moisture content readings.

40.  Mr Siu submits that if the plaintiffs contend that the seepage problem has never stopped or rebated, the plaintiffs have to seek leave to file witness statement and/or expert report to give an account of the problem.  This has not been done.

41.  Further, after the completion of the replacement work of the communal pipes on 5 May 2018, the defendant’s solicitors have repeatedly written to the plaintiffs’ solicitors to urge the plaintiffs to agree to a joint inspection by the parties’ experts to see whether the water seepage has been completely resolved after the replacement of the communal pipes.  This proposal was rejected by the plaintiffs.  Mr Siu refers me to the following correspondence passing between the parties’ respective solicitors:-

(1)   The defendant’s solicitors’ letter dated 7 May 2018:-

“We are just given to understand that [the MO] completed works to replace the communal soil and waste pipe from iron pipes to plastic pipes for the section connection to [1103] on 5 May 2018, which we have not been notified by you in advance.

It is our client’s expert’s opinion that the alleged water seepage at your clients’ property is due to the deteriorated and worn-out pipeline at the interconnection point of the communal vertical soil and waste pipe and the floor slab and the tee joint in your clients’ property.  We are of the view that replacing the communal pipe should result in cessation of the alleged water seepage at your clients’ property.  Please confirm if water seepage at your clients’ property has ceased after completion of the replacement work.

Due to the change in circumstances, please let us know whether your clients intend to engage experts to conduct any subsequent inspection and tests to your clients’ property.  If it is so intended, we consider that a joint expert’s inspection should be conducted.

The trial hearing is only 3 months away from today.  According to the letter from [the MO] dated 13 November 2017, exhibited as “LLY-1” to [the Affirmation], the replacement work could be scheduled in the last week of November 2017 upon your clients’ consent and would only take one working day to complete.  Your clients’ arranging the replacement of the communal pipes at the eleventh hour and failure to arrange the same to be conducted before setting down the case for trial would likely result in a delay of the proceedings, should such change of circumstances necessitate another round of expert evidence.  Our client shall hold your clients liable to costs of and occasioned by any applications arising from your clients’ late arrangement for replacement of the communal pipes.”

(2) The plaintiffs’ solicitors’ letter dated 29 May 2018:-

“… our client does not intend to engage experts to conduct any subsequent inspection and test to our client’s property.”

(3) The defendant’s solicitors’ letter dated 14 June 2018:-

“It is trite that parties in civil proceedings shall not be taken by surprise or ambushed by evidence not previously disclosed by parties. Unless we receive your clients’ reply in relation to whether water seepage in your clients’ property has ceased after replacement of the said communal pipe and all relevant evidence and documentary proof within the next 5 days (ie 19 June 2018), we shall invite the Court to draw inference that water seepage has actually ceased. We shall also strongly object to your adducing of any further evidence after 19 June 2018 in relation to the alleged seepage condition in your clients’ property in any form, be it oral, written or otherwise, in this action.” (Emphasis in original)

42.  I agree with Mr Siu. Before the filing of the summons, the plaintiffs have never notified the defendant that they intend to rely upon the Category A documents to argue that the source of the water leakage is not the Interconnection Point but is the private pipes inside 1203.  If the plaintiffs are allowed to run this argument, the defendant should be given an opportunity to prepare expert evidence to meet this argument.  The lateness of the plaintiffs’ application has deprived the defendant from this opportunity.  In the circumstances, it would not be fair and just to allow the plaintiffs to rely upon the Category A documents in the trial.

Category B - Loss of rental income

43.  The plaintiffs should not be allowed to rely upon these documents.

44.  On 5 May 2016, this court has directed the parties to write to the court on their stance on expert evidence on quantum within 42 days.  On 10 August 2016, the defendant’s solicitors put on record that no response had been heard from the plaintiffs. Despite subsequent chasers dated 26 November 2016, 28 December 2016 and 20 January 2017, the plaintiffs have chosen not to adduce expert evidence on the quantum of the rental income.

45.  Ms Yue submits that the loss of rental income can be assessed by reference to the rental transactions as shown in the Category B documents.  With respect, I do not think that the matter is so simple.  In assessing the market rental of 1103 during a specified period, apart from having rental transactions of some similar units, one would need to do adjustments due to the differences between 1103 and the units shown in the rental transactions, for example, views, locations, facilities available in the relevant building or estate.  There is no input from any expert on all these necessary adjustments.  In my view, the Category B documents shed no light on the rental value of 1103 at the material time.

Category C – Cost of repairing work in 1103

46.  In the Joint Report dated 14 July 2017, the two experts agreed that the cost for rectifying the defects in 1103 due to the water seepage problem would be HK$37,802.3.  This is also the figure appearing in LSL’s 4^th report dated 12 September 2016.

47.  Mr Siu submits that since there has been an agreement between the experts on this item, and it would not be necessary for the plaintiffs to produce any documents on this issue.  The plaintiffs should not be allowed to depart from the assessment of their own expert, and the agreement reached by both experts.

48.  Ms Yue submits that since the water seepage problem is continuing, the damage in 1103 now is severe than the situation at the time when LSL was preparing her 4^th report.  The Category C documents are necessary to take into account the increased repair costs due to inflation and almost 2 years’ worth of further water damage.

49.  I am unable to accept Ms Yue’s submissions.  If the situation in 1103 now is much worse than the situation in September 2016, this should be shown by appropriate expert evidence.  The inflation factor can be taken care by allowing pre-judgment interest on the award.  If the plaintiffs are allowed to adduce expert evidence on these issues, the defendant should be given an opportunity to adduce expert evidence on these as well.  As the matter now stands, in my view, there is no basis to allow the plaintiffs to depart from the agreed figure stated in the Joint Report.  

Order on the summons

50.  Taking all the aforesaid into account, the plaintiff’s application must fail, and the summons must be dismissed.  I dismiss the summons.  There be a costs order nisi that costs of the summons be to the defendant, with a certificate for counsel, to be taxed if not agreed.

INTERNAL DISCUSSION NOT EVIDENCE

51.  In various places of her written final submissions, Ms Yue refers to some internal discussions within the plaintiffs’ team.  As submitted by Mr Siu, these internal discussions are not evidence before the court.  With respect, it is not appropriate to use these internal discussions as if the same are evidence before the court and to make submissions on the basis of these inadmissible materials.  I ignore all these internal discussions referred to in Ms Yue’s submissions.

FACTUAL EVIDENCE

Lam

52.  Lam has given factual evidence in support of the plaintiffs’ case.

53.  Lam said that her grandmother (ie the 1^st plaintiff’s mother) used to live in 1103 until she moved out in December 2011.  The plaintiffs then rented 1103 to a Mr Kwan Wai Kin (“the tenant”) from 15 December 2011 to 14 December 2013.  The tenant is a friend of the 1^st plaintiff.  Lam was unable to tell the monthly rental at that time.  The tenancy agreement with the tenant was renewed, and the new tenancy period should run from 15 December 2013 to 14 December 2015, at a monthly rental of HK$8,500.  According to Lam, this was a figure below the market rental, for the tenant was a friend of the 1^st plaintiff.  Lam would call the tenant as “Uncle Kwan”.

54.  According to Lam, in August 2014, the tenant discovered that water was dripping from the ceiling of the living room and kitchen of 1103.  In January 2015, Lam requested the MO to inspect 1103, and the MO could not ascertain the source of leakage.

55.  On 14 January 2015, the tenant notified the plaintiffs that he would terminate the tenancy agreement. On 14 February 2015, the tenant signed a surrender agreement with the plaintiffs, terminating the tenancy agreement with effect from 15 February 2015.  1103 has been left vacant since 15 February 2015.

56.  During cross-examination, Lam agreed that she had not informed the defendant about the signing of the tenancy agreement, and she accepted that there was no particular reason why the defendant should know that the plaintiffs had let out 1103.

57.  Under cross examination, Ms Lam accepted that the water leakage problem has stopped by 24 October 2017.  The moisture content readings taken by both the MO and Lam in 1103 in October 2017 were all below 20%.

58.  Prior to October 2017, the last inspection conducted by LSL was on 20 May 2017.  Ms Lam accepted during cross examination that she did not know whether the water leakage problem had stopped before October 2017.  Lam accepted that in fact nobody would know if the problem had stopped before October 2017.

59.  In §11 of the Affirmation, Lam said:-

“I am given to understand by Ps’ expert that since a variable other than the communal pipe is now significantly affecting the leakage situation…” (Emphasis added)

60.  Under cross examination, Lam was asked what the “variable” was.  Facing this question, Lam was evasive.  At the end, Lam said that the variable was “私人喉管，包括好多供水喉，去水喉同埋其他contributing factors”.

61.  PL has identified the Interconnection Point as the source of leakage in his first report dated 15 July 2016.  Notwithstanding this, the plaintiffs refused to replace the public sewage pipe even when the management office offered to replace it in November 2017.  No satisfactory reason was given by Lam explaining why this offer was not taken up by the plaintiffs in November 2017 or shortly thereafter.

62.  The communal sewage pipe between 1103 and 1203 was replaced by the MO on 5 May 2018.  On 19 June 2018, the MO wrote to the defendant and said that according to their inspection, on 17 May 2018 and 13 June 2018, water seepage problem was found in 1103.  During cross examination, Lam admitted that the plaintiffs had not engaged any expert to supervise the replacement work done by the MO on 5 May 2018, or to inspect the workmanship and quality of such works after they were completed.  She also accepted that she could not see the part of the pipe which was concealed by concrete.  That being the case, it cannot be known whether the water seepage problem found after the replacement of the communal pipes was due to the replacement work itself.

63.  Lam also agreed that the defendant had indeed invited the plaintiffs to conduct an expert inspection after the communal sewage pipe was replaced, but the plaintiffs had not accepted this invitation.

64.  Lam also agreed that in January 2017, the defendant was prepared to allow the plaintiffs to inspect the pipes behind the toilet bowl in 1203 (which were concealed under a piece of black granite), subject to conditions that the plaintiffs would bear the costs of the work, the replacement materials and any damages caused.  Lam claimed that the plaintiffs had agreed to those conditions.  This is not correct.  In the plaintiffs’ written reply dated 16 February 2017, the plaintiffs did not accept those conditions and were content with conducting non-destructive tests.  The plaintiffs have also not sought any Court order for inspection of the pipes under the black granite.

65.  Regarding the plaintiffs’ claim for loss of rental income, Lam claimed that the plaintiffs had agreed to engage an expert to give evidence on this issue.  This is not correct.  The correspondence passing between the parties shows that the plaintiffs have not agreed to engaging an expert on this issue, notwithstanding the repeated requests from the defendant.

66.  In respect of the costs of the repairing works in 1103, Lam agreed that LSL had already given her opinion on this.  Lam also agreed that the plaintiffs had not requested the expert to revise or adjust her opinion.

The defendant

67.  The defendant has given evidence in the trial.

68.  The defendant said that she was notified by the MO that there was water leakage problem in 1103 for the first time on about 20 August 2014.  One or two years before that, she defendant had renovated the bathroom of 1203, including the replacement of the water pipes therein.  After being notified of the water leakage problem in 1103, the defendant arranged for inspection by a workman, who could not ascertain the source of the problem.  In any event, upon the workman’s suggestion, the defendant replaced the fresh water pipe in September 2014.

69.  Subsequently, the MO notified the defendant that there was still water leakage problem in 1103.  The defendant consulted the workman, who said that the problem could not be caused by leakage in the fresh water pipe.  If the defendant had to replace the flush water pipe, the workman could not take up the work.

70.  Out of caution, in March 2015, the defendant engaged a renovation company to replace the flush water pipes inside the bathroom of 1203.  The toilet bowl, shower, and lower part of the wall were replaced, and relevant water-proof works were carried out as well.  As part of 1203 was previously damaged by water leakage from the unit immediately above 1203, ie Flat 3 on 13/F of the building, the said damage was repaired as well.

71.  The MO had replaced the upper part of the public sewage pipe inside 1203 in late 2015 or early 2016. The defendant would like to have replacement of the whole of the public sewage pipe inside 1203.  However, the lower part of the public sewage pipe could not be replaced as part of it is located inside 1103, and the plaintiffs objected to replacing it.

72.  The public sewage pipe connecting 1103 and 1203 was replaced on 5 May 2018.  After that, the defendant was not in Hong Kong from 18 May 2018 to 27 May 2018.

73.  The defendant welcomed experts to inspect 1203 to help to determine the source of the problem, but she did not want to be disturbed by the management office who were not experts.

74.  The defendant did not know that the plaintiffs had leased out 1103, until she was told so by her lawyers.  She could not remember when her lawyers told her about this.

Analyzing the factual evidence

75.  Having seen and heard the witnesses, in my judgment, Lam is not a reliable witness.

(1)   When being asked what was the “variable” mentioned in §11 of the Affirmation, Lam tried to shy away from the question and only gave an answer after being required by the court to do so.  Lam said that the “variable” was “private pipes, including many water supply pipes, wash-out pipes and other contributing factors”.  This answer was most unsatisfactory and without any precision.

(2)   Lam did not possess the relevant professional qualifications, but she claimed that she could comment on the source of the leakage and on the workmanship in relation to the replacement of the public sewage pipe.  There is no basis in support of this bold assertion.

(3)   Lam claimed that the plaintiffs had agreed to the conditions imposed by the defendant for inspecting the pipes in 1203 under the black granite in the bathroom.  This is contradicted by the correspondence passing between the parties.

(4)   Lam also claimed that the plaintiffs agreed to engage an expert to opine on the issue of loss of rental income.  Again, this is contradicted by the correspondence.  In fact, the plaintiffs did not take any action to engage a valuation expert notwithstanding the repeated reminders from the defendant.

76.  Save and except the admissions made by Lam in her evidence, I do not regard Lam’s evidence as reliable evidence and give no weight to such evidence.

77.  The defendant’s evidence is straightforward and not shaken at all during cross examination. There is no document contradicting the defendant’s account of the events.  I regard the defendant as an honest and reliable witness and accept her evidence in its entirety.

78.  Ms Yue argues that the court should draw an adverse inference against the defendant and find that the defendant is trying to suppress the evidence and to conceal the truth.  Ms Yue submits that the defendant has unreasonably done the following:-

(1)   not allowing the plaintiffs to inspect the void[12] in the balcony in 1203;

(2)   not allowing the plaintiffs to inspect the pipes under the black granite in the bathroom in 1203;

(3)   not permitting the plaintiffs to conduct a flushing test in 1203 in the inspection conducted by LSL on 20 May 2017;

(4)   not agreeing to include the documents mentioned in the summons and some other documents in the trial bundles. 

79.  With respect to Ms Yue, I do not regard the criticism made by Ms Yue as valid criticism.

(1)   It is not correct to say that the defendant did not permit the plaintiffs to inspect the void.  In fact, the defendant has enlarged the void to facilitate the inspection by the two experts.  The two experts were able to inspect the void, and the plaintiff’s expert, LSL, has confirmed that no dampness was found there.

(2)   In respect of the pipes under the black granite, the defendant has proposed conditions for the inspection of those pipes.  In my view, those conditions are reasonable conditions.  The plaintiffs chose not to accept those conditions.

(3)   As to the flushing water test, LSL already conducted such a test on 20 August 2016 in preparation for her fifth report, and found nothing to support her proposition.  In the correspondence passing between the parties in February 2017, the plaintiffs did not request to conduct another flushing water test.  They just suggested using CCTV and test paper, and the defendant has agreed to these.

(4)   In respect of the defendant’s objection to the summons, I have ruled that the objection is well founded.  There are other documents in the trial bundles, the inclusion of which in the trial bundles is objected by the defendant.  I have considered these documents.  Suffice to say that these documents would not have an impact on the outcome of this case.  The defendant’s objection to the inclusion of these documents in the trial bundles is not unreasonable.

80.  Further, while the defendant was giving evidence, Ms Yue did not suggest to the defendant that she was trying to suppress evidence and to conceal the truth.  That being the case, it would not be permissible for Ms Yue to ask this court to make a such finding against the defendant.

EXPERT EVIDENCE

The Prudential Report

81.  In the Prudential Report, in §1.5, it is stated:-

“Witness Statements at 8.1 and 8.2 in this report is prepared and signed by inspecting officer.”

However, the report does not contain section 8.1 and section 8.2, and the witness statements mentioned in §1.5 are not found in the report.

82.  Under §1.5 of that report, there is a space reserved for someone to sign this report on behalf of Prudential and to put down a date under the signature.  However, there is no signature on the report and the report is undated.

83.  Taking all the aforesaid into account, I am not satisfied that the Prudential Report produced by the plaintiffs is the final version and is a complete copy.  The report produced may well be a draft.  I attach no weight to the Prudential Report produced by the plaintiffs.

The plaintiffs’ expert - LSL

84.  LSL has produced 7 reports, and made the Joint Report together with PL.  In the Joint Report, the two experts cannot agree on the source of the water leakage but are able to agree on the cost of the necessary repairing work in 1103.

85.  In her 1^st report dated 12 May 2015, LSL concluded that (1) the seepage in the living room of 1103 originated from the sewage pipe in 1203, and (2) the seepage in the kitchen of 1103 originated from the flush water pipe in 1203.  Her analysis is as follow:-

(1)   She noted that the water samples from both the living room and kitchen contained chloride ion, indicating that it was salt water.  Therefore, she precluded the fresh water pipe as the source of leakage.

(2)   She noted that the water sample from the kitchen did not contain ammonia, indicating that it was not sewage.  Therefore, she precluded the public sewage pipe as the source of leakage.  She said that such leakage should come from the flush water pipe in 1203.

(3)   She noted that the water sample from the living room contained ammonia, indicating that it was sewage.  Therefore, she concluded that private sewage pipe in 1203 was the source of leakage.

86.  The aforesaid opinion was given by LSL without inspecting the suspected pipes themselves.  There are problems in her reasoning:-

(1)   For both flush water and sewage, there are private pipes and public pipes.  LSL has no reason to exclude the public ones as the source of leakage.

(2)   Further, there is no presumption that the source of leakage would necessarily come from the flat above.  LSL has no reason to exclude flush water and sewage pipes of other units as the source of leakage.

87.  LSL’s 2^nd report dated 30 October 2015 and 3^rd report dated 19 December 2015 are similar to each other.  In both reports, she concluded that (1) the seepage in the living room of 1103 originated from the sewage pipe in 1203, and (2) the seepage in the kitchen of 1103 originated from the flush water pipe in 1203.  Her reasons are as follow:-

(1)   She noted that the water samples from both the living room and kitchen contained chloride ion, indicating that it was salt water.  Therefore, she precluded the fresh water pipe as the source of leakage.

(2)   She noted that the water sample from the kitchen did not contain ammonia, indicating that it was not sewage.  Therefore, she precluded the public sewage pipe as the source of leakage. She said that such leakage should come from the flush water pipe in 1203.

(3)   She noted that the water sample from the living room did not contain ammonia.  She maintained her conclusion that the private sewage pipe in 1203 was the source of leakage.

88.  The reasoning in the 2^nd and the 3^rd reports is problematic:-

(1)   Same as for the first report, LSL did not inspect the suspected pipes, and she had no valid basis to exclude the public pipes and the private pipes of other units as the source of leakage.

(2)   There was a fundamental change in observation in the 2^nd report and the 3^rd report – no ammonia was found in the water sample from the living room.  It is inexplicable that why the conclusion that the leakage originated from the private sewage pipe in 1203 can still be maintained notwithstanding this change.

89.  LSL’s 4^th report dated 12 September 2016 is only concerned with the cost of repairing.  Later, in the Joint Report dated 14 July 2017, the two experts managed to agree that the cost of repairing should be HK$37,802.30.

90.  In her 5^th report dated 28 December 2016, LSL changed her opinion.

(1)   In the first 3 reports, she distinguished between the two suspected sources by saying that (a) the seepage in the living room originated from the sewage pipe, and (b) the seepage in the kitchen originated from the flush water pipe.

(2)   In the 5^th report, she merely said there was some evidence indicating that the seepage in the living room and the kitchen originated from the sewage pipe and flush water pipe.

91.  In the 5^th report, LSL said the following:-

(1)   It was reported that a color water test was conducted in the toilet bowl (hence the private sewage pipe) in 1203 on 20 August 2016.  No dyed water was found in 1103 in two subsequent inspections on 15 September 2016 and 10 November 2016.

(2)   It was also reported that LSL found serious corrosion with the public sewage pipe.  She also said that she could not determine if there was leakage from the pipes behind the toilet bowl in 1203.

92.  The basis of the conclusion in LSL’s 5^th report is unclear.  However, the contents of this 5^th report in fact does not support the plaintiffs’ case:- 

(1)   The result of the color water test is evidence indicating that there was no leakage from the toilet bowl hence private sewage pipe in 1203.

(2)   LSL said that she could not determine if there was leakage from the pipes behind the toilet bowl in 1203.  Those pipes would include the private flush water pipe.  That being the case, it cannot be said that one source of leakage was the private flush water pipe in the toilet in 1203[13].

93.  In her 6^th report dated 18 March 2017, LSL concluded that there was water seepage in the pipes inside the void, and that the seepage in the living room and the kitchen of 1103 originated from the sewage pipe and flush water pipe in 1203.  Her reasoning is as follow:-

(1)   There were water drips on the surface of the pipes inside the void in the balcony of 1203[14].

(2)   The water sample in both the living room and the kitchen of 1103 contained chloride ion, indicating that it was salt water.  The water sample from the kitchen contained ammonia, indicating that it was sewage.

(3)   The moisture content reading rose after the toilet in 1203 was flushed, suggesting that the change in moisture content was related to the use of the toilet.

94.  The reasoning is unconvincing:-

(1)   In her 7^th report, LSL confirmed that there was no dampness found inside the void.

(2)   There is no basis to exclude the public pipes and the private pipes in other units as the source of leakage.

(3)   The outcome of the flushing water test is inconclusive.  After all, water flushed from the toilet bowl would pass through the private sewage pipe and then immediately the public sewage pipe.  The outcome of the water flushing test can equally mean that there was leakage from the public sewage pipe.

(4)   Further, it has to be borne in mind that the color water test conducted by LSL does not suggest the private sewage pipe in 1203 to be a likely source of leakage.

95.  In the 7^th report dated 13 June 2017, LSL did not say that the seepage in the living room and the kitchen of 1103 originated from the sewage pipe and flush water pipe in 1203. On the other hand, she said the following:-

(1)   No dampness was found in the pipes inside the void in the balcony of 1203.

(2)   There was water seepage in 1103, and it was not caused by seepage from the external wall.

96.  The 7^th report itself does not support the plaintiffs’ case.

97.  As a summary, the expert evidence from LSL concerning liability is as follow:-

(1)   The conclusions in the first 3 reports were reached without inspecting the suspected pipes.  There was no basis to exclude the public pipes and private pipes in other units as the source.  That the same conclusion was reached despite the opposite findings of ammonia is unconvincing.

(2)   In the 5^th report, the outcome of the color water test is evidence showing that the private sewage pipe in 1203 was not the source.  LSL also said that she could not determine if there was leakage from the flush water pipes.

(3)   Part of the findings in the 6^th report is contradicted by the 7^th report.  There is no basis to exclude the public pipes and private pipes in other units as the source of water leakage.

(4)   In the 7^th report, LSL did not express any definite view on the source of the leakage, apart from saying that the external wall was not the source.

The defendant’s expert – PL

98.  PL has produced 4 reports, and made the Joint Report together with LSL.

99.  In his 1^st report dated 15 July 2016, PL opined that the source of dampness should be flush water originating from the deteriorated and worn-out pipeline at the Interconnection Point.  He reached this conclusion after conducting the following:-

(1)   Visual inspection: Visual site inspections were conducted at 1103 and 1203.

(2)   Protimeter checking: A protimeter was used to measure the moisture content of the suspected wet area. The color-coded zones signified the moisture condition of the material under investigation.  The various color-coded zones indicated the following: green indicated safe air-dry condition; yellow indicated moisture levels being higher than normal but not critical; whereas red represented excessive moisture levels.

(3)   Infrared scanning: A mobile infra-red thermography camera was used to measure the moisture content of the suspected wet area.  Infra-red thermography camera produced images of invisible infra-red or heat radiation and provided precise non-contact temperature measurement capabilities.  Area with high moisture content would have relatively lower surface temperature.

(4)   Water sample analysis: Water sample was collected for water chemical analysis.  A test strip was used to measure the concentration of chloride ions of the water sample by comparing it with the color scale.  It helped trace the possible source of the water seepage.

100.  PL’s reasoning is as follow:-

(1)   The water sample contained chloride ions, indicating that it was salt water.

(2)   No apparent dampness is found on the flush water pipeline.  No apparent seepage or leakage is found in the toilet of 1203.

(3)   The highest moisture content reading was found near the corner of the kitchen in 1203, which was the nearest location to the communal pipe duct.

(4)   Serious corrosion, dampness and crystal deposit were found on the vertical communal cast iron soil and waste pipe.

101.  In his 2^nd report dated 25 March 2017, the conclusion and reasoning are similar to those in the 1^st report.  In the 2^nd report, PL confirmed that no seepage was found in the void and commented that the water color test did not indicate the toilet bowl to be the source of seeping water.

102.  In his 3^rd report dated 31 March 2017, PL placed emphasis on the result of the flushing test (ie flushing color water down the toilet bowl in 1203 and no dyed water was found in 1103) and that no dampness was found in the void.

103.  In his 4^th report dated 12 June 2017, PL said that there was no sign of leakage from the concealed pipes in the void.

Analyzing the expert evidence

104.  Ms Yue submits:-

(1)   The expert reports show that there was fluctuation of moisture content readings measured in 1103 from October 2015 (after the defendant’s repair works) to November 2017.  There was no intervening act by the defendant during this period.  This indicates that the leakage could not be attributed to the communal waste pipe.  Ms Yue says that the communal waste pipe, which runs through all floors of the building, is used every day by all the residents, and therefore the seepage rate and moisture content readings should be quite consistent.  Further, if the communal pipe was at fault, it would be quite impossible for the ceiling to dry up naturally in November 2017 without some kind of repair.

(2)   On 4 March 2017, LSL took moisture content reading in 1103 before and after flushing the toilet in 1203 continuously for 5 minutes.  The moisture content readings after flushing were higher in general.  This shows that the seepage is related to the usage of the toilet system in 1203.

(3)   The areas with the highest moisture content readings tend to be clustered around the parts of the ceiling immediately below the toilet in 1203.

(4)   The moisture content readings taken by the MO in May and June 2018 (after the communal pipe replacement work) are higher than those taken in November 2017.  This shows that the replacement of the communal pipe could not address the source of leakage. That means the source is not the communal waste pipe.

(5)   According to LSL, a negative result in the dye test may due to many factors and does not necessarily mean that there is no water leakage.

(6)   Microwave leakage detection performed by LSL and recorded in her first 3 reports show that water leakage was found near the location below the defendant’s toilet, which was in the corner in 1103 with the living room on one side and the balcony on the other.

105.  Mr Siu submits:-

(1)   The fluctuation of moisture content readings without intervening act by the defendant can also mean that the leakage cannot be attributed to the private pipes in 1203.

(2)   The private sewage pipe is connected to the public sewage pipe.  The rise in moisture content readings after flushing the defendant’s toilet can be attributed to leakage in the public sewage pipe.

(3)   The areas with the highest moisture content readings are clustered around the public sewage pipe, which essentially is located in the same area with the private pipes in 1203.

(4)   If there is any rise in the moisture content readings after the replacement work of the communal pipe done by the MO, the problem may well be caused by the replacement work itself.

(5)   A negative result in the dye test can point to no leakage from the private pipes in 1203.

(6)   The microwave detection only shows that the leakage was close to the location of the public sewage pipe, which essentially is located in the same area with the private pipes in 1203.

106.  In my view, the points made by Ms Yue have been satisfactorily answered by Mr Siu.  I agree with Mr Siu’s submissions, and I am unable to accept Ms Yue’s submissions.  Having considered the evidence from the two experts and the submissions made by the parties, I am of the view that wherever there is a difference between the 2 experts, PL’s opinion should be preferred.  As set out in the above, LSL’s reasoning in support of her conclusion that the source of the water leakage was the sewage pipe and the flush water pipe in the toilet of 1203 is unconvincing. On the other hand, PL’s opinion is supported by scientific observations and tests.

107.  It has to be borne in mind that the private flush water and sewage pipes are above the floor level of the toilet of 1103.  If there were leakages from those pipes, dampness should be found in the toilet of 1103.  However, there is no such finding.  This also shows that PL’s conclusion should be preferred, and LSL’s conclusion is not correct.

LIABILITY NOT ESTABLISHED

108.  The plaintiffs’ pleaded case is that the toilet sewage pipes and the toilet water pipes in 1203.  Based upon the evidence accepted by this court, this claim has not been proved.  In the circumstances, the plaintiffs have failed in establishing liability.

109.  The source of the water leakage should be the Interconnection Point.  However, the plaintiffs cannot hold the defendant liable to this.

(1)   This is not the plaintiffs’ pleaded case.  Although there is evidence showing that the source of the water leakage was the Interconnection Point, issues in a civil litigation are not defined by the evidence but defined by pleadings.  The plaintiffs have never put forward any case based upon the Interconnection Point in their pleadings.

(2)   Further, whether the Interconnection Point is a common part of the building or a private part owned by the defendant is a fact sensitive issue.  That would depend upon whether the Interconnect Point is solely serving 1203 and not any other unit in the building.  Since the Interconnection Point is an unpleaded issue, no evidence has been led to show the Interconnection Point is a common part or not.

(3)   In the Affirmation, Lam said that in November 2017, the MO proposed to the plaintiffs that the MO would replace all the communal pipes running between 1103 and 1203, save for the flush supply pipe as that pipe was a relatively new plastic pipe.  The MO also told the plaintiffs that the incorporated owners would pay for the work as this was concerning with a communal part of the building.  This part of Lam’s evidence may suggest that the MO is of the view that the Interconnection Point (which would be covered by the work proposed by the MO) is a common part. However, Mr Siu has not cross-examined Lam on this issue.  Mr Siu has no need to do so, for the plaintiffs have not put forward a case based upon the Interconnection Point on their own pleadings.

(4)   Taking all the aforesaid into account, in my judgment, it would not be just and fair to allow the plaintiffs to make out a claim against the defendant by relying on the Interconnection Point.

110.  Since the plaintiffs have failed to prove their pleaded case, the plaintiffs’ claim must be dismissed.

RELIEFS IF LIABILITY ESTABLISHED

111.  For the sake of completeness, I would go on to discuss what reliefs should be given to the plaintiffs if liability is established.  Ms Yue has made it clear that if the plaintiffs succeed in proving liability, the plaintiff would seek the following reliefs:-

(1)   Injunction;

(2)   Cost for repairing 1103; and

(3)   Loss of rental income;

112.  If the plaintiffs succeed in establishing liability, I would grant an injunction to require the defendant to rectify and make good the toilet water pipes and sewage pipes in 1203 within a specified time at the defendant’s own costs.  However, I would not accede to the plaintiffs’ request to add “to eliminate any or any further water seepage and/or nuisance” in the injunction.  If the plaintiffs succeed on liability, that means the toilet water pipes and sewage pipes in 1203 are defective causing water leaking to 1103.  In that case, what the defendant should be required to do is to rectify and make good those pipes, no more and no less.  It would not be necessary and appropriate to add the additional words requested by the plaintiffs to the injunction.

113.  The two experts have agreed in the Joint Report dated 14 July 2017 that the repair cost should be HK$37,802.30.  Ms Yue seeks a higher figure.  In my view, there is no reason to allow the plaintiffs to depart from the figure agreed by the two experts in the Joint Report.  The two experts have inspected 1103.  Based upon the inspection and using their expertise, they came to the conclusion that the repair cost should be HK$37,802.30.  Ms Yue invites me to take the inflation factor into account.  However, the plaintiffs have produced nothing to show the precise inflation rate since the date of the Joint Report.  Further, if I allow this item, I would provide pre-judgment interest on this award and the inflation factor would be taken care by the interest.  In my view, the quantum under this head should be the figure agreed by the two experts, ie HK$37,802.30.

114.  In respect to the claim for loss of rental income, Ms Yue submits that 1103 has been vacant since the tenant left on 15 February 2015.  The tenancy agreement originally was supposed to last until 14 December 2015.  After the departure of the tenant, the plaintiffs have not been able to let 1103 to another tenant due to the poor condition of the unit caused by the water seepage problem.  Hence, the plaintiffs claim for loss of rental income.

115.  Mr Siu submits that there is no evidence showing that the defendant knew that 1103 was let out before the plaintiffs filing their statement of claim on 23 July 2015, and the defendant should not be liable for any loss of rental before having that knowledge.  Mr Siu relies upon Siu Kwok keung Raymond v Yee Shia Yuen[15] in support of his submissions.  I agree.

116.  Ms Yue tries to use the rateable value of 1103 to calculate the loss of rental income for the period after the original expiration date of the tenancy agreement between the plaintiffs and the tenant.  Ms Yue refers me to a letter of the defendant’s solicitors dated 30 July 2018, in which the defendant’s solicitors raised no objection to this approach.  In view of the stance of the defendant’s solicitors as set out in that letter, I accept the approach proposed by Ms Yue.

117.  Based upon the above, the loss of rental income should be the following:-

                   23 July 2015 - 15 December 2015

                          HK$8,500 x 4.75 months                     HK$40,375.00

                   15 December 2015 - 31 March 2016

                          (HK$103,920 /12) x 3.5 months           HK$30,310.00

                   1 April 2016 - 31 March 2018

                          (HK$114,360/12) x 24 months             HK$228,720.00

                   1 April 2018 - 24 September 2018

                          (HK$129,120 /12) x 5.75 months         HK$61,870.00

                                                                                      _____________

                                                   Total:                           HK$361,275.00

                                                                                      ============

118.  If the plaintiffs succeed in establishing liability, I would award the aforesaid damages together with interest to the plaintiffs to compensate the loss of rental income.

119.  However, since the plaintiffs have failed in proving liability, the discussion concerning reliefs as set out above are academic.

DISPOSITION

120.  I dismiss the plaintiffs’ claim.

121.  There be a costs order nisi that costs of these proceedings (including all costs reserved, if any) be to the defendant, with a certificate for counsel, to be taxed if not agreed.

122.  I thank Ms Yue and Mr Siu for the helpful assistance provided to the court.