GAY PROSPECT CO LTD v. LUI KAM ON JOHNNY

DCCJ 1230/2015

[2018] HKDC 654

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1230 OF 2015

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D E C I S I O N

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1.  This is an application for leave to appeal against my judgment handed down on 30 November 2017.  This is a water seepage case.  In my judgment I found that the water seepage to the plaintiff’s property came from the defendant’s property at Workshop 402 because of the defective waterproof membrane of the defendant’s property.  I granted mandatory injunction ordering the defendant to repair the waterproof membrane to prevent water seepage from his Workshop 402, to the plaintiff’s Workshop 302, and I also ordered the defendant to pay the plaintiff damages of HK$12,000 with costs.

2.  The defendant took out the present summons to seek leave to appeal against my judgment, seeking the judgment be set aside and costs.  There are two main grounds of appeal:

“(1) … The learned judge drew a wrong conclusion as to the source of seepage in that he has assumed water must have been flowing vertically downwards from Workshop 402 to Workshop 302, in contrary to the finding in Hui Ling Ling v Sky Field Development Ltd, HCA 35/2007 (unreported) 8 May 2012 that there is no presumption that the source of water must come from the flat above;

(2) In concluding that the waterproofing membrane of Workshop 402 was damaged, the learned judge failed to take into account and give sufficient consideration that (a) it was only the plaintiff’s expert, Miss Lau Shan-la’s mere speculation in believing that the structural alterations of Workshop 402 could have damaged the waterproofing membrane with no objective evidence; (b) the results of the fluorescent dye ponding test and fluorescent dye test were negative coupled with findings/observations of infrared scan and electrical conductivity tests which did not support the finding that the waterproof membrane of Workshop 402 was defective; (c) the Plaintiff’s expert was unable to offer any explanations as to why the fluorescent dye ponding test result was negative while water seepage was always experienced during rainy days where the amounts and time of rainwater being able to accumulate on Workshop 402 would be far less and far shorter than the amounts and duration of water accumulated on Workshop 402 during the fluorescent dye ponding test.

The learned judge erred in finding that the waterproofing membrane of Workshop 402 was damaged.”

Ground (1): water flowing vertically downwards from 402 to 302

3.  In arriving at this conclusion, I have analysed the opinion given by both experts.  In paragraphs 17 and 18 of my judgment, I have considered Mr Hau’s proposed water path and the reasons for rejecting his opinion. 

4.  First of all, there is not in dispute that there is no water seepage problem in Flat 301.  Even though the experts inspected 301 once only, the defendant has never raised any query as to the finding of that joint inspection at 301 nor suggested that there was in fact any water seepage problem in 301.  Therefore, I do not see any problem for this court to accept that there was no water seepage on the ceiling of Workshop 301. 

5.  When I considered the water path of Mr Hau, one of the important factor is that Mr Hau suggested that water came from 401 to 302 by firstly seeping through the floor slab between 401 and 301, and then the water took an abrupt turn sideway to the floor slab between 402 and 302 and then made another turn going vertically downwards to the ceiling of 302.

6.  In paragraph 18 of my judgment I stated that,

“If Mr Hau is correct, ie the waterproof membrane of Workshop 401 was defective, the concrete layer between Workshops 401 and 301 would not be less wet than the concrete layer above Workshop 302 or in between Workshops 402 and 302. There is no explanation as to why no signs of water seepage was observed at the ceiling of Workshop 301. Therefore, the situation at Workshop 301 in effect rebuts Mr Hau’s proposed water path.”

7.  I disagree with Miss Lee’s submission that the court has put undue weight on the fact that there is no water seepage in Workshop 301 and, by considering the lack of water seepage in 301, I reject Mr Hau’s opinion.  The court is entitled to take into account of all the circumstances when analysing the experts’ opinion.  After rejecting Mr Hau’s opinion, on balance of probability, I accept Miss Lau’s opinion.

8.  I have considered the various tests done by Miss Lau as summarised in paragraph 10 of my judgment and in paragraph 19 I have taken into account of the positive test results and negative results of Miss Lau’s tests, and in paragraph 21 of my judgment I stated the standard of proof is one on balance of probability and having regard the overall view of all the evidence, I came to the conclusion as suggested by Miss Lau. 

9.  Therefore, by adopting or accepting Miss Lau’s opinion does not necessarily mean that I make a presumption that water must have been flowing vertically downwards from Workshop 402 to Workshop 302.  It is a conclusion drawn by Miss Lau after her investigation and analysis, and also the conclusion adopted by this court after comparing the expert opinion of the two experts.

10.  In view of the above analysis, I reject the first ground of appeal.

Ground (2): whether this court has failed to take into account of certain matters

11.  Miss Lee raised that there are certain matters or shortcomings of Miss Lau’s expert report.  In fact, I have accepted Miss Lau’s expert opinion was not perfect as I have discussed those matters in paragraphs 19 and 20 of my judgment.  I think it is not difficult to pick up some unfavourable aspects of Miss Lau’s expert report and this will be the same as to every expert report.  The court has to be fair and to look at the entire circumstances.  As I have said, I have considered all the test results, including the positive results and negative results as stated in paragraph 19 and also paragraph 10, and, on balance of probability, it tips in favour of Miss Lau’s expert evidence, in which I preferred over Mr Hau’s.

12.  At the end of the day, even though Miss Lau’s expert opinion was not perfect, her opinion is more likely than not, therefore I accept her opinion.  I disagree with Miss Lee’s submission in the sense that an expert’s opinion is not required to be perfect for the court to accept.  I can accept there are certain aspects not very perfect but overall Miss Lau’s evidence is preferable.  As a result, I disagree with the second ground of appeal.

Conclusion

13.  For the above reasons, I do not see any reasonable prospects of success of the defendant’s application for leave to appeal.  I therefore dismiss the defendant’s application with costs to the plaintiff with certificate for counsel.

Costs

14.  Upon perusing the plaintiff’s statement of costs for summary assessment and upon hearing parties’ submission on costs, I summarily assess the plaintiff’s costs at HK$50,000.