MOHAN SELVARAJ v. GRACE KA MAN O\'BRIEN

DCCJ 3872/2018

[2019] HKDC 1365

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3872 OF 2018

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DECISION

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1.  This is an application for leave to appeal against a summary judgment and an application for stay of execution of an injunction by the defendant.

2.  This is a water leak case and the background has been discussed in details in my judgment dated 21 March 2019 (the “Judgment”).

3.  The legal principle of allowing leave for appeal is trite and need not be repeated here.

The grounds of appeal in the draft Notice of Appeal

4.  According to the Notice of Appeal, the grounds of appeal was based on dispute on the court’s factual findings, namely, as I summarised), that the court has erred in:

i)  the degree of reliance on the two “inconsistent” water leak reports (Grounds 1 and 2);

ii)  that the mandatory injunction was necessary when the bathroom was not in use and that this application has been abandoned by the plaintiff (Ground 3);

iii)  that leave should be granted for proper expert evidence (Ground 4);

iv)  that no weight was placed on the defendant’s “rain storm hypothesis” (Ground 5);

v)  that no weight was placed on the defendant’s assertion that there was no consumption of water from her flat (Ground 6).

5.  I would think that Grounds 1, 2, 5 and 6 are a rehashing of all the arguments already raised in the summary judgment hearing. The factual findings of the court and the reasons thereof (including the alleged “inconsistencies” of the water leak reports) have already been addressed in the Judgment.

6.  As for Ground 3, although it was not specifically mentioned in the Judgment that the plaintiff had abandoned the mandatory injunction, it was a finding of fact, as supported by the MTC report, that the defendant’s claimed effort of “water-proofing” her bathroom was entirely ineffective and I cannot see why the court, in the interest of fairness and justice, and in exercising common sense, should not reinstate the mandatory injunction. Such reasoning was clearly explained in the Judgment.

7.  Ground 4 is a “hybrid” argument rehashing the alleged “inconsistency” of the two water leak reports and arguing that “proper” expert evidence should be allowed to be adduced. The court was drawing a distinction between, on one hand, a pure lay hypothesis advanced by someone with no experience and who has carried out no test in support of that hypothesis, and on the other, reports of investigations under controlled conditions by experts in the field.

8.  I agree with Mr. Brown, counsel for the plaintiff, that the purpose of Order 14 application is to stop those proceedings where the defendant’s claim is sufficiently weak that there is simply no point requiring parties to go to the time and expenses to produce expert’s reports and proceed to trial for cross examination of experts and other witnesses. It is wrong to propose that, regardless how strong the plaintiff’s case is, if one can claim that expert evidence is required, Order 14 cannot be granted. 

9.  The citing of Li Ching Har & Anor v Wong Suk Kit[2019] HKDC 150 in the Judgment was not a general proposition that “the party who proposed a hypothesis must produce supportive expert evidence” at the summary judgment application stage. The passage, when read with the next paragraph (paragraph 20 of the Judgment), was to provide a background to the defendant’s behaviour, what effort she has done to “satisfy the court that she has a fair or reasonable probability of showing a real or bona fide defence”, and why no weight should be placed on this “rain storm hypothesis”. These paragraphs have already dismissed the argument (which Mr. Hughes, counsel for the defendant, rehashed in the current hearing) that the defendant did not have enough time to seek expert report.

10.  I also think that Good Century Investments Limited v Yim Kin Kuo & Anor [DCCJ 4980/2013] does not assist the court. In that case, there was competing expert evidence so clearly Order 14 application was not suitable. Here, there was ample time for the defendant to “satisfy the court that she has a fair or reasonable probability of showing a real or bona fide defence” by perhaps conducting her own tests or instructing her own expert in support of her lay hypothesis, but she failed to do so. The court was drawing an inference from such behaviour as so how much weight one should place on that lay hypothesis.

Further grounds raised at the hearing

11.  Mr. Hughes, during the hearing, raised 2 new triable issues (out of 5 triable issues: the remaining 3 are already addressed in the Notice of Appeal), namely, that the Judgment did not address the defendant’s contention that the water leak could be from the external wall, and whether the water-leakage into parts of the plaintiff’s flat other than the bathroom ceiling was caused by this external wall leakage.

12.  I would think that the “water leakage from external wall” was the “rain storm hypothesis” which I have addressed in the Judgment.

13.  Mr. Hughes placed a lot of emphasis on the existence of a complaint of external wall water leak during an incorporated owners’ committee meeting on 29 August 2018 from flats 16C and 17C.

14.  These were not the flats involved in the current case and there was no further information as to what investigations and remedial measures, if any, were done. I fail to see how that has any relevance to the defendant’s “rain storm hypothesis”.

15.  In fact, the only argument raised by Mr. Hughes with any persuasive strength was, as I paraphrased, whether all the damages claimed by the plaintiff was caused by the water leak from the defendant’s bathroom given that the MS Report only identify the plaintiff’s bathroom ceiling as the location of water seepage in the “Inspection Record of the Affected Premises” (page 70 of hearing bundle 2) and no other areas of water damage were reported.

16.  Firstly, this is a “causation” argument which was neither raised in the summary judgment hearing nor in the Notice of Appeal. Mr. Brown, quite rightly, argued that this issue needed not be addressed at all.

17.  Nevertheless, for the sake of completion, I will proceed to address this.

18.  The plaintiff’s case, as stated in the Statement of Claim, has always been that the source of the water seepage was from the defendant’s flat onto the ceiling of the bathroom of the plaintiff’s flat, but the damage caused was not restricted to only the ceiling of the bathroom, but “the ceiling, wallpaper, and paintwork of the bathroom, bedroom and living room.” (see paragraphs 4 and 18(1) etc. of the Statement of Claim, pages 29 and 33 of the hearing bundle 1).

19.  Mr. Hughes has suggested that, since there was a complaint of water leakage in the bedroom wall of two other flats in the building, this necessarily meant that there was a triable issue that the water damage to the bedroom and the living room of the plaintiff’s flat could also be from the external wall.

20.  Firstly, this was another attempt to re-introduce the “rain storm hypothesis” which I have addressed already.

21.  Secondly, regarding the MS Report: it is important to note that the purpose of the report is to investigate the source of water leakage: the title of the report is “Testing Services for Water Seepage Investigation Inspection Report” (page 66 hearing bundle 2).

22.  This is a water leakage investigation report, not a surveyor’s report on water damages in the entire flat. In other words, the report is never intended to be a comprehensive documentation of all areas damaged by the water after it had entered the flat.

23.  The section referred to by Mr. Hughes is titled “location of water seepage”, that is, to show the location where the water has entered into the plaintiff’s flat (and moisture content etc. has been measured to verify such). The section is titled “location of water seepage” and not “location of water damage”.

24.  As such, the fact that the MS report does not mention the ceilings of the bedroom or living room etc. could not be taken as to mean that there was no sign of water damage there, or that any water damage there was not related to the source of the water seepage from the bathroom ceiling: areas not mentioned were simply areas not identified as the locations of the source of water entry into the plaintiff’s flat.

25.  It is clearly open for the court to look at all evidence, including the Affidavit of the plaintiff and all the exhibits, to come to a view whether all such damages claimed by the plaintiff were caused by the water first entered from the bathroom ceiling and not from any other sources (like the “rain storm / external wall hypothesis”).

26.  The court finds no confusion regarding the sites of the water damage. Paragraph 11 of the plaintiff’s 1^st Affidavit clearly describe that the signs of water damage were in the ceiling of the living room, bathroom and bedroom and these were “the living room and the bedroom directly adjoining the bathroom” (page 64 of hearing bundle 1). The diagram attached clearly showed where the affected areas were (page 31 of hearing bundle 2) and these were entirely consistent with the description in the affidavit.

27.  Further supportive evidence is from the letter from the management office which stated that their staff found signs at the “living room and bedroom of unit 14C…When our staff open the false ceiling of the bathroom…we found water dripping on the roof (presumably they meant again “ceiling”),suspect that it was due to water leakage problem of some facilities in unit 15C…” The signs in these areas were found at the same time.

28.  I also note that the quote for the damage repair (page 111 of the hearing bundle 2) was for (as I translate): “1. Bathroom remove ceiling, remove and repair plaster… 2. Remove and re-do wall paper on living room ceiling and on wall near bathroom wall…5. Replace wall paper in master bedroom wall near the bathroom 6. In addition, replace master bedroom ceiling wall paper…” These are also consistent with the areas of water damage alleged by the plaintiff.

29.  The court has clearly come to the decision after assessing such evidence that all such damages claimed by the plaintiff were caused by the water seepage from the bathroom ceiling, and not from the “rain storm / external wall hypothesis”.

30.  In passing, Mr. Hughes also submitted that there is a discrepancy in the plaintiff’s case: in the General Indorsement of Claim, it was stated “The Plaintiff’s claim is for damages…suffered by the Plaintiff including, but not limited to, repair costs, distress…as a result of water seepage since June 2017 onwards emanating from the Defendant’s premises…”; in the letter before action dated 21 August 2018 (page 43 of Hearing Bundle 2), the plaintiff’s lawyer stated “You have been aware of the water seepage problem emanating from your flat since early June 2017…”; and yet in the Statement of Claim, it was stated under paragraph 4 (page 29 of Hearing Bundle page 29): “On or about June 2016, the Plaintiff first noticed dark spots and dampness in the ceiling…”

31.  I do not see any problems with the pleadings.

32.  The General Indorsement of Claim clearly stated that the claim for damages includes but not limited to the water seepage since June 2017. The letter before action only refers to the date that the defendant was aware of the water seepage. Paragraphs 4 to 8 of the Statement of Claim explained all this: the plaintiff first noticed dark spots on or about June 2016 and has notified the management office. But the management office was unable to obtain any response from the plaintiff. The water leakage worsened by June 2017 and the defendant finally responded to the management office this time, thus it was correct (and fair) to state (in the letter before action) that the defendant must be aware of the problem since then.

Conclusion

33.  In conclusion, I see no reasonable prospect of success of an appeal and I also see no reason in the interest of justice for an appeal to be heard.

34.  I would order that the defendant’s applications for leave to appeal and for stay of execution be dismissed with costs to the plaintiff to be taxed if not agreed, with certificate for counsel.

DCCJ 3872/2018

[2019] HKDC 387

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3872 OF 2018

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DECISION

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1.  This is an application for summary judgment and injunctions in a water leak case.

2.  The plaintiff is the owner of a flat on the 14th floor (“P’s Flat”) of an apartment block and the defendant is the owner of the flat directly above (“D’s Flat”).

3.  The plaintiff case was he first detected water leak on the ceiling of the bathroom in June 2016 and this has continued until January 2019 when no signs of water leakage was detected.

4.  The plaintiff’s case was supported by two inspection reports both commissioned by the Building Department and Food and Environmental Hygiene Department Joint Office (the “Joint Office”). The first report was based on inspections and water leak tests performed around November and December 2017 by Multiple Surveyors Ltd (the “MS Report”) and the second report was based on inspections and water leak tests performed around August 2018 by Modern Testing Consultants Limited (the “MTC Report”).

5.  Both reports concluded that the source of water seepage was from D’s Flat. The MS Report stated the source as “infiltration from the enclosing walls and the floor slab of bathtub of bathroom” (page 75 of Hearing Bundle B). The MTC Report stated that “Infiltration from floor slab including the enclosing walls of the shower area of bathroom was certain” (page 99 of Hearing Bundle B).

6.  The defendant’s case was firstly, that D’s Flat “was simply left vacant with no tenant or occupier living in it at all material times” ever since the defendant emigrated “well before June 2017” (page 71 of hearing Bundle A, paragraph 6 of Affidavit of Sit Ka Yin Priscilla (“Madam Sit”)).

7.  Secondly, the defendant sought to discredit the two inspection reports and Madam Sit stated that she “strongly suspect that water seepage...was due to the particularly heavy rain and typhoon season in the summer of 2017...”

8.  Thirdly, the defendant stated that she had engaged “a house repair / renovation service provider to remove the bathtub altogether and seal the area with water proof sealant and white cement” in June 2018 (paragraph 17 of Madam Sit’s Affidavit, Page 75 of Hearing Bundle A) and that “subsequent confirmatory test...all showed that the problem of water seepage was already resolved...” (paragraph 34 of Madam Sit’s Affidavit, page 80 of Hearing Bundle A).

9.  The legal principle of summary judgment is trite and I need not repeat it here: simply put, the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence.

10.  I also need not repeat the “no presumption of water leak from property above” principle as stated in Leung Yung Chun v Chan Wing Sang [2000] 1HKLRD 456.

11.  The defendant’s first ground was just a bare assertion: she has produced a copy invoice from the Water Service Department (“WSD”) dated 11 December 2014 showing no consumption of water from 2008 to 2014. This is irrelevant since the period of water leak alleged was June 2017 to January 2019.

12.  I also do not accept the submission from Mr. Joseph Wong (“Mr. Wong”), the defendant’s counsel, that the defendant did not have enough time to obtain updated evidence from the WSD: the Summons was taken out in December 2018 and it should be clear right from then that if “no occupier” was a valid ground, much more evidence could be obtained to support this from WSD or otherwise.

13.  Mr. Wong also suggested that the two inspection reports were inconsistent and therefore should be disregarded.

14.  I cannot see what is inconsistent between the two reports: the situation in the bathroom in D’s Flat had been altered between the two reports: as Madam Sit herself stated, the bathtub had been removed, and the change was clearly shown in the photographs enclosed in both reports.

15.  More importantly, whatever remedial work alleged to be done by the defendant’s house repair / renovation service provider, it was clearly ineffective: the defendant stated that the bathtub was removed and the area “sealed by water proof sealant and white cement”, but the MTC Report shows that the dye went straight through the area in the water ponding test resulting in the dye showing in P’s Flat on the same day.

16.  By looking at the photographs enclosed in the MTC Report, I have commented (in my non-expert eyes) that it looked as if the bathtub was simply removed and the floor and walls were left in bare concrete and without tiles.

17.  I think this observation was supported by the MTC Report. On “visual examination on the condition of the suspected area” (page 97 Hearing Bundle B), it reported “sign of poor workmanship or dilapidation” on the “floor surface” and “wall surface enclosing the bathing area” and “no water tight sealant between bathtub / shower tray and the enclosure wall”. One would expect that if there was “water proof sealant” and “white cement” in that area, the MTC Report would have reported such findings.

18.  The defendant also sought to discredit the MTC Report by submitting a letter dated 5 September 2017 from the Joint Office which seemed to suggest that the water ponding test performed on 29 August 2017 was negative (“no immediate color change at the ceiling of bathroom was detected”). However, this letter was written before the MTC Report was released (it stated that “2^nd monitoring of result of the confirmatory test was arranged 3 weeks later”) so it is, at best, an interim update before all confirmatory test was completed. Further, the inspection and tests were done by Modern Testing Consultants Limited and not by the Joint Office, so I see no reason why I should put any weight on what was stated on this letter.

19.  More importantly, Madam Sit has merely proposed a “rain storm hypothesis”. She is not an expert and it is always down to the party who proposed a “hypothesis” must produce expert evidence to support it. (Li Ching Har and Anor v Wong Suk Kit[2019] HKDC 150)

20.  The defendant had plenty of time to seek expert opinion: she stated that “I had strongly suspect that the water seepage...was due to the particularly heavy rain and typhoon in the summer of 2017” (paragraph 11 of her Affidavit, page 72 of Hearing Bundle A) and it was not in dispute that the Joint Office had issued a Nuisance Notice on 17 April 2018. As such, the defendant had all these times to instruct an expert to support her hypothesis but there was no evidence that she has done so. Certainly she has not produced any expert report at any time. Therefore, what she proposed is a “bare” hypothesis from a non-independent non-expert. I see no reason why I should put any weight on this hypothesis.

21.  In any case, it is trite that the fact that there might be other leakage paths would not relieve the defendant from liabilities of the source of water leakage from her own flat as proven by two inspection reports (Wong Ping Chun v Giant King Corporation Limited DCCJ 4020/2012).

22.  As for the defendant’s third ground, I have already addressed above that the MTC Report clearly shows that whatever remedial measure the defendant has done was ineffective.

23.  After considering all the defendant’s grounds, I find that there is no fair or reasonable probability the defendant can show a real or bona fide defence.

24.  In fact, I would go further to say that the situation has been made worst (since the defendant’s “remedial attempt”) than before because the bare concrete floor would now allow any water on the surface to leak straight through (as shown in the quick results in the water ponding test stated in the MTC Report). Even if the defendant’s case was true that D’s Flat was not occupied and thus the bathroom was not in use, the bathroom floor still needed to be properly water-proofed because of the many potential sources of water there: the toilet and the taps of the basin, not to mention all the water pipes and drains concealed or otherwise. Any future leakage of any of these would mean that the water would be leaked straight to the floor below. This is a foreseeable risk. The plaintiff has a legitimate concern because the fact that he could no longer detect signs of water leak since January 2019 might simply be because the bathroom has not been in use, and not that effective water-proofing has been installed. So there is a good arguable case to impose an injunction for the defendant to perform reasonable water-proofing work on the bathroom floor.

Order

25.  I would according allow judgment be entered on liability for all losses and damages to P’s Flat leaving damages to be assessed.

26.  I would also give an injunction that the defendant should take all reasonable measure to remedy the defect as stated under Section E paragraph 1 of the MTC Report within 56 days of this order.

27.  There be an order nisi for the costs of this application be to the plaintiff to be taxed if not agreed, and with certificate for counsel.