FU SAU TAI, RAYMOND v. WOO KWONG PO AND ANOTHER

DCCJ 5546/2020

[2025] HKDC 1845

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5546 OF 2020

---------------------------------------

BETWEEN

---------------------------------------

-------------------------------

DECISION ON COSTS

-------------------------------

Introduction

1.  On 29 July 2025, the 1^st and 2^nd Defendants applied by Summons dated 4 June 2025 (the “Summons”)[1] to vary the costs order nisi I made in para.111 of the Judgment dated 29 May 2025 that the 1^st Plaintiff do pay the costs of the 1^st and 2^nd Defendants, with Certificate for Counsel for the trial, to be taxed if not agreed. The costs order nisi was made upon dismissal of the 1^st Plaintiff’s claim herein after a trial that lasted 4 days.

2.  As the 1^st Plaintiff indicated that he would oppose the Summons, directions were made for the filing of further affirmations for consideration by the court. Pursuant to the directions, on 20 August 2025, Ms Wu Xue Ping, the 1^st Plaintiff’s wife, filed her affirmation on behalf of the 1^st Plaintiff in opposition to the Summons. On 4 September 2025, the 1^st Defendant filed his affirmation in reply, on behalf of the Defendants.

The basis of the Defendants’ application

3.  This application was made pursuant to Order 22, rule 23(1) & (4), Order 22A, rule 1 and Order 42, rule 5B(3) of the Rules of the District Court, Cap.336H (“RDC”).

4.  In particular, Order 22, rule 23(1)(a) and (4) provide that where a plaintiff fails to obtain a judgment better than the sanctioned payment, the court may order that the defendant is entitled to (a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment without requiring the leave of the court, and (b) interest on the costs referred to above at a rate not exceeding 10% above judgment rate.

5.  Further, according to Order 22, rule 23(5), “[w]here this rule applies, the Court shall make the orders referred to in paragraphs (2), (3) and (4) unless it considers it unjust to do so”[2].

6.  Rule 23(6) sets out the matters the court shall take into account when considering whether it would be unjust to make such orders, which include (i) the terms of the sanctioned payment, (ii) the stage of the proceedings at which the payment was made, (iii) the information available to the parties at the time of the sanctioned payment, and (iv) the conduct of the parties with regard to the giving or refusal to give information for the purposes of enabling the parties to evaluate the sanctioned payment. In this regard, the plaintiff bears the burden of showing that it would be unjust to make such an enhanced costs order (see Kan Lai Ling v Wong Man Kit[2024] HKDC 1686 at para.19).

7.  The basis of the present application is that pursuant to Order 22, rule 8 of the RDC, the 1^st and 2^nd Defendants made a sanctioned payment into court in the sum of HK$75,000 on 16 September 2021 in respect of the whole of the claim. The Notice of Sanctioned Payment was filed and served on the same day.

8.  As such, pursuant to Order 22, rule 15(1) of the RDC, since the sanctioned payment was made not less than 28 days before the commencement of the trial, the 1^st Plaintiff could have accepted it without requiring the leave of the court, not later than 28 days after the sanctioned payment was made, i.e. on or before 14 October 2021.

9.  Apparently, the 1^st Plaintiff did not accept the sanctioned payment, and according to the Defendants, nor had he responded by way of any sanctioned offer or without prejudice correspondence.

10.  The Defendants therefore say that had the 1^st Plaintiff accepted the sanctioned payment, he would have been entitled to his costs of the proceedings up to the date of his acceptance, and the parties would not have to go through the stress and suffer the costs of the proceedings any further some 4 years ago.

11.  The Defendants further submit that the sanctioned payment was made after the close of pleadings and at a time when the 1^st Plaintiff was legally represented, and as mentioned above, he had not attempted to engage in further negotiations, or to seek clarification of the sanctioned payment. This failure on the 1^st Plaintiff’s part is also reinforced by his rejection of payment of the uninsured loss under Incidents 1 and 2 referred to in para.74 of the Judgment, which led to that part of the claim being forced to be tried.

12.  It is also submitted by the Defendants that if the costs order nisi is not varied, they will in reality be penalised rather than rewarded for their attempt to end the proceedings on terms which would have been extremely favourable to the 1^st Plaintiff, given the Judgment after trial.

Applicable principles

13.  As already highlighted above, the provisions in Order 22, rule 23 of the RDC are mandatory directions, unless the Court considers it unjust to apply them. It would appear that one of the considerations is whether, when a plaintiff decides not to accept a sanctioned payment, he must have done so on a fully informed basis, accepting that he bears the risk of failing to obtain a judgment better than the sanctioned payment and the costs consequences that follow – see Tsang Chiu Yip y Ho Kwok Leung [2016] HKCFI 1297 at para.63, referring also to Cai Guoping v Yim Hok Wing, CACV 96/2015, 13 October 2015.

14.  Importantly, in Tsang Chiu Yip, the court also said at para.47:

“A defendant can make a sanctioned payment at any time (eg before disclosure of witness statements and/or expert reports and hence before the plaintiff knows the full extent of the defendant’s case), and there is no embarrassment even if it is not clear how the sanctioned payment is calculated. For the plaintiff, he makes an assessment of the risk of failing to beat the sanctioned payment in deciding whether or not to accept it (and he does so under advice and on materials then available). Even if the plaintiff decides not to accept the sanctioned payment within the prescribed time, it is always open to him to reassess the risk, and if on such reassessment he decides it will be in his interest to accept the sanctioned payment, he can apply to the court for leave to accept out of time.” [underline added]

The terms of the sanctioned payment

15.  The 1^st Plaintiff argues that the sanctioned payment did not provide for any injunctive relief, and thus even if accepted, it could not have effectively stopped the leakage at that time or prevented future leakage.

16.  However, as the Defendants have pointed out, the 1^st Plaintiff’s claim was dismissed by this court after trial. In other words, the 1^st Plaintiff has failed on both the claim for injunctive relief and damages. The submission by the 1^st Plaintiff that it would be unfair to disallow him to pursue injunctive relief cannot be correct – see for example Kan Lai Ling v Wong Man Kit[2024] HKDC 1686 at para 26.

17.  The 1^st Plaintiff also submits that as the leakage then was continuing, it could not have been reasonably ascertained whether the lump sum sanctioned payment would be sufficient to compensate for the 1^st Plaintiff’s continuing loss and damage. I do not agree with this submission. Firstly, the 1^st Plaintiff would have been in a position to ascertain his loss and damage at the time when the sanctioned payment was made. As this was a claim initiated by the 1^st Plaintiff, he would have been at full liberty to assess or re-assess the cause of the leakage at any stage of the proceedings. This is also said in the light of the fact, as pointed out by the Defendants, that in any event the 1^st Plaintiff must have been fully apprised of the findings of the Joint Office of the Buildings Department and Food and Environmental Hygiene Department, as well as the findings of the Management Office, which have been eventually considered and discussed in the Judgment.

The stage of the proceedings when the sanctioned payment was made and the information available at that time

18.  The 1^st Plaintiff does not challenge the Defendants’ entitlement to make a sanctioned payment at any stage of the proceedings, but he contends that it would not have been reasonable to accept the sanctioned payment as only limited information was available at the time when it was made in September 2021. In support of this argument, the 1^st Plaintiff has referred to a number of documents that came about afterwards, including the Joint Expert Report of the parties’ experts dated 23 August 2022, the test report by Modern Testing Consultants Limited dated 20 February 2023 recording the results of the water spray tests on the external wall (see paras. 57 and 107 of the Judgment), the inspection report by Prudential Surveyors International Limited dated 4 October 2021, in which the surveyor could not identify the Defendants’ premises as the source of leakage, the letter dated 14 October 2022 from the management office recording that the external wall was the source of leakage, and the Supplemental Joint Expert Report of the parties’ experts dated 21 July 2023 to that effect.

19.  However, as submitted by the Defendants, the sanctioned payment was made after the close of pleadings, and the 1^st Plaintiff was legally represented at the time. As the person making the claim, the 1^st Plaintiff with the advice of his legal representatives ought to have been in an informed position to assess the merits of his claim even at the commencement of the proceedings. Pausing here, the allegation that he was in fact planning to change his solicitors is an irrelevant consideration.

20.  The 1^st Plaintiff’s claim that he had made reasonable efforts to gather further information, including potential joint inspection which he had requested in August 2021, is neither here nor there, as that was apparently done before the sanctioned payment was made, at a time when the Defendants were yet to have legal representation.

21.  Further, and in any event, the fact remains that the documents referred to above which the 1^st Plaintiff says came about only after the sanctioned payment was made had nevertheless come to the knowledge of the 1^st Plaintiff in good time before the trial, but the 1^st Plaintiff has not indicated that he had sought to re-assess the merits of his claim in order to consider whether he should seek leave at a later stage before the trial to accept the sanctioned offer, which he has all along been fully entitled to.

22.  Also, as pointed out by the Defendants, the 1^st Plaintiff has sought to contend in para.23 of the affirmation of Ms Wu that “it was natural for the 1^st Plaintiff to rely on his expert, especially when he personally does not have any expertise in the area at all”. In this regard, I agree with what the court pointed out in Hui Wai Man v Chan Mei Wah [2015] HKDC 616 at paras.10 and 17:

“10. A plaintiff’s subjective belief that he has a good claim does not constitute a relevant consideration to override the mandatory direction in Order 22 rule 23...

……

17. While the plaintiff had the right to bring the case to trial, it is just for the plaintiff to bear the Specified Consequences imposed by Order 22 rule 23 RDC. His desire to test the defendant’s evidence and to resolve the issue at trial does not render it unjust for him to bear the costs of the defendant that should not have been incurred.”

23.  Here, the 1^st Plaintiff certainly has had the benefit of the contents of the expert evidence well before the trial, and in this regard, his desire to bring the case to trial justifies his having to bear the Defendants’ costs according to the rules.

The conduct of the parties regarding the giving or refusing to give information

24.  The 1^st Plaintiff sought to argue that he had through his former solicitors issued various letters to the Defendants for an inspection at the Defendants’ premises by the 1^st Plaintiff’s appointed expert as mentioned above, but the requests were not acceded to. However, in this regard, I agree with the Defendants’ contention that given that these were unilateral requests by the 1st Plaintiff for tests to be conducted solely by his expert, and that the Defendants were unrepresented at that time, they were understandably cautious about entering into such negotiations.

25.  In any event, as mentioned above, these invitations were made before the sanctioned payment was made, and there had indeed been tests and inspections carried out subsequently at both the 1^st Plaintiff’s and the Defendants’ premises, and 1^st Plaintiff had been able to lay his hands on the relevant reports and test results in any event.

Enhanced interest

26.  The Defendants ask the court to consider ordering that the 1^st Plaintiff shall pay enhanced interest on their costs by reason of the latter’s failure to accept the sanctioned payment in the circumstances set out above, at 5% per annum above judgment rate. The Defendants contend that the 1^st Plaintiff has taken a dismissive attitude towards the sanctioned payment and never responded to it, despite there is weighty evidence against his case. In short, the Defendants say the 1^st Plaintiff has run an utterly unmeritorious case, and therefore should be subject to such enhanced interest.

27.  The Defendants rely on Tse Lai Sing v Tung Wah Group of Hospitals[2021] HKDC 1095, but as the 1^st Plaintiff has pointed out, in that case, the court adopted 5% per annum above judgment rate as the enhanced rate of interest as the court found (see paras.16 to 17) that the appellant has deliberately exaggerated her evidence so as to bolster her claim. The 1^st Plaintiff submits that this has not been the case with him.

28.  The 1^st Plaintiff further refers to The Incorporated Owners of Shun Chi Court v Citi-Pro Property Services Company Limited[2023] HKCFI 2880 where DHCJ Leung (as he then was) considered a spectrum of cases and stated at paras.23-24:

“23. As to the enhanced interest rate, while this is a matter of discretion of the court, some guidance may be sought from the previous judgments of the court. For instance, extreme case of improper litigation conduct may attract the top rate: see Angbuhhang Netra Jang v Laing O’Rourke Construction Hong Kong Ltd, HCPI 69/2015 (27 January 2021) at §7.4% above the prime rate or 1% above the judgment rate has been considered to be generous: see Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2010] 3 HKLRD 273 at §19. 2% above judgment rate was directed in the absence of criticism about litigation conduct: see Chan Chun Ni v Chan Ngai Keung [2023] 1 HKLRD 888 at §§16-18.

24. Apart from proposing 5% above the judgment rate in counsel’s submission, the IO tendered no other material for the purpose of establishing an appropriate rate. On behalf of Citi-Pro, it is submitted that the present case does not bear circumstances warranting a rate over and above that should serve the purpose of penalising the rejection of the sanctioned offer. I tend to agree. I allow the enhanced rate of 2% above judgment rate.”

29.  There is no doubt that the facts of each case are different, and this issue is a matter of discretion by the court. I consider that in the circumstances of this case, the 1^st Plaintiff has acted unreasonably in failing to respond to the sanctioned payment in any way, or to take any initiative to engage in follow-up negotiations in light of the payment made, despite the further information made available to him afterwards as mentioned above. However, I agree that this is not the case here that the 1^st Plaintiff has deliberately exaggerated his evidence that would invite the court’s severe criticism in that regard as in Tse Lai Sing.

30.  Considering the circumstances overall, I am of the view that an enhanced rate of interest of 3% per annum above judgment rate is a fair one to order in this case.

Decision

31.  For the reasons set out above, I will vary the costs order nisi and make an Order that:

(1) The 1^st Plaintiff shall pay the 1^st and 2^nd Defendants’ costs of the action, including all costs reserved, up to and including 14 October 2021, on a party-and-party basis, to be taxed if not agreed;

(2) The 1^st Plaintiff shall pay the 1^st and 2^nd Defendants’ costs of the action, including all costs reserved, from 15 October 2021 on an indemnity basis with Certificate for Counsel for the trial, to be taxed if not agreed; and

(3) The 1^st Plaintiff shall pay enhanced interest on the costs and disbursements incurred by the 1^st and 2^nd Defendants on an indemnity basis from 15 October 2025 up to 29 May 2025 at 3% per annum above judgment rate, and thereafter at judgment rate until full payment;

(4) The 1^st Plaintiff shall pay the 1^st and 2^nd Defendants the costs of the Summons dated 4 June 2025, to be taxed if not agreed;

(5) The sanctioned payment in the sum of HK$75,000 paid on 16 September 2021 by the 1^st and 2^nd Defendants (together with interest accrued thereon, if any) be paid out to the 1^st and 2^nd Defendants forthwith through their solicitors, Messrs. Boase Cohen & Collins.

Mr Stephen Keung, instructed by King & Co, for the 1^st Plaintiff

The 1^st & 2^nd Defendants were represented by Messrs Boase, Cohen & Collins

DCCJ 5546/2020

[2025] HKDC 1844

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5546 OF 2020

---------------------------------------

BETWEEN

---------------------------------------

-------------------

DECISION

-------------------

Introduction

1.  On 29 May 2025 I gave judgment (“the Judgment”) in this case dismissing the 1^st Plaintiff’s claims for injunctive relief and damages for loss resulting from five incidents (“Incidents 1 to 5”) of water seepage from the Defendants’ property (“Flat 410”) to his property (“Flat 310”).

2.  On 25 June 2025, the 1^st Plaintiff took out a Summons applying for leave to appeal against the Judgment, setting out a number of intended grounds of appeal which I shall refer to in detail below.

3.  The relevant background and facts pertaining to the case have already been set out in the Judgment and I shall not repeat the same here, save where it is necessary below.

4.  To recapitulate, the dispute arose out of the five incidents referred to in paragraph 2 of the Judgment:

(a) Incident 1: It is the 1^st Plaintiff’s case that on 9 August 2016, there was water seepage on the ceiling in the bedroom and corridor of Flat 310 which was from the flush water pipe of Flat 410. The Defendants accept liability for this but assert that this part of the claim has already been settled;

(b) Incident 2: The 1^st Plaintiff’s case is that on 25 October 2016, there was water seepage from the fresh water pipe of Flat 410 into the living room, the kitchen and the corridor of Flat 310. The Defendants also say that this part of the claim has been settled;

(c) Incident 3: The 1^st Plaintiff claims that on 27 October 2016 water seepage was found originating from the kitchen water trap or drain pipe of Flat 410, whereas the Defendants’ case is that the seepage was from the common pipe of the building instead;

(d) Incident 4: The 1^st Plaintiff’s case is that since around mid-October 2017, there was water seepage found on the ceiling of the bedroom, corridor and kitchen of Flat 310, which was caused by the defective bathroom waterproofing facility of Flat 410. This is denied by the Defendants; and

(e) Incident 5: the 1^st Plaintiff’s case is that from around 3 January 2020 to around November 2021, there was water seepage from the bathroom of Flat 410 affecting the ceilings of the bathroom, bedroom and corridor of Flat 310. The Defendants’ case on the other hand is that it was from the external wall instead of their flat.

5.  After considering the evidence adduced at the trial, including the testimony of the 1^st Plaintiff’s wife, namely Ms Wu Xue Ping, the 1^st and 2^nd Defendants, as well as the evidence of the parties’ expert surveyors, namely Mr Chiu Chi Pun (“Mr Chiu”) on behalf of the 1^st Plaintiff, and Dr Lam Siu Shu, Eddie (“Dr Lam”) on behalf of the Defendants, I accepted the Defendants’ case and dismissed 1^st Plaintiff’s claim.

Applicable principles on applications for leave to appeal

6.  There is no dispute that leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that either (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance (Cap.336).

7.  It is also well established that a “reasonable prospect of success” means there is an arguable case such that the chance of success is more than fanciful but not necessarily probable (see Wing Tat Haberdashery Company Limited v Elegance Development & Industrial Co Limited [2011] 5 HKC 474 at para.6). It is insufficient to show that the appeal was ‘merely arguable and’ not ‘fanciful’ for the court to be satisfied that it has a reasonable prospect of success (see Hong Kong Civil Procedure 2025 (Vol 1, Part A), para.59/2A/4).

8.  In respect of appeals against findings of fact, the Court of Appeal in Bright Gold Ltd v Mega Well Development Ltd [2020] 4 HKLRD 26 at paras.46–48 stated that:

“46. It is well-established that this Court must have regard to the advantage enjoyed by a trial judge who received evidence on the disputed issues of fact at first hand, and would not disturb the findings of fact by the trial judge unless such findings are plainly wrong. In the absence of palpable errors in the Judge’s consideration of evidence, this Court would not interfere with the assessment of evidence and the weight attached by the trial judge to a particular piece of evidence…

47. In China Gold Finance Ltdv CIL Holdings Ltd[1], the Court referred to the judgment of Lord Neuberger in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911, [53], to identify the palpable errors which warrant an appellate court to interfere with a finding of primary fact:

…where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached…

48. Misunderstanding of evidence includes a failure to appreciate the significance of a piece of material evidence in the context of a crucial factual dispute. An example of this kind of error can be found in Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791, [65] – [71]. There the trial judge failed to have regard to the inherent probative value of some evidence which actually were main planks of a plaintiff’s case on lineage and thus misapprehend their significance and did not address the same in the judgment. The Court said at [68]:

Whilst a judge is not obliged to address every point raised and discuss all the evidence in minutiae, the judgment must inform the appellate court and the parties how important issues raised in a trial have been resolved, see Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106. In contrast, the omission to discuss minor issues or those obviously without merit in light of the determination of a judge on other issues are unlikely to form a valid basis for disturbing a judgment: see Yui Chung Yin v Ng Kit Sum CACV 25/2013, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015.” [underline added]

9.  The Defendants have also referred to Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at para.42 where the Court of Final Appeal stated:

“42…The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.”

10.  In China Gold Finance Ltd as referred to in Bright Gold Ltd above, the court also said at paras.14-16 that the appellate process is not designed to give a litigant a platform for “regurgitating” his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view, and focus should be on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.

The intended grounds of appeal

Ground 1 (Incidents 1-2)

11.  As set out in paras.59 to 74 of the Judgment, it is the Defendants’ case, which I accepted, that the 1^st Plaintiff’s claim was included in the settlement negotiated and conducted by the loss adjuster engaged by the 1^st Plaintiff’s insurer. Under this proposed ground of appeal, the 1^st Plaintiff however says that I have misinterpreted the context, contents and scope of the settlement which related only to the 1^st Plaintiff’s insured loss.

12.  In terms of the law, there has never been any dispute that “an insurer is only subrogated to rights which diminish the loss which he has paid” (i.e. insured loss), and that even if an insured has been paid out under the policy, he may continue proceedings to gain compensation for his uninsured loss (see MacGillivray on Insurance Law (15th Edition) at paras. 22-038 & 22-042).

13.  In support of his contentions, the 1^st Plaintiff firstly pointed out that according to an email dated 6 July 2018 from United Adjusters (HK) Ltd (“UA”), the loss adjuster of the 1^st Plaintiff’s insurer, Bank of China Group Insurance Company Limited; (“BOC”) to the Defendants’ insurer, AIA Company Limited (“AIA”), UA was instructed by BOC to accept the Defendants’ settlement offer of HK$18,100, and requested a cheque to be issued to BOC be sent to UA by 20 July 2018.

14.  As set out in para.63 of the Judgment, by a letter dated 22 July 2020 from UA to the 1^st Plaintiff, it was reiterated by UA that they were pursuing a claim against the Defendants for Incidents 1 and 2, and that they accepted the Defendants’ offer to settle for HK$18,100. On 6 August 2024, UA informed the Defendants’ solicitors that their principal already reimbursed the loss to the Plaintiff, and they have obtained the consent from the Plaintiff to pursue a recovery for the insured loss.

15.  As set out by the 1^st Plaintiff in his submissions, UA subsequently informed the Defendants’ solicitors by a letter dated 6 August 2024 that “[w]e advise that our claim amount of HK$18,100 includes the insured loss of HK$16,290 and the uninsured loss of HKS1,810. Our Principal have reimbursed the loss in the amount of HK$16,290 to the Insured, Mr Fu Sau Tai Raymond, in this case and they have obtained the consent from Mr Fu to pursue a recovery for the insured loss. We attached a copy of Mr Fu’s signed Form of Acceptance and Letter of Subrogation/Authorisation for [y]our consideration”.

16.  It is further pointed out by the 1^st Plaintiff that the letter from UA to the Defendants’ solicitors dated 6 August 2024 also stated:

“We understand that Mr Fu is suing your Client for the water damage in Mr Fu’s premises. We are advised by Mr Fu’s solicitors that Mr Fu will not sign the Discharge Form which you provided in your letter dated 4 October 2021 at this stage. In order to conclude the claim from our Principal and to save unnecessary time and costs, we are asking your side to settle the claim of the insured loss (HK$16,290) to our Principal first. Please revise your Discharge Form in the sum of HK$16,290 for our Principal, Bank of China Group Insurance Company Limited, to sign to conclude the matter.”

17.  The 1^st Plaintiff further pointed out that according to the Discharge Form signed by BOC on 20 September 2024, the terms of settlement were varied to the effect that upon the 1^st Plaintiff signing the said Form of Acceptance and the Letter of Subrogation/Authorisation, and receiving from BOC HK$16,290 in full and final satisfaction and discharge of all claims under Policy Number HCD/15-01451416R005 held with BOC in respect of loss or damage (i.e. the insured loss), and upon BOC receiving from the Defendants HK$16,290, BOC accepted the sum in full and final settlement of all claims against the Defendants and their insurers for loss and damages, and they agreed that the parties concerned shall be absolutely and finally exonerated and discharged from all claims whatsoever by them arising from Incidents 1 and 2.

18.  The 1^st Plaintiff submits that from the proper construction of the above documents, the settlement reached only concerned his insured loss (i.e. HK$16,290) between BOC and the Defendants. By the said Form of Acceptance and Letter of Subrogation/Authorisation, there was only subrogation of the 1^st Plaintiff’s right for the insured loss to BOC. The settlement did not concern his uninsured loss. In other words, there was only a Discharge Form of insured loss signed by BOC.

19.  Relying on the above evidence, the 1^st Plaintiff says that in accepting the Defendants’ case that his claim was settled, I have failed to apply the said legal principles and failed to properly consider and interpret the said factual evidence in the context which shows that only the 1^st Plaintiff’s insured loss was settled.

20.  However, the matter did not end at the signing of the Form of Acceptance and Letter of Subrogation/Authorisation mentioned above whereby a settlement was reached between the parties on the insured loss of HK$16,290. In fact, in their letter dated 6 August 2024, UA did refer to the amount of HK$1,810 being the amount of uninsured loss. Obviously this was amongst the correspondence I have considered before making my ruling. As pointed out by the Defendants in their submissions, there are no contemporaneous documents to show that the 1^st Plaintiff has disagreed HK$1,810 to be the amount of uninsured loss, which the Defendants have already pointed out they were willing to pay. Further, contrary to what the 1^st Plaintiff has sought to argue, in my view, the fact that when the 1^st Plaintiff commenced proceedings in the Small Claims Tribunal, he also only claimed the amount of HK$1,810 being the policy excess, which goes to support the contention by the Defendants that there was no suggestion that the uninsured loss was anything other than HK$1,810.

21.  As further pointed out in the Defendants’ submissions, the 1^st Plaintiff has accepted the assessment by UA that the total loss arising from Incidents 1 and 2 was HK$33,100. It was understood at that stage that the insurer on behalf of the building would pay the 1^st Plaintiff HK$15,000 whilst his insurer would pay him HK$18,100 including the policy excess of HK$1,810 which the 1^st Plaintiff needed to contribute to himself. This also shows that the uninsured loss of HK$1,810 was calculated after the 1^st Plaintiff had agreed that the total loss arising from the two incidents was HK$33,100. Therefore, the uninsured loss would only have been HK$1,810, which the Defendants have indicated their agreement to pay.

22.  On the basis of the above, I do not accept that there is any reasonable prospect of success in the intended Ground 1.

Ground 2 (Incident 3)

23.  By the intended Ground 2, the 1^st Plaintiff contends that I have erred in law in failing to consider or give any or any proper weight to the objective, material and probative evidence of the investigation and findings of the management office (“MO”) of the subject building, which was properly relied on by Mr Chiu, the 1^st Plaintiff’s expert.

24.  The 1^st Plaintiff refers to the letter from the MO to the 1^st Plaintiff dated 2 December 2016 which stated:

“On 27 October 2016, we arranged a follow up visit at flat 310, and found water dripping inside the kitchen cabinet. Having made an open up at the said kitchen cabinet, we found that a branch pipe, which was exclusively used by flat 410, had leakage problem. After that, we placed a visit at flat 410, and found backflow of water from the floor drain of the kitchen. The owner of flat 410 was then reported and requested to follow the issue.”

25.  The 1^st Plaintiff says the above was further supported by a letter from the MO to him dated 19 March 2022. The above was subsequently relied upon by Mr Chiu in the Joint Expert Report dated 23 August 2022 (“the JER”).

26.  Further, the 1^st Plaintiff points out that in the letter from UA to him dated 22 July 2020, UA considered that Incident 3 was caused a by defective common drainage pipe without providing any basis for their view.

27.  Contrary to that, the 1^st Plaintiff says that according to the letter dated 19 March 2022 from the MO to the 1^st Plaintiff, the MO had in fact denied that the water leakage was due to a defective common drainage pipe of the building, as the MO had cut the water supply to Flat 410 on 25 October 2016 and then found that there had been an improvement of the situation at Flat 310. This, according to the MO, showed that the water leakage problem had originated from the drainage problem at Flat 410.

28.  The 1^st Plaintiff further refers to a letter from the MO to the 1^st Plaintiff dated 29 March 2019, in which it was stated that the MO had on 2 December 2016 replaced the common drainage pipe inside the kitchen of Flat 410. Despite that, the seepage had continued. According to a letter from the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“JO”) to the 1^st Plaintiff dated 5 May 2021, the JO officer had inspected the 1^st Plaintiff’s premises on 13 December 2016 and “confirmed water seepage at the ceiling of kitchen”.

29.  The 1^st Plaintiff submits that contrary to my findings at para.77 of the Judgment, the MO had indeed expressly identified the pipe of Flat 410, and ruled out the common pipe as the source of the water seepage. As such, it is said that I have failed to correctly consider and accept the said factual context, including the objective, contemporaneous and probative evidence of the investigation and findings of the MO that the water seepage was caused by the pipe of Flat 410, and not any common pipe.

30.  The 1^st Plaintiff therefore says I have “ignored the MO’s investigations and findings but instead accepted UA’s unsupported assertion that the seepage came from a common pipe”. As such, I have wrongly excluded the Defendants’ liability for Incident 3.

31.  I do not think it is a fair and valid assertion by the 1^st Plaintiff to simply say that I have “ignored the MO’s investigation and findings”. The findings of the MO and my assessment of the same, have in fact been set out in full in paras.75 to 78 of the Judgment. I do not see anything wrong with the court preferring the evidence or findings of UA, who would have no reason, as put by the Defendants in their submissions, “to mischaracterise” the cause of Incident 3. More importantly, whilst it is the 1^st Plaintiff’s case that the source of water leakage was the U-shape water trap, this was not identified by the MO at the time. As it is stated in para.77 of the Judgment:

“77. The Plaintiff says that in any event, the view of United Adjusters that Incident 3 on 27 October 2016 did not originate from Flat 410 is of limited evidential value, as no reason was given by Unit Adjusters for its view. I do not agree. Contrary to the Plaintiff’s allegation that there was leakage in the U-shaped trap, the MO at the material time considered that the leakage originated from a pipe, and subsequently United Adjusters determined that it was the common pipe that was defective. In any event, it is the MO’s duty to replace the U-shaped pipe. The fact remains that this was the finding of the Plaintiff’s loss adjustor.”

32.  There is nothing wrong for the court to prefer, after considering evidence, the findings of UA over the unspecific finding of the MO, in particular in light of the lack of identification of the exact pipe that had the leakage problem.

33.  I therefore do not think that there is any reasonable prospect of success of the intended Ground 2.

Ground 3 (Incident 4)

34.  By this intended ground of appeal, the 1^st Plaintiff argues that I have erred in law in rejecting, without any proper or sufficient reasoning, the evidence and findings of the JO and its contractor, Modern Testing Consultants Limited (“MT”) and the positive results in an Inspection Report by MT dated 8 February 2019 (“the MT 2019 Report”) in favour of the 1^st Plaintiff’s claim.

35.  The relevant paragraphs in the Judgment concerning this part of the 1^st Plaintiff’s complaint are paras.79 to 94.

36.  The 1^st Plaintiff seeks to point out in his submissions that according to the MT 2019 Report:

(a) On 20 December 2018, fluorescent ponding and spraying test was conducted on the floor slab and the enclosing walls of the bathroom shower area at Flat 410. On 20 December 2018 and 18 January 2019, fluorescent effect was noted at the bathroom ceiling at Flat 310. The MT 2019 Report therefore concluded that there had been seepage caused by infiltration from the floor slab including the enclosing walls of the shower area of the bathroom; and

(b) As there was no significant moisture content difference between prolonged sunny days on 7 November 2018, 20 December 2018, and 18 January 2019 and a prolonged rainy day on 20 July 2018, rain water leakage from external wall was unlikely.

37.  The 1^st Plaintiff further points out that consequently, according to a letter from the JO to the 1^st Plaintiff dated 25 February 2019, the test results showed that there was water leakage from the upper flat that resulted from defective waterproofing facilities. According to a Nuisance Notice dated 5 March 2019 issued by the JO to the 1^st Defendant:

“[T]he Director of Food and Environmental Hygiene, being satisfied of the existence at [Flat 410] of a nuisance, being water seepage from the bathroom [thereof] to the premises below at [Flat 310] and such seepage has rendered the aforesaid premises below in such a state as to be a nuisance, do hereby require you, within 28 days from the service of this notice, to abate the nuisance, and for that purpose to repair satisfactorily the floor slab and the enclosing walls of the shower area of the bathroom of [Flat 410] to prevent water seepage to the premises below at [Flat 310].”

38.  The 1^st Plaintiff also points out that according to the JER, Mr Chiu opined that based on the test conducted by the JO and its finding, the source of the water seepage was said to be Flat 410, whereas Dr Lam merely opined “quite irrelevantly” that there was no evidence to support the alleged emergency repair by the 1^st Plaintiff in November 2018 and from July to August 2019. The 1^st Plaintiff also refers to a letter from the JO to the 1^st Defendant dated 8 August 2019, where it was said that on 25 July 2019, upon inspection the JO found that the bathroom facilities at Flat 410 had been completely removed. According to a further letter from the JO to the 1^st Defendant dated 3 September 2019, on 22 August 2019, the JO found that the water seepage at Flat 310 had stopped when there were signs of repairment of the shower floor slab inside the bathroom at Flat 410.

39.  Based on the above evidence, the 1^st Plaintiff submits that my reasoning as set out in paras.92 to 94 of the Judgment for rejecting his case that the water seepage was caused by bathroom waterproofing facilities at Flat 410 was contradicted by such evidence, and was not even supported by Dr Lam’s expert evidence which only related to sufficiency of the repairs done. It is said my reasoning was contradicted by:

(a) Mr Chiu’s expert evidence, which was based on the objective findings by MT and the JO and not disputed by Dr Lam. There is thus no basis for the Court not to accept Mr Chiu’s expert evidence;

(b) The said objective findings by MT and the JO as set out in the MT 2019 Report and the said Nuisance Notice, where it was said they were “certain” about Flat 410 and it being “unlikely” about the external wall being the source of water seepage. The view is further supported by the fact that there was causative improvement of the water seepage after the repair of Flat 410’s bathroom in July to August 2019.

40.  It is also submitted by the 1^st Plaintiff that the said reasoning was tainted by irrelevant considerations concerning the subsequent investigation and test results in relation to Incident 5.

41.  Considering the above submissions of the 1^st Plaintiff, I do not think this intended ground is valid either. It is only a matter of common sense that the ponding tests did not reflect actual or normal usage of the bathroom and it is open to this court to allude to this reasoning. I also do not consider that this is inconsistent, as suggested by the 1^st Plaintiff, with my observations made about the ponding tests in para.100 of the Judgment, which, like here, was dealing with the overall assessment of the evidence. It should be noted that in that paragraph I have also repeated my observation that the ponding tests did not reflect actual or normal usage. Whilst ponding tests may be recognised by the experts, it is for the court to eventually make findings of fact with reference to such evidence.

42.  I also do not think there is anything problematic, as the 1^st Plaintiff has sought to put it, about the court’s reliance on evidence of the results of investigations carried out between January and May 2020, which was also relevant to Incident 5. There is no strict requirement that the evidence, which is in a flow following a natural timeline, should be cut out and put into separate straight-jackets and considered irrelevant as between each one as is apparently suggested by the 1^st Plaintiff in his submissions. For the sake of clarity, it is important to note what has been set out in paras.92-94 of the Judgment:

“92. Having considered the evidence and the arguments, I am with the Defendants. Despite the ponding test apparently done by MT, the test report itself is not informative, as it contains no details as to how it was conducted. Neither did MT nor the Joint Office conclude that there was actual water seepage coming from Flat 310, but rather a theoretical possibility. This possibility is put in doubt when one also considers the ponding test conducted by MT from 31 December 2021 to 21 January 2022 as set out below.

93. Also, the Defendants’ evidence is that in response to the Nuisance Notice, they had suspended the water supply after the tenant had moved out, and had demolished and reconstructed the bathroom. As set out above, the Joint Office found in late June 2019 that the alleged water leakage had stopped. Further inspection by the Joint Office on 22 August 2019 also showed that there was no sign of water leakage. According to the report compiled by Prudential Surveyors International Limited, investigations were carried out between January and May 2020, and Flat 410 was not identified as the source of leakage. The Joint Office also said in their letter dated 10 July 2020 that they did not identify Flat 410 as the source. Despite all this, subsequently in December 2020 and also in January 2021, the Plaintiff still complains of water seepage. It would appear highly questionable whether the problem did in fact originate from Flat 410.

94. Having considered the evidence overall, I am of the view that the Plaintiff has not sufficiently proved that Incident 4 was caused by the Defendants or had originated from Flat 410, or that the Defendants should be liable for nuisance in this regard. This is also supported by the analysis below concerning the possibility of seepage originating from the external walls of the building, which is set out in the discussion concerning Incident 5 and further incidents below in detail.”

43.  As the Defendants have submitted, the 1^st Plaintiff has failed to address the points raised in para.93 of the Judgment concerning the fact that despite the renovations carried out by the Defendants to the satisfaction of the JO, the 1^st Plaintiff had still complained of water leakage in December 2020 and January 2021. This, as I have put it, shows it was highly questionable whether the problem did in fact originate from Flat 410. There is nothing unreasonable for the court to consider this as a matter of common sense in an overall assessment of the evidence.

44.  I therefore do not find anything in this intended ground of appeal that should entitle the 1^st Plaintiff to leave to appeal.

Ground 4 (Incident 4)

45.  By this further or alternative proposed ground, the 1^st Plaintiff seeks to contend that even if I am correct in considering subsequent investigation and test results in relation to Incident 5 as aforesaid, I have nevertheless failed to note that Flat 410 was not inhabited during the period from 16 April 2019 to 20 July 2020. The 1^st Plaintiff says I have erred in failing to consider the Defendants’ own evidence that their tenant had vacated Flat 410 during the said period and the flat was not inhabited. In the premises, this in fact indicated that while Flat 410 was not inhabited, the seepage had stopped, and this in fact goes to support the 1^st Plaintiff’s case instead.

46.  Firstly, it is obvious that the court has noted in para.93 of the Judgment that the Defendants had demolished and reconstructed the bathroom after the tenant had moved out. Further, with respect, the 1^st Plaintiff has missed the point here, which is that the various subsequent tests and investigations mentioned in para.93 of the Judgment showed that despite the renovation and repairs carried out by the Defendants to the satisfaction of the JO, and despite there had been stoppage of the seepage for some time afterwards, the 1^st Plaintiff still complained of water seepage subsequently in December 2020 and also in January 2021. As I have mentioned, this raised the question whether the problem had indeed originated from Flat 410. I do not see anything obviously wrong or palpable in such assessment of the evidence.

47.  I therefore do not find that there is any reasonable prospect of success of this proposed ground of appeal either.

Ground 5 (Incident 5)

48.  By this proposed ground, the 1^st Plaintiff complains that I have erred in law in accepting the illogical and speculative evidence of Dr Lam relating to his explanation vitiating the positive results of an objective ponding test conducted by MT from the end of December 2021 to January 2022 as contained in a Test Report by MT dated 22 January 2022 (“the MT 2022 Report”), which were in favour of the 1^st Plaintiff.

49.  The relevant paragraphs of the Judgment concerned with this complaint are at paras.95 to 110.

50.  The 1^st Plaintiff points out that according to the JER, in respect of the ponding test, Mr Chiu and Dr Lam agreed that on 31 December 2021, Sulforhodamine B (“SRB”) was observed at the ceiling of the bathroom of Flat 310, and on 21 January 2022, the dyed area increased. Dr Lam and Mr Chiu had given different opinions as set out in the 1^st Plaintiff’s submissions as follows:

(a) Firstly, Dr Lam opined that the seepage was not from the ponding area because:

(i) The dyed area was observed about 5 minutes after commencement of the test (referring to a photograph “Plate 3(a)” with no timestamp, which was allegedly taken at 1245 hours;

(ii) There was no substantial increase in the dyed area, which suggested that the dyed water seeped to the dyed area, and the seepage ceased or reduced in rate substantially, immediately after the test; and

(iii) As the seepage was at a fast rate being observed 5 minutes after commencement of the test, there should have been but was no substantial increase in the dived area after 2 hours of flooding.

(b) Secondly, Dr Lam opined that in the test, the bathroom floor area of Flat 410 was fenced improperly, and the dyed water escaped through the non-waterproof corridor to the sunken slab and then the shower area ceiling of Flat 310;

(c) In reply, Mr Chiu opined that if the dyed water did escape, the corridor in Flat 310 should have been seriously affected, but this was not shown by the microwave and moisture content readings; and the dyed area was right below the shower area of Flat 410, not near the door or at the corridor;

(d) Dr Lam also opined that as there was no water source from the bathroom floor of Flat 410, ponding it did not reflect actual usage, and seepage from there could not prove seepage from Flat 410; and

(e) Lastly, Dr Lam relied on the previous failure of the JO to identify Flat 410 as the source of water seepage. In reply, Mr Chiu opined that the implication of such failure is “neutral”.

51.  Based on the above evidence, the 1^st Plaintiff says that the basis of the court for accepting Dr Lam’s evidence is that while Dr Lam might not have got the timing exact or correct, he did state in the JER that the dyed area was observed about 5 minutes after commencement of the test, which was supported by a photograph taken at 1245 hours (see para.103 of the Judgment.

52.  It is then pointed out that I have erred in finding for the bare assertions of Dr Lam as to timing when there is no corroborative objective evidence. It is also said that Dr Lam's evidence of alleged route of escaping of the dyed water is even more inherently incredible and absurd.

53.  As such, the 1^st Plaintiff argues that I have wrongly rejected the positive results of the ponding test carried out by MT, an impartial third party who carried out the works in the presence of and under supervision of both experts, but instead I have wrongly “accepted the zigzag waterflow hypothesis raised by [Dr] Lam without any evidential basis”.

54.  With respect, I do not think that this proposed ground should take off the ground, as it challenges my acceptance of the credibility of the evidence of Dr Lam at large. This ground is concerned with my findings of fact which have not been shown to have been utterly unreasonable or constitute palpable errors. The basis of my acceptance of the evidence of Dr Lam (instead of that of Mr Chiu) has been set out fully in paras.100 to 110 of the Judgment and I shall not repeat the same here, save to say that the 1^st Plaintiff’s renewed attempt to attack the credibility of the evidence of Dr Lam does not assist him positively in this application for leave to appeal.

55.  For example, the challenge of Dr Lam’s assertion about the timing of the appearance of the dyed spot as shown in spot “A” as shown in a photograph said to be taken at 12:45 pm after the ponding test is an attempt to re-argue the point about his credibility, which has already been fully dealt with at the trial.

56.  Further, as for the route of escape of the dyed water as relied upon by Dr Lam, this again is a factual finding based on his evidence. On the contrary, the 1^st Plaintiff’s attempt to challenge this finding by arguing that the dyed water on the corridor of Flat 410 should have seeped directly and vertically into Flat 310 instead of ending up in the ceiling of the bathroom of Flat 310 is in itself absurd, as the Defendants have submitted. On the contrary, the path of the water that had escaped as suggested by Dr Lam was supported by the microwave test as described in para.104 of the Judgment.

57.  Based on the applicable principles, this proposed ground of appeal, which is largely and in substance a re-run of the arguments on credibility, is not a permissible ground.

Ground 6 (Incident 5)

58.  The 1^st Plaintiff seeks to argue under this ground that I have erred in law in failing to consider the test results in the MT 2019 Report and an Inspection Report by another contractor of the JO, Prudential Surveyors International Limited (“PS”) dated 4 October 2021, and the persistence of water seepage despite repeated repairs of the external wall in 2020 and 2021. The 1^st Plaintiff submits that all such evidence rules out the external wall as the source of water seepage.

59.  The criticism is directed against my discussion and assessment of the evidence in paras.95 to 109 of the Judgment.

60.  Firstly, the 1^st Plaintiff seeks to point out that according to the MT 2019 Report, MT opined that rain water leakage from the externa wall was unlikely, as there was no significant moisture content difference during prolonged sunny days and prolonged rainy days from July 2018 to January 2019.

61.  The 1^st Plaintiff then went on to point out that despite repairs of the external wall outside Flat 310 were carried out in August 2020 by the MO, there had been consistent water leakage problem inside Flat 310 nevertheless.

62.  The 1^st Plaintiff also referred to the Inspection Report by PS dated 4 October 2021, where PS opined that rain water leakage or infiltration from the external wall was unlikely, as there was no significant moisture content difference found between June to August 2021 between prolonged sunny days and prolonged rainy days.

63.  The 1^st Plaintiff then proceeded to argue that despite the further repair of the external wall outside the guest bedroom of Flat 310 which was completed in September 2021, there had been persistence of water seepage at Flat 310 in 2021.

64.  Based on the above, the 1^st Plaintiff submits that my consideration of the “distant events and context in 2023 about the repair of the external wall and the absence of water seepage complaint, without considering the much more pertinent context and events immediately before and after the time of Incident 5” was improper. In other words, it is said that had I properly considered the above factual events relating to Incident 5, I would have come to an opposite conclusion.

65.  However, as the Defendants have pointed out, the 1^st Plaintiff has ignored the fact that in the previous investigations, no spraying test had been conducted on the external walls, whereas in the SJER, it was shown that water spraying tests had been done on the external walls, the results of which showed that there was ingress of water from the external walls. This takes away the force of the 1^st Defendant’s argument as there is nothing in the previous tests that had positively identified the external walls as the source of water seepage, and as the Defendants have submitted, there was no evidence of the quality and effectiveness of the repairs that were previously carried out. One simply cannot rule out the possibility that the previous repairs had not been totally effective.

66.  Lastly, I also agree with the Defendants that they are not obliged to prove that the external walls were the actual source of the water leakage, whereas the burden has always been on the 1^st Plaintiff to prove, on the balance of probabilities, that the seepage had originated from Flat 410. Nevertheless, for the reasons stated above, I do not think there is anything palpably wrong about my assessment of the evidence as set out in paras.95 to 109 of the Judgment.

67.  I am therefore of the view that this proposed ground of appeal has no reasonable prospect of success.

Conclusion

68.  For the above reasons, I do not find that the 1^st Plaintiff has put forward any proposed ground of appeal with a reasonable prospect of success, nor do I find any other reason in the interest of justice why leave to appeal should be granted. I therefore dismiss the 1^st Plaintiff’s Summons dated 25 June 2025, with costs to the Defendants, with Certificate for Counsel, to be summarily assessed.

69.  For the summary assessment of the costs of this application, I direct that:

(a) the Defendants shall lodge and serve their Statement of Costs within 14 days from the date hereof;

(b) the 1^st Plaintiff shall within 14 days thereafter lodge and serve his objections;

(c) the Defendants shall within 7 days thereafter lodge and serve their reply, if any.

Mr Erik Shum and Mr Stephen Keung, instructed by King & Co, for the 1^st Plaintiff

Mr Patrick Siu, instructed by Boase, Cohen & Collins, for the 1^st & 2^nd Defendants

DCCJ 5546/2020

[2025] HKDC 904

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5546 OF 2020

---------------------------------------

---------------------------------------

---------------------------

JUDGMENT

---------------------------

INTRODUCTION

1.  This is a case concerning a claim for damages and injunctive relief for alleged water leakage from the Defendants’ property at Flat 10, 4^th Floor, Block E, Kornhill, Hong Shing Street, Quarry Bay, Hong Kong (“Flat 410”) to the Plaintiff’s property situate at Flat 10 on the 3^rd floor of the same building (“Flat 310”), which is immediately below Flat 410.

THE PLAINTIFF’S CASE

2.  The Plaintiff bases his case on a number of incidents of water leakage which were alleged to have originated from the Defendants’ property, i.e. Flat 410:

(1)  Incidents 1 to 3: it is the Plaintiff’s case that on 3 occasions between 9 August and 27 October 2016, water had leaked from Flat 410 into Flat 310 due to a burst of the flush water pipe in the former, as well as leakage from the fresh water pipe in Flat 410. On 9 August 2016, there was reportedly water drippage from the ceiling in the bedroom and the corridor of Flat 310 (Incident 1). On 25 October 2016, there was water leakage in the living room causing the lights to be removed, and also in the kitchen where the cabinets were affected, as well as in the corridor (Incident 2). Further, on 27 October 2016, water seepage was found coming from the kitchen drain pipe and the common drain pipe inside Flat 410 (Incident 3).

(2)  Incident 4: Since around mid-October 2017, water seepage was found on the ceiling of the bedroom, corridor and kitchen of Flat 310 causing stains, and it was found that the bathroom waterproofing facility at Flat 410 was apparently defective. Also, water stains and small holes with paint peeling off were found on the ceiling in the master bedroom of Flat 310;

(3)  Incident 5 and further: From around 3 January 2020 to around November 2021, water seepage was again found on the ceiling inside the bathroom of Flat 310. Further seepage with water drippage was found in August 2020 on the bedroom and corridor ceilings, as well as on the wall of the master bedroom.

3.  On the basis of the above incidents, the Plaintiff has undertaken certain repair and remedial works and now claims against the Defendants for damages for nuisance, and also for injunctive relief.

4.  The Plaintiff relies on the expert evidence of Mr. Chiu Chi Pun (“Mr. Chiu”), the surveyor called by the Plaintiff.

THE DEFENDANTS’ CASE

5.  The Defendants’ pleaded case is that firstly, the claim arising from Incidents 1 and 2 above has already been settled, and that Incident 3 above was not related to or caused by the Defendants.

6.  As for Incident 4 above, the Defendants put the Plaintiff to proof of his case in respect of causation.

7.  Further, in respect of Incident 5 above, it is the Defendants’ case that the Joint Office of the Buildings Department/Food and Environmental Hygiene Department (“Joint Office”) did not identify Flat 410 as the source of leakage. Rather, water seepage from the external walls is suggested to be the source of water leakage into Flat 310.

8.  The Defendant relies on the evidence of Dr. Lam Siu Shu, Eddie (“Dr. Lam”), the expert engineer called by the Defendant to give evidence.

9.  It should also be mentioned that based on their respective pleaded cases summarised above, the parties have also prepared a Statement of Agreed Issues.

THE APPLICABLE LEGAL PRINCIPLES

10.  There is little dispute that in a case such as the present, there is no presumption that the source of leakage would necessarily come from the flat above. A plaintiff bears the burden to prove that water leakage did come from the defendant’s flat above. If there is evidence showing that the source of water leakage is not from the defendant’s premises, the defendant will likely not be held liable: Lam Chin Pang and Another v Wan Sui Ying[2018] HKDC 1169 at paras.22-23.

11.  Insofar as the tort of nuisance is relied on as a cause of action, the following principles are pertinent (see Siu Kwok Keung Raymond v Yee Shia Yuen, DCCJ 2131/2012, 31 October 2017 at para.92; and Lau Sin Yee v Financial Secretary Incorporated DCCJ 311/2007, 14 February 2008 at para.11:

(1)  To attract liability by adopting or continuing the nuisance, the defendant must be proved to have knowledge, actual or constructive, that the water seepage originated from his premises;

(2)  “Knowledge” can be what the defendant actually knew, or what the defendant should have known with normal and reasonable diligence;

(3)  However, the onus of proof remains on the plaintiff, and it is not for a defendant to prove that the seepage of water did not originate from the defendant’s premises, nor to prove that it had not created the nuisance.

THE EVIDENCE

Incidents 1 to 3

12.  The evidence in this case is largely found on the documents. The Plaintiff called his wife, Ms. Wu Xue Ping (伍雪平) (“Ms. Wu”), to testify. In her testimony, Ms. Wu basically adopted the Plaintiff’s case set out above, and also relies on the following documentary evidence.

13.  For Incident 1, according to a letter from the management office of Kornhill (which forms part of the MTR Corporation Limited) (“MO”) to the Plaintiff dated 2 December 2016, as well as a report by the loss adjustor of the Plaintiff’s insurer, namely United Adjusters (HK) Ltd (“United Adjusters”), the Plaintiff’s tenant, Mr. Yung, reported to the MO on 9 August 2016 of water leakage suffered by Flat 310, saying that the ceiling of the whole flat was found wet.

14.  The MO inspected Flat 310 on 9 August 2016 and by its Security Incident Report dated 10 August 2016, it was stated that a large amount of water flooded from Flat 410, in which the toilet flush water pipe burst. The same is also reflected in a report from the United Adjusters to the Plaintiff.

15.  According to the Joint Expert Report dated 23 August 2022 prepared by the parties’ experts (“JER”), both Mr Chiu and Dr. Lam agreed that the incident on 9 August 2016 was caused by water leakage from the flush water pipe or water tap at Flat 410.

16.  For Incident 2, firstly, the Plaintiff relies on text messages contained in “WhatsApp” records exchanged between the Plaintiff and the MO on 26 October 2016 that on 25 October 2016, Flat 310 suffered water leakage to the extent that the living room lights had to be removed, the kitchen cabinets were flooded, all food items turned moldy, and basins were used in the corridor to contain water that leaked from above. The situation was also reflected in the text messages exchanged between the Plaintiff and his tenant, Mr. Yung, who also reported the matter to the MO. According to Mr. Yung, the water drippage had abated after the water supply to Flat 410 was turned off. According to a report from United Adjusters to the Plaintiff, on 25 October 2016, it was likely that a fresh water pipe at Flat 410 burst, and water seeped through the floor slab to enter Flat 310.

17.  In the JER, both Mr. Chiu and Dr. Lam agreed that the incident on 25 October 2016 was caused by water leakage from the fresh water pipe at Flat 410.

18.  As for Incident 3, the Plaintiff relies firstly on a letter from the MO to the Plaintiff dated 2 December 2016, the MO found water dripping inside the kitchen cabinet at Flat 310 on 27 October 2016, and upon opening it up, water seepage was noticed from a branch pipe exclusively used by Flat 410. Further, according to a letter from the MO to the Plaintiff dated 29 March 2019, the MO found water seepage from the kitchen drain pipe and common drain pipe at Flat 410. A letter from the MO to the Plaintiff dated 19 March 2022 also indicates that the MO found the water seepage inside the kitchen cabinet at Flat 310 was caused by the kitchen drainage trap (去水隔氣喉) at Flat 410 situated in the kitchen ceiling at Flat 310.

19.  According to a letter from the MO to the Plaintiff dated 29 March 2019, on 11 November 2016, a part of the common drain pipe inside the kitchen at Flat 410 burst and leaked, and on 2 December 2016, it was replaced. The Joint Office also received a complaint of water seepage from the Plaintiff on or about 1 December 2016. According to a letter from the Joint Office to the Plaintiff dated 5 May 2021, on 13 December 2016, the Joint Office found water seepage at the kitchen ceiling at Flat 310.

20.  On 23 December 2016, the Joint Office conducted colour water test on drainage pipes at Flat 410, but was unable at that stage to ascertain the source of water seepage to Flat 310. Subsequently, by its letter to the Plaintiff dated 5 May 2021, the Joint Office indicated that on 3 February 2017 water seepage was found at the kitchen ceiling at Flat 310. Subsequently, according to a letter from the Joint Office to the Plaintiff dated 9 April 2021, on 7 March 2017, the consultant of the Joint Office, namely Modern Testing Consultants Limited (現代試驗顧問行有限公司) (“MT”) stated that the stains at the water seepage location at Flat 310 had dried up, and the water seepage had stopped.

21.  It must also be mentioned that in the JER, Mr. Chiu opined that the incident on 27 October 2016 was caused by water dripping from water trap and pipe at Flat 410; and Dr. Lam opined that the incident was caused by seepage from the defective common pipe, as subsequent to its repair on 2 December 2016, there was no complaint of water seepage until October 2017.

Incident 4

22.  The Plaintiff reported to the MO in early October and mid November 2017 about persistent water stains on the bedroom and kitchen ceilings inside Flat 310. The matter was also reported to the Joint Office by the Plaintiff but despite attempts to make an appointment to visit Flat 410 for investigation, no visits could be made.

23.  According to a letter from the MO to the Plaintiff dated 29 March 2019:

(a)  In early January and on 23 June 2018, the Plaintiff reported to the MO about persistent water stains on the bedroom and kitchen ceilings inside Flat 310, despite replacement of a part of the main drainage pipe situated between the kitchens of Flat 310 and Flat 410;

(b)  On 10 July 2018, the MO found water stains on the bedroom and kitchen ceilings and the corridor inside Flat 310; and

(c)  On 17 and 20 July 2018, the MO found the moisture level of the bedroom and corridor ceilings inside Flat 310 was persistently on the high side.

24.  On 20 July 2018, the Joint Office found water seepage at the bedroom and bathroom ceilings inside Flat 310, and on 6 August 2018, the Joint Office conducted colour water test on drainage pipes at Flat 410, but was yet to ascertain the source of water seepage at Flat 310 at that stage.

25.  According to an Inspection Report by MT (as instructed by the Joint Office) dated 8 February 2019:

(a)  On 10 October 2018, it was found there was consistent water seepage on the ceilings of the bathroom and bedroom inside Flat 310 with insignificant moisture but no water dripping;

(b)  On 7 November 2018, consistent water seepage, with apparent water moisture on the bathroom ceiling and insignificant moisture on the bedroom ceiling, but with no water dripping, was found on the bathroom and bedroom ceilings inside Flat 310;

(c)  On 20 December 2018, fluorescent ponding and spraying test was conducted on the floor slab and the enclosing walls of the bathroom shower area in Flat 410. As a result, fluorescent effect was noted on the bathroom ceiling in Flat 310 on 20 December 2018 and 18 January 2019; and

(d)  It was concluded that infiltration to Flat 310 from the floor slab including the enclosing walls of the bathroom shower area at Flat 410 was certain.

26.  According to a letter from the Joint Office to the Plaintiff dated 25 February 2019, the result of test conducted by MT showed that the bathroom waterproofing facilities at Flat 410 were seemingly defective. On 27 February 2019, the MO also found that there were water stains, with small holes and peeling off on the ceiling of the master bedroom in Flat 310.

27.  By a Nuisance Notice from the Joint Office to the 1^st Defendant dated 5 March 2019, the 1^st Defendant was required to repair satisfactorily the floor slab and the enclosing walls of the bathroom shower area in Flat 410 within 28 days. On 25 March 2019, the Defendants applied for 6-month time extension for compliance with the said Nuisance Notice, and on 2 April 2019, they provided a quotation for the relevant repair work. The Joint Office eventually extended the time limit.

28.  According to a letter from the Joint Office to the Plaintiff and Ms Wu dated 20 August 2019, on 26 June 2019, the Joint Office found that the water seepage at Flat 310 had stopped. Further, on 25 July 2019, the Joint Office found that the bathroom facilities at Flat 410 had been completely removed.

29.  According to a letter from the Joint Office to the 1^st Defendant dated 3 September 2019, on 22 August 2019, the Joint Office found that the water seepage at Flat 310 had stopped, and the shower floor slab inside the bathroom at Flat 410 was repaired.

30.  In passing, it should also be mentioned that during the period, by an Amendment to Nuisance Notice from the Joint Office to the 1^st Defendant dated 1 August 2019, the time limit for compliance was extended to 31 August 2019. However, by a letter from the Joint Office to the Plaintiff dated 9 August 2021, on 19 September 2019, the Joint Office found the repair work at Flat 410 completed, but the water seepage at Flat 310 to be persistent.

31.  In the JER, based on the test result from MT, Mr. Chiu opined that Flat 410 is the source of water leakage, and the Defendants should be liable to pay for the repair work conducted at Flat 310 in November 2018, but Dr. Lam opined that there was no evidence to support this finding.

Incident 5 and further

32.  According to a letter from the Joint Office to the Defendants dated 10 July 2020, on 3 January 2020, the Joint Office found water seepage at the bathroom ceiling at Flat 310. On 21 January and 22 May 2020, a consultant instructed by the Joint Office (i.e. Prudential Surveyors International Limited) conducted a test at Flat 410 and investigation at Flat 310, but was yet to ascertain whether there was water seepage from the floor slab and the enclosing walls of the bathroom shower area at Flat 410.

33.  According to a letter dated 5 September 2020 from the MO to the Plaintiff:

(1)  On 6 August 2020, upon the Plaintiff’s report, the MO found water droplets on the bedroom and corridor ceilings and the wall at Flat 310, and requested the Defendants to follow-up as soon as possible; and

(2)  On 19 August 2020, at Flat 310, the MO found the bedroom and corridor ceilings wet, and the master bedroom wall with traces of water damage.

34.  Subsequently in or around late August 2020, the MO completed scaffolding and repair work at the external wall at Flat 310.

35.  However, it can be seen from a letter from the Joint Office to the Plaintiff and Ms. Wu dated 5 November 2020 that on 26 August 2020, the Joint Office found water seepage on the ceilings of the bedroom, bathroom and corridor at Flat 310, and thus requested the Defendants to follow-up. Also, according to a letter from the MO to the Plaintiff dated 5 September 2020:

(1)  On 26 and 29 August 2020, the MO found 40+ moisture level on the ceilings of the bedroom and corridor of Flat 310;

(2)  On 5 September 2020, the MO found 40+ moisture level and water droplets coming down from the bedroom and corridor ceilings.

36.  On 7 and 8 September 2020, the MO again found 40-60 degree moisture level on the ceilings of the bedroom and corridor at Flat 310, and mold appearing on part of the ceiling. By a letter to the Plaintiff and Ms. Wu dated 5 November 2020, the Joint Office also found on 11 September 2020 that there was water seepage on the bedroom, bathroom and corridor ceiling at Flat 310, and therefore requested the Defendants to follow-up. The MO also had similar findings on 11 and 14 September 2020.

37.  Later on 16 and 18 September 2020, at Flat 310, the MO found a large amount of water droplets coming down from the ceiling of the master bedroom, and 40+ degree moisture level on the bedroom and corridor ceiling.

38.  On 20 September 2020, the Defendants informed the MO that their tenant had temporarily moved out from Flat 410 and its fresh water supply was suspended, and that on 21 September 2020, fresh water pipe replacement work was commenced. Soon thereafter on 23 and 26 September 2020, the MO found 25+ degree moisture level on the ceilings of the bedroom and corridor at Flat 310. Similar findings were again made on 6 October 2020.

39.  On 8 October 2020, the MO learnt that the water pipe replacement work at Flat 410 was completed, and the tenant of the Defendants had moved back in. However, soon thereafter on 12 October 2020, the MO found 14-32 degree moisture level on the ceilings of the bedroom and corridor at Flat 310.

40.  According to a letter from the MO to the Plaintiff dated 24 November 2020, on 21 November 2020, the MO found 40+ degree moisture level on the ceilings of the kitchen, bathroom and corridor at Flat 310. On 2 December 2020, the MO found 10-21 degree moisture level on the kitchen and corridor ceilings, a 57 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall, and a 13-25 degree moisture level on the rest of the bathroom ceiling.

41.  On 2 December 2020, a consultant instructed by the Joint Office (i.e. Geotechnics & Concrete Engineering (H K) Ltd (香港土力混凝土工程有限公司)) conducted tests including infrared thermography microwave tomography at Flat 310, and found 35+% moisture level on the bathroom ceiling close to the external wall, but was yet to ascertain the source of water seepage which was persisting.

42.  On 5 December 2020, the MO found 40-99 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall, and 10-31.8 degree level on the kitchen and the rest of the bathroom ceilings inside Flat 310.

43.  According to a letter from the MO to the Plaintiff dated 23 December 2020, on 5 December 2020, the scaffolding for the repair work carried out at the external wall at Flat 310 in August 2020 were removed.

44.  Later on 9 December 2020, the MO found 40-99 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall, and 15-28 degree moisture level on the corridor, kitchen and the rest of the bathroom ceilings of Flat 310. Similar findings were again made on 21 and 23 December 2020.

45.  According to a letter from the Joint Office to the Plaintiff dated 10 February 2021, on 23 December 2020, a consultant instructed by the Joint Office found water seepage at the bathroom ceiling at Flat 310, but was informed by the Defendants that their tenant was unwilling to allow the consultant to enter Flat 410.

46.  According to a letter from the MO to the Plaintiff dated 13 January 2021, on 7 and 9 January 2021, the MO again found 42-99 degree moisture level on the bathroom ceiling close to the toilet, master bedroom and external wall of Flat 310.

47.  According to a letter from the Joint Office to the Plaintiff dated 9 April 2021, on 4 February 2021, a contractor instructed by the Joint Office visited Flat 410 but no one answered the door. As a result, a Notice of Appointment was left at the flat. Later on 11 February 2021, the Defendants requested the investigation at Flat 410 be conducted in late March 2021, as their tenant would move out on or after 21 March 2021. On 2 March 2021, the Defendants confirmed that the date of entry by the Joint Office to conduct the investigation to be 22 March 2021.

48.  According to a letter from the Joint Office to the Plaintiff dated 9 April 2021, on 11 March 2021, the Joint Office issued a Notice of Intended Entry on 22 March 2022 to Flat 410.

49.  Meanwhile, on various dates in March 2021, the MO continued to find significant degrees of moisture level and water stains on the corridor and guest bedroom ceilings, and on the bathroom ceiling, but the Defendants claimed that they could not accommodate any visit to Flat 410 for investigation.

50.  On 22 March 2021, the Joint Office and its consultant found persistent water seepage on the ceiling of the bathroom ceiling at Flat 310. On the same date, when the Joint Office and its consultant visited Flat 410, no one answered the door. As a result, on 8 April 2021, a Notice of Intention to Apply for Warrant of Entry on 21 April 2021 was issued.

51.  On 21 April 2021, a consultant instructed by the Joint Office found renovation work being undertaken at the kitchen and bathroom at Flat 410, and therefore could not carry out any test, and as a result, the Joint Office commenced procedures to obtain a warranty of entry.

52.  On 12 May 2021, the Joint Office and its consultant found persistent water seepage on the ceilings of the bathroom, corridor and kitchen at Flat 310.

53.  Eventually from 4 June to 13 August 2021, a consultant instructed by the Joint Office conducted various tests at Flat 410, but was yet to ascertain the source of water seepage.

54.  Further tests conducted by the MO on 5 November 2021 showed a 35+ degree moisture level on the corridor, bathroom and master bedroom ceilings. On 26 November 2021, the MO found concrete spalling, steel bar exposure, and a 79-81 degree moisture level on the bathroom ceiling.

55.  The Defendants also testified at the trial, and similar to Ms. Wu, their evidence predominantly set out the documentary evidence in this case, and places reliance on the evidence of their expert.

The experts’ evidence

56.  As for the evidence of the experts, both Mr. Chiu and Dr. Lam have testified at the trial. According to the JER, on 31 December 2021 and 21 January 2022, both Mr. Chiu and Dr. Lam inspected Flat 310 as well as Flat 410, and conducted various tests as follows:

(1)  Dyed water ponding test:

(i)  Both Mr. Chiu and Dr. Lam agreed that on 31 December 2022, the dyed water (Sulforhodamine B) for ponding at the bathroom floor at Flat 410 was observed at the bathroom ceiling at Flat 310, and on 21 January 2022, the dyed area had enlarged;

(ii)  Dr. Lam opined that the lack of substantial enlargement of the dyed area between the said two dates suggested that the water seepage had ceased or reduced in rate, and the water seepage was likely not from the ponding area;

(iii)  Dr. Lam further opined that in the ponding test, the floor area was fenced, and was flooded with dyed water, which escaped through the non-waterproof corridor to the sunken slab and then the ceiling of the shower area at Flat 310. The fluorescein sodium that was used to flood the shower unit was not observed at the ceiling at Flat 310. Also he opined that the previous test results from the Joint Office were uncertain;

(iv)  Mr. Chiu in reply opined that the corridor at Flat 410 was not affected as shown by its microwave and moisture content. Further, the dye shown was right below the shower area at Flat 410, not near the door or at the corridor. He opined that the test results from the Joint Office were not conclusive;

(2)  Microwave concrete sub-layer moisture content test:

(i)  Mr. Chiu opined that the substantial moisture content increase on the bathroom ceiling at Flat 310 after the water ponding test showed water seepage from the bathroom floor at Flat 410;

(ii)  However, Dr. Lam opined that the abnormal moisture content reading under the shower cubicle at Flat 410 was without significance;

(3)  Infrared thermal scanning:

(i)  Mr. Chiu opined that the signs of water trapping at the ceiling of the bathroom and the corridor next to it at Flat 310 after the water test, as well as temperature drop at various parts of the ceiling at Flat 310, showed water seepage from the bathroom floor at Flat 410;

(ii)  Dr. Lam on the other hand opined that there was no obvious temperature change on the bedroom, living room and corridor ceilings, but temperature drop at certain parts of the bathroom ceiling;

(4)  Surface moisture content measurement:

(i)  Mr. Chiu opined that the moisture content increase on the bathroom ceiling at Flat 310 after the water test showed water seepage from the bathroom floor at Flat 410;

(ii)  Dr. Lam opined that the high surface moisture content at certain parts of the bathroom ceiling before the ponding test suggested possible water seepage thereat, but there was no sign of water seepage at the ceilings of the kitchen and corridor at Flat 310;

(5)  In respect of water pressure test, both Mr. Chiu and Dr. Lam agreed that the result implied no water leakage from the concealed portable water pipe at Flat 410;

(6)  In respect of visual inspection, both Mr. Chiu and Dr. Lam agreed that there was plaster and paint peeling off on the ceilings of the bathroom, corridor next to bathroom, kitchen and master bedroom;

(7)  In respect of the issue of defective waterproof work at Flat 410:

(i)  Dr. Lam opined that water had penetrated from the external wall through the sunken slab at Flat 410 to Flat 310;

(ii)  Mr. Chiu opined that the water seepage at the ceiling of the bathroom and the corridor next to it at Flat 310 was from the defective waterproof works at the bathroom at Flat 410;

(8)  In conclusion:

(i)  Mr. Chiu opined that there was water seepage at Flat 310 as shown by the documents and photos provided, and on the date of inspection on the ceiling of the bathroom and the corridor next to it. He opined that the work carried out by the Defendants did not stop the water seepage, as the works were not done completely or competently. The source of the water seepage was the bathroom at Flat 410. In his opinion, the bathroom floor slab and wall at Flat 410, as well as the ceiling of the bathroom and corridor next to it at Flat 310 should be repaired;

(ii)  Dr. Lam opined that there was water seepage at the ceiling of the sunken slab and the ceiling adjacent to the external wall of the bathroom, and on the date of inspection only at the ceiling adjacent to the external wall of the bathroom. In his opinion, the Defendants had taken all reasonable steps to alleviate the water seepage. However, the source of the water seepage was the external wall. He opined that the external wall at Flat 410, as well as the bathroom ceiling at Flat 310 should be repaired.

57.  Further, according to a Test Report dated 20 February 2023 by MT made on behalf of both the Plaintiff and the Defendants, on 29 December 2022 and 16 January 2023, two water spray tests were conducted at the external wall at Flat 310. There was significant increase in surface moisture content at the bathroom ceiling after the first test, as well as extension of lower temperature zone by infrared thermography after both tests.

58.  Having considered the said Test Report, both Mr. Chiu and Dr. Lam had in the Supplemental Joint Expert Report dated 21 July 2023 prepared by them (“SJER”) maintained their respective opinions as set out in the JER.

DISCUSSION

Incidents 1 and 2

59.  The Defendants accepts liability for Incidents 1 and 2, but it is the Defendants’ case that the documentary evidence shows there has already been a settlement concerning the Plaintiff’s claim arising from those two incidents.

60.  On 23 May 2017, United Adjusters for the Plaintiff’s insurer had proposed settlement sums for Incidents 1 to 3. Thereafter on 9 June 2017, United Adjusters wrote to the Defendants, proposing settlement sums. On 14 September 2017, the Defendants’ insurer, AIA Company Limited, informed the Defendants that they were prepared to settle the claim, including the sum payable to the Plaintiff.

61.  Subsequently, it can be seen from a letter dated 8 April 2019 from United Adjusters that there were discussions between the parties’ insurers and agents, and United Adjusters indicated that there was settlement agreement where the Defendants’ insurer would pay HK$18,100 to settle all claims arising out of the incidents that took place between 9 August 2016 and 25 October 2016.

62.  On 17 October 2019, United Adjusters issued an email to the Plaintiff, stating that Incident 1 was due to the burst of the flush water pipe in Flat 410, and Incident 2 was due to water leakage from a fresh water pipe in Flat 410, and also that Incident 3 was due to common drainage pipe blockage causing water to backflow into Flat 410. As such, only Incidents 1 and 2 were caused by defective water pipes in Flat 410, for which United Adjusters (who had the right to pursue the recovery) agreed to accept HK$18,100 as the settlement sum. In other words, $18,100 had been the adjusted loss arising from Incidents 1 and 2. In the circumstances, the Plaintiff would have to bear HK$1,810 as the policy excess.

63.  On 22 July 2020, United Adjusters reiterated to the Plaintiff that they were pursuing a claim against the Defendants for Incidents 1 and 2, and that they accepted the Defendants’ offer to settle for HK$18,100. On 6 August 2024, United Adjusters informed the Defendants’ solicitors that their principal already reimbursed the loss to the Plaintiff, and they have obtained the consent from the Plaintiff to pursue a recovery for the insured loss.

64.  On 25 September 2024, United Adjusters provided the Defendants with a discharge form signed by the Plaintiff’s insurer, which contains the following clauses:

(1)  The Plaintiff has signed a letter of subrogation/authorisation dated 6 June 2017 subrogating to his insurer all his rights, title and interest in and to the property for which claim is made in respect of loss or damage at Flat 310 caused by Incidents 1 and 2.

(2)  The insurer accepts HK$16,290 as the settlement sum in full and final settlement of all claims of whatever nature made or which will be made against the Defendants, on a without admission of liability basis.

(3)  The insurer agrees that the parties concerned shall be absolutely and finally exonerated and discharged from all claims whatsoever by the insurer or on their behalf out of or connected with or traceable to Incidents 1 and 2.

65.  The Defendants thus submit that it is clear a settlement has already been reached for the Defendants to pay HK$18,100, of which HK$16,290 would be paid to the Plaintiff, the balance of HK$1,810 being the policy excess, in settlement of loss and damage arising from Incidents 1 and 2.

66.  In this respect, the Plaintiff submits that the claim which has been settled by the Discharge Form signed on 20 September 2024 is one for insured loss only (i.e. HK$16,290), whereas the present claim is one for uninsured loss.

67.  It is accepted by the Defendants that an insurer is only subrogated to rights which diminish the loss which he has paid, and the insured can continue proceedings to gain compensation for his uninsured loss: MacGillivray on Insurance Law (15^th Ed) at paras.22-038 & 22-042.

68.  However, the Defendants say that as a settlement has been reached, recourse to the original claim will not be permitted. Rather, the Plaintiff has to sue on the settlement agreement which governs the parties’ legal relationship in connection with incidents 1 and 2: see Foskett on Compromise (10^th Ed) at para.8-02. The Defendants say they are ready and willing to pay the said HK$1,810 to the Plaintiff on the basis of the settlement agreement, but the Plaintiff for his own misconceived reason has refused to accept the payment. There has been no breach on the part of the Defendants of the settlement, and thus no order is necessary to compel the Defendants to pay HK$1,810 to the Plaintiff.

69.  The Plaintiff accepts that there has been past correspondence discussing the potential settlement of the insured loss, but he says that no final settlement has ever been reached, relying on the fact that the Discharge Form has never been signed by the Plaintiff himself, and as a result of which United Adjusters had informed the Defendants’ solicitors that the form should be revised to state that the sum was to “to settle the claim of the insured loss (HK$16,290)…first”. In this regard, the Plaintiff relies on UDL Argos Engineering & Heavy Industries Co., Limited v Dragages Hong Kong Limited, HCA 1264/2007, 29 August 2007 involving a similar situation, where the Court found no settlement had been reached, for the reason that there was no document setting out unequivocal terms signed by the parties. The Plaintiff also refers to Chitty on Contract (35^th Edition) at para.25-008 where it is stated:

“In order to establish a valid compromise, it must be shown that there has been an agreement (accord) which is complete and certain in its terms, and that consideration (satisfaction) has been given or promised in return for the promised or actual forbearance to pursue the claim…”

70.  Further, the Plaintiff submits that any prior offer by United Adjusters of settlement of the uninsured loss has already lapsed. This is because despite the email dated 6 July 2018 from United Adjusters to the Defendants’ insurer, and a letter of request to the Defendants dated 8 April 2019, the Defendants or their insurer has not paid any amount within the stated time limits of 14 days for accepting the offers, and it was not until 4 October 2021, almost 2.5 years later, that the Discharge Form was sent to United Adjusters for the Plaintiff to sign. The Plaintiff therefore says that the time to accept any prior offer by United Adjusters had already lapsed by that time.

71.  On the other hand, the Defendants say that in the preamble to the discharge form, which was nevertheless signed by the Plaintiff’s insurer and provided by United Adjusters to the Defendants on 25 September 2024 , it is recorded that the Plaintiff has signed a letter of subrogation and authorisation dated 6 June 2017 subrogating to his insurer all his right, title and interest in and to the property for which claim is made in respect of loss or damage at Flat 310 caused by incidents 1 and 2. In cross examination, Ms. Wu confirmed this to be true.

72.  The discharge form provides that the insurer accepts HK$16,290 as the settlement sum in full and final settlement of all claims of whatever nature against the Defendants. The insurer also agreed that the parties concerned shall be absolutely and finally exonerated and discharged from all claims whatsoever by the insurer or on their behalf out of or connected with or traceable to Incidents 1 and 2. As such, the Defendants submit that the Plaintiff can only claim for his uninsured loss, being HK$1,810, i.e. the policy excess he had to pay. Having subrogated his right to the insurer, and accepted his insurer’s compensation, the Defendants say the Plaintiff is not entitled to claim any loss other than his uninsured loss.

73.  The Defendants also highlighted the fact that when the proceedings were initially commenced in the Small Claims Tribunal on 18 October 2019, the Plaintiff only claimed for HK$1,810 for this part of the claim, being the policy excess.

74.  Having considered the relevant documents related to the proposed settlement, I accept the Defendants’ submission that there has already been an overall settlement of this part of the Plaintiff’s claim. The Plaintiff is not entitled to pursue this part any further. It has been the Defendants’ position that they were willing to pay for the uninsured loss of HK$1,810, but the Plaintiff has continued to reject this.

Incident 3

75.  As for Incident 3, the Defendants rely on the fact that the loss adjuster of the Plaintiff has already concluded that it was not attributable to the Defendants. In this respect, the Plaintiff submits that his expert, Mr. Chiu’s opinion that that a U-shape water trap and pipe of Flat 410 is the source of the water leakage is supported by contemporaneous evidence from the MO listing out its findings on 26 October 2016 as referred to above. In particular, it was found that a branch pipe, which was exclusively used by Flat 410, had “leakage problem” and there was “backflow of water from the floor drain of the kitchen” of Flat 410. After investigation, the MO concluded that the source of the water leakage was the kitchen drainage trap of Flat 410 situated in the kitchen ceiling of Flat 310.

76.  The Plaintiff says that the Defendant’s expert, Dr. Lam’s opinion that a common pipe is the source of the water leakage does not sit well with the objective evidence. In particular, the Plaintiff says that although a common drainage pipe inside the kitchen of Flat 410 was replaced on 2 December 2016, water seepage at the kitchen ceiling of Flat 310 was still found by the Joint Office on 13 December 2016.

77.  The Plaintiff says that in any event, the view of United Adjusters that Incident 3 on 27 October 2016 did not originate from Flat 410 is of limited evidential value, as no reason was given by United Adjusters for its view. I do not agree. Contrary to the Plaintiff’s allegation that there was leakage in the U-shaped trap, the MO at the material time considered that the leakage originated from a pipe, and subsequently United Adjusters determined that it was the common pipe that was defective. In any event, it is the MO’s duty to replace the U-shaped pipe. The fact remains that this was the finding of the Plaintiff’s loss adjustor.

78.  I therefore do not find that the Plaintiff has proved, on the balance of probabilities, that Incident 3 was caused by the Defendants or the damage has originated from Flat 410.

Incident 4

79.  For Incident 4, the Plaintiff submits that Mr. Chiu’s opinion that the bathroom waterproofing facilities of Flat 410 was the source of the water leakage, based on the Nuisance Notice dated 5 March 2019 and its supporting documents, is not disputed by Dr. Lam, who merely opined that there is no evidence to support the alleged repair. The Plaintiff therefore says it is doubtful how the Defendants can dispute causation as such.

80.  In this regard, the Defendants submit that the Nuisance Notice was based on a test report prepared by MT which shows that after a ponding test in the bathroom of Flat 410 was conducted, the colour of the dyed water could be observed on the ceiling of the bathroom of Flat 310. That however, say the Defendants, is nowhere near being determinative of their liability. The Defendants submit that the report only shows that if there was ponding of water on the floor slab of the bathroom of Flat 410, water could seep through to the ceiling of Flat 310. It does not show that water would seep through if the bathroom is used in an ordinary manner. Ponding test does not reflect actual usage. The Plaintiff has not adduced any expert evidence on the cause of the water leakage at the relevant period of time.

81.  The Defendants further submit that despite their complete renovation of the bathroom of Flat 410 and re-routing the water pipes, and followed by the halting of water leakage for a while, the Plaintiff alleges the re-emergence of the problem of water leakage subsequently. That indicates that before the renovation, while water could theoretically leak from Flat 410 if there was ponding of water, the actual water leakage problem did not originate from Flat 410.

82.  On the other hand, the Plaintiff submits that the Defendants’ submission that the ponding test does not reflect actual usage is unsupported by their expert evidence, and is also contradicted by the finding of MT in its Inspection Report, on which the Nuisance Notice was based, that “infiltration from the floor slab including the enclosing walls of the bathroom shower area was certain”.

83.  The Plaintiff submits that there is no evidence or analysis on the sufficiency of the Defendants’ alleged renovation of their bathroom, which if insufficient might cause the water leakage to persist.

84.  The Defendants further submit that it is unclear as to what exactly the Plaintiff’s allegations of water seepage were during the period from 2017 to 2019. They rely on the following matters that occurred.

85.  On 6 February 2017, the Joint Office informed the Defendants that having carried out investigations in Flat 410, they could not ascertain the source of the alleged water leakage. On 7 June 2017, the Joint Office informed the Defendants there was no longer any sign of water leakage. In other words, there is no evidence of water leakage originating from Flat 410 in 2017.

86.  On 27 August 2018, the Joint Office informed the Plaintiff that they carried out investigation in Flat 410 on 6 August 2018, and they could not ascertain the source of the alleged water leakage. Even if the water leakage problem at that time originated from Flat 410, it does not mean the Defendants are automatically liable. The Defendants say they plainly had no such knowledge. In any event, the Defendants say that upon receiving the Nuisance Notice, the Defendants carried out immediate repairs to Flat 410, and they completed the renovation within the reasonable period as allowed by the Joint Office.

87.  As a matter of fact, on 20 August 2019, the Joint Office informed the Plaintiff that the alleged water leakage had stopped already. On 3 September 2019, the Joint Office also stated that they inspected Flat 310 on 22 August 2019, and they found no sign of water leakage.

88.  The Plaintiff disagrees with the Defendants in this respect. According to the Plaintiff, the Defendants had not taken sufficient or reasonable action in time to abate the water leakage, despite a two-time grant of time extension by the Joint Office for compliance with the Nuisance Notice, and their alleged repair works of the bathroom were completed out of time by the end of September 2019. Further, it is said that prior to the issuance of the Nuisance Notice, the Defendants had already been causing delay by ignoring or not responding to at least two Notices of Appointment and repeated requests from the MO for arrangements for a visit to be made by MT or the Joint Office. Even when arrangements were apparently made for a visit to be made, there had been no one answering the door on the relevant date.

89.  The Plaintiff also complains that the Defendants had arranged a series of tests by an alleged expert, 周錦華, between 8 and 27 April 2021, not only knowing that the Joint Office had intended to apply for a warrant of entry on 21 April 2021, but also in contrast of the opinion of the Joint Office that no test could be carried out due to the ongoing renovation there.

90.  The Plaintiff also says the Defendants had been adopting an irresponsible attitude as demonstrated by the purported ignorance of the cutting of flush water supply of Flat 310 and Flat 410 by the MO since 5 September 2020 for at least 10 months due to the suspected flush water leakage from Flat 410. The 1^st Defendant’s allegation that his tenant had only on a few occasions informed him that there was no flush water supply, and his excuse that he rarely “interfered with” his tenant’s “enjoyment” of Flat 410, are indeed highly unbelievable.

91.  Further, the Plaintiff also complains that it was irresponsible on the part of the Defendants for them to have replaced the grey water pipe and red button outside the external wall of Flat 410 without the MO’s consent and approval.

92.  Having considered the evidence and the arguments, I am with the Defendants. Despite the ponding test apparently done by MT, the test report itself is not informative, as it contains no details as to how it was conducted. Neither did MT nor the Joint Office conclude that there was actual water seepage coming from Flat 310, but rather a theoretical possibility. This possibility is put in doubt when one also considers the ponding test conducted by MT from 31 December 2021 to 21 January 2022 as set out below.

93.  Also, the Defendants’ evidence is that in response to the Nuisance Notice, they had suspended the water supply after the tenant had moved out, and had demolished and reconstructed the bathroom. As set out above, the Joint Office found in late June 2019 that the alleged water leakage had stopped. Further inspection by the Joint Office on 22 August 2019 also showed that there was no sign of water leakage. According to the report compiled by Prudential Surveyors International Limited, investigations were carried out between January and May 2020, and Flat 410 was not identified as the source of leakage. The Joint Office also said in their letter dated 10 July 2020 that they did not identify Flat 410 as the source. Despite all this, subsequently in December 2020 and also in January 2021, the Plaintiff still complains of water seepage. It would appear highly questionable whether the problem did in fact originate from Flat 410.

94.  Having considered the evidence overall, I am of the view that the Plaintiff has not sufficiently proved that Incident 4 was caused by the Defendants or had originated from Flat 410, or that the Defendants should be liable for nuisance in this regard. This is also supported by the analysis below concerning the possibility of seepage originating from the external walls of the building, which is set out in the discussion concerning Incident 5 and further incidents below in detail.

Incident 5 and further

95.  The Defendants referred to the report compiled by Prudential Surveyors International Limited showing that investigations were carried out between January and May 2020, but Flat 410 was not identified as the source of leakage.

96.  On 5 November 2020, the Joint Office notified the Plaintiff that they carried out investigation and colour water test at Flat 410 on 26 August and 11 September 2020, and they could not ascertain the source of the alleged water leakage.

97.  Another consultant, Geotechnics & Concrete Engineering (HK) Ltd, carried out investigation on 2 December 2020 and did not ascertain Flat 410 as the source of leakage. The Joint Office also said in their letter dated 20 January 2021 that they did not identify Flat 410 as the source. Similarly on 10 February 2021, the Joint Office reported to the Plaintiff that their investigations in September, October and December 2020 could not ascertain the source of leakage.

98.  In the letter dated 9 November 2021, the Joint Office stated that investigation was carried out from June to August 2021, and they could not identify Flat 410 as the source of leakage. The relevant tests were conducted by Prudential Surveyors International Ltd on their behalf.

99.  Separately, on 14 October 2022, the MO informed the Defendants that defective external walls caused water seepage into Flat 310.

100.  The Defendants further say that the aforesaid conclusions are reinforced by the expert evidence. In the JER, the ponding test conducted on the floor of the bathroom of Flat 410 (not being the shower area) appears to show that the dyed water (sulforhodamine B) could be seen on Spot A of the ceiling of Flat 310 as indicted on the relevant photograph and location plan. However, the Defendant says the test is not conclusive. Firstly, it is said that in ordinary usage, there would not be ponding of water on the bathroom floor, and definitely not for two hours. As such, ponding test does not reflect actual usage. However, I am not with the Defendants on this point. Apparently, the ponding test has been done by the various consultants and the Joint Office as well as by MT for the purpose of investigation into this issue. Although in actual usage, there may not be such amount of water used, this remains to be recognised as a valid test by various parties. In fact, Dr. Lam had raised no objection either during the investigation. As such, I do not see much strength in this argument.

101.  Dr. Lam also pointed out that the ponding test was not properly done as the floor area of the bathroom was not fenced off. This is shown by a photograph numbered P12 in the JER, where it can be seen that the dyed water had spilled to the right despite water bags had been placed around the area. The dyed water had apparently escaped from the floor area and migrated to the corridor area outside the bathroom. According to his observation, the dyed water seeped through the corridor area of Flat 410, which is not meant to be waterproof. On the other hand, despite Mr. Chiu has stated that the dyed water should not have seeped through the corridor of Flat 410 onto the ceiling of the bathroom of Flat 310, he did not say that the dyed water did not in fact so seep through to the ceiling of Flat 310 in his report, but only attempted to say so when cross-examined.

102.  The Plaintiff has vehemently tried to attack the credibility of Dr. Lam concerning his evidence that the dyed area was observed in Spot A about 5 minutes after commencement of the ponding test when he entered Flat 310 to made an observation. The Plaintiff says that this is incredible in that the timing was inconsistent with the records of MT showing the time periods of the stages of the ponding test. The Plaintiff also says that it is hard to believe that Dr. Lam would have absented himself from the site of the test in Flat 410 at the material time without informing Mr. Chiu or the others present. He is also attacked for his failure to disclose his alleged discovery of Spot A. It is said that his allegation that he had told someone from MT is unbelievable as it was not recorded anywhere.

103.  Firstly, whilst he may not have got the timing exact or correct, the fact remains that Dr. Lam did in fact state in the report that the dyed area was observed in Spot A about 5 minutes after the commencement of the ponding test. Importantly, his version is supported by a photograph taken at 12:45 pm which shows the dyed water in Spot A. Overall, I do not find Dr. Lam to be unbelievable over this issue.

104.  Further, Dr. Lam says that the red stain appeared 5 minutes after the ponding test, meaning there was very rapid seepage. This was stated in his report and was elaborated upon during his cross-examination. If the water originated from the pond of water on the bathroom floor, a lot more of the dyed water would have seeped through the floor slab to the ceiling of Flat 310. The red stain however did not spread, indicating it originated from the relatively small volume of dyed water spilled onto the corridor of Flat 410. This is supported by the microwave test, which to some extent shows a water path from grid B6, which is adjacent to the corridor, to grid B4, where spot A was located.

105.  Even before the ponding test, an area with low temperature (suggestive of high moisture content) was observed in the area adjacent to the external walls. Indeed, high moisture content readings were consistently observed in the ceiling adjacent to the external walls of the bathroom of Flat 310.

106.  The Defendants say, and I agree, that Dr. Lam has convincingly explained how water on the external walls could seep into the bathroom of Flat 310 through the sunken slab. This, they submit, shows that Dr Lam’s explanation is consistent with the fact that none of the Joint Office’s inspections identified the bathroom of Flat 410 as the source of water leakage, and consistent with the fact that even the MO admitted that water could seep through the external walls. The only difference between the previous tests done by the Joint Office and the one done by MT for the JER is that in the latter test, dyed water was not fenced off and some of it spilled onto the corridor.

107.  The Defendants further submit that Dr. Lam’s account is confirmed in the further water spraying tests done by MT on 29 December 2022 and 16 January 2023. The interpretation and explanation of those further tests by the experts can be found in the SJER:

(1)  At the material time since February 2021, Flat 410 was unoccupied and there was no usage of water (as shown by the relevant water bills), which means there was no water source within Flat 410;

(2)  Before the spraying test on 29 December 2022, there was already a wet spot on the ceiling of the bathroom of Flat 310 (i.e. spot CP26, which is adjacent to the external walls);

(3)  After the spraying test on 29 December 2022, spot CP26 remains wet, while the moisture content of another spot has substantially increased (i.e. spot CP31, which is adjacent to the external walls and spot CP26). This is clear proof of ingress of water from the external walls;

(4)  Similarly, before and after the spraying test on 16 January 2023, both spots CP26 and CP31 were wet, showing ingress of water from the external walls.

108.  The Defendants submit that in the SJER, Mr. Chiu did not offer his interpretation as to the results of the spraying tests on the external wall. During cross-examination, he accepted that the spraying tests showed that water did seep through the external wall. He also accepted that there could be rain water, water leaked from pipes, and water from air-conditioners that could seep through the external wall. However, when confronted with the question why he maintained that the external wall was not the source of leakage, he said that was because he believed the MO (i.e. MTR Corporation) would maintain the water pipes and the external wall. In other words, his conclusion is solely premised on his trust in the MO, but not based on any actual inspection of the external wall.

109.  The Defendants further pointed out that the timing of the cessation of the water leakage problem was also highly suggestive that the source of the leakage was the external wall of the building. Firstly, Ms. Wu confirmed that there was no complaint of water leakage from her tenant since December 2023. Meanwhile, the 1^st Defendant has pointed out that the MO had carried out repairs to the external wall on the side of the lightwell on several occasions, the latest being from August to October 2023. This is apparently consistent with the fact that the leakage problem had ceased in around December 2023. As the Defendants have pointed out, this is in fact highly suggestive of a causal relationship between such works and the cessation of the problem.

110.  Despite the tremendous and forceful arguments put forward by Mr. Ng for the Plaintiff, I agree with the Defendants that overall, the findings of the Joint Office, the admission of the MO and the expert evidence show that, on the balance of probabilities, the source of water leakage was not Flat 410. The Defendants do not have to prove that the source lies elsewhere, but in this case, the evidence strongly suggests that the water seeps through the defective external walls, which were not in good condition. It must be mentioned that in this case there is no suggestion that the Defendants had caused the external walls to be damaged, thus leading to the water seepage. There can be no question of attributing the water seepage from the external wall to the Defendant’s fault.

JUDGMENT

111.  By reason of the above analysis, I therefore find for the Defendants and dismiss the Plaintiff’s claim herein, with costs to the Defendants to be taxed if not agreed, with Certificate for Counsel for the trial.

112.  Lastly, it remains for me to thank counsel on both sides for their helpful assistance at the trial.

Ms Queenie Ng and Mr Stephen Keung, instructed by King & Co, for the Plaintiff

Mr Patrick Siu, instructed by Boase, Cohen & Collins, for the Defendants