Loke Yuen Jean Tak Alice v Wong Kit Ying And Another

HCA 495/2012

[2019] HKCFI 1895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 495 OF 2012

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JUDGMENT

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Index		paragraph
I	INTRODUCTION	1
II	FLAT GE	8
III	FLAT 1E	18
IV	ROOF	21
V	MAIN PROCEEDINGS	22
VI	CONTRIBUTION PROCEEDINGS	29
VII	THIRD PARTY PROCEEDINGS	30
VIII	FACTUAL WITNESSES	38
IX	EXPERT WITNESSES AND THEIR REPORTS	44
X	LEGAL PRINCIPLES
	Nuisance: use of land	49
	Nuisance: duty and proof	52
	Nuisance: causation of loss	60
	Nuisance: measure of damages	66
	Nuisance: landlord’s/tenant’s liability	74
	Contract: implied terms	81
	Contract: right to indemnity	82
XI	MISCELLANEOUS MATTERS	83
XII	BEFORE MID-NOVEMBER 2006
	Pre-existing condition of Flat GE	86
	Alleged water leakages	87
XIII	2006	92
	P’s claim	93
	Complaint to BMO	94
	Location X / Cabinet Area	95
	Location U / Bathroom Area	100
	Location Z / Laundry Area	106
	Summary	121
	Notification to D1	122
	December 2006	125
XIV	1ST TENANCY
	Background	127
	D1’s stance	130
	TPs’ stance	131
	Discussion	132
XV	RENOVATIONS AT FLAT 1E
	Parties’ stance	138
	Discussion	139
XVI	2007
	P’s claim	145
	Ds’ defence	146
	Visit to Flat GE?	147
	January/February 2007	154
	March 2007	155
	Bathroom Area : Locations B	157
	Laundry Area: Locations Z and Y	169
	Washing machine at Flat 1E	172
	Alleged flooding incident	173
	Laundry Area: Location A	175
	April 2007	184
	Cabinet Area : Location X and Extension X	187
	D1’s alleged works	203
	May 2007	213
	June-August 2007	214
	Taking showers, doing laundry and washing dishes	218
	September/October 2007	222
	November/December 2007	226
XVII	2008
	Early 2008	232
	March 2008	236
	April 2008	241
	May 2008	243
	Watering plants and water spray test	253
	June 2008	260
	July-September 2008	261
	October 2008	264
XVIII	2009	266
	2nd TA	267
	SCT Action	268
XIX	2010	270
	FEHD’s Colour Test	275
	External Helper FD Drainpipe	277
XX	2011	286
	April 2011	287
	Periodic tenancy	292
	06/11 Incident	293
	D2/TP1 left	308
	New tenancy	309
XXI	2012	310
XXII	2013	314
	Sewage blockage	315
	FEHD	322
	Bedroom incident	324
XXIII	2014	325
XXIV	EXPERTS	326
XXV	CAUSES AND CAUSATION	356
	Drainage on Rooftops	358
	Alterations to drainage system of Flat 1E	361
	Modifications to pipes/drains of Block E	363
	Floor slabs	365
	Defective waterproofing of the GE Structures	368
XXVI	D1’s AND D2’s LIABILITY TO P
	D1’s liability?	378
	D2’s liability?	379
XXVII	D2’s LIABILITY UNDER TAs AND ADDENDUM	394
XXVIII	D2’s CONTRIBUTION CLAIM AGAINST D1	395
XXIX	D1’s CONTRIBUTION AND THIRD PARTY CLAIMS AGAINST TPs	396
XXX	CAUSATION OF LOSS	397
XXXI	APPORTIONMENT OF LIABILITY/LOSS	401
XXXII	QUANTUM OF DAMAGES	404
	Costs already incurred	406
	Estimated costs of renovations	418
	Loss of enjoyment of 60% of Flat GE and damages for discomfort, inconvenience and disturbance from November 2006 to March 2012	429
	Loss of enjoyment of entire Flat GE from April 2012 pending rectification/renovations	441
	Summary	445
XXXIII	CONCLUSION	446

I. INTRODUCTION

1. Villa Dorada, No 126 Blue Pool Road, Hong Kong (“Villa Dorada”) was a residential building estate made up of 3 buildings one of which (“Building”) comprised Blocks A-E (“Blocks A-E”). The Building was built in 1977 with ground floor (“G/F”), 1^st floor (“1/F”), 2^nd floor (“2/F”) being domestic flat units (“Flats GE, 1E and 2E”), and roof (“Roof”) being a carpark (“Carpark”). The present action concerned Flat GE and Flat 1E (directly above Flat GE but with different size and layout).

2. The plaintiff (“P”) was the owner of Flat GE. In April 2000 P and her husband Loke Aaron Ngai Lun (“Loke Sr”) purchased Flat GE, and lived there with (a) their son Loke Alexander Aaron Eugene (“Loke Jr”) who went abroad in August 2002 but returned in March/April 2010 to stay briefly at Flat GE before moving out in June 2010, and (b) a helper from May/June 2008 until the summer of 2010. Loke Sr passed away on 12 May 2010, and P became the sole owner of Flat GE. P left in early 2012, and since then Flat GE was vacant.

3. The 1^st defendant (“D1”) was the owner/landlord of Flat 1E. In September 2002 D1 purchased Flat 1E, which became home to D1, her then husband Li Wan Yiu (later divorced, “Li”), daughter (“Daughter”) and helper until mid-2006. D1/Li shuttled between Mainland China (where they had their businesses) and Hong Kong, but the Daughter stayed at Flat GE with the helper. In mid-2006, D1 and her family moved out, and Flat 1E remained unoccupied until it was let in early 2007 via D1’s agent Linda Lo (“Linda”) of Broadview Real Estate Agency Co (“Broadview”).

4. At the time, the 2^nd defendant who was also the 1^st third party (“D2” and “TP1”) was the employed managing director of the 2^nd third party Jordahl Hong Kong Limited (formerly known as Sino Laker Limited, “TP2”). Since early 2007 TP2 rented Flat 1E as staff residence for D2/TP1 and his wife, 2 children and helper as licensees. In January/February 2007, D2/TP1 and/or TP2 took possession and renovated Flat 1E. In March 2007, D2/TP1 and his family moved in after completion of the renovations in early March 2007. They left in late June or early July 2011.

5. Before October 2007, Selex Properties Management Company Limited (“Selex Properties”) was the manager of Villa Dorada (“Manager”). In October 2007, Chief Real Estate & Assets Management Limited (“Chief RE”) succeeded Selex Properties as the Manager. The Manager had a building management office (“BMO”) and employed caretakers including a Mr Wong (“Wong”). D1 mainly liaised with Wong, and after moving out of Flat 1E she returned now and then to collect received letters from Wong.

6. On 26 March 2012, P commenced legal action (“Main Proceedings”) against D1 and D2 (collectively, “Ds”) for loss/damages as a result of water leakages at Flat GE between November 2006 and March 2012 that allegedly came from Flat 1E and (a) constituted nuisance Ds knew or ought to have known but permitted to continue and/or (b) were caused by Ds’ negligence.

7. On 15 and 21 June 2012, D1 and D2 commenced contribution claims against each other (“Contribution Proceedings”) for indemnity/ contribution in the event either of them were held liable to P in the Main Proceedings. On 14 April 2014, D1 commenced third party claim against TP1 and TP2 (collectively, “TPs”) for indemnity/contribution (“Third Party Proceedings”) based on D2’s/TP1’s alleged breach of contract / negligence, and TP2’s alleged breach of the Tenancies referred to in paragraph 31 below.

II. FLAT GE

8. Flat GE was originally 120 sq m in size. Copy original layout plan of Flat GE and copy modified layout plan of Flat GE at the relevant times are respectively annexed to this judgment as schedule 1 (“Schedule 1”)[1] and schedule 2 (“Schedule 2”).[2] As seen in the original layout drawing of the G/F,[3] Flat 1E was separated from 1^st floor flat unit of Block C (“Flat 1C”) by a dividing wall.

9. Flat GE’s original reinforced concrete external walls included (a) those with windows facing the yard outside the 2 bedrooms and kitchen at the rear of Flat GE (“Yard”), (b) those around the light well sandwiched between the master and guest bathrooms at the rear of Flat GE (“Light Well”), and (c) those with windows facing the courtyard adjacent to the living area at the front of Flat GE (“Courtyard”). The Yard, Light Well and Courtyard used to be open spaces (“G/F Open Spaces”).

10. But (i) most original external walls referred to in paragraph 9 above and some original internal partition walls of Flat GE were modified/ demolished,[4] (ii) some beams were damaged (see paragraph 17(c) below[5]), and (iii) new walls/structures were built to enclose the G/F Open Spaces into interior parts:

(a)

The original external wall facing the Yard was demolished,[6] and a new window-less brickwork wall was erected to enclose the Yard as part of the Loke Jr Bedroom referred to in paragraph 11(b) below and the GE Living/Dining Areas referred to in paragraph 12(b)-(c) below (“Yard Structure”) (see renovation plan dated June 2000 disclosed by P (B1/471, “Renovation Plan”)). Such brickwork wall was behind the full-height wall cabinet in the Loke Jr Bedroom and the Old Cabinet referred to in paragraph 88(a) below (“Cabinet Wall”), and parallel to the