MAK WAI YIM AND ANOTHER v. TAM SIU LING AND ANOTHER

MAK WAI YIM AND ANOTHER v. TAM SIU LING AND ANOTHER

The court accepted the ponding test evidence (appearance of fluorescent yellow-green dye observed by QTC technicians and confirmed by plaintiffs' expert Mr Wong on 7 February 2013) as proving Unit 2A was the source of water seepage to Room 1D; there was insufficient evidence to show Unit 2A caused seepage to Room 1C; accordingly defendants liable for damage to Room 1D only and plaintiffs awarded damages, while injunction was refused because seepage had stopped and a lapse of time without recurrence made injunctive relief inappropriate.

Citation
MAK WAI YIM AND ANOTHER v. TAM SIU LING AND ANOTHER
Parties
1st Plaintiff: MAK WAI YIM; 2nd Plaintiff: LEUNG WAI CHUN; 1st Defendant: TAM SIU LING; 2nd Defendant: CHAN CHOI WUN
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
16 January 2014
Case Number
DCCJ1428/2012
Procedural Posture
Civil Action Water Seepage / Nuisance / Judgment at Trial
Outcome
Judgment for plaintiffs in part: defendants ordered to pay damages of HKD 83,000; injunction denied; costs ordered nisi in favour of plaintiffs
Legal Topics
Nuisance, Negligence, Building Management Ordinance S.34 H, Injunction, Damages, Expert Evidence (ponding Test Vs Infrared)
Source Language
EN
Property Law Tort Building Management Civil Procedure Evidence (expert) Nuisance Negligence Building Management Ordinance S.34 H +3 more

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Parties

MAK WAI YIM

1st Plaintiff

LEUNG WAI CHUN

2nd Plaintiff

TAM SIU LING

1st Defendant

CHAN CHOI WUN

2nd Defendant

Procedural Posture

Civil Action Water Seepage / Nuisance / Judgment at Trial

Legal Issues

  1. 1 Whether Unit 2A was the source of water seepage to Room 1D and Room 1C
  2. 2 Whether defendants liable in nuisance/negligence and for breach of s.34H Cap 344
  3. 3 Whether injunctive relief should be granted

Ratio Decidendi

The court accepted the ponding test evidence (appearance of fluorescent yellow-green dye observed by QTC technicians and confirmed by plaintiffs' expert Mr Wong on 7 February 2013) as proving Unit 2A was the source of water seepage to Room 1D; there was insufficient evidence to show Unit 2A caused seepage to Room 1C; accordingly defendants liable for damage to Room 1D only and plaintiffs awarded damages, while injunction was refused because seepage had stopped and a lapse of time without recurrence made injunctive relief inappropriate.

Court Disposition

Judgment for plaintiffs in part: defendants ordered to pay damages of HKD 83,000; injunction denied; costs ordered nisi in favour of plaintiffs

Orders

  • Defendants to pay plaintiffs damages in the total sum of HKD 83,000 (HKD 10,800 repair + HKD 72,200 rental loss) with interest at half judgment rate from date of writ until judgment and thereafter at judgment rate until payment
  • Order nisi that defendants pay plaintiffs costs of the action, to be taxed if not agreed, with a certificate for counsel; order nisi to become absolute unless application for variation made within 14 days from date of judgment