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法庭案例  (法庭判案書節錄部份內容以供參考)   

 

(1) 土地審裁處  法庭案件編號 LDBM 18/2014

申請人的專家證人: 香港公正行 (劉珊娜)  

法庭結果: 申請人勝訴法庭發出強制維修及賠償命令

節錄判案書部份內容以供參考:

-申請人在2013年12月14日委託了香港公正行有限公司作調查,以找出12G單位內滲漏的源頭, 調查由專家證人劉珊娜女士("劉女士")負責。(第12段)

-由於答辯人拒絕讓劉女士進入13G單位作調查,劉女士在2013年12月14日只到了12G單位,以目視勘察法、徵狀分析法、導電感應檢測法、水樣本分析法、紫外線鑑定法、紅外線掃描法以及微波掃描法進行調查。(第13段)

-在考慮過雙方的證供後,本席認為申請人一方已成功舉證,12G單位的滲漏情況,源自13G單位的主廁及客廁地台(第24段)

-答辯人曾提出,滲漏可能是從外牆破損引起,唯本席接納劉女士的證供,她已就此一可能性作出調查,亦撇除了此一可能性本席認為答辯人所指外牆滲漏情況並不存在(第31段)

-本席認同,必須頒下強制令,強制答辯人就13G單位客廁地台作維修,以解決12G單位的滲水情況亦應在維修後聘請專業人員驗證妥善完成維修,以確保滲漏問題確實得到解決(第34段)

-申請人又要求答辯人賠償,因滲漏造成12G單位破損的維修費本席在看過劉女士在報告內 所開列項目及數額,接納為合理的維修及花費(第40段)

-在訟費應視乎訴訟結果而定的大前提下,本席看不到任何特殊環境因素,為何答辯人不應承擔申請人在本案中的訟費(第41段)

 

(2) 區域法院  法庭案件編號 DCCJ 1230/2015

申請人及答辯人的專家證人: 香港公正行 (Lau Shan La) 對 香港驗樓 (Hau Tung Chow)

法庭結果: 申請人勝訴。法庭發出強制維修及賠償命令

節錄判案書部份內容以供參考:

-The main battle of this case is on expert evidence. On 10 September 2015, the court has granted leave to parties to adduce expert evidence on liability and quantum. P has applied Miss Lau Shan-la and D appointed Mr Hau Tung-chow as experts of the parties. There were six joint inspections by the expert and three joint expert reports produced, dated 26 November 2015, 5 July 2016 and 7 November 2016 respectively. The experts had carried out the following tests: 

(i) Visual inspection;

(ii) Infrared scanning;

(iii) Electrical conductivity sensing;

(iv) Microwave scanning;

(v) Florescent dye test (rhodamine B);

(vi) Florescent dye test (using yellowish dye);

(vii) Water sample analysis. (Clause 10)

-The expert's conclusions are very different. P's expert opined that the water seepage affecting Workshop 302 ceiling was rainwater from flat roof of workshops 401 and 402 which ran on a gutter along the flat roof of these two workshops before going into downpipe located at Workshop 402 flat roof. The waterproofing membrane in the floor slab and perimeter areas of Workshop 402 flat roof was damaged or defective, causing water seepage into Workshop 302. She reached her conclusion based on the findings that there was no corresponding water seepage into the adjoining workshop 301 which is also owned by P. (Clause 12)

-Both experts came to court to give evidence and were cross-examined. (Clause 15)

-Once the source of water seepage has been found at D's Workshop 402, parties have no dispute that D should be held liable to P for negligence, nuisance, and breach of clause (s) of the Third Schedule of the DMC. (Clause 26)

-I grant a mandatory injunction to order D to repair the waterproof membrane in the flat roof of Workshop 402 covering the peripheral walls and the floor to prevent water seepage from Workshop 402 to Workshop 302. (Clause 33)

  

(3) 區域法院  法庭案件編號 DCCJ 3244/2015

申請人及答辯人的專家證人: 香港公正行 (Lau Shan La) 對 銀晉顧問 (Lo Kwok Kay)

法庭結果: 申請人勝訴。法庭發出強制維修及賠償命令

節錄判案書部份內容以供參考:

-Like many similar cases, parties have sought leave to adduce expert evidence on both issues of liability and quantum. Ps engaged Ms Lau Shan La who inspected P's Flat on 20 April and 9 May 2015, but without the opportunity to enter D's Flat. She eventually compiled her expert report on 15 June 2015. D engaged Mr Lo Kwok Kay who inspected both flats on 17 June 2016 and complied his expert report dated 28 June 2016. The experts also prepared a joint statement dated 22 September 2016 pursuant to O38 r38 of the Rules of the District Court. (Clause 9)

-Ms. Lau for P's opined that the cause of the water seepage at the Affected Area being the damaged waterproofing layer of D's balcony floor (including the surrounding wall) and the related dirty water drainages (including toilet bowl dirty water drainage, shower tray floor water drainage and balcony floor drain sewage drainage) of D's Flat. The water seepage extended from the kitchen ceiling and the balcony ceiling to the toilet ceiling of P's Flat. (Clause 10)

-On the contrary, Mr Lo for the D's, opined that the waterproofing layers of balcony floor slab and shower tray floor slab, all related drainage pipes (including waste water pipes) and water supply pipes of D's Flat did not suffer from any water seepage or leakage, and the source of P's water seepage was not from D's Flat. (Clause 11)

-D's expert has failed to indicate the exact location of the two checkpoints for taking the ECS readings for various tests. Compared with 20 checkpoints taken by P's expert, D's expert only took readings at two checkpoints. Besides, D's expert has not done the microwave scanning which P's expert has relied upon such test results. (Clause 26)

-In view of the above, I think it is fair to say the methodology of P's expert is more comprehensive than those of D's expert. The investigation by P's expert is in general more serious, solid and professional, whereas the D's expert appeared to be rather sloppy. Hence, the expert opinion of P shall be preferred. (Clause 27)

-As I prefer to the expert opinion of Ms Lau for the above reasons, I find that the water seepage at the Affected Area was caused by the damaged waterproof layer of D's balcony floor (including the surrounding wall) and the related dirty water drainages (including the toilet bowl dirty water drainage, shower tray dirty water drainage and balcony floor drain sewage drainage) of D's Flat. (Clause 32)

- I am inclined to prefer Ms Lau's opinion on quantum issue, as her view in this regard is generally more soild and with more supporting evidence than Mr Lo's. (Clause 44)

-It is therefore neccessary to impose a mandatory injunction that D do carry out all neccessary repairs and/or remedy works of the waterproofing layer of D's balcony floor (including the surrounding wall) and the related dirty water drainages (including the toilet bowl dirty water drainage, shower tray dirty water drainage and balcony floor drain sewage drainage) of D's Flat and such order is made. (Clause 53) 

 

(4) 區域法院  法庭案件編號 DCCJ 4020/2012

申請人及答辯人的專家證人: 香港公正行 (Lau Shan La) 對 專業評量 (Stewart Wong)

法庭結果: 申請人勝訴。法庭發出強制維修及賠償命令

節錄判案書部份內容以供參考:

-Lau conducted the following tests in the bathroom in Room B of the 8/F Flat on 30 November 2014:

(i) Eosin yellowish ponding and flushing in basin and water closet; and

(ii) Spraying water at the walls. (Clause 43)

-After about an hour, she checked for water seepage with reference to the difference in moisture content before and after the tests at the ceiling of the Damaged Room in the 7/F Flat using the following methods:-

(1) Electrical conductivity sensing (導電感應法); and

(2) Infra-red scanning (紅外線掃描). (Clause 44)

-It is noted that Wong's report contained only 8 pages, attached with 44 pages of photographs without proper explanatory notes. This is contrasted with Lau's report of 428 pages containing details of observations, tests conducted, results and findings, analyses and explanations, attached with photographs with explanatory notes. (clause 83) 

-I have no doubt about the expertise and qualification of Lau. She gave firm answers with full explanations based on objective test results recorded in her report during cross-examination. (Clause 85)

-Having considered Lau's detailed report in the light of the other available materials and evidence, and heard her evidence given at trial, I find her a professional and reliable expert witness. I accept her evidence. (Clause 86)

-In the circumstances, where there are conflicts in the evidence between Wong and Lau, I would prefer that of Lau. (Clause 87)

-On the above analysis and upon acceptance of the evidence of P's expert Lau, I come to the following findings on a balance of probabilities:- (Clause 88)

-I make a mandatory injunction order for D to rectify the water leakage problems as pleaded by P, within 42 days as agreed by the parties. (Clause 115) 

  

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