Zainal Abidin De Silva and Another v Choy Kok Meng
| Jurisdiction | Singapore |
| Judge | Francis Tseng |
| Judgment Date | 06 January 2010 |
| Neutral Citation | [2010] SGMC 1 |
| Court | Magistrates' Court (Singapore) |
| Year | 2010 |
| Citation | [2010] SGMC 1 |
| Plaintiff Counsel | Margaret Neo (Hoh Law Corporation) |
| Defendant Counsel | Defendant in person |
| Published date | 09 March 2010 |
| 6 January 2010 |
|
District Judge Francis Tseng:
Background
Parties
1. The Plaintiffs are the owners of an apartment known as Blk 10E Braddell Hill #07-18 Singapore (“the Lower Unit”). The Defendant is the owner of the apartment known as Blk 10E Braddell Hill #08-18 which is situated directly above the Lower Unit (the Upper Unit”).
The Plaintiffs’ case
2. Some time around March 2008, the Plaintiffs discovered watermarks and water stains in the wardrobe along the walkway adjoining the common and master bedroom toilets of the Lower Unit. Within a week, these marks and stains had spread to the adjoining walls of the dining room. By the end of March 2008, water droplets were seen forming on the ceiling at the entrance of the common toilet, the master bedroom toilet and the walkway outside the common toilet.
3. The 1st Plaintiff informed the estate’s Management Corporation of the problem. He was later informed by the Management Corporation that they had written to the Defendant in March and April 2008 to rectify the water seepage and to cooperate in the checking by the PUB. Under cross-examination, the 1st Plaintiff gave the following answer:[note: 1]
“Q: Would it not be proper that we go through a check together and establish some kind of a test before you put in a writ against me?
A: The Braddell View MC had informed you and we had visited you on one occasion. As a gentleman, I offered you to pay for the costs on a 50-50 split to have the PUB test for the water pipe. You did not respond, and there was a letter sent by the Braddell View Management to inform you that for the PUB test to be done, the house owner had to cooperate.”
This answer was not challenged or refuted by the Defendant.
4. On 9 June 2008 the Plaintiffs’ solicitors wrote to the Defendant requesting him to appoint qualified surveyors to rectify the seepage, but there was no response. On 25 July 2008 the Plaintiffs’ solicitors again wrote to the Defendant requesting access for their surveyors to determine the cause of the seepage. There was again no response.
5. The problem persisted, and the concrete in the damaged locations started to spall and the paint started to peel off. The door frames of the master bedroom and the toilets expanded due to water absorption and could not close properly, and the built-in wardrobe along the walkway was also badly damaged. The Plaintiffs then engaged surveyors to determine the cause of the water seepage, and the surveyors reported that it was most likely from the Upper Unit.
6. PW1, Toh Thye Ann (“Mr Toh”), who carried out the survey, was called as an expert witness for the Plaintiffs. This witness, who had a fairly impressive curriculum vitae, was the Director and Principal Consultant of Vision Building Forensics Pte Ltd, a firm in the field of building consultancy and project management. He was trained as an architect, and was, at the time of the trial, a consultant on major upgrading projects in condominiums. He had also been asked to advise on water seepage defects, and had given a seminar on water seepage defects in March 2008. He stated under cross-examination that while there was no institution giving tuition in water seepage, his background was in architecture technology and he had undergone a building technology course where he had studied building construction in greater depth.
7. Mr Toh produced a report setting out the various inspections, examinations and tests he carried out on 3 July 2008, and stating his observations and his grounds for arriving at his opinion that the source of the water seeping into the Lower Unit was from the areas above, ie the Upper Unit. With the qualification that his opinion had been arrived at without his having had the opportunity to inspect the Upper Unit and that he had acted on the assumption that the Upper Unit had exactly the same layout as the Lower Unit, Mr Toh hazarded a guess that the water could have come from a leaking concealed water pipe and/or failure of waterproofing membrane.
8. Mr Toh also testified that upon visiting the Lower Unit again more than a year later, he observed that the damages he had first noted the year before had become worse. He stated on oath that he was “convinced the leak is from upstairs”.
The Defendant’s case
9. As might be expected, the Defendant was not in a position to challenge the damages sustained by the Lower Unit. He did however put the Plaintiffs to strict proof of the same. He also sought to show that he had made efforts to seek a solution to the Plaintiffs’ water seepage problem, but was unable to point to any overture or response on his part that had been made prior to the issue of the writ. Accordingly, the Defence filed by him can be summarised under 2 main grounds:
a) He had employed approved contractors to carry out extensive works on the floors of both his bathrooms in 2003/2004 pursuant to a similar complaint from the Plaintiffs at that time; and
b) Water could not be seeping from his apartment into the Lower Unit.
10. The first ground can be easily disposed of. Just because the Defendant’s bathroom floors had been repaired 4 to 5 years earlier did not mean that they could not start to leak again. At best, therefore, this ground could only be relied on to support the other ground.
11. The Defendant acted as his own expert in respect of the second ground. He had served as an indentured apprentice with the British H M Naval Dockyard, where he was trained under British instructors in mechanical engineering, plumbing and pipe works amongst other things. He graduated in 1968/1969 and was awarded the title of Chartered Engineer by the Council of Engineering Institutions (UK) in 1977. He also became a Member of the Institution of Electrical Engineers and the Institution of Engineering Technology, UK. His experience ranged from hands-on occupations as an apprentice, an artisan and a technician, to the design and management of large turnkey engineering projects. He had also served as a consultant and surveyor in various fields in industries and marine offshore and military equipment controls. While not a structural engineer or architect or building contractor, the Defendant said he did installations together with building contractors and would advise them on how to install plumbing works.
12. The Defendant claimed in his Defence that water under low pressure could not flow through good composite concrete. While he accepted that water would flow downwards due to gravity, he maintained that his floors were in good condition and that water could not therefore penetrate the concrete floors.
13. In the Defence, the Defendant had also alleged that “When we had explored most probable areas of water seepage, there is one most likely cause, that is the interconnecting cast iron pipe run through all 24 floors. The change is ‘untoouchable’ (sic) but this replacement is the sole responsibility of the BVMC, because we, the Plaintiffs and me should not damage the building ‘structure’”. He followed up by stating reasons for this deduction in his Defence, but seemed to have abandoned it at the trial as he made no mention whatsoever of it in his Affidavit of Evidence-in-Chief (AEIC).
14. Counsel for the Plaintiffs cross-examined the Defendant on this theory of his. He could provide no real substantiation for what he was forced to admit was merely an “assumption” on his part. The following exchange is instructive:[note: 2]
Q: “BP14” – 3rd paragraph, 2nd sentence – did you carry out any tests to verify your deduction?
A: No, that was only my assumption. I said “most likely”.
Q: So it was only your assumption?
A: Assumption based on probability and technical knowledge.
Q: You mention 6 items. Item 4 – you are saying this pipe carries waste water from all 24 floors?
A: Yes.
Q: Waste water from the 24th floor down to the 7th floor would carry a lot of particles?
A: Yes.
Q: If it is leaking water from this cast iron pipe, the water would be foul-smelling and cloudy?
A: Not necessarily. It could be in many forms. There is an aeration pipe that could take away foul odours. Also the water could be either clean or dirty.
Q: I put it to you, if it was leaking water from this pipe, the water would be foul-smelling and cloudy?
A: Disagree.
Q: Did you see any water leaking from this waste pipe?
A: Not from my unit. I could see the one at my balcony which is not related to this case.
Q: Did you ask the Management Corporation to check the pipe for you?
A: The Management is a lame duck.
Q: Did you ask or not?
A: I did not, but in the past they had always come back to say it was between me and the other unit.
Q: Did you get your own expert to check?
A: No.
Q: So you are simply assuming the water leakage is from this pipe?
A: It is one of the probabilities.
Q: I put it to you water leakage to the Plaintiffs’ unit is not from this pipe and it is simply your own assumption?
A: It is my own assumption based on probability. As an engineer, we look at all options.
The Causes of Action
15. The Plaintiffs’ claim against the Defendant was for breach of statutory duty to maintain his side of the inter party wall so as not to allow water from the Upper Unit to leak/seep into the Lower Unit, and further and/or in the alternative, in nuisance.
The Law
Breach of Statutory Duty
16. The Plaintiffs did not set out in their Statement of Claim the exact statutory provisions they relied upon as establishing the statutory duty which they claimed the Defendant had breached. However in the Written Submissions submitted by their counsel at the close of the case, section 21(b) of the HUDC Housing Estates Act (Cap. 131), By-law 21 of the Second Schedule to that Act, and section 63(b) of the Building Maintenance and Strata Management Act were cited.
17. I shall deal first with section 21(b) of the HUDC Housing Estates Act (which is in pari materia with section 63(b) of the Building Maintenance and Strata Management Act insofar as the duties spelled out are...
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