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Suit No:	DC Suit 572/2007, DA 43/2009
Decision Date:	11 Jan 2010
Court:	District Court
Coram:	Joseph Yeo
Counsel:	Thomas Sim (Engelin Teh Practice LLC) for the plaintiffs, Jeyabalen (Jeyabalen & Partners) for the defendants

Judgment

District Judge Joseph Yeo

Background

1          This action is a dispute between neighbours over the question of who bears responsibility for the damage caused to both their houses by a leak.

2          It is the Plaintiffs’ contention that the leak stemmed from the Defendants’ pipe embedded in the common party wall and that the leak and the Defendants’ refusal to effect any repairs was responsible for all the damage.

3          The Defendants, on the other hand, deny that the original leak was from the Defendants’ pipes and assert that it was the Plaintiffs’ hacking of the party wall that damaged the Defendants’ pipes and caused the resulting damage to the Defendants’ house.

Facts

4          The Plaintiffs are the owners of 48 Jalan Limau Nipis (hereinafter referred to as “House 48”) while the Defendants are the owners of 50 Jalan Limau Nipis (hereinafter referred to as “House 50”).  Both properties are terrace houses and share a party wall and a boundary fence.

5          The Plaintiffs purchased House 48 sometime in 1984, resided there until 1991 when they moved out and have rented it out to various tenants ever since.  Currently the Plaintiffs reside in Tokyo.

6          The Defendants have occupied House 50 since 1996.

7          Sometime in January 2006, the then tenant of House 48 ended the tenancy and vacated the premises.  The Plaintiffs’ housing agent inspected House 48 and reported finding leaks in the, inter alia, toilets on the second storey and the ground floor kitchen.

8          The Plaintiffs engaged contractors to determine the source of the leak and was informed that the leak was from the Defendant’s pipes which were in the party wall of the master bedroom toilet on the second storey.

9          In June 2006, when the Plaintiffs returned from abroad, attempts were made to resolve the problem with the Defendants via the PUB, the Neighbourhood Police Post, the Community Mediation Centre and the Singapore Institute of Surveyors and Valuers.   The Defendants, however, chose not to cooperate.

10        As a result, the Plaintiffs resorted to legal means and by a solicitors’ letter dated 18 July 2006, made a formal demand that the Defendants carry out repairs immediately.  This was also ignored.

11        In late July, the Plaintiffs engaged a professional engineer to investigate the leak.  On 28 July 2006, the said engineer had the water supply to House 48 physically disconnected and gave instructions to have the water closet fixtures and tiles on the party wall in both toilets removed.

12        Inspections conducted on 8 and 14 August 2006 showed that even with the water supply to House 48 physically disconnected, water was still leaking into House 48’s master bedroom toilet and common toilet.  Checks also showed that the roof and ceiling were dry which ruled out the possibility of water ingress through that route.

13        On 10 October 2006, the Plaintiffs, through their solicitors, sent the engineer’s report to the Defendants and again demanded that the Defendants take immediate steps to repair their leaking pipes.  Again, the Defendants made no response.

14        The Plaintiffs then commenced this action on 23 February 2007.

15        A further examination conducted on 3 July 2007 of House 48 showed that the water supply was still disconnected and water was still leaking into House 48’s master bedroom toilet although the situation with the common toilet had improved.

16        The Plaintiffs then sought assistance from their Member of Parliament who asked PUB if they could look into the matter.  On 25 July 2007, a team of officers from PUB visited the Defendants and inspected House 50.  PUB’s investigations showed a suspected seepage from House 50 and requested that a test be done to confirm the same but permission to conduct the test was refused by the Defendants.

17        On 27 July 2007, the Building and Construction Authority (“BCA”) asked the Defendants for permission to inspect House 50.  By a letter dated 27 July 2007, the Defendants rejected BCA’s request, describing it as an attempt to shore up the Plaintiffs’ allegation by “resorting to venturing into tampering with evidence”.  BCA and PUB proceeded to inspect House 48 and suggested that the Plaintiffs engage a contractor to expose more of the toilet wall to trace the source of the water.

18        On 30 July 2007, the Plaintiffs’ contractor carried out the hacking works and exposed the Defendants’ pipe which was found to be leaking.

19        By letters dated 31 July 2007 from their solicitors to both the Plaintiffs and PUB, the Defendants claimed that the hacking works had breached their side of the party wall and had damaged their pipes and that, as a consequence, water was leaking into the Defendants’ master bedroom toilet and causing extensive damage.

20        By a letter dated 14 August 2007, PUB informed the Defendants to effect repairs.  This was not done.

21        Further reminders from PUB to the Defendants dated 7 September 2007 and 7 December 2007 to repair the leaking pipes were also ignored.

22        The Plaintiffs applied for and, on 15 April 2008, obtained an Order of Court compelling the Defendants to carry out repairs to their leaking pipes by 26 April 2008.  The Defendants appealed against this decision but their appeal was dismissed and the time for compliance was extended by 21 days from 20 May 2008, the date on which the appeal was dismissed.

23        The repairs were finally effected by the Defendants sometime in early June 2008.  The Plaintiffs then carried out repairs to House 48 in July 2008 and secured a tenant in late October 2008.

24        The matter then came before me for trial.

The Plaintiffs’ Evidence

25        The Plaintiffs’ main witness of fact was the Second Plaintiff (“PW1”).

26        I found PW1 to be a credible witness and her account of the facts was largely supported by or was consistent with the available contemporaneous documentary evidence.  I therefore had no hesitation in accepting her account of what transpired between the parties.

27        PW2 was the contractor who carried out the hacking of the wall on 30 July 2007 and his evidence was that the hacking was first carried out by his workmen with an electric breaker and that he took over personally and carried out the final stages of the work with a hammer and chisel to ensure that there was no damage to the pipes.  While the Defendants took the position that the hacking works must inevitably have damaged their pipes, both their expert witnesses, DW2 and DW3, agreed that the method of work used in the hacking, as described by PW2 in his AEIC, could be carried out without damage to the pipes.

28        In the premises, I accept PW2’s evidence that he successfully exposed the Defendants’ pipes without damaging them.

29        PW3 was the professional engineer who investigated the leak in July-August 2006.  His evidence was that the source of the leak was clearly House 50’s pipes because he had, in July 2006, physically disconnected House 48 from its water supply.  Subsequent checks conducted in August 2006 showed that the leak into House 48’s master bedroom toilet and common toilet was still ongoing.  Checks of the roof and upper parts of House 48 showed no sign of water so that the possibility that the leak was due to accumulated rainwater could be discounted, leaving House 50’s pipes as the sole remaining source of water for the leak.

30        On that basis, he concluded that the leak clearly stemmed from House 50’s pipes.

31        The evidence produced by PW3 in support of his conclusion was, in my opinion, overwhelming.  The Defendants did not, in their cross examination, succeed in casting any doubt on his conclusion.

The Defendants’ Evidence

32        The Defendants’ main witness of fact was the First Defendant, DW1.

33        In contrast with PW1, I found DW1 to be an evasive and untrustworthy witness.  His account of the facts was not only frequently unsupported by the contemporaneous documentation but was, on many occasions, contradicted by it.

34        For example, DW1 was cross examined on the Defendants’ claim for damages arising out of their inability to sell House 50.  When asked, DW1 confirmed that since the hacking works of 30 July 2007, when water started to leak into House 50, prospective buyers had stopped expressing interest in House 50.  In response to the question whether that remained the position from 30 July 2007 until “today”, with “today” being 17 June 2009, DW1, in no uncertain terms, replied yes.

35        DW1 was then confronted with the fact that a caveat had been lodged against House 50 on 4 March 2009 pursuant to an option granted on 27 February 2009.  His only answer was to claim that he had not listened clearly to the question, that the counsel had been too fast in his speech and that there was some ambiguity.

36        I was subsequently informed that the proposed sale had been aborted but the documents shown to me in this regard showed that this only took place sometime between 30 July and 12 August 2009 which meant that as at 17 June 2009, when DW1 was being cross examined, the sale was still ongoing.

37        On another occasion, DW1 was being queried on a request by PUB to check House 50’s water meter and pipes when he replied that he had always acceded with all requests from PUB.  As this contradicted the contents of PUB’s letter of 14 August 2007 in which PUB stated that DW1 had refused their request for permission to conduct the test, this letter was brought to DW1’s attention.

38        Despite being referred to the letter, DW1 insisted that he had always complied with PUB’s requests and went so far as to assert that PUB was lying.  When the relevant portion of the letter was read to him, DW1 claimed to be confused and then finally agreed that PUB was not lying when it said that it had asked for and had been refused permission to conduct a test.

39        As there was a possibility that DW1 had been confused, I was prepared to give DW1 the benefit of the doubt and to draw no inferences from this.  However, DW1, in the course of giving evidence, subsequently reverted to his original position that PUB had never made a request to be allowed to conduct a test on House 50’s pipes.

40        DW1’s credibility was also, in my view, severely damaged by some of the claims that he made in the course of his cross examination.  These included the following:

(a)        That the Plaintiffs hired experts, disconnected their water supply and hacked holes in the walls of House 48 solely to support their false claim that the pipes of House 50 were leaking.

(b)        That all the photos exhibited by PW3 were concocted.

(c)        That the PUB and BCA officers who tried to inspect House 50 on 27 July 2007 were neither impartial nor neutral as they had been instigated by the Plaintiffs and was an attempt to tamper with evidence.

41        It was clear from his evidence that DW1 firmly believed that the Plaintiffs’ entire claim was a sham which they concocted and that they had somehow instigated the relevant authorities to take their side in this dispute.

42        DW1’s belief was apparently founded on the fact that because there was no leak or water stains on his side of the party wall, there was no leak and even if there was a leak, because it was leaking into House 48, it must therefore be a leak from House 48’s own pipes and not House 50’s pipes.

43        DW1 held this belief on the basis of his interpretation and understanding of the expert reports produced by PW3.  It should be pointed out that the reasoning he gave for arriving at his understanding was not supported by either of his experts and while he conceded that he was not an expert, he nevertheless asserted that his technical competence was “world class” and his version of events was therefore true.

44        In view of all the above and especially given that much of DW1’s oral testimony was at odds or inconsistent with the available contemporaneous documents, I did not consider  DW1 to be a credible witness and cannot therefore accept DW1’s version of events.

45        DW2 was an architect who inspected the party wall of House 50 on 16 July 2007.  She confirmed that there were no water stain marks on the party wall but agreed that there could still be a leak on House 48’s side of the party wall.  She did not, at that time, inspect House 48.

46        It transpired that she had asked for access to House 48 and was told by DW1 that he did not have permission to inspect House 48.  It was, however, clear from the available contemporaneous correspondence that the Plaintiffs had, through their solicitors, offered to let the Defendants inspect House 48 upon 1 day’s advance notice.  No such request was apparently ever made.

47        DW2 did conduct a subsequent inspection of House 50 on 11 December 2007 at which she found signs of water leakage.  Under cross examination she agreed that the exposure of pipes with pre-existing leaks could result in increased flow in the leaks which could then possibly manifest on the walls of House 50.

48        DW4 is a professional engineer who asserted that it was necessary to conduct a water pressure test on the piping systems of House 48.  It was his position that it would be unfair not to conduct such a test as House 48’s pipes could be the main source of the leak.

49        However, after it was pointed out to DW4 that the water supply to House 48 had been cut off since July 2006, DW4 agreed that a water pressure test of House 48 pipes was not necessary.

Conclusion

50        As stated above, I do not accept the Defendants’ version of events.  It is clear to me that, with the physical disconnection of House 48 from its water supply and the unrebutted evidence that there was no water coming in from the roof, the source of the leak was the Defendants’ pipes.

51        I accept PW2’s evidence that he took sufficient care and that his hacking of the wall to expose the leak did not create the leak in the Defendants’ pipes.  However, the removal of the material surrounding the leak did result in an increased flow which did cause damage to House 50.

52        The Defendants were fully aware of the leak into House 50 by 31 July 2007 and had been requested by PUB to effect repairs to their pipes on 14 August 2007, 7 September 2007 and 7 December 2007 but for reasons unknown, chose not to do so and instead preferred to let the leak continue to damage not only House 50 but House 48 as well.

53        In fact, it is clear from the evidence that the Defendants had to be compelled by court order to carry out the said repairs to their own pipes.  Any damage to House 50 was due to the Defendants’ wilful refusal to effect repairs in a timely fashion.  I therefore consider the Defendants’ conduct to be a failure to mitigate as well as being unreasonable.

54        In the premises, I gave judgment for the Plaintiffs and dismissed the Defendants’ counterclaim and awarded costs for both claim and counterclaim to the Plaintiffs to be agreed or taxed.

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