LET'S GO INVESTIMENTS LTD v. YEUNG SAU HING

DCCJ 4585/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4585 OF 2004

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J U D G M E N T

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1.  At the material times, the Plaintiff was and is the registered owner of the premises known as 3^rd Floor of Chau Hop Shing Building, No. 4 Chung On Street, Tsuen Wan, New Territories, Hong Kong (“the Plaintiff’s Premises”).

2.  At the material times, the Defendant was and is the registered owner of the premises known as Flat B on 4^th Floor and its adjacent Flat Roof of Chau Hop Shing Building, No. 6 Chung On Street, Tsuen Wan, New Territories, Hong Kong (“the Defendant’s Premises”) which is situated immediately above the Plaintiff's Premises.

3.  The Plaintiff purchased the Plaintiff’s Premises with an existing tenancy under a tenancy agreement dated 8^th September 2000 for a term of 3 years commencing on 15^th June 2000 to 14^th June 2003 with an option to renew for a further 4 years.  The tenant is Winstar International Investments Limited and operating a restaurant named “Satay King” (“the Tenant”) at the Plaintiff’s premises.  The Plaintiff’s Premises are still let to the Tenant.

4.  The Plaintiff’s claim is that since in or about March 2002, the Defendant wrongfully caused or permitted water to escape, seep and/or leak from the Defendant’s Premises into the Plaintiff’s Premises.  Water was dripping from the ceiling of the Plaintiff’s Premises (“the Leakages”).  As a result thereof, a certain part of the ceilings of the Plaintiff’s Premises became defective that there have been water stains and peeling paint from the ceiling (“the affected area”).

5.  The area of water seepage had extended and water dripping became serious especially during rainy days. 

6.  In this action the Plaintiff claims loss and damage from the Defendant arising from the said water seepage as well as:-

(a)  A mandatory injunction that the Defendant by herself, her tenants, licensees, servants, agents or otherwise do forthwith carry out repair work on the Defendant’s Premises;

(b)  An injunction to restrain the Defendant by herself, her tenants, licensees, servants, agents or otherwise from repeating or continuing the Leakages from the Defendant’s Premises thereby causing damage to the Plaintiff’s Premises or the said nuisance or any nuisance of a like kind.

7.  The Plaintiff pleads that the leakages are caused by the negligence of the Defendant.   The particulars of negligence are pleaded as follows:

(a)  Failing to inspect or to provide maintenance or repair to the Defendant’s Premises so that the Leakages would not occur.

(b)  Failing to take any or any sufficient steps and/or measures to prevent the Leakages from occurrence or at all.

(c)  Permitting the water to escape, seep and/or lead from the Defendant’s Premises into the Plaintiff’s Premises.

8.  The Plaintiff relies on the Deed of Mutual Covenant dated 24^th October 1980 and registered in the Tsuen Wan New Territories Land Registry by Memorial No. 202525 (“the DMC”).  In the DMC, the Defendant has covenanted with the Plaintiff and the other owners of the building of which the Plaintiff’s Premises and the Defendant's Premises form part, in Paragraph (a) of the Second Schedule, inter alia, that as an owner, he will “keep the interior of his own portion of the said building in good repair and condition and to maintain the same in a manner so as to avoid any loss damage nuisance or annoyance to the owners or occupiers of any other portions of the said building.”

9.  The Plaintiff pleads that the Defendant has failed to perform the aforesaid covenant of the DMC.  

10.  It is the Plaintiff’s case that despite repeated requests and demands, and, in particular by letters from the solicitors for the Plaintiff addressed to the Defendant dated 10^th October 2003 and 4^th February 2004, demanding the Defendant to be responsible for the loss and damage suffered by the Plaintiff and to carry out repair works on the Defendant’s Premises, the Defendant has failed and/or refused to pay for the loss and damage suffered by the Plaintiff and to carry out such repair works on the Defendant's Premises to prevent further water leakages to the Plaintiff's Premises.

11.  The Defendant in her defence states that the leakage is caused by a hole on the floor slab in the room which houses the lift motor (hereinafter referred to as “Lift Motor Room”) which is situated on the flat roof of the 4^th Floor and adjourns Flat A on the 4^th Floor of the said Chau Hop Shing Building.   The Plaintiff made this hole in about 1998.  The Lift Motor Room is shown on the floor plan at page 51 of the Bundle of Documents (“BD”).    Further the Defendant pleads that the hole in the floor slab of the Lift Motor Room has caused grave security risk to the Defendant’s premises.   She states that the hole has a stepladder, which reaches this hole from the Satay King on the 3^rd floor.   Hence it poses a security risk to the Defendant’s Premises as the Lift Motor Room opens onto the flat roof of the 4^th Floor which is part of the Defendant’s Premises.  Further the hole has caused the water seepage this fact is evident because the hole is close to the areas of water seepage on the third floor.  

12.  The Defence pleads that since the hole was made in 1998, the walls in the premises owned by the Defendant’s husband namely in Flat A on the 4^th Floor of the same building started to crack.   In 2000 the crack became increasingly wider and deeper.   At present many areas of the said Flat A have large cracks.   The damaged condition of the said Flat A has become worse.  It is noted that as Flat A is not owned by the Defendant the complaints related to Flat A could not become part of her case against the Plaintiff.  However she pleads that the hole has an effect on the structure of the premises and is the cause of the water seepage.

13.  The Defendant counterclaims that as a result of the security risk posed by the hole, the Defendant and her husband are not able to sell their premises.   She counterclaims for the following:

(i)      Payment of the mortgage loan repayments made by her since 1998, together with rates and management fees since then paid in respect of the Defendant's Premises.   

(ii)     Costs

(iii)    Were the Flat Roof of Flat B found to be leaking, the Plaintiff should be responsible to repair it.  

(iv)    Damages for inconvenience and discomfort

The Issues

1. Whether the water seepage is caused by the state of disrepair of the Defendant's Premises.

2. Whether the Defendant should be responsible to repair it. 

3. Whether the Plaintiff is entitled to the damages, and the mandatory injunction and injunction sought. 

4. Whether the Defendant is entitled to the counterclaim sought.

The 1^st Issue

14.  The Plaintiff’s witness Ho Hing Yuen, a Director of the Plaintiff gave evidence.   He confirmed that the Plaintiff is the registered owner of the Plaintiff’s premises and these same premises has been let to the Tenant for the operation of the Satay King.  He states that since in or about March 2000, the Tenant noted that water was dripping from the ceilings of the Plaintiff's Premises and reported the matter to the Plaintiff.  The affected area was immediately underneath the Flat Roof of the Defendant's Premises.  He alleges that water escaped, seeped and/or leaked from the Defendant's Premises to the Plaintiff's Premises.  As a result thereof, a certain part of the ceiling of the Plaintiff's Premises has been affected and there are water stains on it.  There is also peeling paintwork on the ceiling.

15.  The Plaintiff reported the water leakage to the Management Office and/or the Owners Incorporation of Chau Hop Shing Building in which the Plaintiff’s Premises and the Defendant's Premises form part.  However, no remedial work has been taken out by either the Management Office or the Owners Incorporation.  The Defendant has failed and/or refused to respond and/or to make repair to the Leakages to the Plaintiff's Premises as the Defendant's Premises were left vacant for quite a long time.

16.  To minimize loss and nuisance already suffered by the Plaintiff and/or the Tenant, the Plaintiff had in or about September 2002 instructed a contractor to carry out minimal remedial repairs to stop the continual Leakages from the Defendant’s Premises.

17.  However, no sooner had the remedial repairs been completed, the Leakages had reappeared.  The area of water stains and peeling paintwork on the ceiling of the Plaintiff's Premises became larger and more extensive.

18.  The Plaintiff sought and obtained a Court Order dated 31 May 2004 under HCMP No. 1051 of 2004 authorizing it to enter the Defendant’s Premises for the purpose of inspection of the Defendant's Premises to find out the cause of the Leakages.

19.  The Plaintiff instructed Dudley Surveyors Limited to carry out inspection at the Defendant’s Premises on 29^th June 2004 and a Surveyor’s Report was prepared by them.  During the inspection he accompanied the surveyors to carry out the inspection.

20.  When he went into the Defendant’s Premises he found that it was in an awful state.  The Defendant's Premises had been unoccupied for a long time.  The interior decorations, plumbing and drainage, doors and windows were all in a condition of disrepair.  The Defendant's Premises were unhygienic and a health hazard to its neighbours and nearby occupants.  The Surveyor’s Report concluded that various types of aging defects like open joints, cracked surfaces, on the flat roof had caused the Leakages.

21.  It is clear from the condition of the Plaintiff’s Premises with dripping from the ceiling and peeling paintwork from the ceiling has caused inconvenience and discomfort to the Tenant.

22.  As a temporary measure to alleviate the condition suffered by the Tenant, the Plaintiff on about 24^th August 2003 instructed a contractor transliterated as Ho Kwong Decoration Company to conduct remedial work on the ceiling of the Plaintiff's Premises by installing drain pipes and metal trays at various locations underneath the ceiling of the Plaintiff's Premises for collection of water dripping and/or seeping.  The cost spent on the said remedial work was $1,500.  The Plaintiff referred to a copy of the quotation issued by Ho Kwong Decoration Company dated 24^th August 2003 bearing the paid chop showing the date of 27^th October 2003.

23.  The Plaintiff called Mr. Albert Chan Kwok Wai, (hereinafter referred to as “Mr.Chan”) a Building Consultant in Dudley Surveyors Limited to give evidence.   There is no doubt that Mr. Albert Chan is an expert in his field as can be seen in his Curriculum Vitae produced marked Exh P1.

24.  He confirmed that the contents of his Survey Report at page 182 to 185 of the Bundle of Documents (“BD”) is correct.    He located the three major areas within the Restaurant that is seriously affected by the Leakages after heavy rainfall.   They are at location A, B and C as shown in the Floor Plan at Appendix A attached to the Survey Report at page 187 of BD and these locations are shown in Photos 2, 3 and 4 respectively in the Survey Report at pages 189 and 190 of BD.   He lifted the false ceiling panels at these areas for inspection and for close examination.   

25.  He stated at paragraphs 3.3, 3.4, and 3.5 of his Survey Report as follows: -

“3.3. According to Mr. Ho and the shop attendant, there were three major areas within the Restaurant that had still be seriously affected by water leakages after heavy rainfalls.  They were at locations A, B and C (see Photos. 2, 3 & 4 respectively and Floor Plan for indication at Appendix A).  The false ceiling panels to these areas were lifted up for inspection and close examination.

3.4 We noted that metal trays for water collection and drain pipes were suspended from the ceiling to protect the decoration and seating area underneath.  When the plastered ceiling surfaces were touched, we felt the moist substrate.  Our Protimeter (Moisture Meter) test recorded all high readings to the reported leakage areas and their vicinity (average over 80%).

3.5 As could be observed, the ceiling surfaces were generally stained by water marks.  Bubbling and peeled-off paintwork were noted to scatter around near the spots.”

26.  He described the interior of the Defendant’s Premises at paragraphs 4.2 to4.4 of his Survey Report.    Paragraph 4.2 states,

“4.2 Interior of the Flat gave out an awful bad smell.  The Flat was vacant, without any furniture and generally very badly maintained.  All the timber doors were in dilapidated condition including the main entrance door which could hardly be closed.  The timber flooring was lifted up; metal windows were rusty and in disrepair; concrete spalling, debonded and cracked plastering were commonly noted on the wall and ceiling surfaces (Photos. 5-9).”

27.  The photographs show all.   The condition is so dilapidated that it seems that it must have been left unattended and unoccupied for many years.   Mr. Chan described the awful smell emitting from the unhygienic condition of the premises wherein were found cat and dog’s waste, and broken glass panes.   There was detached plastering, wet staining and generally peeled-off paintwork.  

28.  In relation to the hole on the floor slab of the Lift Motor Room housing the lift motor of the lift servicing the 1^st to 3^rd floors of Chau Hop Shing Building, he stated in paragraph 4.7 of his Survey Report that,

“4.7 Access was gained to the open Roof on 4^th Floor through Flat B on 4^th Floor (Photo. 16).  The Lift Machine Plant Room which was the house built in reinforced concrete structure was located adjacent to the Flat (see Photo. 28).”

29.  In relation to the flat roof of the Defendant’s Premises, he stated in paragraph 4.8 of his Survey Report as follows: -

“4.8          We inspected the exposed top layer roofing membrance closely and noted that it could no longer perform its waterproofing function due to various types of defects developed:

(i)	cracking at the skirting joint (Photo. 18);
(ii)	damaged and fractured roofing membrance surface (Photos. 19-20);
(iii)	hairline cracks developed at open drain channels (Photos. 21 & 25), open joints at services pipework (Photo. 23);
(iv)	blocked drains and drain path (Photos. 22, 24 & 27); and
(v)	worn-out of the roofing layer at random areas (Photo. 26).”

30.  He concluded at paragraphs 5.3 and 5.4 that

“5.3  Because of the lack of attention for a long time, there are generally water leakage from windows, concrete spalling, cracking and detached plaster to wall and ceiling, heavy dust on floor, and flooding records caused by blocked drains which received no follow-up actions.

 5.4  We observed that the temporary roofing membrane added on top of the original roofing system (original construction finished with red Canton tiles on top) had become failed.  There were various types of aging defects like open joints, cracking, fractured surfaces gradually developed on the top membrance causing water leakage again.  Coupled with the fact that the open Roof is unattended, the rainwater rested on top of the roofing membrane due to the packed debris, blocked drains and drain paths further accelerate the chance of water ponding and leakages.”

31.  He further concluded that the hole on the floor slab of the Lift Motor Room has no causal connection to the Leakages of at the ceiling of the Plaintiff’s Premises.   The hole is located inside the Lift Motor Room which is enclosed and has a roof.   Under the roof, water could not get into the hole or anywhere around the hole.   Further he stated in oral evidence that there is a ledge about 8 inches high.  The door opening into the Lift Motor Room as can be seen in Photo 28 in his Survey Report sits above this ledge.   He states that because of that, it is unlikely that rainwater could go through the bottom of the door into the Lift Motor Room.

32.  Further, he says that the hole in the Lift Motor Room is about a distance of 10 feet away from position A, the nearest location where there is water seepage into the Plaintiff’s Premises.  The two areas are shown on the floor plan at Appendix A of the Report at page 187 of the BD.   He states that it is not likely that the hole has anything to do with the water seepage.   

33.  He came to his finding on the state of disrepair of the flat roof through observation with his eyes.   He is experienced and would be able to come to a clear assessment of the condition of the roof and its membrane from observation.    He was informed by the staff of the Tenant, Satay King that whenever there is heavy rain, the water would drip into the water collection trays such as that shown in Photo 2 of his Survey Report, above the false ceiling.    Further, the area of water seepage corresponds to the area where there is break and defect in the water repellent membrane on the roof surface.   These confirm his view that the water seepage is caused by the aging defects of the roof surface and the roofing membrane.   

34.  He proposes two solutions to ensure the condition of the roof is restored to become impermeable to water.   First is to do a thorough work to carry out a complete re-roofing of the area.  This will ensure that the condition of the roof will be waterproof for 5 – 10 years.   A specialist-roofing contractor with a proprietary system should carry out this work.  This will cost around HK$250,000.00.   The other is a temporary measure, which would last 2 – 3 years.   It is by injection of epoxy grouting into the cracked areas.  The epoxy would expand and fill the cracks.   It is like glue.  It will solidify as it fills in the cracks.   This is a cheaper method of repair.   

35.  The Defendant has no legal representation.  She applied for her husband to represent her in the proceedings.  The Plaintiff’s Counsel did not object.  Both she and her husband are elderly.  The Defendant called her husband Mr. Chan Sik Chan to give evidence on her behalf.   He adduced his witness statement into evidence as his evidence in chief and confirmed its content to be true.  He referred to his complaint to the Buildings Department related to the hole on the floor slab of the Lift Motor Room in October 1998.   He stated that the Buildings Department registered an Order on 2 August 2000 in the Land Office related to the illegal construction in the hole and required its rectification within 60 days.   The Buildings Department did not enforce the Order but stated that they were investigating as regards whether the hole would cause any danger to the structural integrity of the building.   He stated however that his own property, which is Flat A on the 4th Floor, was affected by the said hole and the paint started to peel off and the wall started to crack.  However this is not an issue relevant to this trial.

36.  Subsequently he received a letter dated 23 July 2003 from the Buildings Department wherein he was informed that the Plaintiff had employed an Authorized Person to remake the hole in the Lift Motor Room.  It stated that the work required in the Order registered in the registry of the Land Office has been performed and the hole has become a legal structure.   He takes issue with the Buildings Department on a number of points.   However, all these do not have any direct relevance to the First Issue.   The Defendant’s complaint against the Buildings Department are not an issue of this trial but is stated here merely for completeness.  

37.  The witness states that after the hole was made in 1998, from March 2002 onwards, complaints about water seepage in the Plaintiff’s Premises were received until now.   He states that according to the Plaintiff the water seepage was in the vicinity of the hole of in the floor slab in the Lift Motor Room.   From August 2000 to 2 May 2003, this hole was still an illegal structure.

38.  He admits that on 10 October 2003 and on 4 February 2004 the Defendant received demands for payment of the charges for renovation on 5 September 2002 for repair of the flat roof of Unit B in the sum of $4,200 and legal costs in the sum of $2,400.   On the 31 May 2004 the Plaintiff had instituted HCMP 1051 of 2004 in relation to the claim for damages arising from water seepage.   The Defendant requested for a copy of the judgment related to these proceedings.   At the trial, it became clear that there is no judgment in HCMP 1051 of 2004 as the application was made under Order 29 Rule 7A, to obtain a pre-action order to enter premises for an inspection to be conducted by a surveyor.   The Order is at pages 172 to 173 of the BD.  

39.  He states that it seems that the report of Dudley Surveyors Limited also mentions that the area of water seepage is near the hole.  

40.  In cross-examination, he stated that the flat roof on the 4^th Floor adjourning Flat B belonged to the Defendant.  He stated that he purchased Flat A unit on the 4^th Floor and his wife the Defendant purchased Flat B unit on the 4^th Floor in 1993 from the previous owner who operated a restaurant on the 3^rd Floor.  The said Flat A and Flat B were used by the restaurant owner as quarters for its staff.  After purchase he and his wife let Flat A and Flat B units under a tenancy to the restaurant for occupation by its staff respectively.   The restaurant was closed in 1996.  He and his wife recovered possession of the Flat A and Flat B units respectively then.   The condition of the Defendant’s premises was in a slightly better state of repair than now.   After they recovered possession they did not do any decoration work in the premises but only cleared the rubbish.   Since then the said Flat A and Flat B had been left vacant.   He and his wife, the Defendant, tried to sell the two premises since 1996 but without success.

41.  He stated that the reason why his premises in Flat A and Flat B had been left vacant was because there was the door leading to the Lift Motor Room.   Every potential buyer who looked at the door of the Lift Motor Room and came to know of the hole on the floor slab within the Lift Motor Room would be put off by it.  He received no offer price from any potential buyer.  Hence the premises were left vacant and he had to pay management fees and rates.  The Defendant’s Premises has this litigation pending.   It was put to him that the reason why Flat A and Flat B could not be sold was because of their dilapidated state.   He disagreed and said that there could be a discounting of this by a reduction on the offer price by the potential buyer but the Defendant did not even have an offer.   Subsequently he stated that he had an offer to buy at $800,000 for both Flat A and Flat B on the 4^th Floor but it went no further. 

42.  It was put to him in cross-examination that the Plaintiff had for many years tried to enter into the flat roof of the Defendant’s Premises in order to gain access to the Lift Motor Room to repair the lift motor but could not gain access.   The Defendant said that if he had left the keys of Flat A and Flat B with the Management Office, there would not have been this litigation.   He admitted that he and his wife only went to Flat A and Flat B about three times a year.   They had an agent who went there more frequently to pay the management fees.  

43.  He admits that Photo 5 at page 191 showed the entrance to Flat B.   He states that the two photos at page 192 shows the Defendant’s Premises.   He admits that Photo 12, 13, 14 showed the Defendant’s Premises and Photo 15 showed the door to the Defendant’s Premises.   He admits that Photos 16, 17 and 26 on pages 196, 197 and 201 represents the flat roof of the Defendant’s property.   He agreed that Photo 22 showed the gutter of the flat roof of the Defendant’s Premises.   He stated that Photo 27 and the right side of photo 28 showed the Defendant’s premises (however the orange door is the door leading to the Lift Motor Room).  He agreed that the Defendant has exclusive possession of the flat roof adjourning the Defendant’s Premises.  

44.  In cross-examination he was shown the photographs which showed the water tray above the false ceiling of Satay King.   He said that he went to Satay King as a customer but did not see the water seepage. 

45.  He stated that he has not read the terms of the Deed of Mutual Covenant.  

46.  The Defendant called Mr. Wong Cheuk Ki, Eric (“Mr. Wong”) of the Buildings Department to give evidence related to the letters dated 22 July 2003 written by him on behalf of the Buildings Department.   Mr. Wong explained that according to records, they issued the Order at page 151 of BD to remove the illegal structure namely the hole on the floor slab of the Lift Motor Room.  However they discovered that there is no way of going into the Lift Motor Room for repair of the lift motor because access could not be gained through the Defendant's Premises because it was unoccupied.  This would cause danger and they therefore stayed the execution of the Order.   The Plaintiff instructed an Authorised Person and he designed a means of making the hole safe.  He stated that they discovered that the hole had not caused any danger to the building structure and did not cause the crack of plaster in the walls of the Flat A unit.   He further stated that he made no investigation as regards whether the hole had any relevance to the water seepage.  

47.  Having heard evidence from the parties it is clear from the evidence of Mr. Chan of Dudley Surveyors Limited that the cause of the water seepage is caused by the poor condition of the flat roof of the Defendant’s Premises namely Flat B unit.   The areas of water seepage corresponds to the areas where Mr. Chan found cracks or defects in the roofing membrane on the roof.    Further the staff of Satay King found that whenever it rained, water dripped into the water trays above the false ceiling of Satay King.   He stated that the area of water seepage is not near to the hole on the floor slab of the Lift Motor Room.    He stated that the water seepage is not due to the hole on the floor slab of the Lift Motor Room.    I have considered the evidence of the Defendant’s husband and I find that there is nothing to substantiate his allegation that the water seepage is due to the hole on the floor slab of the Lift Motor Room.  The Defendant herself did not give evidence.

48.  I find that the Plaintiff has established that the water seepage into the ceiling of the Plaintiff’s Premises is due to the defect of the flat roof surface of the Defendant’s Premises as a result of aging.  

The Second Issue

49.  It is clear that the cause of the water seepage is because the Defendant has failed to keep the flat roof in good repair.   It is clear that she is the owner of the flat roof attached to the Defendant’s Premises.   Clause 3 at page 2 of the DMC, sets out the undivided equal parts of shares of each individual Flat of each floor of the building.  It shows that Flat A on 4^th Floor does not have any Flat Roof attached to it and Flat B 4^th Floor, has a Flat Roof attached.  The Assignment of the Defendant’s Premises at page 94 of BD states clearly that the Defendant is the owner of Flat B on 4^th Floor together with the Flat Roof of No. 6 Chung On Street, Tsuen Wan, New Territories.   The Flat Roof of the Defendant’s Premises is an area where access thereto could be gained from the door opening out into it in the Defendant’s Premises as shown on the 4^th Floor Plan at page 187 and page 97 of the BD.   This same Flat Roof is the area where the corresponding locations of water seepage on the ceiling in the Plaintiff’s Premises are found as marked A, B and C on the plan at page 187.   

50.  The Defendant’s husband in evidence referred to photos 16, 17, 22, 26, 27 and 28 in the Survey Report at pages 196, 197, 199, 201 and 203 as depicting parts of the flat roof of the Defendant’s Premises.   He agreed that Flat Roof B is the flat roof the Defendant has exclusive possession of.  

51.  The Plaintiff’s Counsel in final submission referred to Paragraph (a) of the Second Schedule of the DMC which states that each owner covenants “To keep the interior of his own portion of the said building in good repair and condition and to maintain the same in a manner so as to avoid any loss damage nuisance or annoyance to the owners or occupiers of any other portions of the said building”.   He submits that this clause imposes on the Defendant an obligation to keep the flat roof of the Defendant’s Premises in good repair.   He submits that even were she not so obliged under the aforesaid clause in the Deed of Mutual Covenant, she is obliged to do so under section 34H of the Building Management Ordinance.   That Section states,

“(1)  Where a person owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

 (2)  The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant.”

52.  The Plaintiff’s Counsel also referred to Uniland Investment Enterprises Ltd v. Incorporated Owners of Sea View Estate [1999] 4 HKC 141.   Deputy Judge Anthony To stated that he agreed with Mr. Chan SC’s submission that the inclusion of the words ‘but the deed of mutual covenant does not impose on that person to maintain…’ is specifically aimed at redressing the situation where a developer creates for itself, its successor, or anybody, in the DMC a right to exclusive possession of any part of the building without a corresponding obligation to maintain that part of the building.

53.  It seems clear from the DMC and the Assignment of the Defendant's Premises that the Defendant has exclusive possession of the Flat Roof of the Defendant’s Premises.   The Flat Roof is clearly a part of the premises assigned to the Defendant by the Assignment.  In para (a) of the Schedule to the Assignment at page 94 of the BD it states that the Defendant is “to have the sole and exclusive right and privilege to hold use occupy and enjoy All That Flat B and Flat Roof on the Fourth Floor of the Building” 

54.  I therefore find that the Defendant has the obligation to repair the flat roof of the Defendant’s Premises but has failed to do so despite requests from the Plaintiff.  

The 3rd Issue

55.  That being the case, I find that the Plaintiff is entitled to the items of claim.  The Plaintiff has expended $1,500 to install drainpipes and metal trays to collect water under the ceiling.  The receipt of this work is at page 171 of the BD.  The Plaintiff has submitted a quotation for the repair of the ceiling of the Plaintiff’s Premises at $3,000.   This has yet to be done.   I find that the Plaintiff is entitled to judgement for the sum of $4,500 being the total of these sums.  

56.  The Plaintiff’s Counsel also submitted that the Defendant should be held liable for nuisance.   He submits that nuisance is an act or omission, which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of his ownership or occupation of land.   With reference to para 19-01 of Clerk & Lindsell on Tort 18^th Edition at page 973, he submits that by omitting to keep the flat roof in good repair and condition, the Defendant has caused interference with and annoyance to the Plaintiff’s enjoyment of his ownership of its premises on the 3^rd Floor.  The Defendant’s Counsel refers to para 19-30 of Clerk & Lindsell, which states that many cases of nuisance are concerned with the remedy of injunction.  Reference is made to the judgment of Lord Denning M.R. in Miller v. Jackson, [1977] Q.B. 966 at page 980 where it is stated,

“if the plaintiff seeks a remedy in damages for injury done to him or his property, he can lay his claim either in negligence or nuisance.  But if he seeks an injunction to stop the playing of cricket altogether, I think he must make his claim in nuisance.   The books are full of cases where an injunction has been granted to restrain the continuance of a nuisance. . .”

57.  The Plaintiff’s claim for a mandatory injunction and injunction is based on nuisance.  In my view, the Plaintiff has established that that continuance of water seepage from the flat roof of the Defendant’s Premises has caused nuisance to the Plaintiff.   The Plaintiff is entitled to a mandatory injunction requiring the Defendant to repair the flat roof of the Defendant’s Premises to make it watertight.   The Plaintiff is also entitled to an injunction restraining the Defendant from repeating or allowing the continuance of the water seepage from the Defendant’s Premises to the Plaintiff’s Premises thereby causing nuisance to the Plaintiff.

The 4th Issue

58.  This is a troubling case in view of a number of factors.    Firstly, the floor plan of the 4^th Floor of the Building was designed with 4 domestic units as well as a Lift Motor Room.   The unfortunate feature is that the Lift Motor Room has no access except through Flat B of the 4^th Floor.  Paragraph (g)(i) of the Second Schedule to the DMC imposes on the owner of the Flat Roof to give access to and from the Flat Roof for the purpose of repair of the motor in the Lift Motor Room.   It is not difficult to imagine that there could be emergency situations where access to the Lift Motor Room has to be at short notice, such as a situation where the lift has stalled with passengers inside.  This floor plan design of the 4^th Floor which encumbered the Defendant’s Premises with a right of access through it to the Lift Machine Room is an unfortunate feature of the Defendant’s Premises.

59.  According to the Defendant’s husband he has never read the Deed of Mutual Covenant and it is not clear as regards whether he or the Defendant knows of this right of access or that the Defendant had to give access if necessary at short notice for the repair of the lift.   They are not legally represented so that it is not clear if they understand what their legal rights vis a vis other owners of the Building as stated in the DMC, particularly when they face the situation of the hole on the floor slab of the Lift Motor Room. 

60.  Another troubling feature is the dilapidated condition of the Defendant’s Premises and from the description of Mr. Chan it seems to me to be in such condition that it is almost uninhabitable without complete renovation and cleaning.   How it got to that state, the Defendant’s husband states is because they did not have money to renovate and the said premises which was left in a state of disrepair by the last tenants.  Although the condition left by the tenants must be better from that as found by Mr. Chan 9 years later.

61.  The Defendant’s husband stated that he and the Defendant purchased Flat A and Flat B respectively on the 4^th Floor of the Building in 1993.  They purchased the two properties from their owner who was the operator of the restaurant on the 3^rd Floor, who owed them money.  Prior to its sale the staff of the said restaurant had occupied the said Flat A and Flat B.    After purchase by the Defendant and himself of these properties respectively he and the Defendant continued to lease the said Flat A and Flat B to the restaurant owner for occupation by its staff.     In 1996, the restaurant closed and the staff of the restaurant vacated Flat A and Flat B.   He and the Defendant respectively obtained vacant possession of the said Flat A and Flat B.   They did not decorate the said premises but put the two properties on the market for lease and for sale.   The Defendant and himself have not renovated the said Flat A and Flat B units since they fell vacant.  No potential purchaser showed any interest in the properties.  Later in his evidence, the Defendant’s husband referred to one offer in the sum of $800,000.00 for both properties but no real interest was shown. 

62.  The Defendant’s husband gave evidence that the Defendant could not sell the Defendant’s Premises because of the hole on the floor slab in the Lift Motor Room.  He stated that he told those who viewed the Defendant’s Premises about the hole on the floor slab in the Lift Motor Room because they would ask what is behind the door of the Lift Motor Room.   They would notice that there is a third door on the Flat Roof apart from the doors that lead into Flats A and B and ask what is behind that door.    Invariably they will know about the hole on the floor slab in the Lift Motor Room.   They would be deterred from purchase of the Defendant's Premises because of the security risk.

63.  It is a matter of common sense that there must be a security issue for any occupant of the Defendant’s Premises posed by the hole opening from the Satay King into the Lift Motor Room.   Although there is no evidence whether the hole can be easily seen inside the Satay King premises or not, there is a ladder that leads to it immediately as shown in Photo 1 in the Surveyor’s Report at page 189.  This ladder would attract the attention of any customer of the restaurant. 

64.  If the Lift Motor Room is a common area of the building, as seems to be the case, then the making of a hole on the floor slab thereof must be a contravention of the rights of the other owners of the building affected thereby.  Further there is no provision in the DMC granting access from the Plaintiff’s Premises to the Lift Motor Room through a hole on the floor slab of the Lift Motor Room.   Again, making a hole in the ceiling of the Plaintiff’s Premises to the Lift Motor Room seems to me to be a contravention of the DMC (see para (b) to the Second Schedule of the DMC).  

65.  The Plaintiff explains the necessity of the making of the hole because the Defendant did not occupy the Defendant’s Premises and it was not possible to gain access through it to get to the Lift Motor Room in an emergency, for instance, where the lift has stalled with people inside.   Further the Defendant has the obligation under the DMC to give access through the Defendant’s Premises to other owners of the building to the Lift Motor Room and her failure to do so is a contravention of the DMC.  The lift which is operated by the motor in the Lift Motor Room is one which services the 1^st to 3^rd commercial floors of the building and its maintenance is the responsibility of the owners of premises of the commercial floors, it seems.

66.  The Plaintiff’s Counsel submits that the reason why the Defendant’s Premises has not been sold is the dilapidated condition of the said premises and not because of the hole in the Lift Motor Room.  

67.  There is some support for this.    It was only in 1998 that the hole was made on the floor slab of the Lift Motor Room.   Even before then, according to the Defendant’s husband, no interest was shown by any potential purchaser to purchase the Defendant’s Premises.   It is common knowledge that in 1996, the property market was still buoyant.   It was only after July 1997 that the property market started to be affected by the economic downturn.  It is possible that the state of disrepair of the Defendant’s Premises could be one of the reasons why no interest has been shown in the purchase of the Defendant’s Premises along with other reasons.   Without the help of an expert on this matter one can only hazard a guess based on common sense as regards the reasons why there was no interest to purchase the Defendant’s Premises.  The Defendant’s husband stated that the Defendant’s Premises, namely Flat B on the 4^th Floor has to be sold together with Flat A because of the layout of the two properties being next to one another and both opening out onto the flat roof adjourning Flat B on the 4^th Floor.   This would rule out the sale to potential purchasers who only want to purchase one property rather than two.    Hence, the hole on the floor slab in the Lift Motor Room and the security risk posed by it could not be the only adverse feature to the Defendant’s Premises, which deters potential purchasers from making an offer to purchase.  

68.  The security risk posed by the hole in the lift Motor Room is not impossible to overcome for security measures could be put into the Defendant’s Property such as a security metal gate and window bars.  However such measures would require expenditure and it seems that the Defendant and her husband did not even have the money to renovate the said Flat A and B.   To further minimize the effect of the hole on the floor slab of the Lift Motor Room, the Plaintiff’s Counsel had suggested the addition of a lock or padlock on the Flat Roof side of the door to the Lift Motor Room with the key to be kept by the Management Office.   This would enable workmen working in the Lift Motor Room to be able to open the door of the Lift Motor Room when doing repairs were it necessary.    

69.  It is not possible to assess the extent to which the hole in the Lift Motor Room contributed to the difficulty to sell the Defendant’s Premises.   There is no expert guidance.   I find that it causes a security risk that would be an additional feature to cause deterrence any potential purchaser from the purchase of the Defendant’s Premises but is a factor that could not be ignored.   However as the security risk posed by the hole in the Lift Motor Room could not be the main reason for the failure to sell the Defendant’s Premises I find that the Counterclaim in respect of all the Defendant’s mortgage repayments and rates and management fees in respect of the Defendant’s Premises since 1998 could not be established.   On the other hand, the Defendant has suffered loss through the hole in the Lift Motor Room in that it has brought to the Defendant’s Premises a security risk that adds a serious adverse feature to the Defendant’s Premises.   I have to balance a number of factors when considering the Defendant’s Counterclaim.  These include the Plaintiff’s breach of the DMC infringing the rights of other owners principally that of the Defendant in making the hole on the floor slab of the lift Motor Room (referred to aforesaid) as against that of the Defendant’s breach of the DMC (referred to aforesaid) that caused the Plaintiff take this drastic measure.  There is also the fact of the unfortunate design of the 4^th Floor plan, which encumbered the Defendant’s Premises with the right of access through it to enter the Lift Lobby Room.  

70.  On that basis I am of the view it would be just to award the Defendant a nominal sum to compensate her for the security risk posed by the hole on the floor slab of the Lift Motor Room and to enable her if she wished to pay for a security gate and window bars or any other measure to render her said premises secure.    I have no guidance of any expert of an appropriate sum hence I award a nominal sum which in all the circumstances, I feel would be appropriate having regard to the type of property and its condition and age.   I am of the view that this sum should be in the sum of $50,000.    

71.  I give judgment for the Plaintiff against the Defendant in the sum of $4,500.

72.  I grant a mandatory injunction that the Defendant by herself, her tenants, licensees, servants, agents or otherwise do forthwith carry out repair work on the flat roof of the Defendant’s Premises to make it water proof.   

73.  I further grant an injunction to restrain the Defendant by herself, her tenants, licensees, servants, agents or otherwise from allowing the continuance of water seepage from her Premises to the Plaintiff’s Premises thereby causing nuisance or damage of any kind.   

74.  In respect of the Counterclaim I order that the Plaintiff do pay the Defendant a nominal sum of $50,000.00 to compensate the security risk posed by the hole on the floor slab of the Lift Motor Room and to enable her to install a security gate and window bars and other security measures in the Defendant’s Premises if she so wished.   I grant an order nisi for costs of the claim to be paid by the Defendant to the Plaintiff to be taxed if not agreed with Certificate for Counsel with no order as to costs of the Counterclaim.