KUNG SHING INVESTMENT LTD v. THE SUNBEAM MANUFACTURING CO LTD AND ANOTHER

DCCJ 4093/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4093 OF 2002

--------------------

--------------------

_______________

J U D G M E N T

_______________

1. The Plaintiff is the owner of the property known as Flat B, 12/F, ("Flat B"), Sunpeace Court, No. 136/142 Boundary Street, Kowloon. The 1st Defendant is the owner of Portion B of the Roof of Sunpeace Court ("Roof B"). The 2nd Defendant is the Incorporated Owners of Sunpeace Court, which has engaged Urban Property Management Limited ("the Manager") as the manager of Sunpeace Court ("the Building").

2. The Plaintiff's case is that water seeped into a bedroom of Flat B, and that the water seepage was caused by the defective waterproofing system of Roof B. Mr. Chiang testified for the Plaintiff. He said that in July 1997 water started to seep into a bedroom of Flat B through the ceiling. As a result, the ceiling became wet and the plasters there peeled off. Shortly thereafter he complained to the Manager and the 2nd Defendant. The reports filed by the parties show that the water seepage is caused by defects in the waterproofing layer below the roof. The Plaintiff's expert report states, "......we are of the opinion that the water leakage problem is caused by the defective waterproofing system of flat roof, whose is located above subject flat." The 1st Defendant's expert report states, "we are of the opinion that the leakages were caused as a result of defects in the waterproofing system which had likely been created by the deterioration of the system itself owing to the ageing effects." The expert report of the 2nd Defendant says, "According to our observation, water penetrated from the de-bonding surface finishing at roof directly above the captioned flat and skirting via defective damp proof membrane to the captioned flat".

3. There is no allegation or evidence from any party that there was any disrepair of the surface of Roof B. The issue in the case is: who is responsible for maintaining the waterproofing layer? This turns on whether the waterproofing layer is a common part of the Building. By section 2 of the Building Management Ordinance ("the Ordinance") common parts means the whole of a building, except those parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner, and unless so specified or designated, those parts specified in the 1st Schedule of the Ordinance.

4. On the roof of the Building there are various structures and common parts:-

(a) Roof B, belonging to the 1st Defendant.

(b) Roof areas, being the area outside and up to the fence erected by the 1st Defendant.

(c) the parapet walls;

(d) the flower beds;

(e) the water tanks;

(f) the upper roof above the water tanks.

4.1. The Roof areas are not used exclusively by any owner. So they are common parts of the Building.

4.2 The 1st Schedule includes, in its paragraph 4, a reference to "parapet walls". There is no evidence that the parapet walls have been specified or designated for the exclusive use of any owner in any instrument registered in the Land Registry. Therefore the parapet walls are common parts.

4.3 Clause 16(C) of the DMC provides that "common areas" are those areas and spaces of the Building whether covered, open or enclosed and not allotted for the exclusive use of one owner. In the DMC there is no provision allotting the flower beds to any owner. Thus the flowers beds are common areas.

4.4 The water tanks are for the storage of potable water, flush water and water for fire services. These are for the benefit of the entire Building. There is no provision in the DMC that these water tanks are allotted for the exclusive use of any owner. So the water tanks and the upper roof above them are common parts.

5. According to the Finishing Schedules of the Building, the following layers of materials (commencing from the top to the bottom) can be found in the roof slab :-

1. roof tile

2. cement and sand screeding

3. insulation polystyrene

4. rock asphalt in 3 layers

5. cement and sand rendering

5.1 The fourth layer is the waterproofing layer. The above shows that the waterproofing layer is located within the core of the roof slab, and it is underneath the surface of the roof, including Roof B and the part of the roof forming the common areas on the roof.

6. Part of the waterproofing layer is situated underneath the surface of the parapet walls. On the surface of the side of the parapet walls facing the roof, there is a layer of paint, behind which there is a layer of cement screeding which covers the waterproofing layer in the parapet walls. At the edges of the roof slab where they meet the parapet walls, the waterproofing layer curves upward, lying underneath the surface of and within the parapet walls as described, up to a height of about 300 mm., and then it tugs in to a groove in the parapet walls towards the core of the parapet walls. The parapet wall being a common part of the Building, the waterproofing layer situated within it cannot be anything but a portion of this common part.

7. The various layers of materials in the roof slab are all penetrable by water. Only the waterproofing layer serves the waterproofing purpose. The water comes from rainfall, water overflowing or drained from the water tanks. Where the waterproofing layer is not defective, even when there are cracks at the tiles of the roof, water will not penetrate from the roof to 12/F. Where there are no cracks at the tiles of the roof but the waterproofing layer is defective, water will penetrate from the roof to 12/F. If there is any defect in the waterproofing layer on a certain part of the roof, and water comes in through the cement sand screeding, the water will flow around to reach the part of the roof where the waterproofing layer has defect, and seeps through this defect. So, in order to serve its function, the whole of the waterproofing layer would have to remain intact. The waterproofing layer is a continuous layer, covering the whole exposed area of the main roof. It is therefore an integral layer for preventing water from seeping into the inner part of the Building. The part of the waterproofing layer situated underneath the surface of Roof B is part of this layer, parts of which are situated underneath the surface of various common parts on or around the roof.

8. The water seeping through the defect may leak downwards through the pores in the concrete forming the walls and column; the water may come out of the ceiling or walls or any part of 12/F, 11/F, 10/F etc. If the water happens to leak into the common part of 11/F where the lift is situated, the operation of the lift may be affected, and the owners of the Building may be affected. Thus it is clear that the waterproofing layer is installed for the use and benefit of all the owners of the Building. The decision of the Lands Tribunal in 梁有勝 v 馮源及其他人 (LDBM 249/2000), regarding waterproofing layer, is applicable to the present case. In that case, the Deputy Judge said :

“48. 不過，申請人所針對的並不是天台的一般維修，而是天台防水層的維修。該大廈的天台防水層應該是分佈整個天台，包括第三至第五答辯人所擁有的物業之內。本席認為天台防水層亦是公用部份，因為防水層絕不會是為該天台單位而是為整幢大廈而設的。”

By virtue of this decision, waterproofing layer as a whole is therefore a common part of the Building.

9. The Plaintiff is the owner of Flat B. It is entitled to the exclusive use of the underside of the part of the slab which forms the ceiling surface of Flat B. The 1st Defendant, as the owner of Roof B, is entitled to the exclusive use of the upper surface of the slab forming the floor surface of Roof B. The part of the slab in between the upper and underside surfaces must be for the common use for the roof and the 12/F, and therefore it could not have been assigned exclusively to any one owner. The slab has not been assigned to any owner. By applying the definition of "common part" as embodied in section 2 of the Ordinance, the slab is a common part of the Building. Being located within this slab, the waterproofing layer must be a common part of the Building.

10. Section 18 of the Ordinance provides :-

"(1) The corporation shall -

(a) maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition;

(b) .........

(c) ........."

By virtue of section 18, the 2nd Defendant is under a statutory duty to maintain the waterproofing layer in a state of good condition. The damage caused to the premises of the Plaintiff is due to the defective of the waterproofing membrane in Roof B. Therefore the 2nd Defendant is liable to repair it. The 1st Defendant is under no duty to repair and maintain any common part of the Building, and so is not liable for the Plaintiff's damage; the Plaintiff's action against the 1st Defendant cannot stand.

11. Paragraph 14(ii) of the amended Statement of Claim refers to professional charges in the sum of HK$11,000.00. This item should not have been included as part of the damages; it should be treated as part of the costs of the proceedings. Paragraph 14(iii) refers to $27,350 as being repair expenses. But such sum has not been incurred. The award should not include such sum of money. The Plaintiff has abandoned the general damages claim under paragraph 14(iv).

12. I make the following order :

(i) The Plaintiff's claim against the 1st Defendant be dismissed.

(ii) The 2nd Defendant do within 90 days hereof rectify the waterproofing system of the Roof so as to make good the defects of the water seepage in question;

(iii) The claim in respect of the costs of engaging Urban Technical Services Limited as particularized in Paragraph 14(ii) of the amended Statement of Claim be dismissed.

(iv) The 2nd Defendant do pay the costs of repair in the sum of $14,200.00 to the Plaintiff within 30 days. Interest on this sum at judgment rate from the date of the service of the writ up to today.

(v) The claim in respect of the repair costs in the sum of HK$27,350.00 particularized under Paragraph 14 (iii) of the amended Statement of Claim be dismissed.

(vi) The claim in respect of the damages for discomfort and inconvenience referred to under Paragraph 14(iv) of the amended Statement of Claim be dismissed.

Costs

13. I make an order nisi, to be made absolute in 21 days' time, that the Plaintiff is to pay the 1st Defendant costs of these proceedings (with certificate for Counsel) to be taxed, if not agreed. The 2nd Defendant is to pay the Plaintiff the costs of these proceedings (with certificate for Counsel), to be taxed, if not agreed.