LAU CHUN WING ROD v. THE INCORPORATED OWNERS OF PO ON BUILDING

cacv 20/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 20 of 2007

(on appeal from DCCJ NO. 762 of 2004)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from a judgment of Deputy District Court Judge K.W. Wong given on 14 August 2006.  The judge held in favour of the plaintiff in an action brought because of water leakage from the roof of the building, of which the defendant is the Incorporated Owners, into the plaintiff’s flat on the top floor.

2.  The judge found in the plaintiff’s favour on the grounds of nuisance, negligence and breach of duty under section 18(1) of the Building Management Ordinance (“the Ordinance”), Cap. 344.  He granted an injunction, which, although in negative terms, was mandatory to the extent that it obliged the defendant to relocate a flush water pipe; he granted a declaration that the defendant was obliged to carry out waterproofing work on the roof of the building to prevent water from being trapped inside the rooftop slab and percolating through the roof to the plaintiff’s flat and he ordered that damages should be assessed.

3.  At the conclusion of the hearing of this appeal, this court dismissed the appeal with costs to the plaintiff.  We now hand down our reasons.

Background

4.  The plaintiff is the owner of Flat C, 16^th floor of Po On Building.  That is the top floor of a block which had been built in 1966.  The plaintiff acquired the flat in December 2001.  On doing so he found that there were some damp marks on the ceiling of his flat.  He hired a decorator to do some repair work.  Thereafter in April 2002 he rented the flat to a tenant who moved out a year later.

5.  Meanwhile between the end of 2001 and March 2002 the defendant had arranged for renovation work to be carried out because an order had been issued by the Buildings Department.  There was a contractor, Kwai Hing Construction Ltd (“Kwai Hing”) and, as the judge found, the work was supervised by Fortune Engineering Consultants Ltd.  That work included laying a waterproof layer on the rooftop and the canopy over the enclosed balcony of the plaintiff’s flat.  In addition, the flush water pipe running along the parapet wall was relocated.  No doubt because it required renewal, it was decided to replace that pipe.  When it was replaced its position was lowered onto the roof in such a way that it was embedded into the roof of the building.

6.  The judge held as a fact that the plaintiff’s tenant moved out because he wanted to pay lower rent and not because of the water leakage coming from the ceiling.  That leakage was, apparently, serious enough to cause the electricity connections to the ceiling lamp to short circuit.  There was water dripping onto the floor of the flat.

7.  The plaintiff tried to have the matter remedied by having a decorator apply a layer of black tar on the roof above his flat.  That did not solve the problem.  The plaintiff then contacted the defendant.  The judge held that a letter written on 4 August 2003 by the plaintiff to the defendant was in fact received by the defendant.  Despite the fact that the defendant denied having received that letter, the judge had ample reason for holding that it had been sent and received because there was an oblique reference to it in a letter from the defendant’s solicitors.

8.  It suffices to say that the trial of the action took place over 12 days.  The judge heard a great deal of evidence from experts, particularly one who had been engaged by the plaintiff.  On the strength of that evidence, the judge accepted that it was clear that the water leakage did not come from the flush water pipe itself but came from two holes and hairline cracks in the parapet walls and then travelled along weak points.  The positioning of the flush water pipe itself also created weak points for the water to enter into the roof floor slab and the embedded pipe served as a pathway for the water to travel.

9.  It emerges from the judgment that after the plaintiff complained, inadequate steps were taken to investigate the matter and remedy the leakage.  The defendant relied on the fact that it had a 4-year guarantee from Kwai Hing.  It simply called in Kwai Hing.  That company then attributed the leakage, wrongly as the judge held, to the black tar that the defendant had had laid and some work which had been done inside the plaintiff’s flat.

10.  The judge summarised what had happened thereafter in paragraphs 115-6 of the judgment:

“115.    Although the Defendant initially appeared to be cooperative in permitting the Plaintiff to do the water test after receipt of his complaint, I do not consider that they are “easy going” as they have tried to portrait.  The evidence before the Court showed that the Defendant only approached Kwai Hing asking them to honour the 4-year free maintenance.  It only looked to Kwai Hing to come up with solution and has done nothing more.  On the other hand, Kwai Hing only sent staff to do visual inspection of the rooftop and then came up with the black tar and internal renovation theories for the water leakage.  Neither Kwai Hing,  Fortune nor the Defendant saw fit to carry out scientific test to verify their hypotheses.  These hypotheses are only possibilities and I have already ruled that they are without basis.  The Defendant, Kwai Hing and Fortune did nothing sufficient to investigate into the Plaintiff’s complaint.  From day one it seems that they have a firm belief in these unsubstantiated theories of black tar and internal renovation.

116.     It is submitted on behalf of the Defendant that it had the sincerity to repair. I disagree totally.  The Defendant relied on and awaited Kwai Hing to take remedial action and in the meantime, accused the Plaintiff being the author of his own misfortune.  According to the Defendant’s pleadings and evidence they knew there is water leakage in the Premises but still they accused the Plaintiff to be responsible for their own misfortune.  What appears to me to be objectionable is that when TWC sent a bundle of photos in May 2005 to OLN, solicitors for the Defendant, OLN replied in an indifferent manner.  From the tone of the letter of OLN, the Defendant simply did not bother to explain that the Defendant had put on another layer of waterproofing membrane some time ago.  The solicitors simply ignored the complaint by saying that there was nothing new in the development of the water leakage.  This high-handed approach is echoed by the evidence of Chan who accused the Plaintiff of engaging lawyers and not approaching the Defendant direct by himself.  I cannot accept the Defendant has sincerity in handling the matter.”

11.  In consequence the judge held that the defendant had failed to carry out its obligations under section 18(1)(a) of the Ordinance.  In my view he was correct.  The sub-section does impose upon the defendant the obligation to maintain the common parts.  It reads:

“ (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;”

12.  This sub-section does not provide an insurance to the extent that if some part of the building becomes in disrepair the Incorporated Owners automatically and necessarily become liable.  Nevertheless, liability may arise if there is fault.  It also arises if, having been made aware of a defect which requires remedy, the Incorporated Owners fail to take appropriate steps.  On the judge’s finding the defendant did so fail to take appropriate steps.  Likewise it would seem that the case in negligence and nuisance is, on the facts, clear.

13.      In view of the way in which the appeal was presented, it was pointed out that the judge had not held that the defendant was liable simply because there was some defect that became apparent in the premises.  He held the defendant was liable because it failed to act effectively when it should have taken action.  What is required to be done in carrying out the duty will differ according to the circumstances but in this case the judge clearly held that the defendant failed to take proper and necessary steps at a time when it had been alerted that it was necessary to do so and that it continued to fail in that regard for a very lengthy period.

14.      Mr Mak, who appeared on behalf of the defendant, sought to argue that it was necessary to bring the appeal in view of the fact that damages might be assessed in respect of the period prior to August 2003.  That does not appear to me to be a matter in issue in this case.  The judge has held that that the premises were rented until April 2003 and that the fact that the tenant moved out earlier than he might otherwise have done was not related to the water leakage problem.  In those circumstances, whatever issues might arise in the assessment of damages would not be affected by considerations as to the date of knowledge on the defendant’s part.

15.      It was for these reasons that I considered that this appeal should be dismissed.

Hon Le Pichon JA:

16.  I agree.

Hon Lunn J:

17.  I agree.