HUNG TUNG SHING AND ANOTHER v. THE INCORPORATED OWNERS OF KWONG SANG HONG BUILDING BLOCK B AND ANOTHER

DCCJ 3013/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3013 OF 2001

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JUDGMENT

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1. The Plaintiffs are the registered owner of the premises situated at Flat I, 12th Floor, Kwong Sang Hong Building (Block B), No. 6 Heard Street, Hong Kong (hereinafter referred to as "Flat 12-I" and Kwong Sang Hong Building (Block B) be referred to as "the Building").

2. The 1st Defendant is the Incorporated Owner of the Building. It was incorporated and registered on 24th March 1993 under the Building Management Ordinance.

3. In or about September 1999, the 1st Defendant instructed the 2nd Defendant to carry out renovation work to the Building including the demolition of the communal drainage stacks lined vertically from the roof of the Building and the installation of new pvc drainage stacks with elbow joints which passed through the external wall to connect with the branch pipes, water closet, bath tub and basin of each individual unit of the Building (including Flat 12-I).

4. The contract of work between the 1st and 2nd Defendants appears at E-1 to E-154. The relevant clause appears at E-43 which reads:-

拆除全座大厦外牆見光部份，連通天的所有舊渠管（包括雨水渠、污水渠、糞渠連横枝喉、疏氣喉等），重新更換清污排水渠。

清拆室内現有喉管，須修補天花及地台之喉管洞口，以及完成防水工序。(hereinafter referred to as "the drainage work")

5. The 2nd Defendant started with the drainage work in September 1999. The drainage pipes inside Flat 12-I was removed in about September 1999. After the drainage work was carried out, dampness started to appear on the ceiling of Flat 12-I.

6. The Plaintiffs complained to the 2nd Defendant, both orally and in writing. But the 2nd Defendant only agreed to repaint the ceiling. The second-named Plaintiff refused the offer because she was of the view that if the source of leakage or seeping could not be found, then the ceiling would be wet and damaged again later.

7. The Plaintiffs wrote letters of complaint to the 1st Defendant starting in end of 1999. In or about September 2000, the Plaintiffs instructed a surveyor, Stewart Wong ("PW2") in the employ of Proficient Surveyors & Co., to conduct a survey and investigation as to the source of the leakage. A report was prepared by PW2 and produced at A-111 to A-141. In the conclusion, PW2 remarks, inter alia, that:-

The external wall hole patched with cement/sand during the renovation to the Building by [the 2nd Defendant] for passing the 100 mm pvc drainage pipe of [Flat 13-I] which should have been sealed good to waterproof but was permeable allowing rainwater soak into the said patch bringing down dampness to appear at the concrete ceiling of the bathroom of [Flat 12-I] which is situate its flat immediately below.

The external wall hole patched with cement/sand during the renovation to the Building by [the 2nd Defendant] for passing the 100 mm pvc drainage pipe of [Flat 13-H] which should have been sealed good to water proof but was permeable allowing rain water to soak into the said patch bringing down dampness to appear at the concrete ceiling of the bath room of [Flat 12-I] which is situate close to below Flat 13-H].

The cement/sand patch at the floor slab of [Flat 13-H] (the floor section where the replacement of drainage pipe was carried out by [the 2nd Defendant] during the renovation of the Building) appears to have been not patched good by [the 2nd Defendant] allowing dampness to pass through the floor slab of [Flat 13-H] to appear at the ceiling of [Flat 12-H]. The dampness at the ceiling of [Flat 12-H] spread to appear at the ceiling of the bathroom of [Flat 12-I].

8. In October 2000, the Plaintiffs' solicitor wrote to the 1st Defendant (A-89) and 2nd Defendant (A-83). In the letter to the 1st Defendant, the Plaintiffs complained that the work done by the 2nd Defendant was not done in a professional and workmanlike manner. A copy of the said report prepared by PW2 was provided to the 1st Defendant and the Plaintiffs further demanded the 1st Defendant to carry out and complete the remedial works as proposed by PW2 in the said report. A similar request and demand was made against the 2nd Defendant.

9. No remedial work was taken by either of the 1st and 2nd Defendants. PW1 said the leakage continued and the plaster on the ceiling fell off showing the iron bar inside. They took out this action to claim against the 1st and 2nd Defendants for injunctions and damages.

10. Before I come to consider the merits of the claim, I should deal with a point on jurisdiction and the parties that should be joined. In this action, the Plaintiffs claim 2 injunctions against the 1st and 2nd Defendants:-

(i) An injunction to restrain the 1st Defendant and/or the 2nd Defendant by themselves, their servants or agents or otherwise from repeating or continuing the said nuisance of any nuisance of a like kind;

(ii) An order that the 1st Defendant and/or the 2nd Defendant do forthwith rectify the defective Drainage Replacement Work as pleaded in paragraph 6 above;

11. In the final submission, solicitor for the Plaintiffs submitted a draft order that only applies for a mandatory injunction in line with prayer (ii). I have to consider my jurisdiction in giving injunction. Section 52(1) of the District Court Ordinance provides

The Court shall have jurisdiction to grant and to enforce injunctions of whatsoever nature....

(a) ....

(b) ....

(c) in all matters affecting immovable property, including any rights, licence or easement in, to, through or over any immovable property..where the annual rent or the rateable value, determined in accordance with the provisions of the Rating ordinance (Cap.116) or the annual value, whichever is the less, of the property does not exceed $240,000.00;

12. The injunction sought by the Plaintiffs must affect immovable property. Solicitor for the Plaintiffs submitted the only immovable property affected is the floor slab between 12th Floor and 13th Floor, and the external wall of the Building. No share is allotted to these parts of the Building according to the Deed of Mutual Covenant of the Building. Hence the annual value of the affected area is nominal.

13. I do not agree that is correct. If we are talking about the external wall of the Building, it cannot be right that it has no annual value, even when no shares has been allotted. Further, according to the draft order, work has to be done in Flats 13 H and I, Flats 12 H and I. 4 units of the Building are affected by the injunction sought. While works are being carried out on the floor slab and the external wall, the workers would be going into these units. The right to use and enjoy these premises must be affected. Hence I rule that the property being affected by the injunction sought are the said 4 units. The Plaintiffs have not produced any evidence on the rateable value of these units. I cannot determine if I have the jurisdiction. With the evidence in front of me, the Plaintiffs have not satisfied me that I have jurisdiction to give the injunction sought.

14. Further, on the issue of injunction, I raise with the Plaintiffs' solicitor whether the other owners of the 4 units should be joined as parties. He submitted that they needed not be joined because the 1st Defendant is in control of the common part by virtue of the Building Management Ordinance. And the other co-owners hold their units subject to the right of the 1st Defendant to maintain the common parts.

15. I do not agree. If I were to give the injunction, it must affect the right of the owners of the said 4 units. The Defendants do not know if they could comply with my order as the other owners may refuse entry. These owners may be wrong in the refusal, but the end result is that the Defendants could not comply with my order without further litigation. I do not see how I could grant a mandatory injunction, even if I have the jurisdiction, without at least hearing the submission from the other 3 owners being affected.

16. In conclusion, I rule that I do not have jurisdiction to grant the injunction sought, and even if I have the jurisdiction, I would not grant such injunction without the Plaintiffs joining the owners of Flats 13-H, 13-I, and 12-H, or the evidence that they would allow the Defendants to carry the work required. The claim for injunction is dismissed and I shall deal with the claim for damages.

17. There is a very lengthy submission on the duty of care of the 1st and 2nd Defendant. But before I proceed further to consider the duty of care, I would consider the evidence on the cause of the seepage.

18. The Plaintiffs called 2 witnesses on this issue. Wong Kwan Ching ("PW1") is one of the Plaintiffs. PW1 said that before the drainage work started, there was no leakage or dampness on the ceiling of Flat 12-I. It started after the 2nd Defendant carried out the drainage work. She also said that the dampness was more serious when it rained.

19. PW2 was admitted as an expert in the area of water leakage. He had carried out a further test in his second report at A-134 to A157, to prove his finding in the first report on the source of the dampness. He carried out a coloured water test at the toilet of Flat 13H. He found that the coloured water had passed to the ceiling of Flat 12I.

20. In his report and in his oral evidence, PW2 expressed the opinion that the water leaked into the floor slab between 12th and 13th Floors of unit H, mainly at the area of the hole now filled with material by the 2nd Defendant. When the wet area grew larger and larger, it also affected the floor slab of unit I. He discovered during the test some coloured water appearing at the ceiling of Flat 12-I which supports his opinion.

21. During the coloured water test, PW2 also discovered that some coloured water seeped out from the pipe area on the external wall of Flat 13-H. He therefore concluded that the filling material for the hole was not waterproof. He therefore gave the opinion that rainwater could soak the filling material or enter the external wall wetting the external wall. The water then wet the floor slab and damped the ceiling of Flat 12 I.

22. It is not disputed that the damped area on the ceiling of Flat 12-I is near the external wall. The ceiling of Flat 12-H was also damped and the damped area was adjacent to the damped area of Flat 12-I, separated by the partition wall.

23. PW2 therefore expressed an opinion that the dampness on the ceiling of Flat 12-I is due to poor workmanship by the 2nd Defendant in that the holes filled up was not waterproof.

24. The 2nd Defendant called 2 witnesses. 林福松 ("D2W1") is the project supervisor of the 2nd Defendant. He gave evidence on the process of removing the old pipe. He said that the exposed was cut. Then, holes were bored around the pipe embedded in the floor slab so it could loosen and be removed. The hole was then filled with cement mixed with epoxy, a kind of waterproof material.

25. For installing the new soil pipe, the workers of the 2nd Defendant used a borehole machine that cut a hole in the external wall. A hole of about 5 inches in diameter had to be bored. After the pipe was installed, the empty space between the pipe and the side of the hole was filled with cement mixed with epoxy. In his view, that is sufficient for waterproofing. But he is not an expert witness.

26. The 2nd Defendant also called Leung Chi Chung "(D2W2") and he is admitted as an expert in water leakage. He had inspected Flat 12-I and Flat 13-I. But he had not visited Flat 13-H and Flat 12-H, notwithstanding that he had the second report of PW2 when he carried out his investigation. He had asked D2W1 if he could inspect Flat 13-H and Flat 12-H, but it was not arranged.

27. He commented that water leaking from Flat 13 I to Flat 12 I is very unlikely. He suggested a water test on the roof slab to verify whether rainwater seep through the roof sealed opening to Flat 12 I. And when he was asked about leakage from Flat 13 H to Flat 13 I, he said it is possible if there is "path" in the floor slab, which I understand to be defect of structure. But he had not inspected nor carried out any test for such possibility.

28. It is an important finding by PW2 that the coloured water seep through the grout pipe. I accept his finding and opinion that the sealing of the hole is not waterproof and is therefore a defective work.

29. He also suggested that as the stained area in immediately under the grouted hole in the floor slab, and the rest of the ceiling is relatively dry, the seepage occurred at the grouted area. This is a logical conclusion and I accept his finding entirely.

30. In conclusion, I find that water seep through either the grouted hole on the floor slab or the external wall, damaging the ceiling of Flat 12-I.

31. The seeping of water is a classic case of nuisance. And the claim of the Plaintiffs is based upon nuisance. The sealing and/or filling of the holes were done by the 2nd Defendant. The next issue is whether they have a duty of care to prevent to the Plaintiffs and the extent of such duty.

32. It is provided in the contract between the 1st and 2nd Defendants that the 2nd Defendant shall provide waterproofing material to seal up the holes. Surely the 2nd Defendant has a duty to ensure that the holes are sealed up in accordance with the contractual requirement. But the Plaintiffs were not a party to the contract and could not sue on contract.

33. The Plaintiffs claim negligence. The question is whether it is foreseeable for the 2nd Defendant in performing works in the Building, that any defective work would affect the Plaintiffs. The answer is obvious enough - yes. Hence they have a duty of care to the Plaintiffs. The extent of the duty must at least be up to the requirement of the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations. Regulation 36(2) provides that:-

Any hole which is made in any floor or wall in order to admit any such pipe shall be properly filled in and sealed around the pipe.

34. Filled properly must ensure that the holes on the external wall and the floor slab are sealed to waterproof for normal use of these premises.

35. According to the test of PW2, the sealing cannot stand resist the floor of the toilet being wet for 40 minutes. It is foreseeable that the toilet would be wet. And according to PW2, the filling cannot prevent infiltration by rainwater. These are the natural use of external wall and floor slab. I find that the 2nd Defendant is negligent and is liable to the Plaintiffs for the loss and damages. I do not intend to deal with the other grounds relied upon by the Plaintiffs.

36. The Plaintiffs also claim against the 1st Defendant on the grounds of breach of common law duty and statutory duties as provided by the Building Management Ordinance.

37. The 1st Defendant is not legally represented. The representative of the 1st Defendant, 湯永康 ("D1W1") gave evidence. What he said was that the 1st Defendant have delegated the work to the 2nd Defendant and the authorized person. If there is any problem, the 2nd Defendant should rectify the same. Though he said the 1st Defendant should not be liable, no argument or evidence in this direction was called.

38. To begin with, I have to rule if the external wall and the floor slab are common part of the Building and hence in the control and management of the 1st Defendant. It is not disputed that all owners of the Building are bound by a Deed of Mutual Covenants (memorial no.1652945). It is further pleaded that since the incorporation of the 1st Defendant, the common parts of the Building were amenable to control by the 1st Defendant by virtue of Building Management Ordinance.

39. I was referred to 2 cases on this issue. The Court of Appeal in So John v. Lau Hon Man [1993] 2 HKC 356 commented that the floor slab could for many reason be regarded as common area, but a pipe encased in the slab for the exclusive use of a unit is part of that unit and not the common area. Though it is not the issue decided, the Court of Appeal grounded its ruling on the assumption that the floor slab is a common part.

40. The second case is Lily Tse Lai Yin and others v. The Incorporated Owners of Albert House and others HCPI 828/97 (unreported). The ruling is not about a floor slab. It is a canopy that is not assigned to any owner of the building. It is ruled by Suffiad J. that the canopy is part of the common part and therefore the Incorporated Owner has the necessary control and legal responsibility of seeing that the canopy is maintained and kept in proper repair.

41. It is provided in the Building Management Ordinance that:-

common parts (公用部分) means-

(a) the whole of a building, except such 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 (Amended 8 of 1993 s. 2)

(b) unless so specified or designated, those parts specified in the First Schedule;

42. Mr. Justice Suffiad used the definition of the Building Management Ordinance to find if the canopy is a common part. To begin with, the whole building is common parts. Any part that has not been assigned would be common parts. The canopy has not been assigned and it must be a common part.

43. Using the same analysis, the floor slab must be for the common use for the upper and lower floor and therefore could not be assigned exclusively to any one owner. Hence, the assignment could not intend to assign the floor slab to any one of the owners. I find that the floor slab is a common part, and in the control and management of the 1st Defendant.

44. As the owner of the common part, the 1st Defendant would own a duty of care to maintain the same. In particular, when there is defective works by their contractor, they are obliged to take remedial work within a reasonable time about being notified by the owner affected. It is not disputed that the Plaintiffs of the defect notified the 1st Defendant by letter dated 14th November 1999 and through their solicitors (enclosing the 1st report of PW2) on or about 27th October 2000. The 1st Defendant had taken no action.

45. The 1st Defendant did not really dispute liability to the Plaintiffs. I found that they are negligent in common law in failing to maintain the common part, namely the floor slab between 13th Floor and 12th Floor and the external wall of the Building. It is liable to the Plaintiffs for damages jointly and severally with the 2nd Defendant. I do not intend to deal with the other grounds relied upon by the Plaintiffs.

46. On assessment of damages, the Plaintiffs claim the damages as listed out at page A139. For the damages under items (1) to (4) and (9), since the remedial works have not been carried out, I cannot award those claims. On items (5) and (7), there is no evidence on the cause of these damages. I suspect that they are damaged when the 2nd Defendant removed the pipes. This is not the pleaded case. Hence I cannot allow them any of these damages on the pleading in front of me. On items (6) and (8), I am not satisfied on the balance that they have to be replaced and I dismiss these claims.

47. The additional claim for hotel accommodation is only required when the repair works are being carried out. Since I do not allow the claim for mandatory injunction, I would not allow this claim. And for the claim for fees paid to the surveyor, PW2, it should be part of the Plaintiffs' costs. I shall deal with it later.

48. In the statement of claim, there is claim for diminution of the said Premises. There is no evidence produced and it is not even mentioned in the final submission of the Plaintiffs' solicitor. I make no award under this head. The remaining is the general damages for inconvenience and discomfort.

49. Solicitor for the Plaintiffs invited me to follow the said case of So John. It is a claim arising from leakage of water from a bursted water pipe in the floor slab. $10,000.00 was awarded for inconvenience and discomfort. Plaintiffs' solicitor submitted that the inconvenience in this case is for a longer period of time. Taking the inflation into consideration, he submitted that a sum of $50,000.00 is appropriate.

50. While the period of inconvenience is longer in this case, the damage to the premises is not as serious. It is a small portion in the toilet that has been affected. Taking all the factors into account, I rule that a sum of $20,000.00 should be awarded for damages of inconvenience and discomfort.

51. I therefore find in favour of the Plaintiffs against both the Defendants for the damages assessed at $20,000.00 with interest at the rate of 4.07% per annum from date of writ until judgment and thereafter at judgment rate until payment.

52. The 1st Defendant also claims an indemnity against the 2nd Defendant. It is not specified on the Notice of Indemnity the grounds of the claims. I believe it tries to say that the 2nd Defendant is in breach of the contract in doing the drainage works. But the particulars of breach have not been pleaded. The 1st Defendant has not stated its claim such sufficient clarity and he has not adduced by evidence. Hence, I dismiss the claim for indemnity.

53. On the claim, since the Plaintiffs only successfully obtain a judgment of $20,000, they should be awarded costs on Small Claims Tribunal scale. Assuming that this case has been heard at the Small Claims Tribunal for 4 days, and taking into account the document involved, I would assess a sum of $4,000.00 to be reasonable. The expert fees for preparing both reports are allowed at $11,500.00 with an addition sum of $2,000.00 for attending Court. As between the 1st and the 2nd Defendant, the costs is substantial covered by the main action and I rule that no order need be given. I therefore give an order nisi for costs in favour of the Plaintiffs assessed at $16,500.00 against the 2nd Defendant, such order to be made absolute within 14 days.

54. I should add that this case has been handled in a very expensive manner. A four-day trial involving 2 firms of solicitors would easily incur over $200,000.00 legal costs (for both parties). This is a very conservative estimation. But according to the first report, the cost of repairing the ceiling is only $3,000.00. There is no evidence to suggest that the 1st Defendant is not co-operative or that the owners of Flat 13I and H are not co-operative. If, with their consent, the work was done, the matter could then be easily resolved in the Small Claim Tribunal. It is at least arguable that the further deterioration of ceiling could be prevented and hence the Plaintiffs may not be able to recover any further damages after the first report. Those advising the Plaintiffs should advise in the interest of their client, even though such advice may not be welcomed by their client.