TOP BASE DEVELOPMENT LTD AND OTHERS v. LLOYD LAURENCE PHILIP AND ANOTHER

HCA 240/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 240 OF 2006

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D E C I S I O N

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1.  Top Base is the owner of a flat on the 2^nd floor of King’s Court at 9 Consort Rise, Pok Fu Lam.  Mr Cheng and Ms Tang are the directors and shareholders of Top Base, and occupy that flat.

2.  The 4^th Plaintiff, (IOKC), is the owners incorporation in respect of King’s Court.

3.  Mr Lloyd and Ms Fong are the owners of a flat on the 1^st floor of King’s Court, directly below Top Base’s flat.  They acquired their property in May 2005.

4.  In the usual way, there is a Deed of Mutual Covenant, (DMC), in respect of King’s Court which binds all of the owners in the property, including the parties to this litigation.

5.  In about August 2005, contractors employed by the Defendants removed drainage pipes underneath the floor slab which comprised the floor of Top Base’s flat, and from which a suspended ceiling to the Defendants flat is attached.  Certain of the pipes were replaced.

6.  Top Base, Mr Cheng and Ms Tang complain that since the removal and replacement of the pipes they have suffered five specific problems: (i) drainage from the wash hand basin is slower, (ii) popping or growling noises emanate from the drain pipes, (iii) the water level in the toilet is higher than before, (iv) a foul odour has emitted from the drainage hole of the bath tub, and (v) crawling or flying insects have come from the bathtub drain.

7.  IOKC has subsequently joined the action as a plaintiff seeking to enforce the DMC, in so far as it relates to the common services and facilities of King’s Court.

8.  All plaintiffs seek the restoration of the drainage system to its original structure.  Top Base, Mr Cheng and Ms Tang seek damages for nuisance and other consequential losses.

9.  Now, IOKC seeks summary judgment against the Defendants.

10.  The case for IOKC is that it is unarguable that the drainage pipes are common facilities of the building, that being a matter determined solely by reference to the DMC.  That being the case, Mr Mak argues, there can be no answer by the Defendants to an order for reinstate.

11.  Mr Sham for the Defendants, says that there is a triable issue as to whether the drainage system in question, or part of it, is part of the common services, and consequently subject to the provisions of the DMC, or the property of Top Base.

12.  If the relevant portion of the drainage system is the property of Top Base, then, Mr Sham says, IOKC has no locus in the proceedings.  Neither Top Base nor Mr Cheng and Ms Tang have joined in the application for summary judgement.

13.  Next Mr Sham argues that the declaration sought by IOKC, that the relevant pipes are part of the common services is directly inconsistent with the relief sought by the other three plaintiffs, who seek a declaration that some, at least, of the pipes at issue are the property of Top Base.  Mr Sham says it is impermissible for co-plaintiffs to take inconsistent steps in the proceedings.

14.  I shall dispose of this argument first.  Mr Sham is right in principle, but the co-plaintiffs are not taking inconsistent steps.  As will be seen from the discussion to follow it may well be that some of the pipes are part of the common services, and others are the property of Top Base.  It is not inconsistent for the co-plaintiffs to seek their apparently contradictory declarations.  The declarations may be limited as appropriate to the facts as found.  Further, they are not inconsistent, but merely different routes to the same result.

15.  The entitlement of IOKC to enforce the DMC does not depend upon whether or not the pipes are common property, or the private property of Top Base.  The law is clear that IOKC may enforce the obligations of the DMC, indeed they are bound to do so: see The Incorporated Owners of Hoi Luen Industrial Centre & Anor v Ohashi Chemical Industries (Hong Kong) Ltd [1995] 2 HKC 11.  I am satisfied that IOKC has locus in the matter.

16.  Mr Mak relied upon clause 4(q) of the DMC.  That clause does not impose any obligation on the Defendants, but merely sets out what is included in the expression “the common parts services and facilities” where it is used in the DMC.

17.  In my view it is irrelevant, at least for the purposes of the summary judgement application, whether the pipes which the Defendants have admittedly altered, are part of the common property, or the property of Top Base. 

18.  Clause 10(a) and (c) of the DMC are the provisions which place an obligation on the Defendants in relation to the pipes at issue in this litigation.  So far as is relevant for present purposes, those provide:

“	10	Each party hereto hereby covenants with the others as follows:-
		(a)	Not to make any structural alterations in his part of the said building which may damage the other parts thereof or cause any inconvenience to the other occupiers and not to make any alteration to the water or gas pipes electrical wiring and plumbing which may cause such damage or inconvenience as aforesaid….
		(c)	Not to use his part of the said building…. nor do or permit any thing therein or thereupon which….. may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the said building.”

19.  In the present case it is quite clear from the evidence, and unarguable, that all of the pipes that have been altered are contained within the Defendants’ part of the building.  The pipes are located below the concrete slab which provides the floor to the flat above, and which is the divider between the two flats.  In order that the pipes may be appropriately concealed, where they run horizontally below the concrete slab there is a suspended ceiling, and where they run vertically, they are concealed by a false wall.  Plainly, the pipes are in the Defendants’ part of the building, that is, “his part of the building”.

20.  Some of those pipes, probably those running vertically, may serve not only Top Base’s flat, but other flats in the building.  Others of those pipes, probably those running horizontally, may serve only Top Base’s flat.  In so far as they serve other flats in the building, and are common property, IOKC may bring proceedings to enforce the provisions of the DMC.  In so far as they serve only Top Base, that company may bring proceedings to enforce the provisions of the DMC.

21.  There can be no doubt that the Defendants are bound by clause 10(a) and (c) of the DMC. 

22.  Having read the expert report provided by the Defendants themselves, I am satisfied that it is unarguable that they have made alterations to the plumbing.  They have replaced the pipes with PVC drainage pipes, but that is not objectionable.  What they plainly have done is altered the routing of the pipes.

23.  However by virtue of the provisions of clause 10(a) and (c), it is only an alteration which causes damage or inconvenience, or nuisance or annoyance, to other occupiers that is prohibited.

24.  It is no answer for the Defendants to say that they altered the pipes in the course of discharging their duty under clause 8 of the DMC which requires them to keep “all plumbings” (sic), inside their flat in good and tenantable repair.  In the discharge of that obligation they were perfectly entitled to replace defective cast-iron drainage pipes with a new set of PVC drainage pipes.

25.  If however, in the course of keeping the pipes in good and tenantable repair, the Defendants should alter the routing of the pipes so as to cause damage or inconvenience, or nuisance or annoyance, to other residents, then the Defendants will be liable to reinstate all repair the pipes so as to prevent any damage or inconvenience or nuisance or annoyance.

26.  It is no answer to an alteration of the routing of the pipes to say that the present routing has the approval of the Buildings Department, if in consequence of the alteration of the routing then there has been created damage or inconvenience or nuisance or annoyance.

27.  There is a dispute between Top Base and the Defendants whether the work undertaken to the pipes by the Defendants has resulted in the circumstances of which the occupants of the flat above complaint.

28.  The 5 matters of complaint are set out in paragraphs 6 above. If it is established that the alteration of the route of the pipes is the cause of the matters of complaint, there will have been established damage or inconvenience, or nuisance or annoyance, to other occupiers.  In those circumstances the original routing of the pipes will have to be reinstated or some method adopted to alleviate the circumstances. 

29.  But if the alteration of the route of the pipes is not cause of the matters complained of, then there will have been no breach of the DMC.

30.  The answer to each complaint offered by the Defendants is as follows:

(1)	The slow drainage process; Expert advice received by the Defendants is that this problem is most likely related to events above the floor slab.
(2)	The popping/growling noise: Expert advice received by the defendants is that this is because the water drains more effectively or may be due to the lack of an anti-siphon device and bottle trap in the flat on the floor two.  The advice is that it is unrelated to the drainage pipes below.
(3)	Water level in the toilet: The expert advice received by the Defendants is that it is physically impossible for the water level of the toilet to be higher than before, as that is not affected by a drainage connection.
(4)	Foul odour: the expert advice is that the condensate lines from a split air-conditioning unit in the flat on the floor to has been connected, (improperly), to the basin waste on the sewer side, bypassing the basin trap, thereby permitting sewer gases to back up to the air-conditioning condensate outlet at the fan coil unit;
(5)	Crawling/flying insects: the advice received by the Defendants is that the insects shown in the photograph exhibited are winged ants, which cannot and do not swim.  Consequently it would be physically and biologically impossible for them to come from the drainpipe in consequence of any steps taken by of the Defendants.

31.  I am satisfied that IOKC has locus in the matter, but also that there is an arguable defence to the claim by IOKC to enforce the DMC, namely that the alterations to the pipes undertaken by the Defendants have not damaged other parts of the building, or caused inconvenience, nuisance or annoyance to other occupiers of the building.

32.  The application for summary judgement must accordingly be dismissed.

33.  Costs on the application reserved.