|
DCMP 1310/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 1310 OF 2016
----------------------
| BETWEEN |
|
|
| |
LEHNER EWALD STEPHAN |
Plaintiff |
| |
and |
|
| |
PUI TSAN PO |
1st Defendant |
| |
WONG MING TUNG |
2nd Defendant |
| |
PUI TAI BETTY |
3rd Defendant |
----------------------
| Before: Deputy District Judge Mak in Court |
| Date of Hearing: 15 September 2016 |
| Date of Judgment: 30 September 2016 |
----------------------
JUDGMENT
----------------------
INTRODUCTION
1. Water seepage is a common phenomenon in multi-storey buildings in Hong Kong. When it happens, the owner of the affected premises must want to find out the source of the seepage. Co-operation of the owner of the neighbouring premises is necessary. When the same is not forthcoming, litigation between neighbouring owners is unfortunately unavoidable.
2. By this action, the plaintiff seeks an order of court allowing him or his authorized representatives to carry out tests at the defendants’ premises for the purpose of finding out the source of the water seepage.
The Plaintiff's case
3. The plaintiff is the registered owner of Flat B, 23rd Floor, Eternal Building, Nos 112-114 Tsat Tsz Mui Road, Hong Kong (“Flat 23B”) and the roof thereabove (“Roof B”).
4. The 3 defendants are the registered owners as tenants-in-common in equal shares of Flat A, 23rd Floor, Eternal Building, Nos 112-114 Tsat Tsz Mui Road, Hong Kong (“Flat 23A”) and the roof thereabove (“Roof A”).
5. Since about mid August 2014, water seepage was found at the ceiling of the bedroom of Flat 23B.
6. The plaintiff's requests to inspect Roof A were repeatedly refused by the 1st defendant.
7. In April 2015, the plaintiff engaged a renovator to apply 2 coats of basic sealant of waterproof and 2 coats of new layer of waterproof coatings on Roof B.
8. However, the water seepage re-surfaced in June 2015.
9. Meanwhile, the Joint Office carried out investigation in May and June 2015. It issued an advisory letter to the defendants on 14 July 2015 and to the Incorporated Owners on 23 July 2015 suggesting to them to carry out remedial and maintenance works.
10. The plaintiff also engaged a building surveyor, Baily Construction & Engineering Co Ltd (“Baily”) to ascertain the cause of the water seepage. After inspection, Baily was of the view that the waterproofing layer of Roof B was in good condition and was unlikely to be the cause of the water seepage. Baily was of the opinion that the likely cause of water seepage was the unauthorised building works on Roof A.
11. In July 2015, Baily attempted to seek the permission of the defendants to inspect Roof A, but to no avail.
12. In July and August 2015, the plaintiff engaged Baily to carry out a water ponding test on the portion of Roof B immediately above the ceiling of the bedroom affected by water seepage. It was concluded that the waterproofing of Roof B was in good condition and no water leakage was observed.
13. Baily is of the opinion that access to Flat 23A is necessary in order to ascertain the cause of the water seepage.
14. To date, the defendants have still refused to allow the plaintiff's expert to have access of Flat 23A and Roof A for the purpose of ascertaining the cause of the water seepage.
The Defendants' case
15. The defendants said the water seepage was due to the former owner of the plaintiff's premises had demolished 2 brick walls inside the premises.
16. The defendants said the plaintiff is blackmailing him the sum of $150,000. The plaintiff is misusing the resources of government departments and the court in order achieve his goal.
17. The defendants also alleged that Baily was fabricating evidence.
The law
18. S47D of the District Court Ordinance (“DCO”) provides:-
“(1) A person authorized by the rules may, in proceedings in an action, in which a claim is made, apply to the Court for an order for and the Court may order –
(a) the inspection, photographing, preservation, custody and detention of property which may become the subject-matter of the proceedings or as to which any question may arise in the proceedings;
(b) the taking of samples of the property mentioned in paragraph (a) and the carrying out of any experiment on or with the property.
...
(4) In this section, property (財產) included any land, chattel or other physical property of any description.”
19. Order 29 rule 7A(1) of the Rules of the District Court provides:-
“(1) An application for an order under section 47D of the Ordinance in respect of property which may become the subject-matter of subsequent proceedings in the Court or as to which any question may arise in any such proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the summons.”
20. In Wong Man Tat v Chan Yuen Man, CACV 347/2007, 24/4/2008, unreported, Yuen JA at para 34 expressed the view that in the absence of agreement on mutual entry and inspection for tests to be done, it is always open to a party to apply to court to authorize entry and inspection under Order 29 of the Rules of the District Court.
21. Deputy High Court Judge Woo in Leung Wan Ming v Lie Mey Fong, HCA 1267/2011, 10/12/2012, unreported, had made a similar order though on a different basis.
Discussion
22. There is no doubt that Flat 23B was affected by water seepage. In law, there is no presumption that the source of the water seepage must be coming from the flat immediately above: see the speech of Leong, JA (as he then was) in 張秀玲對鄭禮莊, CACV 268/1998, 9/4/1999, unreported, at p9.
23. In order to find out the source of the water seepage, tests are required to be carried out. Such tests should not be limited to Roof B only because both Roof A and Roof B shared the same waterproofing membrane and water has the characteristics of permeating through cracks in the concrete slab, however small they are.
24. In the present case, the plaintiff has already conducted tests on Roof B which yielded a negative result. I note that the defendants have alleged that Baily was fabricating evidence. However, as can be seen from the documents filed by the defendants, they are adopting a defensive approach and made all sorts of accusation against the plaintiff and Baily. In the absence of concrete evidence, I see no basis of doubting Baily's conclusion.
25. In the circumstances of this case, I accept that in order to find out the source of the water seepage, tests should be conducted on Roof A as well. Indeed, it did not follow that Roof A is the source of the water seepage as the tests so conducted might yield negative result.
26. For the foregoing reasons, I am satisfied that the plaintiff is entitled to an order under s47D of DCO.
Order
27. Accordingly, I order that the 1st, 2nd and 3rd defendants do allow the plaintiff, through his authorized representatives and building surveyor, to inspect Flat 23A and Roof A and to carry out:-
(a) colour water ponding test to the floor of Roof A; and
(b) colour water test to drainage outlet of Roof A.
in accordance with methodology attached to the originating summons in these proceedings and to take photographs and notes in relation thereto.
28. I also give the parties liberty to apply.
Costs
29. I make an Order nisi that the defendants shall pay the plaintiff costs of these proceedings, to be taxed if not agreed.
30. In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.
Interpretation of this judgment
31. I understand that the defendants are not well-versed with English. I direct that the defendants may request that this judgment be interpreted to them orally by a court interpreter.
| |
( Brian Mak ) |
| |
Deputy District Judge |
Miss F Chan, of Boase, Cohen & Collins, for the applicant
The 1st, 2nd and 3rd defendants were not represented and were acting in person.
|