WAN YAU KAN v. HO CHEONG WAH AND ANOTHER

1992, No.A4097

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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D E C I S I O N

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1. The plaintiff is the registered owner of Room 1804 Fok Lam House, Kwong Lam Court, Shatin. The defendants are the registered owners of Room 1904 which is immediately above the plaintiff's flat. Both properties are held under assignments from the Hong Kong Housing Authority (the Housing Authority) under the Home Ownership Scheme. Accordingly, the parties are subject to and are entitled to the benefits of the covenants, terms and conditions of the Deed of Mutual Covenant with the Housing Authority.

2. By the Deed of Mutual Covenant, the management of the estate vests in the Housing Authority and includes provisions inter alia for the repair of the main structure and to keep in good repair and condition water pumps, pipes, sewers, drains, etc.

3. Since some time in 1991, the exact date is not set out in the pleading, the plaintiff has complained about water leaking into his flat from the defendants' flat. Complaints were made by the plaintiff to the Housing Authority and an inspection was made during which certain tests were carried out. Inspections have also been carried out on behalf of the plaintiff and the defendants but neither report is conclusive so that the steps required to remedy the situation have not been addressed.

4. For the plaintiff, Mr Stanley, the Technical Director of Infrascan (HK) Limited, in the conclusions to his report of the 11th May 1992 states -

"Water is penetrating the ceiling of flat 1804 as a direct result of problems in the bathroom of flat 1904. The water is leaking from between cracked tiles at the end of the bath and the mastic edge seal surrounding the bath. Additionally water is leaking from the areas of the washing machine in flat 1904. This is thought to be from a loose fitting washing machine drain pipe. Water is leaking from here into the cupboard beneath the cooker and also around the floor drain."

5. The defendants' report has been obtained from Vigers Hong Kong Ltd. and is dated the 28th September 1992. The conclusions read as follows -

"1. At the time of inspection, the area inside the bathroom of unit 1804 around the pipeworks going through slab are in dry condition. No water penetration is noted.

2. Water is leaked from the junction of the drain pipe connecting the sink and washing machine in 1904 kitchen. This could be the main cause of the dampness to the ceiling of the same location below.

3. During the inspection, all the sanitary fittings of 1904 are not being used, i.e. no foul water is coming from the unit 1904 and discharge to the main vertical drain pipe. In addition, the surface of the floor area around the main drain of 1904 inside kitchen is in dry condition. Therefore, water running down inside the pipe at the time of inspection is directly coming from the floor above 1904.

4. The water penetration around this common drain pipe to the ceiling of unit 1804 is therefore sourced from the units above 1904, but not solely coming from unit 1904.

5. The foul water inside this PVC common drain pipe may leak through the defective portion of such pipe inside the floor slab between unit 1804 and 1904.

6. It is necessary to carry out further investigation including opening up portion of the area around the main drain pipe at floor level to identify the exact location of the leaking part."

6. It would seem that the Housing Authority would be responsible for remedying any defect if the cause is covered by the covenants and conditions set out in the Deed of Mutual Covenant. However, until the ultimate cause of the leak has been discovered, and the work that is required to remedy the position is known, the trial of this action today is premature. Indeed, according to Mr Yau, counsel for the plaintiff, it appears that during the last two or three months there has been no leakage. Nevertheless the plaintiff wishes the matter to be properly investigated before any further steps are taken.

7. From a practical point of view a further inspection will be necessary to find out the cause of the leak which may, according to the defendants' expert, involve the inspection of other flats in the block. The officers of the Housing Authority should be informed that they must give proper attention to this matter and ensure that the covenants and conditions in the Deed of Mutual Covenant are complied with. Meanwhile, the parties may well wish to consider, if the case is to proceed, whether the Housing Authority should be made a party.

8. Quite obviously, when directions were given in this matter, an order should have been made for the experts' reports to be exchanged and agreed if possible. The reports, according to the Court's checklist reveal that the reports were exchanged but no steps appear to have been taken to see whether they could be agreed. However, this is now academic because a further investigation needs to be made in any event. Although Mr Yau has suggested that the experts make a further inspection and a report to be agreed if possible, this does seem to me to be an unncessary expense if the ultimate responsibility is that of the Housing Authority. I would therefore commend to the parties that they approach the Housing Authority in the first instance to ascertain whether that body will carry out its duties by carrying out a proper inspection and arrange to remedy the nuisance. On the other hand if the parties in the meantime wish to instruct their own experts to make a further inspection and report, that is a matter which I leave to be determined by them.

9. I consider that it will be appropriate for this action to be adjourned sine die with liberty to restore with costs reserved and I shall grant the parties liberty to apply.