Ling Leung Kit Hing and Another v. Worth Russell James and Others

CACV 35/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 35 OF 2016

(ON APPEAL FROM HCA NO 8 OF 2015)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Reasons for Judgment of the Court) :

Introduction

1.The plaintiffs are the owners of Shop 12, Ground Floor, Ka Wai Building, Nos. 146-166 Java Road, North Point, Hong Kong (“the Building”).

2.The 1^st to 3^rd defendants are the respective owners of Flat B1, Flat B2 and Flat B3, 1^st Floor of the Building.  Each of the defendants’ property consists of a covered part together with a flat roof.  The roofs of the defendants’ properties adjoin each other and form a continuous roof (“the Roof”) immediately above the plaintiffs’ property and other units at the Ground Floor and common parts at the Ground Floor of the Building.  Between the Roof and the Ground Floor there is a continuous water-proofing membrane (“the Membrane”).

3.The 4^th defendant is the Incorporated Owners of the Building responsible for maintenance of the common parts of the Building.

4.The plaintiffs’ claims against the defendants are based on their allegations that water seeped from the properties situated on the 1^st Floor onto their property on the Ground Floor and that the defendants had failed to rectify the problems.

5.By an order dated 17 September 2015, Master Chow struck out the plaintiffs’ statement of claim against the 1^st defendant.  The plaintiffs’ appeal was heard by Deputy High Court Judge Le Pichon on 25 January 2016.  The plaintiffs sought to amend the statement of claim in terms of the proposed amendments (“Proposed Amendments”), which was refused by the learned Judge.  She then dismissed the plaintiffs’ appeal.

6.The plaintiffs appealed to this Court.  On 10 August 2016, after hearing counsel, we dismissed the plaintiffs’ appeal with costs.  These are the reasons for our judgment.

The pleas in the SOC

7.In the statement of claim dated 31 December 2014 (“SOC”), the plaintiffs pleaded that the Roof, the Membrane and the external face of the parapet surrounding the Roof are common parts of the Building (§7).  At least since April 2011 when it rained, water coming partly from the external face of the parapet of the Roof had been seeping through the defective Membrane down to the plaintiffs’ property (§8).  There is also a plea of water seepage from the joints of the exposed part of the sewer pipe running through the flat roof slab of Flat B2 into the ceiling of the plaintiffs’ property (§§9-11).  The plaintiffs pleaded that the defendants failed to respond to the plaintiffs’ repeated requests to rectify the Membrane and the external face of the parapet and the exposed part of the sewer waste pipe, causing them to suffer loss and damage.

The Judge’s decision

8.Before the Judge, Mr Simon Lam, counsel for the plaintiffs, confirmed with her that insofar as the 1^st defendant was concerned, only the pleas in relation to the Membrane were relevant.  Mr Hughes for the 1^st defendant submitted that the SOC must be struck out as the plaintiffs did not have any standing to bring a claim against the 1^st defendant in relation to the Membrane which is a common part of the Building.  He relied on section 16 of the Building Management Ordinance, Cap 344 and See Wah Fan v IO of Ki Tat Garden (Phase I) [2003] 3 HKLRD 1.

9.The Judge agreed with Mr Hughes. She said at [17] of her Reasons for Decision :

“ It is clear beyond peradventure that on the pleading as it stands, the plaintiffs have not shown any locus standi to sue D1 in relation to any defect or deficiency in the [Membrane] (which as pleaded falls strictly within the common parts) by reason of section 16 of BMO.”

10.The plaintiffs then sought leave to amend by way of the Proposed Amendments as shown in italics and underlined as follows :

“ 2. The 1^st defendant is the owner of the property at Flat B1, 1/F, Block B of the Building. The property consists of a covered part together with a flat roof. The flat roof together with the covered part, are within the exclusion (sic) possession and enjoyment of the 1^st defendant.

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7. Between the Roof and the ground floor, there is a continuous water-proofing membrane. The said membrane and the external face of the parapet surrounding the Roof are common parts of the Building. Alternatively, the said membrane is not common part of the Building and is part of the properties of the 1^st, 2^nd and 3^rd Defendants for which the 1^st, 2^nd and 3^rd Defendants are responsible to maintain and keep at good conditions while the external face of the parapet is common part of the Building.

8. At least since April 2011 water, partly come from the external face of the parapet of the Roof during raining, has been seeping through the defective waterproofing membrane under the Roof down to the Property of the Plaintiffs, from the properties of the 1^st, 2^nd and 3^rd Defendants. The rest of the water has been seeping through the membrane comes from the defective pipes in the properties of the 1^st, 2^nd and 3^rd Defendants.

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12.  Despite demand, the 1^st, 2^nd, 3^rd and ^4th Defendants still failed to respond to the request of the Plaintiffs to rectify the said waterproofing membrane, the external face of the parapet of the Roof and the Exposed Part of the sewer waste pipe or to stop water from seeping into the Plaintiff’s property from the properties of the 1 ^st , 2^nd and 3^rd Defendants and the Plaintiff has thus incurred loss and sustained damage.

13A.   The said water seepage as set out in paragraph 8 above constitute a nuisance. Further or alternatively, the said water seepage is caused by the negligence of the 1^st, 2^nd, 3^rd and 4^th Defendants.

Particulars of negligence

(i)   Failing to rectify the defective waterproofing membrane (1^st to 3^rd Defendant, alternatively the 4^th Defendant)

(ii)   Failing to rectify the defective Exposed Part (4^th Defendant);

(iii)   Failing to stop water from seeping from their properties down to the plaintiff’s property (1^st to 3^rd Defendant).

(iv)   Failing to rectify the defective pipes on their properties (1^st to 3^rd Defendant).”

11.The Judge was not impressed by the Proposed Amendments.  She said :

“ 24. Mr Lam submitted that the court’s power to strike out under Order 18, rule 19 should only be used in plain and obvious cases. Even a serious want of particularity may not justify striking out if the defect can be remedied and is not the result of a blatant disregard of court orders. I need only mention the following specific matters emerging from the proposed amendments.

25. It is nowhere stated in the proposed amendments that the Roof membrane has been designated in any instrument registered at Land Registry as being for the exclusive use, occupation or enjoyment by D1. The absence of any factual basis for the proposed amendment is fatal, quite apart from the fact that the proposed amendments to §§2 and 7 are directly contradictory to what has been pleaded in §5 of the statement of claim. Further, it is also directly contrary to Mr Lam’s oral submission to the court shortly before the adjournment mentioned when he stated categorically that “the duty to repair the membrane is the duty of D4”. He cannot have it both ways.

26. In any case, the membrane is situated underneath D1’s property. There is no factual basis pleaded that supports the assertion that the membrane forms part of D1’s property.

27. Mr Hughes submitted (and I agree) that the allegation that (part of) the water seepage is from D1’s property is pure speculation with no factual underpinning.

28. Similarly, the amendments to §§8 and 12 have no factual underpinning to support the allegation that seepage has been caused by the wrongful acts and/or omissions of D1. It is not enough to plead seepage in the abstract: see Cosmos[1] at §90 where it is stated:

“ 90. It is trite that water seepage is a form of nuisance. However, it is not uncommon for water seepage to occur in multi-story buildings in Hong Kong. There can be many different causes of water seepage. There is no presumption that water must necessarily leak from the flat above to the flat below.”

29.   The allegation contained in §8 of the proposed amendments relating to “defective pipes” also has no factual basis and is nothing more than pure speculation on the part of the plaintiffs.”

12.In conclusion, the Judge said that the Proposed Amendments did not raise any arguable cause of action against the 1^st defendant and must be struck out.

Discussion

13.As the SOC stands, the Membrane is pleaded as a common part of the Building, which falls within the exclusive purview of the 4^th defendant.  The plaintiffs simply have no standing to sue the 1^st defendant by reason of section 16 of the BMO as explained in See Wah Fan v IO of Ki Tat Garden (Phase I), supra.  Mr McCoy, SC, appearing for the plaintiffs before us, fairly accepted that the SOC is liable to be struck out against the 1^st defendant.

14.What is left is whether the Judge was correct in refusing the Proposed Amendments.

15.By way of the Proposed Amendments, the plaintiffs first pleaded the alternative case that the Membrane is not common part of the Building and is part of the properties of the 1^st to 3^rd defendants for which they are responsible to maintain and keep at good conditions (§7).  Mr McCoy submitted that whether the Membrane is a common part is a question of fact to be determined by expert evidence at trial.  Although it is inconsistent with the earlier plea that the Membrane is a common part, the plaintiffs are entitled to plead it under Order 18, rule 12A of the Rules of the High Court, Cap 4A.

16.However, under Order 18, rule 12A(a), a party may only make in a pleading an allegation of fact which is inconsistent with another allegation of fact in the same pleading if the party has reasonable grounds for so doing.  Mr McCoy very readily accepted that no reasonable grounds for the plaintiffs to plead the alternative case that the Membrane is not common part of the Building but is part of the 1^st defendants’ property, either by way of pleadings or otherwise, had been advanced before the Judge.  Absent such reasonable grounds as a prerequisite, the plaintiffs’ reliance on Order 18, rule 12A is misplaced.

17.The Proposed Amendments next raised the allegation in §§8 and 12 that water has been seeping from the properties of the 1^st, 2^nd and 3^rd defendants to the plaintiffs’ property and that such water seepage constituted a nuisance or alternatively negligence on the part of the defendants (§13).  Mr McCoy submitted that two sources of water seepage water were pleaded.  One was the Membrane and external face of the parapet of the Roof.  The other was the 1^st defendant’s property from where water first seeped to the common parts below and then through those common parts onto the plaintiffs’ property.  Such water seepage from the 1^st defendant’s property is actionable as nuisance by the plaintiffs against the 1^st defendant.  He cited Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84 and Nobilo v Waitemata County [1961] NZLR 1064 in support.

18.The difficulty with this plea of nuisance/negligence is that it is too broad and too vague, lacking particulars in support of the allegation that water seepage emanated from the 1^st defendant’s property.  That evidently troubled the Judge.  Although she had given ample opportunity to Mr Lam, he failed to give the necessary particulars to support the plea.  Absent such essential particulars in support of a very late application to amend in order to salvage the SOC, which was liable to be struck out, the Judge was perfectly entitled to refuse the amendment.  We cannot see any proper basis for us to disturb her discretion on appeal.

19.The third matter raised by the Proposed Amendments concerned the defective pipes in the 1^st defendant’s property (last sentence in §8).  Mr McCoy no longer pursued that allegation before us.

Conclusion

20.For the above reasons, the plaintiffs’ appeal must fail. We therefore dismissed it with costs to the 1^st defendant, to be taxed on a party and party basis if not agreed.

Mr Gerard McCoy, SC and Mr Kim J McCoy, instructed by Henry Lam & Associates, for the plaintiffs (appellants)

Mr Sebastian Hughes, instructed by Munros, for the 1^st defendant (respondent)