Case Document

100%Judiciary

DCCJ 4093/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4093 OF 2002

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BETWEEN

	KUNG SHING INVESTMENT LIMITED	Plaintiff
	and
	THE SUNBEAM MANUFACTURING COMPANY LIMITED	1^st Defendant
	THE INCORPORATED OWNERS OF SUNPEACE COURT	2^nd Defendant

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Coram : His Honour Judge Chow in Court

Date of hearing : 14^th October 2004

Date of handing down Judgment : 28^th October 2004

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J U D G M E N T

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1.On 26^th August 2004, I made an order nisi that the Plaintiff was to pay the 1^st Defendant costs of these proceedings (with Certificate for Counsel) to be taxed, if not agreed. The 2^nd Defendant is to pay the Plaintiff the costs of these proceedings (with Certificate for Counsel), to be taxed, if not agreed. Now the Plaintiff applies to me to vary the order.

2.On 4^th July 2002, the Plaintiff took out the present action against the 1^st Defendant. On 7^th July 2003 the Court granted leave to the Plaintiff to amend the Statement of Claim and to join the 2^nd Defendant as a party.

3.The main issue is : who is responsible for maintaining the defective waterproofing layer? This turns on whether the waterproofing layer is a common part of the Building (Sunpeace Court) in question. On the roof of the Building there are various common parts. There is an analysis in this regard in Paragraph 4 of the Judgement handed down on 26^th August 2004.

4.It is not difficult at all to decide whether a particular place or area is a common part of the Building. This can be achieved by referring to the relevant clauses of the Deed of Mutual Covenant and/or to the relevant provisions of the Building Management Ordinance, Cap. 344 (“the Ordinance”).

5.In the Plaintiff’s expert report, it is stated, “………we are of the opinion that the water leakage problem is caused by the defective waterproofing system of flat roof, whose is located above subject flat.” Is the waterproofing layer installed for the use and benefit of all the owners of the Building? The decision of the Lands Tribunal in 梁有勝 v 馮源及其他人(LDBM 249/2000), regarding waterproofing layer, is applicable to the present case. In that case, the Deputy Judge said :

“48. 不過，申請人所針對的並不是天台的一般維修，而是天台防水層的維修。該大廈的天台防水層應該是分佈整個天台，包括第三至第五答辯人所擁有的物業之內。本席認為天台防水層亦是公用部份，因為防水層絕不會是為該天台單位而是為整幢大廈而設的。”

The waterproofing layer as a whole is therefore a common facility of the Building. This judgement of this case was delivered on 16^th July 2002, almost one year before the Plaintiff joined the 2^nd Defendant as a party in this action. When this judgment is considered, it would immediately be clear that the 1^st Defendant should not be sued.

6.Section 2 of the Ordinance defines “common parts” as :-

(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

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

7.Under paragraph 3 of the First Schedule, the common parts of a building include the roofs. Being a part and parcel of the layers of the roof, the waterproofing system must be a common part of the Building. So far as its function is concerned, it is also a common part of the Building. That being the case, the Plaintiff, being represented and advised by its legal representative, simply should not have sued the 1^st Defendant. It should have sued the 2^nd Defendant for failing to discharge its duty under section 18 of the Ordinance. That is a simple decision to be made. The Plaintiff’s legal representative only has to make some research or give some thought in this direction, and they should have no difficulty at all in deciding who should be the proper defendant.

8.I find no reason to change the order nisi. I therefore make it absolute.

Costs

9.I order that the costs relating to this hearing be costs in the cause.