The Incorporated Owners of Gordon Terrace v. Shen Yang Lien and Another
Read the full judgment text of LDBM 291/2011 on BabelCite. This Lands Tribunal judgment was delivered on 27 August 2014.
1. This case is about the water seepage problem at the respondents’ flat. At issue is what was the cause of the seepage and who is responsible to repair the waterproofing layer on the roof above the flat.
Cited by 1 case · Cites 3 cases
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LDBM 291/2011 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO 291 OF 2011 -------------------- BETWEEN
-------------------- Before : His Honour Judge Ko, Presiding Officer of the Lands Tribunal Dates of Hearing : 30 April, 2, 3, 6 & 8 May, 6, 7 & 21 June, 21 November 2013 and 8 January 2014 Date of Judgment : 27 August 2014 --------------------------------------- JUDGMENT --------------------------------------- 1.This case is about the water seepage problem at the respondents’ flat. At issue is what was the cause of the seepage and who is responsible to repair the waterproofing layer on the roof above the flat. A. Background 2.Gordon Terrace at Nos 4-8 Carmel Road, Stanley was built in 1964. The estate comprises three detached tenement buildings known respectively as Nos 4-4A, 6-6A and 8-8A Gordon Terrace. Each building has three floors (namely, G/F, 1/F and 2/F) and there are two flats on each floor (eg 2/F of No 6 and 2/F of No 6A). Each building is served by a central staircase leading from the G/F to the roof. As the staircase rises above the roof level, it is capped by a staircase hood. 3.The applicant is the Incorporated Owners of Gordon Terrace. They have engaged a professional manager, Burwell Properties Management Company Limited (“Burwell”), to manage the estate. 4.The respondents own 2/F of No 6A Gordon Terrace. According to the assignment respecting their flat, they also have “the sole and exclusive right and privilege to hold use occupy and enjoy … the Roof of the said 6A Gordon Terrace Carmel Road …” directly above their flat (“6A Flat Roof”). 5.It is common ground that the estate is subject to, inter alia, a deed of mutual covenants dated 29 November 1978 (“the DMC”).[1]The DMC relevantly provides (at clause 12(h)(ii)) that:
6.The respondents have been behind in payment of management fees and have failed to pay their share of contribution towards the cost of maintaining the communal facilities at the estate as follows:
7.By this action, the applicant claims against the respondents for the above arrears plus interests and collection charge.[2] 8.In addition, the applicant complains (at §25 of the Re-Re-Amended Notice of Application) that:
9.It is the applicant’s case that the respondents have been in breach of regulation 17 of the Building (Construction) Regulations (“Cap 123B”), regulation 3A of the Building (Planning) Regulations (“Cap 123F”) and the DMC in placing “additional building and construction materials” on 6A Flat Roof. The applicant applies for an injunction to oblige the respondents to remove those materials and to reinstate the affected areas.[3] 10.The respondents all along admit the monetary claim of the applicant. At the trial, they also concede that they have constructed an elevated roof on top of the original roof on 6A Flat Roof (“the Elevated Roof”) which is the “additional building and construction materials” complained of by the applicant. 11.However, they complain about water seepage in their flat alleging (at §36 of the Amended Notice of Opposition and Counterclaim) that:
“[T]he aforementioned common parts of the Estate” is a reference to (i) the waterproofing system at the common staircase, the staircase wall and the concrete curb at the sides of the staircase hood, (ii) floor tiling and the waterproofing system on 6A Flat Roof, (iii) the external wall tiling system at the parapet wall of the roof and (iv) the old waterproofing system on the roof.[4] 12.They counterclaim for the following damages and seek a set-off against the monetary claim of the applicant:[5]
B. The Trial 13.The applicant is represented by Ms Catherine Wong, counsel, and the respondents by Ms Janine Cheung, counsel, at the trial. Through their effort, the issues that require determination have become more focused and refined. 14.In her closing submission, Ms Cheung confirms that the respondents admit liability over the applicant’s monetary claim and concedes that the Elevated Roof was constructed in contravention of Cap 123B, Cap 123F and the DMC as alleged by the applicant. The respondents are agreeable to remove the Elevated Roof and to reinstate the affected areas but the parties have been unable to agree on the terms of the injunction. This is because, as Ms Cheung puts it, “if the Respondent establishes that [the Elevated Roof] was installed to mitigate the damage caused by the leakage, and if the Respondent successfully establishes that the Applicant is liable to repair the original waterproofing layer, the costs of repair should be borne by the Applicant.” 15.Counsel have jointly prepared a list detailing the issues that require determination. These issues can be summarized under the following headings:[8]
I shall deal with these issues in turn with reference to the evidence. C. The evidence 16.The following witnesses testified for the applicant:
17.In addition, the applicant called Mr Ngan Shiu-kin (“Mr Ngan”) to offer rebuttal evidence without objection from the respondents. [9] 18.I am given to understand that the respondents are an elderly couple residing in Taiwan. They have asked Mr Wang Kah-Sze (“Mr Wang”) to look after their flat. Aside from Mr Wang, the respondents called Mr Lawrence Lai (“Mr Lai”) of Vigers Building Consultancy Limited (“Vigers”) to offer expert evidence. 19.The witnesses (both factual and expert) generally adopted their statement or report and were subjected to cross-examination. 20.In my view, I need to take the testimony of the factual witnesses with a pinch of salt. This is because:
21.With the above caveats, I find the factual witnesses to be generally honest although I do not necessarily accept their evidence at face value. I attribute any inaccuracy in their evidence to human frailty to recollect clearly after a while. I prefer to rely on the contemporaneous evidence, insofar as it is available, to find out what really happened. 22.Turning to the expert evidence, there is no challenge to the expertise of the experts.
23.The expert evidence generally covers the water seepage problem since 2008. As it turns out, the contemporaneous evidence (especially those prior to 2008) prove to be pivotal to the resolution of this dispute. Notwithstanding their limitations (noted above), they offer a valuable glimpse of the circumstances at the material time. Sadly in my view, the parties have not paid sufficient attention to the contemporaneous evidence. Some of the documents, such as those from the architect (Vincent Lai & Partners (HK) Ltd, “VLP”) and the contractor (Man Shing & Co, “MSC”) for the major renovation in 2006, are difficult to understand. The difficulty is compounded by the absence of Mr Woo or anyone from VLP or MSC at trial to explain the documents. D. What was the cause of the water seepage at the respondents’ flat? 24.It is common ground that there is a layer of waterproofing material on the original roof (as opposed to the Elevated Roof) on 6A Flat Roof. This is how Ms Cheung describes the waterproofing layer in her closing submission:
25.According to Ms Cheung, seepage occurred primarily in two locations inside the respondents’ flat:
For identification purposes, I shall call the first location “the Dining Area” and the second location “Other Area”. 26.In the end, both counsel accept that the original waterproofing layer has breached and water seeped down from the roof causing the damage in both locations. 27.According to the respondents:
28.The applicant takes a slightly different view. Its case is that the whole seepage problem (covering both locations) was due to the failure of the waterproofing layer. The applicant disagrees that leakage from the staircase hood had caused the damage in the Dining Area or that the damage in Other Area was caused by water that had seeped in through the external walls. 29.Thus, the dispute centers around:
30.The following chronology, mostly taken from contemporaneous documents, provides a context for the ensuing discussion:
D1. Seepage in the Dining Area 31.According to Ms Cheung:
32.Water damage in the Dining Area can be seen clearly in the photographs taken by Vigers in 2008 and 2010.
33.Mr Yau was not allowed access to the respondents’ flat during his inspection on 16 June 2012. 34.When Mr Yau and Mr Lai conducted their joint inspection on 19 March 2013, Mr Yau observed that:
Mr Lai disagreed to the extent that he “visually found signs of water seepage at the interior wall surfaces above windows of Bedroom 1 and 3”. Mr Lai did not otherwise challenge Mr Yau’s observations concerning the Dining Area. I take it that the experts are on common ground that no seepage was found in the Dining Area during their inspection. This is confirmed by the photographs at Bundle 660-662. 35.As this is more or less common ground, I accept that there was water seepage in the Dining Area as documented in 2008 and 2010. 36.Given the respondents’ concession at trial, both sides now accept that the failure of the waterproofing layer on 6A Flat Roof was a cause of the water damage in the Dining Area. 37.Nonetheless, the respondents insist that the seepage problem was primarily caused by the leakage at the staircase hood. Their case appears to be based on:[21]
38.According to Vigers 2008 Report, visual inspection carried out on 18 July 2008 revealed that: (i) the rooftop of the staircase hood was coated with a grey-coloured coating; and (ii) the concrete curbs at both sides of the rooftop of the staircase hood were discontinued at the lower horizontal surface of the staircase hood. The report went on to state that:
39.The applicant does not dispute that the staircase hood was leaking at that time. Ms Cheung appears to think that [t]here is no dispute that there has been leakage of water from the staircase hood area into the interior of the [respondents’ flat] since 2005.” (my emphasis) This is not entirely correct as (i) the applicant disputes whether leakage from the staircase hood could have caused the water damage in the Dining Area; and (ii) Vigers reported seepage in the Dining Area in 2010 but did not attribute that to leakage from the staircase hood, and no seepage was reported in the Dining Area during the joint inspection in 2013. 40.The applicant challenges whether water from the staircase hood could have entered the respondents’ flat through the party wall adjacent to the Dining Area. Mr Yau illustrated by means of Exhibits A2 and A3 that the party wall sits on an edge beam at the ceiling of the respondents’ flat. He said that water travelling down the party wall would have to seep through the edge beam in order to come inside the flat. In Mr Yau’s experience, he has not seen water soaking through such a 9-inch thick concrete beam. 41.Vigers 2008 Report was signed by one Mr Fung who was a Chartered Building Surveyor of Vigers. Although the report recorded that Mr Fung had inspected the relevant building records and plans, there was no mentioning of the edge beam or its impact on the water seepage problem. 42.Nonetheless, Mr Lai adopted the conclusion of the report and theorized at the trial that rainwater had entered the building (i) through an opening for electrical box on the party wall above the surface of the roof and/or (ii) by reason of the failure of the waterproofing on the rooftop of the staircase hood, and in either case water travelled down the party wall to the ceiling level of the respondents’ flat. He indicated in green on Exhibit A3 the possible courses of water ingress. He explained that if water was collected or trapped between the waterproofing layer and the concrete roof slab for a period of time, it would flow through weak points or cracks in the edge beam and/or the concrete ceiling slab into the flat. He said he has encountered many prior instances where water had flowed underneath the waterproofing layer of the roof. He disagreed with Mr Yau and opined that water could indeed seep through a 9-inch concrete edge beam. 43.I begin by commenting on the respondents’ concession. The respondents have lately conceded that breach of the waterproofing layer on 6A Flat Roof was an effective cause for the water damage in the Dining Area. 44.In my view, the concession was fairly made having regard to the following evidence:
45.However, the concession has effectively destroyed the thrust of Vigers 2008 Report. 46.One of the crucial findings of the report was (at §5.2A(1)) that:
So, water had to enter through another channel and the report identified the party wall as the conduit. The concession has contradicted the clear finding of Vigers and provides an explanation for the water damage inside the respondents’ flat. 47.The respondents have offered nothing further in terms of evidence to confirm the existence of a second source. Mr Lai did not perform any test to substantiate his theory. 48.More importantly, I have some doubts about Mr Lai’s theory. It took a lot of water to produce the kind of damage shown in the photographs in Vigers 2008 Report. Mr Lai suggested that water had come (i) from an opening on the party wall above the surface of the roof; and/or (ii) through the defective waterproofing of the horizontal surface of the staircase hood. 49.On the face of it, Mr Lai’s first suggestion is supported by Burwell’s letter dated 24 August 2009 in which it was stated “the water seepage problem due to the revised of the electricity circuits”. Prior to that, MSC had quoted Burwell to say that “根據管理公司修補樓梯電線過牆蘇位，發現有大量滲水現象” (see MSC’s letter dated 6 August 2009). However, neither MSC nor VLP attributed that to be a cause after the open-up inspection on 7 August 2009. 50.More importantly, I note from Exhibit A3 and photographs 2 and 3 in Vigers 2008 Report[22] that the lower horizontal surface of the staircase hood actually protrudes outward forming a cover over the vertical surface of the party wall. The cover should enable water to flow off the staircase hood onto the roof and away from the party wall. Whilst I do not rule out the possibility illustrated by Mr Lai on Exhibit A3 that water may drip around the entire surface of the cover (even its underside), the cover should channel most of the water away from the surface of the party wall especially during heavy downpour. It is rather unlikely that so much water could have entered the respondents’ flat through this covered opening on the vertical surface of the party wall. 51.Turning to the horizontal surface of the staircase hood, whilst the parties agree that it was leaking at the time, there was no attempt to identify where the/those leak(s) was/were. It appears from photographs 5-8 in Vigers 2008 Report that all three walls surrounding the staircase (including the party wall to the right) had signs of water seepage. The paints on the walls in the middle and to the left had clearly peeled off (see photographs 6[23] and 7) but peeling paint was not too apparent on the party wall (see photograph 8[24]). That suggests that the other two walls were more affected by water seepage from the staircase hood than the party wall. Water generally flows from a high point to a low point and the walls around the common staircase are porous. It is unlikely that water that had seeped into the middle and the left walls would have traveled sideways onto the party wall to the right. It took a lot of water to produce the damage documented in Vigers 2008 Report. However, there was no obvious sign of water collecting or accumulating on the party wall.[25] If so much water had collected or accumulated at the ceiling, it would have flowed down the suspended ceiling and lights inside the flat but that was not apparent from photograph 10.[26] The argument that the applicant might have admitted liability does not advance the respondents’ cause any further. I am not convinced by Mr Lai’s theory. 52.Before leaving this area, I should briefly comment on (i) the discontinued concrete curb and (ii) the missing 2.5 inch cast iron drain pipe which featured prominently in Mr Lai’s evidence. In my view, they do not quite point to a second source. 53.The point of the discontinued curb, as explained in §6.0 of Vigers 2008 Report, was that it would allow “large amount of rainwater flowing from the staircase hood to the floor surfaces of roof level of the premises and possibly caused the accumulation of rainwater at the roof.” Likewise, Mr Lai explained that the purpose of the drain pipe was “to channel water onto the roof (where it would flow along the roof gradient towards the watercourse at the rear of the roof where there were drainage pipes).”[27] The absence of the drain pipe would mean that water would flow directly onto the roof surface. 54.If the waterproofing layer on 6A Flat Roof was functioning properly, water flowing off the staircase hood onto the roof surface would have flowed along the roof gradient to the drainage at the rear of the roof and be drained away. So, the discontinued curb and the missing drain pipe is no evidence of a second source. The effective cause of the water seepage problem was still the failure of the waterproofing layer. 55.All in all, the respondents have not convinced me that the water damage in the Dining Area was due to leakage from the staircase hood. 56.I therefore find that the damage in the Dining Area as documented in 2008 and 2010 was caused by the failure of the waterproofing layer on 6A Flat Roof. D2. Seepage in Other Area 57.Vigers 2008 Report only reported damage in the Dining Area. There was no mentioning of other damage inside the respondents’ flat. Seepage inside the master bedroom was first noted in Burwell’s letter dated 24 August 2009. Seepage in Other Area was also reported in 2010 (in Vigers 2010 Report and Vigers Infrared Report) and 2013 (in the Joint Report). 58.Both experts agree that seepage in Other Area was also due to failure of the waterproofing layer on 6A Flat Roof. What divides them is whether there was a second cause as contended by the respondents, namely, that water had also penetrated through the external wall tiles of the building particularly at the parapet walls. 59.The respondents rely on the findings in Vigers 2010 Report and Vigers Infrared Report for their contention. 60.In terms of Vigers 2010 Report, visual inspection on 4 March 2010 revealed amongst other defects: [28]
Vigers then offered this explanation:
61.Infra-red thermographic inspection conducted on 18 April 2010 identified some debonded and water-trapped areas on the external walls.[29] 62.Based on the above, Mr Lai opined that, “migration of rainwater from the defective areas of the external side of the parapet wall seeping via the substrate of the external wall downward to the interior of the Premises causing sign of water seepage at the junction of ceiling and wall or ceiling of the interior of the Premises.” He added that, “lack of proper external wall maintenance to the defective external wall tiling system exaggerated the problem of water leakage to the interior ceiling and wall surfaces adjacent to the external wall.” 63.Mr Yau’s reading of the reports was that:
64.Mr Lai disagreed and said that:
65.I am not surprised that there are cracks on the parapet walls. VLP reported cracks on the external walls of all buildings back in 2005. At that time, VLP warned that if no remedial action was taken, the plaster on the parapet walls might fall off causing personal injury and/or property damage. That prompted the owners to undertake the major renovation in 2006. 66.What was done in terms of the major renovation was to cover the external walls with a layer of new wall tiles with metal mesh and cement and sand rendering. It is apparent from the photographs in evidence that the protective layer was extended to the coping of the parapet walls[30] and covered the external surface of the party walls.[31] Mr Wong explained that the applicant had decided to cover the party walls as well to prevent water from seeping into the common staircase.[32] So, this new protective layer should have some water resistant function. This was confirmed by Burwell’s letter dated 5 September 2008[33] and the captions Mr Yau inserted on his photographs 7(a)-(c) in the Joint Report.[34] 67.Mr Wong also explained that since the applicant had taken the view that it was the responsibility of the 2/F owners to maintain the parapet walls on their flat roof, nothing was done in 2006 to repair the cracks in the parapet walls. That explains why cracks could still be observed during the open-up inspection in August 2009. 68.I understand from the experts that the parapet walls are constructed of bricks and are porous. As such, water can indeed penetrate the parapet walls even though they may be in pristine condition (ie without cracks). Since 2006, the external walls (and the coping of the parapet walls) have been covered by a protective layer which is water resistant. What is more pertinent is whether water had broken through this protective layer of wall tiles, metal mesh and cement and sand rendering. 69.As I have noted above, the contemporaneous evidence from August 2009 is confusing. I can only look at the photographs annexed to MSC’s report to try to appreciate the circumstances. MSC opined that the parapet wall had “cracked through” and the photographs suggested that the crack might be located below the coping of the parapet wall near the corner of the roof. Mr Ngan confirmed that the photographs depicted the location of the open-up inspection which was on the inner side of the parapet wall and no open-up inspection had been done on the external wall. Photograph 6[35] in Vigers 2010 Report captured a grayish zigzag line on the external wall running diagonally across the corner and infra-red scan no 5[36] in Vigers Infrared Report revealed a debonded area in or around that area. However, infra-red scan no 30[37] did not reveal any irregularity on the inner side of the parapet wall near that area. In my view, the evidence does not quite confirm that the parapet wall had cracked through. 70.It is true that Vigers Infrared Report has indentified some debonded areas and water-trapped areas on the external walls. However, some of these defects were located below the ceiling level of the respondents’ flat. Water could not have entered through these defects and then travelled upward to produce the damage documented. 71.The infra-red scans also revealed long strips of debonded area on the inner side of the parapet walls near the curb.[38] Unlike the external walls, the inner surface of the parapet walls is exposed below the coping and not covered by any protective layer. The defects on the inner surface of the parapet walls appear to be more extensive than those scattered around the external walls. Strangely, Mr Lai only tried to match the water damage with the defects on the external walls. I am puzzled as to how he could rule out the possibility that water had entered through the defects on the inner surface of the parapet walls. 72.I do not think one can really tell by merely looking at these infra-scans whether water had entered through any of the debonded areas and water-trapped areas identified in Vigers Infrared Report. Mr Lai has come to accept that there may be several explanations for such defects and the report did not quite specify what they were. Further tests should have to be done to determine if any of these defects would permit water to enter the building. That was not done by the respondents. On the part of the applicant, Mr Yau checked on the debonded areas on the external walls by means of a metal rod and found no irregularity. He also observed that “[t]he efflorescence of the sealant between the external wall tiles (as shown in photo A2, Appendix of Mr Lai’s statement) flowed out onto the wall tiles. It does not indicate rain water can penetrate into the interior wall of R’s premises.” 73.All in all, the respondents can only point to some cracks and efflorescence on the surface of the external walls. Bearing in mind that there is a protective layer of wall tiles, metal mesh and cement and sand rendering on the external walls, there is insufficient evidence to establish that water had in fact penetrated these materials. 74.Furthermore, I suspect that the damage around the windows might have something to do with the windows. 75.There is an invoice in evidence recording the following works at the respondents’ flat in September/October 2009:
76.Vigers discovered water damage near the windows in March/April 2010.[39] The respondents then changed the windows in the living room and the master bedroom.[40] By the time of the joint inspection in 2013, Mr Yau found:
77.Mr Lai said he “visually found signs of water seepage at the interior wall surfaces above windows of Bedroom 1 and 3.” The applicant’s photographs annexed to the Joint Report clearly support Mr Yau’s observations[41] whereas the respondents’ photographs are of such a poor quality that they do not reveal any sign of seepage in the master bedroom (or Bedroom 1).[42] It does appear that the changing of the windows in the living/dining room and the master bedroom has alleviated the water seepage problem there. 78.Both experts still observed signs of seepage around the window in Bedroom 3 at the back of the respondents’ flat. This was captured by photograph 10 taken by Mr Yau.[43] It can be seen from the photograph that the respondents have retained the original brownish window in that bedroom and seepage around the window has continued. 79.Since the parties have not debated this aspect fully, I shall refrain from expressing any conclusion. The respondents may want to follow up on this if they want to rid their premises of water seepage.[44] 80.On the existing evidence, I find that the damage in Other Area was also caused by the failure of the waterproofing layer on 6A Flat Roof. D3. The importance of reading the above findings in context 81.It is important to appreciate that the above findings are based on Vigers 2008 Report, Vigers 2010 Report, Vigers Infrared Report and the Joint Report. These reports are all post-2008. 82.Whilst I accept (based on Burwell’s letter dated 20 June 2005) that there was water seepage in 2005, there is nothing for me to appreciate the circumstances prior to 2008. Mr Wang did not engage any expert at that time to investigate the seepage and/or document the damage. The earliest photographic evidence was dated June 2008.[45] 83.Given VLP’s assessment in May 2005, the seepage in 2005 might have something to do with the horizontal cracks along the parapet walls. It might also have something to do with the windows as discussed above. There is now no means of finding out the real cause of the seepage at that time. 84.Furthermore, it is Mr Wong’s evidence that the respondents had repeatedly renovated their premises over the years. Mr Wong’s evidence is not challenged by the respondents and is indeed confirmed by other evidence.
85.Consequently, one cannot rely on the photographs taken in 2008 to postulate as to the circumstances prior to that, and the water damage captured in the reports respectively dated 2008, 2010 and 2013 are not necessarily connected. 86.To be precise, I find that:
D4. What was the cause of the failure of the waterproofing layer? 87.I now come to the most pertinent question: What has caused the waterproofing layer on 6A Roof to fail? 88.Notwithstanding their initial denial,[46] the respondents have come to admit that they have installed the Elevated Roof. Mr Yau offers the following opinion on the effect of imposing the Elevated Roof on the original roof surface:
89.In her closing submission, Ms Cheung accepts that “there is some evidence that the imposition of an additional load would cause the roof slab and the Old Layer to bend or wrap to a greater degree”. However, she argues that, “the Old WP layer was ALREADY defective before the NEW WP Layer was installed in 2007”. (her emphasis) 90.But, where is the evidence that the Elevated Roof was (i) installed in 2007 and (ii) after seepage had occurred? 91.The evidence that the Elevated Roof was installed in 2007 came from Mr Wang’s oral testimony at trial. He said that it was installed after the retiling of the external walls and after the applicant had reneged on its promise to remedy the seepage problem. 92.The respondents initially denied having done anything to the roof. It was also not admitted in Mr Wang’s witness statement dated October 2012. Mr Wang only lately owned up to the respondents’ expert (Mr Lai) of having installed the Elevated Roof. This is how Mr Lai recorded his instruction in the Joint Report dated April 2013:
Even then, Mr Wang did not tell their own expert that the Elevated Roof was installed in 2007. 93.Mr Wang’s complaint letter dated 11 August 2007 made no mentioning of any work on the roof. When he was cross-examined as to how he could suddenly remember the timing, he was unable to say much. He could not tell how soon after Mr James had moved out that he embarked on such works. He could only say that he had paid a deposit to Burwell for such works. Given that the respondents had renovated the interior of their premises at about that time, the payment of the deposit may not be a reliable pointer to help Mr Wang to recall the timing of the Elevated Roof. 94.As such, the respondents’ case that the Elevated Roof was installed in 2007 remains a bare assertion without supporting evidence. It is also unreliable as Mr Wang only recalled the timing at the trial without reasonable explanation. Most importantly, there is evidence contradicting the allegation. 95.If the respondents had only been complaining about leakage from the staircase hood in correspondence between 2005 and 2009,[48] what was the incentive to construct the Elevated Roof over the entire roof in 2007? 96.Mr Wang and the respondents’ former solicitors were still pressing the applicant to resolve the seepage problem towards the end of 2007 (see the solicitors’ letter dated 14 December 2007 and Mr Wang’s letter dated 21 December 2007). There was no mentioning of any work done by the respondents themselves on the roof or any plan for such works. 97.Mr Wang claimed that he had only decided to install the Elevated Roof after the applicant had reneged on its promise to remedy the seepage problem. But Burwell was still promising the respondents that it would pressurize MSC to resolve the problem at the end of 2007 (see Burwell’s letter dated 18 December 2007). 98.Major renovation at Gordon Terrace started in October 2006. According to Mr Wong, MSC completed retiling the external walls in February 2007 and thereafter renovated the staircases. During that time, Mr Wang and the respondents’ solicitors persisted in their complaints. The applicant had instructed MSC (and VLP) to follow up. According to the contemporaneous correspondence, MSC did not stop dealing with the problem until 2009. 99.Therefore, Gordon Terrace was under renovation all through 2007. The renovation work towards the second half of 2007 concentrated on the staircases of the estate and included investigation and remedial works to address the respondents’ complaint. With all these works going on and MSC focusing on the respondents’ complaint, it is rather unlikely that the respondents could have installed the Elevated Roof without anyone noticing. Furthermore, if the respondents had only just installed the Elevated Roof themselves but failed to resolve the seepage problem, it would have been natural for them to ask their contractor to follow-up with MSC (which was on-site working on the problem) but that is not the respondents’ case. 100.I reject the respondents’ case that the Elevated Roof was installed in 2007. 101.If the respondents did not install the Elevated Roof in 2007, when did they do it? There is no direct evidence establishing the timing of such works. Mr Wong’s suggestion (in §13 of his witness statement) that the Elevated Roof was installed in the summer of 2006 is apparently without basis. Given that the respondents’ flat was let out between March 2005 and April 2007 and it is not the respondents’ case that they installed the Elevated Roof during Mr James’ tenancy, the respondents must have installed the Elevated Roof before the commencement of Mr James’ tenancy in March 2005 and I so find. 102.In my view, the finding that the respondents installed the Elevated Roof before March 2005 provides the key to unlock the mystery over the water seepage problem. 103.As Ms Cheung has recounted, the original waterproofing layer curved upward along the edges of the parapet walls to form a basin-like structure to keep water on the roof from entering the building. The imposition of the Elevated Roof, as opined by Mr Yau, has the effect of overloading the roof and cracking the waterproofing layer. 104.The Elevated Roof itself is a continuous layer covering the entire 6A Flat Roof. According to Mr Wang, it has some waterproofing function. As such, the most likely places where cracks would first develop would be along the edges of the Elevated Roof. 105.Mr Yau has noted from the photographs taken by MSC in April/May 2008 that “no waterproofing coating was laid on the edge of the parapet wall and the floor surface level of the roof”. In other words, the contractor who installed the Elevated Roof for the respondents did not bother to waterproof the edges. If cracks developed along the edges, the basin-like structure of the original waterproofing layer would breach. Water could then enter the building through the non-waterproofed edges. 106.There is indeed evidence that water had in fact entered the respondents’ flat through the edges. It is apparent from photographs 10-12 in Vigers 2008 Report[49] that water damage was most severe near the junction between the ceiling and the party wall. One can appreciate from Exhibits A2 and A3 that the party wall extends upwards onto the roof and borders with the Elevated Roof. In my view, the location of the damage is consistent with water entering through the non-waterproofed edges. The respondents’ invoices (quoted below) confirmed that there were cracks along the edges in 2009. That explains why the correspondences in 2008 and 2009 referred to the junction between the Elevated Roof and the parapet walls (eg Burwell’s letter dated 5 September 2008 and MSC’s letter dated 6 August 2009). 107.The respondents subsequently remedied such defect by applying waterproofing coating to the edges of the Elevated Roof.[50] There is an invoice dated 8 September 2009 recording the following:
There is another invoice for the following works:
108.Thereafter, Vigers’ inspection in March 2010 revealed significantly improved condition in the Dining Area and water damage was no longer localized in the vicinity of the junction between the ceiling and the party wall.[51] 109.I therefore find that the imposition of the Elevated Roof sometime before March 2005 had cracked the waterproofing layer along the edges (especially along the edge above the junction between the ceiling and the party wall) allowing water to flow down and into the respondents’ flat (and without the need to go through the edge beam) causing the damage documented in Vigers 2008 Report. 110.Water damage in 2008 was most severe at the corner because large amount of water had slanted from the staircase hood onto the roof through the discontinued curb and by reason of the missing drain pipe. That does not mean that the discontinued curb or the missing drain pipe had contributed to the water damage. But for the cracking of the waterproofing layer, water on the roof surface would have followed the gradient of the roof to the other side and drained off. 111.The respondents waterproofed the edges in 2009. However, by the time of Vigers 2010 Report “cracked tiles and signs of efflorescence at tile grout” were noted on the Elevated Roof indicating that the Elevated Roof had by then aged and become defective. The Elevated Roof must have produced further cracks in the waterproofing layer underneath. As noted above, both experts agree that the water damage documented in 2010 was caused by breach of the waterproofing layer on 6A Flat Roof. 112.Mr Wang’s remedial efforts over the years (such as changing the windows and installing plastic troughs) without removing the Elevated Roof (which continues to impose undue pressure on the waterproofing layer) and mending the original waterproofing layer (which is leaking) did not really resolve the seepage problem. Water continues to seep from the roof into the respondents’ flat as documented in the Joint Report and testified by Mr Wang. E. Is the waterproofing layer on 6A Flat Roof a “common part” of Gordon Terrace? 113.Both parties accept that the waterproofing layer on 6A Flat Roof has breached. They, however, are in dispute over who has the responsibility to repair it. 114.In her closing submission, Ms Wong advanced the following arguments:
115.In the event that I find that the waterproofing layer is a common part of Gordon Terrace, her fallback argument is that:
116.In my view, it is imperative to appreciate the important function of the waterproofing layer. It is there to keep water (eg rain) from entering the building through the roof. 117.Ms Wong tries to confine the benefit of the waterproofing layer to the flat below. She prays in aid Mr Yau’s comment that concrete should be water-resistant under normal wear and tear and argues that the concrete ceiling slab on each floor should already provide adequate protection against water seepage from above. She submits that the 2/F flats need extra protection (in terms of the waterproofing layer) because the roof is exposed to ambient temperature changes which may cause the concrete ceiling slab to crack. 118.I do not understand Mr Yau to be saying that concrete as a building material is impermeable to water. What he is saying is that concrete given its density is more water-resistant than other building materials (eg bricks) and he has not seen water permeating a 9-inch concrete beam before. In any event, it is common ground that concrete may crack and water actually seeped through the concrete roof slab into the respondents’ flat below in this case. Indeed, Ms Wong’s argument on the need for extra protection for the 2/F flats is also premised on the fact that water may percolate through cracks in the concrete ceiling slab. 119.Once water has breached the waterproofing layer and “entered” the building, it can seep through cracks and pores to other parts of the building. It is not just the flat immediately below that would be affected. That explains why the waterproofing layer has to be, according to its original design, a continuous layer covering the entire roof and not just the two flat roofs. 120.Thus viewed, the waterproofing layer serves an important function to protect the whole building from water seepage although it is partly embedded in the flat roofs belonging to individual owners. It is a separate fixture and has nothing to do with the use, occupation and enjoyment of the flat roofs. 121.Section 18(1)(a) of the BMO provides that the applicant shall maintain, inter alia, the “common parts” of the estate in a state of good and serviceable repair and clean condition. 122.Section 2 defines “common parts” to mean: (i) 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 (ii) unless so specified or designated, those parts specified in Schedule 1 of that ordinance. 123.Two items in Schedule 1 are of particular relevance:
124.In my view, the waterproofing layer falls squarely within the terms of item 11. It is a fixture situated in a flat[52] (ie the respondents’ flat roof) which is used in connection with the enjoyment of other flat or other portion of the building (namely, to protect Nos 6-6A Gordon Terrace from water seepage).[53] 125.Ms Cheung initially relied on item 10 as well. However, the particular setting of Gordon Terrace (ie detached tenement buildings) is such that the waterproofing layer of one building cannot be intended for the use and benefit of the owners in the other buildings. 126.Ms Wong tries to argue that the waterproofing layer embedded in the 6A Flat Roof had been assigned to the respondents along with the flat roof by means of the Assignment and the DMC.
127.With respect, I think Ms Wong has failed to acknowledge the important function of the waterproofing layer when construing these instruments. 128.Let me begin by examining the terms of the DMC. Ms Wong has assumed all references to “roof/Roof/ROOF” in the DMC to necessarily include the waterproofing layer. Her interpretation appears to be arbitrary. The term is actually not defined in the DMC. Ms Wong’s reasoning would pose difficulty in construing clause 4(l)(7) which provides power and authority to the Manager “[t]o repair and keep in good repair and condition the main structure, roof and fabric of the said building its equipment, apparatus, services, facilities and common areas and when necessary to replace any part or parts thereof which require replacement.” (my emphasis) 129.It is not viable to confine the responsibility of the Manager to maintain and repair the “roof” (in terms of clause 4(l)(7)) to that strip of the roof behind the staircase landing that connects the two flat roofs as well as the rooftop of the staircase hood. According to the building plans, the waterproofing layer should be a continuous layer covering the entire surface of the roof. It is impracticable to carve up the waterproofing layer and require different entities to maintain and repair different parts. As Godfrey Lam J recently explained:
130.There is no dispute as to the general principles on the interpretation of a deed of mutual covenants such as the DMC. They have been succinctly summarized by Lord Hoffmann NPJ in Jumbo King: [55]
131.Although the waterproofing layer is not expressly referred to, the DMC does make reference to it by means of its important function and its existence is implied.
132.In addition, clause 4(d) generally entrusts the Manager with the duty to repair and maintain “the common parts services and facilities” of Gordon Terrace. And clause 4(g)(v) provides that the cost of maintaining and repairing the “common areas or any part or parts thereof and all equipments facilities and amenities therein and thereon … and all the apparatus equipment and conveniences thereof” is to be shared amongst the owners. So, the cost of maintaining and repairing the waterproofing layer is catered for. 133.Thus viewed, the DMC provides a comprehensive scheme for the applicant (through Burwell) to maintain and repair the waterproofing layer on the flat roofs. In my view, a reasonable person would have distinguished between the waterproofing layer and the flat roof when construing the term “roof”. Those provisions charging the 2/F owners with the general responsibility to maintain and repair their “roof” (eg clauses 9, 12(g) and 12(h)(ii)) should refer to their flat roof and not the waterproofing layer. 134.In relation to the Assignment, Ms Wong invokes sections 2 and 16 of the Conveyancing and Property Ordinance in her bid to argue that since the waterproofing layer is attached or permanently fastened to the flat roof, it should form part of “the land” assigned to the respondents. I do not agree. 135.Section 16(1) provides that:
And the term “land” is defined in section 2 to include “things attached to land or permanently fastened to anything attached to land”. 136.The respondents’ assignment is expressed to be subject to the DMC.[56] As I have endeavoured to explain above, the DMC does distinguish between the flat roof (which is assigned to the 2/F owner) and the waterproofing layer (which remains a common part). Thus the Assignment does carry a contrary intention disapplying the general proposition under section 16(1). 137.For the above reasons, I find that the waterproofing layer on 6A Flat Roof is a “common part” and the applicant is responsible for its maintenance and repair under the BMO. 138.In the course of the above discussion, I have touched upon Ms Wong’s concern that it is impossible for the applicant to maintain and repair the waterproofing layer. The fact that part of the waterproofing layer is sandwiched between the respondents’ flat and their flat roof does not make it impossible for the applicant to carry out maintenance and repair. Clauses 3(f) and 12(g) of the DMC, as we have seen, obliges the 2/F owners who also own the flat roof above to give access. Clause 3(e) correspondingly provides that the right of the owners (which may be collectively exercised by the applicant) to enter other parts of the building or common area to carry out necessary maintenance and repair should cause as little disturbance as possible and make good any damage. 139.Given my finding that it was the respondents who had damaged the waterproofing layer, Ms Wong’s fallback arguments are not engaged. F. Is the applicant liable for causing the water seepage at the respondents’ flat? 140.It is the applicant’s case that it has taken timely and reasonable steps to address the respondents’ complaint. That may be so in relation to the leakage at the staircase hood. 141.The applicant has taken the view that it is the responsibility of the 2/F owners who also own their flat roof to maintain the waterproofing layer embedded therein. That explains why it has not done anything over the years to maintain the waterproofing layer on the roofs of Gordon Terrace and has so far refused to repair the waterproofing layer on 6A Flat Roof. 142.As I have determined above, the waterproofing layer on 6A Flat Roof forms part of the common parts of Gordon Terrace and the applicant is responsible to maintain it in a state of good and serviceable repair under the BMO. 143.Ms Wong tries to argue with reference to clause 9 of the DMC that the respondents should nonetheless have gone after the owners of Nos 6-6A Gordon Terrace as opposed to the applicant. 144.Clause 9 provides that:
That clause only provides that the owners of each block should be responsible for keeping “the common entrance hall, staircases and landings and the exterior of that block” in good repair and condition and share the related costs and expenses. It does not cover the waterproofing layer on the roof. 145.On the other hand, section 18(1) of the BMO generally charges the applicant with the responsibility to maintain all common parts which, as I have determined, include the waterproofing layer. 146.Although the applicant may not have done what is required of it in terms of maintaining the waterproofing layer on 6A Flat Roof, that was not the effective cause of the water seepage at the respondents’ flat as I have found. 147.Although the experts agree that the service life of the original waterproofing layer on 6A Flat Roof has long expired, it is not their evidence that the waterproofing function of the layer would necessarily fail. 148.It is true that Mr Wong has said that other 2/F owners had encountered water seepage problem, we do not know the cause of those seepages. On the other hand, we have Mr Yau’s evidence that at least the original waterproofing layer on the roof of No 8A of Gordon Terrace is still holding and require no remedial action.[57] 149.There is insufficient evidence to support the respondents’ contention that lack of maintenance of the waterproofing layer on 6A Flat Roof was a contributing cause to the water seepage problem. The responsibility for the repair of the waterproofing layer falls on the respondents who have damaged it by the imposition of the Elevated Roof. G. Whether the respondents are entitled to their counterclaim? 150.Although the applicant have failed to maintain the waterproofing layer on the roofs of Gordon Terrace, that has not caused the water seepage problem at the respondents’ flat. The true cause of the seepage at the respondents’ flat, as I have found, is the respondents’ own act of installing the Elevated Roof that had damaged the waterproofing layer. 151.As explained in §3-44 in Clerk & Lindsell on Torts, 20th Edition (2010):
In my view, the respondents are not entitled to their counterclaim. H. How should the respondents remove the Elevated Roof and reinstate the affected areas? 152.Regulation 3A(1) of Cap 123F provides that “Every opening placed on an external wall above the ground floor of any building shall be protected by a barrier which shall be not less than 1100 mm high…”. Mr Yau took measurement of the height of the parapet wall plus the railing at different locations on 6A Flat Roof to confirm that the statutory minimum has not been achieved by reason of the Elevated Roof.[58] 153.Mr Yau further confirmed with reference to regulation 17 of Cap 123B that the Elevated Roof has overloaded the original roof.[59] 154.Given the above, Mr Yau opined that “the present situation is not in accordance with the approved building structural plan and it is not acceptable by the Building Regulations. This is also regarded as unauthorized building works under the Building Ordinance…”. 155.Turning to the DMC:
156.The respondents concede that the Elevated Roof was installed in breach of Cap 123B, Cap 123F and the DMC. The respondents are agreeable to remove the Elevated Roof and to reinstate the affected areas (including the waterproofing layer). 157.The foregoing discussion of the water seepage problem is premised on the respondents’ counterclaim which is monetary. No one has actually prayed for an order for the repair of the waterproofing layer and the experts have not gone into the nitty-gritty of how that may be done. 158.Whilst the respondents should primarily be responsible to reinstate the affected areas and to repair the damaged waterproofing layer, it remains the general responsibility of the applicant to maintain the waterproofing layer in the long run. Bearing in mind that the waterproofing layer atop Nos 6 & 6A Gordon Terrace spans the entire roof, the applicant may want to use the opportunity to do what is necessary to ensure that the waterproofing layer as a whole is in a state of good and serviceable repair. What is required is cooperation between the parties and they should be guided by professionals in their respective works. After all, proper maintenance and repair of the entire waterproofing layer will not only benefit the respondents but other owners as well. It is beyond the scope of this judgment and my expertise to say any more than this. I. Conclusion 159.By reason of the above, I enter judgment in favour of the applicant against the respondents on the monetary claim as well as the claim for an injunctive relief. 160.I previously directed the parties to agree on the calculation of interests for the purpose of entering judgment but the respondents have failed to respond.[60] The parties will now also have to agree on the terms of the injunction. I direct the parties to lodge in an agreed draft order for approval within 21 days from the date of this judgment. Should the respondents fail to respond again, the applicant will be at liberty to submit its own draft for approval (including an injunction in terms of prayers (4) and (5) of the prayers in the Re-Re-Amended Notice of Application) and the respondents will be taken to have raised no objection. 161.The respondents’ counterclaim is dismissed. 162.There be a costs order nisi that the respondents do pay the applicant the costs of the application and the costs of defending the counterclaim to be taxed on the District Court scale if not agreed with certificate for counsel.
Ms Catherine WONG instructed by Simon C W Yung & Co, for the applicant. Ms Janine CHEUNG instructed by Dissanayake & Associates for the 1st and 2nd respondents. [1] According to the respondents’ assignment, the estate is also subject to a deed of partition registered by Memorial No 980931 and another deed of covenant registered by Memorial No 126758. The parties have not referred to these deeds in evidence and I assume they are irrelevant for present purposes. [2] Pursuant to clauses 4(k) and 4(o) of the DMC. [3] The applicant has not pursued its claim for “costs and damages suffered by the Applicant arising from the breach of the DMC in respect of the unauthorized structures/alterations” (see prayer (6) of the Re-Re-Amended Notice of Application). [4] See §§29, 34, 34A and 35 of the Amended Notice of Opposition. [5] The respondents agree that the claim for the cost of the expert reports should more appropriately be dealt with as costs. [6] The respondents have taken the period to be 15 months. [7] This was adjusted by the respondents at the trial to tailor with the evidence. [8] Ms Cheung confirms that the respondents are not pressing ahead with their counterclaim based on nuisance. [9] At one stage, Mr Wang alleged that Mr Ngan had told him that the applicant would be responsible for the defects on the parapet walls which were more than 3 feet above the surface of the roof. Mr Ngan was called to refute the suggestion. In the end, Mr Wang’s allegation was not relied upon in the respondents’ closing submission. [10] He was not allowed access into the respondents’ flat on that occasion. [11] Whilst the owners resolved at that meeting to construct a cladding over the external walls, they eventually adopted a different mode of renovation. [12] There is a Chinese version of this report at Bundle 441-442. [13] At Bundle 444(a). [14] At Bundle 445(a)-(g). [15] At Bundle 457. [16] At Bundle 458. [17] The photographs are at Bundle 460-461. [18] See Bundle 460-461 [19] See §5.2C of Vigers 2008 Report [Bundle 175] and photographs 10-14 [Bundle 186-188]. [20] See §5.2C(3) of Vigers 2010 Report [Bundle 209] and photographs 14-16 [Bundle 224-225]; and infrared scan Nos 17-22 [Bundle 253-258]. [21] See Section (3) of Ms Cheung’s closing submission. [22] At Bundle 182-183. The enlarged photographs are at Exhibit R7. [23] The enlarged photograph is at Exhibit R7. [24] The enlarged photograph is at Exhibit R7. [25] See the enlarged photograph 8 at Exhibit R7. [26] See the enlarged photograph at Exhibit R7. [27] This is taken from Ms Cheung’s closing submission. [28] I have looked at the coloured photographs in the filed report which are much clearer. [29] See Bundle 232-234 and 237-241. [30] See, for example, the photographs at Bundle 651. [31] See, for example, the photographs at Bundle 182. [32] The photographs at Bundle 182 show that the entire party wall was covered by new wall tiles. [33] Containing the statement: “waterproofing and tiling works were carried out on the parapet walls of your roof.” [34] At Bundle 657-659. [35] There is an enlarged photograph at Exhibit R8. [36] At Bundle 241. [37] At Bundle 266. [38] See Bundle 259-268. [39] In terms of Vigers 2010 Report and Vigers Infrared Report. [40] Compare the brownish window frames in the photographs annexed to Vigers 2010 Report and Vigers Infrared Report with the white window frames in the photographs taken by Mr Yau during the joint inspection. [41] See Bundle 660-662 and 664. [42] See Bundle 698 and 701-702. [43] At Bundle 663. [44] See also §6.4 of Mr Yau’s comment and §4.3 of Mr Lai’s comment in the Joint Report. [45] In terms of the photographs enclosed in the respondents’ former solicitors’ letter dated 19 June 2008. [46] See Answer 1 in the respondents’ reply to the applicant’s interrogatories [Bundle 71]. [47] At §4.3 of Joint Report. [48] The letter dated 4 September 2009 was the first time the respondents complained about causes other than leakage from the staircase hood. [49] At Bundle 186-188. [50] See comment no 2 in MSC’s comments dated 6 August 2009 [at Bundle 455] and the related photographs [at Bundle 458]. [51] See the findings (eg §5.2C(3) of the report) and the photographs in Vigers 2010 Report. [52] Defined in section 2 of the BMO to mean “any premises in a building which are referred to in a deed of mutual covenant whether described therein as a flat or by any other name and whether used as a dwelling, shop, factory, office or for any other purpose, of which the owner, as between himself and owners or occupiers of other parts of the same building, is entitled to the exclusive possession”. [53] Similar conclusion was reached in Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd [2009] 4 HKLRD 692 at §§28-60 (upheld on appeal, see [2010] 4 HKC 463 at §§7-10); and Wing Ming Garment Factory Limited v The Incorporated Owners of Wing Ming Industrial Centre, unreported, HCCT 60/2006, 23 June 2014, at §§84-109. [54] Wing Ming, ante, at §95. [55] Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKFAR 279 at 296D-I. [56] At the end of clause 1 of the Assignment at Bundle 391. [57] See §8.3 of Joint Report and the photographs at Bundle 666. [58] See §§8.3-8.4 of the Joint Report. [59] See §§5.5 and 6.3 of Yau’s Report and §§8.4-8.6 and Appendix 4 of the Joint Report (as elaborated at trial). [60] See the applicant’s letter dated 22 January 2014. |
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