LDBM 238/2015

[2024] HKLdT 72

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 238 OF 2015

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J U D G M E N T

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1. The dispute in this action arose out of the applicant’s complaints about water seepage into its property from the respondent’s property.

BACKGROUND

2. This case involves two premises situated at a multi-storey building (“Building”) known as Golden Crown Court, Nos. 66-70 Nathan Road, Kowloon.

3. The applicant is the registered owner of Flat C on the 12 ^th floor of the Building (“Lower Premises”). Mr Lam Yik Him (“Lam”) is a director of the applicant. Lam alleges that, at all material times, his parents and his brother’s family (“Family Members”) lived at the Lower Premises. Lam’s family also owns Flat C on the 11 ^th floor and Flat C on the 14 ^th floor of the Building.

4. The respondent is the registered owner of Flat C on the 13 ^th floor of the Building (“Upper Premises”). He had not resided at it but let it out to various tenants for operation of licensed guesthouse at different times until January 2022.

5. The Upper Premises is immediately above and vertically adjoined the Lower Premises. The two premises (“Two Premises”) are similar in size save that there is an additional flat roof structure (“Structure”) attached to the external wall of the Lower Premises. The Structure was constructed by the applicant and erected on the flat roof of Flat D of the 11 ^th floor of the Building.

6. On 18 August 2015, the applicant commenced the present action claiming that since February 2014, it had complained to the respondent that there had been water seepage from the Upper Premises into the Lower Premises. In the Re-amended Notice of Application [1] (“NOA”), the applicant alleges that the water seepage was caused by the respondent’s breach of the Deed of Mutual Covenant of the Building dated 8 April 1964 (“DMC”), section 34H of the Building Management Ordinance, Cap 344 (“BMO”), negligence and nuisance. It seeks, inter alia , damages and a mandatory injunction to compel the respondent to take all reasonable steps to prevent or stop the water seepage. The applicant’s claim is denied by the respondent.

7. Much reliance has been placed by the applicant on the inspection report compiled by Mr Wong Man Hong (“WMH”) of Wong Man Hong Surveyor Ltd dated 5 August 2014 (“JO Report”) for proof of the source of water seepage. WMH was engaged by the Joint Office [2] (“Joint Office”) to investigate the applicant’s complaints about water seepage. At trial, both parties agreed to refer to the two layout plans set out in pages 16 and 18