LDBM 72/2018

[2023] HKLdT 34

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 72 OF 2018

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J U D G M E N T

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BACKGROUND

1. The applicant in this case is the Incorporated Owners of the Tung Lok Building (the “Building” ). The respondent is the owner of residential unit Flat 2D of the Building.

2. The applicant sues the respondent for breach of the provisions of the Deed of Mutual Covenant ( “DMC” ) of the Building as well as section 34I of the Building Management Ordinance ( Cap 344 ) ( “BMO” ).

3. The incident that gave rise to these proceedings was the backflow of water from the flush toilet of the respondent’s flat on 4 May 2017 which flowed from the respondent’s flat to elevator L2 ( “the Elevator” ) of the Building, causing it damage. The applicant arranged their lift contractor, CKP Building Service Systems Ltd, to repair the Elevator and incurred the repair cost of $165,680.

4. According to the original drainage design of the Building as shown in the relevant approved plan, the storm drain should go from the roof all the way to the platform on the 1 ^st floor for discharge.

5. After the overflow, the applicant discovered that the storm drain of the Building had been altered by some party without obtaining permission from the authority concerned or the applicant. As a result of the alteration, the storm drain did not extend from the roof to the 1 ^st floor platform but ended outside the external wall of Flat 2D (i.e. the respondent’s unit) and was connected to the sewage pipe serving this unit.

THE APPLICANT’S CASE

6. The applicant contends that it was the respondent or his predecessor-in-title who carried out the alternation by connecting the storm drain to the sewage pipe. Such alteration was in violation of the DMC, led to the subject overflow incident and caused loss and damage to the applicant.

7. The applicant seeks, inter alia , mandatory injunction to compel the respondent to reinstate the relevant sewage pipes on the external wall of the building and also seeks damages for the repair costs incurred in the sum of $165,680.

THE RESPONDENT’S CASE

8. The respondent does not dispute about the inconformity of the pipes on the external wall outside his unit with the approved plan nor does he dispute about the occurrence of the incident on 4 May 2017. The respondent admits that on that day, there was overflow of sewage from the flush toilet inside the small room of his unit through the main door of his flat to the lift lobby and then to the Elevator. There was heavy rain at the time of the overflow.

9. Subject to the issue of liability, the re