The case concerned water leakage in a 4th floor flat in Taikoo Shing. The plaintiff brought claims in private nuisance, negligence, breach of the deed of mutual covenant (“DMC”), and s.34 of the Building Management Ordinance (Cap. 344) (“BMO”).
In this case, contractors appointed by the Joint Office of Buildings Department and the Food and Environmental Hygiene Department had conducted pond tests. However, the source of the water seepage could not be determined. After a 4-day trial, the Court (DDCJ Alfred Cheng) gave judgment in favour of the plaintiff, granting prohibitory and mandatory injunctions, damages in the sum of HK$336,578.60, and interest.
Two interesting legal issues arose in the judgment.
First, the damages for inconvenience and mental stress that the water seepage brought the plaintiff were adjusted for inflation.
Second, s.34H(1) BMO states that “Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.”
Clauses 3 and 5 of the Second Schedule of the DMC contains usual provisions requiring individual owners to keep the interior of their respective flats to which they have exclusive use and occupation, together with all electrical and sanitary appliances therein, in good repair and condition. The owners have thereby covenanted not to cause loss, damage and nuisance to other owners.
The case law in the District Court on whether liability under DMC and s.34H BMO is strict is not settled.
In Tollemache Company Ltd & Ors v Raymond Lun Kwok Pao also known as Pao Lun Kwok Raymond [2024] HKDC 2026, the Court held that liability was fault-based.
By contrast, there are cases which appear to have held that liability was strict in Ocean Allied Ltd 對 Hui Sze Kuen 及另一人 [2022] HKDC 760 and Leung Tak Kwan t/a Wallpaper Warehouse (HK) Co v Gao Meng Fa Ltd [2021] HKDC 1540. Nonetheless, in the present case, the Court explained that the Court in Ocean Allied did not in fact hold that liability was strict and in Leung Tak Kwan the defendant ought to have known the need to maintain the facilities and did not effect any repair. Therefore, the Court concluded that liability imposed by the DMC and the BMO is not strict. Nonetheless, as the Court found that the defendant is liable in nuisance and/or negligence, the plaintiff’s cause of action under the DMC and the BMO did not have to be considered.
Ernest Ng and Fergus Tam, instructed by Au-Yeung, Chan & Ho, acted for the plaintiff.
For Ernest’s full profile, see here.
For Fergus’ full profile, see here.
The judgment of DDJ Alfred Cheng [2026] HKDC 754 dated 28 April 2026 can be found here.
