LING LEUNG KIT HING AND ANOTHER v. WORTH RUSSELL JAMES AND OTHERS

LING LEUNG KIT HING AND ANOTHER v. WORTH RUSSELL JAMES AND OTHERS

Because the pleaded defect (the waterproofing membrane and parapet) falls within the common parts and s.16 BMO vests rights and liabilities in the incorporated owners to the exclusion of individual owners, the plaintiffs lacked locus standi to sue the 1st defendant; the plaintiffs' proposed amendments were speculative, contradicted prior pleadings and lacked factual particularity and therefore did not disclose an arguable cause of action against the 1st defendant, justifying striking out and refusal of leave to amend.

Citation
LING LEUNG KIT HING AND ANOTHER v. WORTH RUSSELL JAMES AND OTHERS
Parties
Plaintiff: Ling Leung Kit Hing; Plaintiff: Ling Pik Ha Rebecca; 1st Defendant: Worth Russell James; 2nd Defendant: Sze Siu Fong & Tam Lai Yan & Tam Wai Hung Cally; 3rd Defendant: Wong Kin Man & Yeung Chuen Lun; 4th Defendant: The Incorporated Owners of Ka Wai Building, Java Road
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 January 2016
Case Number
HCA8/2015
Procedural Posture
Civil Appeal / Appeal From Master Chow's Striking Out Order; Hearing and Determination in Chambers
Outcome
Appeal dismissed; statement of claim struck out as against the 1st defendant; proposed amendments disallowed.
Legal Topics
Locus Standi Under S.16 BMO, Liability for Common Parts, Water Seepage Claims, Amendment of Pleadings, Striking Out Under Order 18 R19
Source Language
EN
Building Management Property Law Tort Nuisance Negligence Civil Procedure Locus Standi Under S.16 BMO Liability for Common Parts +3 more

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Parties

Ling Leung Kit Hing

Plaintiff

Ling Pik Ha Rebecca

Plaintiff

Worth Russell James

1st Defendant

Sze Siu Fong & Tam Lai Yan & Tam Wai Hung Cally

2nd Defendant

Wong Kin Man & Yeung Chuen Lun

3rd Defendant

The Incorporated Owners of Ka Wai Building, Java Road

4th Defendant

Procedural Posture

Civil Appeal / Appeal From Master Chow's Striking Out Order; Hearing and Determination in Chambers

Legal Issues

  1. 1 Whether plaintiffs have locus standi to sue an individual owner in respect of defects to common parts under s.16 BMO
  2. 2 Whether the waterproofing membrane is a common part or part of the 1st defendant's property
  3. 3 Whether the proposed amendments disclose an arguable cause of action against the 1st defendant

Ratio Decidendi

Because the pleaded defect (the waterproofing membrane and parapet) falls within the common parts and s.16 BMO vests rights and liabilities in the incorporated owners to the exclusion of individual owners, the plaintiffs lacked locus standi to sue the 1st defendant; the plaintiffs' proposed amendments were speculative, contradicted prior pleadings and lacked factual particularity and therefore did not disclose an arguable cause of action against the 1st defendant, justifying striking out and refusal of leave to amend.

Court Disposition

Appeal dismissed; statement of claim struck out as against the 1st defendant; proposed amendments disallowed.

Orders

  • Appeal dismissed
  • Statement of claim struck out as against the 1st defendant