1. Parties to proceedings

1. Parties to proceedings

In water seepage cases, the question of who the plaintiff or defendant depends mainly on three matters: (i) who is the owner or occupier of the affected flat, (ii) the location and cause of the alleged source of seepage, and (iii) the legal basis of the claim, such as nuisance, negligence, breach of the Deed of Mutual Covenant (“DMC”), breach of statutory duty under the Building Management Ordinance (Cap. 344), or breach of contract. 

Before commencing proceedings, the affected party should take reasonable steps to identify the likely source and cause of the seepage. Where the seepage originates from within another private flat, the registered owner of that flat will usually be an appropriate defendant. Depending on the facts, the occupier, tenant, or person responsible for the relevant installation or works may also need to be included. 

Where the seepage originates from common parts of the building, the Incorporated Owners will usually be the proper defendant, particularly where the claim concerns repair, maintenance, or management of common areas. In suitable cases, the building manager, management company, contractor, or other person responsible for the defective works or maintenance may also be joined as a defendant. 

The identity of the plaintiff is also important. The claim should generally be brought by the person who has the relevant legal interest in the affected flat, such as the registered owner, or by an occupier where he has suffered recoverable loss or inconvenience. The precise formulation will depend on the nature of the relief sought and the cause of action relied upon. 

As water seepage disputes are often highly fact-sensitive, expert evidence is commonly required to establish the source, cause, and extent of the seepage, as well as the party responsible for it. Proper identification of the parties at the outset is therefore important. Naming the wrong party may result in procedural delay, wasted costs, or even dismissal of the claim.