Loke Yuen Jean Tak Alice v. Wong Kit Ying and Another

HCA 495/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 495 OF 2012

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BETWEEN

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D E C I S I O N

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The Application

1.This is the hearing of the 1^st Defendant’s summons dated 24 February 2015, applying for an order that the Plaintiff do provide proper and full particulars to various Requests for further and better particulars (“F&BP”) of the Amended Statement of Claim, which F & BP the Plaintiff had been (upon her own consent) previously ordered[1] by the Court to provide, but the Plaintiff has failed to do so[2].

2.The Plaintiff opposes this application and the parties are legally represented.[3]

The Factual Background

3.At all material times, the Plaintiff was and is the owner and occupier of the premises, known as Flat E, Ground Floor, Villa Dorada, 126 Blue Pool Road, Hong Kong (the “Ground Floor”).

4.At all material times, the 1^st Defendant was and is the owner of the premises directly above the G/F (the “1^st Floor”); whilst the 2^nd Defendant was the tenant thereof from around January 2007 to the end of June 2011.

5.In the Amended Statement of Claim dated 13 June 2012, the Plaintiff alleges that there were water leakages from the 1^st Floor to the various parts of the Ground Floor on various occasions or incidents from around November 2006 to June 2011.

6.As to the Plaintiff’s case regarding the respective sources of each of her alleged water leakages (from the First Floor), and/or the particulars thereof, as well as the locations of the areas (of the Ground Floor) affected by each of her alleged water leakages, the 1^st Defendant had served upon the Plaintiff the Requests for F & BP of the Amended Statement of Claim by way of the letter dated 6August 2014.

7.By consent, it was ordered by Master M. Wong on 18 December 2014 that the Plaintiff should provide the F & BP of the Amended Statement of Claim as requested by the said letter.

8.On or about 3 October 2014, the Plaintiff filed and served the Reply to Request for F & BP of the Amended Statement of Claim. The 1^st Defendant says that the Plaintiff in effect declined and/or failed to provide any particulars or answers in respect of the Requests 1-4, 6, 7, 9-13, 15, 16 and 18. 

9.According to the 1^st Defendant, the particulars purportedly provided by the Plaintiff can be classified into the following two groups:- 

(a) In respect of Requests 1, 3, 6, 10, 12 and 15 concerning the sources of water leakages, the Plaintiff alleged, “the sources of the alleged water leakage or dripping are matters for the Court to decide on finding of facts.”

(b) In respect of Requests 2, 4, 7, 9, 11, 13, 16 and 18 concerning identification of the alleged affected areas or defective pipes with reference to a floor plan, the Plaintiff said that she will rely on the Plaintiff’s Expert Report and the photos taken to provide the particulars, and that she may provide sketch maps to identify the exact location, if appropriate.

10.In all, insofar as Requests 1-4, 6, 7, 9-13, 15, 16 and 18,  the 1^st Defendant says that no answers or particulars have been provided by the Plaintiff at all.

11.In any event, the 1^st Defendant was not satisfied with the answers given by the Plaintiff.

12.By a letter dated 4 February 2015, the 1^st Defendant made a complaint to the Plaintiff that the purported particulars provided by the Plaintiff were inadequate, improper and/or unsatisfactory, and requested the Plaintiff to provide the answers to the Requests within 14 days from the date of the letter.

13.The Plaintiff has failed to accede to the 1^st Defendant’s request.  Hence this summons.

Discussion

14.The Plaintiff first argues that the 1^st Defendant’s requests are not necessary for a fair trial or for saving costs, and therefore should not be allowed. 

15.The 1^st Defendant relies upon the authority of Paragraph 18/12/57 of the Hong Kong Civil Procedure, 2016 and Fearis v Davies [1989] 1 F.S.R. 555, in which the Court of Appeal of the UK held that once consent had been given by one party to the terms of the order, this party was not allowed to raise any objection as to whether the terms should be allowed by the court in the first instance as he had waived his right to challenge the terms of the consent order.

16.Upon request by this Court, counsel for the Plaintiff has submitted further written submissions to say that now the plaintiff is not challenging the consent order, but only to say that those particulars are sufficient and that the Plaintiff’s expert report and also the joint statement has set out the particulars to identify the sources of the water leakages, which should be adequate and practical for the purpose of trial.

17.Having considered the joint expert report as can be found in Bundle 2, I had specifically asked the parties to address this Court on the following:

"The parties should make submissions on the joint expert report pages 97-147 of Bundle A and assist the court on the following:

1. whether the joint report has set out the affected areas?

2. whether the experts have given their views on the sources of the water leakage leading to the affected areas?

3. whether the experts have appropriately set out the reasons in support of  their difference in opinions?"

The discussion will focus on those areas above."

18.I pose the above questions to the parties because if the answers can be found from the joint expert report, it is not necessary for the 1^st Defendant to make the requests, such requests being not for a fair trial or saving costs, quite the contrary.

19.If the answers cannot be found from the joint expert report, then the next question is whether the plaintiff, under those circumstances, can be said to be able to supply the answers that had been promised to be given under the consent order.

20.It is apparent that the Plaintiff and the 1^st Defendant are unable to identify the sources of the leakages without the assistance of the experts, thus the expert reports and the joint expert report.

21.If it is clear that it is impossible for the Plaintiff to give the answers, the Court will be reluctant to force the plaintiff to do so, still less to strike out the claim for failing to do so because this is simply unjust to do so.

22.It is trite that for water leakage claims, there is no presumption that the water leakage is caused by the unit immediately above the Plaintiff’s premises. See Hui Ling Ling v Sky Field Development Ltd HCA35/2007 (unrep., Recorder Yuen SC (as he then was), 8 May 2012) at paragraphs:

“23. It is well established that there is no presumption that water leakage was necessarily caused by the flat above. The plaintiff in a water leakage case bears the burden of proof to establish, on a balance of probabilities, that the source of water was the defendant’s flat. Hence, it is not for the defendant to find out or identify the correct source of the water leakage or to prove that its origin did not come from his property. See, eg: (a) Leung Yung Chun and Tsoi Chik Lai v Chan Wing Sang & Ors, unrep, HCA 12235/1998 (28 January 2000), para 22; (b) Hui Ling Chun v Shiu Mak Ying & Choi Chun Hoi, unrep, DCCJ 10294/2001 (3 March 2004), para 2; and (c) Wong Pui Ping v Au Wai Ki Jacky & Au Chun Yin, unrep, DCCJ 1225/2007 (17 April 2012), para 94.

24. These legal principles aptly apply in the instance case since, as will be noted below, there are prima facie various possible sources of water which might have caused the water leakage problem suffered by the plaintiff. In the circumstances, I am of the view that the doctrine of res ipsa loquitor does not apply in the present case.

25. Accordingly, the key question in this case is whether the plaintiff succeeded in discharging her burden of proof.  The question is largely a factual one, which very much turns on the evidence adduced by the parties at this trial.”

23.The burden of proof lies upon the Plaintiff.  As held by the learned Recorder (as he then was), the question is a factual one, which turns on the evidence adduced by the parties at the trial.  The facts are to be found by the trial judge.

24.The Court of Appeal in the UK by Nourse LJ decided that the Plaintiff should comply with the consent order as far as compliance is possible. The Court of First Instance in Hong Kong held that the sources of leakages are to be found by the court after trial.  The question therefore boils down to whether the Plaintiff can possibly give those particulars as requested at this stage of the proceedings.

25.This morning, I have been referred to the joint statement, in which the Plaintiff is able to refer me to some of the answers that will be sufficient to answer the relevant requests. However, the Plaintiff has not extracted those parts from the joint statement, but simply referred the 1^st Defendant to the joint statement, which is not sufficient to answer the requests.

26.The Plaintiff accepts that she has the burden of proof at the trial. She also agrees that it is incumbent upon her to identify the sources of the water leakages and the locations of the water leakages in her pleadings.  She has also entered into the consent order agreeing to provide particulars of the sources of water leakages and the locations to the 1^st Defendant, she should comply with the consent order accordingly.

27.Her argument that it was not necessary for a fair trial or saving costs, that is to say, the consent order should not have been made in the first place is rejected on the legal principle of Fearis v Davies and her argument that those answers are sufficient is also rejected because she has failed to identify the answers from the joint statement. The fact that the answers should be found by the court must be based upon her own pleadings that set out her case clearly and the disputed issues are then submitted to the trial for determination.  If she is unable to set out clear pleadings in the first place, it will cause difficulty to the 1^st Defendant to meet her case.  It is on this basis that the Court should consider particulars should be given by the Plaintiff to the 1^st Defendant at this stage, which issue is not necessary for me to decide as the Plaintiff has already agreed by the consent order that she should provide those particulars.

28.I shall therefore make an order in terms of the 1^st Defendant’s summons.

29.As to the costs of this application, including the costs reserved, they should follow the event (with counsel’s certificate), to be summarily assessed under O.62, r.9A at $75,000 to be paid by the Plaintiff within 14 days from the date hereof.  The solicitors for the 1^st Defendant shall file and serve the statement that the costs claimed are no less than the costs paid by their clients to them within 7 days from the date hereof.

30.This Court shall now make an order in terms as follows:

(a) As per the 1^st Defendant’s summons;

(b) Costs be as per paragraph 29 above.

Case Management Conference

31.By consent, the matter is adjourned to 11:30 am on 21 April 2016 for the 8^th Case Management Conference, for the 2^nd third party to instruct solicitors to act for it and to prepare for the trial.

32.Costs of the this Case Management Conference be to the Plaintiff and the 1^st Defendant assessed at $1,500 to the Plaintiff and the 1^st Defendant respectively, totally $3,000 to be paid by the 2^nd third party within 14 days from the date hereof.

Mr Leo Yu, instructed by Kelvin Cheung & Co., for the plaintiff

Mr Ernest Koo, instructed by K.M. Lai & Li, for the 1^st defendant

The 2^nd defendant, 1^st third party and the 2^nd third party, absent