Kam Man Chun Johnny v. The Incorporated Owners of Comfort Court, Marconi Road

DCCJ 2468/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2468 OF 2017

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Before: His Honour Judge MK Liu in Chambers (open to public)

Date of Hearing: 24 November 2017

Date of Decision: 24 November 2017

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DECISION

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1.The summons before the court is a summons taken out by the plaintiff on 17 August 2017 for an order striking out the defendant’s counterclaim and the related paragraphs in the defence (“the summons”).

2.This case concerns water leakage or seepage in a residential building called Comfort Court at Beacon Hill, Kowloon (“the Building”).  The plaintiff is the registered owner of Flat D on the 3rd floor (“the Unit”) of the Building.  The defendant is the Incorporated Owners of the Building.  I would first outline the parties’ respective cases.

The plaintiff’s case

3.The plaintiff’s case is that the plaintiff discovered water leakage or seepage affecting the Unit in or about 2014.   The source of water leakage or seepage at the Unit was later identified to be originating from the common parts of the Building, namely the internal flushing water supply system.

4.The plaintiff mounts a claim against the defendant on nuisance, negligence and/or breach of the deed of mutual covenant of the Building and the Building Management Ordinance by the defendant.  The plaintiff says that the defendant has failed to discharge their duties in maintaining or repairing the common parts of the Building and hence has failed to stop and prevent water leakage or seepage into the Unit.

5.The plaintiff says that on diver dates between 2015 and 2017, the plaintiff had allowed the defendant’s representatives and various others including representatives of government departments to carry out inspections and/or investigations in the Unit.  The plaintiff’s case is that at all material times, the plaintiff has been allowing various parties, including the defendant, reasonable access to the Unit for the purposes of resolving the issue of water leakage or seepage, including inspections and investigations. 

The defendant’s case

6.The defendant’s case is that at all material times, the defendant had acted reasonably by taking all appropriate steps to do what it could in the circumstances to investigate the sources of the water seepage or leakage.  However, the plaintiff was not cooperative by repeatedly refusing and/or obstructing the defendant from entering the Unit, and had never provided any opportunity to the defendant to inspect the common pipes since they were sealed up pipe ducts behind partition walls erected in the Unit.

7.Although the defendant was allowed on some occasions to enter the Unit, the defendant noticed that the pipe ducts in the bathrooms in the Unit were blocked by partition walls altered and/or rebuilt in the Unit, which fundamentally obstructed and/or prevented the defendant from even seeing the pipe duct.  The defendant therefore had difficulties in carrying out any inspection to the common pipes inside the pipe ducts in order to locate the source of water seepage or leakage and to carry out maintenance to the common pipes if necessary.

8.The defendant has repeatedly requested and demanded the plaintiff to remove the partition wall at its own costs so that the defendant can inspect and repair the common pipes if necessary.  Despite the repeated requests and demands, the plaintiff has refused to do so.

9.The defendant’s defence is that in the circumstances, the plaintiff is estopped from claiming against the defendant in respect of the loss and damage suffered by the plaintiff as a result of the water seepage or leakage.  Alternatively, the water seepage or leakage problem was caused or contributed to by the plaintiff’s negligence.

10.The defendant’s counterclaim is that being the incorporated owners of the Building, the defendant has the powers and duties to enter the Unit to inspect the common pipes and to carry out the necessary repairing works.  The plaintiff has the duty to remove the altered partition walls inside the Unit to allow the defendant to carry out the aforesaid inspection and repairing works.  The defendant is seeking declarations and injunctions to enforce these rights against the plaintiff.

The striking out application

11.Mr Matthew Ngai, counsel for the plaintiff, submits that the defendant’s counterclaim is frivolous, vexatious and/or without merit and ought to be struck out.  Mr Ngai submits that the plaintiff has been all along giving the defendant reasonable access to the Unit, and there is clear evidence on this.  Accordingly, the entire counterclaim is frivolous or vexatious.

12.Mr Wilson Tam, counsel for the defendant, submits that although the defendant’s representatives were allowed to enter the Unit on some occasions, the defendant was unable to inspect and repair the common pipes since they have been blocked by the partition walls built by the plaintiff.  Notwithstanding the numerous requests made by the defendant, the plaintiff still refuses to remove the partition walls to allow the defendant to carry out the necessary works.

The principles

13.The principles concerning striking out of pleadings are well established.  A succinct summary of the same can be found in Yifung Properties Ltd. and Others v Manchester Securities Corp. and Others (HCA 1341/2014 & HCA 1359/2014, 19 October 2015).  In that case, Au Yeung J said:-

“10. Striking out is a draconian remedy. A party should not lightly be denied his day in court. Accordingly, pleadings should be struck out only in clear and obvious cases. Disputed facts are to be taken in favour of the party sought to be struck out. The court should not decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. The mere fact that the case is weak and not likely to succeed is no ground for striking it out. Hong Kong Civil Procedure 2015, §18/19/4.” (Emphasis added)

14.It is trite that the court should not conduct a mini-trial on affidavits in a striking-out application. In Haifa International Finance Co. Ltd. v Concord Strategic Investments Ltd. [2009] 4 HKLRD 29, Cheung JA said:-

“11. Striking-out application is a drastic remedy. As it is an attempt by the first defendant to drive the plaintiff from its judgment seat, the Court must exercise great caution and would only accede to the application in clear and plain cases. The Court must satisfy itself that the claim is clearly unsustainable and it should not embark upon a mini trial of the action. The relief is not suitable where fact sensitive issues are involved.” (Emphasis added)

Analysis

15.The crux of this striking out application is this, ie whether it is plain and obvious that the defendant’s complaint of not having any reasonable opportunity to inspect and repair the common pipes concealed by the partition walls in the Unit can be dismissed without a trial.  In my view, the answer to this is clearly in the negative.

16.With respect to Mr Ngai, notwithstanding the affidavit evidence produced by the plaintiff, I am not persuaded that the court can come to a definite view on the defendant’s complaint at this stage.  Bearing the aforesaid principles in mind, I must not allow this striking out application and must dismiss the summons.

17.Having heard submissions on costs, I am of the view that costs should follow the event with a certificate for counsel.  Those costs should be paid by the plaintiff forthwith.

Disposition

18.I dismiss the summons with costs to the defendant forthwith, with a certificate for counsel, to be taxed if not agreed.

19.I thank Mr Ngai and Mr Tam for the assistance rendered to the court.

Mr Matthew Ngai, instructed by Cheng & Co, for the plaintiff

Mr Wilson Tam, instructed by Au-Yeung, Cheng, Ho & Tin, for the defendant