Read the full judgment text of CACV 572/2019 on BabelCite. This Court of Appeal judgment was delivered on 21 August 2020 before Hon Lam VP, Chu JA and Lisa Wong J.
Civil procedure – summary judgment – Order 14 – water leakage – triable issue – nuisance – identification of source of water – expert reports – mini-trial on affidavits – natural justice – mandatory injunction. Plaintiff owner of Flat 14C claimed damages and mandatory injunction against Defendant owner of Flat 15C above for water seepage. Judge granted summary judgment on liability with damages to be assessed and a mandatory injunction. Whether summary judgment was properly granted when defendant raised a believable defence that the flat was unoccupied with no water usage – whether the MSL and MTC test reports were sufficient to establish the source of water as Flat 15C – whether the judge erred in conducting a mini-trial on affidavit evidence – whether the judge was correct to grant a mandatory injunction on his own motion when plaintiff had not pursued that relief. Held, appeal allowed: there was a triable issue on whether water seepage to Flat 14C originated from Flat 15C; the MSL and MTC reports were not expert reports identifying the source of water and could not, without more, displace the defendant's evidence of non-occupation and absence of water consumption; on an Order 14 application the test is whether the defence is believable, not whether it is to be believed, and the Judge impermissibly resolved factual disputes and made findings on remedial workmanship without cross-examination. The mandatory injunction was also set aside as the plaintiff had abandoned that claim and the Judge had not heard the defendant, contrary to natural justice. Defendant granted unconditional leave to defend. Plaintiff to pay Defendant's costs of the appeal and leave applications in any event, taxed if not agreed; costs below to be costs in the cause.
Legal issues: Whether summary judgment was wrongly granted in a water leakage case · Whether the mandatory injunction was properly granted
Outcome: Appeal allowed; unconditional leave to defend granted to the Defendant; summary judgment and mandatory injunction set aside.
Cited by 13 cases · Cites 3 cases