Memoran Co Ltd v. The Incorporated Owners of Mei Hing Mansion
Read the full judgment text of HCCT 18/2020 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 3 May 2022 before Deputy High Court Judge Winnie Tsui.
Procedure - Construction and Arbitration Proceedings - Transfer from Construction List to General List - Variation of interlocutory injunction order - Water leakage causing structural concrete slab damage - Plaintiff appointed to commence repair work after defendant's delay - Costs orders - Building Management Ordinance, Cap 344 - Order 45, rule 8 - Practice Direction 6.1. This case concerned whether a routine water leakage case involving alleged structural damage should remain in the Construction List or be transferred to the General List. The court held the case did not require specialist construction judge expertise and ordered transfer. The court also considered an application to vary an interlocutory injunction order mandating urgent repairs to the structural concrete slab. Due to the defendant's lack of cooperation and delay in arranging expert inspections or work, the court allowed the plaintiff to take carriage of the repair works, imposing a timetable and obligations on both parties. Costs were awarded respectively to the defendant for the transfer summons and to the plaintiff for the variation summons, both to be summarily assessed if not agreed. Additional related summonses were adjourned pending transfer. This judgement emphasises the court’s focus on procedural economy, proper case management, and ensuring urgent repair works proceed expediently in building management disputes.
Legal issues: Transfer of water leakage case to General List · Whether to vary interlocutory injunction order regarding repair works · Costs orders in relation to transfer and variation summons
Outcome: Action transferred from Construction and Arbitration List to General List; variation of interlocutory injunction to have plaintiff commence repair works; costs awarded to defendant for transfer summons and to plaintiff for variation summons.
Cited by 4 cases · Cites 1 case
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HCCT 18/2020 [2022] HKCFI 1488 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 18 OF 2020 ________________________
________________________ BETWEEN
________________________ Before: Deputy High Court Judge Winnie Tsui in Chambers Date of Hearing: 3 May 2022 Date of Decision: 3 May 2022 ________________________ DECISION[1] ________________________ 1.This is my decision on the transfer summons[2] and also the variation summons[3]. 2.For the transfer summons, I make an order in terms of paras 1 and 2 of that summons.[4] 3.I am prepared to apply the most liberal reading of para 3(2) of Practice Direction 6.1 and I will proceed on the basis that this case, which is a water leakage case involving some building or construction work, comes within that paragraph. 4.But there still remains the question as to whether the court should exercise its discretion to allow the case to remain in the Construction List or to transfer it to the General List. My primary consideration is whether the present case warrants the deployment of the knowledge and experience of the specialist judge and, more generally, which course of action would better promote the procedural economy for the disposal of the present case. 5.The present action is a run-of-the-mill water leakage case. The primary question is whether the damage to the structural concrete slab is due to water leaking from the fourth floor common parts or the other units on the fourth floor, or is due to the fact that the plaintiff had previously installed a false ceiling to the premises. 6.It is plain to me that the case does not require the specialist skill and experience of the construction judge. It will involve expert evidence. But like any other civil case which involves expert evidence, any judge in the General List will be able to manage and dispose of the present action. 7.For the variation summons, I allow the summons and make an order with the changes that we have just gone through, namely, in para 1 of the summons, it should read “the amended order” in the first line, and also the two changes made to paras 2.1 and 2.4 of the schedule[5]. 8.My brief reasons are as follows. 9.The starting point of the consideration must be the factual premises on which I made the interlocutory injunction order in December 2021. See my decision at [2022] HKCFI 50. The first factual premise was that there is no dispute that the concrete slab was damaged. The second factual premise was that the damaged concrete slab poses a physical danger to those who live and work in the premises. Hence repair work was needed and on an urgent basis. 10.After the plaintiff gave the undertaking to allow the defendant’s expert to conduct tests on the premises, the work was expected to commence straight away. Now that four months have passed, no work has yet commenced. The parties are still stuck at the quotation stage. The defendant has not taken any step to arrange for its own expert to conduct inspection and tests on the premises. 11.At this stage, the primary concern of the court must be to stop this matter being dragged on anymore. 12.There are two alternatives before the court today. The first is to impose a further timetable and allow the defendant to remain responsible for carrying out the work. The second option is for the plaintiff to have carriage of the work. 13.Having considered the materials before me, I am of the view that the court should adopt the latter option. I am of the view that the defendant has not been entirely co-operative in ensuring that the work is commenced as soon as practicable. Of course, the last few months saw a huge surge in COVID cases and the parties’ efforts must have been hampered by this. But that only applied to the period from late January to late March. 14.But this development does not explain two things. First, why the defendant initially took the view that the injunction order which was granted in December did not cover work on the waterproofing system when it plainly does. The second thing is why the defendant has so far taken no step to arrange for the expert to attend the premises to conduct tests for the purpose of this litigation. The excuse was that the defendant needed leave of the court to adduce expert evidence. That excuse is plainly a bad one. 15.The court must not allow the half-hearted approach of the defendant to drag on this matter further and there is no reason to think that the plaintiff might have some other motive to do a bad job. Hence, I think the proper course for me to take today is to vary the order pursuant to Order 45, rule 8. Hence, I make the order in terms of the variation summons as amended. [Submissions on costs] 16.So the defendant do have costs of the transfer summons to be summarily assessed if not agreed. Even though this is a late application, it is plain that this action, being a run-of-the-mill water leakage case, should not have been commenced in the Construction List. 17.The plaintiff do have costs of the variation summons to be summarily assessed if not agreed. I grant a certificate for attendance by junior counsel only. 18.Parties who have been awarded costs should lodge their respective statements of costs within seven days from today. The paying parties do lodge and serve their lists of objections, if any, within seven days after that. The summary assessment be conducted on the papers after the deadline. 19.And there are three other summonses, so I will just adjourn those summonses pending the transfer of the action. [Discussion re the expert summons filed by the defendant on 17 February 2022] 20.The expert summons be adjourned pending the transfer of the action, with costs of today’s hearing be reserved. [Discussion re the summons for further and better particulars filed by the defendant on 12 April 2022] 21.The F&BP summons be adjourned pending the transfer of the action, with costs of today’s hearing be reserved. [Discussion re the case management summons filed by the plaintiff on 21 February 2022] 22.The CMS be adjourned pending the transfer of the action, with costs of today’s hearing be reserved.
Mr Bernard Man, SC and Mr Danny Tang, instructed by Jones Day, for the plaintiff Mr Andrew Wong Charn Hung, of Huen & Partners, for the defendant The Amended Order of Deputy High Court Judge Winnie Tsui dated 23 December 2021 (“Amended Order”) as to para 2 of the plaintiff’s summons filed on 30 June 2021 be varied and replaced as per the Schedule to this order, save and except the costs order under para 4 of the Amended Order do remain binding on the parties. SCHEDULE
[1] The footnotes do not form part of the oral decision delivered at the hearing. They are added to this written decision for ease of understanding. [2] Taken out by the defendant on 12 April 2022. [3] Taken out by the plaintiff on 14 April 2022. [4] Namely: (1) There be time extension for the defendant to file this application notwithstanding the time stated in Order 72, rule 6(2) of the Rules of the High Court has expired; (2) The proceedings herein be removed from the Construction and Arbitration List and transferred to the general list of Civil Action. [5] The full order is reproduced in the annex to this decision. |
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