Great Tower Development Ltd v. The Incorporated Owners of LusoApartments

DCCJ 331/2022

[2023] HKDC 356

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 331 OF 2022

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BETWEEN

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DECISION

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1.This is the Plaintiff’s application for summary judgment made by summons taken out on 3 March 2022 (“the Summons”).

2.The Plaintiff’s claims in the instant action against the Defendant (“D”) are based essentially on negligence and nuisance.^[1] P is and was at the material time the registered owner of Flat D71, 7^th Floor, Luso Apartments, 5 Warwick Road, Kowloon Tong, Kowloon, Hong Kong (“D71”). I shall refer to Luso Apartments hereinbelow as “the Building”. The Building has 4 blocks (ie Blocks A to D) and D71 is located at Block D. D is and was at the material time the Incorporated Owners of the Building. By virtue of its position as the Incorporated Owners of the Building, D is and was at the material time in control and possession of all the common areas of the Building, including the external walls adjoining D71.

A. P’S PLEADED CASE

3.On 24 January 2022, P issued the instant proceedings against D, and its case is pleaded as follows^[2]: -

(a) In December 2015, P first discovered that rainwater had continuously seeped from the adjoining defective external wall into the left bottom corner of the wall at the dining room of D71. The water seepage had caused damage to the said wall in that the paint of an “L” shape area (“the L-shape Area”) had peeled off. The water seepage continues to cause damage to D71 even after internal repairs and repainting.

(b) By the judgment of HH Judge Au-Yeung dated 8 September 2021 in DCCJ 2308/2017 between P and D (“the Judgment”), it was held that the damage at the L-shape Area was caused by rainwater permeating through the external wall.

(c) In the premises, since 11 December 2015 including 8 September 2021 and at all times thereafter, the water had continuously seeped into D71 from the adjoining defective external wall and continuously caused damage to the wall at the dining room.

(d) The aforesaid situation was permitted or caused by D to continue with no actual remedial measures being performed specifically on the defective external wall despite P’s repeated complaints and the finding of HH Judge Au-Yeung in the Judgment.

(e) In the circumstances, the water seepage problem persisted at all times.

(f) P claims against D in breach of duty under section 18(1) of BMO, negligence and nuisance.

(g) Inasmuch as P’s claim in breach of section 18(1) of BMO and negligence are concerned, P has pleaded the following: -

(i) At all material times, and in any event since the Judgment, D knew and/or ought to have known that the water seepage was originated from the defective external wall. It was reasonably foreseeable that further continuous damage would be caused to D71 if D failed to perform remedial works immediately and with reasonable skill and care.

(ii) Negligently and in breach of duty of care, D failed to exercise all due professional and reasonable skill and care in performance of its duties owed to P, whether under the DMC, BMO or otherwise as particularized in para 15 of the Statement of Claim. In a nutshell, D’s negligence lies in its failure to take any or any adequate measures to ensure that the common parts (including the external wall) are proper and in a good state of repair, its failure or neglect to carry out works to prevent or stop water from penetrating or seeping through the external wall, its failure to make good and repair the defective external wall and its failure or neglect to repair and remedy the water seepage by taking any or any reasonable measures to abate the water seepage without any undue delay.

(h) Insofar as P’s claim in nuisance is concerned, P has pleaded that D has caused or permitted the physical damage to D71 to continue despite its actual and/or constructive knowledge that the water seepage was originated from the defective external wall which it could but failed to take any or any reasonable steps to prevent water from continuing to seep into D71 and abate the nuisance.

(i) By reason of the intransigence of D, D has continued to act in continuous breach of its duty and/or negligently and/or to permit the nuisance to continue and would not carry out remedial measures to remedy the water seepage.

(j) P also relies on the maxim of res ipsa loquitur in light of the finding in the Judgment that the external wall was defective and the continuous occurrence of the water seepage.

(k) Essentially, P claims the following reliefs: -

(i) A declaration that D breached its duty of care owed to P;

(ii) An Order that D do forthwith take all necessary steps to repair the common areas of the Building relevant to the water seepage; and

(iii) Damages to be assessed.^[3]

B. THE BACKGROUND

4.P first discovered the said water seepage in early 2015. After P’s expert conducted an inspection at D71 around 11 December 2015, P via its solicitors first wrote to D on 2 November 2016. There ensued a string of correspondence exchanged between P’s solicitors and D between 2 November 2016 and 26 April 2017.^[4]

5.P commenced its first action against D concerning the said water seepage on 19 May 2017. (“the 2017 Action”)

6.On 8 June 2017, D signed an agreement to engage 良友工程有限公司 (Leung Yau Building Limited) (“LYB”) to conduct inspection and repair works on the common parts of the Building under the Mandatory Building Inspection Scheme (“the Refurbishment Works”).^[5] (“the Agreement”)

7.Under “SCHEDULE OF RATES BLK D - Schedule No 2: Concrete and Rendering Repair Works at External Walls” and “SCHEDULE OF RATES BLK D - Schedule No 3: Patch repair of External Wall tile” to the Agreement, the repair works included, inter alia, the following: -

(a) “2.1.1. Visual / Hammer Tapping Test …”^[6];

(b) “2.1.2 Concrete repair and rendering repair …”;

(c) “2.1.3 Rendering repair …”;

(d) “2.1.8 Contractor shall provide 1 year warranty for repaired concrete and rendering area.”;

(e) “3.1.1 Patch repair and apply new wall tiles to match existing damaged concrete repaired area at external wall …”;

(f) “3.1.2 Prepare and apply “E-MIX Tile Fix 303” tile adhesive; all shall be complied strictly with manufacturer’s instruction.”; and

(g) “3.1.3 Supply and apply E-MIX Tile Grout Fine; all shall be complied strictly with manufacturer’s instruction.”

8.In 2017, LYB began the Refurbishment Works under the Agreement, and sent out the first questionnaire to all the flat owners of the Building, asking for comments on any structural defects existed in their flats including water seepage (“the 1^st Questionnaire”). P did not respond to the 1^st Questionnaire.^[7]

9.In late 2018 when the Refurbishment Works including the repair works were close to completion, LYB sent out the second questionnaire to flat owners of the Building, asking for comments on any structural defects existed in their flats (“the 2^nd Questionnaire”). P only responded to the 2^nd Questionnaire by requesting for cleaning works to be done.^[8]

10.LYB had conducted checks on the external walls of the Building including conducting hammer tapping tests and replacement of defective external wall tiles when necessary.

11.In or around 3 January 2019, LYB completed the Refurbishment Works under the Agreement.

12.On 17 April 2019, P wrote a letter to notify D that the water seepage still existed after P had conducted repair and decoration works inside D71.^[9] (“the 17/4/19 Letter”)

13.The 17/4/19 Letter triggered off another string of correspondence between P and D until 2 December 2019^[10] whereby D insisted on the necessity to conduct physical inspection in D71 so as (a) to ascertain the condition and cause of the water seepage in D71 and (b) to work out a practicable proposal and plan to resolve the water seepage problem at D71.^[11] P took the position that the water seepage at D71 complained of in the 17/4/19 Letter was related to the subject matter of the 2017 Action and the request for physical inspection in D71 would not assist in the resolution of the dispute in the 2017 Action since each party’s expert had already inspected D71 and filed his expert report.^[12]

14.On 14 August 2020, LYB received a questionnaire from P, requesting to deal with the water seepage problem in the 2017 Action, in particular, to follow up on, inter alia, the peeling-off of the wall paint at the dining room, kitchen and bathroom at D71.^[13] (“the 3^rd Questionnaire”) In the 3^rd Questionnaire, P asked LYB to confirm with D71 the 4 problem-locations mentioned therein before LYB made appointment with D71 owner to inspect D71.

15.On 25 September 2020, P wrote a letter to D, referring to the 26/9/19 Letter, complaining about further signs of water seepage which were relevant to the subject matter of the 2017 Action and suggesting that the experts appointed by P and D in the 2017 Action would jointly perform a visual inspection at D71 at a mutually convenient time.^[14] Thereafter and until the trial of the 2017 Action in late May 2021, the correspondence between P and D revolved around the question of joint inspection at D71, its scope, whether the persons who accompanied P and D to perform the joint inspection at D71 were required to be the experts appointed in the 2017 Action and whether supplemental expert reports should be compiled by P and D for the 2017 Action after the joint inspection.^[15]

16.On 15 October 2020, D (by its then chairman and secretary) was refused entry into D71 for the purpose of visual inspection because D was not accompanied by its expert in the 2017 Action, but by a representative from LYB.

17.On 22 March 2021, D via its management office wrote to P’s solicitors, reiterating the 3^rd Questionnaire and asking P to make arrangement with the management office so that LYB could inspect and repair D71within the warranty period.^[16]

18.By letter dated 13 April 2021^[17], P refused the inspection to be carried out by LYB unless D accepted the responsibility of the water seepage problem at D71, a problem having been caused by the defective external wall of the Building. By the same letter, P took the view that even if the water seepage problems were not covered by the 2017 Action, LYB nevertheless did not have the necessary expertise to determine the cause of those problems.

19.The 2017 Action was tried in May and June 2021 and the Judgment handed down on 8 September 2021.^[18]

20.After the Judgment was handed down, D emailed P on 10 September 2021, seeking permission from P to enter D71 for inspection.^[19] By email dated 20 September 2021, P replied by stating that the water seepage problem at D71 still persisted and asking D to contact its tenant Mr Leung directly for the inspection.^[20]

21.On 25 September 2021, D (by chairman Mr Yuen and secretary Dr Woo) visited D71 and observed peeling-off of wall paint. It was agreed that waterproofing works had to be undertaken.

22.By letter dated 7 October 2021, P asked D to provide a rectification plan and the timeline of carrying out the rectification within 42 days, otherwise legal proceedings would be issued without further notice.^[21]

23.On 11 October 2021, P’s tenant complained of serious water seepage problem at D71’s dining and living areas after heavy downpour. On the same day, D was notified by the owner of Flat D81, Block D of the Building (“D81”), a vacant flat immediately above D71, that rainwater overflowed on the balcony of D81.^[22] Some remedial measures were taken by the owner of D81 and the overflow problem at D81 was resolved. D had received no further water seepage complaint from P and Mr Leung even after typhoon signal No 8 was hoisted on 13 October 2021.

24.By letter dated 2 November 2021, P reiterated its demand to D for a detailed rectification plan within 42 days from 7 October 2021 whilst acknowledging that the overflow of water on the balcony of D81 could also be another possible source of the water seepage problem at D71.^[23]

25.In early November 2021, it was agreed by the members of the 3^rd Management Committee of D that repair works had to be conducted on the external walls outside both D71 and D81 and scaffoldings erected outside D81.^[24] However, D81’s owner refused D’s access to its flat for repair works. Therefore, the members of the 3^rd Management Committee of D decided to gain access to D71 to carry out the repair works.^[25]

26.By letter dated 8 November 2021, the management office of D proposed to P that it would obtain quotation from contractors to repair external walls outside D71 with access through D71 for 1 week.^[26] On 12 November 2021, P rejected D’s proposal.^[27]

27.On 16 November 2021, the management office of D contacted BMC Construction Centre Limited (“BMC”) for quotation for the repair and maintenance works to be carried out on the external walls outside 7/F to 9/F of Block D of the Building by scaffoldings to be erected from the roof top to 7/F of Block D of the Building.^[28]

28.Between 16 and 22 November 2021, the staff of BMC conducted a site visit and expressed safety concerns as to erecting scaffoldings from the roof top to 7/F. BMC proposed to D to erect the scaffoldings from the G/F to 7/F of Block D of the Building. On 23 November 2021, BMC provided D with a quotation, setting out in detail the repair works to be carried out on the external walls of 7/F to 9/F of Block D of the Building at the price of HK$103,600.00.^[29] (“the 1^st Quotation”) The 1^st Quotation provided for erecting scaffoldings from G/F to 9/F of Block D of the Building and 25 to 30 working days for the repair works to be completed.^[30]

29.On 26 November 2021, members of the 3^rd Management Committee of D decided to undertake repair works on the periphery of D71’s windows and, should there be any further worsening of the cement rendering at D71’s wall, to undertake waterproofing works on the external walls at D71.^[31] (“the 26/11/21 Resolution”)

30.On 1 December 2021, P reiterated that D’s proposal made on 8 November 2021 was not acceptable and threatened to take legal proceedings against D.^[32]

31.On 8 December 2021, D informed P in writing of the 26/11/21 Resolution and proposed that 2.5 days were needed for the repair works to be done on the periphery of D71’s windows.^[33] By letter dated 10 December 2021, D explained to P that since D81’s owner refused D’s access to the external walls through D81 and BMC rejected scaffoldings to be erected from the roof top to D81 and D71, it was to be hoped that the 26/11/21 Resolution would be accepted.^[34]

32.On 24 December 2021, P expressed its discontent over the 26/11/21 Resolution, but asked for a detailed plan on effecting repair works on the external walls with access through D71 to be provided.^[35]

33.On 5 January 2022, D informed P that it had explored another option to effect repair works on the external walls outside D71 without the need of access to D71 and that the relevant repair works would commence in mid-February 2022.^[36]

34.On 12 January 2022, members of the 3^rd Management Committee of D approved through Whatsapp the 2^nd quotation^[37] provided by BMC on 11 January 2022.^[38] (“the 2^nd Quotation”) Under the 2^nd Quotation, the repair works were to be carried out on the external walls of 7/F of Block D of the Building (with access via the staircase window) at a discounted price of HK$35,800.00.

35.On 17 January 2022, D by email asked BMC to provide for an exact date to commence the repair works.^[39] On 27 January 2022, BMC by email provided D with a time schedule for erecting scaffoldings on 15 February 2022 and carrying out the repair works from 15 to 18 February 2022.^[40]

36.On 24 January 2022, P issued the instant action against D.

37.Between 15 and 17 February 2022, BMC carried out the repair works.^[41]

38.On 22 February 2022, P inquired about the scope of the repair works.^[42]

39.On 3 March 2022, P took out the Summons.

40.After the issue of the Summons,

(a) D wrote to inform P of the scope and completion of the repair works and a water spray test was proposed to verify that the water seepage problem had ceased^[43];

(b) D was asked by and provided to P copy of all contractual documents regarding the repair works carried out by BMC^[44];

(c) P, upon enquiry, wrote to D, informing the latter that the water seepage problem still persisted, and rejected the water spray test proposed^[45]; and

(d) it was resolved at the meeting of the 3^rd Management Committee of D held on 20 April 2022 that D would engage contractor to conduct water spray test at the external walls outside D71, that if the interior walls of D71 did not become damp, D would engage contractors to carry out repair works on the external walls outside D81 which would be followed by a water spray test and that if the interior walls of D71 became damp, BMC would follow up on the matter^[46].

41.In support of the Summons, P exhibited an expert report compiled by a surveyor, Mr Lam Wai Keung Andrew (“Mr Lam”) of CBRE Limited dated 6 May 2022.^[47] (“the 6/5/22 Report”) In essence, Mr Lam in the 6/5/22 Report opined that the water seepage at the wall of D71’s dining room had either reoccurred or the water seepage had not stopped, that the new waterproofing coating laid in February 2022 was ineffective mainly due to the nature of the material used and the unrepaired external wall rendering and that it was not a reliable method of preventing water from seeping into the external wall and could not solve the water seepage problem.^[48]

42.So much for the background of this case.

C. THE JUDGMENT

43.This action is not the first action commenced by P against D concerning the said water seepage. As aforementioned, P commenced the 2017 Action on 19 May 2017. P’s claim was then sounded in negligence and breach of the DMC.^[49] D counterclaimed P in the 2017 Action, but its counterclaim therein is not relevant to my decision on the Summons.

44.Of relevance are the findings: -

(a) at para 8 of the Judgment^[50] that “the damage at the L-shape [Area] found at the left bottom corner of the wall located at the subject dining room was caused by rainwater permeating through the external wall, and had nothing to do with the window-frames of either [P’s] Flat or Unit D81”;

(b) at para 39 of the Judgment^[51] that “… the correspondence and other evidence adduced in court show that [D] had taken reasonable steps in dealing with [P’s] complaint in relation to the Subject Seepage Problem …”^[52]; and

(c) at para 40 of the Judgment^[53] that “[D] has not breached its duty at all even though rainwater did seep through the external wall of Block D.”

45.In the 2017 Action, the relevant time-frame for HH Judge Au-Yeung to determine whether D had taken appropriate steps in remedying the situation after having been informed of the Subject Seepage Problem was from early 2015 when P first discovered the water seepage problem to 19 May 2017 when the 2017 Action was commenced. At para 37 of the Judgment^[54], HH Judge Au-Yeung held the following: -

“While Mr Tam of [P] had given evidence and was cross-examined on certain follow-up action done by [D’s] contractor (for the purpose of some other work) in late 2017, both counsel agreed during closing submissions that the “cutting-off point” in considering the reasonableness of [D’s] action in the handling of [P’s] complaint in relation to the Subject Seepage Problem should be the time when [P] issued the writ herein (i.e. 19 May 2017). Therefore, for the purpose of considering this issue, I’ll disregard what happened after 19 May 2017.”

46.Hence, I agree with Mr Chok, counsel representing D, that the issue of whether D had taken reasonable/appropriate steps in remedying the said water seepage from early 2015 to 19 May 2017 is res judicata^[55] and P has been precluded from raising this issue again in the instant action.

47.The same however cannot be said to be true when one considers whether D has been precluded from raising the issue as to whether water seepage problem was caused by defective external wall outside D71 from 19 May 2017 to 8 September 2021. Since the Judgment has chosen 19 May 2017 (ie the date of issue of the 2017 Action) as the “cutting-off” point on the basis of the agreement between the parties and dismissed the 2017 Action, it must be the case that the cause of the water seepage problem to D71 after 19 May 2017 would not be necessary or fundamental to the Judgment.^[56] To demonstrate the lack of fundamentality of the aforesaid issue, the relevant question would be: Even if there is no finding on the aforesaid issue, does it follow that the Judgment cannot stand? In the present case, the answer to this relevant question is a resounding “No”.

D. THE LAW

48.The legal principles applicable to an application for summary judgment are trite and beyond dispute. In Ju Yan Di Emperory Genesisy v Yan Wai Han [2015] 1 HKLRD 822, Cheung JA held at p 827, para 14 as follows: -

“It is well-established that the burden on the defendant in a summary judgment application is to show that he has a credible defence and he must condescend to give particulars of his defence. However, this does not mean that once the plaintiff invokes the application and irrespective of the strength of his case, the defendant bears all the burden of showing that there are triable issues in the case. This is because the starting point in a summary judgment application is that it should only be invoked when there is no defence to the claim. This means that the plaintiff must in the first place demonstrate that the defendant has indeed no defence. This requirement is further recognised in the procedural rules which mandate the plaintiff to state his belief in the verifying affidavit that there is no defence to the claim. This requirement must be kept in proper perspective when assessment is made of the strength of the application, otherwise there is a danger that the attention will be focused solely on what the defendant has said without consideration at the same time of the basic premise of the plaintiff’s claim or its inherent strength and weakness. …”

49.The parties have helpfully referred to the court various cases illustrating similar legal principles.^[57] But I do not think I need to lengthen this Decision by citing those cases in extenso.

50.Where the plaintiff seeks equitable relief (e.g. a mandatory injunction), summary judgment may not be appropriate even if there is no defence as regards the plaintiff ’s cause of action, as the question of whether the Court should grant equitable relief may depend on fact- sensitive issues (e.g. acquiescence or hardship).[58]

51.Hence, where a plaintiff ’s claim is for a discretionary remedy, e.g. an injunction, even if the court is satisfied that there is no defence, it remains necessary for the plaintiff to satisfy the court that the discretionary remedy should be granted.[59]

E. ANALYSIS

E-1. P’s Arguments

52.In a nutshell, P contends the following: -

(a) D seemingly has not disputed that the source of water seepage complained of was the defective external wall from which rainwater seeped into D71 causing damage to the L-shape Area. D’s allegation that there might be new sources of seepage is misconceived.

(b) D’s mere “belief” without investigation of the cause of water leakage falls foul of the approach in Yui Tat Nam Darney & Anor v Century Bridge Limited, (supra) at pp 15-16, para 37 that in order to discharge the burden to show an arguable defence, the defendant may have to go and carry out its own investigation and come up with other potential sources, if any and that a bare denial is clearly insufficient.

(c) Upon the finding of the Judgment that the water seepage emanated from the external wall, D must bear the liability to remedy the water seepage problem and the issue would only be whether D had actually taken remedial measures.

(d) D has failed to condescend to particulars as to the actual remedial measures performed at the specific location affected. The only repair works conducted took place on 15 to 17 February 2022 and those repair works were not sufficient. D has failed to take the required steps to cure the water seepage problem.

(e) More than 7 years have elapsed since the discovery of the water seepage at D71. D is still unable to say categorically that the water seepage problem has been fixed.

E-2. D’s Arguments

53.D however argues the following: -

(a) To determine whether D was liable for the water seepage problem at D71, the test was not whether the Refurbishment Works or remedial measures had cured the water seepage problem. There is no requirement that the remedial measures taken must effectively stop the water seepage problem before the court can rule that D had acted reasonably. The test should be whether, after realizing the water seepage problem, D has taken reasonable steps to remedy the problem.

(b) D relies on various authorities: -

(i) Lo Yuk Chu v Hang Yick Properties Management Ltd [1996] 4 HKC 278, at 281H-282E and 顏小明 v 多福大廈業主立案法團, LDBM 79/2007 (Unreported), 27 August 2012, at p 18, para 48: The Incorporated Owners’ duty under BMO and the DMC is never intended to be absolute in the sense that the overall duty imposed was one of proper management, ie doing all that was reasonably required in the circumstances. The liability however may arise if there is fault on the part of the Incorporated Owners or having been made aware of the defects which required remedy, the Incorporated Owners take no appropriate steps.

(ii) Lau Chun Wing Rod v The Incorporated Owners of Po On Building, CACV 20/2007 (Unreported), 1 November 2007, at p 5, paras 12 & 13: Section 18 of BMO does not provide an insurance. The judge below held the defendant liable because it failed to act effectively when it should have taken action. What is required to be done in carrying out the duty will differ according to the circumstances.

(iii) 張秀玲及吳炳漢 v 鄭禮莊, CACV 268/1998 (未經彙報), 9 April 1999: In private law of nuisance, the defendant must have knowledge that water seepage was originated from his/her own property before he/she can be liable. Knowledge on the part of the defendant can be actual or constructive^[60]. Once the defendant knew that water seeped from his/her own property into another person’s property, he/she must remedy the water seepage problem without unreasonable delay.

(iv) Loke Yuen Jean Tak Alice v Wong Kit Ying [2019] HKCFI 1895 (per M Ng J) on “unreasonable user by a man of his land to the detriment of his neighbour” in private nuisance, and the tendency to move away from strict liability and assimilate nuisance and negligence.

(c) P is precluded by the principle of res judicata to claim any loss and damage arising from the period from 11 December 2015 to 19 May 2017.

(d) For the period between 19 May 2017 and 8 September 2021, D did not sit back but had been in constant contact with P and had taken reasonable steps to remedy the water seepage problem.

(e) For the period between 9 September 2021 and 24 January 2022, D had immediately contacted P and obtained quotations to effect necessary repairs after the Judgment was handed down on 8 September 2021.

E-3. My View

54.As I have said in the earlier part of this Decision, the issue of whether D had taken reasonable/appropriate steps in remedying the said water seepage problem at D71 from early 2015 to 19 May 2017 is res judicata. P cannot in this action raise this issue again and contend otherwise to support its claim in breach of duty under section 18(1) of BMO, negligence and nuisance. During oral submissions, it appeared that the parties were ad idem on this aspect.

55.The nub of this case is whether, for the period between 19 May 2017 and 24 January 2022,

(a) water had continuously seeped into D71 from the adjoining defective external wall and continuously caused damage to the wall at D71’s dining room;

(b) D knew or should have known that the damage to the wall at D71’s dining room was caused by water seepage through the defective external wall; and

(c) D had failed to take reasonable/appropriate/effective steps to remedy the defective external wall.

56.It is well established that it is not for D to find out the source of the water seepage into D71 or to prove that the water seepage did not come from the defective external wall of the Building.^[61] The doctrine of res ipsa loquitur does not apply in the present case.[62] The burden is on P to prove that the water seepage was originated from the defective external wall of the Building. I have also taken the view that the Judgment does not preclude D from raising the issue as to whether water seepage problem at D71 was caused by the defective external wall of the Building from 19 May 2017 to 8 September 2021. However, the tenor of D’s argument does not seem to have raised the cause of the water seepage as an issue. The only issue raised by D is that D had taken reasonable steps to remedy the defective external wall to stop the water seepage problem at D71.

57.Almost all the background facts mentioned in this Decision are indisputable and are evidenced by contemporaneous documents exhibited by the parties. Upon a reading of all the background facts and all the evidence filed by the parties, I am of the following view: -

(a) It is not a case where D after having been made known of the water seepage problem at D71, it had done nothing. From 19 May 2017 to 24 January 2022, D cannot be complained of having adopted a “wait-and-see” approach.

(b) For the period between 19 May 2017 and 8 September 2021, LYB was engaged by D to carry out the Refurbishment Works on the common parts of the Building including concrete and rendering repair works at the external walls of the Building. The Refurbishment Works started in 2017 and were completed around early 2019. Various questionnaires were sent by LYB to P and it was only on 17 April 2019 that P wrote the 17/4/19 Letter, notifying D that the water seepage still existed. Thereafter, P and D were in constant correspondence with each other. It should be remembered that the parties were already in litigation mode and each had engaged their own expert attributing water seepage problem at D71 to different causes. With the litigation mindset, it would be difficult if not impossible for P and D to collaborate with each other to remedy the water seepage problem effectively. This litigation mindset might have obscured their good sense and forbearance in remedying the water seepage problem pragmatically. That explains why D accompanied by LYD staff were refused entry into D71 for the purpose of visual inspection on 15 October 2020. In my view, there is a triable issue as to whether D had taken reasonable steps between 19 May 2017 and 8 September 2021 to remedy the defective external wall to stop the water seepage problem at D71.

(c) After the Judgment was handed down on 8 September 2021, D visited D71 on 25 September 2021 and agreed that waterproofing works had to be undertaken. Notwithstanding that at one point of time, D suspected that overflow problem at D81 might be another cause of the water seepage problem at D71, D nevertheless had taken steps to carry out repair works on the external walls outside D71. Repair works to be carried out at the external wall outside D71 are complicated tasks. This was particularly so when D was to carry out those works by the funding of all the owners of the Building at the time when Hong Kong was hard hit by the pandemic. There were questions such as whether the price quoted by the contractor for the repair works was reasonable, the number of tenders to be received by the management committee of D for their consideration, how the repair works to be carried and the point of access through which the repair works to the external wall were to be carried out at the scaffoldings erected outside D71. The foregoing were no easy tasks and had been undertaken by D. Before P commenced the instant action, the management committee of D had already approved the 2^nd Quotation under which BMC would carry out repair works on the external walls of 7/F of Block D of the Building (with access via the staircase window) at a discounted price of HK$35,800.00, and by email asked BMC to provide for an exact date to commence the repair works. After the instant action was issued, BMC had carried out the repair works between 15 and 17 February 2022. With all this indisputable evidence, I cannot conclude that there is no triable issue on whether D had taken reasonable step between 9 September 2021 and 24 January 2022 to remedy the defective external wall to stop the water seepage problem at D71.

(d) Although P is dissatisfied with the repair works carried out by BMC, D has proposed water spray test to check whether the water seepage problem at D71 had ceased. It was D’s position that if the result of the water spray test was positive, ie the interior walls of D71 becoming damp, BMC would follow up on the matter. D has not stopped short of the repair works done in February 2022.

(e) For the period between 8 September 2021 and 24 January 2022 (the date when the instant action was issued), there were some incidents whereby D could be perceived as not acting with goodwill to deal with the water seepage problem at D71, for instance, the non-provision of a timeline of carrying out the rectification plan by D to P and the decision of the 3^rd Management Committee of D on 26 November 2021 to undertake repair works on the periphery of D71’s windows. Those incidents have fueled the discontent of P over D’s handling of the water seepage problem at D71. Those incidents might have provided some justifications for P to embark on the Summons.

F. DISPOSITION

58.In light of the aforesaid, I am driven to hold that D has demonstrated to my satisfaction that there is a fair or reasonable probability that D has a real or bona fide defence to the instant action.

59.Accordingly, I refuse to give summary judgment for P. But I am not satisfied that this is an appropriate case for me to dismiss the Summons outright. I hereby grant D unconditional leave to defend the instant action and pursuant to Ord.14, r.6 of the Rules of District Court (Cap.336H) (“RDC”), prescribe the following consequential directions for the future conduct thereof[63]: -

(a) D do file and serve its Defence and Counterclaim (if any) within 14 days[64] from today’s Order, ie on or before 31 March 2023;

(b) P do file and serve their Reply and Defence to Counterclaim (if any), within 14 days thereafter, ie on or before 14 April 2023;

(c) The parties do file and serve their respective Timetabling Questionnaire within 14 days thereafter or within 28 days after service of D’s Defence if there is no Reply filed by P, ie on or before 28 April 2023; and

(d) P do take out case management summons within 14 days thereafter, ie on or before 12 May 2023.

60.I further make a costs order nisi that the costs of and occasioned by the Summons be in the cause with certificate for one counsel.

61.Lastly, it remains for me to thank counsel for their helpful assistance.

Mr Andrew Mak leading Mr Abel Lam, instructed by Tsang, Chan & Woo Solicitors & Notaries, for the plaintiff

Mr Brian Chok, instructed by Chiu, Szeto & Cheng Solicitors, for the defendant