Chu Yuet Sun v. The Incorporated Owners of Dragon Inn Court
Read the full judgment text of DCCJ 5054/2021 on BabelCite. This District Court judgment was delivered on 9 July 2024.
1. By summons filed on 13 October 2023 (“ the Summons ”), the Defendant applies for the following order:-
Cited by 1 case · Cites 5 cases
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DCCJ 5054/2021 [2024] HKDC 1107 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 5054 OF 2021 ------------------------------
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------------------------- DECISION ------------------------- A. INTRODUCTION 1.By summons filed on 13 October 2023 (“the Summons”), the Defendant applies for the following order:-
2.The tests, examinations and experiments specified in Schedule 1 to the Summons (“the Proposed Tests”) are set out verbatim and in full in the Schedule to this Decision. 3.The application is opposed by the Plaintiff. B. BACKGROUND 4.This is a water leakage case. The Plaintiff is the registered owner of the Plaintiff’s Premises, and the Defendant is the incorporated owners of Dragon Inn Court (“the Building”) at which the Plaintiff’s Premises is situated. 5.The Plaintiff’s case is that in or around March 2019, it was discovered that water overflowing from the overfilled water tank (“the Water Tank”) on the rooftop had been leaking into Flat A of 12/F (“Flat 12A”) of the Plaintiff’s Premises, the causes of leakage being the defective waterproofing system or layer (“the Waterproofing Layer”) above Flat 12A but underneath its flat roof (“the Flat Roof”), and the defective external walls (“the External Walls”). The Waterproofing Layer and the External Walls are common facilities of the Building, and therefore the Defendant is responsible for their maintenance and repair pursuant to the Deed of Mutual Covenant (“the DMC”) and the Buildings Management Ordinance (Cap 344) (“the BMO”). The Plaintiff also alleges the unlawful or improper installation of the sewage drain of the Water Tank as another cause of water leakage into Flat 12A. The water leakage caused damage to Flat 12A, threatened the safety of occupants and rendered Flat 12A unsuitable and unsafe for occupation or letting out. As a result, the last tenant determined the tenancy and moved out in January 2019. Despite repeated requests and demands, the Defendant failed to take steps to repair or remedy the Waterproofing Layer or the External Walls or to stop water leakage. The Plaintiff sues the Defendant in negligence and breach of duties under the DMC and the BMO, and claims a mandatory injunction for repair/replacement of the Waterproofing Layer and the External Walls and damages including renovation costs and loss of rental income / mesne profits. 6.The Defendant avers that unauthorised building works (“the UBWs”) were seen on that part of the Flat Roof above the living room of Flat 12A from 2006 to 2007, and a prefabricated structure (“the Structure”) had been erected on that part of the Flat Roof above the bedroom of Flat 12A around May 2017 (or earlier). The UBWs and the Structure were removed in or about May 2019. Moreover, Flat Roof had been renovated such that the floor of the Flat Roof has been elevated and the floor tiles have been replaced (“the Renovation Works”). The Defendant’s case is that the UBWs, the Structure and the Renovation Works damaged the Waterproofing Layer and the External Walls, and as a result such damage caused water leakage. The Defendant has on 3 January 2020 proposed to repair or replace the Waterproofing Layer and the External Walls as per the suggestion of its contractor, provided that the Plaintiff shall be responsible for removing and reinstating the floor tiles of the roof before and after the repair. Nevertheless, such a proposal was rejected. The Defendant avers that any alleged loss and damage to the Plaintiff was caused wholly or contributed to by the negligence, breach of the DMC and breach of statutory duties of the Plaintiff. It is also the Defendant’s case that the Waterproofing Layer is not a common part of the Building, and therefore it is not responsible for the maintenance and repair of the Waterproofing Layer. C. THE DECISION 7.On 3 November 2022, the Plaintiff filed a summons for (1) summary judgment under Order 14 rule 1 of the Rules of the District Court (Cap 336H, sub leg) (“RDC”), (2) determination of a question of law under Order 14A rule 1 RDC, (3) judgment on admissions under Order 27 rule 3 RDC, and (4) an interlocutory mandatory injunction under Order 29 rule 1 RDC. 8.By the Decision, the learned judge granted unconditional leave to the Defendant to defend this action, and dismissed the Plaintiff’s application for an order under Order 14A and for judgment on admissions under Order 27. Further, upon the Plaintiff’s undertaking that (a) if the court later finds that the order has caused loss to the Defendant or any other party and decides that the Defendant or that other party should be compensated for such loss, the Plaintiff will comply with any order the court may make, and (b) the Plaintiff shall permit the Defendant to remove the existing tiles on the Flat Roof for the purposes of facilitating the Works (as defined), the learned judge allowed the Plaintiff’s application for interlocutory mandatory injunction and ordered that:
9.The learned judge further gave the following expert directions in the Appendix to the Decision (“Expert Directions”):-
D. LEGAL PRINCIPLES 10.The Defendant applies for inspecting the Plaintiff’s Premises and carrying out the Proposed Tests pursuant to Order 29 rules 2 and 3 RDC. 11.Order 29 rule 2 provides that:-
12.Order 29 rule 3 provides that:-
13.Mr Lawrence Ngai, Counsel for the Defendant, cited Wong Man Tat v Chan Yuen Man & Others CACV 347/2007, unreported, 24 April 2008, a water seepage case, in which one of the grounds of appeal was that the plaintiff had refused to allow the defendants’ expert to enter into the plaintiff’s flat for tests. The Court of Appeal held, at paragraph 34:-
14.Mr Ngai cited also Leung Wan Ming v Lie Mey Fong HCA 1267/2011, unreported, 10 December 2012, another water seepage case, in which Deputy High Court Judge Woo allowed the plaintiff’s application for inspecting and carrying out tests at the defendant’s premises by applying Order 29 rule 2 of the Rules of High Court (Cap 4A, sub leg) and the aforesaid ruling of the Court of Appeal in Wong Man Tat (supra). It was also accepted by the deputy judge and the parties thereto that the court has inherent jurisdiction to make suitable interlocutory orders for the purpose of promoting a fair and satisfactory trial. 15.Mr Ngai submitted that there is no dispute that the court has jurisdiction to make an order for inspection and tests, whether pursuant to Order 29 RDC or its inherent jurisdiction, and insofar as an application for carrying out tests is concerned, the question is whether it is necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter, or whether such an order would promote a fair and satisfactory trial. 16.Mr Roland Lau, Counsel for the Plaintiff, did not dispute the said legal principles and submissions. In addition, Mr Lau cited:-
17.Turning to the time extension application, the Defendant relies on Order 3 rule 5 RDC. Order 3 rule 5(1) RDC empowers the Court to extend the period within which a person is required or authorised by those rules, or by any judgment, order or direction, to do any act in any proceedings. 18.Mr Lau cited the Court of Appeal’s decision of Wing Fai Construction Company Ltd (in liquidation) v Cheng Kit Yin Kelly & Others CACV 249/2010, unreported, 8 April 2011, and relied specifically on the following part of paragraph 30 thereof:-
E. EVIDENCE 19.In support of the Summons, the Defendant filed the 1st and the 2nd Affirmations of Wu Wai Kong (“Wu”), the Chairman of the Management Committee of the Defendant. In opposition, the Plaintiff filed the 3rd and 4th Affirmations of Chan Chi Man. (I) Joint Inspection 20.On 6 July 2023 and 21 July 2023, upon the Plaintiff’s instructions, Collin Ng & Co (“CN&C”), solicitors for the Plaintiff, wrote to Messrs Chung & Kwan (“C&K”), solicitors for the Defendant, proposing Mr Chan Kwok Leung (“Chan”) as the Plaintiff’s additional expert and seeking the availability of the Defendant’s expert, ie Cheung, for joint site inspection. 21.By his email dated 28 July 2023, Cheung requested Chan to arrange a joint expert inspection on 31 July 2023, 1 August 2023 and 2 August 2023 to ascertain the extent of damage arising from water leakage, and also stated that the Defendant might formulate the field test or detection at the Flat Roof afterwards. 22.The Plaintiff alleges that Cheung’s said email of 28 July 2023 only reached Chan after close of business on 2 August 2023, and Chan replied by email on 4 August 2023, stating, among other things, a joint inspection was considered unnecessary by the Plaintiff and Chan, and in any event a joint inspection of 3 consecutive days from 31 July 2023 was unreasonable and impracticable. 23.On 7 August 2023, CN&C wrote to C&K, alleging the Defendant’s breach of the Injunction for failing to carry out any repair works, while counter-proposing a joint inspection of no more than half a day on a date to be agreed by parties. 24.Eventually, on 15 August 2023, a joint inspection of Chan and Cheung (“Joint Inspection”) took place. At the Joint Inspection, the experts only had visual inspection of Flat 12A, the Flat Roof and the External Walls and took photographs. Moreover, according to Cheung, there was no visual inspection of the upper flat roof and the Water Tank. No tests, examinations or experiments were conducted on that day. During the Joint Inspection, despite Cheung’s indication, Chan did not consider any further tests necessary. (II) Defendant’s request for further inspection and tests 25.On 25 August 2023, Cheung sent an email to Chan, informing that he would send his proposed method statement and test plan later. 26.On 31 August 2023, Cheung sent an email to Chan, attaching a method statement with testing plan for conducting tests, examinations and experiments at the Flat Roof and the External Walls. The method statement is the same as the Proposed Tests set out in the Schedule to the Summons. On the same day, Chan sent an email to Cheung, saying that he did not see any ground or reason to carry out any further inspection and test. Chan alleged that the Defendant could inspect the External Walls without engaging the Plaintiff or her expert. 27.On 5 September 2023, C&K sent a letter to CN&C, pointing out that Chan and Cheung had agreed at the Joint Inspection that a second joint inspection would be held and, further on 31 August 2023 at about 11:50 am, Chan made a telephone call to Cheung, informing his agreement to arrange for a second joint inspection of the External Walls. According to C&K, as Chan did not oppose to Cheung’s suggestion of field test or detection at the Flat Roof as stated in his email of 28 July 2023, therefore Cheung sent the Proposed Tests to Chan on 31 August 2023. C&K requested CN&C to confirm whether the Plaintiff would agree to apply jointly for extension of time to file the joint expert statement and to commence repair works to the Waterproofing Layer and External Walls pursuant to the Injunction. 28.Meanwhile, according to the Decision, the deadline for the Defendant to commence remedial works pursuant to the Injunction fell on 10 September 2023. 29.On 11 September 2023, CN&C sent a letter to C&K, complaining the Defendant for failing to comply with the Injunction within 75 days of the order of Deputy District Judge Kay Seto (“the Order”). 30.On 13 September 2023, C&K made a written reply to CN&C, denying the complaint of non-compliance with the Injunction and stating that TW Engineering Company had been appointed as the contractor for the works, and some works had been commenced, including the delivery of tools to the Building on 10 September 2023, the filing of the Notice of Commencement of Minor Works with the Buildings Department on 11 September 2023, and the expected delivery of some materials to the Building later that week. C&K further stated that major destructive works at the Waterproofing Layer and External Walls could not be started unless and until the Proposed Tests were completed. 31.On 14 September 2023, C&K sent a letter to CN&C, attaching therewith an email dated 6 September 2023 from Chan to Cheung, in which Chan requested Cheung to provide the grounds to justify the necessity of carrying out any further tests. C&K stated that:-
32.In summary, the Defendant’s position is that the Works ordered by the learned judge cannot be commenced yet because the Proposed Tests have not been carried out. The Defendant therefore seeks time extension from this Court for the Works as well as the compliance with the Expert Directions. 33.The Plaintiff’s position is that the joint investigation ordered by the Court was duly carried out, and Flat 12A, the Flat Roof as well as the External Walls were inspected. All locations of water seepage jointly found by Chan and Cheung are not inconsistent with those found by the Defendant’s previous expert, and the External Walls which are well within the Defendant’s own control power and management can be inspected without the Plaintiff’s involvement. Hence, the Defendant’s failure to carry out any repair and remedial works in breach of the Order was not due to any failure or refusal to allow the Defendant to carry out further or additional testing. 34.In support of her position, the Plaintiff adduced a further expert report dated 20 December 2023 prepared by Chan (at exhibit CCM-2) (“Chan’s Further Report”) pursuant to paragraph 3 of the Expert Directions. As admitted in paragraph 1.3 and 3.1 of Chan’s Further Report, Chan and Cheung carried out the Joint Inspection on 15 August 2023, and the said report was prepared according to Chan’s visual inspection and information and opinions previously given by other experts including the CME Report. According to paragraphs 5.1 to 5.3 thereof, visual inspection on 55 locations of Flat 12A including the ceiling and walls, as well as the Flat Roof and upper flat roof/Water Tank, was carried out. Salient findings and conclusions relevant to the present application include:-
(III) Defendant’s steps in complying with the Injunction 35.Meanwhile, since the Decision, the property manager of the Building had invited various contractors to submit tenders in relation to the required repair works, and eventually 3 contractors submitted their tenders which were considered by the Management Committee at the meeting on 15 August 2023. At the said meeting, TW Engineering Company was appointed to be the contractor for the repair works at the contractual price of HK$570,000.00. 36.By its letter dated 23 August 2023, TW Engineering Company stated, among other things, that the repair works were expected to take around 45 days from early September 2023 to late October 2023. 37.By its letter dated 4 September 2023, TW Engineering Company informed the Defendant that in late August 2023, it had already taken some steps for the repair works including the inspection of sites and the confirmation of the works procedure. 38.In early September 2023, TW Engineering Company provided the Defendant with an estimated time schedule of the repair works, in which it was stated that the works could be commenced on 20 September 2023 and completed within 45 days. 39.According to the Defendant, by reason of the need to have further inspections and tests which were declined by the Plaintiff, the repair works had to be postponed. Such postponement does not benefit the Defendant, and indeed the Defendant will incur more costs as TW Engineering Company indicated in December 2023 that it was minded to increase the price for the repair works due to the delay. F. DISCUSSION (I) Question 1 – Should the Defendant be permitted to inspect and observe the Plaintiff’s Premises and carry out the Proposed Tests? 40.The first question is whether the Defendant should be permitted to inspect and observe the Plaintiff’s Premises and carry out the Proposed Tests. Implicit in this question are the following sub-questions:-
(i) Question 1(1) – Relevant triable issues 41.In my view, the triable issues which are relevant to this application are the exact locations of water seepage at the Plaintiff’s Premises, and the cause(s) of water seepage at each location. At the centre of these triable issues are the following sub-issues:-
42.In the Decision, the learned judge also accepted that the Defendant pleaded the aforesaid issues with Cheung’s expert evidence in support – see paragraphs 12, 13, 16, 29, 31 and 32 thereof. (ii) Question 1(2) – Whether the CME Report has sufficiently addressed the triable issues 43.As stated in C&K’s letter dated 14 September 2023, the Defendant’s position is that the CME Report did not address the issue of cause(s) of water seepage at each location of the Plaintiff’s Premises because both the flooding dye test for the Flat Roof and the spray test for the External Walls were conducted on the same day at around the same time. (“First Concern”) The Defendant further avers that in relation to the Waterproofing Layer, the CME Report did not address which part of the same was damaged and what caused such damage. For example, whether the damage was situated at and caused by the Structure or the alteration to the surface channel (ie the Renovation Works). (“Second Concern”) 44.At this hearing, only an extract of the CME Report was attached to the Plaintiff’s Skeleton Submissions. That said, I notice from the procedure set out in page 10 of the CME Report that nothing was said that the flooding dye test for the Flat Roof and the spray test for the External Walls were conducted on different days or at different times. Moreover, from the same procedure, no different tests were done to different parts of the Flat Roof such as that part with (or used to have) the UBWs, the Structure or the Renovation Works. 45.Indeed, the Plaintiff has not denied that the CME Report does not address the two concerns. The Plaintiff’s plea in paragraph 10(7)(i) of her Reply that “[t]here was nothing in the [CME Report] that could “advise” or assert any professional opinion on with regard to any alleged “Unauthorised Building Works” which did not even exist at the time of their ‘inspection” (ie 21 November 2019), nor any “renovation works” which never did [CME], nor the Plaintiff have any knowledge of or about” further suggests that the CME Report is insufficient to address the two concerns. 46.In fact, the learned judge was aware that the Defendant’s two concerns (raised in substance, though perhaps not as distinctly formulated as in C&K’s letter dated 14 September 2023 and at this hearing) were not addressed by the CME Report, as evident from:-
47.I agree that the CME Report did not address the two concerns of the Defendant which are legitimate and relevant to the relevant triable issues. For the First Concern, water seepage detected at a location could have been caused by the damaged Waterproofing Layer or the damaged External Walls or both, and the failure to distinguish whether the Waterproofing Layer but not the External Walls (or vice versa) is the cause of water seepage poses a problem in this case because it is disputed whether the Waterproofing Layer is a common part of the Building. For the Second Concern, even if the Waterproofing Layer is ultimately found to be a common part of the Building, the Defendant would not be liable for the water seepage if the damage to the Waterproofing Layer was caused by the UBWs, the Structure and/or the Renovation Works, and so the failure to ascertain which particular part(s) of the damaged Waterproofing Layer is/are the cause(s) of water seepage poses another problem. 48.Mr Lau submitted that at the previous hearing before the learned judge, the Defendant had already procured the preparation of 2 expert reports, namely the CME Report and Cheung’s Report. According to Mr Lau, Cheung had made in-depth opinions with respect to the conditions of the Waterproofing Layer and the External Walls as well as causes leading to their damage (ie paragraphs 12 to 13 of the Decision), and therefore it is clear that the Defendant, even at the last hearing in May 2023, had already formed a firm and clear position as to the location of damage causing the water leakage/seepage problems at the Plaintiff’s Premises. The further expert reports anticipated in the Expert Directions, said Mr Lau, would be confined to those issues related to liability, damages and the particular type of repair or remedial works that should be conducted. 49.I disagree. As I said, the learned judge accepted that the two concerns were also triable issues which had not been addressed in the CME Report, and so the Expert Directions were granted for parties to prepare expert reports. Whilst I have not had the opportunity to read Cheung’s Report, the Decision especially paragraphs 12 and 13 thereof does not suggest that Cheung’s Report has covered (a) the precise cause(s) of water seepage at each location and (b) whether the UBWs, the Structure and/or the Renovation Works was/were responsible for the damage to the Waterproofing Layer and the External Walls. 50.Mr Lau further submitted that it was never stipulated in the Expert Directions that the parties’ experts should agree to the tests to be conducted, otherwise they would not have provided for parties’ experts to prepare a joint statement setting out any different parameters adopted as well as any differences in the expert opinions. In any event, the Joint Inspection was carried out, and it is clear that the ‘joint inspection or examination’ provided for in the Expert Directions or Decision should not be construed to be introducing new tests or experiments for either party. 51.Again, I disagree with Mr Lau. By the Expert Directions, the learned judge first set out the newly formulated expert issues including the cause(s) of water seepage at each location and whether any damage to the Waterproofing Layer and the External Walls was caused by the UBWs, the Structure and/or the Renovation Works (paragraph 3), then directed the appointment of one expert for each party (paragraph 4), followed by “joint inspection(s) and/or examination” of Flat 12A, Flat Roof, External Walls and rooftop of the Building (paragraph 5). Clearly, the learned judge contemplated that both parties’ experts may consider necessary to “examine” the water seepage problem at the Plaintiff’s Premises. There is nothing in the Expert Directions limiting the joint inspection and/or examination to such tests or experiments already conducted. Even if the learned judge meant “examination” to be no more than “inspection”, as set out in the authorities cited by Mr Lau, the court can order a test demonstrated to be reasonable or necessary for promoting a fair and satisfactory trial to be conducted even if the other party disagrees. 52.Further, in my view, it defies common sense for the Plaintiff to suggest that visual inspection is sufficient to tell the precise cause(s) of water seepage (that is to say, the Waterproofing Layer only, the External Walls only, the planters only, the Water Tank only, the other sources only, or a combination of one or more of them, or all of them) at each and every location. It is unreasonable for the Plaintiff to insist on the sufficiency of the Joint Inspection and deny the Defendant’s request for carrying out further inspection and tests to address the triable issues and the two concerns. 53.For completeness, I consider also whether Chan’s Further Report and other previous reports (other than the CME Report) have sufficiently addressed the triable issues and the two concerns. In my judgment, it is apparent that the Joint Inspection (which was merely visual inspection) and Chan’s Further Report were insufficient, having regard to paragraphs 6.2 and 7.1(2) thereof which stated that the cause(s) of water seepage at each of the 55 locations could be a combination of the defects and/or cracks at the Waterproofing Layer on the Flat Roof, the External Walls and the planters installed at the External Walls of the Building, the Water Tank and/or other sources. No precise cause(s) of water seepage was/were identified for each location. As to the other previous reports (other than the CME Report), they were not adduced before me, so I cannot make any finding that any of them is sufficient to address the triable issues and the two concerns. (iii) Question 1(3) – Whether the Proposed Tests address the triable issues 54.The Proposed Tests consist of four stages. 55.Stage A concerns conducting 96-hour colour dye water tests on the Flat Roof on Day 1. The Flat Roof shall be divided into 3 parts using polyfoam dam. During the water ponding test, that part of the Flat Roof where the UBWs and the Structure used to exist shall be tested with blue dye, that part of the Flat Roof with alterations to surface channels (i.e. the Renovation Works) shall be tested with yellow dye, and the remaining part shall be tested with red dye. The polyfoam dam is used to prevent the different colour dyes from mixing together. 56.Stage B concerns a 30-minute water spray test on the mosaic tiled External Walls/upper side of the balcony flat roof and planter box flat roof on Day 8. 57.Stage C concerns conducting visual inspection and ultra-violet flashlight scanning by UV flashlight, and recording any efflorescent effect/stain on the concrete ceiling and beam of Flat 12A and the External Walls after 7 days of completion of the colour dye ponding test on Day 15. 58.By Stage D, the Defendant’s expert shall attend open-up inspection during the appointed contractor’s first stage hacking off works on the Flat Roof. 59.As stated above, the Defendant explained the mechanism and necessity of the Proposed Tests, particularly Stage A and Stage B, in C&K’s letter dated 14 September 2023. Mr Lau complained that Cheung as expert for the Defendant failed to make an affirmation to explain the necessity of the Proposed Tests, and therefore Cheung’s alleged explanation for the Proposed Tests was far from candid. 60.I bear in mind the general principle that expert evidence intended to be adduced must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved; even if relevance is established, where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence and an opinion will not be received – Hong Kong Civil Procedure 2024, Volume 2, rubric J1/58/8. In my view, the said general principle applies equally when considering whether Cheung’s expert evidence is required for understanding the Proposed Tests – if I can understand the Proposed Tests with my knowledge and experience, then Cheung’s explanation is unnecessary. 61.In my judgment, carrying out Stage A water ponding tests and Stage B water spray test separately on Day 1 and Day 8 respectively will tell whether water seepage was caused by the damaged Waterproofing Layer or the damaged External Walls. Moreover, dividing the Flat Roof into 3 parts for water ponding tests using 3 different colour dyes will tell whether water seepage was caused by those parts with (or used to have) the UBWs, the Structure and/or the Renovation Works (for which the Defendant is not liable) or that part without anything (for which the Defendant is liable) or both. No expert evidence from Cheung is required to assist my understanding of Stage A and Stage B of the Proposed Tests. 62.Mr Ngai submitted that Stage C of the Proposed Tests is for result monitoring, which is part and parcel of Stage A and Stage B, and Stage D which involves an open-up inspection of the Flat Roof after the existing floor tiles and/or the thickened concrete floor is/are removed would allow Cheung to identify the part(s) of the Waterproofing Layer that is/are damaged. 63.In my judgment, I require no further expert evidence from Cheung to understand Stage C and Stage D of the Proposed Tests. I accept Mr Ngai’s submission on the explanation and necessity of Stage C and Stage D of the Proposed Tests. In particular, in respect of Stage C, as stated in paragraph 13 of the Decision, Cheung’s opinion was that the defective Waterproofing Layer has the effect of causing water seepage to the External Walls because water seeping from the Flat Roof brought along mineral contents in concrete and formed efflorescence which was found on the External Walls. Should efflorescent effect and stain be detected at the concrete ceiling and beam of Flat 12A, then water seepage was likely from a particular part or particular parts of the damaged Waterproofing Layer. Should efflorescent effect as well as stain be detected at the External Walls, then the water seepage and the damage were likely caused by a particular part or particular parts of the damaged Waterproofing Layer. 64.Indeed, the Plaintiff, with the assistance of her expert Chan and C&K’s letter dated 14 September 2023, should have been able to appreciate the mechanism and necessity of the Proposed Tests. 65.In the circumstances, I am satisfied that the Proposed Tests will address the triable issues and the two concerns. 66.In summary, I answer Question 1 in the affirmative, as it is both necessary and expedient, in order to promote a fair and satisfactory trial, for the Defendant to further inspect and observe the Plaintiff’s Premises and carry out the Proposed Tests in order to address the triable issues, namely (a) the precise cause(s) of water seepage at each location, and (b) whether the damage to the Waterproofing Layer and the External Walls was caused by the UBWs, the Structure and/or the Renovation Works. (II) Question 2 – Whether the Proposed Tests should be conducted before or after the remedial works 67.The second question is whether the Proposed Tests should be conducted before or after the remedial works in compliance with the Injunction. 68.At paragraph 42 of the Decision, the learned judge remarked that it was not disputed that there were extensive defects in the External Walls and the Waterproofing Layer which caused water seepage to the living room, master bedroom, bedroom and storeroom of Flat 12A since at least November 2019 (when CME carried out investigation of the Flat Roof and Flat 12A) and required the entire Waterproofing Layer and the defective parts of the External Walls to be repaired. 69.It is also instructive to refer to paragraphs 48 and 49 of the Decision. At the hearing before the learned judge, Mr Ngai (who also appeared for the Defendant on that occasion) submitted that the Defendant was agreeable to perform the repair works to the damaged External Walls and the damaged Waterproofing Layer provided that such repairs would be done after experts’ further inspection to ascertain the cause of the damage to the Waterproofing Layer and the External Walls, and without prejudice to the Defendant’s position that it should not be held liable for the costs thereof. In the premises, the learned judge granted the Injunction to order the Defendant to make repairs to the damaged Waterproofing Layer and the damaged External Walls, on the basis that it was without prejudice to the Defendant’s position that it should not be held liable for the costs thereof, and with directions that such repairs shall be done after the parties’ respective experts having had an opportunity to conduct further inspections to ascertain the cause of the damage to the Waterproofing Layer and the External Walls. 70.From the said parts of the Decision, it is not difficult to see that the learned judge envisaged that the remedial works would involve the complete or partial removal or replacement of the Waterproofing Layer and/or the surface of the External Walls, and such remedial works, once done, would render it impossible to carry out inspections or tests to find out the causes of water seepage at each location of the Plaintiff’s Premises. 71.In fact, as indicated in the estimated time schedule provided by TW Engineering Company, the remedial works would involve chiselling and waterproofing works of the Flat Roof and partial repair works of the External Walls. 72.I agree with the learned judge’s reasoning in respect of the sequence of inspections/tests and remedial works. At the same time, I am aware of paragraph 43 of the Decision, in which the learned judge highlighted the evidence that Flat 12A was unsafe for occupation since 2019, given that the ceiling concrete and walls were cracked and spalled, the built-in wardrobe and cabinets were rotten, the window frames were rusted, jammed and cracked, and the interior of Flat 12A was wet, slippery and highly humid. The learned judge further remarked that if the damaged Waterproofing Layer and External Walls were allowed to continue to remain in their current state, the concrete spalling might fall off from the ceiling, thereby creating a real risk of physical danger for the Plaintiff and her visitors at Flat 12A. 73.In my judgment, having regard to the necessity of conducting the Proposed Tests and the nature and extent of the remedial works, and in the absence of evidence suggesting any material deterioration of the water seepage problem or any heightened risk of danger to the safety of occupants compared with the situation at the time of the previous hearing, the Proposed Tests should still be conducted before the remedial works. 74.Mr Lau compiled a timetable setting out the dates for the compliance with the Injunction and the various paragraphs of the Expert Directions, and submitted that the preparation of further expert reports simply has nothing to do with the commencement of repair and remedial works on the part of the Defendant, and that this also in turn underscores the blatant breach of the Injunction on the part of the Defendant in failing to effect repair works for remedying the water leakage problems of the Plaintiff’s Premises which had started since early 2019. 75.I agree with Mr Lau to the extent that the combined effect of the learned judge’s various orders and directions was that the commencement of remedial works pursuant to the Injunction was not dependent on the preparation of respective expert reports, the without prejudice expert meeting and the preparation of joint expert statement. However, as I held that it was both the clear understanding of the learned judge’s orders and directions and my view that the further inspection and the Proposed Tests should be carried out before the remedial works, and that it is unreasonable for the Plaintiff to insist on the sufficiency of the Joint Inspection and deny the Defendant’s request for further inspection and the Proposed Tests, I disagree that the Defendant has committed a blatant breach of the Injunction. 76.Mr Lau further submitted that the Plaintiff relied on the principle laid down in Li Ching Har (supra), paragraphs 28 to 31 in which the Court rejected the arguments that the new tests proposed could be implied from previous court direction. I do not find this as the correct reading of the relevant part of the judgment. In that case, Deputy Judge Kate Li first held the view (at paragraphs 22 to 27) that there was no proper evidence to show the possibility of renovation in the plaintiff’s premises being a cause of water seepage was a genuine issue or otherwise an issue having a chance of success at trial, and so it was not likely that the court would be assisted at trial by any test result and any purported evidence on causation relating to the renovation. The deputy judge then went on to say (at paragraphs 28 to 33) that certain paragraphs selected from the earlier decision of another deputy judge in that case had no bearing, because the earlier decision was about the defendant’s application for replacement of his own expert, and the court’s remark was related to the quality of the report of the defendant expert therein. The deputy judge also disagreed with the defendant’s submission that the test sought was to comply with the direction for compiling the joint expert report as directed by another master, because the master did on the same occasion rejected the defendant’s application for filing supplemental expert report. In my view, the deputy judge did not lay down any principle but was simply dismissing the application for tests based on the particular facts and matters of that case before her. 77.Mr Lau further relied on paragraph 34 of Li Ching Har (supra) to submit that allowing the Proposed Tests would not only disturb the timetable in the Decision but would also necessitate a new sequence of evidence to be introduced. In my view, Li Ching Har is clearly distinguishable. In Li Ching Har, the first set of expert directions was made on 8 July 2016, and there had been at least four interlocutory applications on expert evidence and at least one interlocutory appeal regarding expert evidence. Due to the defendant’s objection to allow entry and test in his flat, the plaintiffs had to exchange one set of report first on “unless” order basis which did not cover the test, and subsequently to file another report. On the other hand, the defendant did not disclose his conducting of the test (being the subject matter of the judgment) until March 2018, when the master had already directed on 16 January 2018 that the case management conference scheduled on 17 April 2018 was for leave to set down. In the present case, the Expert Directions were only granted as the first set of expert directions in this action. The case has not reached the advanced stage of setting down. Moreover, I have already held above that the Plaintiff was unreasonable for insisting on the sufficiency of the Joint Inspection and refusing the Defendant’s request for further inspection and the Proposed Tests. (III) Question 3 – Time Extensions? 78.Given my ruling on Question 2 above, the time for the Defendant to comply with the Injunction and the Expert Directions has to be extended. The question here is in what way and for how long such time should be extended. 79.This is the first time that time extension for compliance with the Injunction and the Expert Directions is sought by the Defendant. By paragraph 3(a) of the Decision, the Defendant was required to commence remedial works to comply with the Injunction on or before 10 September 2023. By that day, the Defendant had already engaged TW Engineering Company as contractor, and the latter had inspected the sites and confirmed the works procedure, with an estimated time schedule for commencement of remedial works on 20 September 2023 and completion of the same within 45 days. Notwithstanding the Joint Inspection held on 15 August 2023, by reason of the request for further inspections and tests which were declined by the Plaintiff, the Defendant had to postpone the remedial works and seek time extension for compliance with the Injunction. 80.Meanwhile, since the Joint Inspection took place on 15 August 2023, according to paragraph 7 of the Expert Directions, parties should have exchanged their respective expert reports within 42 days thereafter, ie by 26 September 2023. Nonetheless, since the Defendant’s request for further inspections and tests was not agreed to by the Plaintiff, the Defendant could not prepare its expert report. 81.Thus, on 13 October 2023, ie 33 days after the deadline for complying with the Injunction and 17 days after the deadline for parties to exchange expert reports, the Defendant took out the Summons for extending the time for complying with the Injunction and the Expert Directions. 82.Mr Lau submitted that should the Defendant be allowed time for conducting the Proposed Tests, it should only be granted on the basis of an “unless” order. He submitted that by seeking the time extensions, the Defendant is simply asking for relief from complying with the Injunction when the Decision has already provided for a clear timeframe for the Defendant to observe. The Defendant is seeking an indulgence with serious prejudice to the Plaintiff who has been asking for repair works to be done since 2019. 83.I have already ruled that the Plaintiff was unreasonable for insisting on the sufficiency of the Joint Inspection and refusing the Defendant’s request for further inspection and the Proposed Tests, and therefore it is not right for the Plaintiff to suggest that the Defendant is simply using the time extension application as an excuse to relieve itself from the non-compliance with the Injunction. That said, I still have to consider whether the circumstances warrant time extensions to be granted on “unless” basis. 84.In my view, whilst there is insufficient evidence to suggest that the Defendant has deliberately dragged its feet, the Defendant should have taken out the Summons earlier. The Defendant did not do much between 10 September 2023 and 13 October 2023, apart from causing C&K to send the letter dated 14 September 2023 justifying the Proposed Tests to be carried out. 85.To determine whether time extensions should be granted on “unless” order basis, I have considered all relevant factors including:-
86.Having considered and struck a balance of all relevant factors, I allow the Defendant, on “unless” order basis, (a) to inspect the Plaintiff’s Premises and carry out the Proposed Tests, and (b) to postpone the commencement of the remedial works to the Waterproofing Layer and the External Walls. 87.I grant also time extensions, but not on “unless” order basis, for the exchange of expert reports, the without prejudice meeting of the parties’ respective experts and the lodging of joint statement of experts. G. DISPOSITION 88.For reasons set out above, I make the following orders:-
89.For the issue of costs, the Defendant asks for its costs of and occasioned by this application be paid by the Plaintiff. In my view, this application consists of two parts, namely application for inspection and tests and application for time extensions. Given the commonality of some of the issues of the two applications (ie Question 1 and Question 2), I consider that 70% of the costs be apportioned to the application for inspection and tests, and 30% of the costs be apportioned to the application for time extensions. 90.For the application for inspection and tests, I have already found it necessary and expedient for further inspection and the Proposed Tests be carried out, and also found the Plaintiff unreasonable for insisting on the sufficiency of the Joint Inspection and refusing the Defendant’s request for further inspection and the Proposed Tests. I have also ruled that the further inspection and the Proposed Tests should be carried out before the remedial works in compliance with the Injunction. Moreover, without the further inspection and Proposed Tests to address the triable issues, the subsequent exchange of expert reports, the without prejudice meeting of experts, and the lodging of joint statement of experts will not serve any meaningful purpose. These are all points in favour of awarding costs to the Defendant for the inspection and test application. 91.In my view, the points in the preceding paragraph also justify the departure from the usual situation that costs of the application for time extensions shall be paid by the party seeking indulgence of the court. 92.That said, I bear in mind that though the Proposed Tests were sent by Cheung to Chan on 31 August 2023, the Defendant only through C&K sent the justification for the Proposed Tests on 14 September 2023, ie 4 days after the deadline for the commencement of the remedial works pursuant to the Injunction. I bear in mind also my view expressed above that the Defendant should have taken out the Summons earlier. Also, the further inspection and the Proposed Tests and extension of time for compliance with the Injunction are granted on “unless” order basis. These matters have impact on the costs for both the inspection and test application and the time extension application. I consider it appropriate that the Defendant should have its costs of the inspection and test application subject to some discount, while there should be no order as to costs for the time extension application. 93.Further, insofar as the further inspection, the Proposed Tests, the expert reports, the without prejudice meeting of experts and the joint statement of experts are concerned, they are normal incidents of the action and such costs should be determined at the final outcome of the action. 94.Having considered all these matters, I make a costs order nisi that the Plaintiff do pay 50% of the Defendant’s costs of the Summons, to be taxed if not agreed, with Certificate for Counsel. 95.I thank Mr Lau and Mr Ngai for their assistance.
Mr Roland Lau, instructed by Collin Ng & Co, for the Plaintiff Mr Lawrence Ngai, instructed by Chung & Kwan, for the Defendant SCHEDULE Stage A: Conducting 96 Hours Colour Dye Water Tests on Private Flat Roof of Flat 12A (Day 1) A1. Conduct rapid infrared thermographic scanning and ultra-violet flashlight scanning on Location 1 – Location 54 (as identified on 15 August 2023 during Joint Experts Inspection) of Flat 12A before conducting any colour dye water test. A2. Using polyfoam dam to block the floor drain and enclose the ponding areas at private flat roof and common corridor at R/F as per the test plan attached. A3. Pour concentrated colour dye diluted with potable water onto all possible ponding areas of private flat roof of Flat 12A for 96 hours as per the test plan attached. A4. Conduct rapid infrared thermographic scanning and ultra-violet flashlight scanning at the same detection areas of Flat 12A after completion of the ponding test. A5. Site-cleaning of the private flat roof after completion of colour dye water ponding test. Remark 1: Both Plaintiff and Defendant are required to remove all personal belongings or items or flowerpots that are easily to be wet to avoid soaking and being destructed during the colour dye water ponding test within testing area. Remark 2: Water supply and electricity supply by Plaintiff/Defendant are required to provide/supply for free of charge for the course of the test. Remark 3: After completion of the colour dye water, minor/small amount of dye stain will be soaked into cement-sand tile joint or even concrete slab and our expert scope of services does NOT involve such cleaning or removal of the penetrated colour water or pigment Stage B: Potable Water Spraying Test on Mosaic Tiled External Walls, Block 2 of Dragon Inn Court (Day 8) B1. Conduct rapid infrared thermographic scanning on water leakage locations which were suspected to be caused by defective external walls of Flat 12A and/or main roof before conducting any potable water spraying test. B2. Connecting with normal water supply (without pressurized system) of Flat 12A & Main Roof and conduct 30 minutes potable water spraying test on each suspected water leakage locations of the external walls/upper side of balcony flat roof and planter box flat roof by standing on Flat 12A & Main Roof. B3. Conduct rapid infrared thermographic scanning at the same detection areas of Flat 12A after completion of the potable spraying test on the same day. Stage C: Result Monitoring on Flat 12A and External Walls, Block 2 of Dragon Inn Court (Day 15) C1. Conduct visual inspection as well as ultra-violet flashlight scanning by UV flashlight and record any efflorescent effect/stain on the concrete ceiling and beam of the Flat 12A and mosaic tiled external walls after 7 days completion of 96 hours colour dye water ponding test. Stage D: Open-up Inspection on R/F, Flat A, 12/F, Block 2 of Dragon Inn Court D1. Defendant Expert attend open-up inspection during the appointed contractor’s first stage hacking off works on the existing private main roof above Flat 12A.
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