Cheung Sau Fong v. Ho Chi San

DCCJ 5240/2021

[2024] HKDC 1586

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5240 OF 2021

------------------------------------

------------------------------------

---------------------------

DECISION

---------------------------

Introduction

1.Today is the pre-trial review of this action, a water seepage case, which has been set down for trial commencing on 6 November 2024.

2.There is before me a Summons filed by the Defendant (“D”) on 23 August 2024 (“the Summons”) pursuant to O 29, r 2 of the Rules of the District Court for leave to adduce a supplemental joint expert report by the parties’ respective experts or alternatively, leave to the D’s expert to file an expert report, on whether the water seepage has ceased.

3.This is opposed by the Plaintiff (“P”) on the grounds that the application is late, unnecessary and unjustified.

Analysis and Disposition

4.P’s premises is situated at Flat E, 2^nd Floor, Tower 7, Lakeside Garden, 1 Chui Tong Road, Sai Kung, New Territories, Hong Kong (“P’s Premises”).  D’s premises is the flat immediately above in the same multi-storey building (“D’s Premises”).

5.Essentially, P’s pleaded case is that since at least about 3 September 2020, there has been persistent water leakage from D’s Premises to P’s Premises causing substantial damage thereto.  Despite repeated demands, no effective action has been taken by D to rectify the water leakage and the problem is still continuing as of the date of the writ. 

6.P has claimed inter alia damages to be assessed, an injunction restraining D from continuing, causing, permitting or allowing water leakage from D’s Premises to P’s Premises and an order that D do within 2 weeks, at his own expense, carry out all necessary repairs and/or remedial works to stop and prevent the water leakage to the satisfaction of an Authorised Person jointly engaged by the parties.

7.Whilst parties have settled part of the case concerning damages since 19 July 2024, the remainder of the relief sought will have to be determined following the trial of this action.

8.In fact, the court has previously granted leave for parties to adduce a joint expert report.  A joint report dated 16 March 2023 was prepared in these proceedings (“Joint Expert Report”).  As at the date of the report, it was stated therein that water leakage still subsist.

9.However, according to D, in late July to early August 2023, D had arranged for repair works in D’s Premises.  Despite requests subsequently by D for entry to P’s Premises to conduct inspection to verify whether there is still water seepage and to confirm those remedial works were effective, these requests were refused by P.

10.At the Case Management Conference before Master Eva Leung on 25 October 2023 (“the CMC”), an order was made that “upon confirmation by [D], no further expert evidence is to be filed” (“the Order”). 

11.Apparently at the CMC, P’s solicitors confirmed that water seepage was still continuing.  According to Mr Yeung, solicitors for D, D’s solicitors had submitted to the Master at the CMC that it is not necessary for experts to conduct further inspections as other qualified persons will suffice for saving costs.  As this was not objected to by P’s solicitors, the Master therefore made the Order.

12.Even if that is the case, this belated application, 11 months after the CMC and the making of the Order, plainly is a U-turn in D’s position as represented to the Master.

13.Whilst in Mr Yeung’s submissions it was urged upon the court that a supplemental joint expert report will be the only proper objective evidence to prove whether there is continuous water seepage at P’s Premises as alleged, Mr Yeung appears to accept that it is P who bears the burden of proof in this case.

14.Furthermore, whilst I may accept D’s justification for making this application, despite a bare assertion that there has been no delay on the part of D, in my view there is no good explanation for the lateness of application.

15.D’s solicitors had written to P’s solicitor on 20 December 2023 to enquire if P was agreeable to an inspection to be jointly conducted by the experts. No favourable reply was ever received from P. 

16.There was also a further letter from D’s solicitors dated 2 May 2024 that unless P adduces evidence of continued water seepage, D would take out an application to enter P’s Premises for inspection.  A draft summons was enclosed.  However, despite no favourable response from P and the 7 days deadline imposed by D, no application was taken out then.

17.In Tao, Soh Ngun v HSBC International Trustee Limited [2018] HKCFI 2543, the Honourable Wilson Chan J at §5 summarized the general principles regarding late applications as follow (the references to authorities has been omitted by me):

(1)  Since the Civil Justice Reform, late applications are frowned upon and have a high threshold to pass.  They can be dismissed on the basis of lateness alone;

(2)  A late application should be accompanied by a full and frank account of its lateness, as the court would not grant any indulgence (even on terms as to costs) without a satisfactory explanation from the applicant;

(3)  A trial date is a milestone date which, pursuant to Order 25, r 1B of the Rules of the High Court, cannot be varied unless there are exceptional circumstances to justify the variation; and

(4)  The Court in assessing late application should take into account the fact that such applications disrupt the innocent party’s trial preparation by diverting away attention and requiring expenditure of time and costs on the applications and the new matters arising therefrom, which is in itself is a form of prejudice.

18.At §6, the learned judge also helpfully summarized the principles regarding applications for leave to adduce expert evidence:

(1)  The basic criteria are that the proposed evidence has to be admissible and relevant in the sense of being: (a) in a recognized discipline; (b) reasonably required to enable the court to resolve the issues in dispute; and (c) proportionate;

(2)  The court’s discretion in deciding whether to grant leave to a party to adduce expert evidence is to be exercised within the ambit of its case management powers.  Therefore, even if a prima facie case is made out for the admission of expert evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced;

(3)  Expert directions should be sought as early as possible.  The applying party should: (a) identify the proposed expert by name and field; (b) identify the issues to which the expert evidence will relate; and (c) consider the appropriateness of appointing a single joint expert;

(4)  Expert directions should be fully complied with before a case is set down for trial.  That is to enable the length of the trial to be fixed with reference to what really needs to be tried in terms of the expert evidence as distilled and identified in the experts’ joint report setting out their areas of agreements and disagreements and the reasons therefor;

(5)  If new expert evidence sought to be adduced at a late stage could derail the trial dates or prolong the trial beyond the time allotted for the case, the court may refuse leave, even if that means that the applicant would have great difficulties in establishing his case; and

(6)  Where a party deliberately withholds an application to adduce expert evidence for strategic reasons or otherwise, the Court may regard such party as having chosen to take the risk that it would be too late by the time it eventually decides to make the application.

19.Applying the above principles and having considered the submissions of Mr Yeung and Mr Chau, counsel of P, I would refuse to exercise my discretion to allow the application to adduce further expert evidence.

20.Firstly, there has been serious, unjustified and unexplained delay in this application.

21.Secondly, leave to adduce additional expert evidence would derail the trial dates, divert attention and disrupt the preparation for trial, all of which would cause prejudice to P.

22.Thirdly, on the other hand, having accepted that it is P that bears the burden of proof and D has already disclosed in a supplemental list of documents evidencing that D having conducted repair works since the Joint Expert Report, which has been confirmed by the management office and the Hong Kong Housing Society, and the refusal to allow access to or joint inspection of P’s Premises, I see no great prejudice to D in refusing the application.

23.Lastly, there are no exceptional circumstances to vary the trial date.

24.Accordingly, the Summons is dismissed.

25.I see no reason why costs should not follow the event.  D should pay to P the costs of and occasioned by the Summons to be summarily assessed by me on paper.

26.Directions have been given for the lodging of Statement of Costs by P and any objections by D.

Mr Ian Chau, instructed by Chris H M Yuen & Co, for the plaintiff

Mr Ivan Yeung, of Winnie Leung & Co, for the defendant