The Incorporated Owners of Grenville House v. Wong Tak Keung Stanley and Another

HCA 621/2020

[2026] HKCFI 3690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 621 OF 2020

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BETWEEN

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DECISION

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A.  INTRODUCTION

1.Grenville House is a well-known luxurious residential development on Hong Kong Island.  The dispute herein concerns a car parking space (“CP”), ie Car Parking Space 102 (“CP102”), in that development.  The Plaintiff is the incorporated owners of Grenville House (“the IO”), and the Defendants (“621Ds”)  are the owners of CP102.

2.By a summons dated 15.11.2024 (“the Access Summons”), 621Ds made an application for the following order:

(1)  Upon 3 days’ notice in writing to the IO, the IO do provide 621 Ds’ land surveyor expert with “a free and unrestricted access to the common areas of Grenville House … including all carpark areas and structural elements of Grenville House as the said expert considers it appropriate, enabling the said expert to conduct an appropriate and uninterrupted survey(s)  and measurement(s)  for verification of the Car Port Layout Plans”.

(2)  Notwithstanding §5 of the Order of Master MK Liu dated 20.09.2024 (“the 20.09.2024 Order”), the time for the parties to exchange their respective reports be extended to 35 days after the determination of the application for the order as set out in the above.

3.On 27.02.2025, the substantive hearing of the Access Summons took place before Master Pheobe Man (“the Master”).  At the end of the hearing, the Master dismissed the Access Summons with costs to IO.

4.This is the appeal against the Master’s decision.  In accordance with the well-established principle, subject to Order 58 rule 1(5), the appeal before me is a de novo hearing, and I would deal with the Access Summons as if the application made therein came before me for the first time[1].

5.In this appeal hearing, Mr Justin Lam represents 621 Ds.  Mr CY Li SC, leading Mr Iverson Wong, represent the IO.

6.For the purpose of this appeal hearing, it is necessary to mention HCA 622/2020, for the background in that case is same as the background in this case, and the issues in the two cases are similar.  Further, it has been ordered that the two cases would be tried together before the same judge, and the evidence adduced in these two cases be mutually admissible. 

B.  BACKGROUND[2]

7.The undisputed or indisputable factual background is as follows.

8.The IO commenced:

(1)  HCA 621/2020 (“621 Action”)  against 621Ds, who are the owners of CP102; and

(2)  HCA 622/2020 (“622 Action”)  against Commerce Company Limited (“622D”), who owns CP112,

seeking to reinstate the misdrawn boundary lines of CP102 and CP112.

9.In the 621 Action, the parties’ respective pleaded cases are as follows:

(1)  The IO’s pleaded case in the Statement of Claim is as follows:

(a)  The Conditions of Exchange of Inland Lot No 8217 (“the Conditions”)  dated 14.04.1970, on which Grenville House was built, contains a Special Condition (13)  (“SC13”), which reads:

“A lay-out plan indicating the parking spaces and/or car ports to be provided within the lot in accordance with Special Condition No. (11)  and approved by the Building Authority, or a copy of such plan certified by an authorized architect, shall be registered by the grantee in the Land Office by memorial ... The grantee shall maintain the parking spaces and/or car ports in accordance with the said approved plan and shall not alter the layout except with the prior written consent of the Director of Public Works.”

(b)  In compliance with SC13, two plans on the Upper Carport and Lower Carport of Grenville House delineating the car parking spaces thereat and being drawn to scale were prepared and came to be registered on 29.04.1970 (“Carport Layout Plans”).

(c)  On 31.03.1971, the construction of Grenville House was completed and a Deed of Mutual Covenant (“DMC”)  was entered into.  The car parking spaces referred to in the DMC were delineated in the Lower Carport Plan and the Upper Carport Plan (collectively “DMC Plans”). The DMC Plans were drawn based on the Carport Layout Plans.

(d)  CP102 was assigned to 621Ds by an assignment dated 20.07.1988, in which CP102 was described as “shown and coloured Pink and marked No. 102” on the Lower Car Port Plan (“CP102 Assignment Plan”)” as annexed to a previous assignment dated 09.11.1971. The CP102 Assignment Plan was indeed the Lower Carport Plan of the DMC Plans.

(e)  By the Deed of Disclaimer dated 19.09.1973 and the Further Deed of Disclaimer dated 24.04.1974, CP103 is held by the owners of Grenville House as a common part of the development.

(f)  In about the 2^nd quarter of 2019, the IO discovered that the delineations of CP102 in situ have deviated from the dimensions of CP102 as shown on the Carport Layout Plans and the DMC Plans. Thus, 621Ds have trespassed into the CP103, being a common part of Grenville House, thereby in breach of the DMC.

(g)  The deviation is pleaded by the IO in §15(1)  of the Statement of Claim (“the Alleged Deviation”), which is as follows:

“15(1)  Since a date unknown to [the IO] and was discovered by [the IO] sometime in about the 2^nd quarter of 2019, the delineations of CP 102 as marked on the ground defining the area of CP 102 have deviated from the dimensions of CP 102 as shown on the Carport Layout Plans and the DMC Plans in that its frontage width on site is 2.98 metres when it should be 2.58 metres according to the Carport Layout Plans.” (Emphasis added)

(h)  Despite persistent demands and negotiations, 621Ds have refused to allow the IO to reinstate the boundary lines of CP102 to make it to conform with the layout stipulated in the Carport Layout Plans, constituting further breaches of the DMC.

(i)  As a result, the IO seeks orders to the effect that the IO be allowed to reinstate the boundary lines of CP102, and 621Ds be restrained from trespassing CP103, as well as damages for the said trespass.

(2)  621Ds’ pleaded case in the Re-Amended Defence is as follows:

(a)  It is denied that the Carport Layout Plans and the DMC Plans are drawn to scale, and no dimensions are stated for the individual carparking spaces therein.

(b)  SC13 does not impose any requirement on the dimensions for carparking spaces.

(c)  The Car Port Layout Plans, as well as the DMC Plans, were prepared for the purpose of the indication of the location of the car parking spaces, not for the delineation of the car parking spaces in Grenville House.

(d)  The accuracy of the CP102 Assignment Plan and the accuracy of the DMC Plans are not admitted.

(e)  The dimensions of CP102 as delineated on the Carport Layout Plans and the DMC Plans, and as marked on the ground in situ, are not admitted.

(f)  It is denied that the dimensions for the carparking space in the Carport Layout Plans and/or the DMC Plans are based on or could be derived from scaling from the drawings therein.

(g)  The Carport Layout Plans was a copy full of wrinkle marks. Further, it was likely to have suffered from expansion and shrinkage over the years.  In any event the Carport Layout Plans were originally prepared in 1962 and revised on multiple occasions in the 1960s, some years before the completion of the construction of Grenville House and the execution of the DMC.

(h)  The drawings in the Carport Layout Plans differ from the conditions on site.

(i)  A Letter of Compliance dated 27.02.1973 (“the Letter of Compliance”)  was issued by the then Director of Lands & Survey following an inspection on 31.01.1971, thus signifying that as of 31.01.1971 the entirety of Grenville House were in compliance with the Conditions, including that the boundary lines of CP102 were correctly delineated.

(j)  CP 102 is correctly delineated and its delineations in situ have not changed since at least February 1971.  Thus, there is no trespass or breach of DMC by reason of the boundary lines of CP102.

(k)  Even if the CP102 is incorrectly delineated, the IO is precluded from denying the correctness of such delineations, by way of estoppel, waiver and/or acquiescence.

(3)  In the IO’s Re-Amended Reply, the IO pleaded:

(a)  On a proper construction of the Conditions, especially SC11 and SC13, the Carport Layout Plans as drawn up and registered at the Land Registry for fulfilling the requirement of the Conditions are for indicating the car parking spaces of Grenville House and for such purpose of indication the position of each car parking space must have been precisely marked and delineated on the ground so as to avoid any dispute on its correct position and boundary.

(b)  The Carport Layout Plans do show the shape, size and dimensions of each car parking space.

(c)  The IO maintains that SC13 of the Conditions does prescribe for the dimensions of CPs in Grenville House.

(d)  The Carport Layout Plans and the DMC Plans were drawn to scale.

(e)  There is no evidence proving that the incorrect delineations of CP102 appeared since February 1971. The boundary lines could have been redrawn in previous renovations of Grenville House.

(f)  It is denied that the Letter of Compliance can prove compliance with SC13 of the Conditions as alleged by 621Ds.

(g)  The IO denies any estoppel, waiver and/or acquiescence on its part.

10.In the 622 Action, the parties’ respective pleaded case against 622D are substantially the same as those in the 621 Action, save for the following:

(1)  622D Owner does not take issue with whether SC13 imposes any requirement on the dimensions for carparking spaces

(2)  622D does not question whether the dimensions for the carparking spaces in the Carport Layout Plans and/or the DMC Plans are based on or could be derived from scaling from the drawings therein.

(3)  622D does not admit the dimensions of CP112 as delineated on the Carport Layout Plans, on the DMC Plans, and on the CP112 Assignment Plan.

(4)  CP112 is correctly allocated and its space allocation in situ have not changed since at least February 1971.

11.On 22.01.2022, the Registrar ordered, inter alia, the 621 Action and 622 Action be tried together before the same judge.

12.On 23.08.2024, the Registrar made a Consent Order that the evidence adduced in the 621 Action and in the 622 Action be mutually admissible.

13.On 20.09.2024, the substantive hearing of the following summonses concerning expert evidence took place before me sitting as a High Court Master:

(1)  the IO’s Summonses dated 15.03.2024 in both the 621 Action and the 622 Action (“IO’s ES”);

(2)  621Ds’ Summons dated 30.05.2024 in the 621 Action (“621Ds’ ES”); and

(3)  622D’s Summons dated 20.06.2024 in the 622 Action (“622D’s ES”).

14.One of the issues argued in the 20.09.2024 Hearing is the scope of the experts’ inspection:

(1)  The IO submitted that only the CPs in question (“Subject CPs”)  should be inspected, namely CPs101-103 for the 621 Action and CPs111-113 for the 622 Action.

(2)  621Ds and 622D submitted that inspection of other CPs in addition to the Subject CPs would also be necessary.

(3)  After hearing the parties’ respective submissions, I accepted the IO’s submission and limited the scope of inspection to the Subject CPs.

15.At the end of the 20.09.2024 Hearing, I allowed the IO’s application made by the IO’s ES and dismissed 621Ds’ ES and 622D’s ES.  I made the 20.09.2024 Order in this case, which contains the following terms[3]:

“1. Leave be granted to the parties to adduce expert evidence on:-

(a)  The identification of the correct dimensions and positions of Car Parking Spaces No.101, 102 and 103 (collectively, the “Car Parking Spaces”)  as shown on the Carport Layout Plans of Grenville House as registered at the Land Registry under Memorial No. UB 733039 on 29 April 1970 (the “Carport Layout Plans”);

(b)  The identification of the correct dimensions and positions of the Car Parking Spaces in situ; and

(c)  Boundary irregularities, if any, between the identification and delineations in paragraphs 1(a)  and l(b)  above;

……

4.  The Appointed Experts shall carry out a joint examination of the Car Parking Spaces in situ within 28 days from the date of the Order for the purpose of producing their expert reports.”

16.It is pertinent to mention that §4 of the 20.09.2024 Order is a term agreed by all the parties in this case in that hearing.

17.There is no appeal against the 20.09.2024 Order. Accordingly, the parties must be bound by the rulings made in the 20.09.2024 Hearing and the 20.09.2024 Order.

18.On 4.10.2024, the parties appointed their respective experts, with P appointing Dr Conrad Tang and 621Ds appointing Mr Joseph Yiu Cho Wong (“Joseph Wong”).  Joint inspection took place on 18.10.2024.  Before the joint inspection, 621Ds’ solicitors had asked for inspection of other CPs on the basis that the correct dimensions of the CPs could not be scaled from Carport Layout Plans. The request was rejected by the IO’s solicitors.

19.After the joint inspection, on 15.11.2024, 621Ds took out the Access Summons.

20.On 27.02.2025, the Master dismissed the Access Summons.

21.By a Notice of Appeal dated 05.03.2025, 621Ds appealed against the Master’s decision.

22.On 24.10.2025, the appeal was heard by DHCJ Jonathan Wong.  The learned judge recused himself as he had previously acted against the IO then chaired by the 1^st Defendant and formed an impression on the 1^st Defendant.  The appeal hearing was refixed before another judge.

23.The hearing before me is the refixed appeal hearing.

C.  THE PRINCIPLES

24.Mr Li SC for the IO has highlighted the following general principles in his written submissions[4], which are not in dispute:

(1)  Pleadings define issues, which then define the scope of expert evidence. The admission of expert evidence should not enlarge the scope of the dispute.[5]

(2)  Expert evidence should not be admitted to answer a question of law.[6]

(3)  In exercising its case management power, the Court would not allow expert evidence to be adduced simply on the basis that it cannot rule out a possibility of such evidence being relevant and helpful.  If the applicant for expert directions failed to persuade the Court on relevance and necessity of such evidence, the application should be dismissed.[7]

(4)  Expert evidence should be kept within proper bounds, sufficient to achieve appropriate justice on an issue, but in the context of reasonable proportionality and procedural economy.[8]

25.Depending upon the circumstances, relitigating interlocutory matters may constitute an abuse of process. The key is whether it is just and reasonable to allow the second application to proceed after considering all relevant circumstances of the case.[9]  It is generally not unjust and unreasonable to allow a second application to be heard, if (a)  the ruling on the first application was not based on the merits of the issue but on a technical objection; (b)  upon the first application the applicant had failed to prove essential facts from mistake or inadvertence; (c)  there is new evidence that seriously justifies reconsideration of the issue; or (d)  there is a material change of circumstances of a non-evidentiary nature.[10]

26.Rules of the High Court, Order 38 rule 44 provides that:

“Any direction given under this Part of this Order[11] may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter.”

27.What constitutes “sufficient cause” under Order 38 rule 44 is fact-sensitive. The circumstances in which the previous order was made is a relevant consideration.[12]

28.Mr Lam for the 621Ds has fairly referred me to BK Amrit v G-Cladds Limited, in which Marlene Ng J said[13]:

“148. But that said, the parties cannot, however, assume interlocutory case management directions granted by the court on whether or not to call the experts to give oral evidence at trial can be revisited by the party(ies)  at will at the PTR. “Sufficient cause” is required to invoke Order 38 rule 44 of the RHC which provides that “[any] direction given under this Part of this Order may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter”. In my view, where the issue of need or otherwise for oral expert evidence has been the subject of court determination, especially after argument between the parties and/or after appeal, it is unlikely that the court (including the trial judge)  will smile kindly on any repeated application (whether at PTR or otherwise)  to revisit such case management determination unless the applicant can make out an exceptional or strong case, eg significant change in circumstances directly pertinent to the expert opinion that in the interests of justice requires or does not require (as the case may be)  oral expert evidence. The fact that this has been subject to prior adversarial debate and judicial determination must be weighty consideration for the trial judge to take into account.” (Emphasis added)

29.Mr Lam has also referred me to Hui Chun Ping v Hui Kau Mo[14], in which Kwan VP said:

“24. The Judge quoted from [33] of the judgment of Deputy High Court Judge Paul Lam SC in Lau Sin v Wong Mary & Ors [2018] 3 HKLRD 202, which contained a helpful summary of the general principles applicable to the situation where another interlocutory application is made after an earlier application of the same nature was dismissed:

(a)  The doctrine of res judicata, properly so-called, does not apply to interlocutory orders.

(b)  If a party seeks to re-litigate a matter which has been determined in a previous interlocutory decision by taking out a second application, the second application is liable to be dismissed by the court, either of its own motion or on application, pursuant [sic] its inherent jurisdiction or Order 18, rule 19, on the ground that it constitutes an abuse of process.

(c)  It will not be an abuse of process if there are express statutory provisions permitting the re-litigation of the matter. There are many express provisions allowing the respondent to an application to apply to set aside an order made in its absence or as a result of its failure to comply with certain procedural steps (e.g. Order 13, rule 9; Order 14, rule 11; Order 19, rule 9; Order 24, rule 17; Order 26, rule 8). Another useful example is that directions on evidence (including expert evidence)  may also be revoked and varied by a subsequent direction (Order 38, rule 44).

(d)  In the absence of any such express statutory provision, whether the second application constitutes an abuse of process must depend on the particular circumstances of each case. Generally speaking, the court should consider what is just and reasonable.

(e)  It is inappropriate and impossible to set out exhaustively what the relevant considerations will be. Naturally, the court will need to consider the nature of the interlocutory application; whether the applicant had, or could and should have, challenged the first interlocutory decision by other means; and why a second application on the same matter has been made. Examples of situation where the court may conclude that there is no abuse of process include: the ruling on the first application was not based on merits but on a technical objection, the applicant failed to prove essential facts from mistake or inadvertence at the first application, there is new evidence that seriously justifies reconsideration of the issue; or there is a material change of circumstances.

(f)    Nevertheless, the court should adopt a holistic, rather than a dogmatic or mechanistic, approach. At the end of the day, the court shall [sic] whether it is in the interests of justice to allow the second application to proceed having regard to all relevant circumstances of the particular case. And in considering how its discretion should be exercised, Order lA, rule 2 requires the court to give effect to the underlying objectives of the RHC as set out in Order lA, rule l.”

D.  DISCUSSION

D1.   The parties’ respective submissions

30.Mr Lam submits that the appeal should be allowed for the following reasons:

(1)  IO’s view is that all the experts need to do is as follows:

(a)  Under Expert Issue (a), identify the scale ratio of the Carport Layout Plans, measure the dimensions of the Car Parking Spaces on the Carport Layout Plans, and multiply such dimensions by the scale ratio to arrive at the real-life dimensions.

(b)  Under Expert Issue (b), measure the dimensions of the Car Parking Spaces in situ.

(c)  Under Expert Issue (c), compare the results of the dimensions of the Car Parking Spaces under Expert Issues (a)  and (b).

(2)  The IO’s understanding of what the Expert Issues require is flawed for the following reasons:

(a)  It assumes that the Carport Layout Plans retrieved from the Land Registry, which are only copies, do not contain any material distortions or discrepancies resulting from the copying process.

(b)  It does not address the question of the positions of the CPs, which can only be answered with reference to other fixed reference points on the Carport Layout Plans, such as the exterior walls of the development and immovable structural features in the car park area.

(3)  To identify the “correct dimensions and positions”, the experts are additionally required to:

(c)  Under Expert Issue (a), ascertain whether the Carport Layout Plans contain any material distortions or discrepancies by comparing fixed reference points on the Carport Layout Plans and in situ, and (if there are any material differences)  consider whether any adjustments should be made in arriving at the real-life dimensions and positions of the Car Parking Spaces from the Carport Layout Plans.  Given that the experts also need to opine on the positions of the CPs, other parts of the Carport Layout Plans including the space between the CPs and the fixed reference points are directly relevant.

(d)  Under Expert Issue (b), measure not just the dimensions of the CPs in situ, but also their positions with reference to the fixed reference points in situ.

(e)  Under Expert Issue (c), compare not just the dimensions but also the positions of the CPs (by reference to the fixed reference points)  on the Carport Layout Plans and in situ.

(4)  621Ds acknowledge that at §4 of the 621Ds’ ES, they sought an order that “[t]he Appointed Experts shall carry out a joint examination of the car parking spaces (including any further carparks which may not be in compliance with the Carport Layout Plans)  in situ within 49 days from the date of the Order for the purpose of producing their expert reports” (“the Rejected Survey”), and the application was dismissed by the Court in the 20.09.2024 Hearing.  However, pursuant to Order 38 rule 44, this Court may revisit the 20.09.2024 Order.

(5)  Unlike 621Ds’ ES, the Access Summons does not seek access to other CPs but only to the common areas of Grenville House (including car park areas and structural elements)  to enable Joseph Wong to carry out the necessary inspection.  The Access Summons arose from the need of Joseph Wong to properly answer the Expert Issues, a matter which arose and could only have arisen after the making of the Expert Order and the preliminary investigation undertaken by Joseph Wong.

(6)  There is sufficient cause for 621Ds to issue the Access Summons to provide access to the common areas of Grenville House to the experts for the purpose of preparing their reports pursuant to the 20.09.2024 Order.

(a)  The orders sought under §4 of 621Ds’ ES and the Access Summons are different and serve different purposes.  Unlike §4 of 621Ds’ ES, the Access Summons does not ask for a survey of the other individual CPs and their dimensions.  The intended exercise is to survey the outline of the property development and the existing sizes and location of the structural members on the car park floors in situ, examine whether there are any discrepancies with their positioning on the Carport Layout Plans and opine on the reasons for such discrepancies (including whether the Carport Layout Plans are materially distorted).

(b)  There is a good and reasonable explanation for 621Ds to issue the Access Summons at the time when it was issued.  After the 20.09.2024 Order was made, Joseph Wong conducted a preliminary investigation of the CPs and the Carport Layout Plans, and found inter alia that the width of the CPs in situ sandwiched between two walls was materially narrower than that depicted in the Carport Layout Plans.  This is a piece of crucial evidence which may point to the distortion or inaccuracy of the Carport Layout Plans.  This evidence was not available at the hearing on 20.09.2024.

(c)  Joseph Wong’s expert opinion that access to the common areas is necessary for him to answer properly the Expert Issues provides sufficient cause for 621Ds to issue the Access Summons. The Court should ensure that the parties’ respective experts, who owe duties to the Court and are required to comply with the code of conduct, have all the information and data necessary to produce correct and proper expert reports on the Expert Issues.

31.Mr Li’s SC’s submits that the appeal should be dismissed for the following reasons:

(1)  First, the survey requested in the Access Summons (“Extended Survey”)  is not a new matter.  The same request was made and argued in the 20.09.2024 Hearing and was rejected by the Court.  In the circumstances of this case, there is no “sufficient cause” justifying revisiting the 20.09.2024 Order pursuant to Order 38 rule 44.

(2)  The Extended Survey is unnecessary and irrelevant for resolving the Expert Issues as set out in the 20.09.2024 Order.

(3)  The scope of the order sought by §1 of the Access Summons is ill defined, vague and unclear and/or being disproportionate for resolving the Expert Issues and/or will lead to irrelevant controversies.

32.I am in respectful agreement with Mr Li SC.  Each of the reasons as set out in §31 above would be a sufficient ground for refusing the order sought by the 621Ds in the Access Summons.

D2.1 No sufficient cause to revisit the 20.09.2024 Order

33.As said in the above, 621Ds’ pleaded case is that the Carport Layout Plans do not delineate the CPs, but only indicate their locations and one could not obtain the dimensions of CPs by scaling from Carport Layout Plans.  As rightly pointed out by Mr Li SC, 621Ds do not dispute the locations (which would mean the positions)  of CPs as indicated by the Carport Layout Plans and only take issue as to whether the same delineate the CPs.

34.In the 20.09.2024 Hearing, 621Ds challenged the reliability of the Carport Layout Plans and submitted that it would be necessary to inspect other CPs to show the unreliability of the Carport Layout Plans. The Court ruled, inter alia, that the applicability of the Carport Layout Plans is a question of law or question of mixed facts and law, and whether the Carport Layout Plans can be used to delineate the CPs is not a matter to be addressed by expert evidence.

35.I am in agreement with Mr Li SC that the Extended Survey proposed in the Access Summons is a re-litigation of the matters already decided in the 20.09.2024 Hearing without sufficient case, and should not be permitted.

36.First, 621Ds try to distinguish the Extended Survey from the Rejected Survey by saying that the Extended Survey covers some new areas to be inspected.  In my view, that is not a valid distinction.  The purpose of the Extended Survey is same as the purpose of the Rejected Survey, ie to show the unreliability of the Carport Layout Plans and hence the Carport Layout Plans cannot be used to delineate the CPs.  This rationale has been rejected by the Court in the 20.09.2024 Hearing.  As said in the above, in that hearing, the Court ruled that whether the Carport Layout Plans can be used to delineate the CPs is not a matter to be addressed by expert evidence.

37.Second, 621Ds try to justify the necessity of the Extended Survey by saying that their expert would need to give opinion on the “positions” of CPs 101-103 under Expert Issues (a)  and (b), and without the Extended Survey this exercise cannot be done.  This constitutes a sufficient cause to revisit the 20.09.2024 Order.  With respect, I am unable to agree.

(1)  As submitted by Mr Li SC, there is no evidence in support of the argument that without the Extended Survey, the positions of CPs 101-103 cannot be identified.  621Ds have filed two affirmations made by Jospeh Wong in support of the Access Summons.  In these affirmations, Joseph Wong only said that it would be necessary to inspect other areas for checking the reliability of the Carport Layout Plans, without referring to the question of positions of CPs 101-103.

(2)  Further, as submitted by Mr Li SC, the true meaning of the phrase “correct dimensions and positions” in the Expert Issues must be understood in the context of the pleadings.  The IO’s pleaded case is not that the position of CP102 per se is wrong.  The IO’s complaint is the Alleged Deviation as pleaded in §15(1)  of the Statement of Claim, which concerns the frontage width of CP102 only. Thus, understanding the IO’s case properly and in context, the IO is in fact saying that the position of CP102 is wrong because its frontage width is wider than the dimension as stipulated in the Carport Layout Plans.  The issue is the correctness of the delineation of CP102, not its position per se. On the other hand, 621Ds’ pleaded case is that the Carport Layout Plans is for identification of the location of CPs only.  As pleaded in the parties’ respective pleadings, the parties have no dispute on the position of CP 102 as shown on the Carport Layout Plans.

(3)  The above is reflected in the Expert Issues approved in the 20.09.2024 Order.  The phrase “correct dimensions and positions” in Expert Issues (a)  and (b)  must be read together with Expert Issue (c), which concerns “Boundary irregularities, if any, between the identification and delineations in paragraphs 1(a)  and 1(b)  above”.  Thus, the ultimate issue is boundary irregularities, not the correctness of the position of the CPs vis-à-vis the entire carpark of Grenville House.

38.Third, assuming that there are some valid grounds in support of the Extended Survey, there is no reason why those grounds could not be put forward, and the Extended Survey could not be suggested, in the 20.09.2024 Hearing.  I do not agree that the “preliminary investigation” done by Wong as mentioned in §30(6)(b)  above is something which could not be done before 20.09.2024.  The CPs are on the ground and can be seen by anyone at any time.  CP102 is a private property owned by 621Ds, and with 621Ds’ consent, Joseph Wong could certainly inspect CP102 at any time.  The Carport Layout Plans can also be obtained from the Land Registry by anyone at any time.  Mr Li SC has referred me to §87 of Wong Pak Sum v Hong Kong Furniture & Decoration Trade Association Ltd[15], which is precisely on the point.  In that case, DHCJ Marlene Ng (as she then was)  said:

“87. …… If there are grounds that could have been advanced on the earlier occasion … he cannot by way of the 2^nd Summons fight over again a battle which has already been fought by relying on grounds that he could reasonably have advanced on the first encounter unless there has been some significant change in circumstances.”

39.In my judgment, there is no sufficient cause justifying revisiting the 20.09.2024 Order.  Accordingly, the Access Summons must be dismissed.

D2.2 Extended Survey unnecessary and irrelevant for resolving the Expert Issues

40.The following matters would need to be borne in mind:

(1)  As said in the above, in the 20.09.2024 Hearing, the Court ruled, inter alia, that whether the Carport Layout Plans can be used to delineate the CPs is not a matter to be addressed by expert evidence. The parties are bound by the ruling.  It is impermissible to challenge these rulings not by an appeal but by a second summons.  To do so is a collateral attack against the judgment made by the Court and is an abuse of process.

(2)  Whether the Carport Layout Plans are delineating the CPs or only indicating the locations of the CPs depends upon the construction of the Conditions and the DMC, and is an issue to be argued at the trial.  The resolution of this issue does not depend upon the expert evidence intended to be introduced by the Access Summons.

(3)  If the Carport Layout Plans are for indicating and not delineating the CPs as contested by 621Ds, that would be the end of the IO’s case and 621Ds would succeed at the trial.

(4)  If the Carport Layout Plans are for delineating the CPs as contended by the IO, that would mean that the Carport Layout Plans themselves are the standard.  If the in situ dimensions and position of any CP differ from the one stipulated in the Carport Layout Plans, that would only mean that the in situ dimensions and position of the CP are wrong.  The difference cannot be a basis to say that the Carport Layout Plans are unreliable.

(5)  Applying common sense, in order to say whether the dimensions and position of CP 102 are correct or wrong, there must be a standard for reference.  If the Carport Layout Plans are unreliable as contested by 621Ds, it is unknown what constitutes the standard for determining the correctness of the dimensions and position of any CP in Grenville House.

(6)  In the 20.09.2024 Hearing, in the 622 Action, I made a ruling that even though other objects shown on the Carport Layout Plans may not be built according to the Carport Layout Plans, it is unclear how would this after the IO’s case. 622D has not pleaded a clear answer on this point.  Mr Lam submits that the said ruling should not be binding upon 621Ds, for the ruling was made in the 622 Action, not in the 621 Action.  Even assuming Mr Lam is right on this point, I am of the view that the same reasoning would be applicable in the 621 Action.  According to the IO’s pleaded case, the purpose of the Carport Layout Plans is to delineate the CPs, not to delineate any other objects in Grenville House. Even if some other objects shown in the Carport Layout Plans are not built in accordance with the Carport Layout Plans, 621Ds have not in their Re-Amended Defence pleaded how would this affects the IO’s case. Bearing in mind that pleadings define issues, which then define the scope of expert evidence, I really do not see any reason to investigate whether the other objects as shown on the Carport Layout Plans are built in accordance with those plans.

(7)  At §7 of Joseph Wong’s 1^st Affirmation, Jospeh Wong said:

“7. … whilst that the relevant Carport Layout Plans were allegedly drawn initially to scale, the one now made available from the Land Registry are copies only, which in the course of copying, there are bound to giving rise to inherent distortion; hence, discrepancies.”

(8)  While the originals of the Carport Layout Plans are unavailable, it is not known on what basis it can be concluded that the copies now available are not true copies of the originals.  In any event, whether the copies now available are true copies of the originals is a matter which can be commented by the expert without the Extended Survey.

41.With the aforesaid in mind, with respect, I do not see the necessity and the relevance of the Extended Survey for the purpose of resolving the Expert Issues as set out in the 20.09.2024 Order. 

42.For avoidance of doubt, the refusal of the Extended Survey proposed in the Access Summons would not prevent 621Ds from running the arguments based upon waiver, acquiescence, estoppel and/or laches as pleaded in their Re-Amended Defence.

D2.3 Order sought by the Access Summons undesirable

43.By the Access Summons, 621Ds are seeking an order to allow Jospeh Wong to have “a free and unrestricted access to the common areas of Grenville House… including all carpark areas and structural elements of Grenville House as [Wong] considers it appropriate”.  At §9 of Jospeh Wong’s 2^nd Affirmation, Jospeh Wong said he would need to undertake the survey as to “[t]he outline of the property development” and “[t]he existing sizes and location of the structural members”. At §14 of the same affirmation, Wong said that he should be allowed “to survey the entire property development”.  As submitted by Mr Li SC, the Extended Survey suggested by 621Ds is extravagant and without a proper limit.  I have no hesitation in rejecting such a proposal.  I really do not see why for the purpose of resolving the dispute in these proceedings (which concerns the correct dimensions and position of CP 102 only), Wong should be allowed to survey the entire Grenville House and be given free access to all the common areas (including but not limited to the common areas in the carpark)  in Grenville House.

44.I am also in agreement with Mr Li SC that it is unclear what Order 621Ds are indeed seeking:

(1)  “all carpark areas” in §1 of the Access Summons cannot be included in the description “the common areas of Grenville House”, for CPs (except guest CPs)  are not common areas;

(2)  the meaning and scope of “structural elements of Grenville House” §1 of the Access Summons is unclear and vague;

(3)  the meaning of “the property development” mentioned in §§9 and 14 of Joseph Wong’s 2^nd Affirmation is unclear, and it is not known whether the term is referring to the entire Grenville House; and

(4)  the meaning of “[t]he outline” of the property development in §9 of Joseph Wong’s 2^nd Affirmation is also unclear.

45.With these imprecisions, if 621Ds’ application is allowed, it is almost a certainty that there would be further disputes between the parties concerning the scope of the order when the order is executed, and much more time and costs would need to be spent on resolving these further disputes.  All these are undesirable.

46.Mr Lam submits that if the Court is of the view that the scope of the order sought by 621Ds is too wide, the Court can limit the scope of the order and should not dismiss the application in its entirety. With respect, the problem in 621Ds’ application is that the order sought by them lacks precision and clarity. It is really not clear what Joseph Wong wants to do if he is armed by that order. It is 621Ds’ duty to spell out the order sought by them with precision and clarity. The Court is not and should not be in a position to guess what Joseph Wong wants to do by the order. The lack of precision and clarity in the order sought by 621Ds is a further reason for dismissing the Access Summons.

47.In my judgment, the order sought in the Access Summons is undesirable, and 621Ds’ application for that order must be refused.

D3.  Conclusion and costs

48.For the reasons set out in the above, the appeal must be dismissed.

49.I have heard submissions on costs. Mr Li SC submits that in the event that the appeal is dismissed, costs of the appeal (including costs reserved)  should be awarded to the IO, with a certificate for two counsel, and those costs should be summarily assessed on an indemnity basis. Mr Lam does not dispute that costs should follow the event, but Mr Lam submits that there is no sufficient reason justifying a certificate for two counsel and indemnity costs.

50.Costs should follow the event.  Hence, I would order that costs of the appeal (including costs reserved)  be to the IO.  Those costs would be summarily assessed on paper.

51.While I appreciate the assistance rendered by all counsel to the Court, with respect, I am of the view that there is insufficient complexity in this appeal justifying the request for a certificate for two counsel.

52.Regarding indemnity costs, recently in Fang Yue and Others v Shing Yim Ping[16], I have set out the relevant principles:

(1)  It is generally necessary for a party seeking an order for indemnity costs to demonstrate some “special or unusual feature” in the case.

(2)  Indemnity costs is not only ordered where the paying party’s conduct lacks moral probity or deserves moral condemnation for which the Court wishes to express disapproval.  Conduct which falls short of that can be so unreasonable as to justify an order for indemnity costs.  But such conduct would need to be unreasonable to a high degree.  Unreasonable in this context does not mean merely wrong or misguided in hindsight.

(3)  Ordinarily, merely pursuing a weak claim would not justify indemnity costs.  On the other hand, maintaining a claim that one knows, or ought to know, is doomed to fail on the facts and on the law, is conduct that is so unreasonable as would justify indemnity costs.

(4)  Ultimately, what the receiving party must demonstrate is something in the conduct of the action or other circumstances of the case that “takes it out of the norm” which warrants an order for indemnity costs.

(5)  The underlying rationale of indemnity costs is to indemnify the successful party, not as punishment on the paying party.

53.Having considered the parties’ respective submissions, I agree with Mr Li SC that 621Ds’ application as per the Access Summons is fundamentally flawed and devoid of any merit.  With the benefit of being legally represented in these proceedings, 621Ds ought to know that the appeal is bound to fail.  Further, for the reasons set out in §40(1)  above, I am of the view that the application made by the Access Summons is a collateral attack against the ruling made by the Court in the 20.09.2024 Hearing and is an abuse of process.  In view of all these, it is a very unreasonable conduct to bring and to pursue this appeal, and such conduct should be met by an order of indemnity costs.  I would order indemnity costs against 621Ds.

54.I would order that costs of the appeal (including costs reserved)  be paid by 621Ds to the IO forthwith, and those costs be summarily assessed on an indemnity basis on paper.  There be leave to the IO to lodge and serve a statement of costs for summary assessment (limited to 3 pages)  within 7 days, and leave to 621Ds to lodge and serve a list of objections (limited to 3 pages)  within 7 days thereafter.

E.  DISPOSITION

55.I dismiss the appeal.  I further order that the parties shall comply with §4 of the 20.09.2024 Order within 28 days. I also make the costs order as set out in §54 above.

56.Lastly, it remains for me to thank all counsel for the helpful assistance rendered to the Court.

Mr CY Li SC leading Mr Iverson Wong instructed by King & Co. for plaintiff

Mr Justin Lam instructed by Jones Day for 1^st & 2^nd defendants