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

HCA 761/2022

[2026] HKCFI 5470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 761 OF 2022

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JUDGMENT

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1.This claim relates to Apartment 12C, Block CD, Grenville House, Mid-Levels, Hong Kong. It is the penthouse of that block (“the Property”).  The Property therefore a prime property on a prime site in Hong Kong.

2.The 1^st and 2^nd Plaintiffs (“the Plaintiffs”) are represented by Bernard Man SC and Shaun Elijah Tan instructed by Messrs Jones Day.  The 1^st Defendant (“the IO”) are represented by Jonathan Chang SC, Vincent Lung and Calvin Ng instructed by Messrs Johnson Stokes & Master.

3.The trial occurred from the 7 September 2026 to 16 September 2026.  I heard factual evidence from Mr Wong for the Plaintiffs and Ms Kwok and Ms Forissier for the IO. There were two experts – Mr Wong San, Samson (“Mr Samson Wong”) for the Plaintiffs and Sr Dr Lau Wing Wai, Patrick (“Dr Lau”) for the IO.

4.On day 1 of the trial, I dealt with an application to amend the Amended Statement of Claim to ensure that all allegations were now incorporated into the pleadings.

5.I granted that application with costs in the case. I did so as all the parties were there and it would be inappropriate partially to consider the issues between these parties.  It would be also be disproportionate in terms of time and cost so to do.

6.I did so with accompanied by two explicit references to Henderson v Henderson (1843) 3 Hare 100, 67 ER 313. Henderson v Henderson is authority for the proposition that once the parties have litigated issues between the parties, they cannot, subject to an appeal, re-litigate them.

7.The trial was very document heavy with over 13,500 pages of documents and 100 pages of Opening Submissions. These amounted to some 4 meters of material.

8.Despite an indicative order of Mr Justice Eugene Fong dated 9 June 2026 as to preparations for trial, there was no core bundle. The parties should have provided one.

9.In any event, I directed that there would be a bundle of all documents referred to in open court. This amounted to two lever arch files. I have read them.

10.There are then 100 pages of closings. I have also read those.

11.I have read or looked at all of the documents. In the case of the pleadings, experts’ reports and witness statements I have read them several times.

12.This case also has had the benefit of a live transcript and an e-bundle. The former is an essential tool in a case like this. As will, I hope, be seen from this judgment, I have read all of the transcript and have made extensive use of it. The e-bundle also has been essential. Without both of them, I would not have been able to deal with this case in the time I have done. I am grateful to the parties and the providers of both.

13.Both parties have taken a number of pleading points throughout. Authorities have been cited and I have read them.

14.The need for properly and fully pleaded cases is trite. In other cases, indeed, a pleading point might well be decisive. As the Plaintiffs quite properly point out, the pleadings should frame the evidence and not vice versa (see 16 September 2026, transcript p 49 and authority cited).

15.On the other side of the coin, in a common law system, a party is entitled to test the case advanced by the other party without pleading a positive case.

16.Given, however, the nature of this litigation, where the parties are and the need to achieve some form of resolution, whilst the pleading points are noted on both sides, I am not going to determine the multiple issues between these parties based solely on the pleadings or absence of them. What I have done is read, heard and considered all the evidence before me and reached my views on the basis of that evidence. For the avoidance of doubt, however, both parties are not above criticism when it comes to a pleadings analysis. Thus, if a pleadings based approach were to be adopted, both parties would be at risk and in the Plaintiffs’ case (as there is no counterclaim) the result would be at best further delay; at worst a non-suit or strike out.

17.Allied to that a number of burden of proof points have been taken. Thus, it is said by one that the other has the burden of proof and that this may be an obstacle to their case succeeding. As with pleading points, in the exercise of my discretion, I have allowed the parties to develop their cases as they see fit. Further, other than where I am compelled so to do, I will not decide this case based on a burden of proof argument.

18.The parties in the course of preparing for the trial also prepared:

a.  An Agreed List of Issues;

b.  An Agreed Chronology;

c.  A list of Undisputed Facts;

d.  An Agreed Summary of the Expert issues;

e.  An Agreed Plan of the Property;

f.  A Scott Schedule.

19.Although not referred to in detail in open court, I pointed out that these are useful documents and, under my powers under Orders 1, 1A and 33, I would wish to annex them to the judgment. The parties agreed. These are therefore annexed to this judgment.

20.There was also a site visit to the Property on 9 September 2026. I am grateful to the parties for allowing me the opportunity to carry out this visit which, although of limited probative value, was of considerable use to me.

21.On 11 September 2026, the evidence was concluded. The speed of that outcome was due to the efficiency of the parties and their legal teams. I am grateful to them.

22.As I pointed out at trial, the parties have now ventilated every point on the wide-ranging issues before me. Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 therefore applies (subject to a further hearing as set out below or an appeal).

23.I also pointed by a further direction dated 14 September 2026 that the common law doctrine of merger would apply.  The doctrine of merger means that any judgment merges the cause of action itself with the judgment such that the cause of action itself no longer exists.

24.Finally, as will be indicated below, this is long running and acrimonious litigation.  In the exercise of my Orders 1, 1A and 33 powers, on 11 September 2026, I ordered that, in terms of further evidence, there is nothing more to be said on the wide-ranging issues and extensive documentation before me.

25.On 15 September 2026 I received the written closings.

26.On 16 September 2026 there were commendably brief oral closings. I say commendably as the parties had already canvassed at some length the issues between them orally and in writing.

27.Also on 16 September 2026, there was a debate about the process going forward. I ordered that the parties would provide their proposals by close of play 18 September 2026. The parties were not able to agree on a way forward in relation to remedial works. That should have been agreed. That it was not agreed is unfortunate to say the least.

28.This is the judgment on the issues that the parties have agreed I have to decide.

29.Subject to a successful appeal and/or the debate over remedial works and costs, this judgment is therefore a final determination.

The issues

30.There are twenty issues for me to decide.  These in essence fall into three topics:

a.  Those relating to alleged water leaks at the Property. As it has been admitted there were water leaks at the Property (see para 7 Defence). The water leaks issue factually breaks down in essence to causation, duration of the leaks and therefore remedial works and quantum (“the leaks issue”);

b.  Those relating to the absence of the gas supply to the Property in November 2020 to January 2021 (“the gas pipe issue”);

c.  Those relating to the return of a renovation deposit (“the deposit issue”).

31.These are primarily issues of fact. There are issues of law, but as I pointed out on day 5 of the trial, if I decide in certain ways on the facts, the issues of law fall away.

32.There are so many issues and such a volume of documents that whilst I have read everything this judgment does not address each and every document or each and every allegation. To do so would make this an exceptionally lengthy document.

33.I have, however, dealt with the issues and every relevant allegation.

The facts

Facts common to all issues

34.These are as set out in the in the List of Undisputed Facts and the Chronology.

35.In essence, the facts common to all issues are as follows.

36.The Plaintiffs are the owners of the Property and have been since 1988. The Plaintiffs as owners have the benefit of a Deed of Mutual Covenant dated 31 March 1971 (“the DMC”) (see paras 1 and 2 List of Undisputed Facts).  The Property includes sections of the roof. The Property does not include the waterproof membrane to the roof.

37.The IO consists of the incorporated owners of Grenville House – the buildings – where the Property is situated in Block C.  The IO then has a Management Committee (“the IMOC”) which is responsible for running Grenville House albeit decisions and advice may be delegated to professional advisors. The IO is also subject to the Building Management Ordinance Cap 344 (“BMO”) (see List of Undisputed Facts para 4).

38.The current dispute has its genesis in water leaks discovered in 2017. The gas pipe and deposit issues flow from the end of 2020 and the beginning of 2021. The dispute therefore has a long history.

39.As a result, Mr Wong frequently could not recall events precisely – which is unsurprising. I so find.

40.Mr Wong was, however, understandably, frustrated by events. As Mr Wong said:

“All we've been doing is spending legal fees and getting stressed out.  My grandchildren doesn't 75 come to my house anymore because it's toxic.  Can we please have a little sense of decency to look at what we are suffering? I'm 75 years old.  I don't want to die fighting the IO.  I'm not trying to be dramatic, but it is dramatic.  It is dramatic.  I'm 75 years old, I'm sitting here.  And look at the court, look at what we're spending on relatively minute problems that can be solved if we sat down and said, "All right, let's try to solve this", and then we'll say, "Right, okay, let's work this out".  So with all due respect, I'm going to be criticised for speaking too much, but this is how I feel.”

(Day 2, page 48 of the transcript of Mr Wong’s Evidence)

41.The dispute has been acrimonious. Paragraph 34 of the Amended Statement of Claim is as follows:

“The 1^st Plaintiff served as Chairman of the 1^st Defendant from September 2011 until June 2017. During his time as Chairman and after his removal in June 2017, the 1^st Plaintiff either presided as Chairman or was involved as an owner over a number of issues which have caused animosity amongst a number of the current individual members of the 1^st Defendant's MC against the 1^st Plaintiff. These issues include:

a. conducting an investigation relating to the improprieties by the former building manager of the Building to allocate a carparking space owned by the 1^st Defendant to Mr. Derek Chan (current Chairman of the MC) and further improprieties relating to the swapping of carparking spaces involving Mr. Chan's relatives who live at the Building.

b. withholding the renovation deposit paid by Mr. Owen Chan (current Vice Chairman of the MC) in relation to the sewage pipes and other unauthorized building works he had installed on the external wall of the Building and at the balcony of his property;

c. filing a complaint with the 1 st Defendant against Ms. Nicole Forrisier (current Treasurer of the MC) over allegations against her using the 1 st Defendant's resources for her own two private properties;

d. resolving the banning of car-washing at the Building by using a running hose in accordance with guidelines issued by the Environmental Protection Department of the HKSAR Government;

e. commencing court proceedings against certain MC members for defamation; and

f. opposing the appointment of the 2^nd Defendant as the management company of the Building over the involvement of the 2^nd Defendant's former senior management in a bid-rigging sandal in about 2016.

42.Paragraph 35 of the Amended Statement of Claim is in similar terms.

43.Mr Wong’s Witness Statements include the following:

“At the time it was built, GH was one of the most prestigious estates located on Magazine Gap Road. About 55 years have elapsed since GH was first built and despite two major renovations in 1997 and again in 2009, it still requires a great deal of maintenance work. Unfortunately, both major renovations ended up in disputes with the project architect and/or contractor. A lot of my time as Chairman from 2011 to 2017 was spent dealing with problems arising from the renovation that started in 2009 or thereabouts. The various minutes of the IOC meetings can substantiate the complexities of carrying out such renovations. The IOC, of course, is comprised of individual owners who are supposed to oversee the operations at broader level. As is common in most apartment complexes, the IOC essentially delegates the day-to-day management of the estate to a property manager ("Property Manager" ). The Property Manager maintains an office at the estate and are required to ensure sufficient staff are available to deal with the myriad of issues that arise on a day to day basis. Most IOC members have full time jobs so they cannot get involved in the "nitty gritty" . Of course there are exceptions to this. For example, the demand on my time was quite substantial when I served as Chairman from 2011 to 2017 because the entire previous management committee had resigned in September 2011 and Hong Yip, the Property Manager who was also the project manager during the major renovation had resigned. It was mayhem.

It is worth mentioning that based on my own experience serving as Chairman and my dealings with Synergis Management Services Limited ("Synergis" ), CBRE Limited Hong Kong ("CBRE" ) and Kong Shum Union Property Management Co., Limited ("Kong Shum" ), the reality is that employees of the Property Manager stationed at GH are employees of the Property Manager in name only. This is particularly true for Property Managers who consider GH to be a trophy property, which they can use to promote their services to other prestigious estates. This is true for both Kong Shum and Synergis. For companies such as Jones Lang Lasalle and CBRE, they have a reputation which serves as a very important deterrent against accommodating the whims of a strong-willed Chairman and the private agendas of vocal IOC members. There are few checks and balances.

During the past few years, I have made repeated appeals to the senior management of Synergis, CBRE and Kong Shum for assistance in resolving the issues I was facing. CBRE decided to resign on the first day of their appointment on April  1st 2021 giving the three months' notice under the letter of intent. Synergis decided not to renew their appointment and did not submit a tender. I had a close working relationship with Kong Shum for 6 years and Fong Shek Hung, the director in charge of property management at Kong Shum, repeatedly used the analogy that their status as Property Manager was like that of a domestic helper. Unless what they were being asked to do was blatantly criminal, they had to follow the instructions of the IOC. I believe that this attitude explains the hurdles I faced. To this day, I do not know how decisions are made by the current IOC.

Kong Shum was appointed Property Manager in November 2011 or thereabouts until April 2018 when they were replaced by Synergis. Kong Shum was the only property management company that submitted a tender in 2011. To avoid confusion, Kong Shum was re-appointed as Property Manager on 1 July 2021, again they were the only tenderer for the job. Of the seven years that they served as Property Manager, I worked closely with them for almost six years. They stayed on as Property Manager for about 10 months after I was removed in June 2017. Throughout their seven years of service, Kong Shum were paid a monthly fee of around HKD 60,000 per month .. The IOC undertook a tender exercise in early 2018, and at an extraordinary general meeting in early March 2018 ("EGM" ), Synergis was awarded the property management contract, which commenced on April l5t, 2018. Their agreed monthly fee for providing these services was only HKD 32,000 per month, which was substantially below the market.

While I was no longer a member of the IOC or Chairman at the time, I attended the EGM where it was resolved to appoint Synergis as the Property Manager. Claudia and I have lived in GH for a long time and make an effort to keep informed about the management of GH. At times, it was very disappointing to observe the level of mismanagement that took place. I contributed my time as Chairman but it was a thankless task. The majority of owners do not care and some owners serve on the IOC with very selfish agendas. I am not eager to serve on the IOC again although I have recently submitted my name as a candidate.

An owner who is dissatisfied with the workings of the IOC had tried to volunteer his service for over five years but was never able to join the management committee. He was vetted by the IOC by the then Chairman Derek Chan as well as by the IOC members in a group lunch. He was asked by Derek Chan to "pledge his allegiance" to decisions made by the IOC. He was rejected. My tactic was to force them to vote for him as the lesser of two evils. So far, my efforts to improve the black box mentality in the management of GH have been futile. The IOC controls who gets appointed to the IOC with an iron fist. Complaints to the Home Affairs Department about voting irregularities did not deter tactics such as appointing selected IOC members to fill casual vacancies prior to AGM so that they are voted in as incumbents. The judgement in separate legal proceedings (LDBM 199 of 2020) between me and the IOC which is due to be handed down in mid-May 2024, will hopefully improve transparency. The current position of the IOC is that once they are voted in, they have absolute power to refuse owners the right to inspect tender documents for expenditures of any amount even if it is HKD 30 million

At the EGM to consider the appointment of a Property Manager, I expressed reservations as to whether Synergis would be a suitable candidate. As stated, Kong Shum charged a monthly fee of around HKD 60,000, and I made the point that Hong Yip, who was the Property Manager until 2011 before Kong Shum, charged a monthly fee of HKD 90,000, almost three times what Synergis had proposed. And I also noted that as part of this tender exercise, Jones Lang LaSallehad also tendered, and had proposed a monthly fee of around HKD 200,000, almost seven times the monthly fee proposed by Synergis. Surprisingly JL W withdrew their tender. I do not know the exact reason for their withdrawal.

I was not alone in raising this issue. At least one other attendee (Mr Sabine) questioned whether Synergis had sufficient experience in managing a private estate like GH, since it appeared that their experience lay in managing government estates, and also questioned whether the monthly fee proposed by Synergis was realistic as he did not see how Synergis was able to make any money at that level. The concern was that Property Manager(s) that submitted low bids may be more prone to find other sources of income, illicit or otherwise.

At the EGM, I also asked the Synergis representative present (Mr Eugene Cheung), whether he was aware of the approximately HKD 60 million worth of renovations proposed to be carried out at GH. I raised this because it was my experience that larger-scale renovation projects on residential estates require proactive attention from both the staff present at the estate on a daily basis and also their head office. Mr Cheung responded by saying that he was not aware of the scope of the renovations but was comfortable with their proposed monthly fee ofHKD 32,000.

Prior to the EGM, I did some research on Synergis on the internet. I discovered that the company was alleged to have been involved in a bid-rigging case involving one of the estates under their management, and that two former employees had been arrested by the ICAC. I raised this issue at the EGM, and Mr Cheung responded by saying that no case had been brought against any person, and that the ICAC had conducted two audits in 2016 and that no negative comments had been received. After the EGM, it was discovered that the ICAC had charged a former maintenance manager of Synergis with accepting bribes for divulging confidential tender information on a renovation project of an estate in Shatin. The information presented at the EGM by the Synergis representative was not accurate.

Despite these issues and my reservations as to their suitability, IOC members unanimously resolved to appoint Synergis as the Property Manager. Synergis was therefore the Property Manager from 1 April 2018 until 21 March 2021.

During the past 6 years, the primary contact for me and Claudia was the Property Manager (bearing the title of Head of Operations), and their on-site technical staff in relation to both the water leakage and gas supply issues. In general, I found them ineffective, amateurish and, on many occasions, incompetent. Synergis was the Property Manager for three years and they were unable to fix the leaks in my apartment. You can build a building in three years, much less to fix water leaks.

There was also very high turnover. For example, the maintenance managers post has been vacant since early 2021. In fairness, the front line staff stationed at our block with whom we had the most daily contact were adequate. However, we were subjected to continuous harassment and discrimination by the management office staff, the most recent of which was their refusal to have the in-house technical staff repair our leaking water valve. It remains the practice that such services are routinely provided to all owners and has been the case in the decades we have lived in GH.

During the period when Synergis was the Property Manager, there was a very high turnover of staff, especially at the senior and technical level. There is no doubt in my mind that this compounded the problems. There was also a fundamental lack of technical expertise. During the period I served as Chairman, the IOC made the decision to seek third -party professional help when necessary because we were fully aware that Kong Shum did not have the necessary technical expertise. In dealing with the problematic major renovation, for example, we appointed John Cock of EC Harris, who is a very reputable consultant.

The manner by which they dealt with the gas supply issues in November/December 2020, for example, was nothing short of disgraceful in my view, taking many weeks to approve basic works proposed by Town Gas themselves, resulting in my family being without gas supply to the bathrooms during cold weather and at the height of the difficulties we all suffered from the Covid pandemic. Similar issues arose in relation to the water leakage, where there was often a haphazard approach, evident from the fact that even now, some seven years after I first notified of water leakage to my apartment, my family continues to live in an apartment which has paint peeling from the ceilings and walls, water stains, dripping water, mould and termites. For health considerations, we have curtailed visits to our home by our young grand-children. We are also not able to have visitors to our dilapidated "luxury" apartment and roof. When I communicated with Synergis, I tried to be as reasonable as possible. I made myself available at short notice to allow inspections; I facilitated access to the roof; I took photos; I spoke to contractors; I made suggestions; I provided some materials at my own cost. There were times, however, where I took the view that things were simply not moving quick enough or effectively, where I was left dissatisfied, frustrated and exasperated.  The inability of Synergis to discharge its duties as Property Manager is a validation of the adage that you get what you pay for. More bluntly, you pay peanuts, you get monkeys.

During my interactions with Joseph Leung, the Synergis Area Manager, he shared with me his frustrations on many occasions in relation to the lack of progress in handling the water proofing situation. In one message, he stated that he was "coughing blood" , which is Chinese slang for being frustrated. His frustration was directed at the incompetence of his own staff, as well as the fact that his hands were tied by edicts from the IOC. The frequency of my contact with Joseph Leung diminished over time as it became obvious that he did not have any sway with the IOC. To this day, I do not know how decisions are made in GH.

It should be noted that I was removed as Chairman in an AGM on 10 June 2017, which at a personal level was not a pleasant experience, and I recall that I consciously did not push hard for the Property Manager or the new Chairman to pay immediate attention to the leaks in my apartment. At that time, I doubted whether they would deal with the problems of an ex-Chairman with any real sense of urgency. My relationship with the IOC members who served during my tenure as Chairman and the three newly appointed individuals - David Stannard as Chairman, James Lin as Vice Chairman and Owen Chan were also surprisingly hostile. With due credit to David Stannard, he did make an effort to engage at times, but Derek Chan has refused to engage with us since he became Chairman in February 2020.”

(paras 4 ff Mr Wong’s First Statement and following)

“As an owner who has served on the IOC, one of the most inexplicable aspect of our efforts to resolve the matters amicably has been the unwillingness of the Chairman and other members of the IOC to engage in a dialogue with us or to take any interest by making a visit to our Property to better understand the problems needing addressing. Requests for face-to-face meetings were and continued to be ignored. Instead of being treated as owners in need of assistance, we are marginalised as adversaries. We have been left to fend for ourselves dealing with an unresponsive and incompetent Property Manager. In the past seven years, with the possible exception of David Stannard, not one of the Chairmen, Vice Chairmen or IOC members have made an effort to assist us as fellow owners in distress.”

(para 27 Mr Wong’s First Statement)

“It should be noted that I was removed as Chairman in an AGM on 10 June 2017, which at a personal level was not a pleasant experience.”

(para 29 Mr Wong’s First Statement)

“Indeed, that was confirmed by the IOC's solicitors on 16 December 2020, after I commenced proceedings, where the IOC offered to appoint a surveyor ‘to inspect you clients’ property to identify the cause(s) of the water seepage’, the very thing that the Property Manager and IOC had been trying to do since mid-2018. That I wrote constantly to move things along, and that I occasionally expressed my views firmly, often abruptly, and occasionally used language such as ‘incompetence’, ‘a circus’, ‘moronic’, ‘enough is enough’, ‘water torture’ etc., should be seen in that context.”

(para 149 Mr Wong’s First Statement)

“In a subsequent letter on 8 June 2020, my solicitors set out a range of what I considered to be frivolous and oppressive actions taken by the IOC against me, including the waging of a personal vendetta against me, discriminatory actions, intimidation, untrue slanderous statements and the spread of falsehoods.”

(para 156 Mr Wong’s First Statement)

44.At trial, Mr Wong’s view the position was:

“I think that as early as 2022, we were instructed never to file any complaints to the IO, and if we did, it would be ignored.  So there's a 2022 letter from Johnson Stokes saying specifically all complaints would be ignored and would not even be rejected. So my wife and I sort of didn't feel it was worth it to be have our head banging against the wall.  … And then after we read Nicole's witness statement saying that we didn't make any complaints, I think my wife decided that we should start making complaints, because the protocol we were given was not to talk to the IO, even if our toilet was leaking and we were dying, we cannot talk to the IO, and we had to route the complaints through Johnson Stokes.  And for the life of me, I do not believe why lawyers should get involved in day-to-day building management.”

(Day 2, transcript of Mr Wong’s Evidence pp 54 – 5)

45.The paragraph 34 allegations were the subject of cross examination of IO witnesses at trial on day 3.

“So the -- what I would suggest to you – and Ms Kwok, this one, you can agree, disagree, or if you have no comment, just say so -- is that I have to suggest to you that the management committee in handling matters concerns the gas repairs did what they did because of their animosity against the plaintiffs.

A. I disagree.

(Day 3, transcript of Ms Kwok’s Evidence p 42. This question was put several times with the same result. I have therefore selected one example)

Q. So I'm going to suggest to you that there is a degree of animosity between members of the management committee and Mr Wong.  Perhaps this -- do you agree?

A. No.

Q. You don't agree?

A. I don't agree.

Q. So there's no animosity --

A. Not that I know of.

Q. Not that you know of, okay.  And I suggest to you that the way that the matters concerning the gas repair works was handled by the IO was because of this animosity between the members of the MC and Mr Wong.  Do you agree?

A.  No, I disagree. ”

(Day 3, transcript of Ms Forissier’s Evidence p 57)

46.Therefore, as a matter of fact, I reject paragraph 34 of the Amended Statement of Claim in its entirety.  For completeness, I also reject paragraph 35 of the Amended Statement of Claim.

47.The IO’s evidence is clear and persuasive – there is no animosity driving the IO’s position as alleged and I so find.

48.There have also been allegations as to criminality and submissions as to the privilege against self-incrimination.

49.At trial, there were the following exchanges (transcript, day 2 pp 10 ff):

“Q…Mr Wong requested Joseph and William to submit repairing plan and find out the root cause of the leakage.

A: To be honest with you, I cannot recall whether I gave very specific request that it was called.  From my point of view, I was just hoping to move things along.  So this is all -- I didn't -- to be fair, I did not review the comments, I was not shown -- I was not given the opportunity to comment on the veracity.  So if it had been presented to me at the time, I might have recollected.  But bear in mind this was in 2019, it was a long time ago.  So I think the general purpose of the meeting was to move things along.

Q. Well, on that, this incident report was disclosed to you in the course of these proceedings, you accept that?

A. I cannot, because there was so many incident reports.

Q. Yes.

A. And it came from two sources. One source was from the IO.  And another source was from D2, Synergis.  And a lot of those incident reports, I was not aware of because they were never shared with me at the time they were written.  So if you ask me, am I aware of the general events that took place? Absolutely.  Were the issues to be discussed framed in such a narrow way? I do not think so.  I was just in desperation to solve a problem which by that time was two years old.

Q. All right, now over the page, 12656, the bottom paragraph, if you can cast your eye to that: "Mr Wong mentioned that his floor area, exit from the spiral stairs (from his flat leading up to the rooftop) covering with waterproofing materials are pending for make good works (black paint).  At the meeting, Mr Wong requested Joseph and William if it was possible to arrange technician to do so and what the timeframe would be to finish the job.  Joseph and William could not give a definite answer at the time." And again, do you confirm that was what happened, at the meeting?

A. There was a leak 5, I recall. And I don't know exactly, but what happened was that the technician had started to repair the area outside of the spiral staircase and the stuff on the top.  And I remember that they did it and then they stopped because somehow the IO had given an order that they should not proceed.  But the reality was that whatever they did, it actually cured the problem.  Because I think -- and I'm not an expert, but what happened was that the water apparently came in through underneath the sliding door.  So what -- and I do not know whether this incident took place before or after what was done, but the black paint refers to a liquous [sic] membrane that they applied surrounding the square structure.  And to the best of my knowledge, it did cure the problem.

Q. Now, Mr Wong, if you can focus on my question.  I'm asking to confirm the contents of what was recorded in this reports.

A. To be honest with you, I cannot -- I knew that work was done to the -- to the area, and -- but to the extent that whether -- the sequence of events, I think they are largely correct.

Q. All right.  Now, please focus on my question.  Because I want to make sure I have -- we are --

A. Okay, all right.

Q. -- not on cross-purposes.  Now, if we go to the next page, 12657, again what I'm interested to find out is whether you confirm the -- what was recorded here actually took place, rather than asking for a further elaboration on what --

A. Okay.  To be honest with you, it was a long time ago and I cannot remember.  But substantially, I think that the meeting took place.  And as for the specifics, I do not recall the detail.  I'm not a recording machine.  But substantially, I have to say the meeting took place, big discussion took place.  I -- there's no reason for me to dispute the veracity of what's written here.  But in terms of the specific wording, I would not be truthful if I told you that I remember.

Q. Yes.

A. I do not remember.

Q. We understand, Mr Wong.  That's the purpose for asking to go through the contents.

A. So I think --

Q. Now, wait for my question. 12657.  Now, first paragraph:

‘Mr Wong further requested Joseph and William to erect another scaffolding at the bathroom area on the reason of the leakage from the ventilation area.  Joseph reiterated that the part was totally private and nothing to do with the common area.  Mr Wong said he would be willing to pay for that fix.’

Again do you recall this discussion having taken place.  If you don't, then tell us you can't.

A. I think that this allegation that I was prepared to pay for it surfaces in other documents, but I think that to this day, and I rely on the experts, I do not if that area is, in fact, a common area.  But I've always taken the view that if there were something that I was culpable of, that I contributed to, that it was really not a common area, it was a relatively minor financial consideration, and therefore I was prepared to pay for it only to move things alone.

Q. Now, Mr Wong, I'll cut my questions short.  The report recorded when Joseph and William attempted to leave the rooftop, you locked them up.  Do you agree or disagree that took place?

A. The matter was reported to the police, and I was interviewed by the police for false imprisonment.  What happened was that the police decided maybe a year later that there was no case to answer for whatever reason.  But I felt frustrated that they were just -- it took a long time to set up the meeting.  And if you, you know, I haven't even read the document completely, but it was another ‘No solution, we have to consult with them IO’ type of situation.  So I was frustrated.  I do not -- I apologise for my action --

Q. Well, before that, let's confirm the action.  So you agree --

A. The action was that based on police report filed by the management office, I was taken to the police station and questioned on this incident

Q. Well, before that, let's confirm the action.  So you agree --

A. The action was that based on police report filed by the management office, I was taken to the police station and questioned on this incident.

Q. Well, let's put aside the police report because I'm asking you what happened that morning on the roof.  Now again, the incident report stated when the two of them tried to leave, you won't let them go.  Did you -- can you confirm that had happened?

A. I --

MR MAN: Can I ask my Lord where this is going? Because the witness has already said, as he said in his supplemental statement, that the report was made to the police and the case was dropped. Now, I'm asking this for two reasons.  First is the relevance to this case; and, secondly, because this is a report which ultimately culminated in a suggestion that -- well, in fact, which was actually the point, that it was reported to the police.  So is my learned friend trying to get my client to give concerning this allegation, in which case it may be that we will have to decide whether a warning concerning a privilege against self-incrimination is required.  Because it seems that the incident report, the tenor of it is that what was recorded there amounted to a criminal offense.  It is entitled false imprisonment, my client was asked whether he has a law degree.  And so if that's the intention of getting him to confirm facts which may then amount to false imprisonment, then we have to have a debate as to what warning this witness should be given so that he can decide whether to take privilege.  But I have a feeling that it may not be necessary because at the moment I'm not sure how this goes to any issues of the case.  But if my learned friend is pursuing this, then we need a debate concerning what warning to be given concerning the privilege against that affirmation.

MR CHANG: Well, my Lord, I thought the relevance is quite clear.  It's Mr Wong's case that he is alleging bad faith blatantly against the IO.  So his behaviour towards the IO staffing and the management are clearly relevant, as to whether his understanding was justified.  Now, I'm not trying to get a confession out of it.  That's not really the purpose.  I just want to get the facts straight, whether what was recorded in the report took place. Now, whether that amounts to false imprisonment, that's not the purpose, and that's not what I'm getting at.  Now, if Mr Wong says, well, upon taking the advice he refuses to give an answer because he's claiming himself with -- then, fine, I'll move on.

MR MAN: Well, in which case we probably need to do that.  Because, as I understand the law on PSI is that if there is a scope for claiming privilege against self-incrimination, if the evidence given in court, which of course has to be truthful, may amount toa criminal offence.  And I would submit that just judging from the tenor of the report and the fact tha it was actually reported to the police and is investigated, the evidence concerning this episode may amount to a criminal offense --

MR CHANG: Well, my Lord -- well, I don't think I need to push on.  Because Mr Wong has already confirmed there's no reason to dispute the veracity of the record. So that's all I need.

COURT: Well, I was about to say, Mr Chang, we have the report.

MR CHANG: Yes.

COURT: The document is there.

MR CHANG: Yes.

COURT: He says that he doesn't dispute the contents.

MR CHANG: Yes.”

50.I am in no doubt that the origin of the whole debate above is the Plaintiffs and their conduct and I so find. I make no finding as to criminality.

51.It inevitably follows that, to the extent relevant, that the driver for this dispute has been a poor relationship between the parties. The Plaintiffs were the cause of that poor relationship.

52.There is an allied point. An issue between the parties is whether the Plaintiffs denied access to carry out remedial works. As can be seen from the above, that is undeniably the case and I so find.

53.Other than the above, I have no need to make to make findings on this (other than relief and costs) even when resolving the wide-ranging issues with which I have to deal.

54.I do, however, make comments.

55.One, that a dispute over defects should never reach the level where the court has to consider these issues.

56.Two, I have considered my wider responsibilities as to criminality. I do not think any further any action is required at this time.

57.Three, the type of behaviour from the Plaintiffs which has been put in evidence should never happen again. If it were to come before me in future, I would have no hesitation about sanctions.

58.In light of my analysis above, I also reiterate that I reject the Plaintiffs’ allegations in relation to the acrimonious relations between the parties so far as they are intended to support the Plaintiffs’ case. They do not. The Plaintiffs are the cause of the acrimony.

59.I also reject the relevance of such allegations to the issues I have to decide – as far as the Plaintiffs’ positive case is concerned. The issues of conduct are, however, relevant to the denial of access, alleged discrimination and costs.

60.Finally, in my view, Mr Wong’s own behaviour (however motivated) has been the driver of many elements of this claim. I so find.

61.This means, as a matter of fact, that much of the past history is not relevant.

62.The experts’ reports and Joint Statement date from 2023 and the witness statements from 2024. It follows that, other than some oral evidence at trial, I have no current evidence as to the issues between the parties.

63.Other than the above, I find that the factual witnesses were generally honest and trying to their best against a long, complicated and difficult history.

The water leaks issue

64.The Plaintiffs say that water leaks first occurred in 2017. As indicated, it is common ground that there were leaks.

65.It is also common ground that the IO from April 2018 carried out numerous inspections of the Property and conducted ponding tests to seek to ascertain the cause of the leaks (List of Undisputed Facts para 8).

66.Contractors and surveyors were appointed to carry out and to supervise remedial works (List of Undisputed Facts paras 9 – 11).

67.By April 2020, the IO had adopted the position that the leaks were not its responsibility. Nonetheless the IO appointed surveyors, Trusty Surveyors (HK) Limited (“Trusty”), to investigate the leaks and Trusty reported in December 2019; March 2021 and June 2022 identifying the repairs that the IO should make (List of Undisputed Facts paras 12 – 13).

68.The IO’s position is that the IO has consistently offered to make repairs in relation to water ingress arising from the common parts of Grenville House (see para 12 of the Defence).  That is denied by the Plaintiffs (see para 6 of the Plaintiffs’ Reply).

69.The IO further asserts that two offers were made to remediate the interior of the Property (see para 12 of the IO’s Opening Submissions; documents at [D5/241/8120]; [D7/288/8931]).[1] These offers were rejected by the Plaintiffs (see Ms Forissier’s Witness Statement para 29 [B/7/79] on which she was not cross examined at trial). In my view, they should not have been.

70.It would appear to be undeniable that the IO carried out two sets of works to the roof of the Property which were then tested. The IO also carried out three sets of works to the external walls of the Property. These works were completed by May/June 2022 (see Ms Forissier’s Witness Statement paras 13-38 [B/7/73-81] on which she was not cross examined at trial).  Mr Wong said at trial:

“I do not recall when I -- when I finally acceded to the work.  But I think the work did proceed shortly thereafter.”

(Day 2, page 26 of the transcript of Mr Wong’s Evidence)

71.Further, Mr Wong’s position at trial that he required more information as to the works to be carried out:

I -- again, I confirm that a lot of the times we "refused" access was probably not a refusal, per se, but asking for more information about the methodology…

(Day 2, page 27 of the transcript of Mr Wong’s Evidence)

72.Mr Wong further said in cross examination:

“Q: Now we fast forward to 2022, March.  It's a letter from Mayer Brown acting for the IO to your lawyers.  Now, if you look at the second paragraph, it states:

‘We are instructed your client [being you] raised various queries and refused to allow our client's contractor to carry out the repair works as scheduled.’

And the repair works were scheduled originally from 14 March to 16 March.

Now, again, do you confirm you have refused -- well, you have refused to allow the IO contractor to carry out works on the 14th through 16th?

A:  I maintain that asking for more information is not a refusal.  If a doctor wanted to operate on me, my body, and the IO was paying for that medical operation, I as a person on which the operation would take place, I think certainly have a right to ask, ‘What are you going to do to my body?  What are the risks?  What are the consequences? What are the cost/benefits?’  I think to frame me as ‘refusal’ is not -- I did ask for more information.  But it says in here ‘your client's input is not required’, and I beg to differ that someone can just come in to my property and do whatever they want to it without my right to ask simply, ‘What are the downside risk?  What is this going to solve?’ Because you have to bear in mind, it's 2022.  The leak took place in 2017.  I apologise for my conduct, but you have to take in context the stress that me and my family have been under.”

(Day 2, transcript of Mr Wong’s Evidence pp 23 – 5)

73.The Plaintiffs’ position was and is that the works were unsatisfactory in that the water leaks were not resolved.

74.As an associated point, an issue I have to resolve is whether, as a matter of fact, Mr Wong denied the IO access to carry out remedial works.  I put on one side the semantics of whether a request for information is a refusal, Mr Wong clearly did not allow access and I so find.

75.Mr Wong’s Supplemental Witness Statement then says this:

“In relation to the water leakage and damage, despite numerous tests, inspections, reports and rectification works over many years, it is plainly obvious that we continue to suffer the consequences of water leakage to our Property.  There can be no doubt about this and the experts appointed by both us and the IOC agree.  The IOC's fundamental position is that all water leakages have been fixed; that is clearly not the case, as the more recent photographs show, and there is no merit in any allegation that we contributed to the water leakages.”

(para 198 B:259)

76.Mr Wong said at trial:

“they go through the motions, and then it leaks again. And history will tell you that that is what happened, right? We go through the motions, but nothing gets solved.”

(Day 2, page 27 of the transcript of Mr Wong’s Evidence)

77.Other than the current state of the Property and costs, however, the question of water leaks is a matter for expert evidence.

78.Therefore, again and subject to the above and, in particular, costs, whilst I find that the factual witnesses were honest, their evidence whilst informative does not actually assist me in deciding the issues.

79.Water leaks, as the IO correctly submitted in Opening, is an issue which turns on the experts’ views and I so find.

80.Here, there was the evidence of Mr Samson Wong and Dr Lau as well as a Joint Experts’ Statement.

81.I had the benefit of hearing both experts give evidence at trial. Both experts had provided expert reports. In Dr Lau’s case these amount to four reports (three out with the litigation). I have read all the reports more than once.

82.Both experts’ evidence was rigorously tested in cross examination. I heard that cross examination and I have read and re-read the transcript.

83.There were twelve files of expert evidence.  I have read them.

84.The parties also helpfully provided me with a reading list in advance of the expert evidence.  I have re-read the documents referred to in that reading list and in some cases several times.

85.As indicated above, the issues resolve into: causation, duration, remedial works and quantum.

86.I indicated to the parties that in my view these were a “daisy chain”.  That is the Plaintiffs have to establish that:

a.  The leaks were caused by water emanating from the common parts; and

b.  The leaks existed for a period of time; and

c.  The leaks have not been cured; and

d.  What remedial works that are necessary to cure the leaks; and

e.  What those remedial works cost.

87.If the Plaintiffs fail at any one of those stages, then their claim either fails or changes substantially.

88.I repeat here that it is common ground that there have been leaks at the Property.

89.Causation is whether the leaks were and/or are caused by water coming from the common parts (in which case the IO is liable for remedial works) or by the Plaintiffs’ own actions within or outwith the Property (in which case the Plaintiffs’ are liable).

90.This in turn breaks down whether the leaks were and/or caused by water from either the roof or the external walls (common parts) or from other sources.

91.Both of the above are common ground as issues between the parties.

92.Dr Lau’s written evidence contains the following:

“As the inspection is carried out during the inclement weather (rainy days) which causes interference of the tests result and the measurement of data by Protimeter, Infra-red Scanning and Microwave Scanning, I cannot investigate and distinguish the source(s) and cause(s) of the water seepage(s) in the Property whether from one of or a combination of external walls, windows, louvre of the Property, the Main Roof and/or the drainage pipe embedded in the wall at Leakage 1 Location. Based on the symptom and the location of defects and my previous reports, however, I opine that the water seepage from the Main Roof is highly unlikely.”

(Expert report para 5.13.2(ii))

“There are different types of defects on the external walls and Main Roof of the Property that can cause water seepage problem in the Property, namely (1) Cracks, (2) Debonded rendering/ Spalled concrete/ Debonded Tiles, (3) failure of waterproofing system of Main Roof and/or (4) defective windows or aging of window sealant.

It is necessary to cany out remedial works to defective areas to stop water seepage problem in the Property. As the cause and sources of the water seepage problem cannot be identified. The remedial works of the water seepage may be involved at both the common areas of the building (which will be carried out by a contractor appointed by the Client) and/or at the Property such as windows of the Property (which may be carried out by a contractor appointed by the owners of the Property).”

(Expert Report para 6.1)

“As the cause and sources of the water seepage problem cannot be identified. The reasonable quantum of costs for remedial/repair works required to remedy the water seepage(s) in the Property cannot be assessed.

For estimation purpose, the cost of carrying out all the waterproofing works and the making good works at all the related areas on the Main Roof and External Walls (excluding the windows and/or louvre of the Property) is HK$447,530.00 with the breakdown cost at Appendix XI.”

(Expert Report para 6.2)

“As the inspection is carried out during the inclement weather (rainy days) which causes interference of the tests result and the measurement of data, the source(s) and cause(s) of the water seepage(s) in the Property whether from one of or a combination of external walls, windows and/or louvre of the Property and/or the Main Roof cannot be identified separately. Based on the symptom and the location of defects and my previous reports, however, I opine that the water seepage from the Main Roof is highly unlikely.”

(Expert Report para 7.2)

“As the cause and sources of the water seepage problem cannot be identified separately, the remedial works of the water seepage may involve at the External Walls, the Main Roof and/or the windows/ louvre of the Property.

For the repair works on the External Walls and Main Roof, it involves to remove the finishes of the Main Roof and External Walls area at the concerned suspected water seepage locations to the concrete substrate, prepare the substrate including repair of defective concrete, render, screeding and cracks etc for resurfacing and rerendering of the concerned locations of the Main Roof and the External Walls respectively. Repair works on the parapet walls should also be carried out. Water tests should be carried out to ensure the quality of waterproofing works and rerendering works before laying of finishing surface. Afterwards, touch up and make good the internal walls, ceiling, external walls and other affected areas to match the existing after the completion of the external works.

For repair works on the windows of the Property, Minor Works Control System.”

(Expert Report para 7.4)

“As the cause and sources of the water seepage problem cannot be identified separately. The reasonable quantum of costs for remedial/repair works required to remedy the water seepage(s) in the Property cannot be assessed.

For estimation purpose, the cost of carrying out all the waterproofing works and the making good works at all the related areas on the Main Roof and External Walls (excluding the windows and/or louvre of the Property) is HK$447,530.00.”

(Expert Report para 7.5)

93.I drew paragraphs 6 and 7 to the attention of the parties at trial.

94.Dr Lau’s evidence therefore could not assist me in deciding the critical issues that I have to decide.

95.Before his report for the purposes of this litigation, Dr Lau had provided three reports dated 10 December 2019; 16 March 2021 and 11 January 2022. In each of those, Dr Lau concluded that there were signs of water leaks at the property.

96.In the second of those reports, Dr Lau concluded that the leaks were occurring through the external walls and the roof (see para 5.12.4 of the report).  Dr Lau therefore concluded that the water leaks were from the common parts.

97.In his third report, however, Dr Lau concluded:

“Partial repair of the Main Roof by Good Job has been earned out since November 2021 with 2 portions of Main Roof relaying with new waterproofing system.

Flooding test is earned out on these 2 portions, namely Location A and Location B on Main Roof. With reference to the site observation and the test results in the Subject Property by conductivity test, infra-red scanning and microwave scanning, it is found that there are no signs of water seepage in the Subject Property.”

98.Dr Lau was cross examined on day 5 of the trial.

99.In cross examination, Dr Lau said this:

“Yes, I see it, but then I think the last point I put to you in respect of the first measurement is Mr Wong's view is that, if you look at A1 and then compare it with basically the top and bottom, if water present from the top, it would show the roof.  You literally believe it is impossible to come from the roof.  Is that what you are saying?

A. No, it is impossible.

Q. It is impossible?

A.  Yes.”

(Day 5, Dr Lau’s evidence pp 95 – 6)

100.As all credible lawyers and scientists know, impossibility is not a benchmark. Something may be inherently not credible or very implausible but it is not impossible. Dr Lau’s evidence therefore was overstated on this point.  I therefore reject it.

101.Mr Samson Wong described his view of the expert’s task as follows:

“We -- when we carry out our inspection, we are not tell we are carry out in a joint effort manner.  This is not a joint investigation exercise. We carry out our own.”

(Day 4, transcript of Mr Samson Wong’s Evidence p 81)

102.That is incorrect as a description of an expert’s role in giving evidence to the Court.

103.Both parties made closing submissions to me as to the proper role of an expert by reference to The Ikarian Reefer [1993] 2 Lloyds Rep 68. Indeed, in my direction of 14 September 2026, I had indicated that I was well aware of The Ikarian Reefer and its guidelines as to expert evidence.  In essence, as both parties recognize, The Ikarian Reefer sets out the proposition that an expert should be independent, impartial and seek to assist the Court. Experts are not advocates.

104.In my view, neither party’s expert is above criticism on this point.

105.Mr Samson Wong I found to be very cautious in his responses and on occasion was clearly formulating his responses to advance a particular case. His evidence on possible remedial schemes and quantum was exiguous and unhelpful.

106.Dr Lau, on the other hand, had adopted a very firm but untenable position and did not deviate from that afterwards.

107.It follows that I found neither expert’s evidence helpful on the true issues in the case. I have therefore, as the court must, examined the documents and the evidence in detail.

108.The Property has been tested and inspected multiple times. The inspection and testing has been by both parties’ experts but also by Building Diagnostic Consultants Ltd. (“BDC”) and Modern Testing Consultants Ltd. (“Modern”).

109.The inspection has been visual and by touching and knocking of the walls to test for their soundness and dampness.  The starting point is the visual inspection of the structure – as Mr Samson Wong put it:

But when we take into account the defects on the wall, already have a building defects on the wall.

“Q. Yes, but now I'm focusing you on temperature --

A. Yeah. How come the defects will be -- say, exist?

Q. Again, going --

A.  And we -- when we carry -- detect the defects internally, we will move further to see the water content, where they are.  So we conclude such a conclusion there are water content over there -- moisture content, which is sufficient enough to affect the internal.”

(Day 4, transcript of Mr Samson Wong’s Evidence p 61)

“That's very fundamental, yeah, because at the site we found the defects on the wall. We try to identify, say, what's the problem behind the defects. And by correlate this kind of test, we can, say, form the puzzle and one by one, then we can get an explanation on the -- reason why there are defects. External -- the wall have the defects, it's very fundamental.”

(Day 4, transcript of Mr Samson Wong’s Evidence p 68)

“We cannot cause the defects by other means, must come from water.”

(Day 4, transcript of Mr Samson Wong’s evidence p 69)

110.The testing has been way of use of a protimeter; microwave analysis and infra-red imaging.  As Mr Samson Wong put it:

“You can pick up the findings from actually carry out, say, for example, we have done moisture meter at the surface, thermal scan and also microwave measurement. These three tests will tell us, say, the pattern of the moisture movement.”

(Day 4, transcript of Mr Samson Wong’s Evidence p 30)

111.Each of these tests operates differently. The protimeter measures surface dampness.  Infra-red measures temperature where cooler spots may indicate the presence of moisture.

112.It is the microwave analysis that is instructive here. In essence the microwave permits everyone to understand what is going on within a structure at 30, 70 and 110mm depths.

113.Critically, Modern produced a report dated 15 August 2023 as Modern’s analysis of the Property. The report is lengthy and technical but it contains a series of results of microwave testing of the Property (at bundle C p 457 and then at pp 505 ff). Excerpts of the microwave evidence were annexed to the Plaintiffs’ Closing. I have read and examined them in detail.

114.What these results show, unequivocally, is that there was water within the structure of the Property. That is undeniable and I so find.

115.They also show, however, the possible source of the water. The results are laid out on a grid (A – C) where A is the furthest away from the window and C the closest to the window. What is striking is that the microwave testing shows no water closest to the window but water the furthest away. This must mean that any water is not coming from the windows. I so find.

116.That must mean that water is coming from somewhere.

117.Mr Samson Wong put the point as follows:

“And you can see at the top they have more water in point A and moving downward. And again you can pick up, say, one of the spot, say externally, say somewhere, say at the downside two of them.  And they just tell -- say, at that moment moisture water already capture in the structure internally.”

(Day 4, transcript of Mr Samson Wong’s Evidence p 73)

118.The parties have produced a plan of the leaks to the Property and their respective cases. This, as set out above, is annexed.  The plan shows eleven leakages of which ten are in issue. The leaks occur in each room directly below the roof or close to the external walls.

119.The parties also, in closing, examined each leak, leak by leak.

120.The Plaintiffs’ case was each leak was caused by water from the roof and/or the external walls.

121.The IO’s case was there were potential other causes.

122.To take one example – it was suggested that the water may come from natural humidity. That triggered this exchange:

“COURT: I don't have any expert evidence, do I, as to natural humidity being a cause?

MR CHANG:  No.”

(16 September 2026, transcript p 13)

123.I reject the IO’s case.

124.One has water in the structure of the Property; the water being away from the windows and there being multiple leaks below the roof. The water must be coming from somewhere. Even without applying Occam’s Razor, the inevitable inference must be that water is coming from the roof and/or the external walls.

125.I emphasize that conclusion is not drawn by reference to any form of presumption or assumption on my part. It is the inference that must inevitably be drawn from all the evidence.

126.In closing, I put Occam’s Razor to Mr Chang. Mr Chang’s response was, in essence, that the Plaintiffs’ case had not been proved.

127.I set out some of the exchanges in closings:

“MR CHANG: But you have the evidence that the tested areas is wet, even before testing.

COURT: But the testing is 2023.

MR CHANG: Of course.

COURT: And the leaks, according to the plaintiff's evidence started in 2017.

MR CHANG: Yes.

COURT:  So, a fortiori, there would be water in the structure if it had been leaking.”

(16 September 2026, transcript p 13)

“So that's really the point I wish to impress upon the court that, yes, perhaps some tested area at baseline it's alarming but still it doesn't mean anything, because if after the test, the figure actually goes down, then it doesn't show it's coming from the common part.  It may be coming from somewhere else.  The original moisture may be coming from somewhere else, but definitely this can't support the conclusion that it's coming from common part.  So that's how I seek to invite the court to read and interpret the raw data.”

(ibid p 22)

128.I do not think that answers the point on the facts of this case. I repeat the points made above.

129.Taking into account all the evidence, I therefore find the leaks must come from the roof and/or external walls.

130.As that means that water has come, as a matter of fact, from the common parts. That is dispositive – factually – of causation.

131.I am, however, asked to deal with each leak individually. I therefore do so.

132.I have done so by reference to the Closings as they form a convenient point of reference. I have, however, read and in many cases re-read the evidence, the transcript and the Scott Schedule:

a.  Leak 1 – room 4 side wall; room 3 side wall and wall 2.  The Plaintiffs’ case is that this leak emanated from the roof and/or external walls (see paras 68 ff Closing). The IO’s case is that the leak came from the windows (see paras 29 ff Closing). The IO’s case seems to me not to fit with the evidence. As the Plaintiffs point out, the microwave results show otherwise;

b.  Leak 2 (below Room 1 windows and side wall). The Plaintiffs’ case is again the cause is the roof and/or external walls (see paras 92 ff Closing). The IO’s case is that the window is again the cause (see paras 36 ff Closing) albeit that Dr Lau’s evidence on point was inconclusive (paras 37 ff Closing). Again, the IO’s case does not fit with the evidence and again, the microwave evidence suggests otherwise;

c.  Leak 3 – ensuite bathroom. Here the debate between the parties is whether the cause of the leak is a hole in the wall or the roof (Plaintiffs’ Closing paras 104 ff; IO’s Closing paras 40 ff).  If the cause was the hole, the issue becomes who created the hole. Here the evidence is more finely balanced.  If there were not the other leaks, then the obvious conclusion would be that the hole was the cause of the water ingress.  There are, however, the other leaks. The obvious conclusion must be that there are two causes – the roof and the hole. Both require remediation;

d.  Leak 4 – living room wall and ceiling. The Plaintiffs contend that the water came from the roof and external wall (Closing paras 117 ff). The IO contends that the water cannot have come from the roof (Closing paras 46 ff).  The IO so contends due to the absence of dye at this location and the change in readings over time. The IO also contends that a drain was installed on the parapet above the leak. Other than the general pattern of leaks, the IO’s contentions would have merit. On balance, therefore, I find this leak was caused, at least in part. by water from the common parts;

e.  Leak 5 – not pursued at trial;

f.  Leaks 6 and 10 – room 3, wall left. The Plaintiffs’ case is that the water came from the external walls and/or the roof (Closing paras 124 ff). The IO contends the water came from the windows (Closing paras 52 ff and 67). I repeat the points made above as to the microwave evidence. I find for the Plaintiffs;

g.  Leak 7 – dining area external and side wall The Plaintiffs contend that the leak came from the external wall and/or the roof (Closing paras 134ff and 144 ff). The IO contends that the leak came from an air conditioning hood on the external wall and/or the testing of the Property itself (Closing paras 56 ff). As to the former, that would still place the leak as emanating from the external wall.  As to the latter, this is possible and I so find. The difficulty on the IO’s case is the start and duration of the leak – neither of which can be caused by the testing itself. Therefore, the leak must have come from the common parts;

h.  Leak 8 – robe room of room 1. The Plaintiffs’ case is that the source of the water was the external walls and the roof (Closing paras 150 ff). The IO’s case is that the evidence does not support that contention (Closing paras 60 ff).  The IO’s case is therefore, in essence that the case has not been proven. I repeat my findings on that approach above. The IO’s case therefore fails;

i.  Leak 9 – below the windows of room 2. The Plaintiffs’ case is that the leak came from the external walls and/or the roof (Closing paras 164 ff). The IO’s case is that the water came through the window (Closing paras 64 ff).  I repeat my findings above on this issue;

j.  Leak 11 – balcony soffit. The Plaintiffs’ case is that the source is the roof (Closing paras 169 ff). The IO’s case is that as this area is semi-open, the cause of the leaks was the weather (Closing paras 68 ff). The IO’s contention has the benefit of common sense. I therefore find that the leak was caused by rainfall to the exterior of the building and not by water passing through any common part.

133.I therefore find that all bar one of the leaks came from the common parts and find for the Plaintiffs (save for leak 11) on these issues.

134.There remain, however, two issues.

135.The first is the use of the WME (wood moisture equivalent) as a benchmark. WME is that which one obtains if one uses a protimeter to measure the dampness of a structure.

136.At trial it was described as follows:

“... if you push your WME pins into plaster, and get a reading of 15 per cent, it means that if you had a piece of Wood in the same place it would be expected to have 15 per cent moisture content ...

Now you agree with it; right?

A. This kind of quotation of other's statement is -- can only explain their view partially.

Q. Yes.

A. But have not the full picture of what was going on.

Q. So the simple point is, well, if it's 15 per cent – WME of 15 per cent -- it means if it's wood, it would have a moisture content of 15 per cent, but for other materials, it wouldn't, you need to convert them?

A. Yes.

Q. Now, let's go to the conversion table. 1877.  Now, again, the protimeter reading WME on the right, you could see, the last bit, there's this figure, 15.  Can you see that? For your reference, it's the green part.

A. Mm-hmm.

Q. My Lord, you would be able to see a picture.  So 15 on the right most.  And then if you go back to generic wood, it's 15.  So it shows if you see a reading of 15, it means for wood it would have a 15 per cent moisture content.

But if it's concrete, then you would see 4.8, "generic concrete".  Can you see it?

A. Mm-hmm.

Q. Right.  So 15 per cent moisture content wood is equivalent to 4.5 per cent moisture content in generic concrete; do you agree?

A.  Yes, say so.”

(Day 4, transcript of Mr Samson Wong’s evidence pp 21 ff)

137.Dr Lau contends that anything below a 35% figure for WME does not require intervention.  At trial, he put the position as follows:

“So if you are in a situation where you find there is a leakage -- okay.  Let's assume in the hypothetical there is a leakage.

A. Yes.

Q. The end result of that leakage, so you test it and find the protimeter yields a 25% figure?

A. 25.

Q. 25 is in the red zone --

A. Yes.

Q. -- firmly, about 10% less than 35?

A. Yes.

Q. Question: in your view does work need to be done?

A.  No.”

(Day 5, transcript of Dr Lau’s Evidence p 19; see also p 29)

138.Mr Samson Wong on the other hand disagrees. Mr Samson Wong’s evidence was this:

“Q. Now, you know the Hong Kong joint office adopt a benchmark figure of 35 per cent as triggering further investigations for water seepage?

A. Yes.

Q. Now, you state in the joint expert statement, that's what you call an "arbitrary figure"?

A. Yes.

Q. Now, may I know why you say it's "arbitrary"?

A. Yeah.  According to my memory, indeed I am one who drafted the guideline for the joint office to follow.

(Day 4, transcript of Mr Samson Wong’s evidence p 22)

139.In closing, the IO submitted that WME was a “red herring” (para 13 Closing). I agree. Ultimately, I do not find 35% WME as a dispositive benchmark, on the facts of this case, useful. To the extent, therefore, Dr Lau’s turns on the 35% WME evidence, I reject it.

140.The second issue is the credibility of the respective experts.

141.As set out above and as I stated at trial, Dr Lau’s evidence could not assist me at trial. I repeat that and the findings set out above.

142.I also repeat the points as to Mr Samson Wong’s evidence set out above.

143.I make no further finding.

144.That brings me to the question as to the duration of the leaks. This goes to whether the leaks are ongoing, whether they have been cured and whether further remedial works are required.

145.There is very little evidence on point. At trial, I specifically asked the parties to address their minds to the point.

146.Mr Wong’s Supplemental Witness Statement says this:

“It has been a long seven years of failed efforts to get the water leakages fixed properly in our home. Both we and the IOC have spent a great deal of time, effort and money to document the events to support our allegations and for the IOC to defend their actions. There has been three changes in the Property Manager and a high turnover of staff. The only constants have been negative effects of the water leaks on our quality of life as an elderly couple, an unsympathetic IOMC under the leadership of various Chairpersons and an incompetent Head of Operations, Ms Kwok (especially in relation to the gas issues in late 2020).

In relation to the water leakage and damage, despite numerous tests, inspections, reports and rectification works over many years, it is plainly obvious that we continue to suffer the consequences of water leakage to our Property. There can be no doubt about this and the experts appointed by both us and the IOC agree. The IOC's fundamental position is that all water leakages have been fixed; that is clearly not the case, as the more recent photographs show, and there is no merit in any allegation that we contributed to the water leakages.” (paras 197 – 198)

147.Mr Samson Wong’s Expert Report says this:

“8.9 Refer to the previous reports done by Mr Samson Wong for the Affected Premises dated 11 July 2022 and 20 January 2023. Compared with these test results, the reported water seepage locations continue leaking.”

148.The Plaintiffs submitted as follows in closing (including references to the underlying documents):

“The Court identified the difference between the parties on duration as ‘whether the leaks are ongoing or not’, and asked what the parties think the evidence says on that.[2] Ps’ answer is that the leaks are ongoing.

The starting point is the pleadings, which show that D1 admits the persistence of the Water Leakages.

RASOC §8 pleads that ‘The Water Leakages have persisted since 2017’.[3]

D1 admits that ‘the Property has suffered water leakage as alleged in paragraph 8’.[4]

It is common ground between SW and Dr Lau that there were leaks in the Property in 2023.[5]

P1’s[6] evidence is to the same effect and was not challenged. P1 SWS describes water intrusion ‘today from these same leaks’ (as of October 2024), buckets and towels every rainy season, water dripping from the master bedroom ceiling and leaks in Rooms 2 and 3 and the living room during Typhoon Yagi in September 2024, and is supported by photographs taken between May and October 2024.[7] No contrary case was put to him. Indeed, it is P1’s evidence during cross-examination that ‘I’m here now, 2026. My house is still leaking, and I don’t know why it’s still leaking, but it’s still leaking’.[8] The only challenge was that Ps made no complaint to D1 between November 2023 and October 2024, which is addressed below.

The persistence of the Water Leakages is therefore common ground on the pleadings and the evidence. D1 has adduced no evidence disputing that the Water Leakages persist. Indeed it could not, since doing so would contradict the D1 Defence. It is also plain that the Property cannot heal itself.

While D1 suggests that Ps made no complaint to D1 between 17 November 2023 and 15 October 2024, the point is baseless.[9]

First, D1 has not pleaded any waiver and/or estoppel. D1 is not entitled to take this point at this late stage.

Second, P1’s evidence was that Ps had been ‘instructed never to file any complaints to the IO, and if we did, it would be ignored’, and that the complaints they had made in November 2022 had been ignored.[10] Ps made no complaints because MB had told them not to.[11] By letter dated 31 May 2022, MB required that “all communication should be between the parties’ respective lawyers”, and that “all future direct communications sent by your clients to Ms. Kwok will neither be acknowledged nor responded to. This also includes communications from your clients to management office staff at Grenville House and to the Chairman or any individual member or members of the Incorporated Owners Committee”.[12]

In light of the foregoing, thus, the Water Leakages clearly persist till today.”

(Plaintiffs’ Closing para 175 ff)

149.The IO on the other hand pointed out that the Property was dry when inspected in 2023.

150.The IO’s position in Closing was, by way of example:

“At the time of the joint inspection, no water was entering this wall through a common part. The roof above it was re-laid in 2021, passed a flooding test in PL’s[13] presence, and Trusty confirmed that it was dry in January 2022; P1 does not dispute that finding. [14] Damage that has worsened since 2017 shows water entered at some point in the past, not that a common part admitted water in August 2023.[15]”

(the IO’s Closing para 34).

151.It is, of course, perfectly possible for both positions to be correct. A Property may be dry when inspected but may also leak on other occasions.

152.The above summarises the evidence that I have.  The evidence is inadequate.

153.The evidence I do have is from Mr Wong (as referred to above). Mr Wong says the leaks continue and there is nothing to rebut that. That evidence was also unchallenged. I am therefore compelled to accept that evidence.

154.I therefore conclude that there is still some form of water ingress into the Property.  It must also follow that remedial works to date have not cured the problem of water ingress at the Property.

155.What I cannot conclude as to where that ongoing leak is or those ongoing leaks are and the current source of that water. If I cannot conclude that, I also cannot conclude as to how the current leaks are to be remediated. If I cannot conclude how the leaks are to be remediated, I cannot reach any conclusion as to quantum.

156.I so find.

157.That is the logical and factual outcome of the evidence I have. This obvious corollary is that I would find the Plaintiffs’ case not proven or non-suited and that would be the end of it. As indicated, Henderson v Henderson and merger are both in play.

158.Neither party has, however, invited me to adopt that course. I repeat that I pointed out at trial that causation to duration to remedials to quantum were a “daisy chain” at trial and that if a link in the chain failed, the claim failed.

159.I also have in mind that I have found as facts that there has been water ingress and there continues to be a problem in the Property. I also have in mind the past history as set out above and the need for there to be some form of resolution.

160.I therefore do not end the consideration in this judgment at this stage. That the case remains unproven as to current leaks goes, however, to the relief I might order, costs and manifestly the merits of any appeal.

161.It must also be remembered that although at this stage the Plaintiffs’ case could have been rejected. It survives for further consideration due to the history and the need for resolution.

162.One then moves to the question of remedials. Here, put crudely, the difference between the parties is as to complete replacement of the roof (in reality the waterproof membrane) or further patch repairs. There are no agreed remedial schemes or even agreed hypothetical schemes. In a case such as this, there should be.

163.On patch repairs, the most persuasive evidence is that of the Agreed Plan. As there are leaks in Rooms 1 – 4 and the Dining Area and Living Room, that means there are leaks throughout the structure below the roof. I therefore find it difficult to say that a patch repair would assist. After all, if one patches above each leak, the entirety of the roof would have to be patched. At that stage, one is, in essence, looking at a patch repair of the entire roof system. That is a replacement roof (or at least the membrane).

164.Mr Samson Wong’s Expert Report says as follows:

“9.1 The repair responsibility of the external wall and roof is on 10 as these areas falls into common part. The following works should be carried by JO-engaged contractors and consultants.

Repair of the external Walls

9.2 From the above analysis and the summary table there is water seepage and efflorescence from the external walls. The walls at the front (that is the external walls from the Room 1 Robe Room, Room 1, Room 2 and Living Room) and the external wall at Rear (that is the external walls of Room 3, Room 4 and Dining Room) must be repaired. The recommended repair works include:-

9.3 Erect scaffoldings and protective measures. Removing the tiles and rendering from the external wall at the identified seepage areas.

9.4 Roughen the surface and remove all loose materials, grease, efflorescence and dirt.

9.5 Remove all anchor bolts left behind during previous repair work.

9.6 Apply propriety bonding agent in accordance with the manufacturer recommendations.

9.7 Apply proprietary waterproof rendering in layers not greater than 8mm.

9.8 Use proprietary tile adhesive of the fixing the tiles.

9.9 The above works shall be carried out under the minor works control system and under the supervision of a competent consultant.

9.10 Carry out pull out, hammer tapping tests, and spray tests to check the completed repair works.

9.11 Remove the scaffoldings and protective measures and properly remove the anchor bolts for erecting the scaffoldings. Fill up the holes with repair mortar and mastic pointing.

9.12 It is estimated that the total area of the repair is about 39 m. 2

9.13 The cost of the scaffoldings is 60m2 x $350/m2 =$21,000.

9.14 The cost for the repair of tiles and rendering is 39m2 x 6000/m 2 =$234,000.

9.15 The total cost will be $21,000 + $234,000=$255,000

Repair for the Roof

9.16 For the repair of the roof, it is recommended that a complete reroofing should be seriously considered. As informed by the owner of the Premises a complete reroofing was done about 10 years ago so the service life of the waterproofing layer is near its end. If another patch repair is attempted, the other areas of the waterproofing on the roof are likely to deteriorate soon after the repair. To ensure the integrity of the rooftop water proofing, it is better to do a complete reroofing. Moreover, patch repair is difficult to execute as it is not easy to have a perfect joint between the new waterproofing material and the existing waterproofing material. All of the previous patch repairs on roof had failed to solve the water seepage problem.

9.17 AII the tiles, screeding and waterproofing membrane within the repair areas shall be removed.

9.18 Repair all cracks, honeycomb, or defective concrete of the roof slab and the parapet walls.

9.19 Remove dirt, loose materials, and clean the surfaces,

9.20 Apply bond coat and waterproofing screed to fall.

9.21 Apply waterproofing materials in accordance with the manufacturer's recommendation.

9.22 In view of the condition and age of the parapet wall, the waterproofing layer should a/so be applied to the parapet wall up to the underside of the coping to make a complete protection.

9.23 Apply under layer/screeding to receive the roof tiles.

9.24 Orderlpurchase identical replacement ceramic roof tiles (295m 2 x $3,000 = $885,000)

9.25 Lay new replacement tiles to match with existing tiles.

9.26 Provide expansion joint according to the existing pattern.

9.27 Grout the joints.

9.28 Apply paint sealer, undercoat and top coat of paint to the roof parapet wall.

9.29 Carry out ponding test and test for the fall of the repair portion.

9.30 The above works shall be carried out in accordance with minor works control system.

9.31 The total area of the roof is estimated to 295m2.

9.32 The estimated cost for the roof repair is estimated to be 295m2 x $4,500/m2=$1,327,500, $885,000 for roof tiles and $120,450 for parapet wall. The total cost is $2,332,950.”

165.Mr Samson Wong said in evidence:

“Q. Long and short of it, you say well the whole roof needs to be redone?

A.  Yes.”

(Day 4, transcript of Mr Samson Wong’s Evidence p 100)

166.That said, however, Mr Samson Wong had not carried out a thorough investigation of the roof nor any detailed analysis of the quantum of remedial works:

“Q. Have you conducted any examination and inspection of the roof, like lifting the tiles to see this, what you call "the reservoir" below?

A. At this stage, no. It's purely because we don't want to disturb.

…

A.  [in relation to quantum] It's not really necessary at this stage.”

(Day 4, transcript of Mr Samson Wong’s evidence, pp 103; 105)

167.That is an error by Mr Samson Wong. Remedials and therefore quantum are manifestly an issue which ought to be decided now. This is not a proper response for an expert. Again, the evidence is unsatisfactory.

168.Once again, the analysis in this judgment could terminate at this point. The Plaintiffs have quite simply failed even to advance, never mind to prove, any proper form of remedial scheme in relation to the works that are needed at the Property.  I so find.

169.I repeat the above analysis as to my options at this point. Again, I reiterate that, giving every party the maximum benefit of the doubt, I have not chosen to dismiss this claim at this point.

170.That leaves me with the difficult task as to what to do about remedial works.  I raised this with the parties on 16 September 2026. I discuss this further below.

171.That means one moves to quantum.

172.Once again the evidence is inadequate.  Here I would say that the case based on the evidence would be capable of strike out.  I am not, however, asked so to do.

173.There are two findings I do and must make.

174.One, the Plaintiffs cannot remediate the common parts. Therefore, there can be no claim whatsoever for remedial costs outwith the Property. I raised this with the parties at the hearing of closing submissions and Mr Man for the Plaintiffs agreed (see transcript cited below).

175.The IO is therefore correct in its submissions on this point (see para 90 Closing).

176.Two, there is no claim for loss of enjoyment or diminution of value of the Property.

177.I so find.

178.Therefore, that leaves the cost of remedial works within the Property.  As the IO correctly points out (see Closing para 93), this is a global claim. It is also unparticularized and not supported by proper expert evidence. I so find.

179.There have also been two open offers to remediate the interior of the Property which were rejected.

180.The above would give rise to the ability to dismiss the claim at this stage.

181.As I indicate above and below, I am concerned that an outright dismissal of the Plaintiffs’ case on the basis of a want of evidence would be unsatisfactory. So to do would inevitably trigger more animosity, more litigation, more time and more cost. I also have in mind that it would also be unsatisfactory, however, further to prolong this litigation incurring more time and cost.

182.I am therefore left with the difficult issue as to what do next.

183.This was discussed on 16 September 2026. In response to questions from the Court, Mr Man for the Plaintiffs said this:

“And it seems to me if your Lordship's concern is, yes, there should be repairs, but then it would be conducive to the interest of justice for the repairs to be -- for one to have some certainty as to the precise plan, so as to avoid any dispute as to whether X is good enough or whether X plus Y should be the sufficient remedy.  Then one way of doing it is to accede to the prayer for declarations and then give something a bit more than liberty to apply.  And it's for directions for a remedial scheme to be formulated and agreed between the parties and, if necessary, be resolved by the court.  Because I think what -- if I may just articulate what I think where your Lordship’s concern is and propose a way to deal with it, your Lordship's concern, as I understand it, is that an order which is a little bit too general may be oppressive especially given the controversy which has surrounded the case and then nobody wants oppressive orders and overaggressive actions by anybody.  So I totally see that, and if I may so, I respect and agree with it.

So the next thing is that how do we essentially ensure that more precise ways of going ahead is stipulated.  And to leave the parties to agree between themselves might ever so slightly be wishful thinking.  And so some measure of mechanism for disagreements to be resolved by the court, I would say, would be -- I can see the sense of that.  And it would appear that directions following the declaration -- we still need the declarations because we need your Lordship's judgment to result in something pronouncing upon rights.

COURT: Yes.

MR MAN: But I see that it may be that the remedial scheme be subject to further directions, and I see and respect and agree, if I may say so, the desire to have more concrete -- forgive the pun -- do we need more concrete?

COURT: Which type?

MR MAN:  Anyway, the more precise plan for this to go forward, and it may be that directions for remedial plans be proposed and, if necessary, settled by the court, is something which is one way of dealing with that concern.”

(Transcript 16 September 2026 pp 4 ff)

184.I agree with those submissions.

185.I also gave the parties until close of play Friday 18 September 2026 to seek a way forward.  Correspondence was exchanged on 18 September 2026.  There then followed a further letter from the IO dated 21 September 2026 to the effect that the IO and its legal team felt that they had not been allowed time to consider that which the Plaintiffs were proposing.  The upshot is that the parties could not agree on a way forward.  Thus, the parties could not agree a process by which they might then disagree about remedial schemes.  This does not bode well.  I remind the parties as to the overriding objectives at Orders 1 and 1A and their duties to seek to achieve those objectives.  A debate such as this should not be before the Court.  The correspondence and competing proposals are annexed to this judgment.

186.I do not think either party’s proposal entirely meets the needs of this case.

187.The Plaintiffs’ proposal is far too lax and fails to reflect the reality of where their case currently sits.  The IO’s proposal has been criticized by the Plaintiffs for ousting the jurisdiction of this Court.

188.I had prior to receipt of both parties’ proposals been actively considering the orders I should make. I have reconsidered my approach in light of the parties’ failure to agree and the annexed correspondence.

189.On remedial works, given the number and location of the leaks, there must be an issue as to whether patch repairs would be satisfactory. I make no finding as to that (I lack the necessary evidence) but the parties have my comments above and I leave that for the parties to consider.

190.The process by which remedial works will take place needs, however, to have some structure. The parties cannot agree one. I am therefore imposing one.

191.First, the parties will appoint a new, independent expert to act in relation to remedials. If they cannot agree an expert, they will refer to the relevant expert body to appoint one. One will be appointed.

192.Second, the parties have until 31 October 2026 to agree the remedial works and the timetable and to appoint the expert. Given the history, that should be ample time. That scheme will include the proposed works, the timetable and the tests for completion. The scheme will also include properly costed estimates by way of a Scott Schedule as to each item of work and its costs. The scheme will include works to the common parts and the interior of the Property.

193.The scheme will be approved by the new, independent and agreed expert. If the parties cannot agree a scheme, the new expert will decide one. That decision can be subject to review by the Court – but the parties should be reminded that the Court will exercise due deference to a properly qualified expert’s view.

194.That will all be done by 21 November 2026.

195.The same expert will test and certify completion. I therefore agree with the IO’s submissions in closing on this point (16 September 2026 transcript pp 26 – 7).

196.Further, as the remedial works are a matter for the IO, this is not a case where the Plaintiffs can dictate that which the Plaintiffs would like. The scheme, if not agreed, will be either for the new expert or the Court.

197.Third, if the parties do not agree or there is otherwise some failure of the process, the matter will have to come before the Court again for resolution. An option for the Court would be to find that as there is no remedial scheme, the Plaintiffs’ claim fails – as indicated above.

198.Fourth, if access were again to be denied or if there were issues, then again, an option would be to impose sanctions. The further option would be to dismiss the Plaintiffs’ claim.

199.Fifth, as there should have been a remedial scheme agreed a long time ago and two open offers, the Plaintiffs will not be entitled to their legal costs of the above. As the Plaintiffs cannot carry out the works themselves and as a result of the open offers, the Plaintiffs will not be entitled to remedial costs.  There will therefore be no further damages claim.

200.Sixth, both parties Counsel are available on 10 – 11 December 2026. Those dates will be available for a hearing.  I do not anticipate the hearing will occupy both days or even a full day.  If the process I have outlined above and will order below has failed or stalled, I will want to know why.

201.Using my case management powers, I will so order as the trial judge having heard the evidence and/or under Orders 1; 1A and 33. The parties are to bear in mind that in so ordering, I have done so in my discretion and very much as an exercise in forbearance on a claim that I otherwise could and would have dismissed.

202.The above timetable is fixed and should not be stayed even by an appeal. The parties need to achieve a resolution in this case.

The gas pipe issue

203.This is item B on the list of Agreed Undisputed Facts.

204.It is, in essence, a claim about interrupted or non-existent gas supply from 27 October 2020 to the 26 January 2021 (as per the list of Agreed Undisputed Facts).

205.Whilst the then discomfort to the Plaintiffs was considerable, the quantum associated with this issue (if any) would be not considerable.

206.Therefore, it would be disproportionate in this judgment to refer to all the correspondence on this issue. I have read, however, all of that correspondence and have it in mind.

207.In essence, the question was about obtaining approvals for re-routing of gas piping on the external façade of Grenville House.

208.The Plaintiffs’ case on this was they felt that they were being discriminated against because of a complicated history with the IO. The case on discrimination therefore considerably overlaps with the acrimonious history between the parties which I have dealt with above.

209.This discrimination, the Plaintiffs contend, caused delay in the process of resolving any issue in relation to the gas pipes. The Plaintiffs’ contention was that other owners at Grenville House were not required to go through the same process in relation to piping on the façade and/or were not subject to the same degree of scrutiny in relation to external pipes.

210.As a result, at trial, there was a considerable trawling over photographs over other apartments and their pipes.

211.I have re-read the documents and the transcript.

212.The question of discrimination is entirely factual. Like the animosity, it turns on my assessment of the witnesses and the truth of their answers.

213.As to the alleged discrimination, the end position was:

“MR MAN: So the -- what I would suggest to you – and Ms Kwok, this one, you can agree, disagree, or if you have no comment, just say so -- is that I have to suggest to you that the management committee in handling matters concerns the gas repairs did what they did because of their animosity against the plaintiffs.

A. I disagree.  I remember when reading the first plan it was outright illegal to have the pipes installed inside the wall, and I felt that they couldn't just force it through.  It was not only a breach of the DMC, it was also a safety concern in addition to being illegal.

B.    MR MAN:  My Lord, I have no further questions.”

(Day 3, transcript of Ms Kwok’s Evidence p 42. Again, line of questioning was pursued several times.  Here I have selected the end point)

214.Ms Forissier was cross examined on the same basis and her answers were the same as Ms Kwok’s.

215.The Plaintiffs’ sole contention on the gas pipes – discrimination – therefore fails. I find there was no discrimination as the Plaintiffs contend.

216.It follows that this head of claim fails as a matter of fact.

217.Further, it is difficult to see what the loss is that flows under this head of claim.  There are three pleaded heads of claim:

a.  Legal costs. These are irrecoverable as damages;

b.  The cost difference between that which the Plaintiffs wished to install by way of pipes and that which they were required to install. There is no evidence on point;

c.  Loss of enjoyment. The period complained of is short. Any claim would be de minimis.

218.Therefore, if I were wrong as a matter of fact on the discrimination issues, damages, if any, would be exceptionally low and I so find.

The deposit issue

219.This is Item C on the List of Agreed Undisputed Facts.

220.The deposit issue is closely linked with the gas pipe issue. Similar issues as to cost and proportionality arise.

221.In essence, the dispute is as to whether the Plaintiffs are entitled to return of a HK $190,000 deposit paid so that the Plaintiffs could carry out works to the Property including the gas piping.

222.The Plaintiffs make the same allegation as in relation to the gas pipe issue – namely discrimination. As set out above, as a matter of fact that case fails. I have found there was no discrimination and repeat that finding.

223.The IO’s position is that the Plaintiffs did not give an undertaking to indemnify the IO in relation to the gas pipes and/or the gas pipes did not comply with the DMC (clauses 4 and 8 in particular of Schedule 2).

224.Clause 4 imposes the following obligation of any apartment owner at Grenville House:

“Not to make any structural alteration to any apartment, partition or roof or car-parking apace of which he is the owner nor cut, maim, injure, damage, alter or interfere with any part or parts of the said premises or building in common usage or any of the sewers, drains, watercourses, conduits, pipes, cabling, wiring, fixtures, equipment, apparatus or services of the said premises and building.”

225.Clause 8(b) imposes this obligation on an owner:

“Not to … permit or suffer to be done anything which would in any way alter the facade or external appearance of the building.”

226.Paragraphs 5, 8 and 9 of the List of Undisputed Facts (although formally unagreed) state:

“By letter dated 17 December 2020 to D1’s solicitors, Ps’ then solicitors, Messrs. Bowers, gave an undertaking on behalf of Ps that they would remove the works under the Final Plan should they be found to be in violation of the DMC and/or the BMO.  The Final Plan was approved on 22 December 2020

….

On 28 May 2021, Ps were informed by D1 that the Deposit would be returned if Ps provided a signed undertaking substantially in the form of the undertaking referred to in paragraph 5 above.

Ps did not sign and return the undertaking referred to in paragraph 8 above.

227.That no undertaking was given is factually undeniable.

228.I therefore find that there was no undertaking given.

229.In relation to the alleged breaches of the DMC, the position at trial was as follows:

“Q. Okay. So which clause did the IO have in mind which would be breached?

A. The facade was among them.

Q. All right

A.  Maybe there are some other clauses as well".”

(Day 3, transcript of Ms Kwok’s Evidence p 41)

230.Works to the gas piping are manifestly works to the façade and manifestly are works to piping.

231.Therefore, it is unarguable, in my view, that, as a matter of fact, clauses 4 and 8(b) of the DMC were at the very least in play.

232.I therefore so find.

233.Therefore, as a matter of fact, there was and is no undertaking, there was no discrimination and two clauses of the DMC were in play.

234.I therefore find that as, a matter of fact, there are and were ample grounds on which the IO could and can withhold the deposit.

235.This claim therefore also fails as a matter of fact.

Findings on the facts

236.I have set out the facts above. I so find.

237.These are the findings of fact in this case. They resolve the issues between the parties.

The facts: one final comment

238.There are references in the evidence to the Plaintiffs believing that they will be in some way vindicated by the Court. As Mr Wong’s Supplemental Witness Statement puts it (at para 196):

“While we are confident that the Court will vindicate us - in both these proceedings and HCA 621 - we are not optimistic that we can avoid going to trial. We were able to resolve matters with Synergis, in my view because they were represented by solicitors engaged by their D&O insurers, which introduced an element of objectivity into their decision-making process. Here, as in HCA 621, the toxic combination of Ms Forissier and Ms Kwok (and a group of very accommodating fellow IOMC members), has in my view led to an over-zealousness, and an abandonment of objectivity, sensibility and proportionality. Despite this, we remain willing to sensibly engage with the IOC, perhaps through another mediation - which should involve not just Ms Forissier and Ms Kwok but also other members of the IOMC - to stop this madness and allow us all to resolve matters and get on with our lives.”

239.Even if vindication were the Court’s function in a dispute of this nature (which it is not), the Plaintiffs should not regard this judgment as any form of vindication.

The law

Trial structure

240.There is no order for split trial here.

241.I therefore agree in part with the IO’s Closing submissions at paragraph 84 ff.  These say:

“If the injunction is refused, Ps are left with their claim for damages, which they must prove at this trial. Prayer (b) claims damages ‘to be assessed’, but no split trial was ordered under O.33 r.3 RHC, which means this has to be assessed at trial where liability and quantum are tried together. There is no room for a further assessment.[16]

The leading case is the Court of Appeal decision in Born Chief Co (trading as Beijing Restaurant) v Tsai, George and Tsai, Mary [1996] 2 HKLR 188 [D#38]. It was a flooding case in which the plaintiff’s premises were damaged, but the plaintiff called no evidence linking its documents of loss to the flooding. The judge, on her own motion, ordered damages to be assessed by a master (essentially to split liability and quantum). The Court of Appeal set aside that order and substituted nominal damages of HK$10. Each member of the Court gave the same reason:

Liu JA held that, no separate trial having been sought or ordered, ‘[i]t was not right for the judge to take upon herself to order damages to be assessed by the master, thus providing a further opportunity for proving damages to the plaintiff at the expense and to the prejudice of the defendants. It was incumbent upon the plaintiff to establish its claim at the trial and it must bear the consequences of its failure to do so’: at §9.

Ching JA held that the judge below appeared to have ordered the inquiry ‘simply because the Plaintiff had not called its evidence so that she was unable to arrive at a figure’, and that ‘[t]hat is not a proper reason for ordering an inquiry’: at §18.

Nazareth VP held that parties ‘cannot expect a second bite at the cherry simply because they failed to apply for a split trial or to produce their requisite evidence’, and that the judge was ‘plainly wrong in directing an inquiry to be made by a Master as to damages’: at §26.

In the present case, Ps have had 4 years since the action began, and more than 8 years since the seepage was first reported in 2018.[17] They did not apply for a split trial.  The issue of quantum of damages is now not open to be hived off for a subsequent occasion.”

242.I also agree entirely with the sentiment behind those paragraphs.

243.As indicated above, the Plaintiffs’ case suffers badly from a want of evidence at every stage after the causation of the leaks.  There is, as I have said, no remedial scheme and no proper evidence as to quantum.

244.Also as indicated above, in this case there is a factual chain: causation to duration to remedial works to quantum.  If a link in the chain is missing, the Plaintiffs’ case fails. The want of evidence as to remedial works and quantum would permit me to dismiss the Plaintiffs’ case now.

245.As indicated on 16 September 2026, I find so doing troublesome in circumstances where I have found there to be leaks at the Property. I also think it is imperative to bring some closure to this litigation. None of this will come as a surprise to the parties as I raised it at trial. I therefore discuss this further below.

246.This does, however, mean I am driven to the conclusion that this litigation is not completely concluded at this point. This means that to the extent set out below, there is no merger of the cause of action with the judgment yet. I emphasize “yet”. The case remains live to the very limited extent set out below. As set out below, if the parties cannot agree matters, there will be a further hearing in December 2026.  That hearing will be strictly limited.

IO Duties

247.The Plaintiffs submitted in Opening (paras 81 ff):

“Ps do not need to establish an absolute duty. Liability arises where D1, having been made aware of a defect requiring remedy, failed to take appropriate steps. It is Ps’ case that D1 had notice of the water leakages since 2017, yet failed for years to procure the “necessary and proper repair and maintenance works”.[18]

The purpose of the BMO is to “facilitate the incorporation of owners of flats in buildings or groups of buildings, to provide for the management of buildings or groups of buildings and for matters incidental thereto or connected therewith”: preamble to the BMO [P#2].

Section 18 of the BMO [P#2] imposes the following positive obligations on the IO:

‘(1) The corporation shall—

(a) maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition;

(b) carry out such work as may be ordered or required in respect of the common parts by any public officer or public body in exercise of the powers conferred by any Ordinance;

(c) do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building.’

Similarly, Clauses 9(b)(9) and 9(b)(10) of the DMC provide that:

‘Without in any way limiting the generality of the foregoing, the Managers shall have the following powers and duties, namely:

(9) To keep the common parts of the said premises and building in a clean and sanitary state and condition.

(10) To repair and keep in good repair and condition the main structure, roof and fabric of the said building its equipment, apparatus, services, facilities and common areas and when necessary to replace any part or parts thereof which require replacement’.[19]

Under Section 18 of the BMO, liability may arise if, having been made aware of a defect which requires remedy, the Incorporated Owners fail to take appropriate steps: Lee Ming Yueh v Broadway-Nassau Investments Ltd [2012] 5 HKLRD 208 §25 (Cheung JA) [P#6].

The obligation to repair common parts cannot turn on the cost of the repairs, and carries with it the concomitant duty to raise the necessary finance: Grace International Ltd v The Incorporated Owners of Fontana Gardens [1996] 4 HKC 635, 657G-658B (Le Pichon J, as she then was) [P#7].

248.The IO’s position was (para 66 ff Opening):

“The standard of D1’s duty. D1’s duty under s.18(1)(a) of the BMO and clause 9(b)(10) of the DMC [D#14] is a duty of proper management. D1 has to do what is reasonably required in the circumstances. D1 does not provide a warranty or insurance that the Property will be dry: see §10 above.

What the duty requires in a given case is judged by reference to the DMC and to the design and intended user of the premises, including any alterations the owners have made: Lam Suk Yee v The Incorporated Owners of Kam Kin Mansion [2019] HKCA 1289 [D#18] at §§48-49. The common law imposes the same measured duty. It is ‘a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one’s neighbour or to his property’: Leakey v National Trust [1980] QB 485 [D#19] at 524E. It does not arise ‘unless and until the defendant has, or ought to have had, knowledge of the existence of the defect and the danger thereby created’: Leakey (supra) [D#19] at 522D-E.

The duty is engaged by notice of a defect. What is required to be done in carrying out the duty ‘will differ according to the circumstances’: Lau Chun Wing Rod (supra) [P#8] at §13. In a water seepage case, those circumstances include the difficulty of identifying the source, the need for investigation and testing, the sequence in which works must be done and verified, and the owner’s co-operation. A defendant “is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise”: Delaware Mansions (supra) [D#3] at §34. Damage which accrues while a defendant is reasonably investigating and repairing is therefore not caused by a breach: Issue 19 below.

249.As can be seen there is a measure of common ground. There is no absolute duty on the IO but where there is notice of a defect in a common part and the defect remains unremedied, the IO is under a duty to investigate and to seek to remedy. I so find.

Nuisance

250.The Plaintiffs’ position is this (paras 98 ff Opening):

“The IO is liable for private nuisance due to water seepage, if such water seepage arises from a common part which the IO has an obligation to maintain: Lau Chun Wing Rod v IO of Po On Building (Unrep., CACV 20/2007, 25 October 2007) §§11-12 [P#8].

The applicable principles are set out in Cheng Lai Yin v Liu Yee Mui [2022] HKCFI 940 §51 (Recorder Eva Sit SC) [P#9]. In gist, a private nuisance is committed by a person doing, on his own land, something which he is lawfully entitled to do, but the consequences of which extend to the land of his neighbour by (i) causing an encroachment on his neighbour’s land; (ii) causing physical damage to his neighbour’s land; or (iii) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.

Where a defendant is under a duty to nullify a nuisance, that duty is non-delegable. He remains liable even though he has engaged an apparently competent independent contractor to eliminate the nuisance hazard if, through the latter’s negligence or otherwise, the hazard is not in fact removed, resulting in injury to the plaintiff: Leung Tsang Hung §25 (Ribeiro PJ) [P#3].

251.The IO submitted in Opening (paras 76 ff):

“The nuisance claim adds nothing to the claim under the BMO and the DMC.  Ps’ Opening §98 cites Lau Chun Wing Rod (supra) [P#8] at §§11-12 for the proposition that an IO is liable in nuisance “if such water seepage arises from a common part which the IO has an obligation to maintain”.  That is the very premise which Ps must prove in Issue 2.

Where the complaint is of a failure to abate a hazard, liability requires knowledge of the hazard and a failure to take reasonable steps.  An occupier “continues” a nuisance “if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so”: Sedleigh-Denfield v O’Callaghan [1940] AC 880 [D#21] at 913; “The occupier or owner is not an insurer”: at 896-897.  That is the same standard as applies under Issue 3, and nuisance here “overlaps with negligence and the test is one of reasonableness”: Lam Suk Yee (supra) [D#18] at §48.  On Ps’ own authority, where “the defendant is said to be continuing a nuisance, proof of negligence is essential”: Cheng Lai Yin v Liu Yee Mui [2022] HKCFI 940 [P#9] at §51(4).  But negligence has been deleted from the ASOC.^[20]

Further, Leung Tsang Hung v The Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480 [P#3] was a claim in public nuisance arising from a piece of concrete which fell from a canopy into the street, and §25 (on which Ps rely) held that a duty to nullify a nuisance is non-delegable, so that the engagement of an apparently competent contractor is no answer.  D1 does not dispute that.  But the case says nothing about the anterior question, which is whether water enters through a common part for which D1 is responsible.  D1’s submission is that the claim in nuisance stands or falls with Issues 2 and 3.”

252.Again, therefore, there is considerable common ground between the parties.

253.Further, it is trite that if A allows water to leak from their property on B’s property then there may be a private nuisance.

254.It is also correct, however, that here any allegations in nuisance overlap with the IO’s duties under the BMO and the DMC.  Therefore, it is difficult to see what a claim in private nuisance adds once I have found, as I have, that there is water leaking from the common parts.

255.I therefore find that the claim in private nuisance – whilst theoretically open to the Plaintiffs – adds nothing on the facts of this case.

The gas pipe claim

256.It is unclear whether this is a claim in tort.

257.If it is, as a matter of law, paragraph 97 of the IO’s Closing is entirely correct. Thus, if this claim survived as a matter of fact (which it does not), this claim fails as a matter of law if it is a claim in tort.

258.The balance of the claims are purely contractual.

The deposit claim

259.There is, as far as I can see, no significant issue of law here. The claim is factual and has failed.

The relief

260.The Plaintiffs seek a mandatory injunction.

261.Both parties have cited multiple cases before me. I have read them.

262.The Plaintiffs’ position is that a mandatory injunction is usual in these circumstances.

263.In closings, the debate evolved as follows:

“Now the injunction question.  I will just say to your Lordship, like my learned friend; that way, we can see where the wind is going, so I’ll just say to your Lordship that we have cited the Paul Chiu case in the Court of Appeal, Tregunter.  And can I just ask your Lordship to note that -- a case cited by my learned friend in item 35, a case called Wing Ming, item 35 of my learned friend's list of authorities.  A decision.

COURT: Yes, I have it.

MR MAN: A decision of Justice Godfrey Lam, as he then was.  He's now in the Court of Appeal, of course.  And I will just show your Lordship the headnote is.  The first catch phrase is: ‘Land law -- building management -- common parts -- waterproofing membrane in upper roof floor -- formed common part of building for which incorporated owners liable to maintain and repair.’ And we can see holding No. 1, just very quickly.  Holding No. 1: ‘... allowing P's claim in part and D's counterclaim in part ...’ The plaintiff is an owner who happened to be the original developer.  The defendant was the incorporated owners.  And the summary of the holding in No. 1 is that: ‘The waterproofing membrane in the upper roof was a common part of the Building, and the [IO] had failed to discharge its duties under s.18(1)(A) of the BMO to maintain the common parts in a state of good and serviceable repair.  Water percolated through cracks and pores and once there was a breach in the membrane, it was not only the spot directly below it which would be affected.’ And then dropping down the page 54, six lines from the bottom of that holding: ‘An injunction would be granted requiring the D to remedy the defects in the waterproofing system of the upper roof and repair damage thereby caused to the external walls ...’ The actually order, just case your Lordship is interested in how it is formulated, is to be found in 108.  So page 76 of the report, paragraph 108.  After dealing with the rival contentions, his Lordship says: ‘I shall therefore grant a mandatory injunction that the IO do remedy or cause to be remedied the defects in the waterproofing system of the Upper Roof by replacing the waterproofing layer there to a specification to be agreed between the experts.’ So that's what I had in mind when I addressed your Lordship on how this case seems to have an injunction, which is by reference to specifications that the experts shall agree upon.  And --

COURT: Of course I can achieve that without an injunction, can't I?

MR MAN:  You can, along the lines of what I outlined earlier.  It is just that the injunction can be formulated in a variety of ways, and this is one of them.  But I must say I cannot disagree with your Lordship that the scheme that I mooted, namely declarations of rights and then directions for a remedial scheme to be proposed, agreed, failing which settled either on paper or in a hearing, is something which can achieve that too.  And I can certainly see that your Lordship may think that this case, given the controversy and the long-running history of animosity, if I may call it that, between the parties are tighter control by what I said suggested orally might be preferable.”

(16 September 2026, transcript pp 43 ff)

264.What the Court has done in other cases is useful guidance but not dispositive. I therefore have read and absorbed the authorities.  The debate on an injunction must, however, return to basic principles as applied to the facts of this case.  I therefore adopt the IO’s submission as to the approach one must adopt.  I do not regard and would not regard a mandatory injunction as automatic relief.

265.The application for a mandatory injunction is denied.

266.There are eight reasons for that.

267.First, I cannot grant a mandatory injunction where there is no remedial scheme. To do so would be to grant an entirely inchoate form of relief.

268.Second, I also cannot grant a mandatory injunction to force works. That is against the entire run of the law on injunctions.

269.Third, it is not part of this Court’s jurisdiction to enforce and to monitor building works.

270.Fourth, even if one were to overcome the above, I could not formulate the order on the evidence I have.

271.Fifth, given the history of the case, there is no reason now to grant an injunction.  Laches if nothing else would apply.

272.Sixth, the Plaintiffs do not come with clean hands (see my findings above as to animosity and the cause of that). Equity does not grant an injunction in those circumstances.

273.Seventh, the parties cannot even agree on the process by which a remedial scheme should be developed. If I were to grant a mandatory injunction, satellite litigation as to compliance seems inevitable and I so find. Apart from the fact that position should simply not be occurring, it is a dispositive reason for not granting an injunction.

274.Eighth, if I were wrong on all of the above, I do not see why an injunction would be necessary.  I will make the declarations I see fit and the parties will comply with the position as I have declared it. If the parties do not, there will be a hearing where an option is that I will dispose of this case.

275.I therefore reject any claim for an injunction.

276.I therefore agree with the IO’s Closing (para 80 ff) and in particular these passages:

“The pleaded relief (aa) fails …:

It does not tell D1 what to do.  It requires ‘all reasonably necessary repair’ to areas defined only as those surrounding the Leakages ‘which are defective’.  That is the ‘absolutely unqualified obligation’ which Redland Bricks condemns (at 667F; Wing Ming at §147), and which the judge in Tin Kin Ka Clara would have refused for want of particularity (at §88).  Nor can its scope be taken from ’s own evidence.  His evidence is that: (1) ‘we can never pinpoint every single defect in the roof’; (2) patch repair is ‘difficult’, not impossible; (3) re-roofing is ‘better’, not essential; (4) a single weak point would still justify re-laying the whole 295 m² roof; and (5) the ‘reservoir’ beneath the tiles, upon which his theory depends, has never been inspected, no tile having been lifted to look for it.[21] In short, no defect in a specific common part has been identified; neither the works nor the result can be specified.

Re-roofing constitutes betterment for Ps at the expense of all other owners.  recommends it because the membrane is ‘near its end’ of its service life, ‘as informed by the owner’.[22] A duty to maintain is not a duty to renew, and whether a membrane common to all owners should be replaced is a question for the owners’ general meeting’s further reason, namely the uneven tiles and defective joints, concerns Ps’ own finishes above the membrane.[23]  The works requested are also disproportionate.  They would cost HK$2.33 million, 9 times’ own figure for the wall works, to cure seepage which the joint inspection did not detect, at the Property to which Ps have repeatedly refused.”

277.The Plaintiffs seek in the alternative a process of rolling declarations:

“In the event that the Court is not minded to grant a mandatory injunction, Ps submit that the Court should grant a series of declaratory relief with liberty to apply.

In respect of the jurisdiction of the court to grant declaratory relief, the applicant has to satisfy three requirements: (1) that he has a real interest in the subject matter of the declaration (the real issue requirement); (2) that he has a real interest in obtaining a declaration against the adverse party (the real interest requirement); and (3) that the adverse party is a proper contradictor (the proper contradictor requirement): Convoy Global Holdings Ltd v Kwok Hiu Kwan [2022] 1 HKC 551 §29 (Kwan VP) [P#30].

There are precedents in which the Court has granted declaratory relief in water seepage cases.  In Lau Chun Wing Rod [P#8], the Court of Appeal upheld the District Court judgment which granted a “declaration that the defendant was obliged to carry out waterproofing work on the roof of the building to prevent water from being trapped inside the rooftop slab and percolating through the roof to the plaintiff’s flat” (§2).

In the present case, and solely in the alternative, Ps propose the following draft declaration:

“A declaration that the 1st Defendant is obliged to carry out repairs to the roof including re-roofing and repairs to the external walls enclosing the Property, so as to prevent water percolating through the roof or entering through the external walls into the Property”.

(closing paras 186 ff)

278.There is an immediate conceptual difficulty with the declaration proposed.  It is tantamount to an injunction. As I have refused the injunction, I will not grant that declaration and for the same reasons.

279.There is also the issue that the declaration as now formulated is not pleaded and has not been canvassed in evidence.

280.In any event, a declaration is a discretionary remedy. For the reasons set out above, I decline to exercise my discretion in favour of these Plaintiffs to grant the declaration as now set out. That does not mean, however, that I will grant no declarations.

281.I have further set out the process by which this case should proceed.  The Plaintiffs must understand that I am doing so very much as an act of forbearance by the Court. If there are breaches or defaults in that process, dismissal of the Plaintiffs’ claim remains very much a live option.

282.In terms of damages, the Plaintiffs cannot remediate the common parts.

283.Therefore, the Plaintiffs cannot claim damages for remediation of the common parts – a point that in closing was conceded by Mr Man:

“COURT: Therefore, what is the basis for which it's said that the plaintiffs are entitled to, in essence, remedial damages?

MR MAN:  Well, in fact, we are not seeking that.” 

(16 September 2026, transcript p 2)

284.Therefore, in terms of the damages for the alleged breach of the DMC and remediation of the common parts, there is, in fact, no substantive claim.

285.That leaves the claim for damages for repairs within the Property.

286.Again, there is no proper evidence. The Plaintiffs’ expert, Mr Samson Wong, believed that a remedial scheme for within the Property and quantum were matters for another day.

287.There have also been two open offers by the IO to remedy the interior of the Property. Those offers were rejected. They should not have been.

288.I have rejected the gas pipes and deposit claims as set out above.

289.In light of the above, I therefore award the Plaintiffs only nominal damages and in the amount of HK$100. These damages are in contract for a nominal breach of the DMC.

290.This then leaves the question as to what do to about the current situation given my findings above.

291.This is a difficult issue.

292.As I have found above, there are ample grounds to dismiss this claim now due to a lack of evidence. I also have in mind that this is long running and expensive litigation and there must be some form of closure. Also as indicated above, I find dismissing the claims for want of evidence (in essence non-suiting the Plaintiffs) troubling.

293.I raised this issue on 16 September 2026. Mr Man for the Plaintiffs canvassed that what I should do is, in essence to allow the parties now to formulate a remedial scheme to be agreed, subject to expert review or otherwise decided by me (see above). I discuss this above and below.

294.As to interest, as I have awarded only nominal damages, there is no interest payable.

295.I deal with costs below.

The issues

296.I now turn to the list of issues. I recite them here to answer them. As I have set out my reasoning in this judgment, I deal with the issues in summary form here so that there is an answer to each one. That they are in summary form in this section does not mean I have not considered each and every one in detail as should be apparent from the balance of this judgment.

1. Whether, after repair works done by Good Job Engineering Limited (defined in ASOC §8(c)), any of the Water Leakages (defined in ASOC §§5-5A) persisted at the Property, and if so, which of them persisted and during what period.[24]

Leaks persisted and continue as set out above.

2.  Whether each of the Water Leakages was caused by and/or arose from the “common parts” or “common areas” under the BMO and the DMC respectively.[25]

The IO accepts that the waterproof membrane in the roof and the external walls are common parts (see Opening para 49). That is unsurprising. I have found that all bar one of the leaks emanated from the common parts.

3.  What duties (if any) D1 owed to Ps under the BMO and/or the DMC in respect of the common parts of the Building, including but not limited to whether such duties are absolute or duties to do what is reasonably required by way of proper management; and whether D1 acted in breach thereof by failing to carry out necessary and proper repair and maintenance works in respect of the Affected Areas and/or which address the Water Leakages.[26]

This, as set out above, is to an extent common ground. It is certainly sufficiently common ground on the points I have to consider. Both parties accept that where there is notice of a defect to the common parts, then the IO has a duty to investigate and to seek to remediate. It is common ground that the waterproof membrane in the roof and the external walls are common parts.

As set out above, there are still leaks at the Property and these leaks are in their ninth year. It must follow that the IO has not repaired the leaks and there is a want of maintenance.

What is more complicated is the cause of that absence of repair and want of maintenance. I have found above that Mr Wong denied access to the Property. I have also found that there has been a degree of understandable frustration. I have, however, also found that the IO’s offers of repairs were rejected. Finally, I have found that there is a considerable degree of animosity between the parties and have set out my findings as to the cause.

It must inevitably follow that that a, if not the, cause of the issues is the Plaintiffs’ conduct. Thus, it is difficult to see what an IO can do in those circumstances.

It inevitably follows that whilst there has been a breach due to the non-remediation of the leaks, the breach must be nominal only – the Plaintiffs being the dominant cause of that breach.

4.  Whether, and to what extent, D1 has carried out repair and maintenance works in relation to the Water Leakages and/or the relevant Affected Areas or common parts/common areas; and, if so, whether those works discharged any relevant duty owed by D1 to Ps.[27]

The IO has carried out works and offered to carry out more. I so find. The leaks are not remediated. There is therefore no discharge of the duty outlined above.

5.  Whether Ps obstructed D1’s discharge of its duties by denying access to D1’s contractors to effect the necessary repairs to the “common parts” or “common areas” of the Building, and if so, to what extent.[28]

Yes – see above.

6.  Whether the continuing Water Leakages amount to private nuisance against Ps.[29]

Yes. The claim in private nuisance adds nothing on the facts of this case. As indicated, causation is a live issue.

B. Gas Repair Works

7.  Whether clause A(5) of the First Schedule to the DMC, on a true construction, confers a right on Ps to use the common parts of the Building insofar as reasonably necessary for the free and uninterrupted passage of gas to the Property.[30]

This issue fails as a matter of fact. The questions raised here are therefore hypothetical and moot.

8.  Whether the DMC contains implied terms binding the Managers of the Building (as pleaded at ASOC §16B), namely that, in exercising its rights and powers in respect of the common parts of the Building, the Managers shall: (a) allow use of common parts insofar as reasonably necessary for the enjoyment of rights under Clause A of the First Schedule to the DMC; (b) not unreasonably withhold consent; and (c) not exercise its powers in respect of common parts arbitrarily, capriciously, irrationally or perversely.[31]

See above.

Although this is obiter, so far as the duties set out at (c) are concerned, I disagree. This is what might be described as a Braganza implied term (see Braganza v BP Shipping,[32]). I can see no basis for the implication of such a term in fact or law. Further, I have written on the subject of Braganza implied terms (see Wilken A Constraint On Or Protection From The Exercise Of Contractual Discretions? Braganza Revisited; see also Paul S Davies and Philip Sales “Controlling Contractual Discretions: Wednesbury Reasonableness, Good Faith and Proper Purposes” [2024] LQR 106). In a purely private law relationship and on the facts of this case, I can see little or no function or role for this type of restraint on the exercise of contractual powers.

9.  Whether D1 owed Ps duties of reasonable care and skill in tort as pleaded at ASOC §16D.[33]

Does not arise - see above.

10. Whether D1 and/or D2, to the extent their approval or consent was required, unreasonably and without basis withheld consent to (a) the Original Plan (defined in ASOC §21), and/or (b) the Revised Plan (defined in ASOC §21D) for the Gas Repair Works (defined in ASOC §18) submitted by/through Towngas in late October and November 2020.[34]

No.

10A.  Whether the installation of a gas pipe on the external wall of the Building under the Original Plan and/or the Revised Plan would constitute a breach of the DMC and/or the house rules.[35]

Yes. At least arguably and that is sufficient.

11. Whether D1 unreasonably delayed in granting approval to the Final Plan dated 19 November 2020 (defined in ASOC §24).[36]

No.

12. Whether certain MC members of D1 acted out of a collateral motive to prolong the period during which Ps would have no access to gas supply, and whether such motive caused the unreasonable rejection of the Original Plan and Revised Plan, and the delay in approval for the Final Plan.[37]

No.

13. Whether D1 acted in breach of the duties pleaded at ASOC §16D by instructing D2 to act in breach of its duties, to the extent D2 was in breach of any such duties, and/or failing to ensure or supervise that D2 would not breach its duties.[38]

No.

C. Renovation Deposit

14. On a true construction of the Renovation Terms (defined in ASOC §21B), whether D1 was entitled to withhold and/or refuse to refund the Deposit (defined in ASOC §21C).[39]

Yes – see above.

15. Whether any damage was caused to the common parts of the Building by the Gas Repair Works, or any breach of the DMC or BMO or unauthorised alteration resulted from the Gas Repair Works; and, if so, whether any such damage, breach or unauthorised alteration was continuing in nature.[40]

Does not arise – see above.

16. Whether D1 has, in breach of the Renovation Terms, failed to return the Deposit (or its value) to Ps, and whether Ps are entitled to the return of the Deposit.[41]

No and no.

D. Relief

17. Whether Ps are entitled to an injunction requiring D1 to carry out all reasonably necessary repair works to the Affected Areas and the damaged external aluminum window frames and window glasses on the external wall near Locations 1 and 2 within 2 months to the satisfaction of an authorised person jointly appointed by Ps and D1 but solely at the expenses of the D1 or any other injunction in terms that the Court thinks fit.[42] If so, and in view of the expert evidence as to how the water seepage issue should be remedied, whether such injunction as ordered should comprise the reroofing of the main roof of the Property.

No.

18. Whether Ps are entitled to the return of the Deposit from D1.[43]

No.

19. What damages (if any), as pleaded at ASOC §§12 and 28, are payable to Ps.[44]

Nominal damages only – see above.

20. Whether Ps are entitled to interest pursuant to section 48 of the High Court Ordinance (Cap. 4) and costs.[45]

As to interest – no. I would not grant interest on nominal damages and neither party addressed me on interest in Closings.

As to costs, see below.”

Conclusions

297.Very little in this dispute turns on the law. As set out above, the basic positions are, unsurprisingly, common ground.

298.This is a factual dispute. I have set out in detail my findings on the facts. In so doing, I have read and had in mind the voluminous submissions and evidence.

299.The main issue here is the leaks.

300.On that issue, there clearly have been leaks to the Property. I am compelled by the limited evidence to find that they are continuing.  I so find.

301.It is at this point in the analysis, however, that there is a distinct want of evidence going forward. The evidence on remedial works and quantum is at best exiguous – if it exists at all.

302.As to remedial works, in a case of this nature, there should have been a fully worked up remedial scheme.  If that, subject to liability, could not have been agreed, there should have been two schemes – one from each party.  Neither exists at present.

303.I outlined on day 5 that in my view there was a “daisy chain” of facts: causation of leaks leading to duration leading to remedial works and leading to quantum. I also pointed out that if one broke this chain at any stage the Plaintiffs’ claim would fail.

304.The chain becomes strained after causation and breaks after duration. There is simply not the evidence to support the later stages of the analysis. The Plaintiffs have not presented that evidence. This is not a burden of proof point: it is an absence of proof point.

305.The Court is therefore left in a quandary.

306.The Court could find the Plaintiffs’ case not proven and reject it. There are powerful reasons as set out above why I should adopt that course.

307.As set out above, I find that to be unsatisfactory at this point in time. So doing would merely trigger more litigation, more costs and more time.

308.I am therefore driven, on the leaks, to make the orders that I do. As will be apparent from the above and below, I do so in limited terms and subject to caveats as to future behaviour and progress.

309.I dismiss the gas pipes and deposit claims as a matter of fact.

Declarations

310.I repeat my findings above. I reiterate that a declaration is a discretionary remedy. This is common ground.

311.I declare that there has been water ingress into the Property from the roof and the external walls, that is the common parts.

312.I also declare that the water ingress has continued despite previous remedial works.

313.I cannot make any declaration as to remediation or that which might be needed – see above.  I explicitly do not do so having considered whether any form of declaration along these lines is possible.

314.I therefore decline, in the exercise of my discretion, to make that declaration.

315.Those are my declarations in this case. I make no other declarations.

Orders

316.I order that the IO do pay the Plaintiffs HK$100 by way of nominal damages.

317.There will be no order as to interest.

318.The next issue is how to progress a resolution between these parties. I have set out my reasoning above.

319.I order as follows.

320.First, the parties will appoint a new, independent expert to act in relation to remedials. If they cannot agree an expert, they will refer to the relevant expert body to appoint one.

321.Second, the parties have until 31 October 2026 to agree the remedial works and the timetable and to appoint the expert. Given the history, that should be ample time. That scheme will include the proposed works both to the common parts and the interior of the Property, the timetable and the tests for completion. The scheme will also included properly costed estimates by way of a Scott Schedule as to each item of work and its costs.

322.Third, the scheme will be approved by a new, independent and agreed expert. If the parties cannot agree a scheme, the new expert will decide one. That decision can be subject to review by the Court – but the parties should be reminded that the Court will exercise due deference to a properly qualified expert’s view.

323.That will all be done by 21 November 2026.

324.Fourth, the same expert will test and certify completion.

325.Fifth, if the parties do not agree or there is otherwise some failure of the process, the matter will have to come before the Court again for resolution. An option for the Court would be to find that as there is no remedial scheme, the Plaintiffs’ claim fails – as indicated above.

326.Sixth, if access were again to be denied or if there were issues, then again, an option would be to impose sanctions. The further option would be to dismiss the Plaintiffs’ claim.

327.Seventh, as there should have been a remedial scheme agreed a long time ago, the Plaintiffs will not be entitled to their legal costs of the above. As the Plaintiffs cannot carry out the works themselves and there have been two open offers, the Plaintiffs will not be entitled to remedial costs. There will therefore be no further damages claim.

328.Eighth, each party will therefore bear its own costs of the above.

329.Ninth, both parties’ Counsel are available on 10 – 11 December 2026. Those dates are available for a hearing before me. There will be a hearing on those days to deal with default of the above and costs if needed (“the default hearing”). The default hearing will take place within the Hong Kong jurisdiction.

330.Tenth, if the process I have outlined above and will order below has failed or stalled, I will want to know why. The parties should come to the default hearing so prepared.

331.Eleventh, as indicated above, an option for the Court will be to dismiss the Plaintiffs’ claim for want of evidence. The parties will need to come to the default hearing prepared for that eventuality.

332.Twelfth, the default hearing will confined to the issues of the remedial works and costs. As to the remedial works, the debate will be why there has been a default and what scheme is to be adopted. As to costs, the debate will be why I should not adopt the order nisi below. There will be no reiteration of points previously aired. I have intentionally described this hearing as the default hearing in both senses of the words.

333.I so order as the trial judge having heard the case having heard all the evidence and in light of the facts. I also additionally and/or in the alternative use my case management powers under Orders 1; 1A and 33.

334.Other than costs, those are my orders in this case.

Costs

335.The parties agree that I should make an order nisi rather than a final order (see IO’s Closing para 110 ff; 16 September 2026, transcript p 55).

336.It is true the Plaintiffs succeeded on the leaks and causation.

337.The Plaintiffs did not succeed on the further, critical, elements of their claim due to a want of evidence.

338.On two of the three topics, the Plaintiffs have failed completely.

339.Therefore, other than on leaks and causation, the Plaintiffs’ claim as advanced has failed on the facts as presented before me.

340.I have also made findings as to the Plaintiffs’ conduct including access for remedial works. Those findings are relevant to costs.

341.There have been open offers which the Plaintiffs did not accept.

342.The Plaintiffs also almost wholly failed on the relief that the Plaintiffs sought.

343.The Plaintiffs have achieved nominal damages only and this litigation only remains on foot due to the Court’s forbearance and the need to achieve closure in this long running and acrimonious litigation.

344.Whilst, therefore, as both parties correctly submit, costs usually follow the event, the event here is by far from an unqualified success for the Plaintiffs. It could even be described as pyrrhic.

345.It therefore seems to me, in the exercise of my costs discretion, that it is inappropriate for the Plaintiffs to have all or indeed the majority of their costs.

346.Further, due to the length of time, I doubt very much that the Plaintiffs are entitled to their costs for the whole history of the litigation.

347.It also is the case that the IO succeeded on the issues of the gas pipes and deposit and relief.

348.Finally, in my view, the parties could and should have resolved this dispute long ago – by way of an independent expert determination or some form of mediation. Manifestly they did not and that does impact on costs.

349.All of the above raised in my mind a serious consideration as to whether I should make no order as to costs whatsoever. I am not, however, asked so to do and that would not reflect the true position between the parties as I see it.

350.Bearing in mind this is a discretionary exercise based on the facts and evidence at trial, I therefore order as follows:

a.  The Plaintiffs shall have 30% of their costs on the first issue of the leaks. This order is confined in two ways:

i.  First, the costs relate solely to proving the leaks and their causation;

ii.  Second, the costs are limited in time – namely those prior to service of the witness statements (including Supplemental Statements) in 2024 and then for the period from 1 July 2026 to 16 September 2026 (inclusive);

Those limitations flow from the conduct of the Plaintiffs, the history of the litigation and the Plaintiffs’ pyrrhic victory;

b.  The Plaintiffs are not entitled to any further costs;

c.  The IO shall have the costs of, occasioned by and associated with the gas pipes and deposit issues;

d.  The IO shall also have the costs of, occasioned by and associated with the relief claimed;

e.  The IO shall also have the costs associated with any internal works to the Property due to the two open offers;

f.  In both cases, certificate for two counsel;

g.  The costs are to be taxed if not agreed;

h.  Save as above, there will be no order as to costs. This includes any past orders that were costs in the case.

351.Although this is an order nisi, my views and reasons for the above should be apparent. Any challenge to the order would therefore have not to reiterate arguments already ventilated and would need to be well supported.

352.Neither party has asked for indemnity costs and I do not order indemnity costs should apply to the costs incurred to date. Going forward the position may be different.  The parties are so warned.

353.As far as the scale is concerned, this litigation could and should have been brought in the District Court and not the High Court.  The District Court scale of costs will therefore apply.

354.I therefore make the above orders in relation to costs to date.  Obviously, the position as to costs going forward remains reserved.

355.Finally, I remind the parties that incurring costs to debate costs rarely is proportionate or successful.

Disposition

356.I make the findings, declarations and orders set out above.

Final items

357.To the extent necessary, I formally grant liberty to apply but only in relation to the remedial scheme and costs orders as set out above.

358.A further hearing has been provisionally fixed for 10 – 11 December 2026.  That hearing is the default hearing as defined above.  It will be strictly confined to the remedial scheme and costs.

359.Otherwise, this is a final decision on the facts of this case.

360.Once again, I am grateful to the parties and their legal teams for their assistance.

Mr Bernard Man, SC leading Mr Shaun Elijah Tan, instructed by Jones Day, for the 1^st and 2^nd Plaintiffs

Mr Jonathan Chang, SC leading Mr Vincent Lung and Mr Calvin Ng, instructed by Johnson Stokes & Master, for the 1^st Defendant

Annex 1

For trial before Deputy High Court Judge Wilken commencing on 7 September 2026 at 10 a.m.

HCA 761/2022
Wong Tak Keung Stanley (“P1”) and Claudia Canepa Wong (“P2”)
v
The IO of Grenville House (“D1”) and Synergis Management Services Ltd
(“D2”) (discontinued)

AGREED LIST OF ISSUES

A.   The Water Leakages

1.  Whether, after repair works done by Good Job Engineering Limited (defined in ASOC §8(c)), any of the Water Leakages (defined in ASOC §§5-5A) persisted at the Property, and if so, which of them persisted and during what period.[46]

2.  Whether each of the Water Leakages was caused by and/or arose from the “common parts” or “common areas” under the BMO and the DMC respectively.[47]

3.  What duties (if any) D1 owed to Ps under the BMO and/or the DMC in respect of the common parts of the Building, including but not limited to whether such duties are absolute or duties to do what is reasonably required by way of proper management; and whether D1 acted in breach thereof by failing to carry out necessary and proper repair and maintenance works in respect of the Affected Areas and/or which address the Water Leakages.[48]

4.  Whether, and to what extent, D1 has carried out repair and maintenance works in relation to the Water Leakages and/or the relevant Affected Areas or common parts/common areas; and, if so, whether those works discharged any relevant duty owed by D1 to Ps.[49]

5.  Whether Ps obstructed D1’s discharge of its duties by denying access to D1’s contractors to effect the necessary repairs to the “common parts” or “common areas” of the Building, and if so, to what extent.[50]

6.  Whether the continuing Water Leakages amount to private nuisance against Ps.[51]

B.   Gas Repair Works

7.  Whether clause A(5) of the First Schedule to the DMC, on a true construction, confers a right on Ps to use the common parts of the Building insofar as reasonably necessary for the free and uninterrupted passage of gas to the Property.[52]

8.  Whether the DMC contains implied terms binding the Managers of the Building (as pleaded at ASOC §16B), namely that, in exercising its rights and powers in respect of the common parts of the Building, the Managers shall: (a) allow use of common parts insofar as reasonably necessary for the enjoyment of rights under Clause A of the First Schedule to the DMC; (b) not unreasonably withhold consent; and (c) not exercise its powers in respect of common parts arbitrarily, capriciously, irrationally or perversely.[53]

9.  Whether D1 owed Ps duties of reasonable care and skill in tort as pleaded at ASOC §16D.[54]

10.  Whether D1 and/or D2, to the extent their approval or consent was required, unreasonably and without basis withheld consent to (a) the Original Plan (defined in ASOC §21), and/or (b) the Revised Plan (defined in ASOC §21D) for the Gas Repair Works (defined in ASOC §18) submitted by/through Towngas in late October and November 2020.[55]

10A.  Whether the installation of a gas pipe on the external wall of the Building under the Original Plan and/or the Revised Plan would constitute a breach of the DMC and/or the house rules.[56]

11.  Whether D1 unreasonably delayed in granting approval to the Final Plan dated 19 November 2020 (defined in ASOC §24).[57]

12.  Whether certain MC members of D1 acted out of a collateral motive to prolong the period during which Ps would have no access to gas supply, and whether such motive caused the unreasonable rejection of the Original Plan and Revised Plan, and the delay in approval for the Final Plan.[58]

13.  Whether D1 acted in breach of the duties pleaded at ASOC §16D by instructing D2 to act in breach of its duties, to the extent D2 was in breach of any such duties, and/or failing to ensure or supervise that D2 would not breach its duties.[59]

C.   Renovation Deposit

14.  On a true construction of the Renovation Terms (defined in ASOC §21B), whether D1 was entitled to withhold and/or refuse to refund the Deposit (defined in ASOC §21C).[60]

15.  Whether any damage was caused to the common parts of the Building by the Gas Repair Works, or any breach of the DMC or BMO or unauthorised alteration resulted from the Gas Repair Works; and, if so, whether any such damage, breach or unauthorised alteration was continuing in nature.[61]

16.  Whether D1 has, in breach of the Renovation Terms, failed to return the Deposit (or its value) to Ps, and whether Ps are entitled to the return of the Deposit.[62]

D.  Relief

17.  Whether Ps are entitled to an injunction requiring D1 to carry out all reasonably necessary repair works to the Affected Areas and the damaged external aluminium window frames and window glasses on the external wall near Locations 1 and 2 within 2 months to the satisfaction of an authorised person jointly appointed by Ps and D1 but solely at the expenses of the D1 or any other injunction in terms that the Court thinks fit.[63] If so, and in view of the expert evidence as to how the water seepage issue should be remedied, whether such injunction as ordered should comprise the reroofing of the main roof of the Property.

18.  Whether Ps are entitled to the return of the Deposit from D1.[64]

19.  What damages (if any), as pleaded at ASOC §§12 and 28, are payable to Ps.[65]

20.  Whether Ps are entitled to interest pursuant to section 48 of the High Court Ordinance (Cap. 4) and costs.[66]

Dated this 17^th day of August 2026.

Annex 2

HCA 761 / 2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 761 OF 2022

––––––––––––

BETWEEN

AGREED CHRONOLOGY

APPENDIX – UNAGREED ITEMS

Ps do not agree to the inclusion of the following incomplete, confusing and potentially misleading items as proposed by D1, given that without the inclusion of the more extensive and relevant incontrovertible documentary evidence, there would not be a full and complete picture. 

CNI-2200878577v3

Annex 3

For trial before Deputy High Court Judge Wilken commencing on 7 September 2026 at 10 a.m.

HCA 761/2022

Wong Tak Keung Stanley (“P1”) and Claudia Canepa Wong (“P2”)

v

The IO of Grenville House (“D1”) and Synergis Management Services Ltd (“D2”) (discontinued)

AGREED STATEMENT OF FACTS

1.  P1 and P2 (together, “Ps”) (as joint tenants) have been and remain the registered owners of the property known as Apartment No. C on 12^th Floor of Block CD and the Portion of Roof (as shown coloured and marked in the plan annexed to the Assignment (defined at §2 below)) and Car Parking Space No.102 of Grenville House, Nos. 1 & 3 Magazine Gap Road, Hong Kong (“Property”).[67]

2.  By a Deed of Assignment entered into on 20 July 1988 (“Assignment”), the sole and beneficial ownership of the Property was transferred to Ps (as joint tenants). Under the Assignment, Ps were given exclusive use, occupation and enjoyment of the Property subject to and with the benefit of the Deed of Mutual Covenant dated 31 March 1971 registered in the Land Registry by Memorial No. 803367 (“DMC”).[68]

3.  D1 has been and remains the incorporated owners of the building known as Grenville House in which the Property is located (“Building”).[69]

A.  The Water Leakages

4.  D1 is subject to the provisions of the Building Management Ordinance (Cap.344) (“BMO”), including sections 18(1)(a) and 18(1)(c), which provide respectively that a corporation shall “maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition” and “do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building”.[70]

5.  Water leakage into the Property was identified at the following six locations (collectively, “Water Leakages”):[71]

a.  Leakage 1 – internal windows and wall(s) in Rooms 3 and 4;

b.  Leakage 2 – internal wall(s) and ceiling in Room 1;

c.  Leakage 3 – internal ceiling and wall(s) in the en suite bathroom in Room 3;

d.  Leakage 4 – internal wall(s) and ceiling in the living area and balcony;

e.  Leakage 5 – internal ceiling at internal staircase leading to the roof; and

f.  Leakage 6 – internal wall in Room 3.

6.  During inspections carried out by Trusty Surveyors (HK) Limited (“Trusty”) in January 2021, an additional leakage was discovered on the wall surface of the dining area (“Leakage 7”).[72]

7.  Ps lodged complaints of water leakage with the former building manager of the Building, Kong Shum Union Property Management Co., Limited, and with D1 on various occasions.[73]

8.  Between April 2018 and October 2019, numerous inspections were carried out at the Property and ponding tests were conducted to try and ascertain the cause of the Water Leakages.[74]

9.  D1 engaged Good Job Engineering Limited (“Good Job”) as the contractor to replace the water-proofing system in the common parts of the Building. Good Job gave a warranty in respect of the works. After completion of Good Job’s replacement works, Ps continued to complain of water leakage into the Property.[75]

10.  D1 engaged John H Y Yip Surveyors Limited to supervise Good Job’s works from January 2019.[76]

11.  D1 also appointed another contractor, Kwai Hing Industry Limited (“Kwai Hing”), to undertake remedial works in respect of water leakage.[77]

12.  By letter dated 29 April 2020, D1’s then solicitors wrote to the Ps’ then solicitors, advising that D1 believed at that time that the water leakage was not its responsibility.[78]

13.  Trusty was the firm of surveyors appointed by D1 to investigate Ps’ continued complaints of water leakage. Trusty undertook on-site inspections and testing and produced reports dated 10 December 2019, 16 March 2021 and 9 June 2022 identifying specific repairs that are the responsibility of D1 to undertake.[79]

B.  Gas Repair Works

14.  On or around 27 October 2020, Towngas inspected the Property; two gas leaks were discovered at the Property (“Gas Leaks”), and gas supply to the Property was suspended pending completion of repair works.[80]

15.  Ps then sought quotations and plans for remedial repairs to the gas supply (“Gas Repair Works”).[81]

16.  The original gas supply to the Property was delivered via a gas supply pipe which ran up the interior wall at the rear staircase of the Building (“1^st Gas Riser”). There were also backup gas risers (“Secondary Gas Risers”) which ran along the external wall of different blocks of the Building (as shown in Annex 2 to the ASOC).[82]

17.  On 4 November 2020, Ps signed and submitted a Renovation Application Form containing the standard terms and conditions of D1 for renovation work at the Building ( “Renovation Terms”), together with two cheques in favour of D1 in the total sum of HK$190,000 (“Deposit”) as required by the Renovation Terms.[83]

18.  Ps submitted Towngas’ proposal to connect the Secondary Gas Risers on the external wall to the water heaters in the bathrooms of the Property using a horizontal supply pipe of about 1 inch in diameter (“Revised Plan”) to D1 and D2 for their approval. D1 considered that it could not approve the Revised Plan as it was potentially a breach of the DMC.[84]

19.  Ps subsequently submitted revised plans on the basis that the entire gas pipework would be hidden behind the cladding in order to address Ds’ concerns and to ensure that there would be gas supply as soon as possible (“Final Plan”).[85]

20.  On 23 December 2020, Towngas carried out the external piping works and gas supply was restored to the three bathrooms of the Property.[86]

C.  The Renovation Deposit

21.  Ps paid the Deposit (i.e. HK$190,000) to D1.[87]

22.  Clause 3 of the Renovation Terms provides, inter alia, that a renovation deposit cheque should be provided to D1; that such deposit shall be without interest; and that the deposit is refundable within 1 month after “report of completion and proof of no damage to common facilities or any non-compliance”. Clause 3 further provides that renovation with the use of scaffolding shall require a deposit in the total sum of HK$190,000 (HK$150,000 payable by the owner and HK$40,000 payable by the contractor). Clause 24 provides that formal notice of work completion shall be given to the Management Office within one week of completion and that refund of the deposit normally requires one month. Clause 30 provides that the deposit will be withheld until all unauthorised alterations are rectified in accordance with the DMC, Buildings and related Ordinances.[88]

23.  By email dated 27 January 2021 to Ds, Ps gave notice of completion of the Gas Repair Works and the removal of scaffolding, and sought a refund of the Deposit from D1.[89]

24.  By letter from D1’s solicitors dated 2 February 2021, D1 stated that the Deposit would be refunded upon Ps providing an undertaking that, in the event that the Gas Repair Works were found to be in breach of the DMC or the BMO, the newly installed gas pipes would be removed.[90]

25.  On 28 May 2021, Ps were informed by D1 that the Deposit would be returned if Ps provided a signed undertaking.[91]

26.  By letter dated 31 May 2022 from D1’s solicitors to Ps’ solicitors, D1 confirmed that the Deposit would not be refunded but would be retained as security in the event that D1 is required to undertake reinstatement works because the work undertaken constituted a breach of the DMC.[92]

27.  D1 continues to hold the Deposit.[93]

Dated this 17^th Day of August 2026.

APPENDIX – UNAGREED FACTS

Ps do not agree to the inclusion of the following incomplete, confusing and potentially misleading information as proposed by D1, given that without the inclusion of the more extensive and relevant incontrovertible documentary evidence, there would not be the full and complete factual position.

A.  The Water Leakages

1.  By letter dated 16 December 2020, D1 reiterated its offer that an independent surveyor be appointed at D1’s own cost to inspect the Property and identify the cause(s) of the water seepage, the surveyor’s report to be shared with Ps, and stated that D1 was also prepared to pay the necessary and reasonable costs of remedying any water seepage attributable to the common areas of the Building in accordance with the surveyor’s report.[94]

2.  By letter dated 26 March 2021, D1’s solicitors provided Ps with a copy of Trusty’s report dated 16 March 2021 and stated that D1 was prepared to engage a contractor to conduct necessary repair works to the waterproofing system on the main roof and external wall of the Building, and offered to pay Ps HK$137,550 (as the estimated costs of necessary and reasonable interior repair works). [95] Further repair works to the main roof were carried out by Good Job in November and December 2021, followed by a flooding test on 9 December 2021; by report dated 11 January 2022, Trusty recorded that the repair works in respect of Leakages 1, 2 and 6 had been duly completed and confirmed to be in good order.

B.  Gas Repair Works

3.  On or around 27 October 2020, Towngas inspected the Property; two gas leaks were discovered at the Property (one near the gas stove in the kitchen and another in one of the bathrooms).

4.  Ps subsequently submitted revised plans, with the latest revision submitted on 19 November 2020.[96]

5.  By letter dated 17 December 2020 to D1’s solicitors, Ps’ then solicitors, Messrs. Bowers, gave an undertaking on behalf of Ps that they would remove the works under the Final Plan should they be found to be in violation of the DMC and/or the BMO.  The Final Plan was approved on 22 December 2020. [97]

6.  The scaffolding erected for the works was removed on 26 January 2021.[98]

C.  The Renovation Deposit

7.  Clause 17 of the Undertaking, which formed part of the Renovation Terms and was signed by Ps, further provided that any deposit paid by owners will be withheld until unauthorised alterations are rectified.[99]

8.  On 28 May 2021, Ps were informed by D1 that the Deposit would be returned if Ps provided a signed undertaking substantially in the form of the undertaking referred to in paragraph 5 above.[100]

9.  Ps did not sign and return the undertaking referred to in paragraph 8 above.[101]

CNI-2200878353v5

Annex 4

For trial before Deputy High Court Judge Wilken commencing on 7 September 2026 at 10 a.m.

HCA 761/2022

Wong Tak Keung Stanley (1^st Plaintiff) and Claudia Canepa Wong (2^nd Plaintiff)

v

The Incorporated Owners of Grenville House (1^st Defendant) and

Synergis Management Services Limited (2^nd Defendant) (Discontinued)

Agreed Table on Expert Evidence

References are to: the Joint Expert Statement dated 17 November 2023 (“JES”) [C4/13/1864]; the Expert Report of Sr Wong San, Samson dated 21 September 2023 (“SW Report”) [C1/11/265]; and the Expert Report of Sr Dr Lau Wing Wai, Patrick (Trusty Surveyors (HK) Ltd) dated 21 September 2023 (“PL Report”) [C2/12/935].

PART A- AGREED POINTS

PART B - NOT AGREED POINTS

Dated this 17^th day of August 2026.

APPENDIX – D2’S EXPERT OPINIONS

D1 insists upon the inclusion of D2’s expert’s points, as the JES records the opinions of the D2’s expert, Cr Ir Sr Dr James Kenneth Pong (“JP”).  According to D1, the inclusion of JP’s opinions is proposed to ensure that all available information in the JES, which contains JP’s views, should arguably be included, and D1 further claims that such inclusion is without prejudice to Ps’ objections regarding admissibility and/or weight.

Ps do not agree to the inclusion of JP’s points, as Fung J has dismissed D1's summons to adduce D2's expert evidence at trial, and D1 should not be permitted to reintroduce it through the back door of the agreed documents.

Annex 5

Annex 6

HCA 761/2022:

Wong Tak Keung Stanley and Claudia Canepa Wong v The Incorporated Owners of Grenville House and Synergis Management Services Limited (Discontinued)

SCOTT SCHEDULE

[Bundle / Tab / Page]

SCHEDULE A —WATER LEAKAGES

Annex 7

Annex 8