Furomon Knitting Factory, Ltd v. Lam Wai King and Another
Read the full judgment text of HCA 11031/1982 on BabelCite. This High Court CFI judgment.
1. The Plaintiff is a manufacturer of garments, and its business is carried on in more than one place. The knitting side of that business, that is to say the manufacture of the rolls of cloth from raw thread, is carried on in a factory unit on the 23rd floor of Wah Sing Industrial Building which is in Hun Yip Street, Kwai Chung. In that factory unit it has, among other things, a number of machines which reach almost to the ceiling, the cones of threads being mounted very high, the threads going
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HCA011031/1982
BETWEEN:-
Coram: The Honourable Mr. Justice Jackson-Lipkin in Court Date: 8th June, 1983 at 10.05 a.m. Appearances: (Miss) Wong for the Plaintiff. 1st Defendant in person.Wahab for the 2nd Defendant __________ JUDGMENT __________ 1. The Plaintiff is a manufacturer of garments, and its business is carried on in more than one place. The knitting side of that business, that is to say the manufacture of the rolls of cloth from raw thread, is carried on in a factory unit on the 23rd floor of Wah Sing Industrial Building which is in Hun Yip Street, Kwai Chung. In that factory unit it has, among other things, a number of machines which reach almost to the ceiling, the cones of threads being mounted very high, the threads going over pulleys, coming down to the weaving part of the machinery. 2. That factory unit was obtained by purchase from the 2nd Defendant on a date that has not a been established, and, fortunately, it is not relevant to be established in this action. What we do know, however, is that the premises were assigned by the 2nd Defendant to the Plaintiff on 17th December 1980, the assignment being Exhibit 1. Presumably, in accordance with the cumbersome, antiquated and obsolete conveyancing practices of this Colony, it was preceded by a Sale and Purchase Agreement, which the confusion between the evidence of Mr. CHAN Kwong-wong, the first witness for the Plaintiff, as to the date of his obtaining the premises and the date on the deed - Exhibit 1. It is ,within the Hong Kong context, a straightforward assignment and I do not need further to dwell on it. It was signed by two directors of the Plaintiff company and two directors, Mr. FOK and Mr. LAU, of the 2nd Defendant. 3. The 2nd Defendant, a limited company that was incorporated several years ago, retained ownership of certain parts of the premises, that is the Wah Sing Industrial Building, a matter which became of considerable significance as this case proceeded. 4. The 1st Defendant carries on the business of manufacturing items from alluminium alloy, and at all material times those items were the face section of watch cases. According to the Form IA lodged by the 1st Defendant under the Business Registration Regulations, its business commenced on 17th May 1980, and it is, as can be gathered from the number of the Form, a sole proprietorship. 5. On 3rd June 1980, the 2nd Defendant let to the 1st Defendant a factory unit on the 24th floor of the same premises, Wah Sing Industrial Building. I have had, at the request of the parties, a view of the building, and it appears that what was let to the 1st Defendant was more or less half of the 24th floor, By permission of the owner of the other half of the floor, the owner of Wing Ming Hardware Manufacturing Co., I was permitted to view his premises. 6. The tenancy agreement to which I referred , appeared in a list of documents supplied to me by the Plaintiff's solicitors and headed '1st Defendant's List of Documents'. It is item 2, and at a late stage in the proceedings it became an agreed document. It was dated with a date stamp, but I will take that date as being the date of the signing. It was for a term of 24 months commencing on 10th June. It was a printed form, with the parties' names, descriptions, and addresses, the term and the rent and various other matters including the user, typed in. 7. There are 5 clauses to which I should refer, because they featured lamely in the submissions of Counsel for the Plaintiff. The first is Clause 2(d) and reads as follows:-
The second is 2(e) and reads as follows:-
The third is 2(h) and reads as follows: -
The fourth is 2(i) and reads as follows: -
The fifth is 2(o) and reads as follows: -
And the sixth is 2(p) and reads as follows:-
It is to be noted that there are two references to the Deed of Mutual Covenant, firstly in Clause 2(e) and secondly in Clause 2(o). 8. At a time unknown to me the 1st and 2nd Defendants agreed that there should be a new lease for a further 24 months to commence from 10th June 1982. there is a date chop on the top of the document barely discernable, but, from the index supplied to me by the Plaintiff's solicitors, it appears to be 27th May 1982. It was an identical document, save for matters such as the rent and the term, and one or two minor matters that are irrelevant to this judgment such as deposits and that would happen if the building were destroyed. 9. It follows from what I have said that, at all material times, the Plaintiff company was the owner of the 23rd floor, the 2nd Defendant was the owner of the 24th floor, and the 1st Defendant was the tenant of the 2nd Defendant occupying, for his factory, part of the 24th floor. Nobody has enlightened me as to the position of Wing Ming Hardware Manufacturing, so I do not know if it is the Owner of its factory unit or the tenant; I will therefore consider it to be the occupier of those premises. 10. Paragraph 3 of the statement of claim drafted by the Plaintiff's solicitors reads as follows:-
I must suppose that ''since" means "since", but quite clearly from the evidence presented to me, nothing untoward happened from 10th June 1980 until early 1982, because have had evidence from Mr. CHAN Kwok-wong the Managing Director of the Plaintiff, and from Mr. LEUNG Sam-piu, the Production Manager of the Plaintiff, and neither of them has referred to any complaint or anything untoward prior to the beginning of 1982. That is a matter of some significance when I have to determine where the blame lies for the ratters complaint of by the Plaintiff. 11. I pass, therefore, at this point in the judgment to what is complained of. The Plaintiff says that, by reason of the dropping of heavy objects and the persistent hammering of heavy metal on the floor of the Defendant's premises, the ceiling of the Plaintiff's premises developed hairline cracks, that oil patches appeared on the ceiling of the Plaintiff's premises and that oil and filth leaked into the Plaintiff's s premises from the 1st Defendant's and 2nd Defendant's premises (by which I assume the Plaintiff means the premises let by the 2nd Defendant to the 1st Defendant) and that, on 5th October 1982, a large niece of concrete fell from the ceiling of the Plaintiff's premises as a consequence of the 1st Defendant's conduct complained of and described by me already. 12. The Plaintiff says that by reason of those matters its premises have been damaged, its business has been interrupted and interfered with and it has suffered loss and damage; and it says that, despite repeated requests, the 1st and 2nd Defendants continue to cause noise and vibration and will do so unless they, and I emphasise ''they" are restrained. 13. The statement of claim was amended in the course of the proceedings some time towards the end of last week, but the amendments were to the prayer and not to the allegations, which remained untouched from the time when Lau, Chan and Ko signed the document in November 1982 to the time when Miss WONG put her signature to the amendments last week. 14. I mentioned that there was a further or alternative claim against the 2nd Defendant. It is not the only claim against the 2nd Defendant as must be clear from what I have just said of the statement of claim. 15. The second claim against the 2nd Defendant reads as follows, and it is paragraph 7 of the amended statement of claim:-
"The manner set out above" is the dropping of heavy objects and the persistent hammering of heavy metal on the floor of the 24th floor. 16. The Deed of Mutual covenant is document 7 in the bundle that was handed to me headed 'Plaintiff's list of documents'. At a very late in the proceedings I was told that 7 of the documents were irrelevant and would not be referred to and that 12 of the documents were agreed. Those include the Deed of Mutual Covenant which is pt page 37 to 62 17. Clause 3 of the Deed of Mutual Covenant appears on page 39 and reads as follows:-
18. Clause 3 of the Dead refers to the Third Schedule, part A of which appears on pages 52 to 54 of the bundle and part B of which appears on pages 54 to 55. The Third Schedule deals with easements, support, shelter, maintenance and repair, access, water tanks, passage and re-passage in case of emergency, and the relevant parts are paragraph 3 which reads:-
paragraph 4 which reads: -
and paragraph 5 which reads:-
19. Part B of the Third Schedule deals with rights of the manager to enter for the purpose of re-building, repairing, renewing etc., and also deals with easements. 20. Clause 4 of the Deed of Mutual Covenant refers to the Fourth Schedule which appears on pages 55 to 58 of the bundle. 21. There are three paragraphs of the Four h Schedule which became of importance in the course of this hearing. Paragraph 4 which reads:
paragraph 5 which reads:-
and paragraph 15 which reads:-
22. Quite clearly in paragraph 6 on the second line, the fifth word 'or' ought to be 'of', and with the consent of all parties, I have amended that in my copy to read 'of'. 23. That Deed of Mutual Covenant was entered into by the 2nd Defendant and bound the 2nd Defendant and/or its tenants. It also formed part of the assignment and therefore vas binding on the Plaintiff as well, a situation which is not unknown in Hong Kong. 24. On the same day, that is 18th July 1980, a management agreement came into existence under, by virtue of, and as a consequence of the Deed of Mutual Covenant, and, presumably, general practice in the Colony. The owners of and in Wah Sing Industrial Building constituted Hop On Management Co. Ltd. the manager of the premises. I need not go through that agreement; the only two parts of it that were drawn to my attention for the purposes of submissions were clauses 2(17), which appears on page 66, and which reads:-
and secondly Clause 7, which permits the manager at all reasonable times on notice, except when there is an emergency, to enter into any part of the building for, inter alia, repairing the said building or any part of parts thereof. 25. So much for the basic facts and for the background. 26. At the commencement of the action, by consent of all parties, I was invited to make and I made an order that I would determine only the question of liability, and that any damages that might flow as a consequence of my judgment, either from the claim or from the counter-claim of the 1st Defendant, would be sent by me to the assessed by a Master. For that reason a number of documents in the Plaintiffs list and' in the 1st Defendant's list (supplied to me by the Plaintiff's solicitors) became irrelevant to what I had to try and are not agreed. Lest there be any dispute hereafter, they are items 15, 16, 17 and 18 in the Plaintiff's list and 10 and 11 in the 1st Defendant's list. 27. At this point I should say that the solicitors for the 2nd Defendant sent me what is called 'the 2nd Defendant's bundle of documents'. Items 2 and 3 are agreed and I am told that the remaining items are irrelevant and they were not put before me. ' 28. The first witness called - Mr. CHAN Kwok- wong, to whom I have referred already - was in the main unable to give me first-hand, or what is known as "best evidence", because be does not in fact stay at Wah Sing Industrial Building. He is far too important for that, but, of course, serious complaints go to him. He described his company and the machines he had and so on, but I need not recite that in this judgment. Dealing with his staff he told me that his factory manager Mr. LEUNG Kam-piu made certain complaints to him, and, as a result of those complaints, he went to his premises in Wah Sing Building and he told me what he had found. 29. There was a loud noise, there was vibration. It was coming, he thought, from the 24th floor, and he described it as a sort of striking, and he opined that it was caused by the making of hardware by the heavy striking of machinery on the 24th floor. 30. This all happened at the beginning of 1982. and he went up to the 1st Defendant's premises and one of the staff let him in and let him inspect them. He noticed some machines in operation, but the boss was not there so that he left. He noticed pressing machines and women. He also noticed a lot of grease on the floor. He went to the premises again later in the year. That is a matter to which I will refer in due course. 31. At a time that I am not sure about, he asked his factory manager Mr. LEUNG to telephone to the management office to complain, and to put it colloquially if the noise and vibration was not too bad he should just put up with it. 32. He identified the management office as being that of The Wah Sing Industrial Building. He himself appears not himself to have been in touch with the management company; he left it to Mr. LEUNG. Mr. LEUNG's evidence was That he was in touch with only two people, a Mr. MAK and a Mr. POON, both of the management office. Nobody saw fit apparently to get in touch with any of the directors of the management company of to write to it at its office in Ice House Street in Victoria, and, what became of significance as the case proceeded, nobody bothered to inform the owner of the 24th floor, that is the 2nd Defendant. 33. The next thing that happened was in May or June of 1982. Mr. CHAN then received a complaint from his factory manager that oil was found on the ceiling of the 23rd floor and it gradually dropped from the ceiling to the floor. The action taken by Mr. CHAN on that occasion was to ask Mr. LEUNG once again to phone the management office to complain. 34. Certain remedial measures were taken by Mr. LEUNG to try to protect the threads from the dripping oil. Mr. CHAN said that he caused polythene paper to be put under the ceiling, and Exhibit 2(5) shews sheets of cardboard being used for a similar protective purpose. 35. I need not go deep into those matters at this stage because they go more as to the assessment of damages than question of liability, and, indeed, I had better say at this stage of the judgment, liability for the oil has in fact been frankly admitted by the 1st Defendant. 36. The next thing that happened was in October, and that was the falling of the lump of concrete. When that happened Mr. CHAN obviously had to take action- first of all there was danger to life and limb, and secondly there was danger to machinery. 37. Exhibit 2(1) shews where the lump of concrete fell from, and it shews a hole in the ceiling which, on my view, I observed, and I found that it went up to the skin of the floor of the 24th floor. Exhibit 2(2) shews the lump of concrete on the floor and Exhibit 2(4) shews where bits of concrete had fallen down on to the delicate knitting machinery. 38. Complaints were made again. Mr. POON from the management office was interviewed and complaints were made to him, and certain remedial action was taken: Solicitors were informed: Mr. CHAN, despairing of anything happening by complaining to the 1st Defendant, went up to the 24th floor, not merely to complain, but to see if the premises were dangerous. Once Again, the boss was absent, that is the 1st Defendant, but Mr. CHAN saw a Mr. AW. 39. He shewed Mr. CHAN around. Mr. CHAN saw machines in operation; he felt the floor vibrating; he saw metal blocks piled up, 10 or 20 of them, filthy traces of oil on the floor; oil and dirt mixed; and he asked first of all - it seems somewhat strange considering the danger of the concrete - about the oil; and he told me he got an explanation from Mr. AW, and it is admitted that Mr. AW is an employee of the 1st Defendant. 40. Mr. AW said that the oil had come from a leak in the fuel tank. Mr. AW did not believe that oil could be leaking down into the 23rd floor, so he was taken down there and shewn the oil leaks by Mr. CHAN. He very properly and promptly said, "Well. I'll go back up again and see if the machines are leaking, because I think that I've just fixed the tank", and he went up and he looked around, but he had no explanation to offer. 41. He was told then about hairline cracks in the ceiling, and this is what Mr. CHAN said Mr. AW's answer was, "It was possible when some delivery-men delivered alloy blocks to the factory, the delivery-men just dropped the alloy blocks on to the floor, and secondly it might also be due to vibration. of the machines when operated.". 42. Mr. CHAN said that Mr. AW went. on to explain that the machines used molten metal, and that there were leftovers after the pressing, and the residue from the leftovers were turned into casts and that the casts could have been dropped on to the floor so as to take out the metal alloy block. 43. In repeating all this I do bear in mind two things. One, I am being told by Mr. CHAN what Mr. Aid said to him; and secondly, I am having -Mr. CHAN's recollection of direct speech in Cantonese turned into indirect speech in English, and the difference between everyday Cantonese and English is immense, particularly when one considers the question of tenses and the use of conditional phrases. 44. Mr. AW however - Mr. CHAP told me - went on to say that in future the dropping on to the floor would be only outside the factory premises, and then there were certain other conversations arising out of the intervention of a Mr. CHUNG, to whose evidence I will come in a moment. 45. That, as I say, all happened in October. 46. On the 28th of November the Plaintiff issued a summons against the 1st and 2nd Defendant for injunction. That against the 1st Defendant was to restrain him from dropping objects or permitting heavy objects to fall on to the floor or knocking heavy objects on the floor, or causing or permitting other work to be done there which would cause a nuisance to the Plaintiff by noise, vibration, leaking oil and falling concrete. An injunction was sought against the 2nd Defendant from permitting such action until the trial of the action or further order. 47. I know no more about that application save that it came on before Mr. Justice Mantell on the 10th of December 1982, when he adjourned the application for an interlocutory judgment against the 2nd Defendant sine die, and granted an injunction against the 1st Defendant from dropping or knocking heavy objects or permitting heavy objects to fall on to the floor or causing or permitting other work to be done there so as to cause nuisance to the Plaintiff by noise, vibration, leaking oil and falling concrete. 48. So far as I can ascertain, from October there was no more dropping oil. I do not know what Mr. Justice Mantell was told, therefore it does not behove me to say anything about the evidence put before him: However, I was told by Mr. LEUNG in positive terms that oil seepage had stopped in October 1982; it occasions me some surprise, therefore, to see one of my brethren being invited to make an order against leaking oil two months after, on the evidence of the Plaintiff itself, the leaking had stopped. 49. I am told by Mr. LEUNG that the excessive noise has not yet stopped, but that it has lessened in this year. I am told that the vibration has lessened in this year. And then the question arose of thumps. Thumps featured largely in the evidence put before me. Mr. LEUNG told me that before December 1982 the thumps were to be heard or felt, I am not sure which, once or twice a day, a maximum of 10 or 8 he said, and he described the present position as only "on and off", "once or twice every one or two days". 50. That was the evidence from the Plaintiff company itself, and I do not propose further to examine my notes and read out all that has been said; a summary suffices. 51. The Plaintiff called, in addition, a Mr. CHUNG Wing-keg who is an authorised person under the Buildings Ordinance, who was a Senior Structural Engineer in the B.O.O., who is a B.Sc. in engineering from Ling Nam University, a Chartered Engineer in England and in Hong Kong, a member of the Institute of Structural Engineers, a member of the Hone Kong Institute of Engineers and a member of the Association of Structural Engineers, and who is a man of very considerable experience. 52. No professional evidence was called by the 1st Defendant. Instead, the 1st Defendant called a Mr. YIM Yau-ting who was not only a factory owner, but also an installer and inspector of heavy machinery, and who obviously is not merely the adviser to the 1st Defendant, which position I accept on the evidence of the 1st Defendant and Mr. YIM, but also clearly a close friend. He spent far more time in this Court than his duty as a witness required, and he kindly attended the view with me when I went into the premises. 53. I was presented therefore with something, that is not unusual in these Courts - a conflict between a solid, straight, dependable practical man who knows what actually happens and a learned man of experience, training etc. possessed of many degrees in the science of engineering. There was a clear conflict between the evidence of Mr. YIM and Mr. CHUNG, evidence which I shall summarise shortly; a conflict which led me to remind Counsel for the Plaintiff that, from a point of view of aeronautical engineering, a bumble bee is totally incapable of aerial flight: It is obvious from the weight of its body and its shape, and the size of its wings that it can never take off from the ground. Any expert worth his salt in aeronautical engineering could prove that with the aid of a slide-rule in this modern age. It is a difficult position for me to be presented with such a conflict. With absolutely no disrespect whatever to Mr. CHUNG, where there is a direct conflict between his evidence and advice and Mr. YIM's evidence and advice, I unhesitatingly prefer the evidence of Mr. YIM. He has not done anything with figures or calculations. He spoke to me frankly and straightly, and I accept him as a very reliable witness for his knowledge of the heavy machinery of the type that I have to deal with in this case, of over 10 in operation in other people's factories and of the 5 or 6 that he himself had operated and of the 2 that he is operating now 54. It will be convenient if at this stage I refer to two exhibits, to make clear what it was I had to deal with. The first is Exhibit 8 which had previously been MFI 3, and that is a leaflet issued by Hishinuma, who are the manufacturers of the DH series of full automatic oil hydraulic high-speed precision hot chamber die casting machines. (That description is a quotation from Exhibit 8, and does not come from me). The machines that I am concerned with are those in the premises of the 1st Defendant. He has two genuine ones from Japan and two Hong Kong ones: I shall assume the latter to have been lawfully manufactured under licence: It is described as a DH 60 and the back page of the leaflet gives the relevant information, which was explored by both Mr CHUNG and Mr. YIM, The only matters I wish to refer to in this judgment are these: The machine weight is 3.3 tons, the floor space occupied by it is 1,680 by 3,490 mm, and its injection force is 3,800 kg. 55. The second exhibit to which I refer at this stage is Exhibit 9, which had been originally MFI 4, and it is the handbook for the DH 60, giving general information, specifications, instalment and preparation instructions and so on, and contains numerous sketch plains, drawings and scientific information. 56. They are important, these two exhibits, in more ways than one. First, of course, they identified the machinery of the 1st Defendant before I had a view. Secondly, they identified the machinery for the assistance of Mr. CHUNG in his evidence when cross-examined. Thirdly, they identified the machinery in the premises by Mr. YIM as being identical with those which I had to consider, a matter of considerable importance in this case, for Mr. YIM had found that those machines were the same as the machines in the premises of the 1st Defendant; and lastly, of course they provided all necessary information that anyone wanted on these machines, and much use was made of the diagrams and the wording in the file as well as those in the leaflet, 57. The machine in question has 6 protruding feet, 3 on each side. Each of those feet bears a bolt for the securing, in certain circumstances, of the machine to the floor. In one of his rare mistakes Mr. YIM told me that those feet were screwed on to the machinery. I suspect that that was an error in translation or a misunderstanding, because it was obvious to the naked eye in the photographs, in the leaflet, in the file and on the machine itself, that they were securely welded to the machine: There were in fact screw holes or screws, but for other performance which are irrelevant to this judgment. 58. What, sadly, did not become apparent to me until a very late stage, after the departure of Mr. CHUNG, is that the machine has a metal base and is mounted thereon, and although the base contains or may contain, depending on what the owner wishes, fuel oil in tanks below it, it is hollow, and it is in fact in the nature of a large steel mate running along the Whole length and with an area of the base of the machine itself. It is not so clear in the photostat I have been given, but it is very clear in Exhibit 8 itself, it was abundantly clear at the view, and, if any of us had ' examined a little more carefully photographs D and H of Exhibit 10 and the photograph in Exhibit 11, we would have noticed it at an earlier stage. There are matters of importance in relation to evidence given by Mr. CHUNG to which I will shortly come. 11.30 a. m. Court adjourns 11.48 aim. Court resumes Appearances as before 59. I now pass to the evidence of Mr. CHUNG. That fell into two parts, what he saw and what he cautioned and advised. He told me' about the machinery he saw, he told me about the alloy blocks, and he told me what the 1st Defendant's workers told him about the alloy blocks, and he said he felt vibration, and heard noises. There was no dropping of blocks on to the floor, either of residue or of alloy, While he was there, but he did say that, obviously, if they were dropped on to the floor they would make a noise. 60. He said that he was informed by the owner and workers - I am not quite sure what that means because the owner was not there - of the 24th floor that they dropped blocks on the floor because the alloy was melted and it was dropped into a case to form a mould, and the mould had to be turned upside down so as to allow the alloy to drop out. 61. He told me about the loading weight of the floor. He said that in his opinion it was of a normal design of 150 1bs. per square foot. The Building Office uses, rather strangely, those Napoleonic measures 'that the world is gradually forcing otherwise intelligent people now to use, and the floor is designated as having a loading capacity of 750 km. per square metre. 62. By use of his training and background and experience, Mr. CHUNG was able to demonstrate to me quite clearly that these machines were so singularly dangerous, mounted where they were, that at any moment they would go through the floor where they were, that is the 24th floor, carrying with them the floor slabs and ceiling; they would then crash on to the machinery of the 23rd floor and carry that away, with its floor, dorm to the floor below, and so on causing an appalling disaster. He was able to demonstrate that to me by various scientific calculations. The only difficulty is that the machines have been there since June 1980, and none of them has gone through the floor, neither has any of the six of Mr. YIM' s machines gone through his floors, nor has any of the ten that Mr. YIM regularly examines gone through the floors whereon they are mounted. He was also able to demonstrate to me quite clearly that, because of the six feet, there were six separate loading points for the enormous weight of this machine, and the weight on the floor slabs of those six points was in excess of what permitted by the building construction itself, or by the weight loading prescribed for the building to make it lawful. The only difficulty with that was the feet did not bear any load at all. They were there merely for the purpose of enabling anybody who had the machines on something such as a ground floor or a basement, to bolt the machine into place by screwing - by driving those bolts-into the foundations. They serve no other purpose whatever, as is quite clear from Exhibit 8, Exhibit 9, the evidence of Mr. YIM, the evidence of Mr. LAM, both of which I accept on this point, and my own visual evidence. It is now clear why I talked earlier about a bumble bee. 63. Mr. CHUNG suggested that these machines, to be safe, ought to be mounted on I-beams. But having regard to the height of the machine and the Door construction of the building (and when I say poor, I am not talking about the quality of the concrete, because on that there is no evidence), the ceilings are rather low, so these machines could not be mounted on I-beams. 64. He suggested that they be mounted on steel elates that were slightly bigger than the machines themselves, which brings me back to what I was saying a few minutes ago about Exhibits 8 and 9. The machine is mounted on a steel base slightly bigger than the machine itself, thus distributing the 3.3 tons equally over the whole 1,600 x 3,890 square millimetres. 65. He suggested that it might be safe if these machines were mounted over the concrete beams. But then it transpired that, out of the four machines that "Mr. LAM had, a third of machine No. 2 was over a beam, and machines Nos. 3 and 4 were over beams. But the weight of the heavier part of machine No. 2 was further distributed widely and evenly by a concrete base, leaving the lighter part to be supported only on the metal base. Machine No. 1 was not over any beam, but did have its metal base and a cement base under its heavier part. 66. Entirely without prejudice to his case, Mr. LAM said he was quite prepared to move machine No. 1 through ninety degrees so as to have what I may call centre of gravity, in other words its heaviest point, over a beam, and he offered to give that as an undertaking to this Court. The actual offer was made in the premises during the view: It was just volunteered. Later, in the course of his final submission to me, he made it clear that he would give such an undertaking to the Court. It is an undertaking I am prepared to accept regardless of whatever findings I make at the conclusion of this judgment. He also made a gratuitous offer, and later said that he would give an undertaking, to move machine No. 2 if its heaviest point, the centre of gravity, was not presently over the beam, slightly in whichever direction was required to bring that centre over the beam. Again, entirely without prejudice to anything that I may find in this case, I will accept such an undertaking. 67. It is with a shade of regret that I have to reject the evidence of such a learned man as Mr. CHANG, but, in reaching my judgment, I have found it of little or no assistance to me, save that he was able to explain a number of technical matters to me which, otherwise, might have remained a mystery. 68. The even distribution of weight of this machine transmitted to the floor slab was in fact explained to me by the man with no scientific training, Mr. YIM, whose evidence, as I have said before, I accept, with the exception of that rather singular mistake concerning the feet. Everything that I saw and was told at the view, confirmed that impression. The weight of this machine is evenly distributed over the floor slab by its base, and further precautions are taken as to the heavier end by the concrete or cement slabs presently there. 69. There was demonstrated to me the emptying of a container of residue. I will describe briefly what I mean. There is, as an integral part of each machine, what the manufacturers call a "melting pot". It is a small furnace into which the ingots of zinc alloy are carefully lowered and kept melted. A scum forms on the top of the melted metal. The scum is removed periodically by means of a metal sieve: Throguh the sieve, melted alloy in a useable state falls back into the melting pot: The scum remains in the sieve; it is then cast, or thrown - to use a more modern phrase - into a small metal container, rather like a long bread tin, with a handle at each end. It is rectangular in shape, but the bottom of it is considerably smaller than its open top 70. When the residue is cast into such a container it is in very small quantities, but it gradually accumulates, and, when the container is full, it is allowed to cool and it is then emptied. I was shewn both the casting into the container of the scum from the sieve, and I was shewn the emptying of the container. It is not all that easy when it is still hot, but if you turn it upside down, the block falls out because of the shape of the container. It is not a very heavy block. I was able, despite my own physical handicaps, to hold it very easily. Miss WONG, who is smaller, more slender and less strong than I, was also able to hold it without much difficulty, and so was WAHAB. I am told that it is in the region of ten catties if the container is full. 71. I can only go on the evidence I am given. I can not, for the life of me, find on the evidence before me that the falling of one of those, or more of one of those, to the floor would crack the floor slab of an industrial building capable of sustaining, in the factory of the 1st Defendant alone, four machines each of over three tons in weight. 72. I saw a stack of bars of zinc alloy. Again I, Mr. WAHAB and Miss WONG, all of us, tested the weight of those, found them easy to hold, not very heavy. And on the totality of the evidence - each of them weighed something like twenty pounds - on the totality of the evidence, I can not find that, even if they were dropped to the floor regularly by a workman, they would crack the strong floor designed by the building owner, and prescribed by the Governments, as capable of bearing 750 kilograms per square metre. 73. Additionally, on all the evidence before me, the rate at which the alloy bars would be used was not great, and, therefore, even if workmen did carry them from the neat little stack to which they were delivered, in the manner I will describe in a moment, and drop them down by the machine so that the machine operator could put them in the melting pot, I can not, on the evidence before me, find that that dropping would have caused, even if it were continuous, the cracking of the floor slab right the way through to the ceiling of the 23rd floor. 74. Apparently, the alloy ingots arrive about a ton at a time, and are brought up in the service lift on a wheeled trolley, and these twenty pounds ingots are stacked at a convenient point from which they are taken, when needed, to be put beside each machine. And the machines consume something between three and four a day. They are brought in on an ordinary wheeled trolley, which is not far off the ground, so there will be no question of dropping them from any considerable height. 75. The blocks of residue I found in an untidy heap at one end of the factory. Not many of those are produced in a day. And what happens, apparently, is that the container is carried from the side of a machine and it is emptied out at one end of the factory floor, and, from what I saw demonstrated, it is emptied out on to the top of the heap. Obviously the first few on the heap will be dropped on to the floor, the remainder will be dropped on to the heap, and the shock will be absorbed thereby. 76. Having regard to the weight and the heat of the container, it is quite obvious nobody is going to carry them waist or breast high. They will be carried low down, as I saw, and will be turned out on to the floor. Those are matters which I took into account, when reaching the decision I have just mentioned, shout the inability of those blocks to break the floor slab. 77. The way the Plaintiff's claim has been pleaded is that the dropping of those blocks of residue or the ingots of alloy caused excessive noise and vibration. This is a factory building - it is full of factories: And I have seen and I have heard these witnesses, I have formed a very favourable impression of Mr. YIM, as I have said, think that I must criticise Mr. TAM for failing and for short sightedness, possibly because of his educational background, immediately to grasp things, but I have come firmly to the conclusion that he is a truthful witness. He has been seemingly foolish in not calling Mr. AM, but it is for the Plaintiff to prove its case. 78. I accept the evidence of Mr. LAM that there was no excessive noise, and I stress the word "excessive", because "excessive" in the context could have been caused by the alloy ingots or by the blocks of residue. Obviously, their handling caused noise, but Lau, Chan & Ko very sensibly put in the word "excessive". 79. But "excessive" is a word with different meanings in different context. It has often been said that what is a nuisance in Belgravia is not a nuisance in Bermondsey. What may be excessive in the flat above one's head, when one is trying to sleep, would not be excessive in an industrial building in Kwai Chung, where on every floor there are people pushing, hammering, banging, or pressing. 80. This brings me to another point which did cause me a little concern. One of the other allegations of the Plaintiff is of persistent hammering of heavy metal on the floor. In the original defence to which Mr. LAM put his signature in Chinese some time in January of 1983 - the defence was served on the 12th of January - he said this: "The first Defendant's factory is a metal factory, and there is hammering of the metal when the work is in progress''. Well, we all saw the factory, and we all saw the type and nature of work that was going on there, and there was one type of work that did not go on there, and that was hammering.. Why Mr. LAM Signed such a Defence is utterly beyond me. With folly that verges on being something even resembling madness, he apparently just told his Story to a friend, who typed up a Defence in English, and he put his name to it without ever finding out what it Said. It was not until yesterday that he even knew that he had admitted to hammering. And he told me yesterday - what in fact we saw - that there was no hammering; there is no need for hammering; it is not part of the process. The molten metal is injected into the machine, the piston drives the press forward, the metal is pressed in the mould, the pressed alloy - the result - which is Exhibit 12 - slides down a chute and falls to the floor: It is exceedingly light. The moulded alloy is carried over to another part of the factory and left untidily there. Then women manually break off the ends to produce things like Exhibit 12b - which are the upper part of watch cases. No part of the process involves the use of a hammer, Mr. LAM tells me. I accept it from him, and I saw for myself there was no use of a hammer. 81. He asked me for leave to amend, to change hammering to pressing. This was opposed by Miss WONG on behalf of the Plaintiff, and at her request, I have noted her objection. But it was an objection made in the teeth of the oral and visual evidence and the first Defendant's statement; and, in the face of the admission by the Defendant of having Signed an English document without knowing what it contained, I gave leave to the first Defendant yesterday to amend his defence, without re-service, to substitute the word "pressing" for "hammering", in the interests of justice and, I believe, of truth. So much for the dropping of heavy objects and persistent hammering. 82. I now come to vibration. The Statement of Claim pleads vibration coming into the Plaintiff's premises. Now, in any factory building there must be vibration, and I accept that what Messrs. Lau, Chan & Ko meant in paragraph 3 was that the word "excessive" should apply both to noise and to vibration; otherwise that pleading would not make sense, and Mr. CHAH's own machinery in the Plaintiff's factory causes vibration. We all felt the vibration when we were there. We felt the vibration in Mr. LAM'S factory, and we felt vibration in the adjoining factory. Can I take it as "excessive" vibration? 83. Here I have some Slight difficulty because I have the unchallenged evidence of Mr. LEUNG that, since December, the vibration has lessened; and I have, in the Defence, a statement that since the writ was served, the vibration has ceased; and also an assertion that the machinery is now operating in slow motion to prevent noise and vibration coming into the Plaintiff's premises. That, of course, is ridiculous if one takes it literally. When we switched off the machinery in the Plaintiff's premises next to the Plaintiff's office, we could hear the noise of the machine above us as the piston drove the pressing part forward into the mould. And, indeed, it would be utterly astonishing in that building if one did not hear it. As I have said, it is not "excessive". 84. The question is, therefore, on this pleading whether I am driven to find there has been excessive vibration coming from the 1st Defendant's premises. On the oral evidence, and on the physical evidence, that is the evidence of my feet. I do not find that the Plaintiff has 3 proved its case of "excessive" vibration. Nothing was said or demonstrated to me to indicate that, if the machines moved more often, the vibration in the Plaintiff's premises would, in anywise, be increased. 85. I do not, therefore, attach as much weight to the contents of the English Defence of the 1st Defendant, as I do to the Statement of Claim which was settled by one of the most experienced firms of solicitors in the Colony. 86. I have come to the conclusion, on the totality of the evidence. the Plaintiff has not satisfied me, on a balance of probabilities, that excessive noise or excessive vibration came into its premises a result of anything done by the 1st Defendant. At this point, I will add parenthetically that the 1st Defendant, when challenged about excessive noise. excessive vibration and thumps - because, as I have said, thumps formed quite a large part of this case - volunteered the information they could be coming from next door. That was one of the reasons why we all when next door, and we examined the premises of Wing Ming Hardware Manufacturing. 87. When we did examine it, we found exactly what Mr. YIM and Mr. LAM told us we would find. They were making watch straps; and watch straps are not made by lateral presses, they are made by vertical presses. And what we found was that there was a number of small vertical presses, and strangely enough, none of the large vertical presses was in operation. The manager very kindly obliged me by operating one of them, and just that one produced more vibration than the whole of the 1st Defendant's factory. And what is interesting is it produced a thump. 88. And another matter of interest is that these four very heavy machines had been out of operation for a while which would account for the quiet period described by Mr. LEUNG. And even more interesting was that the power and pressure of these machines was such that two earlier versions had had their very heavy. very thick cast iron frame fractured by the very operation of the machines themselves. And, at the time which appears to coincide with the lessening of the vibration and the lessening of the thumps, and with the diminution to a point that I found to be irrelevant on noise it n and vibration the broken machines were removed from the factory of Wing Ming and placed in the lift corridor, (something which Mr. WAHAB assured me will be looked into by his clients, because they are probably unsafe there, and that his clients will probably, I hope, anyway, order them to be removed). 89. If there were excessive noise and vibration, as I have said, I found that this is not attributable to anything the 1st Defendant did; What, therefore, caused the fall of the piece of concrete? 12.30 p.m. Court adjourns 2.30 p.m. Court resumes Appearances as before 90. There is no doubt that a piece of concrete did fall from the ceiling of the Plaintiff's premises. The question I have to decide is whether, on ah balance of probabilities, that was caused by any action of the 1st Defendant, as alleged in paragraphs 3 and 4 of the amended Statement of Claim. It is not a very high burden of proof, but, nonetheless, he who alleges must prove. The Plaintiff's evidence is that it fell. I have dealt with excessive noise and excessive vibration already. I found that neither was excessive. The Plaintiff's evidence is that a Mr. AM told Mr. CHAN and told Mr. LEUNG certain things in Cantonese which, when translated to English, look like "guesses" on the part of Mr. AM, as to probable explanations in one case and possible explanations in another, for the matters complained of. After all, what happened was this. People went up from the Plaintiff's premises to the 1st Defendant's premises, saw the 1st Defendant's employee, Mr. All, and said: "Now, look!" they said: "Excessive noise, excessive vibration, thump, thump, thump, Oil leaking down, cracks appearing; ,-bits of concrete falling off, how did that all happen?" And in my judgment, what happened was Mr. AW offered his possible explanations as to how it could have happened, but that is not to say that that is how it did happen. That is a matter for me to decide on the evidence. 91. The strongest point in the Plaintiff's favour is the failure by Mr. LAM, the inexplicable failure by Mr. LAM, to call Mr. AW. But I must make allowances for the fact that Mr. LAM is a layman, he is in person, he has no advice of any kind from anyone as to matters of practice and procedure, and as he said to me, he was quite happy with what Mr. YIM had said, and what he had said, and he could see no purpose in calling Mr. AW. In my judgment I can not attribute anything more sinister to it than that. 92. Then I have to ask myself, on a balance of probabilities, is it more likely that what happened was due to the manufacturing going on in the Defendant's premises or in the premises of Wing Ming. I can not say it is more likely that it happened in the 1st Defendant's premises than in wing Ming's; and, having found there was no excessive vibration or excessive noise, and having found against the Plaintiff on the hammering on the floor, and on the dropping fron any dangerous height - I mean dangerous to the floor slabs and ceiling- of ingots or blocks of residue, I can not say that the Plaintiff has proved, on a balance of probabilities, that the concrete fell as a result of the activities of the 1st Defendant's factory. 93. Nobody bothered to have the concrete lump examined to see whether it was defective concrete, in which case, there would be a cast-iron action against the 2nd Defendant and possibly other persons. I can not hazard an opinion, one way or other, as to the fall of this concrete being due to defective building: It is not beyond the realms of possibility, but it is something I must exclude from my considerations, whatever may have been said in the course of these proceedings. 94. What then is left? That is the oil and filth or oily filth or filthy oil. that question was never really satisfactorily resolved, although the pleading says oil and filth had undoubtedly leaked through to the Plaintiff's premises. 95. In respect of that, there are two things. I will deal with the second one first. In answer to me, at the conclusion of his evidence, the 1st Defendant very frankly and, as he had. given the rest of his evidence, very honestly, said to me this. He was asked why he did not clean up the oil that was blown on to the floor every day. "In the past it was due to my negligence, now I mop clean the floor. That was in relation to the lubricating oil which keeps this machine going". He told me that it invariably gets blown on to the floor one way or another. 96. Then he was asked about the fuel oil and the leak from the oil tank. Again he admitted that it was due to negligence on his part. Then there was the question of the cooling water that flowed down on to the floor and mixed with. the lubricating oil and, during the period when the tank was leaking, the fuel oil and the natural dirt one gets in the factory, and he was asked about cleaning that up, and he said: "I am doing that now, but, I was a bit negligent in the past." 97. So there you have the clearest possible admissions from the Defendant that he was negligent in the past, that is, prior to October 1982, about the cleaning of the floor, the cleaning up from the floor oil - that is, fuel oil and lubricating oil, water and oil, water, dirt and oil and dirt, and oily water and dirt. 98. Then I have to ask myself "Well what would have happened if there were no cracks? Would it have mattered?" In other words, if there had been no cracks caused by something or other, would the oil have leaked down to the Plaintiff's premises? In other words, has the Plaintiff proved that the leak was due to - was a normal and foreseeable consequence of - the failure, negligent failure, by the Defendant to clean his floor? 99. On that, I have the evidence of Mr. CHUNG, which, in this respect, I accept without hesitation. In answer to me, after his evidence had been completed, he was asked by me, "would there be any seepage of oil into the Plaintiff's premises if there were no cracks in the ceiling?" and he said "Yes". Then, when asked to explain, he said that it was because there are many voids inside concrete; and then he also added, in answer to a further question of mine, that seepage of oil could also occur at the joints between the floor slabs. It follows, therefore, that the Plaintiff must succeed against the Defendant in relation to the seepage of oil and filth into its premises. 100. In respect of that, as against the 1st Defendant, the Plaintiff claims an unjunction. I have already commented on the state of affairs before Mr. Justice Mantell last December. There is no need for me to say any more. But I have the clearest evidence on oath from Mr. LEUNG Kam-piu that the oil leakage stopped in October 1982, and has not recurred. Therefore, the Plaintiff will not obtain an injunction in respect of the oil. 101. However, the oil undoubtedly caused loss and damage to the Plaintiff. Remedial work had to be undertaken. Mien I say remedial, I mean remedial in the protective sense - some machines had to be stopped, and there is a quantifiable claim in damages there for loss of profits including wages lost, time lost, possibly contracts lost, I know not, etc. And the Plaintiff will be awarded, in respect of that claim, such damages as are assessed by a Master, if not agreed between the Plaintiff company and the 1st Defendant. 102. I now pass to the claim against the 2nd Defendant. That is put in two ways. First, it relies upon paragraphs 1 to 6 of the Statement of Claim and continues, "despite repeated requests, the Defendants still continue and threaten and intend, unless restrained by injunction, to continue to cause noise and vibration as aforesaid.". That basically is a claim in nuisance and was advanced to me by Miss WONG as a claim in nuisance. Secondly, there is the claim to which I have. already referred, in contract, that is breaches of clauses 3 and 4 of the Deed of Mutual Covenant. I will deal with the letter first. 103. When Miss WONG advanced to me the proposition of the liability of the 2nd Defendant by virtue of a combination of the Deed of Mutual Covenant and the terms of the lease between the 2nd Defendant and the 1st Defendant, there opened to me a vista of fascination because, so far as I know, it has never been decided in these Courts if the owners of premises, part of which they have sold and part of which they let, are liable to an owner of part of the premises by reason of Deeds of Mutual Covenants and leases. 104. Alas, my pursuit of that intriguing topic was thwarted, and it was thwarted by the Plaintiff's pleading because paragraph 7 reads, as follows:-
Those words which I have emphasized restrict the Plaintiff's claim to permissive acts of the 2nd Defendant. In other words, it was restricted to a claim that the 2nd Defendant permitted the 1st Defendant to do the acts complained of. 105. No application to amend was made nor, in the circumstances, could it have been made for this reason. The 2nd Defendant, haying seen the point at a very early stage, sat back and called no evidence. I am told by Counsel, and I am sure it is right, that, if different evidence had been called, and if the words "by permitting" had not been there, his conduct of the defence of the 2nd Defendant would have been wholly different. 106. That is hardly surprising. But he did exactly what I expected of him on the pleadings and on the evidence called; he sat on his rights, called no evidence, and had the last word. Nothing in the evidence points to "permitting" in any of the known senses of the word. 107. I have had put before me, it is admittedly a little unusual, but that matters not, pages 1990 to 1994 of Volume 4 of the Fourth Edition of Stroud. I have been taken through a large number of authorities, but I have not seen or heard anything that would lead me to to conclusion, in this case, that the 2nd Defendant "permitted" the 1st Defendant to do any of the matters complained of in the Statement of Claim. 108. But I do not need to go that far in the light of my judgment: I can restrict it to "permitted the 1st Defendant negligently to allow oil and filth to drip through to the Plaintiff's premises". But, in case this should go further, I will add that nothing I have heard or read would lead me to the conclusion that the 2nd Defendant permitted the 1st Defendant to do any of the matters complained of in the Statement of Claim. 109. There certainly was no actual knowledge in the 2nd Defendant. The question arose whether there was any constructive knowledge. For that, Miss WONG relied upon Exhibits 5, 6 and 7, and agreed document 3 at pages 6 to 8 of the Plaintiff's bundle. But an examination of those spews a very tenuous nexus between the 2nd Defendant and the management committee: A director of one is the employee and manager of the other. 110. None of the authorities put before me, none of the evidence I have heard, none of the submissions that have been made, can or do lead me to the conclusion that the knowledge of the management offices' servants in Wah Sing Industrial Building, which I have described earlier in this judgment, can be attributed to the 2nd Defendant. 111. The management office, of course, had knowledge. The management office wrote letters, sent Mr. POON and Mr. MAK up to the premises of the 1st Defendant. 112. I find that the 2nd Defendant had no knowledge, actual or constructive, of the matters complained of until sometime in October of 1982, when the Plaintiff company informed it of what had happened. And the point that I wish to stress is that it was informed by the Plaintiff company and not by the management office. 113. The 2nd Defendant promptly wrote to the 1st Defendant to say that it had received a complaint, and it is interesting to note that it made no mention of hearing from the management office, but, only from the Plaintiff, and it threatened to take proceedings unless something was done. That was October the 9th. Within two months a writ had been issued. And, as I have already outlined, and, as the defence has made quite clear, by that time, most of the matters complained of had ceased. In October, the oil had ceased, the vibration had lessened, the noise had lessened, the thumps had become less frequent. 114. What more, other than issuing proceedings, could the 2nd Defendant have done? The complaint, apparently, was of heavy and hot metal falling on to the floor of the 1st Defendant's premises, causing about ten kilograms of cement to fall to the floor from the ceiling of the 23rd floor. But the 23rd floor did not belong to the 2nd Defendant. It had no right to enter or repair. here was no lease there. here was nothing to repair or. remedy, so far as the 2nd Defendant knew, in the 1st Defendant's premises. And, as far as I can tell, it was not until this actual hearing that the 2nd Defendant knew that there might be something to repair or to do in the 1st Defendant's premises. How, therefore, I ask myself, could the 2nd Defendant have had, at any material time, culpable knowledge, real or actual, of what was going on? 115. As I say, this vision of making law which would put in fear every building owner in the Colony - a tempting thought - disappeared when I read those words in paragraph 7 and heard the evidence. "Permitting" is quite a strong word, and the Plaintiff has failed to satisfy me that the 2nd Defendant did so permit the 1st Defendant. 116. I am then left with the question of nuisance. Most of the remarks that have just fallen from me in the course of this judgment apply equally to the claim under paragraph 8. 117. I have had a wealth of authorities cited to me, and I intend to annex to this judgment a list of the authorities cited - the authorities and the textbooks. I do not propose to recite them here. 118. I have already said there was no knowledge before the complaint which gave rise to the letter of October the 9th. What can be said against the 2nd Defendant from October the 9th to the issue of the writ? That it did not commence an action against the 1st Defendant in that one month, October the 9th to November the 9th. I can not see that that gives rise to a cause of action. 119. Re-enter for breach of covenant? Surely its duty to its neighbour, that is the 2nd Defendant to the Plaintiff, was amply fulfilled by the letter of the 9th of October, threatening legal proceedings. Go in and repair? But repair what? And how did it know what to go in and repair? If it had done; how would it have found out" The repairing, as Mr. CHUNG has explained to me, would have to be done from below. Scaffolding form-work, and cement work. The cracks will have to be cut out and cemented in, the form-work will hold the cement into place until it sets, and the scaffolding and form-work will then be removed. The hole will be dealt with in the same way. There is nothing to be done on the 24th floor. 120. If the 2nd Defendant had known of all these matters on the 27th May when it signed the new lease, it is possible- but I am not going to explore that, as it does not fall to me to decide - that it would have been liable, because knowing of the matters complained of, it deliberately entered into a new lease, thus "permitting" the matters complained of to continue. But, that never happened. That interesting point does not, therefore, fall to me to decide. 121. In my judgment, nothing that the Defendant did or omitted to do between the 9th of October and the 19th of November renders it liable to the Plaintiff for an injunction in the terms of paragraph 2 of the Prayer or an order under paragraph 3, or in damages under the new paragraphs 5 or 6. 122. I do not believe there is any need for me to say more about the position of the 2nd Defendant. 123. Now, so far as paragraph 3 of the amended Prayer is concerned, I do not need to rake any order because what has been agreed in the course of the hearing is this - that, if the contractors who repair the ceiling of the 23rd floor, feel that work has to be done on the 24th floor. Mr. LAM will permit them to work on the 24th floor and, if necessary, move his machinery so that they can do it. It appears from the evidence of Mr. CHUNG that it will not be necessary to go on the 24th floor, but, should it be, Mr. LAM had made certain promises to me - not in the form of undertakings such as those I mentioned this morning - but he had made statements: And I have been invited to both the 1st Defendant and the Plaintiff to rive liberty to apply in respect to paragraph 3 of the amended Prayer as against the 1st Defendant. The permission of the 2nd Defendant would, I apprehend, automatically follow if it were needed. Is that right, Mr. WAHAB MR. WAHAB: Yes, that is the case, my Lord. COURT: I can not see that it would be needed.
MR. LAM: Yes. COURT: You volunteer them without any need to do so. MR. LAM: Yes. COURT: And you volunteer them while denying liability. MR LAM: Yes.
MR. LAM: Yes. COURT: "Could" include, not "would". MR. LAM: Yes. COURT: Do you understand that? MR. LAM: Yes, I understand.
124. I had better deal with you first, Mr. WAHAB?
COURT: You can not resist that, can you, Miss WONG?
COURT: Yes. The 2nd Defendant will have his costs of the action. MR. WAHAB: Thank you.
MISS WONG: Has not yet recurred up to date. COURT: Yes.
MISS WONG: Yes.
COURT: Yes.
MISS WONG: Yes. COURT: I have read that in my judgment.
MISS WONG: Yes. COURT: That is October.
COURT: "Oil seepage, reduced. No seepage, but oil traces still remain." MISS GONG: Visible, and when ... COURT: "By the end of 1982, no seepage."
125. This is since the 30th of October. MISS WONG: Yes.
MISS WONG: Yes.
MISS WONG: But that is the oil seepage.
COURT: That is right. MISS WONG: I do beg your pardon.
COURT: It was in chief.
COURT: Yes.
COURT: Yes.
COURT: Yes.
COURT: That is the hole, is it?
MISS WONG: Yes.
MISS WONG: I do not think that is necessary. COURT: No? Very well.
MISS WONG: A defence. COURT: A defence? Yes?
COURT: In the defence?
MISS WONG: I am very much obliged.
COURT: Yes.
MISS WONG: I am sorry, I have not got it. COURT: Let me read to you Order 18, rule 14(3).
COURT: There has?
COURT: To serve a ... MISS WONG: ... amended statement of defence. COURT: Really? MISS WONG: That was never done. COURT: When did you apply, and to whom?
COURT: No. You are quite right, the Master; yes? MISS WONG: And at the time of the hearing ... COURT: Do you know when? MISS WONG: I have to find out. On the 11th of January.
COURT: You said you applied for judgment. When was that?
HISS WONG: 5th of January.
MISS WONG: There is no difference.
MR LAM : Yes.
MR LAM: Yes.
COURT: Yes. Anything else? MR. LAM: No, nothing.
MR. LAM: I ask for costs in respect of counterclaim. COURT: Did you not bring all this on yourself?
MR. LAM: Yes.
COURT: You mean he is a volunteer? MISS WONG: Yes.
MISS WONG: Yes.
MISS WONG: I am very much obliged
COURT: Yes. MR. LAM: My Lord, I have a request to make. COURT: Yes. What is it?
MR. LAM: Yes.
MISS WONG: Yes.
COURT: Very well. Yes, I quite understand, Miss WONG.
HISS WONG: Yes.
MISS WONG: I am very much obliged.
MR. LAM: Yes. COURT: All right. It will remain.... MR. LAM: In fact, we still have one of these books.
4.25 p.m. Court adjourns.
Representation: Solicitors: Lau, Chan & Ko for the Plaintiff. F. Zimmern & Co. for the 2nd Defendant. |