Li Lo Sha Rosa v. The Incorporated Owners of Hiu Kwong Court and Hiu Ming Court

DCCJ 1728/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1728 OF 2004

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

BETWEEN

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

Coram: Deputy Judge A. Chow in Chambers

Date of Hearing: 6^th June 2006

Date of Handing Down Judgment: 8^th June 2006

_________________

JUDGMENT

_________________

1.This is an application by the plaintiff for interlocutory judgment with damages to be assessed under Order 14 rule 1 of the Rules of District Court. After hearing submissions from counsels from both parties, I gave unconditional leave to defend. I now state my reasons.

The claim and defence

2.The plaintiff is the owner of the premises known as Flat No. 12, 5^th floor, Hiu Ming Court, No. 30 Hiu Kwong Street, Kowloon Hong Kong (the “Premises”). The plaintiff alleged water and foul liquid leaked into the Premises through damaged common sewage pipe of the Building. The plaintiff seeks damages for nuisance against the defendant for an amount to be assessed.

3.The defence was a simple general denial.

The plaintiff's argument

4.The plaintiff's case was there is no arguable defence because there are overwhelming evidences that the source of the water leakage was the common sewer pipes.

5.The plaintiff's overwhelming evidence are:

(a) On 12/11/1997, the defendant's received warning from its own contractor on possibility of leakage from the common     sewer pipe.

(b) On 8/1/2003, the Building Department issued a work order against the defendant to repair the common drains.

(c) Letter dated 18/4/2005, issued by the Food and  Environmental Hygiene Department, confirmed the leakage on the Premises was from the broken common sewer pipe.

(d) Letters dated 17/8/2005, from the Food and Environmental Hygiene Department, confirming there were no water leakages from units 612, 712 and 812.

(e) Expert opinions from Brooks Loss Adjusters Limited (the “Brooks Report”) and PWL Surveyors Limited (the “PWL Report”) both concluded that the source of the water leakage was the common sewer pipe.

(f) The PWL Report used infra-red thermographic scanning survey and fluorescent dye test and was scientific and forensic, whilst the defendant's expert opinion was based on the use of a protimeter and was neither.

(g) In a letter dated 28/11/2003, the defendant has already unequivocally admitted the source of the water leakage was the common sewer pipe.

6.The defendant's argument was there are other possible sources for the water leakage.

7.The defendant's evidence are:

(a) It was a letter from Quality Company, a contractor hired by the owner of unit 612 and it referred to a broken flush water supply pipe to unit 612 and had nothing to do with the common sewer pipe.

(b) The work order only required repairs to common drains but did not identify the source of water leakage in the Premises.

(c)   The letter issued by the Food and Environmental Hygiene Department dated 18/4/2005, stated:

“…化驗结果顯示莲接10樓12室水厠的糞渠支管至9樓及10樓之間的主糞渠有破损而引致5樓12室的單位滲水,…”.

This statement was not certain if the “破损” was in the “支管”, the responsibility for repair and maintenance is in the owners of unit 1012, or the  “主糞渠”, which the defendant had responsibility to repair and maintain.

(d) Although the Food and Environmental Hygiene Department's letter dated 17/8/2005, stated colour dye tests conducted at the bathrooms of units 612, 712, 812 and 912 did not reveal any connection with the water leakage at the Premises, this did not eliminate other possible sources of water leakages disclosed in the defendant's expert report.

(e) The Brooks Report was based on the assumption “that there was no other source of water” but in fact the defendant's expert report referred to other possible sources of water leakage that were not investigated in the Brooks Report.

In the PWL Report, reliance was based on a colour dye test and an infra-red thermographic scanning survey.

Colour dye was observed when a newspaper was placed within the common pipe conduit, to catch dripping from floors above. An infra-red thermographic scanning surveys before and after flushing at unit 1212, reveals additional damping at the ceiling corner above the wall of the common pipe conduit; however, none of these explain why the water leakage damages extended to the ceiling and beam area that was on average one meter away from the common pipe conduit.

(f) The Brooks Report opined that the source of the water leakage in the Premises was from the broken sewer pipe in unit 912, which was rectified in December 2003. The PWL Report opined that the source of the leakage was the burst common sewer pipe at unit 1212, which was rectified on 19/12/2005; however on 26/4/2006, four months after repair work had been completed, when the defendant's expert used a protimeter (a device that measures moisture contain) on the affected areas in the bathroom, the area still exhibited excessive moisture levels (85% to 95%), meaning some water leakage still continued.

(g) In the letter dated 28/11/2003, the defendant made no admission at all. The actual words used by the chairman of the defendant were:

“本法團發覺滲漏源頭乃懷疑是與嘵明閣912單位範圍内之公用糞渠破损有關.”

Being a layman, the chairman merely stated a layman's opinion on the possible source of the water leakage and was not an admission of liability.

8.The defendant's expert report identified four other possible sources for the water leakage in the Premises:

i.	Ponding on the bathroom floor on unit 612 and/or the open verandah on either the Premises or unit 612;
ii.	Leakage from the horizon private sewer pipe leading from the toilet bowl to the common sewer pipe;
iii.	Cracks on the external wall; and
iv.	Puncture hole for a pipe on the external wall between the 6th and 5th floor.

The law

9.The legal principle is well known: The defendant must show that there are triable issues. He has to satisfy the court that he has a 'real or bona fide defence.' If he makes an allegation, it must be credible or believable in the light of the evidence placed before the court. [Para 14/4/9 Hong Kong Civil Procedure 2006].

10.Clearly, there are considerable disputes as to facts, all of which must be investigated and considered in a full trial. Specifically, the experts disagreed on what was the source or sources of the water leakage. These expert opinions must be subjected to cross-examinations and they must be allowed to clarify their positions.

11.To determinate liability at this stage would inevitably require a “mini trial” on the affidavit, which is totally inappropriate.

12.As to the appropriate costs order, I invited counsels for the parties to address me on costs after I held that there would be unconditional leave to defend.

13.Mr. Cheung, for the plaintiff, simply said since I have not dismissed the application, costs should be in the course.

14.Mr. Lee, for the defendant, submitted a letters from the defendant's solicitors to the plaintiff's solicitors, dated 25/5/2006, two weeks after the defendant's affirmation in opposition to the O.14 application was served on the plaintiff. This latter invited the plaintiff to withdrew the summons and vacate this hearing.  The plaintiff failed to do so and Mr. Lee argued I should dismiss the application and order costs for the defendant, payable forthwith.

15.I am fully cognizant of the fact that O.14 r.7 specified that I may order the plaintiff to pay costs of this application forthwith, if before the issue of the summons the plaintiff knew that the defendant has an arguable defence; however, this is without prejudice to the general power to order costs under O.62 r.4 (1). [Para 14/7/4 Hong Kong Civil Procedure 2006].

16.Here the plaintiff filed the O.14 summons on 2/6/2004, almost immediately after pleadings were closed. At the time the summons was filed, the two expert reports, relied heavily by the plaintiff in this application, were not even prepared. The Brooks Report was not commissioned until 29/7/2004 and the PWL Report not until 25/10/2005. On 2/6/2004, the plaintiff had little or no evidence on what was the source of the water leakage.  

17.In other words, when this summons was filed, the plaintiff did not know its own case, let alone whether the defendant had an arguable defence.

18.Mr. Justice Godfrey J.A. in Man Earn Ltd. v. Wing Ting Fong [1996] 1 HKC 225 stated:

 “Unless it is obvious that the defence put forward by the defendant is 'frivolous and practically moonshine, O.14 ought not to be applied, … I would express the hope that those practitioners, of which there are too many, who appear to be prepared to advise every client with what seems to be a good case to invoke this extraordinary procedure, without reflecting on the fact that, if the attempt fails, the result will be to keep the plaintiff out of the judgment to which he may well be entitled for far longer than would have been the case if they had concentrated, instead, on bringing the matter to trial, will in future think twice before giving such advice.”

19.Mr. Justice Godfrey J.A., in Skink Ltd (in liq.) v. Comtowell Ltd. & Another [1994] 2 HKC 286, also stated:

“A plaintiff who started O.14 proceedings believing that the defendant has no defence to the action should be advised, as soon as a credible defence is shown, to give up trying to obtain summary judgment; to do otherwise is simply to waste time and money.”

20.The plaintiff clearly did not pay heed to Justice Godfrey's warnings.

21.In view of the fact that as soon as the defendant's affidavit is served, it should have been obvious to the plaintiff that there are conflicting expert reports and clear factual disputes. This was clearly not an appropriate case for an O.14 application, yet the plaintiff refused to withdraw this application when invited by the defendant's solicitors to do so.

22.Under the circumstance, it is appropriate for me to exercise my discretion and order costs against the plaintiff, payable forthwith.

Order

(1) There be unconditional leave to defend.

(2) Costs to the defendant payable forthwith, to be taxed if not agreed.

(3) Certificate for counsel.

Mr. Victor C.F. Cheung instructed by Messrs. Kitty So & Tong for Plaintiff.

Mr. James Lee instructed by Messrs. Kwok & Chan for Defendant.