Sunbeam Investments Ltd v. Mannitop Investment Co Ltd

DCCJ 1985/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1985 OF 2006

______________________

BETWEEN

______________________

Coram : H.H. Judge Chow

Hearing date : 27^th July 2007

Date of handing down Decision : 7^th August, 2007

DECISION

1.This is the Defendant’s application for the following orders:-

“	(1)	That cracks alleged by the Plaintiff the subject of this action and defined in Appendix C of the Consolidated Report of Mr. Cheung Kwok-ho, Richard and Mr. Yung Hung-tat, Arthur dated 10th July, 2007 and served on the Defendant on 11th July 2007 be exposed by a HOKLAS entity appointed by this Court in the absence of agreement of the parties, for inspection and examination, and be inspected and examined by two experts for each party on a date to be appointed by this Court, in the absence of agreement of the parties, upon procedure annexed to this summons as Appendix 1, or such other procedure as may seem just to this Court.
	(2)	……………………..
	(3)	That there be determination by a covermeter test of the thickness of concrete cover over reinforcement steel bars in the ceiling slab and to identify the location of the steel bars in the ceiling slab of the master ensuite bathroom of Flat 33B, Villa Veneto, such covermeter test to be conducted by a HOKLAS entity and witnessed by 2 experts for each party upon procedure annexed to this Summons as Appendix 2, or such other procedure as may seem just to this Court.
	(4)	………………………”

2.In this action the Plaintiff is the registered owner of Flat 33B of the building situated at 3 Kotewall Road, Hong Kong, whereas the Defendant is the registered owner of Flat 34B and roof of the said building.  The Plaintiff alleged that the Defendant carried out some unauthorized work in 2002 and some renovation work in 2005 at the Defendant’s premises, causing loss and damage to the Plaintiff.

3.For the purpose of the trial of this case, both parties agree to open up the alleged crack in the ceiling in the Plaintiff’s premises.

4.On 13^th June, the Plaintiff’s solicitors wrote to the Defendant’s solicitors, enclosing a Method Statement (“Method Statement”) for determine the crack on the ceiling of master bedroom and bathroom of the Plaintiff’s premises.  The particulars of the Method Statement are as follows:-

“	Method statement for determining the crack on the ceiling of master bedroom and bathroom of Flat 33B, Villa Vaneto – witnessed by expert witnesses of both parties
	Step One
	1.	Take photographic record of the whole ceiling, especially in those areas where there are signs of cracks, witnessed by expert witness from both sides
	2.	Remove the plaster off in those areas which have cracks by hand tools mutually agreed by expert witness by both sides, and expose the cracks
	3.	Sketch and record the pattern and position of the cracks
	4.	Measure the lengths, widths of the cracks by means of calibrated tapes and crack microscope.  Take photographic records.
	5.	Agree Between both parties on locations to proceed to Step Two
	Step Two
	6.	Deploy cover meter to determine the existence of any rebars and the concrete cover dimensions in the vicinity of the cracks.
	7.	If the results indicate that there are rebars, and concrete cover exist, proceed to (8).
	8.	If the rebar is embedded at the crack position, cut the rebar as agreed by the expert witness of both parties during coring is being sought.
		(For each crack location)
	9.	Prepare a rotary drilling machine with a 50mm diameter diamond drill.
	10.	Set up the core drilling machine at the crack positions
	11.	Check the line cord of the core drilling machine to ensure good insulation and water resistance.
	12.	Press the coring diamond bit against the concrete surface with uniform pressure to approximately 75mm deep.
	13.	Remove the coring machine
	14.	Label the core ID and put the core into a plastic bag
	15.	Inspect the depth of the core, and measure the width and depth of the crack
	16.	Take Photographic records of the core sample”

5.The Plaintiff’s solicitors proposed to appoint Hoklas laboratories to do the cover-meter testing in relation to the cracks in question, because they are independent.  The procedure under Appendix 1 annexed to the Defendant’s summons is substantially the same as the particulars of the Method Statement, save that procedure 8 under Step Two has been altered.

6.In reply to this letter, the Defendant’s solicitors wrote back on 18^th June, 2007, commenting that “regarding Step Two, we are advised that if there is a steel bar along the crack, it is not appropriate to cut the reinforcement bar.  Instead, we propose hacking off the concrete with hard tools for measuring the crack dept.”

7.On 11^th July 2007, the Plaintiff’s solicitors wrote to the Defendant’s solicitors, saying that “To save time and costs, the whole opening up and testing should be done by Professor Tam of the CPS together with his assistant, Dr. Wu, a concrete expert.”  In this letter, the Plaintiff’s solicitors proposed a revised Method Statement for determining the nature of cracks, particularized as follows:-

“	Method statement for determining the crack on the ceiling of master bedroom and bathroom of Flat 33B, Villa Vaneto – witnessed by expert witness of bith parties
	Step One
	1.	Take photographic record of the whole ceiling, especially in those areas where there are signs of cracks, witnessed by expert witness from both sides
	2.	Remove the plaster off in those areas which have cracks by hand tools mutually agreed by expert witness by both sides, and expose the cracks
	3.	Sketch and record the pattern and position of the cracks
	4.	Measure the lengths, widths of the cracks by means of calibrated tapes and crack microscope.  Take photographic records.
	5.	Agree between both parties on locations to proceed to Step Two
	Step Two
	6.	Deploy cover meter to determine the existence of any rebars and the concrete cover dimensions in the vicinity of the cracks.
	7.	If the results indicate that there are rebars, and concrete cover exist, proceed to (7).
	8.	If the rebar is embedded at the crack position, cut the rebar as agreed by the expert witness of both parties during coring is being sought.
		(For each crack location)
	9.	Prepare a rotary drilling machine with a 50mm diameter diamond drill.
	10.	Set up the core drilling machine at the crack positions
	11.	Check the line cord of the core drilling machine to ensure good insulation and water resistance.
	12.	Press the coring diamond bit against the concrete surface with uniform pressure to approximately 75mm deep.
	13.	Remove the coring machine
	14.	Label the core ID and put the core into a plastic bag
	15.	Inspect the depth of the core, and measure the width and depth of the crack
	16.	Take Photographic records of the core sample”

8.On 24^th July, 2007, the Plaintiff’s solicitors wrote to the Defendant’s solicitors, saying:-

“	Professor Tam of the CPS has studied the proposed method statement and has the following views:-
	1.	…………..
	2.	Item 8 of Step 2 is of no use.  The dept of a crack cannot be measured by hard-hacking off the concrete while the crack is so minute and the hacking off activity will damage the integrity of the crack.
	3.	The coring sample obtained from Item 15 of Step 2 is meaningless as the crack would have been damaged during the coring exercise.
	4.	……………”

9.The Method Statement applied for in the present summons is substantially modelled on the Method Statement originally proposed by the Plaintiff’s solicitors, save that it changed Procedure 8 under Step Two.  But the problem with the Procedure 8 proposed by the Defendant’s solicitors is that the hacking off activity will damage the integrity of the crack.  It is sheer common sense that the Plaintiff’s comment in this regard is sound and correct.  That being the case, the Plaintiff is entitled to make improvement to the original Method Statement which is defective.

10.The Defendant has not addressed me on the question as to whether the Plaintiff’s revised Method Statement (annexed to the Plaintiff’s letter dated 24^th July, 2007) is defective or not.  In the premises I must take it that the revised Method Statement is prima facie effective to achieve the purpose it was designed to achieve.  Procedure 8 under Step 2 of the original method statement is defective.  This Method Statement cannot achieve the purpose it was designed to achieve. 

11.I therefore make an order in terms of paragraph 1 of the summons with the substitution of the proposed revised Method Statement, the opening up of cracks and testing to be done on 10^th August, 2007, by Hoklas entity.  I also make an order in terms of the amended paragraph 3 of the summons.  I make no order in respect of paragraph 2 and 4 of the summons.

Costs

12.I make an order nisi, to be made absolute in 14 days’ time, that the costs of this application be costs in the cause.

The Plaintiff : represented by Mr. C. Cook of M/S. Boase, Cohen & Collins, solicitors.

The Defendants : represented by Ms Priscilla Wong, instructed by M/S. Zeke Mok & Co., solicitors.