Texco Hook and Eye Tape Ltd v. Chan Wai Ming and Another
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HCA 2480/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2480 OF 2009 ____________ BETWEEN
____________ Before: Hon Chung J in Chambers Date of Hearing: 18 November 2010 Date of Decision: 18 November 2010 Date of Handing Down Reasons for Decision: 2 December 2010 ________________________________ REASONS FOR DECISION ________________________________ Introduction 1.The plaintiff applied for a variation of the consent order dated 23 June 2010. I dismissed it at the end of the hearing on 18 November 2010. Below are the reasons for the decision. Background 2.The plaintiff is the registered owner and occupier of a shop unit located on the Ground Floor of a multi-storey building in Shamshuipo (“the Shop”). The 2nd defendant (“D2”) is the incorporated owners of that building. 3.The 1st defendant (“D1”) is the registered owner and occupier of the unit on the floor immediately above the Shop (“D1’s unit”). D1’s unit consists of a residential unit and part of the uncovered flat roof. 4.The plaintiff complains there has been water leakage into the Shop and blames D1 and/or D2 for causing it, or for permitting or suffering it. This action was commenced in December 2009 as a result. 5.Both defendants deny liability. The Consent Order 6.Further to commencing this action, the plaintiff took out an application in February 2010 seeking an order in effect that D1 should stop causing, permitting or suffering the water leakage into the Shop. 7.At the end of hearing on 23 June 2010, the plaintiff and D1 sensibly consented to an order which in brief provided for a time-schedule for:-
(“the consent order”) 8.The part of the consent order concerning para. 7(b) above is relevant to this application. It reads:-
9.The relevant legal principles relating to orders or judgments obtained as a result of the litigating parties’ consent are:-
10.The learned authors of Chitty on Contracts (1999) 28th Ed. wrote:-
11.The parties have not referred to any direct authority on whether the same legal principles should apply to the variation(s) of consent orders and judgments. There is no good reason to think that the principles should be different. 12.The parties’ skeleton submissions for use at the hearing of 23 June 2010 show their respective stance at the time. The plaintiff’s case is that the interim relief was needed and there was no arguable defence. On the other hand, D1 opposed the application on the ground final relief which intruded into D1’s property rights (which was what the plaintiff’s summons sought in effect) should not be granted unless a strong prima facie case had been shown, and the court should feel a high degree of assurance the plaintiff would succeed at trial before granting the relief. According to D1, this has not been shown. 13.It is worth noting the scope of the consent order is quite different from the relief sought by the plaintiff’s summons. The parties have not disclosed the rationale behind the consent order. But its terms are consistent with the spirit of the Civil Justice Reform and appear to aim at promoting a speedy (or at least speedier) resolution of the dispute; a “give-and-take” approach can also be inferred from those terms. 14.In these circumstances, I conclude that the consent order is contractual in nature. At the very least, it evidences the agreement reached between the parties as per the terms set out therein. The legal principles referred to in para. 9 and 10 above are thus applicable. The Application to Vary 15.In essence, the plaintiff seeks to vary the consent order to enable its expert to conduct a microwave test inside D1’s unit. 16.Since the date of the consent order, the following events relating to para. 7(b) above took place:-
Put simply, in a colour water test, a colour dye is applied to the suspected source of water leakage to check if (and if so where) the dye stain can be seen at the water leakage site. 17.Because D1’s expert was appointed on 30 June 2010, the 21-day period provided for in the consent order (see para. 8 and 16(1) above) expired by 22 July 2010. 18.The colour water test was conducted about 18 days after the said appointment and about 3 days before the end of the 21-day period. The plaintiff has not given any satisfactory explanation why the said test was not conducted earlier. 19.This application must have been prompted by the following comments of the plaintiff’s report:-
The phrase “our findings” must be referring to his opinion that failure of the waterproofing materials on the flat roof of D1’s unit was expected to be the cause of the extensive water seepage on the ceiling of the Shop. 20.The plaintiff’s expert explains that the microwave test would be conducted using a device called a “Moist 2000 Microwave Moisture Measuring Device”. Briefly, the device emits microwave which is directed at the test site (such as a concrete slab suspected of water leakage). The microwave penetrates the test site and measures the permittivity. The difference between the permittivity of water and the permittivity of the surrounding solid (such as concrete) will be detected and measured. After the data have been collected, they will be mapped with a software and the result will be depicted in the form of a diagram with different colour highlights. (See exhibit LHTN-1 and appendix H to the draft expert report for details) 21.The plaintiff’s expert claims the variation is necessary because:-
22.D1’s expert disputes para. 21(a) above. According to his report:-
23.I leave aside the question whether D1’s expert is correct in asserting it was both experts’ conscious decision that only a water dye test, and no further test, was needed. But I find the claim of the plaintiff’s expert to the effect the microwave test can show the cause of the water leakage and the test need to be performed in D1’s unit to lack sufficient foundation. 24.As regards the claim that the test can establish the cause of the water leakage (para. 21(b) above), the plaintiff’s expert deposed:-
However, the claim that the test can show the path and source of the water leakage does not appear to be supported by the materials exhibited (pp. 579 to 596, hearing bundle (2) (“the exhibited materials”)). 25.As described in appendix H, the plaintiff’s draft report, a microwave test will result in a diagram showing the water content density pattern of the test site:-
That kind of diagram can be seen at pp. 580 to 581 and 584 to 586, the exhibited materials. 26.Two of the diagrams are illustrative of the conclusion reached in para. 23 above. 27.The one on p. 585, the exhibited materials, shows the result of a microwave test performed at a vertical concrete slab under the sill of a bay window typically found in residential units in Hong Kong. The darker patches indicate the areas of higher water contents (the patterns of which, in brief, look random). There is no explanation (whether in the affirmation or the exhibited materials) as to how one should interpret the apparently random patterns. Bearing in mind the probable source(s) of water leakage at such structures is/are (i) the aluminium window frame, (ii) the installation points (that is, the edges) of the window frame and/or (iii) the bay window concrete slab itself, the patterns do not appear to provide a readily understandable reason as to which of (i) to (iii) above was/were the source(s) of water leakage. 28.The diagram on p. 586, the exhibited materials, depicts the vertical concrete wall to the left of an aluminium window frame of a bay window. The darkest patch in the diagram (which probably is the area of densest water content) appears to match, in the related photograph, with the lowest part of that vertical wall, just above the left side of the bay window’s horizontal sill. Similarly, bearing in mind the probable source(s) of water leakage (see (i) to (iii) in para. 27 above), the microwave test result does not shed light on the source of the water leakage (as opposed to the spot of highest water contents); that is, whether the source of the water leakage was at the lower left-hand corner of the bay window, or at some location(s) higher up on the window frame itself (or along the joint of the window frame with the vertical wall). 29.The claim that the microwave test has to be performed in D1’s unit (para. 21(c) above) does not seem to be supported by sufficient basis either. According to the plaintiff’s expert, concrete slabs forming the floor are typically 150mm thick, while the microwave testing device has a penetration capability of 110mm (that is, a penetration capability of about 70% of the said thickness). The exhibited materials appear to assert a penetration depth of up to 300mm (p. 591 thereof). As stated above, the Shop is located beneath D1’s unit. The plaintiff’s expert has not explained why the microwave test cannot be performed from inside the Shop. D1 confirmed during the hearing he had no objection to the last-mentioned course of action. 30.Hong Kong Civil Procedure 2011 said this about expert evidence:-
Further:-
Conclusion 31.By reason of the above matters, I was (and am) not satisfied the plaintiff has established:-
Costs Order 32.The parties agree costs of this application should follow the event. There will accordingly be a costs order that those costs be paid by the plaintiff to D1. 33.For the purpose of summary assessment of costs (to which the parties also indicated no objection at the hearing):-
Mr Mark R C Sutherland, instructed by Messrs David Ravenscroft & Co., for the Plaintiff Mr Tony T F Ng, instructed by Messrs S K Wong & Co., for the 1st Defendant The 2nd Defendant acts in person and excused from court attendance | |||||||||||||||||