Tech Focus Ltd v. Austria Property Management Ltd and Another
Read the full judgment text of CACV 130/2003 on BabelCite. This Court of Appeal judgment was delivered on 22 October 2003 before Rogers VP, Le Pichon JA.
Civil appeal – striking out of defence – Order 34 rule 5 of the Rules of the District Court – default judgment – water leakage from roof into top-floor flat – plaintiff Tech Focus Limited, defendants Austria Property Management Limited and The Incorporated Owners of Yee Fung Building – claim originally brought in Small Claims Tribunal and transferred to District Court – directions given for exchange of expert reports – defendants failed to file response to plaintiff's Pre-Trial Review notice under O.34 r.3 – plaintiff applied for judgment under O.34 r.5 – judge below struck out defence and granted injunction with interlocutory judgment for damages to be assessed – defendants appealed – whether judgment should be set aside – whether defendants' delay sufficient to justify striking out – whether injunction properly framed – Court of Appeal held that defendants' delay was not so serious as to justify driving them from the judgment seat – judge below was unaware that defendants had on 31 March 2003 requested inspection of the property in order to prepare their expert report, which request plaintiff had declined for no good reason – defendants' expert report raised genuine factual issues as to cause of the leak, including possible involvement of illegal structures on the premises – these issues required determination before the appropriate remedy could be decided – appeal allowed – judgment below set aside and defence restored – form of injunction also noted to be problematic: though framed as a prohibitory injunction, it was in substance a mandatory injunction and lacked the precision required of mandatory injunctions – costs order of the court below left undisturbed because defendants would in any event have been seeking an adjournment and would have had to pay the costs of the hearing.
Legal issues: Whether default judgment and striking out of defence under O.34 r.5 RDC should be set aside on appeal · Form and precision of the injunction granted below
Outcome: Appeal allowed; judgment entered below set aside; defence restored; costs order of the court below left undisturbed.
Cited by 2 cases
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CACV000130/2003 CACV130/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 130 OF 2003 (ON APPEAL FROM DCCJ NO. 5287 OF 2002) ____________________
____________________ Coram: Hon Rogers VP and Le Pichon JA in Court Date of Hearing: 22 October 2003 Date of Judgment: 22 October 2003 __________________________ J U D G M E N T __________________________ Hon Rogers VP: 1.This is an appeal from a decision of his Honour Judge Muttrie given on 24 April this year, in which the judge gave judgment for the plaintiff and made an order in these terms:
Then there was interlocutory judgment for damages to be assessed. 2.I would say at once that the form of the injunction raises problems on the face of it. Although it is framed in terms of being a prohibitory injunction, it is in fact a mandatory injunction to prevent water leakage. It is very important when mandatory injunctions are framed that they are framed in precise terms so that everybody, including in particular the defendant, must know exactly what he must do and what steps he must take. In this case, all the defendant is told is that he has to stop water leakage. It may be - and it seems to have been - that the judge below was of the view that the water leakage was caused solely by a pipe and that the defendants had to take steps to prevent that water leakage. Be that as it may, things have turned out slightly differently. 3.The claim in this case was first brought in the Small Claims Tribunal on 8 April 2002. It was a claim in respect of water leakage. It was said that water was leaking from the roof of a building into the plaintiff's flat which is the top floor of the particular building. A claim was made against the incorporated owners and the property management company. It was transferred to the District Court on 6 August and a statement of claim was filed by the plaintiff on 21 October 2002. The defendants did not concede liability and a defence was filed in November of 2002. 4.On 6 December, Master Yu gave directions as to the further conduct of the case. One of the directions was that the parties should file with the Court and mutually exchange experts' reports as to the liability on or before 17 January 2003. Our attention has been drawn to correspondence which soon followed that. There was a letter of 9 December from the plaintiff's former solicitors in which they indicated that their client was prepared to allow the defendants' qualified agent to attend a joint inspection on 14 December, which was a Saturday. That offer was apparently ignored and never taken up. 5.The matter then arose again on 13 January 2003 when there was apparently a telephone call from the plaintiff's present solicitors who are a different firm, to the defendants' solicitors, which was followed up with a letter on the following day in which inspection was offered either on 4 or 5 February. The defendants' solicitors replied that they would prefer 5 February when they would attend with their client's expert. However, it is agreed that the defendants' expert did not attend, but the representatives of the management company did attend. 6.There were one or two interlocutory matters which were dealt with in the intervening time, including the request for better lists of documents from the defendants. On 28 March 2003, the plaintiff's solicitors served a Notice of Application for Pre-Trial Review under Order 34 r.3 of the Rules of the District Court. This included a checklist from the plaintiff showing the steps which had been taken and needed to be taken in relation to the action. The defendant was required to respond to that within 14 days. 7.We have then been shown today other correspondence. This correspondence is, to my mind, important. It was not shown to the judge below when he was considering the plaintiff's application which is the subject of this appeal. There is a letter from the defendants' solicitors dated 31 March 2003:
8.The response to that was short and brief from the plaintiffs' solicitors:
9.What followed thereafter on 15 April was the plaintiff's application for judgment in default of the defendants' solicitors filing their response to the notice. That response should have been filed four days earlier. That prompted two things on behalf of the defendants. On 16 April the defendants applied for a seven-day extension from 26 April to serve their Order 34 r.5 response. On 17 April, the following day, the defendants issued a summons for inspection of the property. 10.The judge below took a robust attitude. In many respects he may well have been justified in coming to the conclusion that the defendants had not done all they could to proceed with the action as quickly as possible. However, as I have already indicated, he was unaware at that time that the defendants, on 31 March, had sought inspection which would have taken place, possibly, on 11 April and that that had been declined for really no good reason at all. The judge had before him the plaintiff's own survey report and, from that, it would appear that he took the view that it was a simple question of a leak from the pipe which was causing the damage. 11.It seems from the expert's report, which we have seen, that there are questions to be decided as to what is in fact causing the leak to the plaintiff's premises. It may well be the illegal structures which are undoubtedly on the premises that are causing some or all of the difficulties. 12.Before us, Mr Acton-Bond, on behalf of the defendants, has argued strongly that the defendants' conduct was not contumelious and that the responsibility for any dilatory action on behalf of the defendants' solicitors should not be visited on the defendants. 13.I take a fairly simple view of this case. It does seem that there was some delay on the defendants' part but, in my view, it was by no means so serious that the defendants deserve to be driven from the judgment seat. The judge was not aware that the defendants had tried to gain access to the property which would have been necessary for them in order to be able to tell the court what needed to be done in the action. That was, to my mind, a very material matter. I cannot also leave out of the equation the fact that the defendants' report now shows that there are serious matters to be decided by the court as to what is in fact causing this leak. Until that is decided, the question of what must be done to cure the leak cannot be resolved. 12. In those circumstances I have no hesitation in saying that, in my view, the judgment must be set aside. In doing so I would not set aside the order of the judge below in relation to costs, simply because the defendants would have been seeking an adjournment in any event and would therefore have had to pay the costs of the hearing on 24 April in any event. I would therefore set aside the judgment below, which would mean that the defence is restored, but leave the order for costs unaffected. Hon Le Pichon JA: 13.I agree.
Representation: Mr Kenneth Y F Wong, instructed by Messrs Wong, Hui & Co., for the Plaintiff/Respondent Mr Jonathan Acton-Bond, instructed by Messrs Simon Ho & Co., for the 1st and 2nd Defendants/Appellants |
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