YEUNG YIK CHUN v. WONG LAI MING AND ANOTHER

DCCJ 2004/2019

[2023] HKDC 1160

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2004 OF 2019

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DECISION

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APPLICATION

1.  This is the Defendants’ application for leave to appeal against my judgment handed down after trial on 30 August 2023 (“Judgment”).

2.  The background and my analysis of this water seepage case was set out in the Judgment which I should not repeat here. I shall adopt the abbreviations contained in the Judgment.

3.  In the Judgment, I made an order (“August Order”), other than interest and costs, in essence, that the Defendants do: -

(1)  carry out remedial works, at their own costs, to rectify the causes of the water seepage at the Upper Premises, namely, the freshwater facilities and the waterproofing layer of the bathroom of the Upper Premises, and, the waterproofing layer of the balcony of the Upper premises;

(2)  pay the plaintiff for costs of remedial works, loss of rental incomes as well as damages for distress, discomfort and inconvenience.

4.  By the Consent Order dated 22 September 2023, the costs order of the August Order was varied (the August Order as varied by the Consent Order, the “Judgment Order”).

5.  By the Summons filed on 25 September 2023 (“Leave Summons”), the Defendants now seek leave to appeal for the purpose of setting aside the Judgment Order and obtaining a substitute order that the Plaintiff’s claim be dismissed and the Defendants’ costs of this action and this leave application be paid by the Plaintiff.

LEGAL PRINCIPLES

6.  Leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reasons in the interest of justice that the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.

7.  Reasonable prospect of success connotes the prospect of success must be reasonable and more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125.

8.  The appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category: China Gold Finance Limited v CIL Holdings Limited (CACV 11/2015, unreported, 27 November 2015).

9.  The appellant court would only reverse a finding of primary fact if it were satisfied that the finding is plainly wrong. If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness: Ting Kwok Keung v Tam Dick Yuen & Ors [2002] 5 HKCFAR 336.

10.  With these principles in mind, I now turn to consider the Defendants’ application.

GROUNDS OF THE INTENDED APPEAL

11.  At the hearing of the Leave Summons, Ms Wong, Counsel for the Defendants, did not pursue all the draft grounds of appeal as set out in the Draft Notice of Appeal. She eventually summarized them into 10 grounds in her skeleton argument in that this Court was said to have erred in: -

(1)  failing to pay regard to the fundamental flaws in Hau’s evidence and opinion;

(2)  making mistakes in findings of facts;

(3)  failing to address the burden of proof;

(4)  failing to give proper regard to the evidence of defects in the external walls;

(5)  failing to give proper weight to the JO Test and the JO’s Contractor Tests (collectively, “JO Tests”);

(6)  failing to assess the reliability to the chemical test conducted by Hau;

(7)  the overall assessment of evidence;

(8)  failing to consider that it was reasonable for the Defendants to rely on JO Tests;

(9)  awarding general damages for inconvenience and discomfort;

(10)  finding of discomfort and distress not supported by evidence.

12.  The draft grounds of appeal are essentially seeking to challenge this Court’s findings of facts. The Defendants actually run the same arguments as advanced at trial. Those arguments were fully considered and rejected at trial.

GROUND 1

13.  Ground 1 is a mis-characterization of Hau’s evidence that the Defendants argued unsuccessfully at trial.

14.  Premise (i) of this ground complains that Hau was wrong in concluding that there was no defects and cracks on the external wall. This is a mis-interpretation of Hau’s report. On a proper reading of Hau’s report, Hau actually expressed that he had observed there were defects on the external walls but assessed them as insignificant in nature (“沒有發現有明顯損毁的情況”) that they could not have caused the significant seepage in question[1].

15.  In any event, this Court did not simply accept Hau’s opinion on its face value. Each and every defect that Wu had identified was examined at great length at trial, cross-referencing to the relevant photos, diagrams, layouts and opinions of the Two Experts. This Court did recognize that there were some defects on the external walls but found them minor, some were even just water marks, which could not have caused the significant seepage in question: §§88-102; 125, 128-134 of the Judgment.

16.  The Defendants’ another complaint that Hau had revised his opinion by stating that further investigation was required in order to find out whether the external wall was a cause of water seepage[2] is unconvincing. Hau’s statements should not be taken out of context.

17.  Hau made such statements during the second round of the expert reports in that he was invited to comment on the effectiveness of the Wall B Repair Work, which was carried out by the Management Office on a without admission of liability basis in May 2020. Those statements were made under his clear declaration that he had not been involved in the Wall B Repair Work and with the very limited information, he actually had difficulty in commenting on such work.

18.  It was only under such confined circumstances that Hau stated that further tests were required for his assessment of the effectiveness of Wall B. Further, Hau’s such statements should be read in the context of his unequivocal opinion that Wall B was in fact unrelated to the seepage in question[3]. I should add that in ruling out Wall B being a possible source of water seepage, this Court considered and weighed all the relevant factors as set out in §§99-110 of the Judgment.

19.  Under Premise (ii) of this ground, Ms Wong contends that the proximity of the Defendants’ bathroom to the Pipe-edge Area did not guarantee a causal relationship between them. She suggests that the water might have seeped vertically from the upper part of the external wall to the Pipe-edge Area instead of running horizontally from the floor slab of the Defendants’ bathroom to the Pipe-edge Area.

20.  Such argument simply ignores the fact that Hau’s opinion on the defective water facilities was a conclusion drawn from a number of factors, including his observation of no significant defects on the external walls and of water seeping from within the external wall at the Pipe-edge Area.

21.  At trial, this Court went through all the photos and the video depicting the condition of the walls and the Pipe-edge Area which were taken at different times in the past few years. No significant defects could be observed at the upper part of the wall above the Pipe-edge Area which could account for such serious water seepage. The source of water of the Pipe-edge Area was identified after taking in account a series of the relevant factors: §§39-44, 51, 54-57, 62, 88-98 of the Judgment.

22.  Under Premises (iii) of this ground, Hau is criticized to have made an erroneous assumption that the thickness of the structure between the floor slab of the Defendants’ bathroom and the Plaintiff’s ceiling was about 110mm without due regard to the presence of the Addition (of 200mm thickness) above the ceiling of the Plaintiff’s bathroom and corridor. On such basis, Ms Wong contends that Hau’s microwave scan at 110mm, 70mm and 30mm from the ceiling of the Plaintiff’s bathroom could not detect the condition of the area beyond the Addition, i.e. the floor slab of the Defendants’ bathroom.

23.  I do not agree. Hau did not make such assumption. It was not his observation that the 110mm depth would be immediately below the Defendants’ floor slabs. Instead, his opinion was based on the pattern and direction of the water molecules as revealed from the Moisture Tests, including scanning over the entire concrete ceiling, which indicated water coming from above direction to below, that is, from the floor slabs of the Defendants’ bathroom to the Plaintiff’s ceiling. He maintained his opinion on addressing the presence of the Addition[4].

24.  Indeed, Ms Wong’s complaint is not supported by Wu. Wu did not opine that the thickness of the Addition alone would render Hau’s opinion unreliable. His criticism focused on his speculation on the possible existence of a horizontal pipe duct in the Addition.

25.  At trial, the arguments relating to the Addition were considered fully by this Court. Ms Wong’s alleged erroneous assumption was not the basis upon which this Court considered and accepted Hau’s evidence. This Court expressly focused on the direction and pattern of the flow of the water according to the moisture contents as indicated in the moisture content checks and tests carried out by the Two Experts, which indicated “deeper” in the concrete and “closer” (not close) to the Upper Premises. All the readings of the moisture content over the entire ceiling were considered: §§42-44, 79-87 of the Judgment.

26.  Under Premise (iv), Ms Wong seeks to argue that the force of gravity would direct water to seep from other rooms to the ceiling of the Plaintiff’s bathroom and corridor due to difference in the ceiling height.

27.  As Mr Wong, Counsel for the Plaintiff, rightly points out, Ms Wong’s suggestion of “reverse direction” of water is purely a speculation not even raised by Wu. In fact, Hau had specifically maintained his opinion that the difference in ceiling height would not have any impact on the direction of the water flow. Even Wu had failed to state why and how the difference in ceiling levels would have logically rendered Hau’s opinion on water path unreliable.

28.  Under Premise (v), Hau is challenged to have failed to establish the correlation between the broken sealant of the balcony door and the effectiveness of the water proofing membrane embedded in the floor slab. His opinion that the waterproofing membrane was damaged is criticized to be a mere conjecture without any evidence in support.

29.  Such argument is unattractive. The sealant of the balcony door of the Upper Premises and its surrounding area were visibly broken and defective as shown in Hau’s report and the photos exhibited thereto[5]. The waterproof protection of them was defeated. Naturally such defects would allow water penetrate from the Upper Premises to the ceiling of the Lower Premises. It was logical for Hau to opine, and for this Court to accept, that the integrity of the waterproofing facilities had been compromised.

30.  Such finding was further corroborated by the degree and pattern of the moisture contents and all the relevant circumstances as examined in §§120-126 of the Judgment. Ms Wong’s argument tends to isolate and play down the impact of the broken sealant and its surrounding area on the whole water proofing facilities. Thus analyzed, ground 1 is unmeritorious.

GROUND 2

31.  Under Ground 2, the Defendants attack this Court’s findings of facts. The first argument stresses that this Court was erred in finding that there was an agreement between the experts that the moisture contents of different areas on the Lower Premises reduced according to their distance from the ceiling of the Plaintiff’s bathroom and adopted such finding as starting point of the analysis.

32.  Such argument is based on a misreading of §33 of the Judgment. The whole §33 should be read together. §33 was strictly to identify the water-affected area, but not the cause of water seepage, which was examined in the following paragraphs starting from §34. §33(a) was premised on the preamble that generally the two experts had no serious disagreement on the affected areas of water seepage in the Lower Premises as illustrated in their reports which can be broadly classified as very high moisture content being detected at the ceiling and walls of the Plaintiff’s bathroom, of the corridor and of the kitchen.

33.  The second part of §33(a) that the moisture content of the other affected areas reduced according to their distance from the bathroom rested on my recognition that very high moisture contents were detected at the ceiling and walls of the Plaintiff’s bathroom, which were connected to the corridor and adjacent to the kitchen as elaborated in the first part.

34.  Further, the finding of such affected area is well justified with the many moisture content surveys as produced by the Two Experts. The two “Mark Up Plans Showing The Moisture Content Distribution On Affected Areas” (“Mark Up Plans”), which were based on the data respectively provided by Hau and Wu, are just two of the many examples[6]. As admitted by Ms Wong, the Two Experts actually reached consensus that the affected areas were wet and their respective moisture contents surveys were not challenged.

35.  It is not right to say that this Court’s analysis based on the alleged starting point as Ms Wong seeks to suggest. Other than the second part of §33(a) which I have dealt with above, Ms Wong is unable to refer to any other part of the Judgment to actually demonstrate how this Court has wrongfully based my analysis on her alleged starting point.

36.  The second argument[7] targets at §121 of the Judgment. It is said that my fact-findings regarding Affected Area B is unsupported with evidence. Such argument is unmeritorious. Not only that it is not an accurate summary of my findings in §121, it also ignores the fact that the sealant of the balcony door was destroyed (“露台趟門外框底膠邊已爛”) and Hau’s opinion that this indicated the waterproofing facilities of the balcony door and surrounding flooring had been compromised (“顯示出一樓露台門及周邊地台防水功能欠妥善”), causing water to permeate into the lower floor. The damage of the sealant of the balcony door and the surrounding flooring was evidenced by photos[8]. Such evidence was unchallenged by Wu.

37.  In the premises, there is solid basis for this Court to make the findings in §121. I should add that Hau’s visual inspection only formed part of the factors of this Court’s analysis. In reaching the conclusion regarding Affected Area B, this Court has taken into account all the relevant factors as condensed in §§120-135. Ground 2 is unsubstantiated.

GROUND 3

38.  Ground 3 is without merit. The trite legal principle that the burden of proof lies on the Plaintiff and it is not for the Defendants to find out the correct source of the water leakage or to prove that its origins did not come from their property was clearly set out in §26 of the Judgment.

39.  The examination of Hau’s evidence regarding Affected Area A and Affected Area B was summarized respectively in §§38-57 and §§120-126. In the course of the examination, this Court was in mind the burden of proof lied on the Plaintiff as repeated in §§37, 119, 139.

40.  In further analyzing Hau’s evidence in the specific areas, this Court also tested his evidence against Wu’s evidence, bearing in mind that Wu had no burden to identify the water source as set out in §140.

41.  This Court’s brief statements of acceptance of Hau’s evidence and rejection of Wu’s evidence in the conclusion paragraphs as in §119 and §138 should not be over-emphasized without due regard to the lines of reasoning set out in the Judgment. It is unhelpful to single out a particular sentence out of context and regard it as an indication of wrongfully shifting the burden of proof onto Wu.

42.  This Court did consider each possible source suggested by the Parties and was satisfied on a balance of probabilities that they could not have been a possible source of the seepage in question before ruling them out. The conclusion was made after a full analysis of all the relevant evidence before me.

GROUND 4

43.  Ground 4 is another attempt to re-argue the same set of arguments regarding the external wall the Defendants put forward at trial. The reasons for my rulings on them were set out in §§88-110, 125, 128-130, 133-134 of the Judgment.

44.  Under this ground, Ms Wong repeats her criticism on Hau’s ignorance of the cracks on the external walls and this Court’s error in finding those cracks were minor. Such argument was discussed in the paragraphs aforesaid, which I should not repeat here.

45.  Ms Wong also contends that this Court erred in not giving any weight to the complaint made by the Plaintiff’s father about water seepage at the external wall outside Room B. The matter was indeed scrutinized in §108 of the Judgment.

46.  As rightly pointed out by Mr Wong, the only evidence about the complaint made by the Plaintiff’s father was merely an email sent by the Management Office and the office later carried out the works on a without admission basis. There is not any slightest information about what precisely the father had complained of, the basis of such complaint, the validity of such basis, the reason of the Management Office carrying out the works on a without admission basis. Absent any material evidence, the mere fact that a complaint was made and works were done on a without admission liability basis could not constitute a solid proof of the external wall being the source of water seepage to the Affected AB Area.

47.  Ms Wong’s third argument complains this Court to have overemphasized the proximity of the Pipe-edge Area to the floor slab level of the Defendants’ bathroom and erred in rejecting Wu’s evidence that water dripping at the Pipe-edge Area gave rise to the possibility that the external wall was a cause of water seepage.

48.  Such argument is problematic. Wu never made such suggestion. Ms Wong only seeks support from a bare and rhetorical question posed by Wu[9]. I share the view of Mr Wong. While Hau has, in his 1^st Report and the Joint Report, repeatedly referred to the Pipe-edge Area as indicative of defectiveness of the water facilities and waterproofing facilities of the Upper Premises, Wu did not actually dispute such opinion. Instead, he evasively and incorrectly claimed that “no information” had been provided to him and he then just posed the bare and rhetorical question without giving an actual reply.

49.  The fact that Wu chose not to comment on Hau’s evidence regarding the Pipe-edge Area despite his persistent challenges over almost all aspects of Hau’s evidence was observed in §62 of the Judgment. This Court had solid basis to take into account the proximity of water source as one of the many factors in determining the source of water seepage.

50.  Ms Wong’s next argument on the location of the moisture content is sided on piecemeal information without giving full consideration of all the figures and data, not to mention the pattern and direction of the flow of the water.

51.  Hau’s opinion on the distribution of the moisture content of the Affected AB Area were well supported with data and information collected from his visual inspections, electrical moisture meter checks, infrared thermographic scans, microwave scans as set out in his report.

52.  For example, the Mark Up Plans[10] demonstrated that the very high moisture content areas were far from the external walls. The bathroom was at the center of the very high moisture content area and was close to the Three Dripping Areas. There is simply no evidence to indicate that there were other water facilities closer to the high moisture area of Affected Area A than those of the bathroom which could account for the serious water seepage.

53.  The analysis on the extent and seriousness of water seepage of the Affected Area B and the cause of it was set out in §§120-137, in that Wu’s challenges were also considered, which I should not repeat here. Ground 4 is unjustified.

GROUNDS 5 AND 8

54.  Grounds 5 and 8 can be dealt with together. Ground 5 repeats the argument on the weight to be attached to the JO Tests which was considered and rejected in §§75 to 78 of the Judgment. With the evidence before me that was limited to the letters of the JO, which only very briefly named the tests being carried out[11] with specific conclusions that the source of water seepage could not be identified, the JO Tests could not pose any serious challenge to this Court’s conclusion drawn from assessing all evidence in the round. In particular, the JO did not actually rule out the freshwater facilities and waterproofing facilities of the Defendants’ bathroom being the cause of the water seepage of the Lower Premises.

55.  Further, water test result is subject to many variables. Absent any information as to how the JO Tests were carried out, those single round tests were non-conclusive and insignificant. The Plaintiff was not barred from proving his case with Hau’s evidence: Lau May Ming Mamie v Zhao Wei [2022] HKCFI 322 §24.

56.  Thus analyzed, the Defendants’ reliance on the JO Tests to dispute the element of knowledge was misplaced. In §§158-162 of the Judgment, the reasons which founded the knowledge of the Defendants were expounded.

57.  Further, Mr Wong stressed that at the Pre-Trial Review hearing, the Defendants had confirmed to the Court and to the Plaintiff that if the source of water seepage is proven to be the Upper Premises, liability would be established, and, it was upon such confirmation that the directions for trial were given and the trial was prepared. Such propositions were recorded in §22 of the Judgment and was not disputed by the Defendants. Strictly, the Defendants were not entitled to retreat from their confirmation and sought to re-open the issue of knowledge. I agree.

58.  Grounds 5 and 8 fall away.

GROUND 6

59.  Ground 6 is a repetition of the Defendants’ unsuccessful argument regarding the Water Sample Tests at trial, which was examined in §§54-56; 66-70 of the Judgment and I should not repeat here.

60.  In this application, Ms Wong’s reliance on the case of Sun Cheong Construction Co Ltd v The Incorporated Owners of King Fu, Ho Fu, Ki Fu & Ka Fu Building [2019] 6 HKC 547 is misplaced. That was a case in the Construction List on the carrying out of hammer tapping test, which required examination of specialist skills and knowledge. It was on such peculiar facts that the process, the methodology deployed and the collation of the results were under scrutiny. It did not lay down any general principles as suggested by Ms Wong.

61.  In the present case, the use of Water Sample Tests was confined to finding out the seeping water was not salty water and the seeping water in the bathroom, kitchen and the Pipe-edge Area shared the same source. The test was simple without complications in methodology or examination of detailed chemical components. Hau’s interpretation was straightforward that did not require the expertise of a chemist. Indeed, the acceptance of the use of test papers by experts to detect chloride in eliminating salty water facilities as a source of seepage is not uncommon in court: Lam Chin Pang v Wan Sui Ying [2018] HKDC 1169 §99.

62.  I should not repeat how Hau had carried out the test which was examined at trial. Even Wu was unable to precisely point to any possible unreliability thereof. In any event, the Water Sample Tests was just one of the many factors on which Hau based his opinion and this Court has considered as elaborated in §69 of the Judgment. Ground 6 is unfounded.

GROUND 7

63.  Ground 7 is general without substance and is bound to fail. Suffice it to say that my findings in the Judgment are the result of a close examination of all the relevant evidence before me. Apart from examining Hau’s evidence in details, I also tested his evidence against Wu’s evidence. The combined effect of all the evidence was also weighted.

GROUNDS 9 AND 10

64.  Grounds 9 and 10 can be dealt with together. Essentially it is argued that general damages conventionally known as inconvenience, discomfort, distress and loss of amenity must not be awarded to a non-occupied owner of the property in an action of tort and contract caused by water leakage. I do not agree.

65.  The elementary principle on award of damages is to put, as far as money can, the plaintiff in the same position that he would have been in but for the wrongful acts of the defendant. The measure of damages under nuisance is in terms of loss of amenities focusing on the actual impact of the nuisance. This may be measured by a reduction in the rental value, an award for discomfort and inconvenience, or a mixture of both. The same applies in the assessment of general damages for loss of amenity in breach of covenant: Moorjani v Durban Estates Ltd [2016] 1 WLR 2265 at §19.

66.  I am slow to accept that full occupation of the premises, being an occupied owner, is a strict prerequisite for award of general damages for distress, discomfort, inconvenience and loss of amenity. Each case depends on its own facts. Such claim depends on the circumstances and is subject to proof: Loke Yuen Jean Tak Alice v Wong Kit Ying & Anor [2019] HKCFI 1895 at §§68-73.

67.  In the case of Lam Po Chun v Leung Wai Chun (DCCJ 1085/2003, unreported, 16 February 2004), HH Judge L. Chan (as he then was) awarded the claimant damages on discomfort and inconvenience for her time and efforts in going back to the premises for cleaning the premises, sorting things out, inspecting the conditions of the premises and arranging redecoration work, etc. Another line of decided cases in awarding non-occupied owners with this head of damages were set out in §166 of the Judgment.

68.  In the present case, the water seepage was very extensive and serious which lasted for more than 4 years. The Plaintiff has been unceasingly troubled with his property being burdened with serious water drippings, falling of flakes of plasters and concretes, deterioration of extensive cracks and exposures of rebar. A large part of the Lower Premises was damaged. The condition had worsened over time since October 2018.

69.  The Plaintiff, being the sole owner of the Lower Premises, was in full possession and control of it upon recovery of it from his tenant since 8 October 2018. He is undoubtedly the one who has been suffering from attending, dealing with and making efforts in tidying up and rectifying the severely damaged property. His time and efforts spent on frequent returning to the Lower Premises dealing with the damaged property and the distress, annoyance and inconvenience caused to him were demonstrated in his witness statements, correspondences and photos.

70.  Containers were used to collect the dripping waters, fallen plasters and concretes were tidied up. The Plaintiff also accounted for his frequent returns to the Lower Premises to attend the damage of it in that photos and video were taken as well as his distress caused by the damaged property. There is no evidence to indicate some other persons had handled all these instead of the Plaintiff.

71.  In view of the long period of time, the serious nature of the water seepage as well as the series of the Plaintiff’s acts to deal with the damaged property over the years, I am persuaded that the Plaintiff was not just suffered from mental distress. He actually suffered from loss flowing from frequently returning to the Lower Premises to handle the damaged property, which involved considerable amount of efforts, time and distress. There was solid evidence to support his claim for damages of distress, discomfort, annoyance and loss of amenity.

72.  The damages originated from the damaged property caused by the water seepage and exacerbated by the Defendants’ refusal to rectify the water seepage for years. Such damages were peculiar to this persistent serious water seepage case which were over and in addition to the loss of rental income, which alone was not sufficient to compensate the Plaintiff. The law of damages is sufficiently flexible to do justice in this serious case. I believe HK$30,000 would be within the range of an appropriate award.

73.  The case of Sun Crown Trading Limited v Holyrood Ltd (CACV 64/2012, unreported, 11 October 2013) is distinguishable on the facts. It concerned claims for breach of agreement. The commercial development of flats in question was not fit for human habitation and not rentable. It is in that context that the court held that the total loss of rental income until the time it is tenanted represented the whole of the loss of amenity value. The case was not concerned with, and thus did not explore, any loss of amenity, distress, discomfort and annoyance on top and over the extent which the loss of rental income cannot compensate.

CONCLUSION

74.  In the Judgment, I have carefully weighted and assessed Hau’s evidence and tested his evidence against Wu’s evidence. I considered the evidence on each side separately as well as the combined effects of all evidence together, bearing in mind the burden of proof is on the Plaintiff. In seeking leave to appeal, the Defendants fail to demonstrate how this Court’s finding is wrong, such that an appellate court would intervene.

75.  In this application, I have considered all the arguments put forward by the Defendants. The fact that I may not have referred exhaustively to all of them in this decision is because those arguments would not have any material bearing on my reasoning above and I should not burden this decision with them.

76.  Having considered the submissions of both parties, I come to the conclusion that none of the grounds advanced by the Defendants has any merit and I do not believe that their intended appeal enjoys any reasonable prospect of success. There is no other reason why leave to appeal should be granted in the interest of justice. I refuse to grant leave to appeal. The Leave Summons is dismissed.

COSTS

77.  There is no reason why costs should not follow the event. I make a costs order nisi that the Defendants shall pay the Plaintiff’s costs of the Leave Summons, including the hearing, with certificate for counsel, to be taxed if not agreed.

78.  The costs order nisi shall become absolute in the absence of application to vary by way of Summons within 14 days hereof.