LI CHING HAR AND ANOTHER v. WONG SUK KIT

DCCJ 4566/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4566 OF 2014

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DECISION

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1.  This is a water seepage case. The plaintiffs are the owners of the premises known as Flat A1 on the 13^th Floor, Kin Lee Building (“the Building”), Nos 138-146 Jaffe Road, Hong Kong. The defendant is the owner of Flat A1 on the 14^th Floor of the Building. The plaintiffs claim that since around 2010, water has been continuously seeping from the floor slab of the defendant’s premises to the ceiling of the bathroom of the plaintiffs’ premises. The defendant denies both liability and quantum.

2.  Like other water seepage cases, the court has given directions to the parties concerning expert evidence to be adduced at trial in this case.  Today, there are 2 summonses before me:-

(a)   the plaintiffs’ summons filed on 28 July 2017 for an order that unless the defendant do give access to the plaintiffs’ expert to enter the defendant’s premises within 14 days for the purpose of carrying out tests at the areas which, in the opinion of the plaintiffs’ expert, are likely to be the source of leakage to the plaintiffs’ premises, the defendant be debarred from adducing expert evidence at trial; and

(b)   the defendant’s summons filed on 15 August 2017 for leave to appoint Mr Cheng Yan Kee as the defendant’s expert in place of Mr Stewart S T Wong to conduct a joint inspection and prepare a joint expert report together with the plaintiffs’ expert thereafter.

Background

3.  I would first set out the procedural history concerning expert evidence.

4.  On 8 July 2016, leave was given to the parties to adduce expert evidence on liability and quantum.  As set out in the order, the plaintiffs’ expert would be Mr Jacob Tsang and the defendant’s expert would be Mr Stewart S T Wong.  The parties have to exchange their respectively expert reports within 21 days.

5.  On 25 August 2016, time for the parties to exchange their respective expert reports was extended to 19 September 2016.

6.  On 24 January 2017, upon the plaintiffs’ application, the court made an unless order requiring the defendant to exchange with the plaintiffs their respective expert reports by 4 pm on 27 March 2017, otherwise the defendant would be debarred from adducing expert evidence at trial and the plaintiffs would file and serve their solo expert report.

7.  On 21 June 2017, the defendant filed a notice of change of solicitors.

8.  The plaintiffs have filed an affidavit in support of their summons, in which the correspondence passing between the parties’ solicitors is produced.  From those correspondence, it can be seen:-

(a)   Since 18 February 2017, there has been discussion between the plaintiffs’ solicitors and the defendant’s then solicitors concerning the inspection of the defendant’s premises by the plaintiffs’ expert.

(b)   On 1 June 2017, the defendant’s then solicitors wrote to the plaintiffs’ solicitors and said the defendant would be available in the afternoon on 30 June 2017 for the plaintiffs’ expert to carry out a water ponding test at the defendant’s premises.  On 6 June 2017, the plaintiffs’ solicitors replied and said that the plaintiffs’ expert and the plaintiffs would go to the defendant’s premises to carry out the water ponding test at 1pm on 30 June 2017.

(c)   On 29 June 2017, the solicitors now representing the defendant wrote to the plaintiff’s solicitors and said that they had just been instructed to take up the case.  The defendant’s solicitors said:-

“In view of the volumes of materials we need to review and appointing a new expert to conduct the water ponding test, we would be grateful if you can postpone the water ponding test scheduled on 30 June 2017. We will contact you to arrange the water ponding test as soon as possible.”

(d)   On 30 June 2017, the plaintiffs’ solicitors replied:-

“We refer to your letter yesterday, which was sent to us last night. Whilst our clients appreciate the recent change of solicitors of this case by your client, your client and her expert are well aware of the appointment to carry out the water ponding tests, which is scheduled at 1pm today. The appointment was arranged almost a month ago. As a matter of fact, both our clients and their expert have reserved the whole afternoon for the parties’ expert to conduct the test. We do not see how a change of legal representatives of this case will affect the carrying out of the water ponding tests by the parties’ experts. In any event, your client’s last-minute cancellation of the appointment is oppressive. Your client’s request to reschedule the test is totally unacceptable and is hereby rejected by our clients.”

9.  The plaintiffs’ expert was unable to enter the defendant’s premises to carry out the water ponding test on 30 June 2017.  The defendant’s solicitors have not given another time to the plaintiffs for carrying out the water ponding test in the defendant’s premises.

The defendant’s summons

10.  At the beginning of this hearing, Mr Chung, solicitor the defendant, seeks leave to withdraw the defendant’s summons.  I give leave to the defendant to withdraw that summons, with costs to be paid to the plaintiff forthwith.  The parties have agreed that the amount of those costs be HK$1,000.

The plaintiffs’ summons

11.  The defendant has no objection to the unless order proposed by the plaintiffs in the plaintiffs’ summons.  I would give that unless order to the plaintiffs.

12.  Mr Law, counsel for the plaintiffs, seek costs of the plaintiffs’ summons on indemnity basis, with a certificate for counsel.  Mr Chung for the defendant submits that costs of that summons should be in the cause.

13.  In my view, the plaintiffs’ application is triggered by the unreasonable obstruction by the defendant.  As a result, it would be appropriate to order the defendant to pay the costs of the plaintiffs’ summons on indemnity basis.  See Town Planning Board v Society for Protection of the Habour Ltd (No 2) (2004) 7 HKCFAR 114, [16] – [18].

14.  I note that the defendant has not complied with the order made on 24 January 2017.  However, after 27 March 2017 (the deadline stipulated in the order made on 24 January 2017), the parties are still negotiating matters concerning the expert evidence to be adduced by the parties. In the circumstances, if the defendant would comply with the order made by me as a result the plaintiffs’ summons, I would allow the defendant to adduce expert evidence at trial.

Disposition

15.  I give leave to the defendant to withdraw the defendant’s summons with costs of HK$1,000 to the plaintiffs, to be paid forthwith.

16.  I make the following order on the plaintiffs’ summons:-

(a) unless the defendant do give access to the plaintiffs’ expert enter the defendant’s premises at Flat A1 on 14^th Floor, Kin Lee Building, Nos 138-146 Jaffe Road, Hong Kong on or before 1 September 2017 for the purpose of carrying out tests at the areas which, in the opinion of the plaintiffs’ expert, are likely to be the source of leakage to the plaintiffs’ premises at Flat A1 on 13^th Floor, Kin Lee Building, Nos.138-146 Jaffe Road, Hong Kong, the defendant be debarred from adducing expert evidence at trial and the plaintiffs’ expert shall file and serve his solo expert report on or before 15 September 2017;

(b) if the defendant has complied with (a) above, the parties shall exchange their respective expert reports on or before 15 September 2017, the experts shall have without prejudice meeting(s) on or before 29 September 2017, and the plaintiff shall lodge with the court a joint expert report on or before 13 October 2017;

(c) there be liberty to apply; and

(d) costs of the plaintiffs’ summons be to the plaintiffs on indemnity basis, with a certificate for counsel, to be paid forthwith.

17.  I have summarily assessed the costs of the plaintiffs’ summons.  Those costs be assessed at HK$20,000.

18.  I thank Mr Law and Mr Chung for the assistance provided to the court.