VIKINGS EQUIPMENT AND SERVICES LTD v. THE INCORPORATED OWNERS OF NICHOLSON TOWER

DCCJ 2986/2022 &

DCCJ3015/2022

(Consolidated)

[2024] HKDC 1861

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2986 OF 2022 AND NO 3015 OF 2022

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BETWEEN

(Action consolidated by Order of Registrar Lui dated 27 September 2022)

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DECISION

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I. INTRODUCTION

1.  This is an appeal, by Notice of Appeal dated 3 September 2024, against Master’s refusal on 29 August 2024 of the plaintiff’s application by way of summons filed on 11 March 2024 (the “Plaintiff’s Summons”) for:-

(1) an order to direct the experts to conduct “spray water test at the external wall/slab of the Plaintiff’s 3 bedrooms and the balcony of the 18/F flat above… within 2 months in accordance with the international standard ASTM E2128-20 Standard Guide for Evaluating Water Leakage of Building Walls and detailed in the Plaintiff’s letter to the Joint Expert Witness dated 19 Feb 2024 para 23”; and

(2) an order that “the defendant shall secure access for the above”.

2.  For convenience, I shall refer to (1) above as the “Plaintiff’s Proposed Test Methods” and (2) above as the “Access Request”.

3.  In the said Notice of Appeal, the plaintiff not only asks the Court to grant the order sought in the summons, but also seeks an additional order that “(3) Testing durations for water tests should recreate leaks that are known to occur; (4) Parties do endeavor within 21 days to meet the joint expert witness for further discussion on all the tests”. Although a hearing of an appeal from Master is a de novo hearing, an appeal is not a fresh application. Mr Wong Hung Ki (“Mr Wong”), representative for the plaintiff acting in person at the hearing[1], submits that relief (3) is just in relation to the Plaintiff’s Proposed Test Method. If that is the case, I will consider the Plaintiff’s Proposed Test Method, as it is, together with the proposed duration in relief (3). However, for any order not in the summons now under appeal before me, the proper way is for the plaintiff to take out another summons with supporting affirmations so that the defendant would have a chance to consider and file opposing affirmations (if it opposes) to explain its stance, for proper argument. Therefore, I would not consider any additional order the plaintiff seeks by way of the Notice of Appeal.

II. BACKGROUND

4.  By mid-2017, upon the defendant’s instructions, China Resources Construction Company Ltd (“China Resources”) completed major renovation works of the common parts of the building in which the plaintiff lived in Flat 1 on 17^th floor (the “Plaintiff’s Premises”), including rendering and re-tiling of the external walls and replacement of drain-pipes. The plaintiff claims that starting from mid-2017, after the said renovation works, water seepage started to occur in the Plaintiff’s Premises. The plaintiff made complaint to the manager Savills Property Management (“Savills”). Certain remedial works were carried out, but water seepage still persisted according to the plaintiff.

5.  In the present consolidated proceedings, the plaintiff avers in §5 of the amended statement of claim that:-

“In Aug-Sept 2017, after completion of external wall re-tiling and drain-pipe replacement by [China Resources], water seepage occurred at the balcony ceiling and areas adjacent to bedroom windows during rainstorm in typhoon. Efflorescence also occurred. Except for water seepage at the balcony ceiling outside perimeter, such problems did not exists before the renovation.”

6.  The plaintiff claims that the defendant, as the incorporated owners of the building, has failed its duty under the Building Management Ordinance (Cap 344). The plaintiff, however, does not specify what caused the water seepage, but in context, the plaintiff’s subject claim can only be that the major renovation works carried out to the common parts caused those common parts to be the source of the water seepage.

7.  On the above, the plaintiff seeks a “mandatory injunction to direct the defendant to investigate and effect due and effective repair to stop and rectify the water seepage and tiling problems at the external wall and slab of the plaintiff’s flat…”

8.  The defendant’s case is that the water seepage was caused by the “window replacement works carried out [by the plaintiff to replace the windows in the Plaintiff’s Premises]”.

III. SUBSTANTIVE ISSUE FOR TRIAL

9.  Therefore, in gist, the substantive issue for trial is what the source of the water seepage was. This is an expert issue.

IV. EXPERT DIRECTIONS

10.  Single joint expert directions were given, and Sr Chan Yuk-ming Raymond of Raymond Chan Surveyors Limited (“RCS”) is appointed the single joint expert. On 12 September 2023, RCS conducted a first initial survey of the Plaintiff’s Premises. Thereafter, RCS requested access to the balcony of Flat 1 on 18^th Floor (the “18/F Flat”), immediately above the Plaintiff’s Premises, for a better view of the external wall of the Plaintiff’s Premises. On 24 October 2023, the defendant managed to obtain access to the 18/F Flat for RCS to conduct a second initial survey.

11.  The parties, however, were unable to agree on the test methods to be set out in the joint instructions letter for RCS. Despite the Court’s further directions for the parties to engage in joint discussion with RCS, while the defendant has all along agreed to the proposal of test methods (“RCS’s Proposal”) endorsed by RCS (other than the dye water ponding tests to be carried out on the 18/F Flat), the plaintiff has not at all, writing quite a number of letters unilaterally to RCS explaining his disagreement and insisting upon his Plaintiff’s Proposed Test Methods for RCS to adopt. The Plaintiff’s Proposed Test Methods is what the plaintiff sought in the Plaintiff’s Summons now before me.

12.  From the said second initial survey on 24 October 2023 until now, it has been more than a year already, going through another rainy season in-between.

V. PLAINTIFF’S DIRECTOR

13.  Mr Wong (who represented the plaintiff at the hearing) is a director of the plaintiff. He made affirmations in support of the Plaintiff’s Summons and represents the plaintiff acting in person. Mr Wong claims himself to be “a member of [the Hong Kong Institute of Engineers] with over 40 years of experience in building industry”, and at the hearing, he said it was 50 yuears. In fact, it is he who has written those letters mentioned in §11 above to RCS.

14.  Even if Mr Wong has such qualifications, he is not an expert witness at all. An expert witness has a paramount duty to the Court but not the parties: see §3 of Code of conduct for expert witnesses (the “Expert Code of Conduct”), Appendix E to the Rules of District Court (Cap 336H) (the “RDC”). Thus, an expert, especially if he a single joint expert, has an overriding duty to assist the Court impartially and independently: see §2 of Code of Conduct. Further, he should not be an advocate for any party to the proceedings: see §4 of the Code of Conduct.

15.  Mr Wong is essentially the plaintiff in the present case. He is a party to the present proceedings. He is not impartial. He is not independent. He has to be an advocate for the plaintiff. He is not, and cannot be, an expert in the present proceedings, even if he has the qualifications he alleges. Indeed, throughout the hearing, he time and again said that he is not an expert.

VI. REASONS FOR PLAINTIFF’S PROPOSED TEST METHODS FROM MR WONG HIMSELF

16.  The reasons for the Plaintiff’s Proposed Test Methods all come from Mr Wong himself, referring to the weather conditions at the relevant time, some professional guidelines or standards and some academics’ or practitioners’ papers about what and how tests should be conducted. These reasons are within the expertise of RCS. It is for the expert to decide what tests to carry out and how: see Cox Kan, Hay Tung Amy & anor v Jenhon International Ltd [2023] HKDC 678 at §24.

17.  Although a party can make submissions on why he thinks his ways of testing are superior to the expert’s, the Court looks at evidence to see if such submissions are well founded. As explained above, Mr Wong is not an expert. Therefore, I see no basis at all to accept any of the reasons put forward by him as prevailing over the single joint expert. A fortiori, I see no basis at all to accept any of Mr Wong’s reasons to order a single joint expert essentially to succumb to the plaintiff’s instructions. In the circumstances, I will not allow the Plaintiff’s Proposed Test Methods.

18.  For the sake of completeness, assuming relief (3) (about the time duration for the test) is part of the Plaintiff’s Proposed Test Method, I would not allow it for the same reason, as part and parcel of the Plaintiff’s Proposed Test Method which I do not allow.

VII. ACCESS REQUEST

19.  Logically, upon my disallowance of the Plaintiff’s Test Methods, the Access Request, being an order against the defendant to secure access to 18/F Flat for the purpose of carrying out the Plaintiff’s Test Methods, should also be disallowed, and so I do.

20.  I only have to say a few words about it because RCS’s testing methods initially involved a water ponding testing (being “dye water ponding tests at the balcony [of the 18/F Flat]”) to be carried out on the balcony of the 18/F Flat, and so the plaintiff’s reliance on Order 29 rule 3 of the RDC and section 40 of the Building Management Ordinance may still be relevant insofar as there is any suggestion that this test (instead of the Plaintiff’s Proposed Test Methods) should be carried out on the balcony of the 18/F Flat.

21.  First, this test was initially proposed because the expert “noted some defects at the balcony ceiling of [the Plaintiff’s Premises] so [he] wish[es] to find out whether 18/F balcony slab is having adequate water proofing capacity”: see RCS’s letter dated 21 February 2024. However, the plaintiff’s action is against the defendant only. This means that in the present action, the plaintiff does not claim that the water seepage came from the 18/F Flat. Therefore, whether the water seepage came from the 18/F Flat is irrelevant to the present action. The action can only relate to common parts.

22.  Thus, any attempt to invoke Order 29 rule 3(1) of the RDC for access to the 18/F should fail. Order 29 rule 3(1) only bites on “the subject matter of the cause or matter”. As explained above, it is only the common parts, but not the 18/F or any part of it or any common part within it, is the subject matter in the present action.

23.  Second, putting aside the purpose of this test being confined to the “water proofing capacity of the 18/F balcony slab”, in the statement of claim, the plaintiff does not refer to or specify any common parts of the 18/F Flat at all. Nor does it aver that as a result of such major works, any or any specified common parts of the 18/F Flat became a source of the water seepage. Nor does it aver that any part of the 18/F Flat has affected any common parts adversely such that the water seepage was caused.

24.  Thus, any attempt to invoke Order 29 rule 3(1) for an order against common parts should fail because the common parts are not “the subject matter of the cause or matter”. Further, any attempt to invoke section 40 of the Building Management Ordinance, which empowers the incorporated owners to enter a flat to inspect, repair, maintain or renew a common part in the flat or any part of the flat that affects common parts adversely, should also fail.

25.  Lastly, insofar as there is any suggestion that this test would be useful to find out whether the 18/F Flat or its balcony slab or the balcony itself was the source of the water seepage, it is irrelevant to the present action against the defendant, which is not responsible for the 18/F Flat. To make use of this test this way would be a fishing expedition only.

26.  For the above three reasons, any attempt to seek an order to secure access to the 18/F Flat for the purpose of carrying out the dye water ponding test initially proposed by the expert would fail.

VIII. CONCLUSION

27.  In the premises, I dismiss the plaintiff’s appeal.

28.  The defendant seeks costs to be taxed on indemnity basis. I agree that the plaintiff’s appeal, being the second time he made the same application without any expert evidence in support, is unreasonable. I therefore summarily assess the costs to be at HK$54,000 (with 10% discount applied as a result of the defendant’s failure to comply with PD 14.3 in terms of the service of the statement of costs)[2], payable forthwith.