SUM WING SUNG v. KWOK WING YAN VIVIAN

DCCJ 1264/2017

[2020] HKDC 1011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1264 OF 2017

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DECISION

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1.  The dispute in this action arose out of the plaintiff’s complaint about water seepage into his property from the defendant’s property above him in the same low-rise residential building. Trial of this case has been fixed to commence on 3 May 2021. Now both sides have placed applications before this court, namely, the defendant’s application for leave to adduce expert evidence and the plaintiff’s application to strike out the supplemental witness statements filed by the defendant.

Background

2.  The plaintiff is the registered owner of the G/F and 1/F of Block 5, Rise Park Villas, No 38 Razer Hill Road, Sai Kung, New Territories (“the Building”).  The defendant is the registered owner of the 2/F (with roof) immediately above the plaintiff’s property.  The plaintiff and his wife have resided in his property since January 2016.  The defendant resides in her property with her parents.  Unless reference to the specific floor is necessary, the properties in question are referred to as the plaintiff’s property and the defendant’s property respectively for the present purpose.

3.  In March 2016, the plaintiff first complained about water seepage into his property, which was said to originate from the defendant’s property.  The parties could not resolve the dispute, which eventually developed into the commencement of the present action in March 2017.  The plaintiff claims for, amongst others, cost of inspection and repair as well as general damages.  Apart from denying the claim, the defendant put forward her counterclaim.

4.  For the present purpose, it is relevant to note that whilst acting in person, the defendant claims that she has been receiving legal advice.  This should be readily apparent from how her pleadings and court documents have been prepared.  The defendant actually put forward a counterclaim for the costs of seeking counsel advice^[1].

5.  On 5 December 2019, the Registrar gave direction for the filing and exchange of witness statements.  He also gave the following directions in respect of expert evidence (“the 5/12/2019 Order”):-

(1)     Leave was given to the plaintiff to adduce expert evidence in respect of: (i) the cause of the water seepage found at the plaintiff’s property; (ii) the repair at the plaintiff’s property necessitated by the water seepage; and (iii) the quantum.

(2)     The plaintiff’s expert in respect of liability and quantum would be limited to one person, namely 侯東就.

(3)     The plaintiff’s expert report should be filed and served by 9 January 2020.

(4)     The defendant elected not to adduce expert evidence.

6.  Pursuant to the 5/12/2019 Order, the plaintiff filed the expert report dated 24 November 2016.  This is indeed the report already referred to in both the plaintiff’s pleading when the action was commenced in 2017 and the witness statement for the plaintiff referred to below.

7.  By May 2020, the parties have filed and served their witness statements.  For the plaintiff, there are the witness statements of the renovation contractor of the plaintiff (“the Contractor”) and the plaintiff’s wife.  For the defendant, there are the witness statements of her parents.

8.  The next case management conference was held on 5 August 2020.  By then, the plaintiff has filed his 2^nd supplemental list of documents on 3 August 2020 and prepared the supplemental witness statement of the plaintiff’s wife dated 31 July 2020.  By the plaintiff’s 2^nd supplemental list of documents, 3 videos taken by the plaintiff were disclosed (“the Videos”).  The supplemental witness statement of the plaintiff’s wife was filed on 5 August 2020.

9.  At the case management conference on 5 August 2020, leave was given to set down the case for trial.  Amongst other directions, the master gave leave to the defendant to file and serve by 30 September 2020 the supplemental or additional witness statement on the facts arising out of the supplemental witness statement of plaintiff’s wife mentioned above (“the 5/8/2020 Order”).

10.  On 8 September 2020, the defendant filed her summons for leave to adduce expert evidence by way of report(s) on or before 30 September 2020 (“the Defendant’s Summons”).

11.  On 29 September 2020, the defendant filed and served the supplemental witness statements of her parents.

12.  On 5 October 2020, the plaintiff filed his summons to strike out the supplemental witness statements of the defendant’s parents mentioned above (“the Plaintiff’s Summons”).

The Defendant’s Summons

13.  The defendant applies for leave to adduce expert evidence, notwithstanding her election not to do so as recorded in the 5/12/2019 Order.  In her affirmation in support, the defendant explained her change of stance.  According to her, she had sought legal advice, which was that she should engage an expert to review the alleged water leakage issue in response to the plaintiff’s 2^nd supplemental list of documents and supplemental witness statement of the plaintiff’s wife mentioned above.

14.  In her submission, the defendant elaborates that 2 of the Videos recorded water dripping from the U-shaped drainage pipe at the ceiling of the 1/F of the plaintiff’s property (“the U-Pipe”), and this was the first time the plaintiff, his witness and the plaintiff’s expert provided any visual evidence of water dripping from the U-Pipe.  The defendant argues that it would be prejudicial to deny her the opportunity to adduce expert evidence to respond to that.

15.  As such, what the defendant wants this court to understand is that the need for expert evidence, and thus the change of her stance, was entirely attributed to matters not revealed or known to her before but only upon the disclosure of the Videos.  The matter in question is the evidence of water dripping from or along the U-Pipe.  Copies of those videos were provided to this court after the hearing, and were also viewed by this court.

16.  In my view, the defendant’s explanation cannot be accepted as it is untrue as a matter of fact.

17.  As mentioned, the plaintiff’s expert report dated 26 November 2016 was actually disclosed in the pleading when the present action was commenced.  The allegations in the pleading in respect of the water seepage were partly based on the findings in the report. By her pleading, the defendant admitted the receipt of the plaintiff’s expert report on 7 December 2016, which set out the findings upon inspection conducted by the plaintiff’s expert on 15 August and 28 September 2016^[2].  The plaintiff’s expert explained in detail the various inspection protocols and tests that were applied during those inspections.

18.  Specifically in respect of the U-Pipe that the defendant now refers to for the purpose of her application, it was stated in the plaintiff’s expert report that during the inspection on 15 August 2016, the expert visually observed, amongst other things, water dripping along the body of the U-Pipe, which connects with the drainage pipe from the above unit (ie the defendant’s property)^[3]. A plastic bucket was seen placed beneath the U-Pipe to contain the dripping water.  Photographs were taken of that^[4]. Amongst others, tissue paper was placed beneath the U-Pipe to show that it was soaked by the water dripping.  During the same inspection, the plaintiff’s expert also collected sample of the dripping water collected beneath the U-Pipe for water quality test^[5], the result of which was also set out in the report.

19.  The defendant was aware of all these, including the written and photographic evidence of water dripping from or along the U-Pipe, when she elected not to adduce expert evidence.  Hence the 5/12/2019 Order mentioned above.  To say that the Videos constitute visual evidence of water dripping from the U-Pipe from the plaintiff or his expert for the very first time is factually wrong.

20.  The defendant simply changed her mind, which she chose to attribute to the plaintiff’s recent disclosure of the Videos.  This is further corroborated by the expert report that she seeks to adduce now.  The defendant’s expert report comes in 2 parts.  As abundantly apparent from the reports themselves, the second part came about as a supplementary report to specifically comment on the Videos.  If what the defendant says in explaining the need for expert evidence now, though not before, is accepted, the expert evidence to be adduced should be this so-called supplementary report.

21.  Indeed in expressing his comment in this supplementary report, the defendant’s expert made reference to the content of the first report, such references apparently were confined to 2 paragraphs^[6].  The fact is that the first report was prepared by the defendant’s expert solely for the purpose of commenting on the plaintiff’s expert report.  As mentioned, the defendant had the plaintiff’s expert report since early December 2017, and confirmed to the court her election not to adduce expert evidence in December 2019.  Now by dating both reports of the defendant’s expert the same date of 18 September 2020, the defendant seeks to introduce all these expert evidence under the guise of surprise or change of stance brought about by the recently disclosed evidence, ie the Videos.

22.  It is unfortunate that the defendant chose not to be forthcoming in her present application.  Maintaining such stance of hers in her submission, the defendant, in my view, ought not to be allowed to succeed on her application.  It will be inappropriate exercise of the case management power of the court to accede to her application in these circumstances.

23.  Considering the content of the defendant’s expert reports, one will note that the defendants’ proposed expert sought to question the findings and opinion in the plaintiff’s expert report in the absence of independent inspection or test.  The assistance that such opinion could offer to the court is doubtful.

24.  Leave to adduce expert evidence by the defendant is therefore refused.

The Plaintiff’s Summons

25.  By the 5/8/2020 Order, the defendant was given leave to file supplemental or additional witness statements on the facts arising out of the supplemental witness statement of the plaintiff’s wife dated 31 July 2020.

26.  The body of that supplemental witness statement of the plaintiff’s wife consists of less than 2 pages, and the main content boils down to a single paragraph^[7].  All that she stated in that paragraph are these matters: The Videos were taken by the plaintiff using his cell phone.  They were taken inside the room on the 1/F of the plaintiff’s property affected by the water seepage.  The first clip was taken on 1 October 2016 in the presence of the plaintiff’s wife.  The other two clips were taken on 2 October 2016 in the presence of the plaintiff’s wife, the defendant’s parents, Mr Tsang and another staff of the management office as well as Mr Sit, the contractor of the plaintiff (and the other witness for the plaintiff).  The plaintiff’s wife confirmed that the Videos have not been edited.

27.  In court, the solicitor for the plaintiff fairly accepted that the 5/8/2020 Order ought to be understood to include leave to the defendant to adduce further oral evidence in respect of what was recorded in the Videos on those occasions.

28.  By their supplemental witness statements filed on 29 September 2020, the defendant’s parents referred to the alleged verbal threat and abuse by the plaintiff and his wife immediately after the joint inspection on the 1/F on 28 September 2016 and on some other occasions.  The defendant’s father further stated the following matters:-

(1)     Referring to the floor plans of the Building^[8], he points out that there was extensive renovation work, including material changes to the drainage system, to the master bathroom on the 1/F.

(2)     Mr Sit, the plaintiff’s contractor, had a track record of carrying out the renovation work for the plaintiff without care, for which the defendant’s mother has complained by way of emails in May 2015^[9].

(3)     Additional observation or opinion is given in respect of the wardrobe and the common pipe chamber on the 1/F mentioned in §6 of his witness statement.

(4)     Additional observation and opinion is given in respect of the condition of the master bathroom on the 2/F and the U-pipe inside the upper compartment of the wardrobe on the 1/F mentioned in §3 of his witness statement with reference to the photographs of the master bathroom on the 2/F taken on 30 September 2016^[10].

(5)     Additional observation is given in respect of the repair of the vertical drainage pipe mentioned in §11 of his witness statement with reference to the photographs taken on the 1/F^[11].

(6)     Additional observation is given in respect of the reinstatement carried out at the bathroom on the 1/F mentioned in §13 of his witness statement.

(7)     Additional evidence in respect of the additional replacement work to a section of the vertical water supply pipe on the 1/F carried out by the defendant at the request of the plaintiff and his contractor, which was unrelated to the work mentioned in §11 of his witness statement, with reference to the photograph of the relevant pipe^[12].

29.  Whilst the parents of the defendant stated in their supplemental witness statements that they were merely filed for the purpose of responding to the supplemental witness statement of the plaintiff’s wife filed on 5 August 2020, it must be clear that they were not.  They go far beyond that.

30.  Nor do the supplemental witness statements of the defendant’s parents address the facts arising out of the supplemental witness statement of the plaintiff’s wife.  None of them specifically turns on what happened on 1 or 2 October 2016 when the Videos were taken.

31.  The defendant may not file the supplemental witness statements of her parents under the guise of the leave of the court under the 5/8/2020 Order.  If the defendant wants to adduce the evidence as per her parents’ supplemental witness statements, it would have been for her to apply for additional leave to do so.  In the circumstances, the plaintiff is entitled to an order in terms of its summons.

The defendant’s oral application

32.  During the hearing, the defendant asked to stand down for reconsideration.  When the hearing resumed, she confirmed that she would drop her opposition to the plaintiff’s application to strike out the further witness statements of her parents.  Instead, she would apply for fresh leave to rely on those statements.  I entertained the oral application of the defendant provided that she would file a summons to that effect within 2 days.  The plaintiff’s solicitor did not object to that approach.

33.  As a matter of an application for leave to rely on the further witness statements of the defendant’s parents, the solicitor for the plaintiff confined her opposition to (i) the supplemental witness statement of the defendant’s mother and (ii) a few paragraphs (ie 6, 12 and 13) of the supplemental witness statement of the defendant’s father.  Notwithstanding that, the defendant did not back down an inch, arguing that the matters mentioned in those opposed parts are relevant.

34.  It is clear to me those parts of those statements are objectionable for being irrelevant or merely tending to embarrass the plaintiff or his witness.

35.  First, the allegations and evidence in relation to the other renovation work carried out by the plaintiff’s contractor as well as the defendant’s complaint in 2015 are irrelevant.  They are not probative of how the work in connection with the drainage has actually been carried out by the contractor.  Such allegations and evidence serve no relevant purpose, not even general credibility, but the only purpose of embarrassment to the plaintiff and his witness.

36.  The common allegations and evidence of the defendant’s parents as to the alleged verbal threat and abuse by the plaintiff and his wife after 28 September 2016 and on other occasions are irrelevant.  Even if established, they merely tend to embarrass than to prove any relevant component of liability in the present case.  Whilst the defendant somehow claims by way of counterclaim for general damages, the actual cause of action for such relief is unclear in her pleading.  There is no cause for claim for any relevant tort to which such allegations and evidence could clink on.

Conclusion and order

37.  The Defendant’s Summons is dismissed.

38.  The Plaintiff’s Summons was heard in conjunction with the defendant’s oral application.  In respect of them, the supplemental witness statement of the defendant’s mother (Tam Yuk Ying) filed on 29 September 2019 is struck out and expunged.  Retrospective leave is given to the defendant to file the supplemental statement of the defendant’s father (Kwok Chi Fai), which was already filed on 29 September 2019, save that §§6, 12 and 13 thereof are expunged.

39.  I give leave to the plaintiff to file and serve within 21 days^[13] further witness statement(s), which shall be confined to responding to the matters raised in the supplemental witness statement of the defendant’s father mentioned above.

40.  All the circumstances point to the liability of the defendant for the costs of and occasioned by these applications.  In respect of each of these applications, I make a nisi order that the defendant do pay the plaintiff such costs, to be taxed, if not agreed.  In the absence of application within 14 days to vary, the nisi costs order shall become absolute without further order of the court.