J & T INTERNATIONAL LTD v. ZHANG CHENG AND OTHERS

DCMP 4564/2025

[2026] HKDC 220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4564 OF 2025

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BETWEEN

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REASONS FOR DECISION

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1.  This is a water seepage case affecting the Shop on 1/F together with part of the staircase landing on G/F and the staircase leading from G/F to 1/F, Westview Height, No. 163 Belcher’s Street, Hong Kong (the “Affected Premises”).

2.  The Plaintiff (“P”) is the registered owner of the Affected Premises. It has commissioned 2 (provisional) expert reports from its expert Mr. Siu to identify possible sources of the water seepage. These possible sources include Flats 2A, 2B and 2C (which are units above the Affected Premises) and also the neighbouring building known as Kam Tong Building across the movement joint. Mr. Siu’s reports are provisional because he was unable to have access to all the relevant parts and units.

3.  By Originating Summons issued on 13 August 2025, P essentially asks for pre-action discovery to gain access to Flats 2A, 2B, 2C and the relevant parts of Kam Tong Building such that its expert may carry out further tests to identify the exact source(s) of seepage, pursuant to section 47D of the District Court Ordinance (Cap.336) and Order 29 r.7A of the Rules of the District Court (Cap.336H).

4.  The 1^st to 4^th Defendants (“D1” to “D4” respectively) are the owners of Flats 2A, 2B and 2C. The 5^th Defendant (“D5”) is the incorporate owners of Westview Height (it is also possible that the common part of Westview Height is a source of seepage), and the 6^th Defendant (“D6”) is the incorporate owners of Kam Tong Building.

5.  All parties attended the hearing on 2 February 2026 except D3 and D4. I am satisfied that they have been properly notified of the hearing. D3 had previously written to the Court indicating his stance on the Originating Summons and asking for his attendance to be excused. As to D4, he was in correspondence (including without prejudice correspondence) with P’s solicitors. I therefore proceeded with the hearing in their absence.

6.  Upon hearing the parties at the hearing, I made the following orders:

(i) D6 shall inform P in writing within 7 days from the date of the order the identity of its expert who would take part in the test(s);

(ii) An order that P and its expert be granted access to the parts and units which P’s expert identified to be potential sources of seepage in his 2 expert reports dated 10 March 2025 and 5 August 2025 in order to carry out necessary and appropriate test(s) to identify the precise source(s) of seepage, and to take photographs and notes in relation thereto;

(iii) Any expert(s) engaged by D1-D5 may attend and observe the test(s) conducted at Westview Height as they consider appropriate and to take photographs and notes in relation thereto;

(iv) Any expert engaged by D6 may attend and observe the test(s) conducted at Kam Tong Building as well as the movement joint as he considers appropriate and to take photographs and notes in relation thereto;

(v) P and its expert shall liaise with the experts engaged by D1-D6 in good time regarding the testing methodology and the time for the test(s);

(vi) For the avoidance of doubt, the costs of engaging the experts shall not form part of the costs of compliance with this order. Each party shall bear its/their own costs of engaging the experts;

(vii) P shall bear all the Defendants’ reasonable costs of compliance with this order, to be taxed if not agreed;

(viii) Subject to paragraph (vii) above, there shall be no order as to costs of this action between P and D3, D4, D5 and D6;

(ix) P shall bear D1 and D2’s costs of this action on an indemnity basis with certificate for counsel, summarily assessed at HK$35,000;

(x) There be liberty to apply.

7.  These are my brief reasons for making that order.

Access should be granted in relation to Kam Tong Building

8.  All of D1-D5 indicated that they are content to allow P and its expert to have access to their respective parts and units. The only party substantively opposing access is D6. Mr. Chan for D6 submits that Kam Tong Building is structurally separate from Westview Height. Further, P’s expert says that rainwater seeped through the external wall of Westview Height and this (Mr. Chan submits) must mean that Westview Height’s own external wall must have been problematic or defective for this to happen. The thrust of Mr. Chan’s submission is that it was impossible for water to have seeped from Kam Tong Building to the Affected Premises, and it is unnecessary for P and its expert to gain access to Kam Tong Building.

9.  I am unable to accept Mr. Chan’s submission. It is inconsistent with the only piece of expert opinion before me (albeit provisional), being that of P’s expert who has identified Kam Tong Building as a possible source of seepage, and there is no material before me to conclude that P’s expert opinion is plainly and obviously incorrect. Once it is accepted that Kam Tong Building is a possible source of seepage at least on a prima facie basis, I see no reason to deny access to P and its expert such that conclusive tests may be conducted to ascertain whether it is in fact a source of seepage. If Mr. Chan is indeed correct, after tests have been conducted by P’s expert, the test result would be negative.

Engagement and attendance of the Defendants’ own expert(s)

10.  In the correspondences between the parties there was a debate as to whether a single joint expert should be engaged (as compared to the position where parties would engage their own experts), the methodology that should be adopted for the test(s) and who should be responsible for the costs of the expert(s).

11.  At the hearing I explained to the parties my provisional view that none of these issues are really engaged in these proceedings, the substantive relief of which is only to allow P and its expert to have access such that test(s) may be conducted. It is not a matter that I require expert’s assistance (whether as a single joint expert or otherwise). This is fundamentally different from an action commenced for substantive relief for the seepage (there may well be one in due course depending on the tests results) where the trial judge seized of the matter will have to decide how best he may be assisted by experts in determining the source(s) of the seepage and attributing liability if there are multiple sources. It is only in that action that the issue of the desirability of whether to engage a single joint expert arises (such that, for example, there is no utility for parties to file their expert reports in this action).

12.  The parties expressed no strong objection on my preliminary view. On that premise, it is not for the Court (still less the Defendants) to dictate or decide who P might decide to engage to conduct the upcoming tests. Take an extreme example: even if P decides to engage someone who has no qualification and experience whatsoever to conduct the upcoming tests, there is still no reason for anyone to interfere; P would do so at its own peril because in future substantive proceedings the “lay opinion” (if adduced) may well turn out to be unreliable or incorrect, and P might have sued the wrong defendant. The same logic applies to the methodology proposed to be adopted by P’s expert.

13.  At the same time, the Court is not concerned whether the Defendants (or any of them) intend to engage their own expert(s) to oversee, observe or supervise the upcoming tests to be conducted by P’s expert. If the Defendants consider it desirable it is their own choice; my decision in these proceedings is only to allow access to be given to P and its nominated expert (in crude terms, someone will open the door). The reliability or credibility of P’s expert opinion is not an issue for these proceedings (again in crude terms, whether the person opening the door is an expert or a domestic helper does not matter).

14.  It follows from these points that if any of the Defendants decide to engage their own expert(s) to observe the upcoming tests, it is purely a matter of personal choice and they would have to pay from their own pockets. I made it clear that if any of the Defendants would engage an expert to observe the tests, those costs should not be regarded as costs of complying with this order.

Costs of compliance and costs of the action

15.  I ordered P to bear each of the Defendants’ reasonable costs of complying with the order, to be taxed if not agreed. After all, they have been compelled to give access. I further note the default position under Order 62 r.3(12) of the Rules of the District Court (Cap.336H).

16.  As to the costs of the action, the starting point under Order 62 r.3(12) is for P to pay costs of and incidental to the application “unless the Court otherwise directs”. D3 (in his letter to the Court), D5 and D6 made it clear that they do not ask for costs. D4 in his without prejudice letter to P’s solicitors also stated implicitly that he is not seeking costs against P. In these circumstances, I made no order as to costs of this action amongst these parties.

17.  As for D1 and D2, I see no exceptional circumstances to depart from the starting point. Given that there was only 1 solicitors’ letter sent by D1 and D2 and they did not file any affirmation in opposition, having regard to the costs claimed in the Statement of Costs, I summarily assessed those costs (on an indemnity basis and covering counsel’s attendance) at HK$35,000.