CHINA FAIR LAND (QINGDAO) LTD v. LO SUM SUM

DCCJ 1383/2014

[2021] HKDC 646

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1383 OF 2014

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DECISION

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THE PLAINTIFF’S APPLICATION

1.  By summons filed on 17 July 2020, the plaintiff (“the Summons”), relying on Order 45 rule 8 and Order 29 Rule 1 of the Rules of the District Court (“RDC”), applied, among other things, for the following order:

“The Defendant shall carry out all necessary repairing works at the defective waterproof membrane of the floor slab and shower slab (including the surrounding walls) and its related drainage of master bathroom and guest bathroom at Flat F, 26/F., Block 6, City Garden, No.233 Electric Road, Hong Kong within 28 days to the satisfaction of the Plaintiff’s expert with all costs of repairing works, expert fees in all necessary inspections, tests and preparation of the expert reports solely borne by the Defendant.”

THE BACKGROUND

2.  Before I deal with the applications, it is necessary to set out the procedural background of the present action.  It will be seen that once such background is known, the plaintiff’s applications may be disposed of very quickly.

3.  This is a water leakage case.

4.  The plaintiff is the owner of Flat F, 25/F., Block 6, City Garden, No.233 Electric Road, Hong Kong (“the plaintiff’s Premises”).  The defendant is the owner of Flat F on 26^th Floor of the same building (“the defendant’s Premises”).

5.  On 11 April 2014, the plaintiff filed the Writ of Summons herein and claimed against the defendant for, among other things, the following reliefs:

“(a) The declaration that the Defendant has caused and/or permitted to be caused and is causing and/or is permitting to be caused the (acts and omissions causing) damage to the Plaintiff’s Premises as particularized in paragraphs 9, 11, 15, 18, 19 and 37 [of the Statement of Claim];

(b) An order to direct the Defendant to forthwith carry out such repair or remedial works to stop or prevent any further water seepage and/or penetration of water from the Defendant’s Premises into the Plaintiff’s Premises;

(c) Damages to be assessed pursuant to paragraph 30 [of the Statement of Claim].

6.  Parties reached settlement on the first day of the trial on 1 March 2016[1], and as a result a Tomlin Order was made by the trial judge (“the original Trial Judge”).  In the Schedule of the said Tomlin Order, it was stipulated, among other things, that the parties shall engage their respective experts to carry out colour water ponding test at the defendant’s Premises on or before 1 May 2016, and the parties shall “procure a signed report by the experts confirming that the test has revealed no water leakage from [the defendant’s Premises] to [the plaintiff’s Premises]” within 28 days after the test was completed (by way of an inspection which would take place 7 days after the colour water was applied).

7.  Although it was not spelt out expressly in the Schedule of the said Tomlin Order, it appears that there was an understanding between the parties that the defendant would carry out repair work at the defendant’s Premises before the colour water ponding test was done.  According to the defendant’s Affirmation filed on 28 October 2020, such work had indeed been done.  However, while colour ponding test did reveal that there was no further water seepage, infrared scan and electrical conductivity sensing test showed that the master bathroom and the guest bathroom of plaintiff’s Premises were still suffering from water seepage problem, even though the experts could not agree on the source of the water: Ms Rosanna Lau (the plaintiff’s expert) opined that water was still seeping down from the defendant’s Premises to the plaintiff’s Premises, but on the other hand, Mr Andrew Kung (the defendant’s expert) could not tell the exact source of the water[2].

8.  Despite the opinion of the defendant’s expert, the defendant’s solicitors, by letter dated 29 September 2016, agreed to the plaintiff’s proposal (which was made by letter dated 22 September 2016), that, among other things, the defendant shall, on or before 22 November 2016:

(1)  “Complete all necessary remedial works to [the defendant’s Premises] the application of effective waterproofing membrane therein thereafter (“the Works”)”; and

(2)  “Produce to the Plaintiff a signed report by Ms. Lau Shan La [Rosanna] confirming that the Works have been carried out, the Works had been completed to the satisfaction of Ms. Lau and confirming that no water seepage from [the defendant’s Premises] to [the plaintiff’s Premises] after obtaining various results from the necessary tests to be carried out as she desires”[3].

9.  On 14 November 2016, the defendant’s solicitors wrote to Ms Rosanna Lau, the plaintiff’s expert, and gave her notice about the completion of renovation work.  The defendant’s solicitors further invited Ms Lau to carry out necessary tests so as to confirm that the water seepage problem had been solved.

10.  4 days later, on 18 November 2016, the defendant’s solicitors wrote to the plaintiff’s solicitors.  This letter reads:

“…We are instructed to, and we hereby do, writ (sic) to inform you that our client admits liability for your client’s claim in the above actions (sic) leaving the damages to be assessed by the Court.”

11.  On 28 November 2016, parties filed a consent summons and asked for the following order: “Judgment on admission be entered against the Defendant for damages to be assessed”.  The consent summons was passed to the original Trial Judge for disposal.  The learned Judge decided to fix a hearing to deal with the consent summons rather than making an order in terms on paper.  The hearing was eventually fixed to be heard on 27 February 2017.

12.  On 20 December 2016, the defendant’s solicitors wrote to the plaintiff’s solicitors further.  It reads:

“…Regarding the water test conducted on 23 November 2016, our client’s contractor informed us that no water seepage was found at the ceiling of your client’s premises.

We are instructed that our client’s contractor has completed the renovation work of the subject 2 toilets on 14 December 2016, we have called and informed Mr. Vincent Chan, assistant to the jointly appointed expert Mr. Lau (sic), the same.  We are now in the course of waiting for Mr. Chan and/or Ms. Lau’s proposed date(s) of conducting further 2 inspections on our respective clients’ premises…”

13.  On 22 February 2017, parties’ solicitors wrote a joint letter to the court.  In the said letter, they set out the background of the case as follows:

“1. A Tomlin Order had been granted by the Court on 1 March 2016. By the Order, the Defendant had to duly repair and confirm no water seepage from the Defendant’s Premises to the Plaintiff’s Premises by a signed report by the experts;

2. The Defendant did not produce the signed report to confirm no water seepage from the Defendant’s Premises within prescribed time;

3. On 1 November 2016, the Defendant changed the legal representative and Notice of Change of Solicitors was filed and served on the same date.

4. In November 2016, the Plaintiff was informed that the Defendant had carried out some repairing works;

5. Since the Defendant did not comply with the Tomlin Order and there was a dispute on quantum of damages, both parties agreed to take out a Consent Summons on 28 November 2016 seeking an order that:-

5.1 Leave be granted to lift the stay of proceedings and the proceedings herein be restored;

5.2 Judgment on admissions be entered against the Defendant for damages to be assessed; and

5.3 Costs of this application be in favour of the Plaintiff.

6. A jointly appointed expert was then engaged by both parties to carry out further inspections on 23 January 2017 and 10 February 2017 to confirm if there is any water seepage coming from the Defendant’s Premises; and

7. Parties have just been informed by the jointly appointed expert that the outcome of the jointly appointed expert report could only be completed on or after 9 March 2017 (“the Report”)”

14.  The joint letter dated 22 February 2017 then continued:

“We believe that the outcome of the Report or whether there is still water seepage coming from the Defendant’s Premises to the Plaintiff’s Premises is the fundamental issue to be raised by the Court during the hearing on 27 February 2017 for considering the terms of the Consent Summons.

In the circumstances, to assist the Court and to save costs and time, the parties hereby pray for the hearing on 27 February 2017 be adjourned to a date fixed by the Court in consultation of Counsel’s diary, in any event no earlier than 9 March 2017…”

15.  The hearing was then re-fixed to be heard on 16 May 2017.

16.  On 8 March 2017, Ms Rosanna Lau issued her expert report, in which she concluded that “there is sign and evidence to indicate that water seepage was still found on the ceiling and pipe ducts of master bathroom, guest bathroom and corridor of the [plaintiff’s Premises]”, and that the water was coming from the defective drainage of the master bathroom and the guest bathroom of the [defendant’s Premises] respectively.[4]

17.  On 16 May 2017, the original Trial Judge made the following orders:

“1. Leave be granted to lift the stay of proceedings and the proceedings herein be restored;

2. Judgment on liability be entered against the Defendant;

3. Leave to the parties to file and serve the supplementary expert report by jointly appointed expert Ms Lau Shan La within 14 days from the date hereof;

4. Leave to the Plaintiff to file and serve the Amended Statement of Claim on the issue of damages within 28 days from the date hereof;

5. Leave to the Defendant to file and serve Amended Defence limited to the amendments made in the Amended Statement of Claim within 28 days thereafter;

6. Leave to the Plaintiff to file and serve Amended Reply, if any, within 28 days thereafter;

7. Leave to the parties to file and serve supplementary list of documents within 14 days thereafter and there be inspections 7 days thereafter;

8. Leave to the parties to file and serve their respective supplemental witness statement on the issue of damages within 56 days thereafter;

9. Costs of today’s hearing be reserved; and

10. The Consent Summons filed on 28 November 2016 be withdrawn.”

18.  Pausing here, it is necessary for me to make a few observations:

(1)  It is clear that by virtue of the order dated 16 May 2017, judgment on liability had already been entered against the defendant (“the Judgment on Liability”).  In other words, what remained to be resolved was the amount of damages to be awarded.  Indeed, this tallied with the original intention of the parties as expressed by the term of the consent summons filed on 28 November 2016[5].

(2)  While it had not been expressly stated in the order, it cannot be disputed (and the defendant does not seek to dispute[6]) that the court in effect had made an order in terms of, among other things, relief (b) as pleaded in the Statement of Claim (see paragraph 5(b) above). 

(3)  By reason of the above, it appears that parties were given leave to amend their pleadings purely for the purpose of assessment of damages.  In my view, it would have been better if the parties were directed to file and serve “Statement of Damages” and “Answer to Statement of Damages” respectively rather than “Amended Statement of Claim” and “Amended Defence” to avoid confusion.   In fact, the plaintiff had indeed amended the terms of the declaration sought under relief (1) of the Statement of Claim slightly.  This is entirely inappropriate. 

19.  On 28 June 2019, parties filed a consent summons and sought a number of expert directions which may be summarised as follows:

(1)  Leave be granted for the parties to appoint their respective experts on liability and quantum;

(2)  An inspection at both the plaintiff’s Premises and the defendant’s Premises be conducted by the parties’ respective experts within 28 days for the purpose of finding out whether there was still any water seepage problem, and if so, the source of such seepage;

(3)  “If source of seepage from drainage pipes in master bathroom and/or guest bathroom of the defendant’s Premises to the plaintiff’s Premises as referred to in paragraph 1 is identified”[7], the experts shall (i) further identify the damage (if any) caused to the plaintiff’s Premises; (ii) further identify the necessary rectification works required to be done in respect of such damage caused (if any) since March 2017; and (iii) estimate the repair costs;

(4)  Standard directions on the exchange of expert reports, without prejudice meeting between the experts and the lodging of a joint expert report.

20.  A Master subsequently approved the consent summons and made an order in terms thereof on 3 July 2019.

21.  With greatest respect to the learned Master, the consent summons should not have been approved as it was, because no expert directions on liability should have been given, given the fact that judgment on liability had already been entered.

22.  A joint expert report dated 3 February 2020 was subsequently prepared pursuant to the said order of the learned Master.  While the experts agreed that the plaintiff’s Premises were still affected by water seepage problem, they could not agree on the extent of such a problem nor the source of the water.

23.  As the plaintiff maintained that the defendant had failed to comply with the order made pursuant to the Judgment on Liability, it filed the Summons on 17 July 2020 and sought the following order:

“The Defendant shall carry out all necessary repairing works at the defective waterproof membrane of the floor slab and shower slab (including the surrounding walls) and its related drainage of master bathroom and guest bathroom at Flat F, 26/F., Block 6, City Garden, No.233 Electric Road, Hong Kong within 28 days to the satisfaction of the Plaintiff’s expert with all costs of repairing works, expert fees in all necessary inspections, tests and preparation of the expert reports solely borne by the Defendant.” (the emphasis is mine)

DISCUSSION

Order 45 rule 8 of the RDC

24.  Mr Wong for the plaintiff submitted that this application made pursuant to Order 45 rule 8 of the RDC is necessary for the enforcement of the Judgment on Liability.

25.  Order 45 rule 8 of the RDC reads:

“If a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.” (emphasis added)

26.  It can be seen that Order 45 rule 8 of the RDC only empowers the court to order someone other than the disobedient party to do the required act, but at the expense of the disobedient party.  This rule does not empower the court to order the disobedient party to do the act. 

27.  Indeed, if judgment had already been entered, why is it necessary to make another order of similar effect?

28.  In support of this application, Mr Wong for the plaintiff had referred this court to The Incorporated Owners of Champion Court v Pang Ping Fan Peter & Another (HCMP 359/2011, unreported, 27 April 2011) and Ever International Investment Holdings Limited v Lee Wah (DCCJ 886/2014, unreported, 1 February 2016).  Suffice for me to point out that neither of these authorities concerns any application for the disobedient party to do any act.  Hence, these cases do not assist the plaintiff.

29.  In his reply submissions, Mr Wong submitted that the court may appoint a contractor to be nominated by the plaintiff and/or the defendant to carry out the rectification work “so as to tackle the defendant’s literal and technical objection to the application of O.45, r.8”[8].  With respect, Mr Wong is not permitted to depart from the terms of the Summons.  If the contractor is going to be appointed by the plaintiff, then it would be taken as if it is the plaintiff which is doing the act.  This is not what the plaintiff is applying for.  On the other hand, if the contractor is going to be appointed by the defendant, then it would be taken as if it is the defendant who is doing the work, and such an order is not covered by Order 45 rule 8 as explained.

30.  Furthermore, the drafting of the Summons is also problematic in that it is prayed that the repair work stipulated thereunder has to be done “to the satisfaction of the plaintiff’s expert”.  There is no such requirement pleaded in relief (b) of the Statement of Claim (which, as aforesaid, is treated as an order made by the court on 16 May 2017).  The defendant’s obligation should only be limited to that which is ordered by the court.  There is no reason why an additional requirement should be permitted to be inserted at this stage.

31.  In my view, the plaintiff’s application made pursuant to Order 45 rule 8 is totally misconceived and should be dismissed.

Order 29 rule 1 of the RDC

32.  In the event the plaintiff’s application made under Order 45 rule 8 of the RDC failed (which it did), Mr Wong sought to rely on Order 29 rule 1 as an alternative.  He explained his fall-back position in the following way:

“Alternatively, if this Honourable Court rejected P’s application to enforce the Judgment, P humbly asks for an interlocutory mandatory injunction compelling D to carry out the necessary repairing works.”[9]

33.  Mr Wong then went on to persuade the court that:

(1)  the plaintiff has “a high assurance of success”[10]; and

(2)  “withholding interlocutory mandatory injunction against the defendant could cause greater injustice to the plaintiff in the present case in practical sense”[11].

34.  As mentioned above, judgment on liability had already been entered against the defendant, and it is taken as if an order in terms of relief (b) as pleaded in the Statement of Claim had already been made. This is a final order on liability. 

35.  In such circumstances, the application for an interlocutory mandatory injunction is totally misconceived.  It is also difficult to understand why the plaintiff still tried to persuade the court that it had a “high assurance of success” when it had already succeeded by virtue of the Judgment on Liability.

36.  I have not forgotten the fact that the parties are now in disagreement as to whether water is still finding its way from the defendant’s Premises into the plaintiff’s Premises.  However, that would only have bearing on the question of whether the defendant has breached the order made on 16 May 2017 as opposed to the question of liability which has already been resolved by way of a judgment on admission.

ORDER

37.  By reasons of the aforesaid, the Summons is hereby dismissed.

COSTS

38.  I make a cost order nisi that the plaintiff shall bear the costs of the defendant of the Summons, to be taxed if not agreed. To avoid any doubt, I certify the engagement of counsel as being proper in this application.  The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any) within 14 days hereof.  Any application to vary the costs order nisi shall be dealt with on papers.