LI CHING HAR AND ANOTHER v. WONG SUK KIT

DCCJ 4566/2014

[2018] HKDC 370

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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Introduction

1.  In this action, the plaintiffs claim that water seepage occurring in their premises they resided at the 13^th Floor of the building are caused by the defendant who owned and occupied the flat directly above, on the 14^th Floor.  This action was commenced in November 2014.  The plaintiffs sought damages and an order for injunction to restrain the defendant from continuing with the water seepage allegedly caused from the 14^th Floor.

2.  This is the hearing of the defendant’s application for entry into the plaintiffs’ premises, which was downstairs, to carry out tests to identify the cause of the water seepage, and for other consequential reliefs.  The application was made by a summons dated 20 March 2018 supported by an affirmation of Yeung Tsz Shan, the defendant’s solicitor, pursuant to the Order 29 Rule 2 of the Rules of District Court and the inherent jurisdiction of the Court.

3.  This application was heard on 4 April 2018.  Decision was reserved.  By this decision, I dismiss the application and give reasons.  This application of the defendant bears hallmarks of a desperate attempt to delay the conduct of this action.  It is devoid of merits, and in my view, is an application made just for the making of application.  The defendant’s reason for a test on the plaintiffs’ premises was not even properly articulated in the supporting affirmation of Yeung, nor in the written submission of the defendant’s counsel for this hearing.  This is so, not to mention that proper supporting evidence was lacking.  Lack of merits and proper evidence aside, the making of the application was very late -- on 20 March 2018 -- which was close to the coming Case Management Conference on 17 April 2018.  Master D To has directed that this conference would be for leave to set down to be granted. 

4.  I dismiss the defendant’s application for entry and test on grounds that it will not be needed for a just and proper trial, and on case management ground. 

Background

5.  The history about expert evidence was eventful.  As can be seen from the agreed chronology[1] annexed to this decision, the first set of expert directions was made on 8 July 2016.  There had been at least four interlocutory applications on expert evidence and at least one interlocutory appeal regarding expert evidence.

6.  The plaintiffs initiated their conducting of test as early as December 2016.  Due to the defendant’s objection to allow entry and test in his flat, test was done by the plaintiff only in September 2017, and as such the first report of the plaintiff’s expert which was exchanged on 27 March 2017 pursuant to an unless order has not covered the test result.  The plaintiffs filed a 2^nd report dated 27 October 2017.

7.  The defendant made no mention of his conducting of own test until March 2018.  The first mention of the test now sought for is 20 March 2018.  The explanation to such delay was again nowhere found in any of the defendant’s evidence.  The grounds submitted by the defendant’s counsel for the delay was unconvincing.   

Arguments of the defendant in relation to application for test

8.  The defendant’s counsel orally submitted, without any supporting evidence, that there was a change of fitting of the ceiling light of the bathroom of the plaintiffs’ premises.  He invited the court to visually compare the photos on pages D24 and the infrared images on the 2^nd page of Appendix E inside the plaintiffs’ expert report dated 27 October 2017 to find that there was a change of ceiling lights inside the plaintiffs’ bathroom, and so to find that there was renovation inside the plaintiffs’ premises at some point.    

9.  The defendant’s counsel argued that the plaintiffs’ renovation might be the cause of the water seepage occurred inside the plaintiffs’ own bathroom. In connection with the nature of test and the need for it, he relied on two paragraphs of a statement of the defendant’s expert Mr Stewart Wong dated 19 March 2018 exhibited in Yeung’s affirmation (YTS-4) which are in the following terms:-

“Defendant’ expert found other sources of water to seepage that completely omitted from plaintiff’s expert reports.  Firstly the fact that the devastation of water proofing system of 14/F.  A1 was prominently occurred during the interior renovation work done to 13/F.  A1 as in Nov 2014.  According to renovation work items outlined by the Contractor’s item sheet, there had been heavy demolition works done to the existing old fixtures then the installation of new fixtures including replacement of floor tiles, wall tiles and cable conduits and ceiling light fittings including replacement of floor tiles, wall tiles and cable conducts and ceiling light fittings etc. which brought about vibration to the structure which would cause affection to the damp roof membrane in the floor slab of the bathroom of “14/F. A1”.  Seepage of water in a flat might occur when the damp proof membrane in the floor slab of a bathroom is somehow damaged or affected by act of renovation works of the neighbouring flat.”

“Test Scheme

Location : Plaintiff’s premises (Flat A1, 13/Floor, Kin Lee Building, 138 Jaffe Road, Hong Kong)

Methodology : Aptitude test of water proofing material, Possibly Endoscopy, Steam effect test, Photo-taking.”

10.  In other words, the suggestion of the defendant was based on visual inspection of the certain photos and infrared images.  Thereupon, it was argued that the comparison evidenced a change of light fittings.  From this, it could be inferred that renovation inside the plaintiffs’ premises had taken place at some point.   As the defendant’s argument goes, such renovation might have caused the very water seepage that the plaintiffs complained.

11.  The other argument made by the defendant was that the court had this application in mind even before the application was made.  The defendant’s counsel argued that implicit in paragraphs 27, 29 and 30 of the decision of another Deputy District Judge C Chow dated 28 December 2017, and Master D To’s direction on 16 January 2018 for filing of joint expert report were an intent of the court that the defendant would be conducting such test. 

12.  The decision of Deputy District Judge C Chow dated 28 December 2017 was on another matter, being the defendant’s application to replace his own expert. In this context, the learned Deputy District Judge C Chow stated in paragraphs 27, 29 and 30:-

“27. The allegations of Wong failing to make any comment or findings on material terms, his refusal of the defendant’s reasonable requests for clarifications and his failure to draft the report in a proper and professional manner should be considered together. It is important to bear in mind that the Wong’s Report is preliminary in nature. Both Wong and the plaintiff’s expert expected further tests to be conducted before any conclusion on the cause of the water seepage can be drawn.

…

29. I do not find those attacks on Wong’s Report to be fair, when all the alleged defects can be addressed by proper requests for clarifications, and can be dealt with by Wong in his final report. The defendant’s case is that Lau had made reasonable requests already but they were turned down by Wong.

30. That Wong’s Report envisages further tests to be done means that it is not a final report. There is nothing to prevent Wong to give the full and complete picture only in the final report. In so doing, Wong may be able to give a more comprehensive analysis of the source of water seepage in the final report.” (own emphasis)

13.  The defendant’s counsel argued that these remarks supported that further test to be conducted by the defendant’s expert was contemplated by Deputy District Judge C Chow already in December 2017. 

14.  The defendant’s counsel also submitted that on 16 January 2018, in directing joint expert report to be filed, Master D To also had the intended test now being applied for in mind.

15.  The defendant’s counsel further argued that as the plaintiffs have two expert reports filed and the defendant has one only, and hence further test was needed to achieve fairness. 

16.  To explain the lateness of the application, the defendant’s counsel submitted that the idea could only formed after 28 December 2017 when the defendant’s application to replace his own expert Mr Wong was rejected.  From then, it took the defendant to March 2018 to come up with this application.  He submitted that even when the parties last appeared in this court, on 16 January 2018, the defendant did not have enough time, and so this application or the test in question was not mentioned.

Issues to be decided - test and entry application

17.  I have considered the following issues:-

(1)   What are the basis of the court’s jurisdiction to order entry for conducting test, and the relevant considerations?

(2)   How should the considerations be applied, or discretion exercised, in this application for entry and test?

Issue 1 – Jurisdiction for making order for test

18.  The defendant’s application was proceeded on the basis of Order 29 Rule 2 of the Rules of District Court, and inherent jurisdiction of the court.  It seems to me that Order 29 Rule 2 is more about entry for inspection and other matters.  It bears no reference to “test”.  On the other hand, Order 29 Rule 3 and Section 47D of the District Court Ordinance make references to “experiment” to be conducted on subject property.  

19.  I am mindful of Leung Wan Ming v Lie Mey Fong, HCA 1367 of 2011 dated 10 December 2012, wherein the learned Deputy High Court Judge Woo was satisfied, at para 6, that the inherent jurisdiction of the court conferred power to order test to be carried out on subject property.  The learned Deputy Judge was satisfied that the jurisdiction was an inherent jurisdiction to make interlocutory orders for the purpose of promoting a fair and satisfactory trial; it was a jurisdiction conferring power in the exercise of judicial discretion to prepare the way by suitable orders or directions for a just and proper trial of the issues.

20.  The consideration to apply in entry and test application is therefore whether it is reasonable or necessary for promoting fair and satisfactory trial to have the test in question conducted. 

Issue 2 – Application of principles and exercising of discretion

21.  I dismiss the defendant’s application for test and entry for the following reasons. 

The alleged need for test lacks proper foundation, not promoting fair and proper trial 

22.  The plaintiffs’ case was that renovation in November 2014 exposed the water seepage.  This was referred in the 1^st plaintiff’s witness statement exchanged on 11 March 2017 (para 6-8).  The defendant should have been aware of the existence of renovation not later than 11 March 2017.  He should not have waited till another year, in March 2018 to suspect that the plaintiffs’ own renovation might have caused the water seepage.  The allegation is new in this action. 

23.  The defendant’s counsel, on the other hand, represented to me that the defendant was aware of an existence of renovation only in October 2017 by looking at the pictures inside the plaintiffs’ 2^nd expert report filed in October 2017. 

24.  The pictures are inconclusive and by their nature not even comparable, one set seemingly being actual pictures, and the other being infrared images. The inference that there had been change in light fittings was merely asserted in the oral submission of the defendant’s counsel.  For the purpose of this application, the evidence, relied on by the defendant, on change of light fittings or renovation, was unsatisfactory.  The argument that the fitting changes and renovation might be the cause for water seepage is not supported by proper or sufficient evidence before me at this application.

25.  The statements of Mr Wong exhibited in YTS 4 does not add to the defendant’s case.  His statement in YTS 4 is not adequate to convince me that the possibility of the renovation being a cause of water seepage is a genuine issue or otherwise an issue having a chance of success at trial.

26.  Given the lack of proper evidence laid before me, including on the nature and scale of the renovation relied on, it is not likely that the court will be assisted at trial by any test result and any purported evidence on causation relating to the renovation.  The test now sought to be conducted is not going to promote fair and proper trial.

27.  In light of the above, the need for test was not made out.

Test sought could not be implied from previous direction and decision of court

28.  The defendant’s reliance on the selective paragraphs in the decision of the learned Deputy District Judge C Chow was ill conceived.

29.  The learned Judge was commenting on the quality of Mr Wong’s report as of 22 March 2017, in which he did state that further tests on 14^th and 15^th floors were needed.  It is noteworthy that Mr Wong did not say that he needed to have test conducted in the plaintiffs’ flat, 13^th floor.  As of March 2017, it was true that the plaintiffs as well also contemplated test, which did happen only later in September 2017.  The remarks passed by the learned Judge was about the quality of Mr Wong’s report, set in the frame of time of March 2017, and on a different application, namely the defendant’s application to replace his own expert, on appeal.

30.  The paragraphs in the learned Judge’s decision have no bearing on this particular application, nor on this particular test now sought. 

31.  The first record, and the first mention of, the test now sought was on 20 March 2018 when this application was filed.  (Letters from the defendant’s solicitors from 18 January 2018 only demanded site visit and inspection inside the plaintiffs’ flat, not test.)  It is unconvincing, to say the least, to use materials in December 2017 to support the current test sought. 

32.  The defendant’s counsel also submitted that the test sought was for the purpose of compiling the joint expert report as directed by Master D To on 16 January 2018, and that as such the defendant’s expert required the test to proceed with the joint report.  The defendant argued that it was implied in the learned Master’s direction that the test now sought was expect to be done.  Such submission is inaccurate, to say the least, and cannot be accepted.  On 16 January 2018, the learned Master also specifically rejected further supplemental expert report from the defendant, and his direction for the coming CMC on 17 April 2018 was for leave to set down.

33.  In my view, it is a sign of desperation if a party embarks on misreading and unfair interpretation of previous judicial remarks and orders.

Case management considerations not permitting new test

34.  The action is about to be set down on 17 April 2018 in the scheme of things of Master D To’s direction dated 16 January 2018.  Allowing the test to be conducted will not only disturb Master D To’s timetable, it also means that parties will need to deal with a new area, necessitating a new sequence of evidence to be introduced.  The further delay that would be caused by the new test will not be short.  This cannot be accepted particularly in light of the background that the expert evidence preparation has started since mid-2016.  

Expert evidence not a competition of numbers

35.  The argument that the defendant should have a second report filed to equal the number of the plaintiffs’ reports lacks merit.  According to the submission of the plaintiffs’ counsel, which was not opposed by the defendant’s counsel, the fact that there were two reports by the plaintiffs’ expert has to do with the recalcitrant conduct of the defendant.  The plaintiffs throughout intended to adduce expert report which also covered outcome of their own expert test.  However, there had been unreasonable refusal on the part of the defendant to allow entry and test, and the plaintiffs exchanged a first report when test was obstructed and when the court has directed a deadline of 27 March 2017. When test was finally conducted in September 2017, the plaintiffs filed the 2^nd report dated 27 October 2017 to include the test result. 

36.  The situation of the plaintiffs’ filing two reports was of the defendant’s own making, and cannot be used to support the defendant’s application.  In any event, as the plaintiffs’ counsel submitted, expert evidence is not a competition of numbers.  Mere numbers should give way to the overall consideration of fairness in each specific case.

Application for further without prejudice meeting by experts, and adjourning the next CMC

37.  The defendants also sought to have further without prejudice meeting by experts.  Such application was made before Master D To on 16 January 2018.  The learned Master has rejected it.  I am making the decision now and well before the next CMC on 17 April 2018.  The Case Management Conference can be proceeded with as scheduled.

38.  I dismiss the defendant’s application for further without prejudice meeting by experts and adjournment of Case Management Conference.

39.  The defendant also asked for mediation direction in his summons.  This has been dealt with by consent at the hearing on 4 April 2018. 

Costs

40.  Costs should follow the event.  The plaintiffs applied for summary assessment of costs of the application.  I order that the defendant do pay the plaintiffs costs of the application, to be summarily assessed, payable forthwith.  The plaintiffs are at liberty to lodge the statement of costs, within the next 2 days and the defendant is at liberty to submit objections, if any, by way of a list or otherwise, within the following 5 days for summary assessment to be disposed on papers.

Agreed Chronology of Events

Date	Events
28 November 2014	P commenced action against D.
8 July 2016	First set of expert directions of Master D Ho.
25 August 2016	Time to exchange the experts reports and to lodge a joint expert report be extended to 19 September 2016 and 6 December 2016 respectively.
23 December 2016	A joint inspection was conducted by the parties’ experts and a without prejudice meeting was held.
6 January 2017	P’s solicitors sent a letter to the D’s then solicitors Messrs Edmund Cheung & Company listing a test plan, including Water Ponding test and Dye test of soil and waste pipes at the D’s bathroom.
10 January and 13 January 2017	D by letters dated 10 January and 13 January 2017 did not agree to the proposed tests to be carried out in D’s Premises.
18 January 2017	P took out a summons returnable on 24 January 2017 before Master D Ho for order to enter into the D’s Premises to conduct the test.
24 January 2017	On the return day of P’s Summons, P and D reached a consent that D would allow P’s expert to enter into the D’s Premises in February 2017 to conduct the tests. Master D. Ho also granted unless order against D to exchange expert reports and witness statements with P.
February 2017	No test was carried out at D’s premises.
27 March 2017	Pursuant to the unless order of Master D Ho, the parties exchange witness statements and expert reports.
1 June 2017	D’s then solicitors wrote to P’s solicitors proposing to let P’s expert carry out test on 30 June 2017.
29 June 2017 and 30 June 2017	D through its then solicitors cancelled the appointment to conduct the test due to change of solicitors. P’s expert attended D’s Premises anyway on 30 June 2017 but he was not allowed to go in.
28 July 2017	P again took out a summons returnable on 18 August 2017 before HHJ MK Liu for order to enter into the D’s Premises to conduct the test.
18 August 2017	Upon the return day of P’s summons, HHJ MK Liu granted an unless order against D to give access to P’s expert within 14 days to carry out test with costs to P on an indemnity basis. HHJ MK Liu also extended the time to exchange expert reports to 15 September 2017.
1 September 2017	P’s expert carried out tests at D’s Premises.
13 September 2017	D took out a summons for change of expert returnable before Master D To on 29 September 2017.
29 September 2017	Master D To dismissed D’s summons for change of expert. In the absence of any further tests or expert report from D’s expert, Master granted an order for P to serve their solo report to D on 3 November 2017.
28 December 2017	Deputy District Judge C Chow dismissed D’s appeal against Master D To’s decision.
16 January 2018	D took out a summons to file and serve a supplemental expert report, to have without prejudice meetings and to compile joint expert report. Master D To dismissed D’s summons to file a supplemental expert report or to have without prejudice meetings. Master D To directed parties to compile joint expert report on 13 March 2018 and to adjourn the CMC to 17 April 2018 for setting down.
19 January 2018	D’s solicitors wrote to P’s solicitors proposing a joint inspection of both P and D’s premises with three available dates.
23 January 2018	P’s solicitors wrote to D’s solicitors rejecting the request for joint inspection.
20 March 2018	D took out the present summons returnable on 4 April 2018 for, inter alia, (i) having access to P’s Premises to carry out tests; (ii) having a without prejudice meeting; and (iii) compiling a joint expert report.
4 April 2018	Hearing of the summons before Deputy District Judge Kate Li.