LI KIT YIN v. MA SIM CHING

DCCJ 286/2020

[2020] HKDC 1146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 286 OF 2020

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REASONS FOR DECISION

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1.  This is a water seepage and breach of Deed of Mutual Covenant case.

2.  Before me were:-

(a)     The defendant’s summons dated 13 August 2020 (“D’s Summons”) asking for time and related directions to file his expert report on liability (and issue on quantum, if any) in relation to the source of water seepage and the structural condition of the subject property; and

(b)     The plaintiff’s summons dated 16 September 2020 (P’s Summons”) in gist seeking leave, pursuant to O29 r3, for her expert on structural engineering to enter the defendant’s premises to perform certain examinations and obtain some concrete specimens of the roof slab.

3.  The plaintiff did not oppose D’s Summons in principle.  Her position was that P’s Structural Tests (defined below) should be conducted by the plaintiff’s expert on structural engineering first before the tests and examinations relating to water seepage be conducted by the parties’ respective experts.  The defendant did not dispute the said time sequence, but strenuously opposed P’s Summons.

4.  At the conclusion of the hearing, I ordered the defendant to provide discovery relating to the Roof Remodelling (defined below), made an order allowing P’s Summons substantially in terms as sought and gave detailed directions (a) as to the time and manner the plaintiff’s expert on structural engineering is to enter the defendant’s premises to conduct P’s Structural Tests and to make good the damage, (b) as to the time and manner the parties’ respective experts on liability and quantum relating to water seepage are to enter the respective parties’ premises to conduct examinations and tests, and (c) on the meeting of the experts and the filing of their reports and joint statements.  I also made no order as to D’s Summons and made the costs orders set out at the end of this decision.

5.  I now provide my reasons.

Background

6.  The relevant backgrounds are these.

7.  No. 27 Po Lo Che New Village, Sai Kung, New Territories (“the Building”) is a 2-storey small village house.  Its size is about 700 square feet.  It was first built as a one storey village house in 1967.  In 1990, the first floor was added.  The first floor is a single unit, while the ground floor consists of Unit A and Unit B.

8.  In 1990 at the time the first floor was added, the then co-owners signed a Deed of Mutual Covenant (“DMC”), which as is common ground, governs the rights and liabilities of the owners of the Building.

9.  I need to say more about the roof, which is the subject matter pertaining to P’s Summons.  From the photographs produced, it can be seen that the Building, one may say, is more an old style village house.  Its roof was slanted towards one side with eaves and was laid with overlapping Chinese style reddish glazed ceramic tiles shaped in such a way to guide water to run off and down along the slope.  The plaintiff says that the tiles also provided heat insulation. There was thus no drainage, nor were any common facilities, installed on the roof.  The roof evidently was not meant to be used or accessed at all, as there was no staircase built for that purpose, and there were no railings or the like or indeed anything built thereon.  The roof was a roof simpliciter.

10.  It is common ground that the roof is a common part of the Building[1].

11.  The first floor of the Building at the material time has been and is owned by the defendant (“D’s Unit”).  The plaintiff has since March 2008 owned and occupied Unit B on the ground floor.

12.  It is common ground that in about October 2016, the defendant, among other renovations, completely remodelled the roof (“the Roof Remodelling”):-

(a)     He built an internal staircase in D’s Unit and made a large opening in the roof slab (“the Opening”) and install thereon a sliding glass door, giving exclusive access from D’s Unit onto the roof.

(b)     He completely removed all the reddish tiles and, so far as can be observed from the photographs, levelled the roof top and then laid floor tiles thereon.

(c)     He built along the edges of the roof parapet walls of about 1.2 meters in height, with certain sections thereof made with thick glass panels. 

13.  It is patently clear that by the Roof Remodelling, the defendant was converting the roof, which is a common part, for his exclusive use.

14.  It is not disputed that Clause 10 of the DMC provides:-

“Each of the parties hereto shall not make any structural alteration to the said Building or to the unit of which he is entitled to the exclusive use, occupation and enjoyment which will interfere with or affect the rights of other owners…”

15.  The defendant admits that the Roof Remodelling had caused structural alterations :-

“There is no dispute that D’s Building Works had caused structural alterations to the Roof …”[2]

16.  By the defendant’s said admission, it is quite clear, even at this interlocutory stage, that the plaintiff’s case against the defendant for breach of Clause 10 of the DMC is strong, to say the least.

17.  That notwithstanding and quite surprisingly, the defendant is now counterclaiming against the plaintiff for one-third of the costs of the Roof Remodelling as such “covered the repair and maintenance of common parts of the Building”[3].

18.  Prior to the Roof Remodelling and since 2015, there have been complaints of water seepage by the plaintiff against the previous owner of D’s Unit, who is the granddaughter of the defendant.  In 2016, the plaintiff obtained judgment in the Small Claims Tribunal against the said previous owner in relation to the seepage.  According to the plaintiff, however, the seepage persisted.

19.  The plaintiff now complains that after the Roof Remodelling, there were cracks seen in the structures of the Building which intensified the seepage.

20.  The plaintiff further complaints that the Roof Remodelling might have already caused structural damage, or might compromise the structural integrity of the Building.

21.  There were other relatively minor items of renovation works done by the defendant on the external walls that the plaintiff also complains as causing more water leakage.  However, they are not relevant for the present purpose. 

22.  In April 2017, the Sai Kung District Lands Office by letter complained that there was a breach of Special Condition No 4 of New Grant No 4853 by reason of the erection of the parapet walls.  By January 2019, the defendant lowered the parapet walls so that the height of the Building was made within that which was allowed.  I mention this just to dispel any suggestion seemingly made by Ms Leung that the defendant has “rectified” the matters under complaint[4]. Clearly, he has not, he just desisted from breaching the said Special Condition No 4.

23.  On 18 May 2020, Registrar Lui gave leave, and related directions, to the parties to file expert reports on liability and quantum relating to the source of the water seepage and concerning the structural condition of the Building.

24.  After much discussions, the parties’ experts visited the parties’ premises on 14 and 15 July 2020.  There were various disputes arising therefrom.  Hence, these applications.

The defendant’s refusal to provide further information relating to the work done for the Roof Remodelling; the examinations to be carried out and specimens to be obtained by the plaintiff’s expert on structural engineering

25.  There are quite a number of correspondences exchanged between the parties’ solicitors in relation to and disputing over the scope and logistical arrangements and so on of the experts’ examinations and such.  For the present purpose, I do not think I need to go much into them.

26.  Suffice to note that despite repeated and further requests, the only information provided by the defendant to the plaintiff regarding the Roof Remodelling was given in his solicitors’ letter dated 18 May 2020, thus:-

“… the representative of our client, Ms Lam, did have re-tiling works on inclined rooftop area, including removal of all dark red colour Chinese glazed roof tiles, re-sceeding with new waterproof mortar, application of new liquid-applied waterproofing membrane, laying new 600mm x 300mm ceramic roof-tiles on top-most level and extended 225-450mm high and approximate 100mm thick concrete kerb and formation of sun-roofs above 1/F Premises. All decoration and re-roofing works were responsible and carried out by a skilled tradesman “Si Fu” called “彭賜強”.”

27.  No further information was furnished by the defendant despite requests by the plaintiff for or pertaining to

(a)     existing structural plans of the roof top and D’s Unit;

(b)     the erection of the parapet walls;

(c)     the formation of an access to the roof from D’s Unit by removing part of the roof slab, and the modifications done to the roof slab in the construction of the said access;

(d)     whether there was any heat insulation system installed on the roof;

(e)     full particulars of the waterproofing mortars and liquid-applied waterproofing membrane, including the design and workmanship, brand name and manufacturers of the materials used;

(f)     full particulars of the expertise or qualification of the said彭賜強; and

(g)     the subsequent modification of the parapet walls by reducing their height to about 100mm.

28.  The plaintiff also requested discovery of all documents relating to the above.  The plaintiff also stated clearly that such information and documents should be provided to the plaintiff’s expert on structural engineering before his site inspection, examination and taking of specimens, and that such information and documents might render some of his tests and specimen taking unnecessary.

29.  The defendant’s solicitors however persisted in their refusal and argued in gist that such further information and/or discovery was irrelevant and that, even if relevant and necessary, such discovery should only be raised after the close of pleadings and not at that stage.

30.  In the circumstance, the plaintiff’s structural expert considered the investigations and specimen taking set out in the next paragraph (so far as access into and work to be done in D’s Unit is required, and among others tests on and specimens to be obtained over other parts of the Building) as necessary “for strength assessment of roof slab with consideration of imposed loading from roof finish and water proofing material”.

31.  By P’s Summons, the plaintiff is now applying for an order for the plaintiff’s expert on structural engineering to have access to D’s Unit for the purpose of and to do the following, namely:-

(a)     At the top of roof slab, perform a surface break-out of a patch 400 x 400mm in area, to check type, size, concrete cover and spacing of top steel reinforcement bars in roof slab;

(b)     At the soffit of roof slab (ceiling of D’s Unit), also perform a surface break-out of a patch 400 x 400mm in area, to check type, size, concrete cover and spacing of bottom steel reinforcement bars in roof slab; and

(c)     Drill and take two 100mm diameter cores through full thickness of roof slab to understand the structure of the roof slab and for testing in a laboratory.

(together “P’s Structural Tests”)

O29 r 3

32.  O 29 r 3 provides:-

“Power to order samples to be taken, etc. (O. 29, r. 3)

(1)     Where it considers it necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter, the Court may, on the application of a party to the cause or matter, and on such terms, if any, as it thinks just, by order authorize or require any sample to be taken of any property which is the subject-matter of the cause or matter or as to which any question may arise therein, any observation to be made on such property or any experiment to be tried on or with such property.

(2)     For the purpose of enabling any order under paragraph (1) to be carried out the Court may by the order authorize any person to enter upon any land or building in the possession of any party to the cause or matter.

…”

Making the order sought

33.  By looking at the photographs depicting how the roof was before[5] and how it is after the Roof Remodelling[6], one can readily perceive that there were substantial structural alterations done to the roof.  Among others, to make the roof top level as compared to being slanted, there must have been substantial thickness of “mortar” (as the defendant alleged) or concrete poured or applied onto the lower side.  Also, by looking at the photographs, the size of the Opening is substantial in the context of the overall area of the roof.  As said, no information whatsoever was given by the defendant concerning the Opening and the design and construction of this roof slab door/sunroof.

34.  On present materials, or lack thereof, I have no hesitation to agree that the plaintiff’s concern about whether the Roof Remodelling has caused structural damage and/or has affected the structural integrity of the Building is a legitimate one.  I take the view that it is a serious question to be investigated.

35.  Bearing in mind that O29 r3 gives the court discretionary power to order samples being taken when it is “necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter” and that Registrar Lui has given leave to file expert reports on the structural condition of the Building, this seems to me a clear case that the order sought by P’s Summons ought to be granted.

36.  For reasons expressed below, I do not find any of the defendant’s grounds of opposition valid.

37.  Ms Leung tried to argue that the plaintiff failed to show a good arguable case.  Her arguments however consisted of attacks on some of the concerns expressed by the plaintiff as a layman, which did not detract from the fact that the plaintiff case against the defendant for breach of Clause 10 is strong, as explained above.

38.  Ms Leung then argued that there was no evidence that the Roof Remodelling had caused structural damage, in the sense that there was no evidence of visible signs of “structural impairment” and therefore the plaintiff failed to show that the alleged structural damage was other than de minimis.

39.  Indisputably, the question of whether there was structural damage or whether the structural integrity of the Building has been compromised (“the Structural Issue”) is a matter to be investigated by qualified experts, and not one a layman like the plaintiff would be in a position to “give evidence” on.  As I explained in paragraphs 33 and 34 above, I am of the clear view that the Structural Issue is a legitimate issue raised by the plaintiff and is a serious question to be investigated.  Moreover, the Structural Issue goes to the question of the relief to be granted to the plaintiff – the appropriate form of the mandatory injunction(s) and/or the amount of damages to be awarded or whether there should be some other form of relief.  In my view, the results of P’s Structural Tests are clearly such “full information or evidence” (in the language of O.29 r 3) in this action that are highly relevant.

40.  I can deal, conveniently together, with Ms Leung’s submissions that P’s Structural Tests are irrelevant, that the scope of P’s Structural Tests is unjustified and there is the alternative “non-destructive” tests suggested by the defendant’s expert.

41.  As mentioned, the plaintiff’s expert is trying to ascertain, as I understand it, whether the strength of roof slab is compromised by the work done to it in the Roof Remodelling, and whether the roof slab and the Building can support the extra loading imposed on it by the Roof Remodelling works.  Ms Leung, without any supporting evidence by an expert having been filed, asserted in her submissions that the following matters are irrelevant, and I think it suffice just to quote the headings of her points (a) “Removal of Reddish Glazed Tiles only affected roof finishes”, (b) “The spacing of the rebars was not of issue”, (c) “Roof Structure before and after the Alterations”, and (d) “Building Materials was not of issue”.  With respect, I cannot quite follow her points as to how these matters are irrelevant, nor do I see how Ms Leung, as an advocate, is qualified to make those assertions.  The same comments apply to her assertions that the scope of P’s Structural Tests is “unjustified”.

42.  In the letter of the defendant’s solicitors dated 6 August 2020, the ultra-violet flashlight detection method and some other methods were suggested by the defendant’s expert as alternatives to P’s Structural Tests.  Having consulted with the plaintiff’s expert, the plaintiff’s solicitors responded in their letter dated 31 August 2020 by quoting the views of the plaintiff’s expert regarding the inadequacies of those alternative tests, thus:-

“(a)   Penetrating radar survey can only check the layout of steel rebars embedded in the concrete, approximate size and cover, but not the type (round bar or deformed bar), surface condition (degree of corrosion) or the accurate size of rebars.

    (b)     Rebound hammer test can only provide a rough indication of the concrete strength (through correlation with surface hardness), not accurate enough for detailed structural assessment. For aged concrete the result will be even less reliable.

    (c)     Ultrasonic pulse velocity test can only be used for concrete strength checking if there is enough correlation data available (not likely for unknown concrete).

    (d)     Also, the above methods cannot check the accurate thickness of concrete slab and the thickness of finish.”

43.  There was no response from the defendant’s solicitors over such views, nor has the defendant sought to file evidence by the defendant’s expert to dispute them.  The plaintiff’s expert therefore has made good the reasons why P’s Structural Tests are necessary and are to be preferred over the tests suggested by the defendant’s expert.

44.  Ms Leung also submitted that it is illogical that the plaintiff now complains against the destruction by the defendant of the common parts of the Building and yet seeks an order that would in turn caused destruction to the Building.  I do not think the defendant’s alleged tortious conducts could be compared with the necessary enforcement actions.  Also and evidently, P’s Structural Tests would only entail very limited “damage”, and the plaintiff is prepared to undertake to make good the same immediately after the roof slab concrete cores are drilled out.  In this connection, Ms Wong pointed out, which was not disputed, that the drilling out of concrete cores for testing of concrete strength is prescribed by Regulation 63 of Building (Construction) Regulations Cap 123B.

45.  It is also said that P’s Structural Tests would cause inconvenience to the defendant who is living in D’s Unit.  I do not find such matter of much weight in the scheme of things, particularly bearing in mind that, as I have been repeating, the case against the defendant that he has breached Clause 10 is strong.

46.  In the premises and as said, I do not find any of the defendant’s grounds of opposition valid.  In any case, they are not sufficient for me in the exercise of my discretion not to grant the order sought.

Ordering discovery

47.  It is very clear that all the documents relating to the Roof Remodelling are most relevant and there are good reasons why their discovery would aid the preparation of the reports of the structural experts, and might very well save some time and costs of these experts.  In the hearing I therefore indicated that I was minded to order specific discovery, in the exercise of my active case management powers, even though the plaintiff has not applied for it.  The defendant did not make any submissions to resist, and I so ordered.

Disposal and costs

48.  For the above reasons and after discussing with the parties on the timing of things and the contents of the directions to be given, I made the orders and gave the directions described in paragraph 4 above.

49.  By consent, the costs of D’s Summons were ordered to be in the cause.

50.  As to P’s Summons, the plaintiff asked that the costs of the application be in the cause but the costs of the hearing be paid by the defendant.  The defendant submitted that all the costs of P’s Summons should be in the cause as it was only in the hearing that the plaintiff clarified regarding the days required for P’s Structural Tests and the timing when the holes drilled would be made good.  I do not accept that it was due to the lack of clarity in these logistical matters that the defendant opposed.  Rather, P’s Summons were strongly opposed on merits, which opposition I held against.  I therefore ordered that the costs of P’s Summons be in the cause save the costs of the hearing be to the plaintiff, with certificate for counsel, and that the costs of the hearing are to be summarily assessed and paid forthwith, for which directions were then given.