CHU YUET SUN v. THE INCORPORATED OWNERS OF DRAGON INN COURT

DCCJ 5054/2021

[2023] HKDC 842

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5054 OF 2021

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DECISION

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1.  This is the hearing of the plaintiff’s summons filed on 3 November 2022 for (1) summary judgment under Order 14, rule 1 of the Rules of the District Court (Cap 336H) (“RDC”), (2) determination of a question of law under RDC Order 14A, rule 1, (3) judgment on admissions under RDC Order 27, rule 3, and (4) a mandatory interlocutory injunction under RDC Order 29, rule 1.

A.  Background

2.  These proceedings concern the building management of Dragon Inn Court (“Estate”), a residential estate in Tuen Mun, New Territories.

3.  The plaintiff is the registered owner of Flat A on 12/F (“Flat 12A”) and Portion of Roof immediately thereabove (“Flat Roof”) of Block 2 of the Estate (“Building”). The defendant is the incorporated owners of the Estate (“IO”).

4.  The plaintiff’s claims in this action mainly relate to an alleged failure by the IO to repair the external walls outside Flat 12A (“External Walls”) and the waterproofing layer immediately above Flat 12A and underneath the Flat Roof (“Waterproofing Layer”) which were damaged, resulting in water seepage in Flat 12A. In the statement of claim, the plaintiff has also pleaded that the IO is liable for the allegedly improper installation of a sewage drain of the roof water tank, but this issue is not pursued by the plaintiff for the present purposes.

5.  The IO denies liability, and claims that the Waterproofing Layer is not a common service facility within the meaning of the deed of mutual covenant of the Estate (“DMC”). It also avers that the External Walls and Waterproofing Layer were damaged by certain unauthorised building works done on the Flat Roof in 2006 to 2007, the installation of a prefabricated structure (“Structure”) on the Flat Roof in around May 2017 which has since been removed in May 2019, and the renovation works on the Flat Roof whereby the floor thereof was elevated and the floor tiles were replaced.

B.  Whether summary judgment should be granted

B1.  The relevant legal principles

6.  It is well established that the burden rests upon the defendant in summary judgment proceedings to show a fair probability or reasonable grounds that a bona fide defence exists by condescending to particulars: Toy Major Trading Co Limited v Hang Shun Plastic Toys Limited [2007] 3 HKLRD 345, §12, per Ma CJHC (as he then was); Mohan Selvaraj v Grace Ka Man O’Brien [2020] HKCA 698, §15, per Lam VP (as Lam PJ then was).

7.  It is equally trite that a summary judgment application is not a platform for a mini-trial on affidavit evidence, and the question at this stage is not whether the defendant’s evidence is to be believed, but whether it is believable: Mohan Selvaraj (supra), §16.

B2.  Whether the IO has raised any triable issues

8.  It is common ground between the parties that the IO is obliged under section 18(1)(a) of the Building Management Ordinance (Cap 344) (“BMO”) and Clause 12(d)(vii) of the DMC to maintain and keep in good repair and condition the common parts of the Estate, including the external walls of the Building. Further, pursuant to Clause 12(d)(x) of the DMC, the IO is obliged to keep in good repair and condition the common service facilities of the Estate, which include any facilities installed for the use and benefit of the Estate and not for the use and benefit of a particular unit.

9.  There is also no dispute that, in February 2019, a building manager appointed by the IO received a report regarding water seepage in Flat 12A. The matter was then referred to the Joint Office for Investigation of Water Seepage Cases set up by the Buildings Department and the Food and Environmental Hygiene Department (“Joint Office”), which conducted a moisture content test on 27 March 2019. Upon investigation, the Joint Office informed the parties by letter dated 29 March 2019 that the moisture content test did not reveal any water seepage in the ceiling of Flat 12A, and as a result, no conclusion was reached as to the cause of water seepage (if any) in Flat 12A.

10.  Thereafter, the IO commissioned a thermographic report prepared by CME Solutions Limited (“CME”) dated 18 December 2019 (“CME Report”), in which:

(1)  CME discovered that there was damage to the Waterproofing Layer and the External Walls, which caused water seepage to the living room, master bedroom, bedroom and storeroom of Flat 12A: see Findings 1, 2, 4, 7, 8, 9, 11 and 14-17 of the CME Report.

(2)  CME recommended that the damaged External Walls as well as the whole Waterproofing Layer on the Flat Roof, including parapet, kerb and slab floor thereof, should be repaired: ibid.

11.  Despite the findings in the CME Report, no repair works have been done in respect of the damaged Waterproofing Layer and External Walls, since the parties disagree as to who should be responsible for the costs of such repair works.

12.  For the present purposes, the IO relies on an expert surveying report prepared by Mr Simon Cheung Wai Sum (“Mr Cheung”), a chartered building surveyor, dated 28 February 2023, in which Mr Cheung opined, among other things, that the following works have been done to the Flat Roof which are not in accordance with the approved building and draining plans of the Estate:

(1)  A steel fence has been installed on the parapet walls of the Flat Roof. The mild steel hollow posts in the parapet walls have not been fully covered to exclude rainwater ingress.

(2)  The original pink mosaic tiles on the coping of the parapet walls of the Flat Roof have been replaced by white mosaic tiles. The underneath cement sand mortar or screeding have also been replaced.

(3)  The original 225 mm wide surface channel on the Flat Roof as per the approved building and drainage plans of the Estate has been modified to become a tiled surface channel of 125 mm wide with part of the surface channel flattened.

(4)  Floor thickening of 210 mm thick and ceramic tiles have been laid to the entire floor of the Flat Roof. However, some of the ceramic tiles are cracked, and such tiles are located immediately above the water seepage spot in the storeroom of Flat 12A.

13.  According to Mr Cheung’s opinion, the existing state of the Flat Roof is not in accordance with the approved building and drainage plans. In particular, the re-configuration of the new surface channel on the Flat Roof may cause flooding or ineffective discharge of rainwater. Further, based on the photo provided by the IO in relation to the Structure, Mr Cheung opined that the Structure likely caused rapid aging or damage to the Waterproofing Layer. He pointed out that the defective Waterproofing Layer has the effect of causing water seepage to the External Walls because water seeping from the Flat Roof brought along mineral contents in concrete and formed efflorescence which was found on the External Walls.

14.  On the other hand, the plaintiff relies on an investigation report prepared by Silver Consultants Engineering Limited, a roof floor slab report prepared by Mr Andy FY Chan (“Mr Chan”), a chartered engineer, and three surveying reports prepared by Dr Yau Pak Man (“Dr Yau”), a chartered building surveyor and chartered building engineer, in support of her contention that the IO should be responsible for making repairs to the damaged Waterproofing Layer and External Walls. In particular, according to Dr Yau’s opinion, he did not see any evidence of replacement of floor tiles on the Flat Roof, nor any cracks or defects on those tiles, and even if new tiles had been added, they would not have caused any damage to the Waterproofing Layer on the ground of “structural even loading sharing”. Nonetheless, Dr Yau acknowledged in his report dated 6 October 2022 that efflorescence was found on the External Walls outside Flat 12A.

15.  In Memoran Company Limited v The Incorporated Owners of Mei Hing Mansion [2021] HKCA 1146, a water seepage case which concerned disputes between an individual owner and the incorporated owners as to who should be responsible for repairing the damaged floor slab on the flat roof of the building, the Court of Appeal held (at §19) that if the damage was in fact caused by the plaintiff (or some other person for whose acts or omission the plaintiff was responsible), the Court was of the preliminary view that it is reasonably arguable that the incorporated owners is not responsible to the plaintiff to repair or make good the damage.

16.  I agree with the submission of Mr Ngai, counsel for the IO, that the reasoning adopted by the Court of Appeal in Memoran (supra) is fully applicable to the present case. Here, the IO has pleaded in the defence that the damage to the Waterproofing Layer and External Walls were caused by the unauthorised building works, renovation works and the previous existence of the Structure on the Flat Roof for which the plaintiff should be held responsible. In support of its defence, the IO has adduced the expert opinion of Mr Cheung to the effect that the cause of the damage to the Waterproofing Layer and External Walls was attributable to the building and renovation works done to the Flat Roof, as well as the Structure which had been in place on the Flat Roof prior to May 2019. Although Mr Cheung’s opinion is contradicted by the expert opinion adduced by the plaintiff, in particular, that of Dr Yau, the differences in their respective opinion, including whether the floor tiles on the Flat Roof have been replaced, and if so, whether it has the effect of damaging the Waterproofing Layer, clearly raise triable issues which cannot be resolved summarily.

17.  Mr Lau, counsel for the plaintiff, sought to persuade the court that summary judgment should be granted because none of the parties can apportion the damage and loss caused by the damaged Waterproofing Layer and those caused by the damaged External Walls, and on such basis, the IO has no answer to the issue of liability. In my view, such argument fails to address the real issue, viz. as between the plaintiff and the IO, who should be held responsible to make repairs to the damaged Waterproofing Layer and External Walls, in the light of the contradictory expert evidence adduced by the parties as to the root cause of the damage to the Waterproofing Layer and External Walls. The issue of apportionment would only become relevant after the court has resolved the issues of liability and causation. In my view, the fact that apportionment cannot be determined at this stage fortifies, rather than militates against, the IO’s case that the present dispute is not suitable for summary determination.

18.  On the whole of the existing evidence, and applying Memoran (supra), I consider that the IO has raised a reasonably arguable case that it is not responsible to the plaintiff to repair or make good the damage arising from the water seepage problem in Flat 12A, and in the premises, this is an appropriate case where unconditional leave to defend should be granted to the IO.

19.  For completeness, in arriving at the above conclusion, I have considered Mr Ngai’s submission that the summary judgment application should be dismissed on the ground that the plaintiff knows that the defendant is relying upon a contention which would entitle it to unconditional leave to defend. It is right to point out that whilst the IO pleaded that it had been advised by CME that the unauthorised building works may cause damage to the Waterproofing Layer, the CME Report itself did not address the alleged causal relationship between the damaged Waterproofing Layer and External Walls on the one hand and the unauthorised building works and renovation works on the Flat Roof on the other hand. Such contention was only substantiated by Mr Cheung’s expert report, which was prepared after the plaintiff issued the present summons. In the circumstances, I am inclined to think that by the time when the plaintiff issued the summons, it is more likely than not that she did not know that the defendant would be entitled to unconditional leave to defend. On such basis, I decline to dismiss the summary judgment application.

C.  Whether there is any question of law that should be determined under Order 14A

20.  According to the plaintiff’s summons, the following question of law may be determined under Order 14A:

“whether, upon the proper construction of the [DMC] and/or section 18(1)(a) of the [BMO], the [Waterproofing Layer] forms part of the common parts and/or common facilities of the Estate”.

The plaintiff contends that, if the above question is answered in the affirmative, final judgment should be entered for the plaintiff with an order that the IO do forthwith carry out all necessary repair and replacement works of the defective Waterproofing Layer and External Walls.

C1.  The relevant legal principles

21.  RDC Order 14A enables the court to determine a question of law or construction without a full trial at any stage of the proceedings. Order 14A, rule 1(1) provides:

“The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that –

(a) such question is suitable for determination without a full trial of the action; and

(b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein.”

22.  As Chan PJ explained in Shell Hong Kong Limited v Yeung Wai Man Kiu Yip Company Limited [2003] 3 HKLRD 62, §§24-25:

“24. It must also be noted that it is inappropriate to use this procedure if the issues of facts are interwoven with the legal issues to be determined. For obvious reasons, the question of law or construction of document cannot be dealt with on assumed or hypothetical facts. And if it is necessary for the court to hear evidence to resolve a factual dispute in order to come to a determination on the question of law or construction of document, it would not normally be suitable to invoke Order 14A.

25. Hence, even if the conditions are satisfied, the court still has a discretion under rule 1 to decide whether to entertain an application under this Order. He has to decide on the suitability of adopting the procedure in the case in hand before adjudicating on the merits […].”

23.  In Rockwin Enterprises Limited v Shui Yee Limited & Others [2003] 3 HKC 174, §§18-21, Recorder Ma SC (as Ma CJ then was) explained that a three-step approach should be adopted in an Order 14A application:

“18. Once seized of an application under Order 14A, the court’s approach is essentially a three-step approach:

(1) Is the relevant question one of law or of the construction of a document?

(2) If so, is that question one that should be determined under the Order 14A procedure?

(3) If the answer to (2) is ‘yes’, what is the determination of that question and what orders should the court make as a consequence of determining that question?

19. Usually, step (1) will cause little difficulty for the court to ascertain.

20. Step (2) requires the court to be satisfied of the following:

(a) That the question of law or construction is one that is suitable for determination without a trial. In other words, the court has all the necessary facts and matters before it in order to determine the question of law or construction.

(b) That if so suitable and should it be determined by the court, that it will finally determine (subject to a possible appeal) the entire cause or matter or any issue or claim therein.

(c) Even if the above two conditions are fulfilled, that the court in its discretion is satisfied that the question is one that ought to be determined under Order 14A.

21. It is clear that the court has a residual discretion whether or not to embark on a determination of a question under Order 14A even where the first two requirements (set out in paragraphs 20(a) and (b) above) are fulfilled. This is clear from the word ‘may’ in Order 14A, rule 1(1) and from the authorities.”

C2.  Whether the plaintiff has raised any proper question of law

24.  Clause 1(a) of the DMC provides that the “Common Areas” of the Estate include “any part of the Estate which are not included in any part of the Estate exclusively owned by or expressly reserved to any Owner in this Deed”, whereas the “Common Service Facilities” include “any … facilities installed for the use and benefit of the Estate and not for the use and benefit of a particular Unit”.

25.  There is no dispute that the Waterproofing Layer has not been specified in the DMC as being for the exclusive use or benefit of an owner.

26.  At the hearing, Mr Lau submitted that the plaintiff’s case is that the Waterproofing Layer forms part of the “Common Service Facilities” of the Estate. He relied on Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd [2009] 4 HKLRD 692 and Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre (IO) [2014] 4 HKLRD 52, in which the waterproofing membrane in those cases was held to constitute a common part for which the incorporated owners were liable to maintain and repair.

27.  In Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd [2009] 4 HKLRD 692, Sakhrani J accepted the unchallenged expert evidence adduced at the trial, which was to the effect that the waterproofing layer was considered as a continuous layer covering the whole exposed area of the roof, and held (at §58) that the waterproofing layer was designed to and did protect the building from rainwater seeping inside, in particular the units in the floors below the roof and the lift shafts (which was for the benefit of all the owners generally) from rainwater seeping in. On such basis, the learned Judge held (at §§59-60) that the waterproofing layer in that case was a common part of the building and was a fixture used in connection with the enjoyment of any other flat or other portion of the building within the meaning of item 11 in Schedule 1 to the BMO.

28.  In Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre (IO) [2014] 4 HKLRD 52, G Lam J (as his Lordship then was) held that the waterproofing membrane in the ceiling of the roof floor in that case constituted a common part of the building on the grounds that (1) the waterproofing membrane was a continuous layer based on the building plans (at §87), (2) there were common facilities on the roof floor level (at §94), (3) there was no acceptable evidence that a waterproofing membrane protects only the area directly underneath it, but rather, the membrane was found to protect all areas on the roof floor which included common facilities such as lift machine rooms and staircases (at §95), (4) even assuming that the waterproofing membrane was meant for the protection only of the floor below, it was used in connection with the enjoyment of another flat of the building on the roof floor level (at §97), and (5) alternatively, if the waterproofing membrane was situated in the floor slab and the floor slab was to be regarded as a common part, then equally the membrane was a common part since it was one continuous layer serving the whole of the floor below, including the common areas on that floor (at §100).

29.  In the present case, the IO relies on the expert opinion of Mr Cheung, who opined that, according to the approved building plan of the Estate, there are four isolated flat roofs (including the Flat Roof in question) situated on the roof level of the Building which are privately owned by the individual owners of the flats immediately below, and these flat roofs are fully separated from the common facilities of the Building. As such, there are four separate waterproofing layers on each of the private flat roofs of the Building. In particular, the Waterproofing Layer which is situated in the floor slabs of the Flat Roof is not a continuous layer and only provides weather protection to Flat 12A exclusively.

30.  On the other hand, according to the expert report of Dr Yau dated 13 March 2023, certain common parts such as corridors and passages were adjacent to the Flat Roof, and the Waterproofing Layer covers not only the area of the Flat Roof but also up to a certain height of the surrounding walls of the edge of the Flat Roof, such that any defect to any part of the Waterproofing Layer renders water leakage or seepage which would spread all over and around the Building and the flats below Flat 12A, floor by floor.

31.  In my view, the facts of the present case are distinguishable from those in Incorporated Owners of Hong Leong Industrial Complex (supra) and Wing Ming Garment Factory Ltd (supra), where the waterproofing membrane in question was found to be one continuous layer serving the whole of the floor below which protected not just the flats immediately below but also the common areas on the same floor. Here, the approved building plans of the Estate show that there are four separate waterproofing layers on each of the four flat roofs (including the Flat Roof) of the Building, and only Flat 12A (but not any common part or common facility) is situated immediately below the Flat Roof and the Waterproofing Layer therein. In short, the Waterproofing Layer is evidently not in the form of one continuous layer serving the whole of the 12^th floor below.

32.  As to the conflicting expert evidence adduced by the parties as to whether, given how the Waterproofing Layer is situated, it is installed for the use and benefit of the entire Building or it is for the exclusive use and benefit of Flat 12A, I am of the view that it gives rise to factual issues which can only be resolved at trial upon the cross-examination of the parties’ respective experts and are thus not suitable for summary determination. While Mr Lau argued that Mr Cheung’s opinion in this regard is not convincing, it is fair to say that his opinion that the Waterproofing Layer does not form one continuous layer serving the whole of the floor below derives support from the approved building plans of the Estate. In the premises, it would not be appropriate for the court to dismiss Mr Cheung’s opinion summarily or to conduct a mini-trial on the divergent expert evidence adduced by the parties at this stage.

33.  For the above reasons, I am of the view that the question raised by the plaintiff is not simply a question of law or of the construction of the BMO and/or the DMC, but involves a question of mixed law and facts that is not suitable for determination without a trial. I therefore decline to embark on a determination of such question under Order 14A.

D.  Whether judgment should be entered on any admission allegedly made by the IO

D1.  The relevant legal principles

34.  RDC Order 27, rule 3 provides:

“Where admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just. …”

35.  As was said in Re Chung Wong Kit (a bankrupt) [1999] 1 HKLRD 410 at 412I, in an application for judgment on admissions, the court must consider the actual admissions, albeit in some cases those may be made by implication.

D2.  Whether the IO made any admission as alleged

36.  According to the plaintiff’s case, the CME Report, which was referred to in the defence, shows that there are defects in the External Walls, and that it is beyond doubt that the External Walls constitute a common part of the Estate. Therefore, judgment should be entered in favour of the plaintiff with an order to compel the IO to repair the defects in the External Walls and for damages to be assessed.

37.  As stated above, it is the IO’s pleaded case that it is not liable for the damage to the External Walls on the ground that the same was caused by the unauthorised building works and renovation works on the Flat Roof for which the plaintiff should be held responsible. Further, Mr Cheung’s expert opinion is that the defective Waterproofing Layer has the effect of causing water seepage into the External Walls because water seeping from the Flat Roof brought along mineral contents in concrete and formed efflorescence which was found on the External Walls.

38.  In the light of the defence as a whole, I am of the view that the IO has not made any clear or unequivocal admission as to the issue of liability to repair the defects in the External Walls. Its case is essentially that it should not be held responsible for such repair works because the defects in the External Walls were caused by the damage to the Waterproofing Layer which brought along mineral contents in concrete and formed efflorescence on the External Walls. Applying Memoran (supra), and notwithstanding the undisputed fact that the External Walls form a common part of the Estate, it appears to me that the IO has made it clear that it is not responsible to the plaintiff to repair or make good the damage to the External Walls.

39.  For the above reasons, I decline to enter judgment in favour of the plaintiff under Order 27, rule 3.

E.  Whether the court should grant any mandatory interlocutory injunction

E1.  The relevant legal principles

40.  The principles for granting a mandatory interlocutory injunction are well established, and have been explained by Deputy High Court Judge To in Sam Hei Tai Hing Foods Company Limited v The Incorporated Owners of Waford Industrial Building [2020] HKCFI 871, §4 as follows:

“This case demonstrates that in applying the American Cyanamid principles, the court makes no distinction between whether the case is one for prohibitory or mandatory … interim injunction. The basic approach is to determine which course carries the lower risk of injustice if it should turn out to be wrong. This is achieved by testing the scenario first one way and then the other. Where a mandatory injunction is sought, the court would generally require a high degree of assurance that at the end of the trial of the action, the injunction was rightly granted. But, as an exception to this general rule, where the case is one in which withholding an interlocutory mandatory injunction would in fact carry a greater risk of injustice than granting one, an interlocutory mandatory injunction would be granted even though the court does not feel that high degree of assurance.”

E2.  Whether a mandatory injunction should be granted at this stage

41.  The plaintiff asks for a mandatory interlocutory injunction to compel the IO to make repairs to the damaged Waterproofing Layer and External Walls pending trial.

42.  In the light of the findings in the CME Report, it is not disputed that there have been extensive defects in the External Walls and the Waterproofing Layer which caused water seepage to the living room, master bedroom, bedroom and storeroom of Flat 12A since at least November 2019 (when CME carried out investigation of the Flat Roof and Flat 12A) and require the entire Waterproofing Layer and the defective parts of the External Walls to be repaired. The plaintiff has also adduced the expert evidence of Dr Yau to the effect that the Waterproofing Layer forms a common part of the Building. In my view, on the existing evidence, the plaintiff has satisfied the threshold of raising a serious issue to be tried (and I put it no higher than that) that the IO should make repairs to the External Walls and the Waterproofing Layer.

43.  Further, there is evidence before the court that Flat 12A has been unsafe for occupation since 2019, given that the ceiling concrete and walls are cracked and spalled, the built-in wardrobe and cabinets are rotten, the window frames are rusted, jammed and cracked, and the interior of Flat 12A is wet, slippery and highly humid. If the damaged Waterproofing Layer and External Walls were allowed to continue to remain in their current state, the concrete spalling may fall off from the ceiling, thereby creating a real risk of physical danger for the plaintiff and her visitors at Flat 12A. Damages are clearly not an adequate remedy.

44.  In these circumstances, I am satisfied that there is a high degree of assurance that at the end of the trial of the action, the injunction is rightly granted. Even if it is not the case, this is a clear case where granting the injunction now carries the lower risk of injustice than refusing one, because if the IO is compelled to repair the damaged External Walls and Waterproofing Layer now, the only realistic downside is that the IO will bear the repair costs in the meantime when it is not responsible to do so: Memoran Company Limited v The Incorporated Owners of Mei Hing Mansion [2022] HKCFI 50, §46. In any event, the IO would be protected by the usual undertaking given by the plaintiff to compensate the IO for any loss that the court may later find to have been caused by the injunction.

45.  In the premises, the balance of convenience clearly lies in favour of an injunction being granted.

46.  I have also considered whether there is any delay in the present application. Mr Ngai submitted at the hearing that there was acquiescence on the part of the plaintiff because the plaintiff, through her son Mr Chan Chi Man, had stated at a meeting with members of the IO on 2 September 2019, which he later reiterated in his letter to the IO dated 27 March 2020, that if the defects to the External Walls were not serious, then the repair works could be done at the mass scale renovation of the Building in the future. The issue of acquiescence has neither been pleaded nor canvassed in the IO’s evidence, and therefore the plaintiff did not have any opportunity to deal with the matter in her evidence. In any event, it is common ground that no evidence has been adduced by any party as to when, if at all, the mass scale renovation of the Building will take place. In the circumstances, I am not prepared to hold against the plaintiff by reason of the statement made by her son before the commencement of these proceedings.

47.  Further, after the commencement of the proceedings, the plaintiff has engaged Mr Chan and Mr Yau to prepare expert reports on the issues of liability. Therefore, this is not a case where the plaintiff has been sitting on the problem or can be said to be guilty of any inordinate delay.

48.  At the hearing, Mr Ngai submitted that the IO is agreeable to perform the repair works to the damaged External Walls and Waterproofing Layer provided that such repairs are to be done after the parties’ respective experts are allowed to further inspect and ascertain the cause of the damage to the Waterproofing Layer and the External Walls, and without prejudice to the IO’s position that it should not be held liable for the costs thereof.

49.  In the premises, I am prepared to grant a mandatory interlocutory injunction to order the IO to make repairs to the damaged Waterproofing Layer and External Walls, on the basis that it is without prejudice to the IO’s position that it should not be held liable for the costs thereof, and with directions that such repairs are to be done after the parties’ respective experts have an opportunity to conduct further inspections to ascertain the cause of the damage to the Waterproofing Layer and the External Walls.

F.  Expert directions

50.  Both parties agreed that, should the court dismiss the summary judgment application or grant leave to defend, they would jointly seek leave for expert directions to be given. After the hearing, the parties jointly submitted a set of proposed expert directions on 9 June 2023 for the court’s consideration.

51.  Having considered the proposed expert directions prepared by the parties, I would make the expert directions as set out in the Appendix hereto.

G.  Disposition

52.  For the foregoing reasons, I would:

(1)  grant unconditional leave to the defendant to defend this action;

(2)  dismiss the plaintiff’s applications for an order under Order 14A and for judgment on admissions under Order 27;

(3)  upon the plaintiff’s undertaking that (a) if the court later finds that this order has caused loss to the defendant or any other party and decides that the defendant or that other party should be compensated for such loss, the plaintiff will comply with any order the court may make, and (b) the plaintiff shall permit the defendant to remove the existing tiles on the Flat Roof for the purposes of facilitating the Works (as defined below), allow the plaintiff’s application for mandatory interlocutory injunction and order that:

(a)  the defendant shall, within 75 days from the date of this order, either by itself, its agents or servants, commence works to remedy the existing defects and damage in respect of the Waterproofing Layer and External Walls and carry out all necessary and proper repair, maintenance, remedial measures and improvements thereto (“Works”);

(b)  the plaintiff shall give reasonable access to the defendant, its agents and servants to Flat 12A and the Flat Roof for the purposes of performing the Works within 120 days from the date of this order;

(c)  the defendant shall meet the costs of the Works at first instance, subject to arguments later as to who shall ultimately be responsible for the same and whether there shall be reimbursements of such costs by the plaintiff to the defendant.

53.  On the issue of costs, in view of the parties’ respective success on the four applications, and bearing in mind that an overall view of the justice of the case will serve as the best guide to determine the question of costs, as explained by Ma CJ in Cathay Pacific Airways Limited v Kwan Siu Wa Becky and Others, FACV 5 of 2012 (26 July 2013), §4, I would make an order nisi that:

(1)  40% of the costs of the summons be in the cause, to reflect the unconditional leave to defend given to the defendant;

(2)  30% of the plaintiff’s costs of the summons be in the cause, to reflect the plaintiff’s success in obtaining a mandatory interlocutory injunction; and

(3)  the plaintiff shall pay 30% of the defendant’s costs of the summons, to be taxed if not agreed, to reflect the defendant’s success in resisting the Order 14A and Order 27 applications by the plaintiff.

For each of the above costs orders, I grant a certificate for one counsel.

APPENDIX

1.  The plaintiff do have retrospective leave to adduce the following expert reports as expert evidence at trial:

(1)  the water seepage inspection report prepared by Silver Consultants Engineering Limited dated 4 August 2020;

(2)  the structural report prepared by Mr Andy Chan dated 15 February 2022;

(3)  the structural analysis of roof loading report prepared by Dr Yau Pak Man (“Dr Yau”) dated 16 February 2022;

(4)  the interior condition inspection report prepared by Dr Yau dated 6 October 2022; and

(5)  the opinion prepared by Dr Yau and Mr Andrew CY Ng dated 13 March 2023.

2.  The defendant do have retrospective leave to adduce the following expert reports as expert evidence at trial:

(1)  the thermographic report for water seepage survey prepared by CME Solutions Limited dated 18 December 2019; and

(2)  the expert opinion prepared by Mr Simon Cheung Wai Sum dated 28 February 2023.

3.  Leave to the parties to adduce expert evidence in relation to the following issues on liability and quantum:

(1)  whether the drainage and pipeline of the water tank (as defined in paragraph 8 of the statement of claim) on the roof of Block 2, Dragon Inn Court (“Building”) was or is a source of water seepage in the plaintiff’s premises at Flat 12A of the Building (“Flat 12A”);

(2)  what are the exact locations of water seepage in Flat 12A, and the cause(s) of such seepage at each of the water seepage locations (eg the waterproofing layer (as defined in paragraph 2 of the statement of claim), the external walls, the aforesaid water tank and/or other sources);

(3)  whether the waterproofing layer only serves Flat 12A;

(4)  whether there were or are any works on the flat roof immediately above Flat 12A (“Flat Roof”) which are not in accordance with the approved building plans, and if so, whether such works were or are a cause of water seepage in Flat 12A;

(5)  what caused the waterproofing layer and the external walls to be damaged; and

(6)  what repair or remedial works should be conducted in the areas affected by water seepage in Flat 12A, and what are the costs of such works.

4.  Each party may call one expert witness to give evidence at trial. The parties shall report the respective names and professions of their appointed experts by way of a joint letter to the court within 14 days from the date of this order.

5.  There be joint inspection(s) and/or examination(s) by the parties’ appointed experts of Flat 12A, the Flat Roof, the external walls and the roof top of the Building within 60 days from the date of this order.

6.  The plaintiff shall give reasonable access to the defendant’s appointed expert to Flat 12 and the Flat Roof upon reasonable notice for the purposes of carrying out joint inspection(s) and/or examination(s) with the plaintiff’s appointed expert in Flat 12A and on the Flat Roof within 60 days from the date of this order.

7.  The parties shall exchange their respective expert reports within 42 days after the joint inspection(s) and/or examination(s).

8.  The parties’ respective experts do meet on a without prejudice basis, within 30 days after the exchange of their expert reports, for the purpose of preparing a joint statement pursuant to RDC Order 38, rule 38. The joint statement shall contain a statement of truth and declaration in compliance with the Code of Conduct (Appendix E of the RDC) pursuant to RDC Order 38, rule 37C. The joint statement shall succinctly identify:

(1)  the parameters upon which each expert opinion is based, and if different parameters have been used, the reasons for adopting different parameters;

(2)  the matters on which the experts have reached a common opinion and why they have reached such common opinion;

(3)  the matters on which the experts have failed to reach a common opinion and what their competing views are; and

(4)  all reasons given for an expert’s disagreement with the opposing expert’s views on the same matter.

9.  The joint statement shall be lodged with the court by the plaintiff within 42 days after the experts’ without prejudice meeting referred to at paragraph 8 above.

10.  No further expert evidence shall be adduced without the leave of the court.

11.  Costs of the application for expert directions be in the cause.