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HCCT 18/2020
[2022] HKCFI 1488
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO 18 OF 2020
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IN THE MATTER of the Building Management Ordinance, Cap 344 of the Laws of Hong Kong |
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and |
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IN THE MATTER of the Deed of Mutual Covenant dated 23 March 1985 registered in the District Land Office Tai Po by Memorial No 232028 |
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BETWEEN
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MEMORAN COMPANY LIMITED |
Plaintiff |
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and |
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THE INCORPORATED OWNERS OF MEI HING MANSION |
Defendant |
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Before: Deputy High Court Judge Winnie Tsui in Chambers
Date of Hearing: 3 May 2022
Date of Decision: 3 May 2022
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DECISION[1]
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1. This is my decision on the transfer summons[2] and also the variation summons[3].
2. For the transfer summons, I make an order in terms of paras 1 and 2 of that summons.[4]
3. I am prepared to apply the most liberal reading of para 3(2) of Practice Direction 6.1 and I will proceed on the basis that this case, which is a water leakage case involving some building or construction work, comes within that paragraph.
4. But there still remains the question as to whether the court should exercise its discretion to allow the case to remain in the Construction List or to transfer it to the General List. My primary consideration is whether the present case warrants the deployment of the knowledge and experience of the specialist judge and, more generally, which course of action would better promote the procedural economy for the disposal of the present case.
5. The present action is a run-of-the-mill water leakage case. The primary question is whether the damage to the structural concrete slab is due to water leaking from the fourth floor common parts or the other units on the fourth floor, or is due to the fact that the plaintiff had previously installed a false ceiling to the premises.
6. It is plain to me that the case does not require the specialist skill and experience of the construction judge. It will involve expert evidence. But like any other civil case which involves expert evidence, any judge in the General List will be able to manage and dispose of the present action.
7. For the variation summons, I allow the summons and make an order with the changes that we have just gone through, namely, in para 1 of the summons, it should read “the amended order” in the first line, and also the two changes made to paras 2.1 and 2.4 of the schedule[5].
8. My brief reasons are as follows.
9. The starting point of the consideration must be the factual premises on which I made the interlocutory injunction order in December 2021. See my decision at [2022] HKCFI 50. The first factual premise was that there is no dispute that the concrete slab was damaged. The second factual premise was that the damaged concrete slab poses a physical danger to those who live and work in the premises. Hence repair work was needed and on an urgent basis.
10. After the plaintiff gave the undertaking to allow the defendant’s expert to conduct tests on the premises, the work was expected to commence straight away. Now that four months have passed, no work has yet commenced. The parties are still stuck at the quotation stage. The defendant has not taken any step to arrange for its own expert to conduct inspection and tests on the premises.
11. At this stage, the primary concern of the court must be to stop this matter being dragged on anymore.
12. There are two alternatives before the court today. The first is to impose a further timetable and allow the defendant to remain responsible for carrying out the work. The second option is for the plaintiff to have carriage of the work.
13. Having considered the materials before me, I am of the view that the court should adopt the latter option. I am of the view that the defendant has not been entirely co-operative in ensuring that the work is commenced as soon as practicable. Of course, the last few months saw a huge surge in COVID cases and the parties’ efforts must have been hampered by this. But that only applied to the period from late January to late March.
14. But this development does not explain two things. First, why the defendant initially took the view that the injunction order which was granted in December did not cover work on the waterproofing system when it plainly does. The second thing is why the defendant has so far taken no step to arrange for the expert to attend the premises to conduct tests for the purpose of this litigation. The excuse was that the defendant needed leave of the court to adduce expert evidence. That excuse is plainly a bad one.
15. The court must not allow the half-hearted approach of the defendant to drag on this matter further and there is no reason to think that the plaintiff might have some other motive to do a bad job. Hence, I think the proper course for me to take today is to vary the order pursuant to Order 45, rule 8. Hence, I make the order in terms of the variation summons as amended.
[Submissions on costs]
16. So the defendant do have costs of the transfer summons to be summarily assessed if not agreed. Even though this is a late application, it is plain that this action, being a run-of-the-mill water leakage case, should not have been commenced in the Construction List.
17. The plaintiff do have costs of the variation summons to be summarily assessed if not agreed. I grant a certificate for attendance by junior counsel only.
18. Parties who have been awarded costs should lodge their respective statements of costs within seven days from today. The paying parties do lodge and serve their lists of objections, if any, within seven days after that. The summary assessment be conducted on the papers after the deadline.
19. And there are three other summonses, so I will just adjourn those summonses pending the transfer of the action.
[Discussion re the expert summons filed by the defendant on 17 February 2022]
20. The expert summons be adjourned pending the transfer of the action, with costs of today’s hearing be reserved.
[Discussion re the summons for further and better particulars filed by the defendant on 12 April 2022]
21. The F&BP summons be adjourned pending the transfer of the action, with costs of today’s hearing be reserved.
[Discussion re the case management summons filed by the plaintiff on 21 February 2022]
22. The CMS be adjourned pending the transfer of the action, with costs of today’s hearing be reserved.
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( Winnie Tsui ) |
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Deputy High Court Judge |
Mr Bernard Man, SC and Mr Danny Tang, instructed by Jones Day, for the plaintiff
Mr Andrew Wong Charn Hung, of Huen & Partners, for the defendant
The Amended Order of Deputy High Court Judge Winnie Tsui dated 23 December 2021 (“Amended Order”) as to para 2 of the plaintiff’s summons filed on 30 June 2021 be varied and replaced as per the Schedule to this order, save and except the costs order under para 4 of the Amended Order do remain binding on the parties.
SCHEDULE
1. Upon the plaintiff’s undertaking that:
1.1 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 that loss, the plaintiff will comply with any order the court may make.
1.2 The plaintiff shall give reasonable access to the defendant’s appointed expert to the Premises (as defined in para 1.2 of the statement of claim) upon reasonable notice for the purposes of the inspection / test in paras 2.2 and 2.3 of the order below.
2. It is ordered that:
2.1 The plaintiff (including its appointed contractors and/or agents) be given leave to, within 35 days from the date of this order, commence works as per the quotation dated 27 January 2022 from 升級裝修設計工程公司to remedy the existing defects and damage in respect of the Structural Concrete Slab (as defined in para 9 of the statement of claim) and carry out all necessary and proper repair, maintenance, remedial measures and improvements (“Work”), including but not limited to:
i. repairing, replacing, improving and/or otherwise remedying the spalled concrete;
ii. repairing, replacing, improving and/or otherwise remedying the steel reinforcement which has been exposed and seriously oxidized and damaged by rusting;
iii. repairing, replacing, improving and/or otherwise remedying the Structural Concrete Slab which has been affected and damaged by water seepage; and
iv. repairing, improving and/or otherwise remedying any cracks, stains, detachments, spalling, corrosion and/or any other damage in respect of the Structural Concrete Slab,
with certificate of satisfaction to be issued by an independent authorised person to be appointed by the parties with liberty to apply if the parties could not agree on the candidate.
2.2 The defendant shall (i) give reasonable access to the plaintiff (including its appointed contractors and/or agents) to the common parts of Mei Hing Mansion, Nos 1-17 Yan Hing Street, Tai Po, New Territories upon reasonable notice and (ii) provide all necessary assistance by exercise of their rights and powers under the Deed of Mutual Covenant and/or the Building Management Ordinance, Cap. 344, for the purposes of the Work.
2.3 The defendant shall inspect and/or conduct water seepage tests on the Structural Concrete Slab (for the purposes of preparing its expert evidence for the trial of this Action) within 28 days from the date of this order, failing which the Work shall commence as per para 2.1 above regardless of whether the defendant has completed the necessary inspection / test.
2.4 The plaintiff shall meet the costs of the Work at first instance (subject to arguments later as to who shall ultimately be responsible for the costs of the Work and whether there shall be reimbursements of such costs, and if so, how much, by the defendant to the plaintiff).
2.5 General liberty to apply.
[1] The footnotes do not form part of the oral decision delivered at the hearing. They are added to this written decision for ease of understanding.
[2] Taken out by the defendant on 12 April 2022.
[3] Taken out by the plaintiff on 14 April 2022.
[4] Namely:
(1) There be time extension for the defendant to file this application notwithstanding the time stated in Order 72, rule 6(2) of the Rules of the High Court has expired;
(2) The proceedings herein be removed from the Construction and Arbitration List and transferred to the general list of Civil Action.
[5] The full order is reproduced in the annex to this decision.
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