LEUNG WAN MING v. LIE MEY FONG

HCA 1267/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1267 OF 2011

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REASONS FOR DECISION

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1. After hearing the parties, I announced my decision. Here are the reasons.

Introduction

2. This is a water leakage case.  The plaintiff, being the owner of a ground floor shop, alleges that water has leaked and is leaking from the defendant’s premises just above his shop.  The defendant’s premises consist of Flat G on the first floor and a Flat Roof G outside the flat, which are directly above the plaintiff’s premises. 

3. By a summons taken out on 20 August 2012, which is before me, the plaintiff seeks leave to carry out tests referred to in the plaintiff‘s exhibit LTKA-3 within 7 days, with an order that the defendant give the plaintiff and his expert and representatives access, on reasonable prior notice by the plaintiff, to the defendant’s premises for the purpose of inspecting Flat Roof G when some structures are being removed.

The law

4. Order 29, Rule 2 of the Rules of the High Court provides:

“(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.”

5. This power has been expressly referred to in Wong Man Tat v Chan Yuen Man, CACV 347/2007, 24 April 2008, unreported, where the defendants wished to perform some tests in a water leakage case but was denied entry to the plaintiff’s premises.  Yuen JA observed:

“34. This brings me to the Defendant’s argument that the judge failed to consider the fairness and justice of the situation because the Plaintiff had refused the Defendants’ experts entry into #1802 for tests. One would expect legal advisers on both sides to be able to agree on mutual entry and inspection, but in the absence of agreement, it is always open to a party to apply to Court to authorize entry and inspection in interlocutory application under Order 29 of the Rules of the District Court.”

6. Mr Alexander Tang, for the plaintiff, has also drawn my attention to the English authority of Ash v Buxted Poultry Limited, The Times, 27 November 1989, where after holding that the taking of video recording was outside the scope of the Order 29 Rule 2, Brooke J nevertheless allowed it to be done on the basis of the inherent jurisdiction of Court.  The judge said:

“…for much of the jurisdiction of the High Court can only be made effective by indirect means…This is very much the case in one branch of the jurisdiction of the High Court, namely, its inherent jurisdiction to make interlocutory orders for the purpose of promoting a fair and satisfactory trial. I do not think there is now any question about the existence of this jurisdiction, which I shall refer to as the ‘ancillary jurisdiction’. It may be procedural in character, but it is much more than that. It is a jurisdiction which confers power, in the exercise of a judicial discretion, to prepare the way by suitable orders or directions for a just and proper trial of the issues joined between the parties. It was a jurisdiction known to the Ecclesiastical Courts and to the superior courts before the Judicature Act 1873.”

7. Mr Dixon Co, for the defendant, agrees that the Court has jurisdiction to grant the order sought.  The defendant also agrees with the plaintiff’s proposition that the experts should be allowed to carry out their own tests so long as they are reasonable.

Factual background and tests

8. Apart from the leakage problem, the plaintiff alleges that Flat Roof G was originally uncovered, with exposed sewers, drains, pipes, etc thereon, facilitating its access and maintenance.  However, the defendant had put on a layer of cement to cover the sewer, drains, pipes, etc, and built an additional room on part of Flat Roof G with a corrugated steel roof (“additional structure”) rendering it impossible for the plaintiff and other owners to inspect and repair the aging pipes.

9. On 28 February 2012, the Building Authority issued a Building Order under section 24 of the Building Ordinance, ordering the defendant to demolish the additional structure.  The deadline for the execution of the order, originally fixed for 27 April 2012, has been extended to 23 December 2012.

10. In exhibit LTKA-3, the plaintiff has set out the tests that his expert would like to carry out in the defendant’s premises that are related to the leakage problem.  This application is opposed by the defendant for a number of reasons, specifically referred to each of the particular tests to be carried out. 

11. On the dye water test (item 1) and dye water flooding test (item 2), the defendant’s objection is based on the fact that such tests had been conducted by the Building Department (“BD”) and the Food and Environmental Hygiene Department (“FEHD”) Joint Office (“Joint Office”).  It is alleged that the plaintiff wishes to carry out these two tests again in the defendant’s premises because the result of the Joint Office’s tests were not favourable to the plaintiff.  The defendant objects to repeating the same tests as they had already been conducted by an independent third party and to repeat the same tests will not advance the case in any meaningful way and will increase costs.

12. I note that the tests proposed by the plaintiff are not exactly the same as those carried out by the Joint Office.  While further tests conducted by the plaintiff’s expert will increase costs, it would be unjust if the plaintiff is refused leave on this basis alone because he wishes to have his own experts to carry out their own tests as they advise.  Whether the result of the tests will be helpful to the plaintiff’s case or will differ from the result of the tests carried out by the Joint Office, one does not know.  However, the independence of the Joint Office only goes to the weight of the evidence and not that the plaintiff’s suggested tests should not be carried out because they are not favour or will not be accepted by the Court.

13. One thing that is left to be addressed is that the dye water to be used in these two tests is objected to because even the plaintiff’s expert cannot be sure that no property damage will be done to the defendant’s premises.  The defendant is not comfortable with a mere statement from the plaintiff’s expert that the dye or dying material is “generally erasable”.  As to this, I consider that any damage caused by the dye should be indemnified by the plaintiff.  This matter can be investigated at the trial of this case. 

14. As to the time allowed for such tests to be carried out, there is an argument between the plaintiff (3 hours) and the defendant’s suggestion of 1-2 hours.  This is very difficult to decide without hearing expert evidence and this is not a proper stage for the Court to do so.  Therefore in order to err on the safe side, I will grant 3 hours for the duration of the tests.

The flow meter test and pressurized water pipe test (item 3 and item 4)

15. The main objection of the defendant to these two tests being carried out is that they may intervene or damage the water pipe or water meter of the defendant’s premises, especially when it is not disputed that the water meter is the property of the Water Services Department.  Any interference with the water meter may constitute a tort of conversion.

16. I note that the tests to be conducted by the plaintiff are such that a section of the defendant’s fresh water pipes will be removed between two joints so as to install an additional meter for the test.  When the tests are done, that section of the defendant’s fresh water pipe will be reinstated.  The existing water meter in the defendant’s premises will not be interfered or tampered with. I also grant leave regarding these two tests.

17. The parties do not have any disputes regarding the carrying out of the moisture contents check (item 5) proposed by the plaintiff and the HIS test proposed by the defendant.  In the circumstances, I also include these two tests in the order.

Inspection when the additional structure is being removed

18. By paragraph 3 of the summons, the plaintiff seeks leave in the following terms:

“Before the Defendant starts to remove the unauthorised building works (‘UBW’) referred to in the Building Order dated 28 February 2012, the Defendant shall first give the Plaintiff not less than 14 days prior notice in writing, such that the Plaintiff can, on prior appointment thereafter, enter into the Flat G and take picture/record of, and re-inspect the UBW and the exposed pipes, drains and structures whilst such UBW is in the course of being removed and the Flat Roof being reinstated to its original and proper condition.”

19. The defendant opposes and draws my attention to the Order dated 22 March 2012 of Master Lung giving directions on expert evidence, as follows:

“(1)f. Leave to the parties to adduce one expert report from each party…giving expert opinion ….as set out in paragraph 9 of the Plaintiff proposed directions…which is quoted below:-

… (2) whether and how the such UBW have impacted, caused and/or contributed to…(b) the Damage to the Plaintiff’s Shop (collectively ‘Damage’), including specifically: (i) whether such UBW have damaged the waterproof membrane and the water proof property/integrity of the floor slab/concrete structure (especially at the Flat Roof G area) of Flat G and (ii) whether such UBW have obstructed or prevented any necessary inspection and remedial work to be carried out and how.”

20. Mr Dixon Co, on behalf of the defendant, argues that what Master Lung has allowed is evidence to show whether or not the UBW damage the waterproof membrane, and not to specifically identify the cause.  He contends that this is not suggested that a specific identification of the cause would alter the conclusion of the experts as to whether or not the UBW have damaged the water proof membrane. The inspection sought by the plaintiff now is only for his expert to be more specific in his conclusion, and that these exceed the scope of the Master’s direction.  It is also argued that the usefulness in identifying exactly how the damage was caused is highly doubtful.  It is said that what the plaintiff needs to establish is that the alleged water seepage was caused by the defendant; he does not have to show how.  Whichever way the defendant caused the water damage, which is denied, the result would be the same.  Therefore, it is argued that as long as the Court can be told whether the defendant has caused the seepage, the Court can reach a fully informed decision without hearing evidence as to how or exactly how it is caused. 

21. I consider that these arguments do not help the defendant.  It is true that insofar the plaintiff can prove that the water seepage or leakage was caused by the defendant, that would be the end of the matter.  But if the plaintiff’s expert simply gives evidence with a bare statement that the water seepage was caused by the defendant, it would be very difficult for the Court to accept.  The exact cause of the seepage as the expert can find will assist the Court a long way to decide this key issue whether seepage was caused by the defendant.  The opportunity of the examining the sewers, drains and pipes, etc and the structures when the UBW are removed as requested by the plaintiff is reasonable, and indeed, helpful to the Court as it is to the resolution of disputes between the parties.  In the circumstances, I also make an order granting leave as sought in paragraph 3 of the summons.

22. The summons also asks for costs for carrying out the tests to be in the cause but seeks costs for the inspection to be to the plaintiff.  I consider that the costs of both of the matters that I allow should be in the cause.  I also order that the costs of this application be in the cause.

23. There is a consequential order to be made, which is that the date for exchange expert reports as stipulated in paragraph (1)f of Master Lung’s Order dated 22 March 2012 (referred to above) be extended to “within 28 days after the aforesaid tests are carried out”.  The date set down for the CMC be vacated and another appointment be fixed on a date not earlier than 40 days from today.

24. One should note that for this sort of orders allowing tests to be done and inspection to be carried out in a party’s premises, their success would need full cooperation between the parties.  I do not want any time, effort and costs to be wasted by disputes that may arise in the actual physical carrying out of this order.  I would urge the parties and their solicitors to bear in mind the spirit that is expected by the Court, as adumbrated by Yuen JA:

“… one would expect legal advisers on both sides to be able to agree a mutual entry and inspection.”