MEMORAN CO LTD v. THE INCORPORATED OWNERS OF MEI HING MANSION

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

________________________

________________________

________________________

________________________

DECISION[1]

________________________

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. 

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.

HCCT 18/2020

[2022] HKCFI 1028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 18 OF 2020

________________________

________________________

________________________

________________________

DECISION

________________________

Introduction

1.  At the end of the hearing on 23 December 2021, I delivered my decision on the plaintiff’s summons filed on 30 June 2021 (“the Summons”).  The decision has since been reduced to writing: [2022] HKCFI 50. 

2.  In para 1 of the Summons, the plaintiff sought final judgment for a mandatory injunction pursuant to Order 14.  In para 2, it sought, alternatively, an interlocutory injunction of the same scope pursuant to Order 29. 

3.  I dismissed para 1 of the Summons.  I granted the interlocutory injunction sought in para 2, subject to undertakings given by the plaintiff in the course of the hearing.  The undertakings are set out in para 53 of the decision (“the Undertakings”).

4.  After I delivered the decision, counsel made submissions on costs.  I then ordered that the plaintiff do have 70% of the costs of the Summons, to be taxed if not agreed: para 57. 

5.  By summons filed on 6 January 2022, the defendant applies for leave to appeal against my order on costs.  I shall adopt below the defined terms used in the decision. 

6.  Following the guidance laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759 at para 24, I gave directions for the lodging of written submissions.  Having read the submissions, I am satisfied that an oral hearing is not necessary and the summons is suitable for disposal on paper only. 

7.  In the draft notice of appeal, the defendant asks for the costs order to be set aside and the costs of the appeal including the costs of the Summons in the court below to be to the defendant. 

8.  However, in the defendant’s written submissions, Mr Lo Sek Man, counsel, seeks leave to appeal for the following orders instead:

(1)  The costs of the Order 14 application be to the defendant, to be taxed if not agreed; and

(2)  The costs of the application for the interlocutory injunction be in the cause. 

9.  Mr Lo has not drawn the court’s attention to the difference in the written submissions.  Nor has he explained why there is such a difference.  In this decision, I shall proceed on the basis that the written submissions represent the stance of the defendant in this application. 

10.  Separately, the draft notice of appeal contains five grounds.  I have to say that the drafting is repetitive and there is considerable overlap between the grounds.  In some of the grounds, the defendant has not spelt out precisely the error which it says I fell into when arriving at the costs decision.  It is only by looking at the written submissions that the defendant’s contentions become clearer.  Notwithstanding the deficiency in the proposed grounds of appeal, I am prepared to proceed to deal with the application by reading those grounds in conjunction with the submissions. 

11.  The submissions are not structured so as to follow the proposed grounds of appeal as they appear in the draft notice. 

12.  The application for leave to appeal is made by way of the summons, which incorporates the draft notice of appeal.  For that reason, I consider that it is more appropriate for me to structure my discussion below by reference to the proposed grounds as they are enumerated in the draft notice of appeal. 

13.  The first, second, fourth and fifth proposed grounds relate to the costs of the application for the interlocutory injunction.  I propose to deal with them together. 

14.  The third proposed ground relates to the costs of the Order 14 application.  That will be dealt with next. 

Legal principles

15.  The principles governing the threshold for granting leave to appeal are well established.  The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 14AA(4)  of the High Court Ordinance, Cap 4.  A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at para 7. 

16.  The general approach in an appeal against an order on costs is well-known. 

17.  Costs is very much a matter of discretion for the first instance judge and the Court of Appeal would be very circumspect in interfering with a decision with such high discretionary content.  In the absence of any palpable error in the exercise of the discretion on costs, the mere fact that the appellate judges might have exercised the discretion in a different manner is not a sufficient ground to warrant interference with the discretion of the primary judge: Chow Steel Industries Public Company Limited v Ko Sung[2021] HKCA 1642, at para 18. 

18.  When awarding costs in an interlocutory injunction, it is now recognised that there is no “starting point” or “default rule” that the costs of such an application should be in the cause of the action unless there is justification for its departure.  The court is entitled to and should look at the merits of the injunction itself as at the time of the application to decide what should be the proper costs order for that application in all the circumstances.  It does not necessarily depend on the outcome of the trial.  The court’s hands are not tied.  If factors are present that warrant an immediate order as to costs, the court may exercise its discretion to make such an order: Chow Steel Industries at paras 19, 21 and 27. 

The first, second, fourth and fifth proposed grounds

19.  These four proposed grounds relate to the costs of the interlocutory injunction.  The theme running through them is as follows.

20.  The defendant refers to the correspondence exchanged between the parties’ solicitors on 8 and 9 March 2021.  In that exchange, the plaintiff’s solicitors informed the defendant’s solicitors that the plaintiff had obtained a fee quotation, as an interim measure, to repair the structural concrete slab and if the defendant did not revert, the plaintiff would engage the contractor to commence urgent remedial works without further notice.  The plaintiff’s solicitors referred to para 3 of the previous order and stated that the defendant was responsible for the repair and was liable to repay the plaintiff the interim repair costs. 

21.  On the following day, the defendant’s solicitors replied that (1)  the recorder had already ruled that the cause and extent of the damage to the concrete slab was indeterminate at this stage, (2)  the plaintiff’s alleged need to carry out urgent repair and the quantum of the quotation were unsupported by expert evidence, (3)  the proposed work would destroy the evidence concerning the alleged water leakage, and (4)  the plaintiff should refrain from carrying out the proposed work and tampering with the evidence. 

22.  There was no reply to that letter from the plaintiff’s solicitors.  The proposed repair work did not proceed. 

23.  The defendant now draws a comparison between the plaintiff’s proposal in the March correspondence and the Undertakings which it gave at the hearing, and contends that the latter contained more favourable terms to the defendant than the former in three respects:

(1)  In the March correspondence, the plaintiff insisted that the defendant must repay the repair costs whereas in the Undertakings, the plaintiff would bear the costs at first instance, subject to arguments later as to who shall ultimately be responsible.

(2)  In the March correspondence, the plaintiff did not undertake to give the defendant access to its premises for the defendant to prepare its expert evidence whereas in the Undertakings, it did. 

(3)  In the March correspondence, the plaintiff had already obtained its own quotation whereas in the Undertakings, it agreed to approve or comment on a quotation to be obtained by the defendant. 

24.  The Undertakings were offered at the hearing, but not before. 

25.  The defendant emphasises that at the hearing, it agreed to the interlocutory injunction upon the giving of the Undertakings by the plaintiff.

26.  In the circumstances, the plaintiff could not be regarded as the practical winner.  Accordingly, I erred in coming to that conclusion. 

27.  More specifically, the defendant contends that:

(1)  I failed to notice the different stances adopted by the plaintiff in the March correspondence and the Undertakings (the first proposed ground). 

(2)  I failed to consider sufficiently the fact that the plaintiff did not reply to the defendant’s solicitors in the March correspondence (the second proposed ground). 

(3)  I failed to consider sufficiently the fact that the parties’ agreement to repair was substantially based on the Undertakings (the fifth proposed ground).

(4)  I therefore erred in treating the plaintiff as being successful in its application for interlocutory injunction when it was not (the fourth proposed ground).

(5)  I ought to have ordered the costs to be in the cause of the action because the liability issue on who should be responsible for repairing the concrete slab is yet to be determined. 

28.  In my view, the above contentions have no reasonable prospect of success as they are based on an incorrect factual premise.  In short, the interlocutory injunction was not granted by consent of the parties, as now alleged by the defendant. 

29.  As recorded in the decision, the plaintiff initially sought the interlocutory injunction on the basis that the injunction, if granted, would immediately be stayed pending the determination of the appeal in CACV 48/2021: para 1.  (The plaintiff sought the Order 14 judgment also on that basis.)  The plaintiff had an explanation for this approach: para 33. 

30.  Having heard the parties’ submissions, I was of the view that the interlocutory injunction should be granted.  On that indication, the plaintiff offered to provide undertakings which were to address the defendant’s concern about the tampering of evidence.  I therefore stood down the case for parties to agree on the form of the undertakings.  The effect of the undertakings would be that if they could be agreed, it would be unnecessary to stay the interlocutory injunction as originally suggested by the plaintiff.  The repair works could then start straightaway, without having to wait for the outcome of the appeal: paras 51 and 52 of the decision. 

31.  After some negotiations, the Undertakings were finalised with the court making rulings on the parts on which the parties had been unable to agree. 

32.  As can be seen, pursuant to the Undertakings, the defendant would be able to have its expert conduct tests on the plaintiff’s premises before repair work was to be carried out.  The defendant’s concern of evidence being tampered with was therefore addressed: para 53 of the decision. 

33.  In other words, the Undertakings were given for the purpose of dispensing with the temporary stay.  They were not given in exchange for the defendant’s agreement to the grant of the interlocutory application. 

34.  It must be stressed that the Undertakings did not form part of my reasons for granting the interlocutory injunction. 

35.  That is clear from my reasoning: see paras 42 to 50.  More particularly, I said at para 46 that if the defendant was compelled to repair now, the only realistic downside of granting the injunction would be that it would bear the repair costs in the meantime when it was not responsible to do so.  On the whole, I was satisfied that granting the injunction carried the lower risk of injustice than refusing one.  That conclusion was reached without taking into account the Undertakings at all. 

36.  To conclude, I granted the interlocutory injunction on its merits.  I did so not because the Undertakings were given.  The Undertakings were only relevant to the dispensation of the temporary stay.  The plaintiff therefore could and should properly be regarded as the successful party in the application. 

37.  Furthermore, as pointed out by Mr Danny Leung, counsel for the plaintiff, I held that it was a clear-cut case where granting the interlocutory injunction carried the lower risk of injustice than refusing one: para 44. There was therefore justification for making an immediate order as to costs instead of making the costs in the cause of the action: Chow Steel Industries at para 27. 

38.  For the above reasons, these four proposed grounds of appeal have no reasonable prospect of success. 

The third proposed ground

39.  In this ground, the defendant says that most, if not all, of the contents of the affirmations, submissions and authorities were focused on the Order 14 application, which was dismissed.  In the circumstances, I erred in ordering a discount to the costs granted in favour of the plaintiff.  Instead I ought to have granted the costs of the Order 14 application to the defendant for the following reasons:

(1)  Even on the basis that the plaintiff was the “practical winner”, the Order 14 application was a discrete claim and the Elgindata principle applied. 

(2)  The Order 14 application was made by the plaintiff improperly and unnecessarily.  This is because I found that the recorder had substantively ruled on the Order 14 application in the previous order and the plaintiff was estopped from making yet another Order 14 application in the Summons.  I ought to have ordered the plaintiff to pay the defendant’s costs of the Order 14 application, which was made improperly or unnecessarily pursuant to Order 62, rule 7(1). 

40.  In my view, this proposed ground is not reasonably arguable.  (I should reiterate that the proposed ground appearing in the draft notice of appeal is incomplete and does not set out the error which the defendant says I made.  The ground only becomes intelligible when read in conjunction with the written submissions.  I shall proceed to deal with this proposed ground, as developed in the written submissions.) 

41.  As recorded in para 1 of the decision, the plaintiff sought the injunction on two alternative bases.  First, a final one under Order 14. Second, an interlocutory one.  That the concrete slab was damaged was not in dispute: para 45.  There was evidence before me that the plaintiff had been trying to resolve the water seepage problem over the past five years: para 55.

42.  It is plain that the plaintiff’s primary objective was to get a mandatory order to compel the defendant to repair the slab at the earliest opportunity, so that the persisting water seepage problem which had been affecting its premises could be fixed as soon as possible: para 33. 

43.  In the end, I granted the mandatory injunction.  On that view, the primary objective of the plaintiff of having the slab repaired immediately was achieved.  It is true that it failed to get the injunction on a final basis. It still needed to proceed further with the action to achieve that.  But, at the conclusion of the hearing, it had the assurance that the defendant is now subject to a court order which compels it to repair.  Practically speaking, that was what the plaintiff had come to the hearing for.  The thing which it did not manage to get was to have the action disposed of once and for all, the injunction being granted only on an interim basis.  Taking a broad and pragmatic view of the matter, however, the plaintiff can be said to have been successful. 

44.  In my view, it was open to me to look at the plaintiff’s application from this perspective and concluded that it was the practical winner, subject to its failure to obtain the injunction in a final form.  

45.  On that basis, I consider that it was within my discretion to award the costs of the entire Summons to the plaintiff with a deduction to reflect its failure to secure a final order. 

46.  As repeatedly emphasised by the Court of Appeal, different judges might exercise their discretion on costs differently.  How I had exercised my discretion in the present case is arguably not the only way.  However, I had sought to do so by taking into account in a broad manner the practical objective of the plaintiff and assessing the extent of its success in a pragmatic way. 

47.  In my view, the defendant has not managed to point to any substantive ground on which the Court of Appeal would interfere with my conclusion. 

48.  The defendant contends that the Order 14 application is a discrete claim.  I think that this may be one possible way to analyse the matter.  The Order 14 application is for final relief whereas the Order 29 application is for interim relief.  The former turns in part on matters that do not affect the latter. 

49.  A different judge might have attached more weight to this aspect of the Summons.  But, for me, I considered that it was proper to attach more weight to the practical aspect of the case, namely the ultimate objective of the plaintiff.  Hence, regardless of whether the Order 14 application can be properly described as a discrete claim, I consider that I was entitled to exercise my discretion in the way I did. 

50.  As a separate point, I do not agree with the defendant’s observation that most, if not all, of the affirmations and submissions were devoted to the Order 14 application.  On the contrary, a large part of the evidence and submissions go to both the Order 14 application and the interlocutory injunction application.  They relate to the merits of the plaintiff’s claim, the procedural history, the efforts or steps taken by the parties to deal with the damaged concrete slab.  It would be clear from my discussion of the injunction application that those were the matters which I had considered when making my decision: paras 44 to 50. 

51.  It is of course correct that there were evidence and submissions which related to issues arising solely from the Order 14 application, namely, the construction of the previous order and whether the plaintiff was estopped from making a further Order 14 application.  See Questions 1 and 2 identified in para 11 of the decision.  In resolving these issues, the court needed to review the sealed copy of the previous order, the transcript of the hearing before Recorder Houghton, SC and the judge’s written decision. 

52.  Hence I applied the discount to reflect that the plaintiff was not successful in this regard. 

53.  Lastly, I disagree with Mr Lo’s submission that the Order 14 application was taken out improperly and unnecessarily.  The application was not successful.  But one cannot simply equate an unsuccessful application with an improper one or an unnecessary one.  A party who alleges that an improper or unnecessary application has been made needs to demonstrate something more. What that “something more” is must depend on the circumstances of each case. Here, the defendant has not pointed to anything at all save to say that the plaintiff was unsuccessful.  That is not enough. 

54.  For these reasons, the third proposed ground is not reasonably arguable.

Conclusion

55.  None of the proposed grounds of appeal enjoy any reasonable prospect of success.  There is no other reason why the appeal should be heard.  I therefore dismiss the defendant’s summons seeking leave to appeal. 

56.  I order that the plaintiff do have costs of the summons, summarily assessed at $60,000.

Mr Danny Tang, instructed by Jones Day, for the plaintiff

Mr Lo Sek Man, instructed by Huen & Partners, for the defendant

HCCT 18/2020

[2022] HKCFI 50

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 18 OF 2020

_________________

_________________

_________________

_______________

DECISION

_______________

INTRODUCTION

1.  Before me this morning is the plaintiff’s summons filed on 30 June 2021 seeking (a) final judgment for mandatory injunctive relief pursuant to Order 14 or, alternatively, (b) interlocutory injunction of the same scope pursuant to Order 29. In its written submissions, the plaintiff asks for a direction that in the event that the order in (a) or (b) is granted, that order be stayed pending the determination of the appeal in CACV 48/2021, which will be heard in May next year.

PROCEDURAL BACKGROUND

2.  Briefly, the relevant procedural background is as follows.

3.  The plaintiff commenced the present action in May 2020.

4.  It took out a summons on 30 November 2020 pursuant to Order 14 and Order 14A. It seeks the following reliefs:

“1.  The following question of law or construction (the “Question”) be finally determined without a full trial of the action:

“Whether, on a true consideration of the Deed of Mutual Covenant and/or the Building Management Ordinance (Cap. 344), the RC steel bars and the surrounding concrete in the floor slab between the 3^rd and 4^th Floors of Mei Hing Mansion (the “Structural Concrete Slab”) constitute a common part of the building.”

2.  The Question be answered in the affirmative.

3.  Judgment be entered for the Plaintiff against the Defendant for the following relief:

(1)  An order that the Defendant do forthwith repair, replace, improve and otherwise remedy the spalled concrete in the Structural Concrete Slab;

(2)  An order that the Defendant do forthwith repair, replace, improve and otherwise remedy the steel reinforcement in the Structural Concrete Slab which has been exposed, seriously oxidized and/or damaged by rusting.

…”

5.  I shall refer to this summons as “the previous summons”. The summons which is the subject matter of today’s hearing will be referred to as “the present summons”.

6.  The previous summons came before Mr Recorder Houghton, SC on 8 January 2021. That was a 9:30 hearing. The recorder made an order in terms of paras 1 and 2 of that summons. As regards para 3, he granted the following declarations instead of the mandatory injunctions sought by the plaintiff. The content of the declarations is however in substance the same as the injunctions. Para 3 reads:

“3. Judgment be entered for the Plaintiff against the Defendant for the following relief:

(1)  A declaration that the Defendant is responsible under the DMC and BMO to repair, replace, improve and otherwise remedy the spalled concrete in the Structural Concrete Slab;

(2)  A declaration that the Defendant is responsible under the DMC and the BMO to repair, replace, improve and otherwise remedy the steel reinforcement in the Structural Concrete Slab which has been exposed, seriously oxidized and/or damaged by rusting.”

7.  I shall refer to this order as “the previous order”.

8.  By notice of appeal lodged on 5 February 2021, the defendant appeals against the previous order. That is the appeal in CACV 48/2021.

RULING

9.  Having considered counsel’s submissions, I am satisfied that, in principle, the interlocutory mandatory injunction should be granted without any stay as initially suggested by the plaintiff but subject to additional undertakings offered by the plaintiff in the course of the oral submissions.

10.  In the interest of time, I do not propose to spell out and address counsel’s arguments one by one. Instead I shall go straight to address the questions which I consider to be material for determining the present summons.

11.  I set out these questions below.

(a)  Question 1 – Has the previous order made by the recorder on 8 January 2021 wholly disposed of the present action?

  If yes, it would follow that there is no further room for the plaintiff to take out and pursue the Order 14 and Order 29 applications and the present summons should be dismissed.

(b)  Question 2 – If the answer to Question 1 is no, is the plaintiff nonetheless estopped from pursuing (or should it otherwise be disallowed to pursue) the present Order 14 application, given that it had already made an Order 14 application in the previous summons?

  This primarily depends on whether the recorder has adjudicated on the Order 14 application at the last hearing. If the answer to this question is yes, the present Order 14 application should be dismissed. I should state at this point that in that event, I am not satisfied that there is any change of circumstances subsequent to the January hearing which would justify the plaintiff taking out the present Order 14 application, as submitted by the plaintiff.

(c)  Question 3 – If the answer to Question 2 is no, should the Order 14 application be granted?

(d)  Question 4 – If no, should the interlocutory injunction be granted instead?

DISCUSSION

Question 1

12.  In his written submissions, Mr Tim Wong, counsel for the defendant, takes the stance that the action has been wholly disposed of. In the course of his oral submissions this morning, Mr Wong confirms that he no longer maintains that position and submits that only partial final judgment was entered by the recorder.

13.  Notwithstanding the defendant’s change of stance, I shall still address Question 1 briefly as the scope of the adjudication of the recorder is still potentially relevant to the other questions.

14.  The answer to Question 1 turns on a proper construction of the previous order.

15.  Generally speaking, the construction exercise is an objective one. The express wording of the order should be construed against the proper context. The context comprises the background against which the order is made. The task is to deduce the objective intention of the court, as revealed from the order when it is looked at against the background.

16.  On the face of the sealed order, it does appear to be a final order which has disposed of the entire action. I say this because:

(a)  The Question posed by the plaintiff is ruled to be suitable to be finally determined without a full trial: see para 1 of the sealed copy of the previous order.

(b)  The Question is determined in the affirmative: see para 2. That ruling is in favour of the plaintiff.

(c)  Judgment was entered for two declarations in favour of the plaintiff: see para 3.

(d)  Finally, in para 4 of the sealed order, the recorder not only awarded the costs of the application to the plaintiff, he also gave costs of the action to the plaintiff.

17.  Drawing on point (d), the immediate conclusion would seem to be that the action had been disposed of as otherwise the recorder would not have made an order on the costs of the action itself.

18.  However, as just mentioned, an order is not to be construed by merely looking at the express wording in isolation. Here, the context and background against which the previous order was made is important. They can be found in the transcript of the hearing and also in the written decision handed down by the recorder subsequent to the hearing: see [2021] HKCFI 154.

19.  I reproduce the relevant parts of the written reasons below:

“18 In exercising the discretion as to whether an application under O.14A is an appropriate course of action, the parties and the Court will ordinarily, find it appropriate to consider whether the issue or question of construction in question will significantly clarify the respective rights and obligations of the parties in the context of their wider dispute, if it does not by itself resolve such disputes. In my judgment, clarification of the party bearing legal responsibility for the maintenance of the concrete slab in question provides such assistance to the parties in the present case.

The Ambit of the Summons [ie the previous summons]

19. Paragraph 3 of the summons sought orders that the defendant should act on its responsibility to make good defective and damaged concrete in the relevant slabs. This was a more problematic request since the extent of such damage was indeterminate, as was its cause (albeit that some expert evidence has been provided by the plaintiff). This was not a question of interpretation or construction, and was factually sensitive, so the paragraph sought a judgment under O.14 in effect.

20. Since it was clear that the cause and extent of damage required factual evidence (at least), this paragraph as framed was not amenable to final determination at this stage. Accordingly, through discussion at the hearing, the form of relief sought by these paragraphs was modified, so as to become a “simple” declaration of responsibility on the part of the defendant for such repairs as may be required.” (underline added)

20.  Further, at para 27, the recorder wrote, “The costs of the summons are to be to the plaintiff.” There was no mention of the costs of the action.

21.  I also reproduce the relevant parts of the transcript below:

“MR WONG [the defendant’s solicitor]: Even if that is so, the defendant’s position is that this involves both facts and expert evidence to be heard in a trial. My Lord, may I refer to the Court of Final Appeal’s decision and also I have just handed in a District Court decision. Although it is a lower court decision I respectfully hope that your Lordship can consider the judgment therein which is now I think is on your table.

…

MR WONG: Yes. Yes.

“... it is inappropriate to use the procedure of Order 14A if the issues of the facts are interwoven with the legal issue to be determined.”

COURT: Yes, okay. I have read it, Mr Wong.

MR WONG: Yes.

COURT: The proposition is that if the case is fact-sensitive then Order 14A is not an appropriate avenue to pursue.

MR WONG: Sorry.

COURT: If the case or the matter or the issue is fact-sensitive, then Order 14A is not an appropriate course to pursue.

MR WONG: Yes.

COURT: That’s your proposition.

MR WONG: Yes, because water seepage case involves facts which are not suitable for Order 14 application at all.

COURT: Yes, but this application doesn’t actually involve the water seepage aspects of this dispute, does it?

MR WONG: Sorry. Pardon me because I ...

COURT: I’m sorry, Mr Wong. We are all under some difficulty here. This particular case or the application rather, does not involve the water seepage aspects of this case. The application relates only to the definition in the DMC ...

MR WONG: Yes, and ...

COURT: ... of the concrete slab.

MR WONG: Yes, the term actually does not appear to involve the DMC and the Building Management Ordinance, especially the term “RC steel bar”.

COURT: The question that I am being asked to determine summarily is whether this concrete slab is common parts within the terms of the DMC.

…

MR WONG: …

And -- so this involved a finding of the court as to whether the individual owner is responsible or the incorporated owners are responsible, so such water seepage case is not suitable for summary judgment. There are many cases about this.

COURT: I think we have covered it already, Mr Wong, but this is not, as far as today is concerned, a water seepage case. This is a case or a question as to the construction of the DMC and whether the concrete slab is part of the common parts. …

…

COURT: Yes, thank you, Mr Lee, thank you. So subject to those amendments, I will make an order in terms of paragraphs 1, 2 and 3 of this summons, as amended, and paragraph 4, costs, Mr Wong, do you oppose an application for costs? Mr Wong?” (underline added)

22.  In my view, it is plain from the above extracts that the recorder was of the clear view that there were factual issues that could not be determined in a summary way at an interlocutory stage. These factual issues concerned the extent of the damage to the structural concrete slab and the cause of such damage. He referred to these factual issues as “the water seepage aspects of this case”.

23.  It is clear that he expressly refrained from making any determination or expressing any view on these factual issues. To put it bluntly, he did not want to touch on these factual topics at all at the hearing. In effect, he acknowledged that they would have to be resolved at some stage in the future.

24.  It follows that these factual disputes remain to be live issues in this action.

25.  I would therefore answer Question 1 in the negative. The previous order did not wholly dispose of the present action.

26.  I should add that I am also of the view that para 4 of the sealed copy of the previous order contains a manifest error in that it should not cover the costs of the action. This must also be a logical conclusion flowing from Mr Wong’s concession that the action has not been wholly disposed of by the order.

Question 2

27.  It is clear from the transcript that the recorder did not want to grant the injunction at the hearing. It was out of his own initiative that he proceeded to grant the declarations instead. The relevant exchange with counsel is as follows. (The injunction was sought in para 3 of the previous summons.)

“COURT: … Mr Lee [the plaintiff’s counsel], paragraph 3 of the summons, 3(2) you have asked me to make an order in terms of, I don’t see, firstly, a great difference between 3(1) and 3(2).

MR LEE: I can appreciate that.

COURT: One is related to concrete and one is related to reinforcement.

MR LEE: Yes.

COURT: You can’t really do one without the other, that’s point 1.

MR LEE: Indeed.

COURT: Point 2, I’m slightly troubled by the ambit of the work which is somewhat unclear.

…

COURT: ... It’s a little bit unclear as to the extent of the work and I am slightly troubled by that. I don’t know if you have anything to say on that.

MR LEE: My Lord, if your Lordship is troubled by the wording “spoil”, I mean perhaps a change of wording to simply “The defendant do repair, replace, improve and otherwise maintain the concrete and steel bars”. Would that address ...

COURT: A declaration that the defendant is responsible to?

MR LEE: That would be agreeable as well.

COURT: Mr Wong, I am proposing that paragraph 3 of the summons be slightly amended or in terms of the order I will make so as to represent a declaration that the defendant is responsible for the repair and maintenance. So the wording will be slightly modified and obviously the “forthwith” would have to come out although no doubt the court would expect ...

MR WONG: May I request my learned friend to repeat the whole sentence how -- what is his suggestion?

COURT: Yes. The wording will have to be resolved, Mr Wong, but in essence what I’m suggesting is that the paragraph 3 …

MR WONG: Paragraph 3, yes.

COURT: ... be changed into a declaration rather than an order and it’s a declaration as to the responsibility of your clients for the repair, replacement, etc.” (underline added)

28.  It is plain from this extract and also the previous extracts at para 21 above that the recorder had formally ruled on the plaintiff’s application contained in para 3 of the previous summons. Para 3 asked for injunctions. The recorder said he was unsure about it because the ambit of the work required was not clear. He proceeded to make an order on para 3 by instead granting the declarations. All the time, he was having in mind the injunctions. He did not feel it right to grant them. He did not in fact grant them. In my view, he had dealt with them substantively. I would therefore conclude that the Order 14 application made in the previous summons had been fully dealt with.

29.  I do not accept the submissions of Mr Bernard Man, SC, appearing with Mr Danny Tang for the plaintiff today, to the effect that there was no adjudication by the recorder on the injunction application.

30.  It follows that the plaintiff is now estopped per res judicatum from making yet another Order 14 application seeking essentially the same relief. I answer Question 2 in the affirmative. For that reason, the Order 14 application would be dismissed.

Question 3

31.  In light of my answer to Question 2, Question 3 does not arise. But I will just deal with it briefly in case I am wrong on Question 2.

32.  The special feature regarding the present Order 14 application is that the plaintiff has (initially) tied its execution to the outcome of the appeal.

33.  It is recognised that if the appeal is allowed and the declarations set aside, the summary judgment obtained here (if granted) cannot stand. Hence the plaintiff is content to wait for the outcome of the appeal and in the meantime have the summary judgment stayed. The reason why it is making the application now rather than after the appeal is that it does not want to suffer any further delay after (and in the event) the appeal is decided in its favour. It will straightaway have in place a mandatory injunction against the defendant so that the water seepage problem which has affected its premises for the past five years can be fixed at the earliest opportunity.

34.  I am of the view that summary judgment should not be granted.

35.  The defendant has raised the defence that the damage to the structural concrete slab was in fact caused by the plaintiff when it drilled holes into the slab when installing false ceilings in the premises in the past. This is a factual allegation that cannot be resolved summarily. If made out, it seems that the defendant has an arguable case that it should not be held responsible for repairing the damage. That is the provisional view expressed by the Court of Appeal when it determined a related application in this action recently: see [2021] HKCA 1146 at para 19.

36.  In the circumstances, the defendant has established an arguable defence and that would defeat the summary judgment application.

37.  Mr Man invites me to nonetheless proceed to grant judgment given that there are as of now binding declarations made by the recorder which are to the effect that the defendant is responsible to repair (see para 6above). That is an order presently in force.

38.  Based on that, Mr Man says I should have no difficulty in granting judgment which is merely to give effect to the declarations. And because of the way the summary judgment is bundled up with the outcome of the appeal as devised by the plaintiff, if the declarations turn out to have been wrongly made, my summary judgment would also go. Hence there is nothing wrong in granting summary judgment now. On the other hand, according to Mr Man’s submissions, it would be wrong for me to refuse summary judgment as that is in effect a failure to recognise the binding effect of the declarations now in place.

39.  There may be some merit in this argument.

40.  However, when answering Question 1 just now, I have referred to how the recorder had expressly refrained from dealing with the factual issues arising from “the water seepage aspects of the case”. Nevertheless, he proceeded to make declarations that the defendant is responsible to repair the structural concrete slab: see, in this regard, paras 20 and 21 of the Court of Appeal decision. In the light of these observations, I do not consider that it is right for me to proceed now to make a final determination of the rights and obligations of the parties at this interlocutory stage. These should be left to be dealt with at trial.

41.  I would therefore not grant summary judgment if the plaintiff was not debarred from taking out the present Order 14 application.

Question 4

42.  As noted at the outset, I am satisfied that an interlocutory mandatory injunction should be granted. The short reason is that it is the best course to take to do practical justice in the present circumstances.

43.  We are dealing with a mandatory injunction here. I shall apply the approach 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 at para 4:

“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, in additional to prohibitory, 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.”

44.  There is clearly a serious issue to be tried that the defendant is liable to repair the structural concrete slab. I am indeed further satisfied that there is a high degree of assurance that at the end of the trial of the action, the injunction was rightly granted. Even if that is not the case, it is a clear-cut case where granting the injunction now carries the lower risk of injustice than refusing one.

45.  There is evidence before me that there has been an incident of spalled concrete block falling off from the ceiling. There is further evidence that the concrete was peeling off from the ceiling. It is not in dispute that the slab is damaged. If the damaged slab continues to remain in its current state, this creates a risk of physical danger for those who reside and work in the premises, where an elderly nursing home is operating. Damages are clearly not an adequate remedy when such risk materialises.

46.  On the other hand, if the defendant is compelled to repair now, the only realistic downside is that the defendant will bear the repair costs in the meantime when he is not responsible to do so.

47.  The balance of convenience lies in favour of an injunction being granted now.

48.  I have considered whether there is any delay in the present application. Notwithstanding that the action was commenced in May 2020, no application has been made for an interlocutory injunction up to now.

49.  But in the meantime, it is not the case that the plaintiff has been sitting on the problem. It has taken out the previous summons hoping that a favourable outcome would compel the defendant to take action. In March this year, the plaintiff in fact suggested that it could engage its own contractors to carry out the repairs and asked the defendant to co-operate and to pay its costs. But even that request has been refused by the defendant (on the basis that the evidence should not be tampered with).

50.  In the circumstances, the plaintiff cannot be accused of any delay in applying for the injunctive relief.

51.  On the indication that I am inclined to grant an interlocutory mandatory injunction, the plaintiff has offered to provide a number of undertakings which are to address the defendant’s concern about the tampering of evidence.

52.  On that basis, parties have discussed the forms of those undertakings. Based on the resulting draft of those undertakings, the interim injunction can take effect immediately and there is no need to impose a temporary stay. This way, the repair works can hopefully start soon.

CONCLUSION

53.  For the above reasons, I dismiss para 1 of the present summons. As to para 2, I make the following orders:

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 that loss, the plaintiff will comply with any order the court may make.

(b)  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 inspecting and/or conducting water seepage tests on the structural concrete slab (as defined in para 9 of the statement of claim) within 70 days from the date of this order.

(c)  The plaintiff shall use its best endeavours to approve the Quotation (as defined below) or to give comments on it within 14 days after receiving the Quotation.

(d)  The plaintiff shall meet the costs of the Work (as defined below) (as approved by the plaintiff) at first instance and deposit such costs with the defendant within 14 days thereafter (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 by the defendant to the plaintiff).

It is ordered that:

(a)  Within 28 days from the date of this order, the defendant shall provide a quotation (“the Quotation”) for the Work to the plaintiff.

(b)  Within 14 days from the payment of the deposit or the completion of the inspection and/or tests, whichever is later, the defendant shall, either by itself, its agent or servant or otherwise, commence works to remedy the existing defects and damage in respect of the structural concrete slab and carry out all necessary and proper repair, maintenance, remedial measures and improvements (“the 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

(c)  General liberty to apply.

[Submissions on costs]

54.  I am going to take a broad and pragmatic view of the matter.

55.  It is plain from the history of the case that the plaintiff has been trying to resolve the water seepage problem which has persisted over the past five years in a reasonable and sensible way. As recently as in March this year, it offered to conduct the repair works. But even that was refused.

56.  In this hearing, the plaintiff is the practical winner. It should have costs. But a discount should be applied to reflect the failed Order 14 application.

57.  I order that the plaintiff do have 70% costs of the present summons, to be taxed if not agreed.

58.  I grant certificate for two counsel.

HCCT 18/2020

[2021] HKCFI 154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 18 OF 2020

________________________

________________________

________________________

REASONS FOR DECISION

________________________

1.  By a summons dated 30^th November 2020 the plaintiff applies for the summary determination of a question of law or construction, namely:

 “Whether on a true construction of the Deed of Mutual Covenant and/or the Building Management Ordinance (Cap.344) the RC steel bars and the surrounding concrete in the floor slab between the 3rd and 4th Floors of Mei Hing Mansion (“the Structural Concrete Slab”) constitute a common part of the building.”

2.  The summons also seeks associated relief by way of orders that the defendant carry out repairs to the (allegedly) spalled concrete and damaged reinforcement in the relevant floor slab.

3.  The background to the application is as follows.  The plaintiff company is the owner of premises on the 3^rd floor of Mei Hing Mansions in Tai Po, while the defendant is the Incorporated Owners of that building.  The plaintiff’s premises are operated as a residential care home for elderly people.

4.  Above the 3^rd floor (which is a large unit in the podium of the building) are both residential units (in the building tower), and some separate roof areas.  It is this slab which is at the centre of the disputes in this action.

5.  Since 2016, or thereabouts, the tenant of the 3^rd floor unit has experienced water seepage problems, and complaints about this have been relayed to both the plaintiff and, later, the defendant.  It is the plaintiff’s evidence that inspection has revealed damage to areas of the slab structure comprising the ‘roof’ of the 3^rd floor premises.  Specifically it is said, the concrete is suffering from spalling in places, and the reinforcement in the slab is thus exposed, seriously oxidized, and rusted.

6.  There are factual issues as to the causes of this damage, but for present purposes, the focus is as to whether the defendant is the party responsible for arranging repair or rectification of such spalling and rusting as may exist.

7.  The plaintiff’s pleaded case is that the structural concrete slab which divides the 3^rd floor property from the flats and roofs above is a “common part” of the building for the purposes of the deed of mutual covenant (“DMC”) and/or the Building Management Ordinance (“BMO”).

8.  The plaintiff relies on the following provisions of the DMC and BMO Section 18 of the BMO states:-

“The corporation shall:

(a)  maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition;

(b)  carry out such work as may be ordered or required in respect of the common parts by any public officer or public body in exercise of the powers conferred by any Ordinance;

(c)  do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building.”

9.  Section 2 of the BMO, “common parts”:-

“(a)  the whole of a building, except such parts as having specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b)  unless so specified or designated, those parts specified in Schedule 1.”

10.  Schedule 1 of the BMO further defines common parts including:-

“5.1  External walls and load bearing walls, foundations, columns, beams and other structural supports.

5.2  Walls enclosing passageways, corridors and staircases.

5.3  The roofs, chimneys, gables, gutters, lightning conductors, satellite dishes and ancillary equipment, aerials and aerial cables.

…...”

11.  Further, section 3(u) of the DMC defines common areas as follows:

“(u)  the common areas and common services and facilities referred to in this deed shall include the following:-

(i)   The lobbies, lifts lobbies, entrances, staircases, landings, passages corridors and lifts which are not included in any part of the said Building exclusively owned by one owner or several co-owners.

(ii)   The sewer, gutter, drains, watercourses, cables, walls, pipes, pumps, tanks, wires, sanitary fittings, fire lighting and refuse disposal equipment and other apparatus and equipment used or installed for the benefit of the said Building as part of the amenities thereof and not by any individual owner for his own use or purposes.”

12.  For its part, the defendant admits that it is under a maintenance obligation pursuant to the BMO, and agrees that the relevant provisions are those quoted above.  The defendant does not however agree in its pleaded defence that the relevant concrete slab is a common part of the building.

13.  In its first submission in opposition to the plaintiff’s summons (dated 5 January 2021), the defendant’s primary position was that the true issue was the cause of damage to the slab, and that the plaintiff’s summons was unnecessary.  The determination of the issue in paragraph 2 of the summons would not be determinative of the whole dispute, nor was it appropriate for determination under O.14 or O.14A.  That the summons was “unnecessary” was, perhaps, because it was further submitted that should the court consider the O.14A application to be appropriate, then the defendant proposed not to contest the issue as to whether the slab was part of the common parts, and would amend its defence accordingly. 

14.  In a supplemental submission (7 January 2021), the defendant took a semantic point, contending that the “definition” of the slab adopted by the plaintiff in the Statement of Claim was not in precisely the same terms as that used in the Summons.  It was submitted therefore that there was some confusion, and a need for factual and expert evidence in order to decide whether the slab in question was a “common part”.

15.  It seemed to me that this afterthought by the defendant sought to draw a spurious distinction, where there was no real room for doubt as to what was under discussion namely a reinforced concrete slab. The defendant sought to sow confusion (by reference to these “definitions”) as to whether the plaintiff’s application related to the concrete, the reinforcement, or the whole slab, when a modicum of common sense showed clearly that it was the whole of the slab that was the subject of the dispute and the summons.

16.  I rejected the submission that evidence would be required to assist with the interpretation exercise.  In my view the terms by which obligations are imposed by the BMO and the DMC are matters of ordinary language, and are readily understood, and both may be and should be construed without the “assistance” of expert evidence.  There may be circumstances in which the language used in a contract is not readily understood without an understanding of the factual matrix in which the contract was made.  No such consideration applies to the interpretation of the BMO, and nor, in the ordinary case, will it apply to an agreement such as the DMC.  In the present case, all that is required is a simple understanding of the words used.  

Was the O.14A Procedure Appropriate?

17.  The fundamental purpose of O.14A is the determination, usually at an early stage, of a question of law, or of construction of a written instrument, without the time and expense of a trial. It is appropriate where there is an issue which is of sufficient importance as to either resolve the dispute, or at least considerably narrow the ambit of issues between the parties.  See Rockwin Enterprises Ltd v Shui Yee Ltd [2003] 3 HKC 174.  Where the issue is solely an exercise in construction, it is ordinarily an available procedure because, ordinarily, there is not only no need for evidence in aid of construction, such evidence is impermissible.  See generally Hong Kong Civil Procedure 14A/2/4.

18.  In exercising the discretion as to whether an application under O.14A is an appropriate course of action, the parties and the Court will ordinarily, find it appropriate to consider whether the issue or question of construction in question will significantly clarify the respective rights and obligations of the parties in the context of their wider dispute, if it does not by itself resolve such disputes.  In my judgment, clarification of the party bearing legal responsibility for the maintenance of the concrete slab in question provides such assistance to the parties in the present case.

The Ambit of the Summons

19.  Paragraph 3 of the summons sought orders that the defendant should act on its responsibility to make good defective and damaged concrete in the relevant slabs.  This was a more problematic request since the extent of such damage was indeterminate, as was its cause (albeit that some expert evidence has been provided by the plaintiff).  This was not a question of interpretation or construction, and was factually sensitive, so the paragraph sought a judgment under O.14 in effect.

20.  Since it was clear that the cause and extent of damage required factual evidence (at least), this paragraph as framed was not amenable to final determination at this stage. Accordingly, through discussion at the hearing, the form of relief sought by these paragraphs was modified, so as to become a “simple” declaration of responsibility on the part of the defendant for such repairs as may be required.

21.  I record, in light of a submission made on behalf of the defendant at the hearing that such applications to amend a summons under O.14A may be made otherwise than by summons, and may, indeed, be initiated by the Court itself. See Order 14A r. 1(1). 

Conclusion on Construction

22.  I am satisfied that the slab in question falls within the definition of a “common part” in part as a “structural support” (see Schedule item 1) and in part as a roof (Schedule item 3) under the BMO.

23.  I accept, as the defendant submits that the term “slab” is not itself used in the BMO definitions, but the formulation in the Schedule is clearly to be read inclusively, in such a way as to encompass matters of a similar nature and function.

24.  As regards the DMC, this is formulated largely by reference to the usage of spaces rather than their structural, or otherwise, construction.  The demarcation between common areas and others in the DMC turns on whether the part in question has been allocated as being “exclusively owned” by one or other owner.  The slab in question functions both as the “ceiling” of the plaintiff’s premises and also as a roof, or in part a floor of other premises.  It has not been allocated to the exclusive occupation of the plaintiff, or indeed anyone else.

25.  Even if this were incorrect however, the defendant would not be relieved of its obligations under the BMO, by reason of BMO s.2.

26.  In those circumstances, I concluded that the plaintiff was correct in its construction, and accepted that an order should be made in terms of paragraphs 1, 2 and 3 (as amended) of the summons.

27.  The costs of the summons are to be to the plaintiff.

Mr Jason Lee, instructed by Jones Day, for the plaintiff

Mr Wong Charn-hung, Andrew of Huen & Partners, for the defendant