Wong Aileen v Diasqua International Ltd [2024] 2 HKC 611, [2023] HKDC 1661

Jeff Yau represented the plaintiff in Wong Aileen v Diasqua International Ltd [2024] 2 HKC 611, [2023] HKDC 1661.

The action arose out of a dispute over suspected water seepage from the defendant’s property (‘D’s Property’) down to the plaintiff’s property underneath the D’s Property (‘P’s Property’). The defendant applied to vary the order regarding performance of water tests by the parties at D’s Property and filing of the corresponding expert reports, and to revoke the order allowing water ponding tests. On the other hand, the Plaintiff sought to set aside the order granting a stay of execution, which effectively ordered the defendant to allow water ponding tests be carried out by the parties’ experts in D’s Property, and an order that the defendant’s summons (for a stay) be dismissed. The defendant objected to the ponding tests on the following grounds: (1) The coverage of the test was far more extensive than the affected areas; (2) It might be the external/internal wall or drainage pipe instead of the concrete floor slab that caused the water leakage; (3) The Plaintiff failed to explain why the ponding test was necessary; (4) Ponding test might be destructive to the property; (5) Ponding tests were commonly utilised to test whether there are any cracks or ‘give-ways’ in a new building. This did not apply to the present situation; (6) Ponding tests were routinely proposed when addressing water seepage found at the roof/flat roof of a new building. This was not the case here; (7) Ponding test was inherently time-consuming and costly; (8) It was necessary to shut off all the water outlets and remove all fixtures, machines, floor tiles, etc, for a 48-hour ponding test; (9) The intended ponding test would affect the business operation of the tenant, and might result in a claim to be made by them against the defendant; and (10) The interest of the tenant, being a third party, would be severely prejudiced.

Held, granting an order permitting the plaintiff to carry out water leakage tests (including water ponding tests) in D’s Property, and lifting the stay:

• (1) The original expert directions were given by consent; the defendant ought to be aware of the reason behind a ponding test and chose to ignore the Plaintiff’s request. The plaintiff’s expert dealt with every point raised by the defendant in detail in his report. The responses and/or explanations given by the plaintiff’s expert were sensible, coherent and in line with common sense The defendant’s Grounds 1, 3, 5 and 6 were sufficiently and satisfactorily answered or addressed by the plaintiff’s expert in his Expert Opinion. Regarding the other grounds of objection, they were misconceived, non-sensical, unsustainable and/or irrelevant for consideration. Therefore if tenant’s business operation was affected, the defendant had only itself to blame (paras 41, 43, 44, 45, 47).
• (2) It was well settled that in a case where expert evidence was required, the respective experts might hold different views on the best or the most appropriate test to be performed and/or the corresponding methodology to be adopted in their investigation. The proper approach to be adopted was not to adjudicate which of the methodologies propounded by the experts is to be preferred prior to trial. Atlantic Link Ltd v Yen Ying Building (IO) [2019] 5 HKLRD 703 ; [2019] HKDC 1518 ; [2019] HKCU 4299 applied (para 49).
• (3) As the plaintiff was entitled to carry out water leakage tests (including water ponding tests) in D’s Property, the stay ought to be lifted (para 57).

[The above is excerpted from the headnote to the report in HKC.]