LEHNER EWALD STEPHAN v. PUI TSAN PO AND OTHERS

LEHNER EWALD STEPHAN v. PUI TSAN PO AND OTHERS

Given that tests on Roof B were negative and the plaintiff's expert provided a plausible basis that Roof A may be the source, and absent any concrete evidence discrediting the expert, the Court has jurisdiction under s47D DCO to order access to Flat 23A and Roof A to carry out specified investigative tests; defendants must permit such access.

Citation
LEHNER EWALD STEPHAN v. PUI TSAN PO AND OTHERS
Parties
Plaintiff: Lehner Ewald Stephan; 1st Defendant: Pui Tsan Po; 2nd Defendant: Wong Ming Tung; 3rd Defendant: Pui Tai Betty
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
30 September 2016
Case Number
DCMP1310/2016
Procedural Posture
Originating Summons Under Section 47 D District Court Ordinance (inspection) / Judgment on Originating Summons (interlocutory Application for Inspection)
Outcome
Order under s47D granted: defendants to allow plaintiff's authorized representatives and building surveyor to inspect Flat 23A and Roof A and to carry out specified tests; costs ordered against defendants on an indemnity nisi basis to be taxed if not agreed; order nisi to become absolute if not varied within 14 days.
Legal Topics
Water Seepage, Inspection Order, Access to Neighbouring Property, Evidence Preservation, Costs
Source Language
EN
Property Law Civil Procedure Building and Construction Water Seepage Inspection Order Access to Neighbouring Property Evidence Preservation Costs

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Parties

Lehner Ewald Stephan

Plaintiff

Pui Tsan Po

1st Defendant

Wong Ming Tung

2nd Defendant

Pui Tai Betty

3rd Defendant

Procedural Posture

Originating Summons Under Section 47 D District Court Ordinance (inspection) / Judgment on Originating Summons (interlocutory Application for Inspection)

Legal Issues

  1. 1 Whether the Court may order entry and inspection under section 47D of the District Court Ordinance
  2. 2 Whether access to Flat 23A and Roof A is necessary to ascertain the source of water seepage affecting Flat 23B
  3. 3 Whether the plaintiff's expert evidence (Baily) is credible and sufficient to justify the order

Ratio Decidendi

Given that tests on Roof B were negative and the plaintiff's expert provided a plausible basis that Roof A may be the source, and absent any concrete evidence discrediting the expert, the Court has jurisdiction under s47D DCO to order access to Flat 23A and Roof A to carry out specified investigative tests; defendants must permit such access.

Court Disposition

Order under s47D granted: defendants to allow plaintiff's authorized representatives and building surveyor to inspect Flat 23A and Roof A and to carry out specified tests; costs ordered against defendants on an indemnity nisi basis to be taxed if not agreed; order nisi to become absolute if not varied within 14 days.

Orders

  • The 1st, 2nd and 3rd defendants shall allow the plaintiff, through his authorized representatives and building surveyor, to inspect Flat 23A and Roof A
  • Plaintiff is authorized to carry out a colour water ponding test to the floor of Roof A