Litigants often labour under the misconception that third party proceedings need to be tried together with the main action. The decision of DHCJ Alan Kwong in Kingdom Power Development Ltd v. IO of Cheong Wah Building, Tsuen Wan [2025] HKCFI 1305 provides a timely reminder that the Court may make case management orders for the trial of the main action to take place before, and separate from, the trial of the third party proceedings. This makes a significant difference to the plaintiff who can save considerable time and costs by extricating himself from irrelevant third party disputes.
The case concerns a high-stakes water leakage dispute in Cheong Wah Building, Tsuen Wan. The Plaintiff owns shops and the first floor of the building and alleges that water seepage has affected its property since July 2009, leading to loss of rental of at least HK$500,000 per month. The Plaintiff claims that the Defendant (the IO) failed to maintain the waterproofing layer above the first floor.
The Defendant denies liability, arguing that the waterproofing layer is not a common part of the building and that unauthorized building works carried out by the owners of the 2nd floor (the Third Parties) caused the damage. By way of third party proceedings, the Defendant seeks an indemnity or contribution from the Third Parties.
The case involved extensive expert evidence, with 12 experts engaged and 14 sets of expert reports filed.
The judge noted that the starting point is that a plaintiff is entitled to confine himself to dealing with the defendant, and he should not be coerced to deal with the third parties joined by the defendant.
On the facts of the present case:
- First, the third party proceedings involve complicated technical and legal issues that do not concern the Plaintiff, and trying all issues together would unfairly lengthen the trial for the Plaintiff.
- Second, the main action is procedurally ahead, while the third party proceedings are delayed due to incomplete pleadings and the mental incapacity of one of the Third Parties.
- Third, if the Plaintiff’s claim fails, the third party issues may not arise at all, which would save judicial resources and costs.
- Fourth, the risk of inconsistent findings can be managed by allowing relevant Third Parties to participate in the main trial on the issue of whether the waterproofing layer is a common part, making the Court’s findings binding on them.
In view of these considerations, the judge allowed the Plaintiff’s application for an order that the main action and the third party proceedings be heard separately, with the main action to be tried first.
The full judgment is available at https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=167421&currpage=T
Mr Justin Lam acted for the Plaintiff.
