XCHRX LUK KWAN HUNG NELSON v. VICTORY MARK INVESTMENT LTD.

HCA 8530/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8530 OF 1999

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D E C I S I O N

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1. There are three summonses before me. The first is a summons dated 18 May 2001 taken out by the plaintiff for leave to amend the statement of claim. The second is a summons also dated 18 May 2001 taken out by the plaintiff for an order that the expert report of Mr. Cheng Wei Dart ("Mr. Cheng") be expunged from the court file and that the same may not be relied on by the defendant at trial. The third is a summons dated 23 August 2001 taken out by the defendant for, inter alia, further directions to permit the defendant to substitute the expert report of Mr. Cheng dated 25 April 2001 for the expert report of Mr. Wong Pak Lam ("Mr. Wong") dated 14 April 2000 and to substitute Mr. Cheng for Mr. Wong as expert witness for the defendant.

2. Shortly before the scheduled trial of this action which was due to commence on 12 March 2001 the parties signed a consent summons to adjourn the trial of the action and for further directions as to expert evidence to be adduced at the trial. On 12 March 2001, after hearing counsel, I made a consent order in the terms of the consent summons signed by the solicitors for the parties.

3. The second and third summons can conveniently be dealt with together. I shall first deal with the first summons for leave to amend the statement of claim. The plaintiff seeks to raise a new point. In essence by the amendment the plaintiff alleges that he was entitled to rescind the sale and purchase agreement and/or the assignment on a further additional ground namely, that the whole development is an illegal structure in that the permitted plot ratio for the domestic part of the building, where the subject property was situated, and the permitted gross floor area exceeded that permitted as a result of the permitted remaining plot ratio for the domestic part of the building. The excess area is the bay window area as pleaded and particularized. This, as Mr. Chain has rightly submitted, is a new and serious allegation which could have far reaching implications for the defendant if established as it is an allegation that the whole development and not just the suit property was an illegal structure. The defendant does not object to the plaintiff being granted leave to amend the statement of claim subject to directions as to expert evidence.

4. As there is no objection subject to such directions, I grant leave to the plaintiff to amend the statement of claim and make an order in terms of paras. 1 to 4 of the summons for leave to amend dated 18 May 2001. I shall deal with the directions as to expert evidence later.

5. I turn to the second and third summonses. There is no doubt that at the time the consent order of 12 March 2001 was made both parties expected Mr. Wong to be one of the experts to give evidence for the defendant at the trial. The directions contained in the order provided for the number of experts to be called by each party to be increased to three from one as earlier ordered. Mr. Peter Cho, the expert for the plaintiff, and Mr. Wong, for the defendant, are experts of the same discipline. It was expected that the defendant would file and serve a supplemental report of Mr. Wong in reply to the supplemental report of Mr. Peter Cho within 30 days of the filing and serving of Mr. Cho's supplemental report. However, instead of filing and serving a supplemental report of Mr. Wong the defendant filed and served a report of Mr. Cheng dated 25 April 2001. In my view the defendant should not have done so without seeking further directions and, for this reason, the plaintiff, rightly in my view, applied by summons to expunge the said report from the court file.

6. The defendant has by its summons dated 23 August 2001 applied to substitute the said expert report of Mr. Cheng for the expert report of Mr. Wong dated 14 April 2000 and to substitute Mr. Cheng for Mr. Wong as expert witness for the defendant. The evidence shows that Mr. Wong is no longer prepared to act as the defendant's expert. By a letter dated 23 March 2001 Mr. Wong took the view that as his firm was also providing the services for the remaining contract administration works for the project, he considered that there would be a conflict of interest and he could not act as an expert witness in this case. The evidence shows that despite the defendant's solicitors' attempts Mr. Wong was unwilling to act as the defendant's expert in this action. It is unfortunate that Mr. Wong did not express his concerns much earlier as it transpires from the evidence that it was in the last quarter of the year 2000 that Mr. Wong was engaged by the defendant in the remaining contract administration works for the project. Be that as it may, the position now is that Mr. Wong is unwilling to act as the defendant's expert. In such circumstances ought the court to allow the defendant to substitute Mr. Cheng for Mr. Wong as an expert witness for the defendant?

7. Having considered the evidence and counsel's submissions, I am of the view that although the directions for the provision of expert evidence were contained in the consent order of 12 March 2001 the court can in a proper case grant leave to the defendant to substitute one expert for another. The directions agreed in the order dealt with the expert evidence to be called. If, however, for some reason the defendant was unable to call one of its experts at the trial, I am of the view that in the exercise of the court's discretion the court can give leave to the defendant to substitute an expert for another provided that it was proper to do so and provided that the plaintiff would not suffer prejudice for which it cannot be compensated by an order for costs. Is the position any different if Mr. Wong is unwilling to give evidence as an expert? I think not. The evidence shows that Mr. Wong is unwilling to give evidence and in my view the court ought not to force the defendant to call an unwilling expert.

8. The reality of the situation is that the case is not yet ready for trial. The plaintiff has amended its statement of claim and the amended pleadings have not yet closed. Trial dates have not yet been fixed. I accept that there will be some delay by allowing the defendant to substitute an expert but in my view there will be no significant delay caused by this. The plaintiff has added a new and serious allegation by amendment to the statement of claim and this will also have to be addressed by the experts.

9. It was also pointed out by Miss Cheng SC that Mr. Wong made admissions as to measurements in his report whereas Miss Cheng disputed the measurements and the defendant should not be allowed to resile from those admissions. Having looked at Mr. Wong's report I am unable to accept that Mr. Wong has himself taken measurements and has made unequivocal admissions as to measurements. Rather, it appears that he proceeded on the basis that the measurements were correct. As Mr. Chain has pointed out, there are no such admissions in the pleadings. Also, the suit property is in the possession of the plaintiff. The measurements of, for instance, beams and bay windows are factual matters that ought to be readily agreed between the experts. These are objective facts. I am unable to see what real prejudice, apart from wasted costs, is suffered by the plaintiff in allowing the defendant to substitute Mr. Cheng as its expert. If the plaintiff and his legal advisers wish to reconsider whether or not to file and serve a report in answer to Dr. Shillinglaw's report, the plaintiff must be given an opportunity to do so.

10. I am satisfied that in the interests of justice I ought to allow the defendant to substitute the expert report of Mr. Cheng dated 25 April 2001 for the expert report of Mr. Wong dated 14 April 2000 and that the defendant be permitted to substitute Mr. Cheng for Mr. Wong as expert witness for the defendant. The plaintiff can, in my view, be compensated by an order for costs. I am satisfied that costs have been incurred in dealing with the report of Mr. Wong and such wasted costs must be borne by the defendant and to be taxed and paid forthwith to the plaintiff. I am satisfied that in the exercise of my discretion subject to an appropriate costs order in favour of the plaintiff I ought to make an order in terms of para. 1 of the defendant's summons dated 23 August 2001. I will hear counsel on the order I should make and the further directions I ought to give.