SHING PROPERTIES LTD v. CHAN KA PO NATASHA AND OTHERS

DCCJ 2274 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2274 OF 2010

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DECISION

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1. By the summons for application for leave to appeal taken out by the plaintiff on 18 April 2013, the plaintiff applies for leave to appeal against the Judgment made by me and handed down on 21March 2013 (“my Judgment”), in which I ordered that all the plaintiff’s claims against all the defendants be dismissed and the plaintiff shall pay costs of these proceedings including the costs reserved by the order made by Deputy Judge KH Hui (as he then was) on 30 May 2012 to all the defendants, to be taxed if not agreed, with certificate of one Counsel.

2. Unless otherwise stated herein below, I will adopt the abbreviations and nomenclatures used in my Judgment.

LEGAL PRINCIPLES

3. The source of jurisdiction for the application is section 63A of the District Court Ordinance (Cap 336) and the practice and procedure of the application is governed by Order 58 of the Rules of the District Court.  By virtue of section 63A(2) of Cap 336, it is provided that leave to appeal shall not be granted unless the court is satisfied that,

(a)   the appeal has a reasonable prospect of success; or

(b)   there is some other reason in the interests of justice why the appeal should be heard.

4. The relevant test of whether an appeal has a reasonable prospect of success under section 63A(2) is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.[1]

DISCUSSION

5. On 27 May 2013, the plaintiff lodged its written submission together with a draft notice of appeal, in which 8 grounds of appeal are stated. The plaintiff further lodged its written supplemental submission on 20 June 2013 pursuant to my direction.

6. As noted from the draft notice of appeal, the plaintiff seems only relied on the 1^st limb (ie reasonable prospect of success).  I will herein below consider whether each of the draft grounds of appeal demonstrate a reasonable prospect of success.

Draft Ground (1)

7. This ground relates to the Green Wall.  Mr Wong, Counsel for the plaintiff, submitted that following the Expert Direction[2], both Mr Pong and Mr Chee adopted the same methodology by measuring the actual distance of the Green Wall from the outer wall abutting Village Road and found that it was 54 feet.

8. With respect, I disagree with this submission.  In my view, it cannot be said that Mr Pong was in fact following the Expert Direction when he was preparing P’s 1^st Expert Report since it had been made prior to the Expert Direction.  Indeed, I had dealt with it in §§70 to 73 of my Judgment and will not repeat here.

9. Mr Wong for the plaintiff also submitted that the Approved Plan does not show, directly or indirectly, the distance between the Green Wall and the rear boundary of the Building.  I can only agree that the Approved Plan does not show directly the distance in question but not indirectly. According to the evidence of Mr Pong given at the trial, he said that it was possible to take measurement from the rear boundary of the Building to the Green Wall.  I had dealt with it in §§66 and 67 of my Judgment.

10. Mr Wong for the plaintiff further submitted that even if it is possible to measure the distance between the Green Wall and the rear boundary of the Building, it would not assist to resolve the issue as to whether its actual location has deviated from its prescribed location shown in the Approved Plan and towards Village Road.I disagree with this submission.  In my view, if Mr Pong also measures the distance between the Green Wall and the rear boundary of the Building and finds that there is a discrepancy of 9 inches of the Green Wall’s actual location away from the rear boundary of the Building according to the Approved Plan, I will very likely conclude that there is a discrepancy of 9 inches between the actual location of the Green Wall and its stipulated location under the Approved Plan. Nevertheless, it is not the case.  As found by me in my Judgment, there are discrepancies in at least 2 sections. I said as follows:

64. It is not in dispute that in fact, there are discrepancies in at least 2 sections in this specified distance, ie a discrepancy of 1 inch in the 2^nd section, and another discrepancy of 10 inches in the 3rd section after the redrawing of the delineation of CP6. 

65. In my view, when comparing between the actual layout and the Approved Plan, there are discrepancies in at least 2 sections just between the short distance from the Green Wall to the external wall abutting Village Road, one can readily and reasonably doubt as to whether there will be some more discrepancies in other locations.

11. In other words, I am not satisfied that the plaintiff had discharged its burden to prove his pleaded case.  I had already dealt with this issue in §§73 to 76 of my Judgment.

12. Mr Wong for the plaintiff further submitted that as the issues are defined by the parties under the pleadings (as is the meaning of the ‘discrepancy’ of the Green Wall), it would be wrong if the scope of the issue is broaden at the trial.  Mr Wong has not made this submission in his written closing after the trial.  It is the first time he raised this issue until this leave application.  It seems to me that the plaintiff wants to get the second bit of the cherry.  In any event, I would deal with this issue herein below.

13. Mr Wong for the plaintiff relies on the Court of Final Appeal case Poon Hau Kei v Hsin Chong Construction Co Ltd [3] and said that if the defendants intend to dispute the meaning of the ‘discrepancy’ in divergent to that of the plaintiff, they should state their own versions in the defence but not just bare denial[4].

14. The Court of Final Appeal in Poon Hau Kei’s case allowed the appeal and restored the trial judge’s decision. In that particular case, the principal contractor pleaded the light trough scenario as one in which the accident was caused solely or contributed to by the negligence of the worker.  What the judge found at first instance as to the mixed causes of the accident was therefore covered by the pleadings.  Further, while the focus of the principal contractor at trial was on the ladder allegation stated in the worker’s evidence, it did not mean that the cross-examiner could not put to the worker what his side had pleaded against the worker.  In fact, the worker was cross-examined by counsel for the principal contractor to the effect that standing on the light trough would amount to contributory negligence.  Finally, the trial judge’s statement that the light trough scenario had been fully canvassed in evidence and submissions by the parties with no prejudice to anyone ought not to be overturned on appeal except for a very strong reason or reasons and there was no such reason in that case.

15. Bokhary PJ approved the following passage in the judgment of the Court of Appeal at §12 of the judgment of the Poon Hau Kei’s case:-

“In circumstances where the version of events as pleaded or advanced by a party is found not to be accurate or true, and another version is held to represent the true position, a court must be careful when asked to make a finding of liability (or some other legal consequence) based on this other version. Before attempting to do so, the court must first be satisfied that the issue has been properly put before it and identified so that the other party becomes fully aware of the case he has to meet. This is usually done by the matter being made clear in the pleadings. Next, the court must also be satisfied that the ‘new version’ is one that the other party has been given a full opportunity to deal with. Both elements must exist before a court can then proceed to make a finding of liability or some other legal consequence based on the ‘new version’. There may of course be other considerations as well, but these two are usually the most important.” (emphasis added)

16. In other words, Bokhary PJ approved the at least two necessary requirements as set out in the judgment of the Court of Appeal.  However, as the Court of Final Appeal took the view that the “new version” of facts was covered by the pleadings and that the principal contractor had been given opportunity to deal with the worker’s claim based on the alternative version, it ruled the case in favour of the worker.

17. In Mak Kang Hoi v Ho Yuk Wah[5], the Recorder did not accept either party’s pleaded case as to the precise legal rights bargained for and found an implied term that the listing would occur within a reasonable time expiring at the end of 1997 and the defendant appealed to the Court of Final Appeal.  Mortimer NPJ considered Poon Hau Kei’s case and held that:-

“104. In contract cases such as this one, where there is a dispute about the terms agreed the situation may be less clear cut. The parties advance their pleaded cases with all the surrounding relevant facts leading up to the agreement and following it. Taking all into account the judge decides what the parties agreed as a question of mixed fact and law. These may not be precisely those advanced by either party.

105. Unless the judge moved outside the evidence and makes findings unwarranted by the oral dealings between the parties or the contemporaneous documents this normally is not unfair on either party but an attempt to do justice between them according to law.

106. Indeed, in the absence of some exceptional circumstance no person who has concluded a contract can be said to have been taken by surprise by the terms he had agreed. This is so whether or not he or the other party has precisely pleaded those terms in a dispute about them.

…………….

119.  ……..The issues about the agreement were investigated.  It was for the Recorder to decide these issues of mixed law and fact.  The defendant had every opportunity to advance such case as he chose and nothing he has put forward persuades me otherwise.  The findings were based on a letter written by him and oral negotiations which he undertook.  In spite of the absence of the specific pleading there is nothing demonstrated that could have taken him by surprise or which led to any injustice to him.”

18. I agree with the submission of Ms Yeung for the 3^rd defendant that taking all the surrounding circumstances and the pleaded cases into account, the trial judge is entitled to decide what the parties agreed as a question of fact, law and/or mixture of them, even though these may not be precisely those advanced by either party in the pleaded case unless it could have taken him by surprise or which led to any injustice to him.

19. I also accept Ms Yeung’s submission that there is neither any so-called “new version” as submitted by the plaintiff nor any radical departure from the pleadings.  Therefore, the Poon Hau Kei’s case is not applicable in the present case.

20. In my judgment, the issue is not really the meaning of the ‘discrepancy’ as defined by the plaintiff.  The crux of the matter should be whether the plaintiff can prove that the actual location of the Green Wall has deviated from its prescribed location under the Approved Plan, not just towards Village Road as suggested by the plaintiff.  As mentioned earlier, the plaintiff has to prove that the Green Wall’s actual location is 9 inches away from the rear boundary of the Building.  Obviously, Mr Pong failed to give his expert opinion in this regard.

21. Mr Wong submitted that the plaintiff has not become fully aware of the ‘new version’ of the discrepancy, nor has it been given a full opportunity to deal with the ‘new version’ until the same was put to Mr. Pong when he gave evidence in the court.  If the plaintiff really considered that the so-called ‘new version’ could have taken him by surprise or which led to any injustice to him, I think Mr Wong should raise this point at the trial and simply apply for an adjournment so that 2 experts can prepare a supplemental joint report concerning whether the Green Wall’s actual location is 9 inches away from the rear boundary of the Building. However, he did not do so.

22. In my judgment, the effect of Order 18 rule 13(5), the RDC recognizes a positive duty on a defendant to plead the essence of his case so that the plaintiff should not be caught by surprise.  Therefore, if a defendant denies the plaintiff’s claim but fails to set out his positive case in the defence, he will be taken to have merely required the plaintiff to prove his allegations, and he will not be entitled to call evidence of fact contrary to the plaintiff’s contention.  Nonetheless, it never removes the burden on the plaintiff to prove its contention.

23. Furthermore, I also accept the submission of Mr Hung for the 1^st and 2^nd defendants that the question whether there is a discrepancy of 9 inches between the actual location of the Green Wall and its stipulated location under the Approved Plan is a question of fact. The plaintiff is now challenging on my finding of fact. It is trite that the appellate court will only intervene with a trial judge’s conclusion on facts unless it is satisfied that it is plainly wrong, otherwise it should defer to the trial judge’s conclusion even if in some doubt as to its correctness[6]. In my view, the plaintiff is unable to show that my finding is plainly wrong. Therefore, this ground of appeal has no reasonable prospect of success.

24. In any event, Mr Wong for the plaintiff rightly conceded both at trial and on this appeal application that the relocation of Green Wall is not insisted upon by the plaintiff because the plaintiff reckons that there are various reasons which the court may not order the re-location of the Green Wall.

Draft Grounds (2) and (3)

25. Under these grounds which relate to the Pink Line, Mr Wong for the plaintiff submitted that I erred in concluding that the issue of whether there is any discrepancy of the location of the Pink Line must be interrelated to the issue of whether there is any discrepancy between the actual location of the Green Wall and its stipulated position under the Approved Plan. Mr Wong argued that I should have treated these two issues as distinct and separate

26. It is undisputed that Mr Pong fails to measure the distance between the Pink Line and the rear boundary of the Building and he could not tell whether there is a discrepancy of 9 inches of the Pink Line’s actual location away from the rear boundary of the Building according to the Approved Plan.  Hence, the plaintiff had not discharged its burden of proof.  I had already dealt with this issue in §§85 to 89 of my Judgment.

27. Similar to the above, I consider that the question whether there is a discrepancy of 9 inches between the actual location of the Pink Line and its stipulated location under the Approved Plan is a question of fact and that whether CP6 encroaches on the common part of the Building.  The plaintiff is now challenging on my findings of fact.  In my view, the plaintiff is unable to show that my findings are plainly wrong.

28. More importantly, I considered in §88 of my Judgment that there was another reason not to re-draw the Pink Line towards the lift lobby, namely DLO’s written reply dated 7 May 2010 to the plaintiff’s solicitors which confirmed that CP6 is being used for parking purpose in compliance of its registered use under the government lease. However, Mr Wong for the plaintiff never made any written submission regarding this point.  He just submitted orally at the hearing that the court is not bound by the view of DLO.  I consider that I shall take into account of all relevant matters when deciding whether to grant the injunction sought, in particular the stance of DLO, to which I think that I shall give very heavy weight.  Indeed, Mr Wong for the plaintiff fails to persuade me as to why I shall give little weight.  Based on this letter, I found that DLO is very unlikely to approve the re-drawing of the Pink Line as requested by the plaintiff.  Thus, I do not think that the court shall exercise its discretion to grant this futile injunction.

Draft Grounds (4) to (7)

29. Under these grounds concerning private nuisance, Mr Wong for the plaintiff submitted that I ought to have made the finding that the 1^st and 2^nd defendants knew or ought to have known that the way their vehicle was parked had obstructed the passageway from and to CP5 and such obstruction had caused substantial and unreasonable interference to the plaintiff from using CP5.

30. Again, the plaintiff is challenging on my finding of fact.  In my view, the plaintiff is unable to show that my finding is plainly wrong.

31. Besides, Mr Hung for the 1^st and 2^nd defendants rightly pointed out the letter dated 26 May 2010 from the plaintiff’s solicitors to the BD[7], in which it was stated, inter alia, as follows:-

“Our client (the plaintiff) is gravely concerned that even if the Wall is retreated by 9 inches and CP6 is also moved backward from Village Road by 9 inches, CP6 will continue to cause an obstruction to and from the passageway to CP5 and hence our client would still not be able to gain access to CP5.

…… there are inherent defects in the Approved Plan which render free access to CP5 impossible. There is serious concern that in approving the Approved Plan, insufficient consideration was given to the practical difficulties our client might encounter in parking its car into CP5.”

32. According to this letter, the plaintiff conceded that it is the inherent defects in the Approved Plan which render free access to CP5 impossible rather than the alleged nuisance by the 1^st and 2^nd defendants.

Draft Ground (8)

33. Under this ground relating to the cost reserved on 30 May 2012, Mr Wong for the plaintiff submitted that I should have awarded the plaintiff the costs reserved on 30 May 2012 or held that there be no order as to costs on the costs reserved on 30 May 2012, regardless of the outcome on the substantive issues.

34. Mr Wong cited me Arko Ship Leasing Ltd v Winsmart International Shipping Ltd[8], in which the plaintiff applied for adjournment of the trial due to its keys witnesses being arrested in PRC.  Godfrey Lam J allowed the adjournment with costs against the plaintiff and said in his judgment as follows:-

“30.  An adjournment of the nature sought here will inevitably adversely affect the efficient discharge of the court’s duties.  In this context, I regret to have to say that the application for adjournment has not been brought with promptitude.  The plaintiffs must have been aware that the relevant witnesses were under investigation by the Mainland customs authorities and that they had been detained, as early as in January and February 2012.  Yet they let dates be fixed for the trial without raising any potential problem.  The present application was not taken out until December 2012, months after the witnesses in question had been formally arrested and put in custody.  The court is entitled to pass severe criticism on such conduct.  I consider however that, in the circumstances of this case, this should be reflected in an appropriate order for costs, rather than result in the peremptory dismissal of the application on this ground alone.

………

35.   In relation to the hearing of the summons, I think that the additional hearing today has largely been necessitated by the plaintiffs’ failure to investigate the position regarding videolink which I would have thought was fundamental for an application of this nature.  So the costs of the additional hearing should be borne by the plaintiffs but otherwise I will make no order as to the costs of the hearing of the summons, on the basis that although the plaintiffs are ultimately successful in getting the order for vacating the trial date and the adjournment of the trial, it is very much a matter of indulgence of the Court.  Given the circumstances including in particular the timing of the application, I am satisfied that the defendants have acted reasonably in putting forward material information and appearing on the hearing of the summons to apprise the court of all relevant matters.  The costs ordered are to be paid forthwith rather than in any event.”  (emphasis added)

36. To start with, I am of the view that each case very much depends on its own facts when the court decides the question of costs.  I would further distinguish the Arko Ship’s case as Godfrey Lam J found fault on the part of the plaintiff in that case. Nonetheless, I found no fault on the part of the 3^rd defendant in the present case.  Needless to say, the court has very wide discretion regarding the question of costs though it has to be exercised judicially and according to the rules of justice.  I maintain my view that costs of the adjournment which is due to no one’s fault shall be costs in the cause.  Indeed, I had already given the reason on this issue in §§103 to 106 of my Judgment.

37. In any event, I wonder why the plaintiff did not make such submission before Deputy Judge KH Hui at the hearing on 30 May 2012 and invited the learned Judge to make the costs order as now suggested.  Alternatively, if the learned Judge declined, the plaintiff should appeal his order for adjournment with costs reserved.

Conclusion

38. In the circumstances, the plaintiff’s appeal has no reasonable prospect of success and is without merit at all.

39. I order that the plaintiff’s summons dated 18 April 2013 be dismissed with costs to all the defendants, to be taxed if not agreed, with certificate of Counsel.