WIDE POWER CORPORATION LTD v. THE INCORPORATED OWNERS OF MANHATTAN COURT

HCA 1485/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1485 OF 2013

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D E C I S I O N
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1.  This case is a dispute on water leakage on a roof of a property formerly owned by the plaintiff. The parties have already filed their joint expert report in September 2015. The trial has been scheduled to commence on 18 July 2016 and it will last for five days.

2.  The defendant issued a summons on 14 April 2016 returnable on 21 April 2016 seeking leave to adduce two more witness statements and a supplemental expert report.  The witness statements are to say that the defendant had in early November 2015 opened up an unauthorised platform slab on the roof in question with a view to make a new waterproof membrane thereon.  The defendant then discovered that there were nine steel posts that had their top parts severed but their bottom parts still connected to steel plates that were bolted to the concrete slab on the roof.  The steel posts had been buried in the platform slab and were not visible hitherto.  Photographs were then taken and a sketch made to show the locations of the posts and their lengths.  The defendant also engaged a registered structural engineer, Mr Yuen to have an inspection of the things in situ.  Mr Yuen then made a report which is being produced as an attachment to one of the witness statements. 

3.  However, as a result of my dialogue with Mr Yeung, counsel for the defendant, this attachment would not be adduced as part of the evidence.  The plaintiff’s expert, Mr Chow then made a supplemental expert report on the basis of the photographs and sketch.  He also tried to clarify certain ambiguity in his first report.

4.  The plaintiff objected to the application on 21 April mainly on the ground of delay.  Mr Cheung, counsel for the plaintiff also emphasised the fact that the roof after being opened up has already been repaired, and the subject matter is no longer there and the plaintiff cannot witness the thing in situ.  I adjourned the application to today for the plaintiff to seek the views of its expert Mr Wong on why he cannot prepare a supplemental report based on the same materials that were available to the defendant’s expert.

5.  Mr Wong said that it was impossible and professionally irresponsible to comment on the evidence in the defendant’s further witness statement.

6.  His reasons are:

“1. The quality of the photos blurred the truth. The photos were taken not in a satisfactory condition and were blurred. I could see the difference in colour, but could not differentiate the materials and the condition. I cannot comment on the location of the said fixing as I had not witness.

2. I am not able to comment on the location of the said fixing as I had not witnessed the alleged process.

3. ust on steel post is not unreasonable as I consider it is on the waterproofing membrane.

4. The water seepage scattered on the whole ceiling of the immediate unit below. That does not match the localized fixing location.

5. Regarding the supplementary condition survey report of April 2016 by Mr Chow Yuen Kit Christopher, the section as attached in Sketch A may not correct and not in scale while the photo record does not show the real and true condition. In usual practice regarding a roof, there is a layer of protection on top of the waterproofing membrane, insulation layer, a dead load layer on the insulation and the protection and finishes layer.

6. The photos showed only a part of the overall condition, so that I am not able to analyze the whole picture with first hand, reliable and truthful information.  It is impossible to make a objective finding and to give a responsible professional opinion.”

7.  I do not think the quality of the photos are really so bad.  They show the steel posts clearly, but this is a matter for the trial judge. 

8.  Regarding the location and size of the steel posts, the plaintiff will be at liberty to challenge them as a matter of fact. Leave to the defendant to adduce the evidence does not mean that the evidence will be accepted by the court as truthful.  The expert can however give his comment on the assumption that the evidence will be accepted.  He may also assist the court by advising the court why the evidence is not truthful.  That is what Mr Wong has said in point no. 5.  But that is not a reason for not giving a supplemental expert report.  To do the best that one can in order to give a meaningful supplemental expert report is not professionally irresponsible.

9.  Points nos. 3 and 4 and the first half  of point no. 6 are already Mr Wong’s professional opinion and he can incorporate them into a supplemental expert report. 

10.  Mr Cheung for the plaintiff at this hearing again reiterated the lateness of the application.  There is also the further delay after the discovery of the steel posts in November 2015 as this application was only made on 14 April 2016.  However, there is no prejudice to the plaintiff if I allow the application because the trial will only commence on 18 July and there is still enough time for the plaintiff to prepare a supplemental expert report to answer the defendant’s report.  The plaintiff’s expert Mr Wong is also familiar with the facts of the case and should not have much difficulty in coming up with a supplemental report.  If for any reason he cannot come to any particular view, he can of course say so, the court can then take his evidence into consideration when considering the defendant’s expert evidence including the defendant’s supplemental expert report.

11.  I therefore allow the application.

12.  I grant leave to the plaintiff to file further witness statements to response to the defendant’s additional witness statements and also a supplemental expert report all to be filed and served on or before Friday , 17 June 2016. 

Costs

13.  On the question of costs, I order that the costs of an incidental to the summons including the costs of the last hearing be paid by the defendant to the plaintiff to be taxed and paid upon taxation. Regarding today’s costs, I order that the plaintiff shall pay the same to the defendant again to be taxed and paid upon taxation.