SPARKLE CAPITAL LTD v. CHAN WAI MAN also known as CHAN WAI MAN IVAN

DCCJ 836/2018
DCCJ 1380/2018
DCCJ 289/2021
(Consolidated)

[2022] HKDC 903

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NOS 836 & 1380 OF 2018 and 289 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  By my decision dated 15 July 2022, I granted leave to adduce expert evidence and made a costs order nisi that the defendant shall pay the plaintiff costs of the plaintiff’s summons with certificate for counsel.

2.  By the defendant’s letter dated 29 July 2022 together with the skeleton submission of counsel, the defendant applied for variation of the said costs order nisi.

3.  The plaintiff lodged a skeleton submission of counsel in opposition on 5 August 2022.

4.  The defendant lodged a submission in reply on 12 August 2022.

5.  Both parties agreed the application to be disposed of on papers.

Defendant’s submission

6.  Mr Joseph Wong, counsel for the defendant, submitted that the issues identified and directions given by the court are very different from those sought by the plaintiff by the summons. This demonstrated that plaintiff’s summons was at least problematic. Therefore, the identification of the modified expert issues of the court is analogous to a case management decision on its own motion for expert evidence. It would be fairer and more reasonable that the costs of the plaintiff’s summons be costs in the cause.

7.  Mr Wong further submitted that in opposing the plaintiff’s summons, the defendant had not acted unreasonably. The plaintiff has never proposed a set of expert directions that are workable or useful. As adversarial parties, the defendant is under no duty to propose substantial changes to the plaintiff’s proposed expert directions in order to make good the plaintiff’s application.

The plaintiff’s submission

8.  Among the various submission in opposition, Mr Tommy Cheung, counsel for the plaintiff pointed out that the defendant’s core objection throughout was that expert evidence is not necessary because the trial judge can look at the work report himself or herself to adjudicate on the issues in dispute. The defendant had not advanced any alternative argument of proposing the directions to be given in case expert evidence is found to be necessary.

Discussion

9.  Whilst the defendant is entitled to oppose the plaintiff’s application, such right should be exercised rationally.

10.  A close examination of the pleadings would readily reveal that the work report is the bone of contention. And a glance of the work report would readily reveal that it contains large amount of computer-aided engineering analysis data and prototype testing data. Without the assistance of expert, the work report is not readily understood by people without engineering background.

11.  Viewed in that light, the application of the plaintiff was reasonably taken out.

12.  However, it was the position of the defendant that expert evidence is irrelevant and the proposed expert evidence is unnecessary and of no probative value. The defendant did not seek to argue the appropriateness of the expert directions sought by the plaintiff. No counter proposal was put forward by Mr Wong on behalf of the defendant as to the issues on which expert evidence are required.

13.  Hence, although there are shortcomings in the plaintiff’s proposed issues and directions and they have to be modified, such modification was not made due to the counter argument of the defendant.

14.  By reasons of the aforesaid, I am of the view that the defendant had not acted reasonably in contesting the plaintiff’s application. The defendant should bear the consequence of being the unsuccessful party.

Conclusion and order

15.  Accordingly, I make an order absolute that the defendant shall pay the plaintiff’s costs of the plaintiff’s summons with certificate for counsel, to be taxed if not agreed.

16.  I also order the defendant to pay the plaintiff’s costs of the variation of the costs order nisi application with certificate for counsel, to be taxed if not agreed.

Summary assessment of costs

17.  In the absence of agreement as to the amount of costs, the costs under paragraphs 15 and 16 shall be assessed summarily.

18.  In that regard, the plaintiff shall lodge and serve the statements of costs within 28 days from the date of this decision, followed by the defendant’s list of objections to be lodged and served within 14 days thereafter.