RESOURCES LEADER LTD v. HO NGO YING

HCA 2667/2018

[2022] HKCFI 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2667 OF 2018

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DECISION

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1.  By consent of the parties, the two summonses filed by the defendant on 9 and 25 February 2022 are to be dealt with by paper disposal.

2.  Having considered parties’ submissions, I make the following orders.

Orders

3.  In respect of the summons filed on 9 February 2022:

(1)  Leave be granted to the defendant to amend her defence and counterclaim as per the draft attached to the summons save that the proposed changes to paras 12.3(c) to (d), 12.4, 15.7(i) to (k) be excluded. The defendant do file and serve the amended defence and counterclaim by 10am on 13 April 2022.

(2)  Leave be granted to the plaintiff to file and serve a re-amended reply and defence to counterclaim in response to the above amendments, if so advised, by 10am on 14 April 2022.

4.  In respect of the summons filed on 22 February 2022:

(1)  Leave be granted to the defendant to withdraw the admissions made in paras 10.5, 10.11, 13.5, 15.4 and 15.5 of her defence and counterclaim.

(2)  Leave be granted to the defendant to adduce and rely on at trial the letter dated 24 February 2022 by Mr Cheung Wai Sum Simon, the defendant’s expert (“Mr Cheung’s letter”). The letter should be read with the qualification set out in para 88 of the defendant’s reply submissions.

(3)  Leave be granted to the plaintiff to file and serve a supplemental expert report, if so advised, in reply to Mr Cheung’s letter by 10am on 19 April 2022.

5.  The deadlines set out in the PTR order dated 21 December 2021 be changed as follows.

(1)  The trial bundle, the agreed chronology of events and the agreed list of issues be lodged and served by 10am on 14 April 2022.

(2)  The plaintiff’s opening submissions be lodged and served by 10am on 19 April 2022.

(3)  The defendant’s opening submissions be lodged and served by 10am on 20 April 2022.

6.  The trial is scheduled to commence on 25 April 2022. Given the urgency, I set out below my reasons for the orders without setting out the factual background and the procedural history of the case.

The amendment application and the application to withdraw admissions

7.  I shall deal with the application to amend the defence and counterclaim and the application to withdraw admissions in that pleading together. It is plain that the two applications go hand in hand.

8.  The purpose of these applications is to enable the defendant to run a case concerning the Metal Frame, the Metal Door and the Metal Canopy which reflects the updated opinion of Mr Cheung as set out in his second expert report dated 23 March 2020 and the joint experts statement dated 13 May 2020 (“the updated opinion”). Previously, in his first expert report dated 26 November 2018, Mr Cheung gave opposite opinions on these three structures. 

9.  I consider that the following matters are material considerations when exercising my discretion whether to grant leave or not.

10.  First, the applications were made very late. They were made after the PTR hearing and just two months before the trial. According to the defendant’s supporting affirmation, her solicitors approached Mr Cheung for clarification of his expert opinion “in or around December 2021”.

11.  The updated opinion was given by Mr Cheung back in March and May 2020. One would have expected the defendant to follow up on it soon after she received the updated opinion and take step to amend her pleading, if she wished to rely on it. However, it was not until December 2021 that she took steps to deal with it. 

12.  No reason was given why there was such a long delay.

13.  The long delay and the lack of reason are factors which must weigh in the discretion against the defendant.

14.  Second, on the other hand, if leave is not granted, the defendant will be forced to run a case on her existing pleading. It means that she will be barred from relying on the updated opinion at trial to contend that the Metal Frame, the Metal Door and the Metal Canopy are not unauthorized building works (“UBWs”). This issue goes to the substantive merits of her case. In this regard, it must be borne in mind that the court’s task is to secure the just resolution of disputes in accordance with the substantive rights and obligations of the parties. This is a factor which weighs in favour of allowing the applications.

15.  Third, in the circumstances, I consider that it is vital to ascertain whether there will be any prejudice caused to the plaintiff if the applications are allowed and, if so, its extent.

16.  It should first be recognised that the issue of whether the Metal Frame, the Metal Door and the Metal Canopy are UBWs or not is an issue which the experts have expressly and extensively commented on in the joint statement. See paras 7.3, 7.4 and 8b.5. They have arrived at opposite conclusions in the joint statement. The joint statement was prepared after each expert had had an opportunity to review the other side’s report and after the two experts had held a without prejudice meeting: see paras 1.6 and 3.1.

17.  In other words, it can be taken that the plaintiff’s expert has all along been fully aware of Mr Cheung’s opposite view and his reasoning.

18.  Therefore, what we have here is a case where both side’s experts have already expressed their opinions on the issue and they have done so when fully aware of what the other expert’s opinion is. If the defendant is allowed to rely on the updated opinion, it is not reasonably expected that the plaintiff’s expert will have a lot more to say than what he has already said in the joint statement. 

19.  It means that we will be able to keep the scheduled trial dates. The plaintiff should of course be given an opportunity to amend its reply and file further supplemental expert evidence in response, if it is so advised. (On the latter, see paras 25 to 27 below.)  However, in the circumstances, any amendment and further evidence is expected to be short. There is still some time to do so before the trial. If there is a further need to supplement by oral evidence, that may be directed by the trial judge as he sees fit.   

20.  In my view, there is very little but still sufficient time for the consequential steps to be completed in time for the trial. It follows that there will no prejudice arising from the trial being delayed.

21.  That said, the plaintiff will still suffer prejudice in the sense that it is forced to spend time on the expert evidence now when the time should be spent on the general preparation of the trial instead. That is a matter that will also go into the overall weighing exercise.

22.  Fourth, there is no doubt dilatoriness on the part of the defendant. However, there is no material before me to suggest that the delay was a deliberate tactic to ambush the plaintiff or that the defendant has not been acting in good faith.

23.  Fifth, in its written submissions, the plaintiff sought to argue that there is no reasonable prospect of success in the defendant’s contention on the UBWs even if she is allowed to rely on the updated opinion. In my view, this is not a conclusion which I can reach at this interlocutory stage. The resolution of the dispute turns on, among other things, the previous orders and letters issued by the Building Authority and the case law in this area. These matters can only be fully and properly dealt with at the trial.

24.  In my view, the balance comes down in favour of granting leave to the defendant to pursue her case based on the updated opinion of Mr Cheung. The factors which weigh against her as identified above are not such as to justify denying her the opportunity to pursue her substantive rights in this case.

Mr Cheung’s letter

25.  I have reviewed the content of Mr Cheung’s letter. It comprises essentially (1) a short statement regarding his updated opinion, (2) a measurement of the Metal Door, and (3) further comments on the toilet requisition.

26.  It is plain that Mr Cheung’s letter simply supplements in very brief terms what he has already said in the joint statement. With the latest concession made in the defendant’s reply submissions, the scope of its content is indeed narrow.

27.  I am satisfied that the defendant should be allowed to adduce the letter as further evidence to pursue her substantive case at trial. The plaintiff should of course be given a right to reply, if considered appropriate. However, I think the plaintiff is overstating the position when it suggests in its written submissions that it needs 28 days to file supplemental expert evidence in reply. Parties are expected to act with a sense of proportion. 

Costs

28.  I order on a nisi that the defendant do pay the plaintiff’s costs of the two summonses, to be taxed on an indemnity basis if not agreed.

29.  Although the defendant has succeeded to a large extent in the applications, I consider that it is a proper case in which she should nonetheless bear the plaintiff’s costs and should do so on an indemnity basis.

30.  It is a very late application and taken out so close to the trial with no reason put forward at all to explain the delay. What is also striking is the fact that no indication was made at the PTR hearing about these applications. The plaintiff has been forced to spend time on an urgent basis to deal with the applications. Even though the trial dates can be kept, the preparation of the trial is undeniably disrupted. That is, in my view, what has taken the case out of the norm, which justifies an indemnity costs order.