GREAT LOYAL LOGISTICS LTD v. CHAN YICK YUI t/a MING FAI MOTOR CAR ENGINEERING

DCCJ 2415/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2415 OF 2013

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JUDGMENT

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Introduction

1.  The mysterious presence of a plastic bag in the engine compartment of a truck of the plaintiff had triggered off this action.

The plaintiff's case

2.  On 21 December 2012, the plaintiff handed over its truck bearing registration number PS8617 ("the truck") to the defendant for routine maintenance and annual vehicle examination.

3.  On 24 December 2012, within a few hours after taking delivery of the truck from the defendant, the truck suddenly broke down while in use on the road.

4.  The truck was later examined and repaired by Dah Chong Hong (Motor Service Centre) Ltd ("DCH").  It was found that a plastic bag was enclosing the oil pressure switch inside the engine.  It was pleaded in the statement of claim that that caused the breakdown of the truck.  The plaintiff says that it was caused by the negligence of the defendant, his servants or agents and/or breach of their duty and/or the defendant's breach of the warranty and/or contract.

5.  The plaintiff has incurred repair costs of the truck in the sum of $216,450.90.

The defendant's case

6.  The defendant says the breakdown of the engine of the truck was caused by revolution velocity of the engine being changed from higher to lower suddenly, resulting in irregular reciprocation of the engine mechanism which broke down.  In other words, it was due to the incorrect driving factors of the plaintiff's driver at the time of the breakdown of the engine.

7.  The defendant further counter-claims against the plaintiff for the total sum of $233,790.00 being the price of works done and services supplied by the defendant to the plaintiff's vehicles.

Issues

8.  The following issues are for the determination by this trial:-

(1) what is the cause of the engine breakdown of the truck;

(2) is the defendant liable to the plaintiff for the damage caused by the engine breakdown;

(3) what is the damage of the plaintiff; and

(4) is the plaintiff liable to the defendant for the works done and services rendered to the plaintiff's vehicles.

What is the cause of the engine breakdown of the truck?

9.  Due to the cause of the sudden breakdown of the engine of the truck is in dispute, expert evidence is naturally involved.

The evidence of Mr Kwong Chee Mun

10.  At the interlocutory stage, the parties did seek leave to adduce expert evidence. Master D Ho on 8 May 2015 gave leave to the parties to adduce expert evidence on the questions of liability and quantum, namely, the cause of the breakdown of the truck and the necessary repair costs.  By the said order, Fung Man Keung ("Fung") was named as the automobile expert for the plaintiff.  By another order of Master D Ho dated 18 September 2015, leave was granted to the plaintiff to engage Leung Kam Tong ("Leung") as the plaintiff's expert in the place of Fung.

11.  At the pre-trial review, the plaintiff sought leave to file and serve a signed witness statement of Kwong Chee Mun ("Kwong"), who is the manager of Isuzu Service Centre of DCH.  Deputy District Judge Gary C C Lam granted leave for doing so though with reluctance.  However, no such statement was filed by the plaintiff subsequently.

12.  At the trial, the plaintiff called Kwong to give evidence.  Mr Paul Wong, counsel for the defendant, did not object to the calling of Kwong but he qualified that the purpose of which was confined to producing an incident report prepared by DCH in relation to the truck.

13.  In the closing submission, Miss Karen Cheung, counsel for the plaintiff, surprisingly, sought leave for Kwong's oral testimony be admitted as expert evidence.  Miss Cheung founded her application on the basis that no objection was taken by the defendant when Kwong gave evidence.  The application was for obvious reason strenuously opposed by Mr Wong in his supplementary closing submission.

14.  Order 38 rule 36 of the Rules of the District Court ("RDC") provides:-

"(1) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence –

(a) has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application."

15.  No doubt the parties were aware of the provisions as they had sought leave of the court at the interlocutory stage.

16.  It is obvious that the plaintiff was intending to rely on Leung as its expert.  At least up to the time when the pre-trial review took place, Kwong was intended to be a factual witness for the plaintiff.  As a matter of fact, there was never any indication (let alone an application for such purpose) that Kwong was to be called as an expert witness until the closing submission of Miss Cheung was lodged.

17.  I must say this way of adducing expert evidence is an absolute disregard of the procedural requirements as laid down by RDC and is totally unprecedented.  To say that it was not objected to by the defendant is putting words into the mouth of Mr Wong. In any event, the plaintiff had not sought the agreement of the defendant beforehand.  The fact that the plaintiff had neither sought leave nor directions of the court pursuant to Order 38 rule 36 is indisputable and is admitted by Miss Cheung.  The attempt of Miss Cheung is in effect laying an ambush against the defendant.  This court should not allow expert evidence to be adduced through the back door.  I am particularly dismayed by the fact that Miss Cheung saw it fit to seek leave of the court after the close of the evidence.

18.  For the above reasons, I hold that Kwong is a factual witness only.

The challenge to the capacity of the plaintiff's expert

19.  Mr Wong had launched an attack on the admissibility of the expert evidence of Leung on the issue of liability.  He premised his challenge on 2 grounds:-

(a) that Leung has failed to demonstrate sufficient expertise in the matter ("challenge 1");

(b) that Leung has failed to comply with the statutory duties under Order 38 rule 37C of the RDC ("challenge 2").

Challenge 1

20.  In respect of challenge 1, Mr Wong submitted firstly that Leung only produced his CV at a very late stage and secondly his CV did not show that "he [had] acquired mechanical or motor engine specialist".  In essence, Mr Wong is saying that the "certificate issued by Department of Justice of the United States" as stated in Leung's CV is only an expression of appreciation by the US Embassy in Hong Kong for the services he rendered on account of car repairs for the Embassy.  Leung has failed to show that he has acquired any "mechanical or electronic licenses".  By that, I gather that Mr Wong meant any qualification in mechanical or electronic engineering.  Mr Wong also submitted that as Leung admitted under cross-examination that the 1^st report, though issued in his own name, was not signed by him, he has adopted a highly irresponsible and loose attitude towards his overriding duties to court and his statutory obligation to sign personally the declaration.

21.  Section 58(1) of the Evidence Ordinance provides:-

"(1)  Subject to any rules, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence."

22.  Phipson on Evidence, 18^th Ed, 33-62 at p1189 has this to say:-

"Though the expert must be "skilled", by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility ... one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one's work, notwithstanding that the expertise is derived from experience and not from formal training."

23.  Similarly, in Expert Evidence: Law and Practice, 4^th Ed, 1-028 at p29, the learned author said:-

"The two most important qualities are the possession of knowledge of the specialism in question, and an ability to use that knowledge by virtue of training and/or experience in that field. It is however the expertise itself, not the route or method by which it was obtained, which is decisive."

24.  In his submission, Mr Wong placed a heavy emphasis on the lack of qualification of Leung.  However, he said nothing of the experience acquired by Leung in the motor industry.

25.  According to a reference letter annexed to his CV, Leung completed his apprenticeship at Tung Nam Automobile Car Repair Workshop from October 1958 to October 1961 as a motor car fitter.  He received training in motor repairing, acetylene and electric welding, body and fender repairing.

26.  In his evidence, Leung said he opened one Hing Wah Automobile Service (興華汽車服務) in 1968 which had operated for 33 years.  Moreover, he has been engaged in the profession of motor survey for over 40 years.  He was a founding member of the Hong Kong Motor Vehicle Adjuster Association which was established in 1994.  According to his CV, he has examined and compiled over 60,000 motor survey reports and has provided service to no less than 8 insurance companies.  He has also run courses in Lee Wai Lee Technical Institute on motor surveying.  He has acted as an expert witness on motor vehicles in court for 10 to 20 times.  His evidence was accepted by the court as such.

27.  The above credentials of Leung were not challenged by Mr Wong in cross-examination[1].

28.  With respect, I think the challenge to the expertise of Leung is misplaced.  It seems clear to me that Leung has acquired his expertise in motor vehicles through his vast experience in the field of motor vehicles repair and motor surveying.  One must not forget that Leung received his training in late 1950s as an apprentice, which was the common form of acquiring technical skills in those days.

29.  I am satisfied that Leung is qualified to give expert evidence on motor vehicles and his expertise is relevant to the issue in dispute in this case.

Challenge 2

30.  This challenge can be disposed of briefly.

31.  Order 38 rule 37C of RDC provides:-

"(1) An expert report disclosed under these Rules is not admissible in evidence unless the report contains a declaration by the expert witness that --

(a) he has read the code of conduct set out in Appendix E and agrees to be bound by it;

(b) he understands his duty to the Court; and

(c) he has complied with and will continue to comply with that duty."

32.  Both the 1^st and 2^nd reports dated 8 October 2015 and 14 March 2016 respectively did contain a rule 37C declaration.  The complaint of Mr Wong is that the 1^st report was not signed by Leung personally.

33.  In court, Leung explained that the 1^st report was signed by his assistant because both of them had analysed the matter together.  As he wanted to nurture young people, therefore, it was signed by the assistant.  His printed name in the 1^st report was a mistake which he admitted.

34.  I accept that Leung's name was printed on the 1^st report by mistake.  In any event, Leung did sign on the 2^nd report which contained the rule 37C declaration.  I am satisfied that Leung has acknowledged his duty and obligation as required of by the declaration.

35.  For the foregoing reasons, I do not see any merits in the defendant's challenge to the expertise of Leung.

The challenge to the expertise of the defendant's expert

36.  Unbeknown to anyone during the course of the trial, Miss Cheung launched an attack on the expertise of the defendant's expert, Mr Ho Chi Biu ("Ho"), in the closing submission.  She said Ho's CV was not referred to in any of Ho's testimony.  Therefore, there was no evidence "to verify" his expertise.  She remarked that the plaintiff has never indicated that there was no dispute "to the qualification of the defendant's expertise (sic)".

37.  As a matter of fact, the CV of Ho was annexed to his 1^st report dated 22 December 2015 which was filed on 7 March 2016.  It was also included in the bundle at p170.  Miss Cheung might have overlooked this fact and attempted to lay an ambush which was however based on her own misconception.  She did not cross-examine Ho in relation to his expertise.  This must be regarded as no issue is taken thereon.

38.  I should add that in modern civil litigation, legal practitioners should adopt the cards on the table approach.  The deployment of attack by surprise tactic is not in the interest of justice and should be discouraged.

39.  Accordingly, I reject Miss Cheung's challenge to Ho' expertise.

The cause

40.  After the engine breakdown, the truck was towed to DCH for repair.  The technician of DCH discovered that the oil strainer of the engine was hided by a foreign material.  Kwong testified that the foreign material was a plastic bag like substance in the size of 4 inches by 1 inch.  Further, he found that the wire of the oil pressure switch was not connected and was covered by plastic tape.  The connecting rod of the engine was broken and a large hole was found at No 1 cylinder block.  Also, the No 1 piston was damaged.  It was also discovered that the crankshaft was damaged and the No 1 crankpin was burnt and discoloured.  Lastly, the No 6 connecting rod bearings were burnt as well.

41.  Leung was engaged by the plaintiff to give an opinion on the cause of the engine breakdown.  He formed his opinion by referring to 60 photographs taken by Ming Chi Motor Surveys & Consultants Limited (ie the defendant's expert, hereinafter referred to as "Ming Chi") and the Incident Report compiled by DCH and the 12 photographs annexed thereto.  He had not inspected the damaged parts or the dismantled engine personally. 

42.  In Leung's opinion, the cause of the engine breakdown was due to the blockage of engine oil circulation by the plastic bag inside the engine.  Without sufficient engine oil supply to the rotating and motion parts of the engine for lubrication, the engine cylinder block broke. 

43.  The defendant engaged Ho of Ming Chi to inspect the truck on 7 January 2013, 7 February 2013 and 5 March 2013 at DCH.  He found that the 1^st cylinder of the engine mechanism was broken and stalled; the engine mechanism including the engine block was broken; the 1^st cylinder piston rod was broken; the big end bearings were cracked and slightly scratched; the crankshaft was worn out and the piston rod bearings and the crankshaft of the 6^th cylinder was slightly worn out.

44.  Ho was of the opinion that the engine breakdown was not caused by the lubrication system problem.  He concluded that it was the result of the driver's "incorrect driving factors or the materials of the engine was metal fatigue".  By this, Ho explained in a letter dated 18 February 2013 that it was "the revolution velocity of the engine has been changed from higher to lower suddenly (such as from higher gear shift to lower gear), resulting that irregular reciprocation of the engine mechanism which broke down".

45.  Ho ruled out lubrication problem as the cause of the breakdown because if there was insufficient supply of engine oil to the engine, "the engine crankshaft, all bearings, valve guides, camshafts, piston rings, engine cylinder bore would only be worn, scratched and seized due to overhearing until the engine halt but would not cause the engine block to break down".

46.  In relation to the presence of the plastic bag, Ho said it could only be put inside the engine via (a) the top side of the engine oil inlet hole; (b) the bottom side of the engine oil outlet hole.  He was unable to conclude how and by whom the plastic bag was being put inside the engine.  In any event, he did not believe that the engine breakdown was caused by the plastic bag.

47.  In his further report filed on 7 March 2016, Ho said given the size of the plastic bag, it could not completely block the oil-flow around the engine to cause any failure.  The plastic bag would be floating or moving around in the engine oil instead of obstructing the oil-flow due to the pressure creating from the moving metal parts of the engine. 

48.  Ho fortified his conclusion by the fact that the truck was running for a while before it came to a halt.  He said if the plastic bag had blocked the oil-flow, the engine must have stopped within a very short time, such as 1 or 2 minutes after running.  Furthermore, the truck had just passed the annual vehicle examination for the purpose of renewing the vehicle licence.  If the plastic bag had an impact on the engine, it would have failed the test.

49.  In response to the conclusion of Ho, Leung said the damage caused by the sudden change from higher gear shift to lower gear would cause the breakdown of the transmission system but not the engine.  The engine was unlikely to be damaged due to metal fatigue.

50.  It can immediately be seen that the validity of the conclusion reached by Ho depends on the manner of driving of the driver of the truck before the breakdown.

51.  Heung Yuen Kau ("Heung") was the driver of the truck at the material time.  He has over 10 years of experience as a truck driver.  He had been employed by the plaintiff since 1 April 2011.

52.  On the day in question, he was instructed to drive the truck to a godown of the plaintiff at the Airport Freight Forwarding Centre ("AFFC") for the purpose of loading goods onto the truck.  Sometime between 12.00 to 1.00 o'clock, he drove the truck to Kowloon Bay via Lantau Link.  As he was driving along the slow lane of Lantau Link for over 10 minutes, he heard loud sound coming out from the truck and then the truck was running abnormally and was slowing down.  He then saw white smoke coming out from the front of the truck.  He then pulled the truck over to a lay-by.

53.  When cross-examined, he said he did not exceed the speed limit of 80 km per hour.  He denied that he had shifted from high to low gears in order to slow down the truck before the breakdown.

54.  At the material time, Heung was performing his normal duty as a truck driver.  He was driving the truck along the slow lane of Lantau Link, which has a speed limit of 80 km per hour.  There is no suggestion that he was in a rush.  There is also no suggestion that he needed to slow down the truck abruptly.  Common sense dictates that if one wants to slow down a car, he should do so by applying the brake.  Shifting from high to low gear is a procedure to be done when the car is going down a slope.  This is not something a driver would do when the car is running on the highway.  The same of course applies to Heung at the material time.  In any event, there was simply no reason for him to slow down the truck all of a sudden.

55.  In my judgment, Heung was driving the truck at the material time in a normal manner.  He did not shift from high to low gears as suggested by Mr Wong before the breakdown. 

56.  There is no dispute that the connecting rod and piston of No 1 cylinder were broken; the No 1 crankpin was burnt and discoloured; a large hole was found at No 1 cylinder block and the bearings of the No 6 connecting rod bearings were burnt.  However, no damage was found at the gear box.

57.  If Ho's theory is right, one would expect that the gear box would be directly subjected to the thrust of the abrupt gear shift.  If damage was thereby caused, the gear box would be the first component to suffer.  That is also the view of Leung.  It seems to me that the total lack of damage to the gear box does not sit well with Ho's theory.

58.  Judging from the extent of damage to the engine, it is more likely than not that the engine had encountered a lubrication problem before its failure.  The smoke that Heung saw after the truck slowed down by itself lends support to this happening.

59.  As the plastic bag found inside the engine compartment is a foreign material, it is more probable than not that it had obstructed the circulation of engine oil within the engine.

60.  For the above reasons, I prefer the theory of Leung as the cause of the engine breakdown.  I reject Ho's theory.

Is the defendant liable to the plaintiff for the damage caused by the engine breakdown?

61.  This issue centred on whether the defendant is responsible for the presence of the plastic bag, which is a foreign material, in the engine compartment.

62.  It is the pleaded case of the plaintiff that the engine breakdown (caused by the presence of the plastic bag in the engine compartment) was due to the negligence of the defendant, his servants or agents and/or a breach of their duty and/or the defendant's breach of warranty and/or the contract.

Res Ipsa Loquitur

63.  In her closing submission, Miss Cheung sought reliance on the maxim of res ipsa loquitur.

64.  Miss Cheung submitted that res ipsa loquitur will arise upon proof of:-

(1) the happening of some unexplained occurrence ("element 1");

(2) which would not have happened in the ordinary course of things without negligence on the part of somebody other than the claimant ("element 2"); and

(3) the circumstances point to the negligence in question being that of the defendant, rather than that of any other person ("element 3"),

citing Charlesworth & Percy on Negligence 12^th Ed para 6-103[2].

65.  Mr Cheung submitted that the truck broke down shortly after maintenance works were carried out by the defendant and returned to the plaintiff.  She submitted that the plaintiff does not have to prove how the plastic bag got into the engine.  As there are sufficient evidence to infer that the plastic bag could not have found its way into the engine without the negligence of the defendant or his subcontractor or agent.

66.  Mr Wong submitted that res ipsa loquitur is not applicable because element 3 quoted by Miss Cheung is not established.  He submitted that when the truck failed, it was in the control and possession of the plaintiff's driver.  It is not clear if someone had dealt with the engine of the truck before or after the accident.  The burden of proof is on the plaintiff.

67.  Bokhary PJ in Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207 at 211C-G explained that res ipsa loquitur is a mode of inferential reasoning which comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property.  Unless the defendant offers an acceptable explanation consistent with his having taken reasonable care, the court is able to infer negligence on the part of the defendant. As long as the cause on which the issue of liability actually turns is unknown, the accident is regarded as one of unknown cause.

68.  In the Privy Council case of Ng Chun-pui v Lee Chuen-tat [1988] 2 HKLR 425, which is an appeal from Hong Kong, the Privy Council held that the burden of proving negligence rested throughout the case on the plaintiff.  The effect of res ipsa loquitur was only that faced with a prima facie case of negligence, the defendant would be found negligent unless he produced evidence that was capable of rebutting the prima facie case.

69.  The passage cited by Miss Cheung from Charlesworth & Percy on Negligence (supra) is what the learned author considered as the elements that constitute a prima facie case of negligence.  The prima facie case itself is not proof of negligence as the defendant may produce evidence in rebuttal.

70.  The presence of the plastic bag in the engine compartment, as I have found, had caused the engine breakdown.  How it had got into the engine compartment is something of a mystery.  There is no evidence proving one way or the other.  With the learned opinion of Bokhary PJ in Sanfield Building Contractors Ltd (supra) in mind, I consider that this constitutes element 1, namely, that the breakdown of the truck was due to an unexplained occurrence.

71.  However, to say that there is sufficient evidence to infer that the plastic bag could not have found its way into the engine without the negligence of the defendant, his subcontractor or agent, with respect, is making a quantum leap without basis.  This is also not legal consequence of the application of the maxim.

Prima facie case of negligence

72.  Assuming for the time being that Miss Cheung is invoking the maxim, this court remains to consider whether element 2 and element 3 are established by the plaintiff's case.

73.  According to Leung's expert report, the truck was manufactured in 2010.  By the time of the engine breakdown, it had a mileage of 101,988 km.  On 21 December 2012, the defendant picked up the truck at AFFC for routine maintenance and annual vehicle examination.  At noon on 24 December 2012, the defendant returned the truck to AFFC after the vehicle examination was passed.  In the same afternoon, Heung was assigned to drive the truck, firstly loading goods at AFFC, and then proceeded to Kowloon Bay via Lantau Link.  It was after he was travelling along the way for about 10 minutes that the truck broke down suddenly.

74.  Obviously, the truck was only in the custody of the defendant for 3 days.  For the rest of the time, it was in the possession and control of the plaintiff.  More significantly, at the time when it broke down, it was under the control of the plaintiff.  

75.  For this reason, one cannot say the occurrence must have been due to the negligence of someone other than the plaintiff.

76.  There is indeed no dispute that that the plastic bag was in the oil pan of the engine at the time of the breakdown.  Nevertheless, as pointed out by Ho, there could be two ways whereby the plastic bag found its way into the engine, namely, through the engine oil inlet on top of the engine, or through the engine oil outlet underneath the engine.  The two experts were not in agreement with respect to the way through which the plastic bag got into the engine.  Leung opined that the plastic bag got into the engine through the engine oil inlet on top of the engine.  He did provide a theory as to how the plastic bag could have travelled to the oil pan where it was found.  But there is no evidence as to the length of time and/or the distance the truck needed to travel for the plastic bag to reach the oil pan.

77.  To my mind, given the relatively short duration during which the truck was in the hands of the defendant (and probably the relatively short distance the truck had travelled during the time), the length of time required of and/or the distance the truck needed to travel according to Leung's theory is an important factor to consider.  It is of course possible that the defendant could not be the negligent party according to Leung's theory.

78.  Therefore, it cannot be said that the circumstances of this case are such that the defendant was the negligent party to the exclusion of the others. 

79.  As a result, I am unable to hold that a prima facie case of negligence is established against the defendant.

Proof of negligence

80.  Miss Cheung submitted that there is sufficient evidence to infer that the plastic bag could not have found its way into the engine without the negligence of the defendant, his subcontractor or his agent.  The basis of her submission is that the truck broke down shortly after it was returned to the plaintiff by the defendant.

81.  In my view, negligence is not to be deduced by reverse logic.  Hence, the fact that the truck broke down shortly after its return from the defendant is not the natural consequence of the defendant having dealt with it in a negligent manner, be it an act or an omission.

82.  The burden of proving negligence on the part of the defendant rests on the plaintiff throughout the case.  That is to say, the plaintiff must prove that the plastic bag got into the engine compartment due to the negligent handling of the truck by the defendant.

83.  In my judgment, the expert evidence led by the plaintiff as to the cause of the engine breakdown short of a convincing theory pointing to the probability that it was more likely than not that it was the defendant, his subcontractor or agent, who had caused the plastic bag entering into the engine which eventually broke the engine is simply not enough to establish liability against the defendant.

84.  For the above reasons, I hold that the plaintiff has failed to prove negligence on the part of the defendant.

85.  That being my conclusion, the answer to the question must be in the negative.

What is the damage of the plaintiff?

86.  For completeness sake, I would also deal with this question.

87.  DCH’s repair costs consists of parts for the sum of $175,725.00 and labour in the sum of $40,725.90, making up a total of $216,450.90.

88.  In his expert report, Ho made no comment on the costs of the parts and estimated the labour costs at $48,000.00, which exceeded that charged by DCH.

89.  That being the case, I would allow the damage of the plaintiff in full, ie $216,450.90.

Is the plaintiff liable to the defendant for the works done and services rendered to the plaintiff's vehicles?

90.  Lam Pak Kin is the warehouse operation manager of the plaintiff.  When cross-examined, he agreed that after 24 December 2012, the defendant had rendered services to the vehicles of the plaintiff.  However, the service charges were not paid for because of the breakdown of the truck.

91.  As such, there is effectively no dispute to the defendant's counterclaim and the answer to this question is in the positive.

Conclusion and order

92.  By reasons of the foregoing, the plaintiff's claim is dismissed.  I give judgment in favour of the defendant against the plaintiff for the sum of $233,790.00.

Interest

93.  The plaintiff shall pay the defendant interest on the said sum of $233,790.00 at judgment rate from the date of the counterclaim (ie 19 August 2013) to the date of payment.

Costs

94.  Costs should follow the event.  I make an order nisi that the plaintiff shall pay the defendant costs of this action with certificate for counsel, to be taxed if not agreed.

95.  In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.

[1] Except that Mr Wong challenged the number of survey reports prepared by Leung per day. However, that challenge was based on a mistake in calculation on the part of Mr Wong.

[2] This passage is the same in the 13^th Ed of the book at para 5-18.