EVER FAMOUS LTD v. DONNY INTERNATIONAL LTD

HCA 1507/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1507 OF 1998

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D E C I S I O N

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1.  The defendant issued a summons on 13 September 2006, returnable this morning, asking for an order that leave be given to the defendant to adduce (i) the 2^nd supplementary report of Ng Chi Chai, dated 4 September 2006; and (ii) the expert report of Tang Wai Chau, dated 12 September 2006 at the trial of this case.

2.  The trial of this case is fixed to commence on 28 September 2006, next Thursday, with a total of six days being reserved for the trial of this action which was commenced about eight years ago in 1998.

3.  The defendant did not file any affidavit evidence in support of this late application.  On the other hand, the plaintiff’s solicitors filed an affirmation in opposition to the application. 

4.  Miss Tung Yan Kei Elisa, handling solicitor for the plaintiff, filed an affirmation on 18 September 2006 telling the court that their firm received on 13 September 2006 the defendant’s summons and that she immediately notified a representative of the plaintiff and arranged an urgent conference on the following day.  At the conference she was instructed to instruct a firm of structural engineers to prepare an expert report for the purpose of these proceedings.  On the following day, 15 September 2006, she wrote to a firm of engineers asking them to prepare a full report containing their comments in response to the defendant’s reports.  She received a reply on the same day from the engineers, stating that they would need two to three weeks to prepare the report if no investigation tests were required.

5.  Mr Raymond Chung of Messrs Chung, Fong & Co., solicitors for the defendant, appeared before me this morning and made the application.  He alleged that their reports were in answer to a Chesterton Petty’s report, which the plaintiff only obtained leave to file as late as August this year. 

6.  It transpired that the Chesterton Petty’s report is dated 18 July 1998 giving a valuation of the subject property as at 23 January 1998, and as at 6 July 1998.  I asked Mr Raymond Chung to identify the passages in the Chesterton Petty report which their reports were dealing with.  He did not identify any particular paragraph, but said that the presence of dangerous and illegal structures affected the value.

7.  I should pause here and point out that of the two reports, the report made by Mr Tang showed that he only visited the premises on 5 September 2006. Mr Tang could not have been in a position to deal with the state of affairs of the property as at 1998.  Any advocate appearing before the court is under a duty not to knowingly mislead the court. 

8.  Even if the defendant’s reports could be said to be in answer to the Chesterton Petty’s report, this matter should have been dealt with before Deputy Judge Gill when the cross-summonses for leave to file further evidence came before the learned deputy judge. There was apparently no application for leave to file evidence in response and no explanation has been offered as to why that could not and should not have been done on that occasion.  In the absence of any explanation that is a factor to be borne in mind.

9.  The substance of the two reports is to allege the presence of illegal and dangerous structures.

10.  The trial for six days commences next Thursday and the keeping of trial dates is a matter which should weigh in the exercise of my discretion. 

11.  The plaintiff’s evidence shows that they need two to three weeks to prepare a report if no tests are required.  Mr Chung said that, taking two weeks, the report would be ready one day after the commencement of trial and therefore the plaintiff is not prejudiced. 

12.  I disagree.  Parties appearing before the court should have the materials ready before trial commences and if the matter is to proceed without prejudice to the plaintiff, the plaintiff should be entitled to an adjournment and vacating of the trial dates.  It is a course which I am reluctant to take in the absence of good and compelling reasons. 

13.  I bear in mind that the defendant is claiming a purchaser’s lien and has registered the sale and purchase agreement against the subject property, which is an encumbrance on the plaintiff’s title to the property, and unless and until the action is disposed of one way or the other that encumbrance will remain.

14.  In all the circumstances I exercise my discretion and refuse the application.

(Discussion on costs)

15.  The summons is dismissed with costs to be taxed and paid forthwith.