WONG GILES v. DONOWHO SIMON CHRISTOPHER AND ANOTHER

HCPI 1046/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1046 OF 2014

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D E C I S I O N

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The Application

1.  This is an application by the plaintiff under Order 38 Rule 36 of the Rules of High Court to adduce expert evidence, seeking the following directions –

a.  The parties do have leave to adduce further evidence on the profitability and marketability of the patented stair-lift as described under paragraph 3.1 to 3.13 of the Revised Statement of Damages … by an expert in the field of business consultancy and/or marketing;

b.  Consequential directions on exchange of expert evidence.

Background

2.  According to the statement of claim, the plaintiff and his wife were residing at Apartment 4F of the Building (as defined in paragraph 3 of the statement of claim).  The 1^st defendant and his family resided at Apartment 5F of the Building. And the 2^nd defendant and his family resided at Apartment 6F of the Building.

3.  On 9 January 2014 at about 11:15 pm, the plaintiff was watching TV in the living room of 4F.  The plaintiff said the 2^nd defendant appeared at the front door of 4F, banging on and kicking at it very hard with associated utterance of verbal abuse directed at the plaintiff demanding that the door be opened.  The plaintiff stayed away from the front door.

4.  At around midnight, when the kicking and verbal abuses stopped, the plaintiff rose from his seat with a view to walk to the front door to check whether the 2^nd defendant had left.

5.  It is the case of the plaintiff that the 1^st and 2^nd defendants had at this juncture gathered at or near the back door of 4F where the control of the electricity mains was located, and turned off the electricity supply to 4F.  4F was then in a sudden state of total darkness.

6.  The plaintiff was stressed and disorientated by the power outage.  He walked to the front door in total darkness.  His foot was caught by a Persian rug in the living room and fell. He sustained injury to his lower back.

7.  For the purpose of this ruling, I did not have to go to other details in the statement of claim or the defence and counterclaim.

8.  According to the Revised Statement of Damages, the plaintiff claimed various items of loss including a future loss of $5M. 

9.  It was pleaded in paragraph 3.1 to 3.13 that, inter alia, the plaintiff had retired and then been inspired into inventing and designing a compact stair‑lift.  For a few years before the accident, the plaintiff had played a pivotal role in the Project (as defined in paragraph 3.4 of the Revised Statement of Damages) as the investor, researcher, designer and developer.  In 2010, a company owned by the plaintiff and his wife had been established for the purpose of the Project.

10.  The company had been granted two patents in the United Kingdom and Hong Kong respectively for a stair­-lift designed by the plaintiff.  (The second patent was indeed granted after the accident.)

11.  Before the accident, the plaintiff had been working on various prototypes of the stair‑lift at a workshop in Dongguan, China.  Two crude prototypes had been made and the plaintiff was in the course of working on the third prototype which was an improvement on the previous ones. 

12.  As a result of the accident, the plaintiff claimed that he was so injured that he could not walk up and down the stairs freely, which was essential to his Project.  His psychological sequelae arising from the accident also affected his sleep and mental stamina.  The testing of the third prototype was curtailed and the Project was suspended.  It is the case of the plaintiff that the injury of the plaintiff caused a setback in the Project of at least 2 years, and hence loss of profit for these 2 years.

13.  It was not disputed that the Project had not been completed as at today.  It was the case of the plaintiff that he would be able to manufacture a set of stair‑lift at average costs of about $25,000 and sell the same at a price of HK$100,000 with a net profit of HK$75,000.  He claimed that he would be able to sell about 3 to 4 sets of stair-lifts per month totally 36‑48 sets per year.  He therefore claimed a loss of HK$5M ($75,000 x 3 x 12 x 2 years = HK$5,400,000 rounded down to $5M).

14.  It was also claimed in the affirmation of the plaintiff filed herein on 5 April 2016 that due to his age and lack of the necessary knowledge or experience, it was not practical for him to be actively involved in conducting the marketing and sales of the stair‑lift.  He therefore planned to engage a marketing company to market the product through the internet once the third prototype was completed.  And according to his planning, the third prototype could be completed in mid‑2014 and he could start working on the polished and marketable prototypes by early 2015.  While there was no business plan prepared before he was injured, a business plan was prepared by the plaintiff and produced as “GW-5” in his affirmation to assist the proposed expert in understanding his plans for the Project.

15.  Pausing here, Mr Suen, counsel for the plaintiff submitted that there were 4 issues involved in establishing this item of loss, including –

a.  The Project would as a result of the plaintiff’s injuries suffer a setback of at least 2 years (“the Question of Time”);

b.  The plaintiff would be able to manufacture a set of the stair-lift at an average cost of HK$25,000 (“the Question of Cost”);

c.  The plaintiff would be able to sell a set of the stair‑lift at a price of HK$100,000 (“the Question of Price”); and

d.  The plaintiff would be able to sell about 3‑4 sets of the stair‑lift per month, totally 36‑48 sets per year (“the Question of Sales”).

16.  Mr Suen agreed that the Question of Time was a matter of finding of facts and no expert evidence would be required.  For the Question of Cost, the plaintiff would provide his own costs estimate and no expert evidence would be required.  The plaintiff only sought to introduce expert evidence to resolve the Questions of Price and Sales.  Mr Suen in his submission stated that the scope of expert evidence would be confined to the profitability and marketability of the patented stair‑lifts.

17.  At the hearing, I indicated to Mr Suen that it would assist this Court to consider the application if he could set out the issues that were to be addressed by the expert with detailed particulars.  And after a short break, Mr Suen handed me (with copies to other parties) a list of issues which were modified from paragraph 11 of the affirmation of Ma Wan Hin, solicitor for the plaintiff filed herein on 5 April 2016 –

a.  Assess the marketability of the stair‑lift, by conducting a survey of comparable products to ascertain the demand and probable market share, [estimated cost, estimated price and estimated sales volume] of the stair‑lift (“Issue 1”); and

b.  Assess the estimated loss of profit based on the above due to a setback of 2 years in the business of the stair‑lift (“Issue 2”).

18.  The words in straight bracket were added by Mr Suen.  There were strong objection from counsel for the defendants to include any expert evidence on estimated cost which would be matter for Question of Cost.  Since Mr Suen confirmed it was not the application of the plaintiff to have expert evidence on costs, I would delete the reference to “estimated costs” in the straight bracket in Issue 1 in my consideration of this application.

Legal Principles and Discussion

19.  Mr Suen submitted that the party seeking to call expert evidence had to satisfy the Court that such expert evidence is available, would have a bearing on the issues which the Court has to decide and would be helpful to the Court in coming to a conclusion on those issues.  He referred to the judgment of Evans‑Lombe J given in Barings Plc v Coopers & Lybrand (No.2) [2001] Lloyd’s Rep Bank 85 at 45 –

“Expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the court accepts that there exists a recognized expertise governed by recognized standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.”

20.  I agreed with this principle.  Indeed, similar principle had been recorded in other judgments given by this Court.  I referred to a judgment of HH Judge Marlene Ng (as she then was) given in Lau Lai Shan v Hospital Authority DCEC 784/2007 which summarized the principle on case management of expert evidence, which I agreed entirely –

“15. Several case management considerations conspire to put the calling of expert evidence under the court’s complete case management control.

16. First, the court must be satisfied that the expert evidence intended to be adduced will be of assistance to the court, ie reasonably required to resolve the issues before the court (see Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & anor HCA4576/2001, Chu J (unreported, 8^th October 2002) para.12 citing Barings plc (in Liquidation) & Anor v Coopers and Lybrand & Ors, Lexis transcript, 9^th February 2001, Evans‑Lombe J at paras.44‑45). A corollary to such proposition is that there shall be no expert evidence unless the court considers such evidence helpful in arriving at a determination of the issues before it. This means the court has to make a judgment on the usefulness of the expert evidence to be adduced (see the English case of Baldev Singh Mann v Messrs Chetty & Patel [2000] EWCA Civ 267 (26^th October 2000) on the Civil Procedure Rules, which suggested that some of the relevant considerations included (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake). [my emphasis]

17. Secondly, there is no entitlement to adduce opinion evidence from experts. A party may not adduce expert evidence at trial or put an expert report in evidence without permission by the court.

18. Thirdly, the true function of an expert witness in civil litigation is to carry out objective fact-finding and provide impartial opinion. The expert should not be a partisan advocate who espouses the views of the party who engages him. His opinion evidence shouldbe, and should be seen to be, unbiased and impartial, and his own independent product uninfluenced by the exigencies of litigation (see Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8^th May 2007) para.37 citing Cresswell J in Ikarian Reefer [1993] Lloyd’s Rep 68). After all, the purpose of such expert evidence is to educate and inform the court on issues arising within the expert’s specific area of expertise. [my emphasis]

21.  I was referred by Mr Fong, counsel for the 2^nd defendant to the following passages in a judgment of Madam Registrar Au Yeung (as she then was) given in Kam Hing Trading (HK) Ltd v The People’s Insurance Company of China (HK) Ltd & Anor, HCA1062/2008 -     

“5.  Accordingly, before taking out the Summons, the questions set out in section E of the timetabling questionnaire (and see paragraph 20 of Practice Direction 5.2) must be considered. The parties should then set out the proposed expert directions in the Summons covering 4 main aspects:

(i) The field of expertise required;

(ii) The name of the expert;

(iii) The subjects or issues which the expert should give his opinion on; and

(iv) Whether a single joint expert should be appointed.

8.  With regard to (iii), defining the issues which the expert should give his opinion on will prevent lengthy reports addressing different issues.  The Summons should not just state that the expert should give evidence on e.g. the loss suffered by the plaintiff as pleaded in the statement of claim.  Pleadings can be lengthy and the expert should not be left to define for himself the questions he needs to answer.  Rather, the parties should endeavour to agree on a list of issues for the expert.  Such issues should preferably be framed as “yes or no” or “multiple choice” questions. The issues should be included in the Summons (and ultimately the Order).  The expert can then provide his opinion around the framed issues.” [my emphasis]

22.  The learned Registrar set out the importance of framing the issues.  When the issues were properly framed with reference to pleadings and evidence, the experts would be concentrating on expressing an opinion to assist the trial judge to interpret the evidence before this Court.  He should not go into area not within the issue and not to advocate for the parties.

23.  I noted that the learned Registrar referred to PD 5.2 in the judgment.  While PD 5.2 would not automatically be applicable to the PI List, it could be adopted by the Court in appropriate cases (see paragraph 1 of PD 5.2).  I had indeed adopted such practice in my earlier decisions.  One classic example would be when parties were seeking to call expert evidence on liability in PI cases.  The PI questionnaire required the parties to set out the issues for comment by liability experts at question F4.

24.  For the present case, I considered it helpful to first identify the issues to be addressed by the experts before I rule on the admissibility of expert evidence.  I adopted PD 5.2 and hence had invited Mr Suen to set out the issues.  Mr Suen had referred to the pleading when he framed the 2 Issues.  There was however no reference to disclosed evidence.

25.  Mr Fong also submitted that the plaintiff had not identified with precision what evidence or information that was to be presented to the expert to give an opinion, other than the business plan.  Any opinion would not be helpful.  I would come to this argument in greater details later.

26.  Another point Mr Suen sought to emphasis was that expert evidence should be allowed if it was required for the purpose of determining the real question in controversy. His submission was not the complete picture of the legal principle and must be read with the principle I set out above.  Further, expert evidence could not be adduced without leave of Court and when exercising the discretion, I would also take into account the underlying principle of Order 1A.

27.  And in assessing when to exercise the discretion to admit expert evidence, Mr Suen invited me to follow the authority on amendment of pleadings. I did not see the need to refer to such authority when there were clear authorities on when expert evidence should be admitted.

28.  With these legal principles, I turned to consider the argument of the parties. 

Plaintiff’s argument

29.  Both defendants opposed the application. The burden rested on the plaintiff to satisfy this Court that introduction of the expert evidence was justified. 

30.  Mr Suen in his written submission identified the objection of the defendants:

(1)  Alleged lack of relevance and basis to adduce expert evidence;

(2)  Alleged lack of relevant expertise of Professor Kim, the expert nominated by the plaintiff; and

(3)  Alleged delay in taking out the application.

31.  I believe objection (1) was a matter that the plaintiff had to satisfy this Court that the suggested expert evidence would be necessary relevant and of probative value to this action.  I would come to the expertise of Professor Kim later.  But if expert evidence was found to be relevant, even if Professor Kim was not qualified, the parties could locate a new expert.  And I would deal with delay separately.

32.  On the issue of relevance, it was stated in paragraph 21 of the affirmation of the plaintiff dated 5 April 2016 that –

“I do not, however, have the relevant expertise in marketing and sales. I am advised that, in order to prove my claim and to assist this Honourable Court in assessing the quantum for loss of profits by reason of the setback in the Project, I should adduce evidence from an expert in the field of marketing, who ideally should at the same time be capable of understanding how the stair-lift works, to assess the estimated level of demand and profits.”

33.  In further support of the application, Mr Ma Wan Hin, solicitor for the plaintiff had filed an affirmation on 5 April 2016. Paragraphs 10 and 11 read –

“10.  In paragraph 3.10(2) of the Revised Statement of Damages and paragraph 74 of the witness statement of [the plaintiff], it was stated that the plaintiff intended to engage a marketing company to market the stair-lift through the internet. As the plaintiff is not an expert on sales and marketing, he will not be in a position to given expert evidence as to what the optimal price of a set of stair-lift would be and the expected demand in the market (both in Hong Kong and overseas). Expert evidence is therefore necessary on the Question of Price and the Question of Sale or, in other words, the profitability and marketability of the stair-lift. Such evidence will assist the trial judge in assessing the quantum of loss of profits and/or loss of chance.

11.  It is anticipated that the expert will :

(1)  Assess the marketability of the stair-lift, by conducting a survey of comparable products to ascertain the demand and probable market share of the stair‑lift; and

(2)  On the basis of information provided by the plaintiff on the stair‑lift, ascertain the profitability of the stair‑lift, in light of the market information of comparable products.

34.  Paragraph 11 of the affirmation of Mr Ma had been modified by Mr Suen as the Issues 1 and 2 for expert evidence.    

35.  It is not disputed that the stair‑lifts had not been put into production or sale.  There was no direct evidence on the sale and profit of the stair‑lift to be marketed by the plaintiff.  Mr Ma further submitted in his second affirmation filed herein on 25 August 2016 that “it is precisely for this reason that it is necessary for expert witnesses to assist this Honourable Court by projecting the profit which the plaintiff would and could have made had there been a setback to the project.” 

36.  With these backgrounds, Mr Suen submitted that the expert opinion would be relevant and I should allow the plaintiff to adduce the report to be prepared by Professor Kim. 

37.  Professor Kim had also filed an affirmation in support.  While he had answered some queries on his expertise, he had given only a brief outline of the methodology that he would engage to give an opinion on the marketability of the stair-lift.  He had not gone into any details as to the source of data, the comparables, and the costs of the survey.  These were material factors for considering if the expert evidence would be relevant and necessary.

1^st Defendant’s argument

38.  Mr Hingorani, counsel for the 1^st defendant referred me to the Court of Appeal decision given in Chan Tak Yim v Wong Tit Kin and Wong Shu Kin [2001] HKCU 1053.  He submitted that when the trial judge found that there was no evidence on loss of future profit, no damages other than nominal damages should be awarded.  This case was not directly on expert evidence and I was not here to determine if the plaintiff had adduced sufficient evidence to prove his loss. 

39.  Mr Hingorani submitted that “marketability” and “profitability” of the stair‑lift were matters that this Court could rule without expert evidence.

40.  Mr Hingorani also referred to the case Wong Yuk Kin v Yip Hing Keung & Oth, HCPI1053/1985, when the trial judge found credible evidence from similar businesses and the Court could assess the loss of the plaintiff.  This case was helpful to show a plaintiff could adduce factual evidence to prove his future loss without involving expert evidence. 

41.  The plaintiff in Wong Yuk Kin’s case had to prove his loss of profit.  He relied firstly on his own estimation.  He also tendered another witness who carried out the same business to project his earning after the injuries.  The one point I had to note was that these were all factual evidence.  No expert evidence was required.  If there could be factual evidence on comparable, we would not need the expert evidence. 

42.  I would not exclude some cases when expert would be involved to interpret the evidence adduced, such as a forensic accountant to project the profit of a business from the available accounting documents.  But if there was no factual evidence, very precise and detail instruction framed with reference to the pleading had to be agreed and given for the expert to identify the correct data or information to be used in giving his opinion.  

43.  Mr Hingorani submitted that there was no evidence on the business of the plaintiff that the expert could project the loss.  As to the business plan produced by the plaintiff, which should be a key document/information for the comment by the expert, or as his guideline to find the appropriate comparables, Mr Hingorani submitted that it was not a business plan.   There was no information on the distinctive features of the stair-lift that set it apart from named competitors, demographic data, the management team to be engaged and their expertise or experience.  A so-called business plan to engage a marketing company to handle sale and marketing in future was neither a business plan nor was it a mature business plan.

44.  He also submitted in Court that there was no provision on any after sale service.  These deficiencies would make it impossible for expert to know the business structure of the plaintiff to arrive at some opinion on the profit of the business.

45.  Mr Hingorani referred to the evidence of the plaintiff in his witness statement that “no product in the market was satisfactory in terms of size and costs.”  But the plaintiff had not identified the “market”, or any company/companies whose products were unsatisfactory, or explained how the products were unsatisfactory as to size and/or costs.  Such deficiency had not been rectified by the affirmation of the plaintiff.

46.  And on the affirmation of Mr Ma, Mr Hingorani submitted that a survey of comparable products would lead only to the identification of other manufacturers of stair-lifts and their sale prices for such stair‑lifts.  It would not lead to information about the manufacturing costs of such stair‑lift, as these were not likely to be a matter disseminated by the manufacturer to the public.  The demand for comparable products, meaning the sale of those comparable products would also be within the knowledge of the manufacturers which was not likely to be imparted.  It would not be possible to know the profit or sale volume of comparable manufacturers nor to project the profit of the plaintiff’s future business.

The 2^nd Defendant’s submission

47.  The main argument of Mr Fong was that the intended expert evidence was irrelevant and not necessary. 

48.  Mr Fong referred to Chan Pui Ki v Leung On and Anor [1996] 2 HKLRD 401 at 425 when Litton VP (as he then was) commented on actuarial and economists’ report -

“In this regard, we note that in a number of personal injuries cases recently, the judge in charge of the list has made interlocutory orders to the effect that the parties should “exchange actuarial and economists’ reports”. Plainly, such order should now be recalled. To adopt the words of an American judge (in Doca v Marina Mercante Nicaraguense S. A., 634 F2d, at 39): “The average accident trial should not be converted into a graduate seminar on economic forecasting”. The search for delusive exactness in awards for personal injuries of the kind practiced in the court below should now cease.”

49.  While we were not considering actuarial and economists’ report here, Mr Fong submitted that the stair-lift had never been in operation and the likely business loss would merely be a matter of general probability.  The expert’s techniques on data collection, various statistical models and interpretations, and research on consumer information search and choice to study demand and market structure and competition in the stair‑lift market might convert the present action into seminar on economic forecasting as warned by Litton VP.

50.  While I did not agree that the Chan Pui Ki’s case could be of direct application for this ruling, one principle should be helpful.  When assessment had to be made by projecting the loss, there had to be firstly discovery of the raw material to project the future loss.  When such evidence was not available, there ought to be sufficient particulars given in the issues to be addressed by the expert to ensure that he was working within the ambit of the pleaded cases of the parties.  If no detail instruction could be given, the expert might end up by selecting his data and using his techniques without proper reference to the pleadings.  This could turn an expert report into a seminar on economic forecasting, or guess work.  This was not the function of expert evidence. And such report would be of no probative value.

Discussion and Ruling on Issue 1

51.  Generally speaking, the main objection from the defendants could be understood to mean that, if the plaintiff had no business plan, or any relevant information about how the future business would be established, how were the experts in a position to project the sale price and the volume of sale?  If the experts did give an opinion, would it be guess work and of no probative value to this Court?

52.  On the 2 Questions of Price and Sale, the matter that the plaintiff had to prove would be the projected sale per month, and the projected sale price of each unit. 

53.  Issue 1 had not identified the scope of factual evidence upon which the expert was to express an opinion, or defined with clarity the area that such comparables were to be located.  It would then lead to more argument on the appropriate comparable to be used.  It was questionable if such opinion could be of assistance to this Court.

54.  I had raised with Mr Suen on what basis the experts were to make the survey.  He repeated that it would be by comparing with similar products in the market.  The survey would involve, firstly, identification of the market, the targeted customers and the demand within a certain period of time.  And the experts would have to identify similar products in terms of their respective function, their price, and other sales terms such as after-sale service, to assess the market share of the plaintiff’s product.  But these particulars had not been specified in the Issues, or stated in the supporting affirmations.

55.  The only available information for the expert to identify the market and customer would be the business plan of the plaintiff, and the drawings of the patents.  I agreed with Mr Hingorani that the business plan produced by the plaintiff only repeated that his initial target customers would include elderly and disabled person in Hong Kong, people with sole knees and those who were newly pregnant or planned to be pregnant, or people who would not want to walk up and down the stairs.  The plaintiff intended to engage a marketing company to market the product.  And apart from these, the plaintiff did not have concrete business plan upon which the expert could evaluate.

56.  The plaintiff had not explained the advantage claimed of his stair‑lift as compared to other similar products, except his claim that his stair‑lift would be better in terms of size and costs.  I agreed with Mr Hingorani that there was no information on the distinctive features of the stair-lift that set it apart from named competitors. There were no demographic data, or details of the management team to be engaged. Because the original business plan was at such a preliminary stage, asking the expert to give an opinion would risk asking the expert to create the business plan for the plaintiff.

57.  A so-called business plan to engage a marketing company was neither a business plan nor was it a mature business plan.  It could not begin to have details to identify the comparable products.  I found it impossible for the experts to identify the market, the customers with the limited information in the business plan produced without doing guess work. 

58.  While Professor Kim said in his affirmation that the plaintiff’s claim depended on a superior product rather than on better advertising or distribution as compared with other manufacturers, there had to be speciality of the stair-lift to identify the comparables.  It was specified in Issue 1 that the marketability was to be conducted by survey of demand of comparable stair‑lift in the market.  He had not explained how to identify any comparable.  There was no suggestion as to the available comparable in his affirmations.  

59.  In some cases, the expert could be given detail instruction to identify the comparable.  Unfortunately it was not the case here.  If we were to end up with an academic debate between 2 experts as to who was making the better speculation, this would not be of assistance to the trial judge. 

60.  Further, for the market, Mr Suen had identified China, Hong Kong and Taiwan.  One could see the scope of the investigation for the demand would be huge, given these 3 big markets.  And further, just in China, different cities and provinces would have difference houses.  The costing of such research would be huge and it was not proportionate to the claim.

61.  In conclusion, I refuse leave to adduce expert evidence on Issue 1.

Discussion and Ruling on Issue 2

62.  On Issue 2, the expert was required to assess the estimated loss of profit if there was a setback of 2 years.  Whether there would be a setback of 2 years or part thereof would be a finding of fact based on the evidence on the medical condition of the plaintiff.  The question for the expert would indeed be what could be the projected sale price of the stair‑lift to be manufactured by the plaintiff.  This would be the question of Price. 

63.  The plaintiff could ask for any price.  The projected sale price of a stair-lift would be the optimal price that a customer would be prepared to buy.  It would again depend on the details of the product, the competing products, and the consumer reaction.  As the plaintiff had not commenced any sale, the experts would face the same problem to identify the scope within with the experts were to locate the comparable of similar business as the pleaded case of the plaintiff. 

64.  I had also raised with Mr Suen the issue if the machine had to be approved by any Government Authority.  He had no instruction.  Further, as suggested by Mr Hingorani, the sale is not only depending on the design, matters like after-sale service, promotion have to be taken into account.  While Professor Kim said the sale was not depending on advertisement, I thought this would be a factor for identifying or distinguishing a comparable. 

65.  I believe Issue 2 had the same problem as Issue 1.  I was not convinced that the expert had been given sufficient instruction to identify the comparable as Issue 2 had not specified the same with clarity.  Any opinion would not be of probative value.  I would not allow expert evidence on Issue 2.

The expertise of Professor Kim

66.  Since I rule against the plaintiff on both Issues, I do not have to rule if Professor Kim is qualified to give expert opinion.

Delay

67.  Again, I do not have to rule on this issue as I would dismiss the application.

Ruling and Order

68.  In conclusion I would dismiss the plaintiff’s summons with an order nisi that the defendants do have costs of the application with certificate for counsel.  I am minded to summarily assess the costs.  The order nisi shall become absolute within 14 days.  If there is no application, the defendants shall lodge their respective costs statement within 7 days thereafter.  The plaintiff has 7 days to response and I would assess the costs in chambers.