LEUNG WAN MING v. LIE MEY FONG

HCA 1267/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1267 OF 2011

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DECISION
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Plaintiff’s summons dated 3 October 2014

1.  I would allow the amendment to the Summons as sought in the plaintiff’s summons dated 3 October 2014.  The amendments are foreshadowed in the plaintiff’s Skeleton Submissions and the amendments will allow the real questions between the parties to be argued and determined.

2.  However the amendment to the Summons represents a drastic departure from the relief sought in the original summons. It has now become an application under Order 45, rule 6 of the Rules of the High Court.

3.  In my view, an order under Order 45, rule 6 is the precursory step to contempt proceedings being taken against the defendant, and an order made thereunder should accord to the defendant a genuine last chance to comply with the undertaking.  With that in mind, I agree with Mr Pao that the argument of the Amended Summons should be adjourned to a date to be fixed, so as to accord a chance to the defendant to file evidence in reply to the evidence of Dr Eddie Lam.  I shall now hear the parties on further directions to be given and the question of costs. 

4.  In terms of directions:

(1) Order in terms of the plaintiff’s summons dated 3 October 2014. 

(2) The Amended Summons be filed and served within 7 days from today.

(3) Paragraph 1 of the Amended Summons be adjourned for argument to a date to be fixed in consultation with counsel’s diary, with an estimated time of 2 hours.

(4) There be leave to the defendant to file and serve affidavit evidence in reply to the evidence of Dr Eddie Lam within 21 days from the date hereof.

(5) There be leave to the plaintiff to file and serve affidavit evidence in reply (if any) within 21 days thereafter.

(6) No further affidavit evidence to be filed without leave of the court.

5.  I think that only leaves the question of costs.

[Discussion between Court and Counsel]

6.  I order that the costs of the amendment application and the costs thrown away by the adjournment be paid by the plaintiff to the defendant in any event.  The costs of today’s argument be costs in the cause of the Amended Summons.

Filing of Further Expert Report by the plaintiff

7.  Paragraphs 3 to 5 of the plaintiff’s Amended Summons seek, inter alia, leave to adduce an additional expert report from Dr Eddie Lam on the issues of: (a)    the structural safety and integrity of the ceiling of the plaintiff’s Shop G; and (b)     the repair/replacement/remedial works that are required to repair the damaged ceiling properly.

8.  For the reasons stated below, I agree that the plaintiff’s application for filing Dr Eddie Lam’s expert report ought to be refused.

9.  First, there is no satisfactory explanation as to why the plaintiff’s first expert, Mr Stewart Wong, is not in a position to give evidence on the question of quantum.  The plaintiff accepts that he is a “water leakage expert”.  Such experts deal with questions of quantum and remedial works on a regular basis and there is nothing to suggest that evidence from a structural engineer is essential on this issue.  Mr Stewart Wong has not expressed any difficulty in this regard.  Further, there is no evidence whatsoever that Mr Stewart Wong cannot give a further report updating the position since his latest inspection in December 2012.

10.  Secondly, insofar as Dr Lam’s expert report is to assess the cost of remedial works to the damage caused by the defendant’s alleged wrongful acts as pleaded in the Statement of Claim, the filing of the additional expert report is objectionable on the ground of expert shopping.  Indeed, the issue of cost of remedial and repair work on damage to the structure, fixtures and fittings of Shop G has been assessed by the plaintiff’s first expert.  Effectively, the plaintiff’s summons is seeking to change expert to give opinion on an issue that has been dealt with previously, for the sole purpose of obtaining a more favourable outcome, when the plaintiff’s first expert has expressed no difficulty in coming to an opinion on the cost of the remedial works.

The existing Joint Expert Report

11.  At the hearing on 30 October 2013, Master Hui ordered that leave be to the parties to file a supplemental joint expert report.

12.  The word “supplemental” in Master Hui’s order plainly means that the Joint Expert Report filed on 19 September 2013 shall stand and shall not be replaced.  There is nothing impractical about having two reports before the trial judge where the second report sets out the changes or amendments to the first report.  Indeed, use of supplemental expert report is a common occurrence in court proceedings.  The rejection of the defendant’s proposal for the so‑called “practical” reason is a complete exaggeration. I agree that the plaintiff’s proposal, namely filing the supplemental expert report in its full form and replacing the existing Joint Expert Report, would fly in the face of the meaning and spirit of Master Hui’s order.

Conclusion

13.  For the above reasons, I make the following orders:

(1) The plaintiff’s application for leave to file an additional expert evidence from Dr Eddie Lam be dismissed.

(2) The parties are to file a Supplemental Joint Expert Report and the plaintiff and/or his expert shall highlight (in red) the changes previously made as compared against the Joint Expert Report filed on 19 September 2013 by the defendant.

14.  I shall now hear the parties on costs.

[Discussion between court and counsel]

Costs

15.  The costs of paragraphs 3 to 5 and 6 of the plaintiff’s Amended Summons and the costs of paragraphs (1) and (2) of the defendant’s Summons be to the defendant in any event.  Such costs to be taxed if not agreed.

16.  The costs of paragraph 2 of the plaintiff’s Amended Summons be in the cause of paragraph 1 of the plaintiff’s Amended Summons.

17.  The costs of paragraph (3) of the defendant’s Summons be in the cause of this action.

18.  For the assistance of the Taxing Master, I note that no more than 10 minutes of today’s hearing have been spent on paragraph 2 of the plaintiff’s Amended Summons and paragraph (3) of the defendant’s Summons.