HUI LING LING v. SKY FIELD DEVELOPMENT LTD

HCA35/2007

   IN THE HIGH COURT OF THE

   HONG KONG ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   ACTION NO. 35 OF 2007

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BETWEEN

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R U L I N G

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1.   Today is an adjourned hearing, and the Master had expressly described this hearing to be a CMC (case management conference). Before today the parties have reached an agreement to go forth with mediation and informed this court by a letter dated 17 July 2009. I have replied in writing to the parties, stating that the case should proceed to CMC. Despite that, neither party has filed a listing questionnaire for today’s purpose. This is the second time the plaintiff has defaulted in doing so.

2.   The defendant had filed one for the previous CMC. I was initially told today that there has been no change of position since the last hearing. But as more details were given to me by Mr Chui, it appears that the defendant has outstanding matters to comply with, namely provision of two expert reports, one on liability and the other on quantum. It is proposed that such expert reports be served within 14 days, to which the plaintiff does not oppose.

3.   What is important is that there had been no previous directions for adducing two expert reports. The expert direction given by the then Registrar Chan, back in year 2005, only mentioned the service of “expert report” in singular. The need to have two experts was something that Masters were not alerted to at any previous directions hearing, checklist hearing or CMC. The need for two experts arose after the defendant discovered that one expert was not enough to deal with two types of issues.

4.   As of today, the issues which the experts are required to address have not been framed. In the absence of a listing questionnaire from the plaintiff and an updated listing questionnaire from the defendant, the court does not have the full picture of the progress of the case, and hence setting down is prevented. Adjournment to another CMC appears inevitable, and there is loss of valuable court time.

5.   I wish to restate the court’s position. We do encourage parties to go ahead with mediation, but that does not necessarily mean all court proceedings, including milestone events, have to be stayed. What we do is that we take into account the time needed for mediation and may give leave to set down for trial if there are no other outstanding directions. This will ensure that mediation and, if necessary, litigation, will proceed at reasonable speed. So once we fix a CMC and decline to move that date, parties are expected to comply with all directions and PD5.2.

6.   At the CMC the court expects to be told accurately what the outstanding directions to be complied with are, apart from the parties’ wish to mediate. The listing questionnaire is thus a useful tool to so inform the court. The listing questionnaire also binds the parties so that if a party confirms that he has no further interlocutory applications, the court will hold him or her to that confirmation and set the case down for trial if appropriate. Parties must never assume that the court will adjourn a CMC readily for mediation without further directions or imposing conditions.

7.   Having heard the parties, the best I can do today is to direct as follows:

(1) The defendant is at liberty to adduce two expert reports within 14 days, notwithstanding time for doing so has expired. One report shall be on liability from Mr Kenneth Chan of KC Surveyors. The other, on quantum, shall be from Mr Gilbert Chan of Jones Lang LaSalle Limited.

(2) The defendant’s expert on liability shall give his opinion on the source of the water leakage and why the plaintiff’s method of ascertaining such source is not accurate.

(3) The defendant’s expert on quantum shall give his opinion on:

(i) loss of rental for four years from 2003 to 2006 (inclusive); and

(ii) how the loss of rental could have been mitigated.

(4) Parties are at liberty to mediate their disputes in accordance with the directions of Master Lung dated 3 June 2009.

(5) Adjourned to 30 September 2009 at 2:30 pm for CMC. The listing questionnaire is to be filed by both parties. PD5.2 is to be complied with.

(Discussion re costs)

8.   The situation is quite like a situation where parties enter into consent summons and have not received notice from the court to dispense with the hearing. The hearing will proceed. So the same applies where you ask for adjournment of CMC and we do not adjourn. I am of the view the fault is on both sides. The appropriate order for costs will be no order.