YUEN YUK KWAN MABEL v. LEAD BRIGHT LTD

HCA336/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.336 OF 2002

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D E C I S I O N

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1. This action stems from the purchase of a new flat by the plaintiff from the defendant in 1998. The flat has had many defects. The matter eventually came on for trial in June 2003. However, on the defendant's application it was adjourned. The defence were later given leave to file a re-amended defence and file and serve further evidence.

2. There are now two further summonses before this court. The plaintiff seeks to strike out parts of the re-amended defence and parts of the new witness statements. The defendant seeks to add a further amendment to its pleading relating to a failure to mitigate loss arising out of events which have occurred since the last hearing.

3. I will deal with the plaintiff's summons first. It is in three parts :

(1)	It is said that parts of the statement of Evans Chow dated 19 July 2003 should be struck out because it contains double hearsay. The offending parts are :
	"Paragraph 5:	'they could not have represented to any purchaser that access to the roofs of Block 2, 3 and 5 would be through internal staircases from the top floor.'
	Paragraph 7:	'and was informed by him that he had never and could not have represented to the Plaintiff or any purchasers of the duplex flats of Blocks 2 , 3 & 5 that access to the roof would be through the internal staircase from the 25th Floor and there would be a glass house over the entrance to the roof.'"
	Such evidence is admissable by virtue of section 46 of the Evidence Ordinance, Cap.8 and I do not consider it appropriate to exclude it under the provisions of section 47. Whether any weight is ultimately attached to it is a matter for the trial judge.
(2)	The defence apply to strike out the whole of Yau Man Lai's statement dated 21 July 2003. This is a two-page statement. Mr Yau is a property officer employed by Sino Estates (of which the defendant is a subsidiary). His statement relates to the taking of photographs at the scene in May 2001. He also describes what he did and what he saw at the time of the photograph taking. Paragraphs 1-6 inclusive are admissable. Paragraph 7 however will be struck out. Arguably it is hypothetical opinion evidence from a non-expert.
(3)	The plaintiff also seeks a strike out order in relation to paragraphs 7A(a),(b), (c), 7C and 7D of the amended defence. Much of Mr Pirie's (for the plaintiff) submission in support of the strike out application depended on his contention that at the hearing before Mr Justice Lam on 17 June 2003 the defence through their counsel, Mr Anthony Chow, made an admission that the defence would be liable for all damage caused by water leakage. The court recording system reveals that what Mr Chow actually said was :
	"we are prepared to admit liability in relation to the water leakage from the water system - that's clear." (and after a comment from the judge) "I don't want to tie my client's hands if on inspection there are other causes."

4. This concession may go a long way towards resolving the case (or at least part of it). However it is not the "admission" contended for by Mr Pirie. A further inspection was never made and so the present position is as conceded by Mr Chow, namely that the defence is liable for water leakage from the water system but not from all other possible sources. Paragraph 7A will therefore not be struck out. It pleads that water damage was caused by improper maintenance of sealants around bathroom fittings. The strength or weakness of this allegation, in the light of the history of the matter, is for the trial judge to determine based on the evidence.

5. Paragraph 7C is not objectionable either. The plaintiff has pleaded that the flat was let out at a substantially reduced rent. Paragraph 7C simply denies this. It is an unsurprising pleading which may be relevant to quantum. Again, the accuracy of the plaintiff's pleading will be determined by the evidence. As with all the amendments pleaded, it is not too late to ask for further and better particulars. If such particulars are sought it would be desirable for them to be requested and supplied by correspondence because the trial is now fixed for 1 March 2004. Neither side wants to lose that date.

6. Paragraph 7D relates to the issue concerning the provision of a roof structure and access to it. Albeit late (as conceded by Mr Chow) it is a full response to paragraph 11 of the Statement of Claim. The issue between the parties is clear. It is not for this court to go into the differences between the two cases. Mr Pirie's submission in favour of striking out the pleading points to weaknesses in the defendant's case and seeks to belittle it. Again, these are matters for trial. They do not provide this court with valid grounds for taking away part of the defendant's defence.

7. I dismiss the plaintiff's summons with costs. Both parties were given an opportunity to address the court on costs, so this is a final order.

8. I now turn to the defendant's summons. It seeks a further amendment to the defence. On 17 and 18 September 2003 the defence wrote to the plaintiff offering to carry out rectification works and put the plaintiff's family up in a nearby hotel whilst the work was being done. The plaintiff's failure to respond to this offer is pleaded as a failure to mitigate her loss. Whether or not this offer will have any bearing on the ultimate issue of quantum is impossible to say at this stage. The pleading itself however is not objectionable and will not take the plaintiff by surprise. I therefore make an order in terms of paragraph 1-6 inclusive of the defendant's summons dated 2 January 2004.

9. In conclusion, the dilatory preparation for trial by the defence prior to the last trial date in 2003 (as conceded by Mr Chow) has led to these parties position becoming entrenched. However the defence has verbally conceded liability for damage caused by water leakage from the water system. Also the issue relating to the roof could be resolved by the plans and other documentary evidence. I mention these matters so as to remind the parties that even though the next trial date is less than two months away a proportionate amount of time should still be directed towards avoiding a trial at the same time as preparing for one.