XCHRX BRAINS DESIGNER & DECORATOR LTD. v. COLLECTIONS INTERIOR LTD.

HCA 10051/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10051/1999

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J U D G M E N T

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1. This is an appeal of the Plaintiff from an order of Master Jones on 10 January 2001 dismissing the Plaintiff's application for leave to adduce expert evidence at the trial.

2. The Plaintiff's claim of about HK$1.4 million is for the balance of the contract sums due for work done and materials supplied for two projects in Luk Yeung Sun Chuen and Cheung Kwan O. The work on the two projects was completed in September 1997 and June 1997 respectively.

3. The defence as pleaded is defective work and materials, as a result of which the work had to be completed by another contractor and that had caused loss and damage in the sum of HK$1.3 million.

4. No particulars of defective work and materials were pleaded in the Amended Defence filed on 7 December 1999. It was only on 17 January this year that the Plaintiff applied for further and better particulars of the Defence and an order was made on 29 January 2001 and the further particulars served on 19 February 2001. All of which took place after the hearing before Master Jones.

5. In summary, the alleged defects in the Luk Yeung Sun Chuen were defects in marble or granite flooring, that included uneven levels and hollows of the floorings and discolourization of floorings and walls. The defects occurred near the completion and upon completion of the works.

6. The alleged defects in the Cheung Kwan O project were defects in the workmanship in the floor, wall and ceiling of lift lobbies, and defects in materials for the wall and floor tiles, ceiling tiles and accessories.

7. As for the loss and damage of HK$1.3 million allegedly incurred, the Defendant said this amount was deducted by the main contractor for employing an alternative contractor to rectify the Plaintiff's defective works. The Defendant has no idea how the figure of HK$1.3 million was arrived at or whether this had been paid to the alternative contractor.

8. The Plaintiff's solicitor has filed an affirmation for this appeal explaining why the Plaintiff wishes to adduce expert evidence. The solicitor has deposed and it was submitted to me that it was necessary to adduce expert evidence on three issues to be resolved at trial:

(1) whether workmanship and the materials used for the marble laying part of the contracts for the Luk Yeung Sun Chuen project were defective and bad;

(2) the effect of people working on a floor with freshly laid marble with concrete/cement not yet cured; and

(3) whether the Defendant had suffered loss and damage to the extent of HK$1.3 million to rectify the alleged workmanship and materials for the Luk Yeung Sun Chuen project.

9. I understand from the Plaintiff's solicitor, Mr Lau, that he does not seek to adduce expert evidence on the Cheung Kwan O project at this stage.

10. It was submitted by Mr Finley who appears for the Defendant that it was not necessary for the Court to be assisted by an expert on issues (1) and (3). With respect I disagree. My concern at this stage is whether it is appropriate to give leave to adduce expert evidence on these two issues as it is doubtful whether there is sufficient material for the expert to give a proper opinion on these two issues at present. The projects were completed some four years ago and rectification work had been carried out. As I understand from Mr Lau, photographs were taken but he was unable to tell me if the photographs were before or after the rectification work and he has not shown me these photographs. Mr Lau said he would seek further discovery from the Defendant of documents relating to defects, such as the report of the architect of the employer in which he expressed dissatisfaction with the work done and the recommendation and work carried out to rectify the alleged defects.

11. If those two issues had been the only matters on which leave was sought to adduce expert evidence, I would not have given leave at this stage. It may be better to wait and see the outcome of any application by the Plaintiff for specific discovery so that an expert would be able to give a meaningful opinion if leave to adduce expert evidence should be granted.

12. There is however issue (2). On this, the expert can give an opinion. Although the issue was not raised in the pleadings, I was given to understand by Mr Lau that there was contemporaneous correspondence between the parties in which the Plaintiff alleged that the defects in the flooring were due to people working on a floor with freshly laid marble with concrete or cement that had not been cured. This appears to be a genuine issue.

13. My view is that the Defendant should be given leave to adduce expert evidence.

14. I therefore allow the appeal and I make an order as per the Notice of Appeal in these terms:

(1) the order of Master Jones dated 10 January 2001 is set aside;

(2) the parties are given leave to adduce expert evidence at the trial of this action; and

(3) the parties are to file with the Court and exchange statements of expert witnesses within 60 days.

15. I will hear the parties on costs.