Wide Power Corporation Ltd v. The Incorporated Owners of Manhattan Court

HCA 1485/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1485 of 2013

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D E C I S I O N

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1.This is an application by the plaintiff for leave to appeal against my order made on 6 May 2016. My order gave leave to the defendant to adduce two more witness statements and a supplemental expert report. I also gave leave to the plaintiff to file witness statements and a supplemental expert report in response.

2.This is a water leakage case.  The defendant’s application and my reasons for making the order are in my decision dated 6 May 2016.  I would not repeat them.

3.The plaintiff seeks the following order in this application:

(1)  Leave to the plaintiff to appeal against my order of 6 May 2016.

(2)  The trial days, commencing from 19 July 2016 for five days, be vacated for another day pending the determination of the appeal by the Court of Appeal.

(3)  Costs of the application be in the appeal.

4.The plaintiff has made a number of grounds in support of the application which can be found in the draft Notice of Appeal.

5.I will first consider the issues of relevance, probative value and the expense and time involved.  I think the result of the consideration of these factors is in favour of allowing the defendant’s application, as I did in my order.

6.Mr Cheung, counsel for the plaintiff, emphasised the need for fairness.  He, in particular, complained about lateness.  But I would consider whether lateness would cause any prejudice.

7.In view of the chronology of the development of the defendant’s application that will be referred to below, I do not think there is any prejudice.  I should not punish the defendant by refusing this application simply because of the delay as one of the objectives of the CJR is to ensure fairness between the parties.

8.If the delay –– though not properly explained –– does not cause any prejudice that cannot be compensated by costs, then fairness would require the application to be allowed as this would ensure the fair disposal of the dispute ultimately.

9.The plaintiff also complains that its expert has found it impossible to make a supplemental expert report in a professionally responsible way.  The expert has suggested that it would be professionally irresponsible to make such a report.

10.I would ask myself the question of whether the experts will be provided with the same basic facts for their opinion in the supplemental report. If there is a handicap for one expert, is there the same handicap for the other?

11.Though the defendant’s factual witnesses had sight of the primary evidence of the roof when it was dug open, the defendant’s expert is in the same position as the plaintiff’s expert. It is wrong for the plaintiff’s expert to say that it is professionally irresponsible to give a supplemental report by relying on the evidence of photographs and factual statements by the defendant’s witnesses.  The expert is expected to try his best, and it is not professionally irresponsible for one to try one’s best, particularly when the materials to be worked on, or on which the opinion is to be based, is far from being ideal.

12.Even though the plaintiff was not at the scene when the roof was dug open, it does not mean that the defendant cannot rely on this evidence.  The employer of a driver is seldom at the scene of the traffic accident that involved the driver, but that does not prevent the employer from being sued by someone injured in the accident, or the injured person from referring to the evidence of the accident which the employer did not witness.

13.Mr Cheung also complained that I have put the burden of proof wrongly as I had placed it on the plaintiff.  That is not a correct way of reading my decision of 6 May.  The burden of proof on the facts is, of course, on the defendant.  What I meant was that the plaintiff will be at liberty to challenge the facts at the trial. It will be at liberty to say that the facts now adduced by the defendant are merely fabrications if the circumstances should justify such an attack.

14.The plaintiff also complained that there was no proper explanation on why the roof was dug up, but I note that the defendant has already said that this was done in the course of a refurbishment exercise.

15.The plaintiff also alleged that the defendant had gained the advantage of concealing the availability of the opening up of the roof. The plaintiff was the owner of the premises since 9 April 2010.  The writ was issued by it on 13 August 2013.  Its sale of the premises in question was only completed on 17 October 2014.  The plaintiff could have dug up the roof in these years prior to a completion of the sale of the premises.

16.The plaintiff also complained about the timetable being too tight.  The chronology shows that the hearing of the defendant’s application took place on 21 April 2016.  It was adjourned to 6 May 2016 for the plaintiff to consult its expert.  The adjournment was given on the understanding that if the defendant’s application should be allowed, the time for the plaintiff to prepare its response would count from that date.

17.However, when the application was allowed on 6 May 2016, I acceded to the request of Mr Anthony Cheung (who then appeared for the plaintiff) for 42 days for the plaintiff to file reply witness statements and a supplemental expert report, and for this period to count not from 21 April but from 6 May 2016.  That period will end on 17 June 2016, but the five‑day trial will only commence on 18 July 2016.  There is thus ample time for the plaintiff to conduct its investigation, if any, and to put in its witness statements and a supplemental expert report in response.  I do not think the timetable is tight by any standard as the issue now brought in by the defendant’s additional witness statements and supplemental expert report is a very short one.

18.I think the plaintiff’s real complaint is not lateness or the timetable being tight, but the fact that it was not invited to witness the digging up of the roof or the result of the digging up.  That, alone, should not deprive the defendant the opportunity to present such evidence as such is germane to the ultimate disposal of the dispute.

19.The defendant has also referred me to paragraph 59/0/55 of the Hong Kong Civil Procedure 2016, which is a commentary on appeals against case management decisions.  The editors referred to the case of Cheung Yee Mong v So Kwok Yan [1996] 2 HKLR 48 at 51 where Bokhary JA (as he then was) said:

“Case management is pre‑eminently within the province of the trial judge. And it is only in wholly exceptional circumstances that [the Court of Appeal] will interfere.”

20.The editors also cited Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 where the court observed that in respect of case management decisions, the appellant faces a very high hurdle and has to show that the judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational.

21.Finally, the editors said that:

“Steps taken by the judge to accommodate might not have been perfect from the appellant’s point of view, but the Appellate court would only interfere with the trial judge’s case management decision if it was plainly wrong, and had caused significant injustice or prevented a fair trial of the issues (Howard v. Howard-Lawson [2013] E.W.C.A. Civ 654).”

22.I would repeat that my decision would not cause any significant injustice or prevent a fair trial of the issues, but will instead enhance the fairness of the disposal of the issues in dispute.

23.I also refer to section 14AA(4) of the High Court Ordinance.  I do not think that there is any reasonable prospect of success of the plaintiff’s proposed appeal, or that there is any reason in the interests of justice on why the appeal should be heard.

24.I therefore dismiss the application for leave to appeal with costs be to the defendant to be taxed and paid forthwith. These costs will be taxed summarily by me.

25.The defendant’s solicitors shall file and serve a draft bill of costs within seven days from today.  The plaintiff’s solicitors shall file and serve their objections, if any, within 14 days thereafter.  The court will then proceed to assess the costs summarily on paper.

Mr Matthew Cheung, instructed by Tung, Ng, Tse & Heung, for the plaintiff

Mr Ng Man‑kin, of Kwok, Ng & Chan, for the defendant