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

HCMP 1538/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1538 OF 2016

(ON AN INTENDED APPEAL FROM HCA NO 1485 of 2013)

________________________

________________________

_______________

JUDGMENT

_______________

Hon Kwan JA (giving the Judgment of the Court):

1.This is an application for leave to appeal taken out by the plaintiff, against the decision of L Chan J on 6 May 2016 (“the Decision”). By the Decision, the judge gave leave to the defendant to adduce two more witness statements and a supplemental expert report. The judge also granted consequential leave to the plaintiff to file further witness statements and a supplemental expert report in response, on or before 17 June 2016. The trial of the action is to take place on 18 July 2016 with five days reserved. It is a dispute on water leakage on a roof of a property formerly owned by the plaintiff (“the plaintiff’s roof”). The plaintiff’s case is that the leakage was caused by the failure of the waterproof membrane, which is a common facility, and hence the defendant, being the incorporated owners, should be liable.

2.The plaintiff sought leave before the judge to appeal against the Decision.  The judge refused leave on 3 June 2016 in a decision given on the same day (“the Leave Decision”).

3.Having failed before the judge, the plaintiff sought leave from this court to appeal.  The summons was taken out on 17 June, the last day for such an application to be made under Order 59 rule 2B(3).  The draft notice of appeal annexed to that summons is identical to the draft considered by the judge.  We fail to see why this summons should not have been taken out earlier.  It should have been apparent to anyone that no time should be lost, in view of the imminent trial dates.  It is regrettable that unnecessary pressure should be put on the court to deal with the application on an urgent basis.

4.We exercise our power under Order 59 rule 2A(5)(a) to determine the application on the basis of written submissions without a hearing.

5.We do not propose to recite the background and salient facts, which have been mentioned in the Decision, the statement prepared by the plaintiff’s counsel, the chronology annexed thereto, as well as the statement prepared by the defendant’s solicitors.

6.The intended appeal is against the case management decision in the exercise of the judge’s discretion.  We are guided by the well established principles in the cases cited by the judge in the Leave Decision, §§19 to 21.  In short, the plaintiff faces a very high hurdle to challenge the Decision.  It would have 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 so that the appeal court would interfere.

7.The major complaint of the plaintiff is that the further evidence should not be allowed because its admission would cause prejudice and an injustice to the plaintiff.  It is said that the plaintiff would not be able to verify the evidence to be adduced by the factual witnesses on the opening up of the platform slab on the plaintiff’s roof in November 2015, when a major renovation of the building was carried out.  The plaintiff, which had sold its property with the roof by then, was not told of the defendant’s intention to open up the platform slab for inspection at the time.  The platform slab, the metal poles and rods which were bolted to the slab, had all since been destroyed.  The plaintiff would be hampered in the cross-examination of the witnesses giving such evidence.  Quite apart from the delay in applying to adduce such evidence (having regard to the order and directions made by Registrar Lung on 15 April 2015, that the experts had prepared a joint statement in September 2015, and that trial dates have been fixed), it is alleged that the new evidence was unfairly obtained and the prejudice occasioned to the plaintiff could not have been compensated by costs.  It is further contended that the plaintiff’s expert witness would have difficulties in rendering an expert opinion on the new evidence. 

8.All these matters have been ventilated before the judge on 21 April, 6 May and 3 June 2016.  He had considered them and dismissed them for the comprehensive reasons given in the Decision and the Leave Decision.  We do not propose to repeat them.  The judge was fully alive to the plaintiff’s real complaint (§18 of the Leave Decision), but concluded that his decision to allow such evidence to be adduced “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” (Leave Decision, §22).

9.We are inclined to agree.  As the judge had remarked, the plaintiff’s sale of the property was only completed on 17 October 2014.  There was nothing to prevent the plaintiff from investigating the cause of the leakage by opening up the platform slab before the completion of the sale.  Further, as submitted on behalf of the defendant, on 5 November 2015, the defendant has filed a supplemental list of documents disclosing the photographs taken on the plaintiff’s roof on 3 November when the platform slab was opened up by contractors.  It was only sometime after 14 November that the workers proceeded with the works and completed the same.  The plaintiff should have noticed from the photographs that the platform slab was opened up.  If the plaintiff had acted in a timely manner, it could have carried out its own inspection. 

10.As for the experts, the defendant’s expert who prepared a supplemental report did not carry out an inspection when the platform slab was opened up.  He is in the same position as the plaintiff’s expert.

11.There is no basis to interfere with the Decision, on the well established principles.  The threshold requirements for granting leave to appeal are plainly not met.  We dismiss the plaintiff’s summons.  And as the application is wholly without merit, we make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

12.We make the following order nisi as to costs.  We order the plaintiff to pay the defendant’s costs of this summons and make a gross sum assessment.  Having considered the statement of costs lodged by the defendant, we think the amount claimed is entirely reasonable and will allow this in full at $28,050.  Any party who seeks to vary the costs order nisi shall lodge a written submission within 7 days hereof, failing which such order shall become absolute.  The other party would have 7 days thereafter to make a response in writing. 

Written submissions by Mr Anthony PW Cheung, instructed by Tung, Ng, Tse & Heung, for the plaintiff (applicant)

Written submissions by Kwok, Ng & Chan, for the defendant (respondent)