Force Way Engineering Ltd v. The Incorporated Owners of Grand Court

DCCJ 3216/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3216 OF 2016

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DECISION

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1.This is my decision on the defendant’s application taken out today to rely on further documents which are disclosed for the first time and listed in its 4^th Supplemental List of Documents.

2.I would grant leave as sought by the defendant and make an order in terms of paragraphs 1 and 2 of its summons dated 8 May 2017.

3.I have taken into account the following matters.

4.One, the new documents are of high and significant relevance to the defendant’s counterclaim.  They purport to show that various sums were, in fact, incurred by the defendant to replace or repair the alleged defective works.  This is a significant consideration for me to take into account: see Order 1A, rule 2(2) of the Rules of the District Court.

5.Two, it is a very late application.  The defendant did try to put forward an explanation.  The defendant sought to show that reasonable steps had been taken for the discovery of the new documents.  I have to say that while the steps do show some industry and diligence on the part of the defendant, it is not an entirely satisfactory explanation, because someone on the defendant’s side ought to have spotted the missing gap in the evidence much earlier on.

6.Three, the plaintiff submits that the late application, if allowed, would result in prejudice to the plaintiff.  If these documents had been disclosed in a timely manner, the plaintiff might have formed the view that it should seek leave to engage its own expert to opine on the replacement works.  Previously, they had formed the view that because the previous supporting evidence produced by the defendant only purported to substantiate a much lesser part of the counterclaim and hence they were happy to go along with the approach of a single joint expert.

7.It is impossible for me to speculate what the plaintiff would have done in the circumstances.  But it seems to me to be a tactical and practical stance that the plaintiff had taken back then, when faced with only partial, or arguably scanty, documentary evidence.  I would say that it is not farfetched or impossible that the plaintiff could have taken a different course of action as far as expert directions are concerned.

8.However, now that we do have a joint expert in the form of Mr Eric Lam, he would be able to give comments, if any, on the new documents when he comes into the witness box.  Of course, these new documents should be provided to him in advance of his oral evidence.

9.Further, given that Mr Leung has given his confirmation that he will have no top-up questions for Madam Choy in her examination-in-chief as regards the new documents and that Mr Lung has indicated that, given some extra time, he would be in a position to cross-examine Madam Choy on the new documents, the prejudice that is arguably suffered by the plaintiff would be much alleviated.

10.Four, I note, lastly, that the counterclaim amount has all along been pleaded in the defence and counterclaim, so there is really no surprise there for the plaintiff.

11.In conclusion, on balance, as a matter of case management, I would grant leave to the defendant as sought.

(Discussion re costs)

12.On costs, I make the following order.

13.The plaintiff do have costs of the summons on an indemnity basis, to be taxed if not agreed, with certificate for counsel.

14.Two and a half hours of the third day of the trial be apportioned to the hearing of the summons.

15.I make the order primarily for the reason that it is clearly an indulgence which was sought by the defendant.  It was no doubt a very, very late application.  Hence the costs order.

Mr Vincent Lung, instructed by Wong & Co, for the plaintiff

Mr Adrian Leung, instructed by Huen & Partners, for the defendant