Able Luck Development Ltd and Others v. Boly Metal Manufactory Ltd and Others

LDCS 11000/2018

[2019] HKLdT 22

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO. 11000 OF 2018

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DECISION ON REVIEW

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1.This is the applicants’ application for review of my decision made on 20 February 2019, whereby I have given extension of time to the parties to file and exchange evidence including experts’ evidence.

2.The grounds raised by the applicants in this review application are as follows:-

(1)   The relevant respondents have scheduled with the applicants
to complete the inspection of all the remaining units and to conduct field tests around the end of March 2019, and hence the time for the parties to file and exchange evidence should be shortened to 2.5 months from the end of March 2019;

(2)   The tribunal should give adequate consideration to the delay caused by the respondents’ experts, who should have been aware of the express comments of Her Honour Judge Kot at the hearing on 16 July 2018 that 3 months should be the appropriate time allowed for preparation of expert reports and who should have acted swiftly all along without delay;

(3)   The estimated construction costs of the redevelopment of the Building is being inflated at a rate of 3% per month, and hence any unnecessarily lengthy time extension will cause delay to the proceedings and is detrimental to the applicants’ interests, in that the financial costs suffered by the applicants will not be compensated; and

(4)   One of the underlying objectives of the CJR is to ensure that cases are dealt with as expeditiously as is reasonably practicable. 

3.However, the fact that the parties have now scheduled to complete the inspection of all the remaining units and field tests to be conducted around the end of March 2019 is something that happened after my decision.  Whether the inspection and field tests could actually be done around the end of March 2019 are still yet to happen.  It is always possible that such work may still not be done around the end of

4.During the hearing, the applicants did not argue against the time frame of the respondents’ experts, but just asserted that the respondents’ experts should not inspect further units.  I do not accept that the respondents’ experts were wrong in insisting on inspection of further units or that they were delaying the matter.

5.The alleged inflation rate of the estimated construction costs was not mentioned at the hearing and is not substantiated with any evidence. There is no reason for the tribunal to accept such a bare assertion. In any event, even if there is such a loss to the applicants, it is always a litigation risk that the applicants have to bear, and it cannot outweigh the necessity for the respondents’ experts to have adequate time to inspect the units, conduct field tests and prepare reports.

6.No doubt the underlying objective of the CJR is to ensure that cases are dealt with as expeditiously as is reasonably practicable. However, it should not be at the expense of giving adequate time for the respondents’ experts to do their jobs.

7.If the work could indeed be completed earlier than estimated, then the applicants should later on apply for variation of the order made, instead of reviewing the decision, which was made without knowing that the parties could have arranged the schedule so quickly.

8.The applicants submit that the approach for review adopted in the case of Triumphal Fountain Limited and Another v Chan Chui Lun and Others [2002] HKEC 47 is not applicable to the present review because it is not a review after trial.  There is no basis to make such a submission at all. The approach for review should be the same whether it is before or after trial.

9.Thus, I do not find that there is any valid ground to review my decision made on 20 February 2019, and I decide not to review my decision.

10.The applicants’ application for review is therefore dismissed with costs order nisi that the applicants do forthwith pay the 1^st to 7^th respondents costs of the review application to be summarily assessed on papers at High Court scale.

11.The 1^st to 7^th respondents are to submit and serve their respective Statement of Costs on or before 1 April 2019.

12.The applicants are to submit and serve their Statement of Objection on Costs on or before 15 April 2019.

13.If there is no application to vary the costs order nisi on or before 1 April 2019, it shall become absolute thereafter.

Mr YC Mok, instructed by Sit, Fung, Kwong & Shum, for the 1^st to 9^th applicants

Mr HC Man and Ms WN Lau, of Ho Tse Wai & Partners, for the 1^st to 3^rd and 5^th to 7^th respondents

Ms CM Seto, of Woo Kwan Lee & Lo, for the 4^th respondent

The 8^th respondent, unrepresented, was absent