Fung Yau Lin and Others v. Lam Shuet Ying and Others
Read the full judgment text of DCCJ 1005/2017 on BabelCite. This District Court judgment was delivered on 11 September 2019.
1. The plaintiffs are the registered owners of Lots nos. 697 and 700 in Demarcation District 100 in North New Territories (the “Land”). The 3 rd and 4 th defendants (the “Defendants”) are currently in occupation of the Land. The plaintiffs bring this action to recover the Land. The Defendants in turn claim declaratory relief that they have acquired a possessory title over the Land by reason of adverse possession.
Cites 2 cases
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DCCJ 1005/2017 [2019] HKDC 1228 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1005 OF 2017 ________________________ BETWEEN
________________________ Before: Deputy District Judge Connie Lee in Chambers Date of Hearing: 11 September 2019 Date of Reasons for Decision: 11 September 2019 ________________________ REASONS FOR DECISION ________________________ A. Introduction 1.The plaintiffs are the registered owners of Lots nos. 697 and 700 in Demarcation District 100 in North New Territories (the “Land”). The 3rd and 4th defendants (the “Defendants”) are currently in occupation of the Land. The plaintiffs bring this action to recover the Land. The Defendants in turn claim declaratory relief that they have acquired a possessory title over the Land by reason of adverse possession. B. The plaintiffs’ application to change their expert 2.At the hearing fixed for the pre-trial review of this action, I heard and granted the plaintiffs’ application for leave to adduce expert evidence of Mr Joseph Wong (“Mr Wong”) in replacement of Mr Chan Hon Kwan Henry (“Mr Chan”). These are the short reasons for my decision. 3.No doubt this is a very late application. The trial of this action will take place on 5 November 2019 (with 5 days reserved). The Summons was only taken out on 9 September 2019 and the plaintiffs cannot even serve the same on the Defendants with 2 clear days notice. 4.The explanations provided by the plaintiffs in the form of a solicitor’s affirmation, are as follows:-
5.As the plaintiffs’ Counsel, Mr Pang accepts, this is a wholly unsatisfactory situation. There is no evidence as to when Mr Chan informed the plaintiffs’ solicitors that he would not be able to attend the trial. It is however clear that the plaintiffs had as from at least April 2019, to contact and find another expert. They however saw fit to wait until after 7 August 2019 when their solicitors received Mr Chan’s confirmation again. 6.There is currently no information provided by the plaintiffs regarding the qualification of Mr Wong. The Court is told that given the time constrains, Mr Wong is also unable to prepare a draft report for the Court’s consideration but it is unlikely that there will be any significant divergence of opinion. 7.As I have mentioned, this is an entirely unsatisfactory position. I would have expected that the supporting affirmation should at least exhibit the CV of Mr Wong. 8.Having said that, I am satisfied that there is no attempt to “shop” for an expert on account of the substance of the opinions in question. It appears that the reason why Mr Chan will not be able to attend trial is because the plaintiff’s solicitors had not obtained or checked his diary prior to the setting down.[1] 9.Bearing in mind that the Court’s primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, the plaintiffs’ right to have proper expert evidence adduced at trial should not be undermined in absence of any fault on their part. 10.After all, the Court should strive to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court should strive to ensure a level playing field with fair access to proper experts for all parties: Law Chung Fai v Lam King Kuen [2]. 11.At this stage, the current timetable proposed for the filing of Mr Wong’s expert report and the report in reply by the Defendants’ expert should not cause any real disruption to the trial dates. 12.I think for these reasons I ought to allow the plaintiffs to substitute Mr Wong for the original expert. 13.On the Summons, I will therefore make an order in terms of Paragraphs 1 to 3 and 5 save that I will impose an unless order for Mr Wong to file and serve his expert report by 4 pm on 25 September 2019. I further make an order that the experts do attend trial to give oral evidence and be cross-examined. 14.There is no dispute that it is the plaintiffs who are seeking indulgence of this Court. I therefore order that costs of and occasioned by the Summons dated 9 September 2019 be paid by the plaintiffs to the Defendants in any event. Such costs are to be taxed if not agreed with certificate for counsel. The Defendants’ own costs be taxed in accordance with the Legal Aid Regulations. C. Consequential directions for trial 15.This leaves the question of the consequential directions for trial of this action:-
16.It remains for me to thank Counsel for their assistance
Mr Ronald Pang, instructed by Katherine Y W Or & Co, for the 1st to 4th plaintiffs The 2nd defendant was not represented and did not appear Ms R Wong, instructed by Hau, Lau, Li & Yeung, assigned by the Director of Legal Aid, for the 3rd and 4th defendants |
Cases cited in this judgment
Further hearings and rulings under DCCJ 1005/2017