Kh Foundations Ltd v. Chun Yip Construction Co Ltd

HCCT 43/2019

[2021] HKCFI 682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 43 OF 2019

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Before: Hon Mimmie Chan J in Chambers

Dates of Written Submissions: 9, 10 and 12 March 2021

Date of Decision: 16 March 2021

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D E C I S I O N

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1.Having considered the submissions filed by the parties on the Plaintiff’s summons issued on 2 February 2021 for leave to adduce expert evidence (“Summons”), the following order and directions are made:

(1)  Parties have leave to call one single joint expert (“SJE”) on quantum issues and each party do have leave to call one expert each on the programming issues identified in the Summons and allowed by the Court.

(2)  The questions to be answered by the quantum expert are as per Questions 1, 2, 6 - 8 set out in Section A of Annex 1 to Defendant’s Submissions.

(3)  The questions to be answered by the programming expert are as per Questions 10, 11 and 14 of Section B of Annex 1 to Defendant’s Submissions.

2.On the issue of quantum, the Court accepts the submissions made on behalf of the Defendant, that the question framed in paragraph 2 iv of the Summons is unduly wide, and is not justified as being necessary when the Plaintiff’s claim is for adjustments to the Works Contract, particularized in Appendix A to the Statement of Claim as the claims in respect of “variation works”, and these are to be covered by Questions 1 and 2 to be answered by the quantum expert.

3.As for the question framed in paragraph 2 v of the Summons, whether liquidated damages are to be allowed as a genuine pre-estimate of the Defendant’s loss for delay is to be decided by the Court.  The question has not been properly formulated as a question on which the expert is to give opinion (usually expressed as “what are the reasonable costs/ expenses/ charges of x work/ rent of equipment?”).

4.With regard to the questions proposed for the expert and set out in paragraph 3 of the Summons, paragraph 3 states that the questions are to be answered by the “programming” experts.  The Court considers the application as it is made in the Summons and as it is framed in paragraph 3, as opposed to the correspondence between the parties, or the Plaintiff’s information sheet filed with the Case Management Summons.  On the Summons, the Court cannot see how the questions posed in paragraphs 3 i, vi and vii can be questions which fall within the expertise of a programming expert.

5.If the Plaintiff claims that the expert evidence of an engineer is required, then it must be made clear in its application and to be justified by the technical questions required to be put to such expert.  It is not for the Court, or the other party, to speculate on which question is to be answered by a programming expert, and which question should be answered by an engineering expert.  As paragraph 3 of the Summons is drafted, all the questions proposed are to be answered by a programming expert.

6.Further and in any event, I accept the submissions made on behalf of the Defendant, that questions as to whether works fall within the scope of the Works Contract depend on the Court’s construction of the provisions of the relevant contract, and are not for any expert.  Questions as to how alleged changes in instructions for work have an impact on the Works Contract and the progress of works under the Works Contract depend on questions of fact such as what the alleged variations or changes in work were, the time taken for the completion of such works etc, which matters are properly to be addressed by the factual witnesses, and not the experts. 

7.The question proposed in paragraphs 3 vi of the Summons, as to the “definition of ‘sub soil’”, is dealt with above, as not being in the expertise of a programming expert.  The level of soil at which reinforced concrete bunker and tunnels were discovered is a factual matter, and should properly be dealt with by the factual witnesses, and not the expert.  The character of the waterproof concreting works (the question proposed in paragraph 3 vii) is not a matter within the expertise of a programming expert.

8.The impact on the scope of the contract works of the instructions given, and of the discovery and removal of the underground reinforced concrete bunker and tunnels, depend on the Court’s determination on the construction of the Works Contract, as well as on evidence of the work covered by the instructions. The latter involves evidence of fact, and possibly expert evidence on the nature of the work required.  However, such expert evidence should be within the realm of a witness who has expertise on reinforced concrete, or engineering, rather than programming.  I am therefore not satisfied that the questions set out in paragraph 3 ii, iii, iv, v, and viii are questions properly to be put to and answered by a programming expert.

9.As for the questions relating to the sequence of work, and the impact on progress and delay, the questions drafted by the Defendant and set out in Part B of Annex I to the Defendant’s Submissions more appropriately reflect the issues to be determined.  As Counsel for the Defendant pointed out, questions of “entitlement” to extensions of time is a matter to be determined by the Court, and the questions on delay should be properly formulated for the expert on programming.

10.The application is refused so far as it relates to paragraphs 2 iv and v and paragraphs 3 i to ix of the Summons.  Paragraph 2 iii has not been pursued.

11.The costs of the application for leave to adduce expert evidence are to be in the cause of the action.

12.If the parties are able to agree on further necessary and consequential directions as to timetable and other matters, a consent application can be made to the Court.

Mr Phillip Rompotis, instructed by MinterEllison LLP, for the plaintiff

Mr Jonathan Wong and Ms Astina Au, instructed by Woo, Kwan, Lee & Lo, for the defendant