Kader Industrial Co Ltd v. Hop Shing Engineering & Construction Co Ltd

HCCT 73/2020

[2021] HKCFI 3606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 73 OF 2020

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Before: Hon Mimmie Chan J in Chambers (Open to Public)

Date of Hearing: 18 November 2021

Date of Decision: 30 November 2021

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D E C I S I O N

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1.This is the application made by the Plaintiff for leave to adduce expert evidence from Mr Boris Yung (“BY”) on issues of liability and quantum raised in the pleadings filed in these proceedings.

2.The Plaintiff’s claims in this action are on the basis of a Guarantee said to have been provided by the Defendant to the Plaintiff, in respect of the quality, workmanship and due performance of the waterproofing materials used and the waterproofing works on the roof completed by the Defendant at premises of the Plaintiff in Kader Building in Kowloon Bay (“Building”). The Plaintiff claims that upon completion of the Defendant’s works on 1 November 2013 (“Completion”), defects were discovered in the works carried out by the Defendant. These defects were pleaded (in paragraph 8 of the Statement of Claim) to consist of the appearance of water leakage and water stains on the ceiling of the 12^th floor of the Building, which caused plaster to fall off from the ceiling; and rust and deformation of the underlying rebar, which became exposed (“Defects”). The Plaintiff further claims that the Defects were caused by the defective roof waterproofing system on the roof level/13^th floor of the Building, which was installed by the Defendant.

3.In its Defence, the Defendant denies that the Guarantee is valid for want of consideration from the Plaintiff. In any event, the Defendant claims that under the Guarantee, the works of the Defendant said to be subject to the Guarantee were the “roof waterproofing works and lapping to the existing waterproofing membrane”, which works were to be carried out in conjunction with the Defendant’s installation of a green roof system, which was acknowledged to be carried out by a third party, Everplant Technology Ltd (“ET”).

4.The Defendant denies that there were the Defects complained of, and further denies that the Defects were caused by any defect in the roof waterproofing system provided by the Defendant on the roof level/13^th floor of the Building. It claims that such cause was ET’s works in relation to the removal and reinstallation of the green roof system, which removal/reinstallation were carried out in a destructive manner, which caused damage to the 13^th floor of the Building and/or damaged the Defendant’s works, causing the alleged Defects.

5.In particular, the Defendant claims that after its works had been completed on 1 November 2013, the entire green roof system of the Building had been removed in September 2019, and that the remainder of the roof was demolished in August 2020, when a third party contractor was engaged by the Plaintiff to carry out works, allegedly to prevent water leakage at the premises affected.

6.By its application made on 11 June 2021, the Plaintiff seeks expert evidence to be adduced by BY on whether the waterproofing system installed by the Defendant was defective, the cause and extent of the Defects, and the reasonable cost for necessary repairs to rectify the Defects. The application is opposed by the Defendant, on the basis that the proposed expert evidence would not be cogent, reasoned or relevant to the pleaded issues, to be of assistance to the Court at trial. The Defendant further objects to BY as being qualified to give the expert evidence required.

7.On the evidence relied upon by the Plaintiff, BY as the proposed expert had on the instructions of the Plaintiff inspected the 13^th floor of the Building on 6 November 2020. The Defendant’s objection is that the Defendant had not been given the opportunity to inspect the alleged Defects complained of by the Plaintiff in respect of the Defendant’s works. The Defendant also highlighted the fact that BY’s own inspection was conducted after the green roof system had been removed in September 2019 and the entire roof had been demolished in August 2020. BY’s inspection in November 2020 could not have been of the waterproofing works of the Defendant, and as such, BY cannot express any independent expert opinion on whether the works carried out by the Defendant were defective, as alleged, nor as to the cause of the water leakage complained of by the Plaintiff.

8.In the course of the hearing on 18 November 2021, Counsel for the Plaintiff was asked by the Court to identify the factual evidence on the state or condition of the Defendant’s works prior to the removal of the green roof in September 2019 and the demolition of the remainder of the roof after August 2020, and the factual evidence on the existence of the alleged Defects in the Defendant’s works before September 2019. Counsel referred to an inspection report dated 24 April 2020, prepared by Hong Kong Survey Limited (“HKSL Report”), on water seepage tests which were conducted in March and April 2020.  The Plaintiff pointed out that the HKSL Report had been disclosed in the course of discovery. Counsel also referred to photographs taken of the ceiling on the 12^th floor of the Building, taken in April and June 2018, and on a CCTV Survey Report of a survey carried out on 29 August 2018 (“2018 CCTV Report”), when a CCTV camera was lowered and moved along the drainage pipe serving the relevant parts of the Building. Counsel explained that these comprised the evidence which will be relied upon by the expert to be appointed, for the expert’s opinion on the existence and cause of the Defects.

9.I agree with and accept the submissions made on behalf of the Defendant. The HKSL Report is inadmissible evidence, on which the proposed expert cannot rely.

10.As explained in the Decision of this Court in Sun Cheong Construction Company Limited v The Incorporated Owners of King Fu, Ho Fu, Ki Fu & Ka Fu Buildings [2019] HKCFI 236 (see paragraphs 18 to 20), expert evidence includes not only evidence of opinion, but also factual evidence which goes to an expert issue. Where an expert is drawing an inference from facts, on the basis of his expertise, experience and specialist knowledge, that is part of his expert evidence. The conduct of hammer tapping and infrared tests require experience and the employment of skills and specialist knowledge. The conclusion made, that damage exists or has been noted from the tonal or other relevant changes detected in the course of tapping tests is a process of inference made by the operator or examiner, drawn from and dependent on the skill and experience of the operator. The reliability of infrared thermography tests likewise depends on the interpretation of thermal images, and whether the measurement devices were correctly applied with the relevant expertise. On such analysis, the HKSL Report, made on the basis of inspections and tests carried out in March and April 2020, including infrared scans and electrical conductivity sensing, clearly constitutes expert evidence for which leave of the Court is required. No leave has ever been sought or granted for the HKSL Report to be adduced, for BY to rely upon.

11.The 2018 CCTV Report appears to be relied upon by the Plaintiff only for the purpose of showing that there was no problem with the drains as a potential cause of water seepage or leakage.

12.The photographs relied upon by the Plaintiff only shows, to a layman, that there were water stain marks or signs of spalling on the ceiling of the 12^th Floor in April and/or June 2018. They cannot show the cause of the water seepage, or the Defects alleged.

13.As such, I accept the Defendant’s submissions, that without having inspected the condition of the roof and the state of the Defendant’s Works prior to the removal and demolishing of the green roof system and the roof before September 2019, it is dubious whether BY can form any reliable opinion on the quality of the Defendant’s Works and the materials used, whether the Defects existed, the cause of the Defects, and the rectification works required. I am not satisfied that the expert evidence proposed to be adduced by the Plaintiff would be of any assistance to the Court for the determination of the issues in dispute. Time and costs would be wasted if leave is granted for BY to adduce expert evidence, when there is a clear lack of the necessary factual evidence to form the basis of and to support his opinion.

14.Further, I am not persuaded that, as an architect, BY has the necessary expertise to give the expert opinion on the cause of the water seepage and leakage complained of, nor on the costs of the necessary rectification works for the alleged Defects.

15.The application for leave to adduce expert evidence, as framed, is accordingly dismissed. It was made without any due consideration of the evidence and was ill-prepared. An order nisi is made that the Plaintiff is to bear the Defendant’s costs of and incidental to the application, including any costs reserved.

Mr Ernest CY Ng, instructed by HY Leung & Co LLP, for the plaintiff

Mr Mohammed Talib (Solicitor Advocate), instructed by Pinsent Masons, for the defendant