Kong Yiu Chung v. Hugetop Holdings Ltd

DCCJ 4067 & 4068/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4067 OF 2004

____________

BETWEEN

____________

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4068 OF 2004

____________

BETWEEN

____________

(Consolidated by the Order of Master J. Ko dated 20^th September 2004)

Coram: Deputy District Judge W.C. Li in Chambers

Date of Hearing: 3^rd November 2006

Date of Handing Down Decision: 10^th November 2006

______________________

D E C I S I O N

______________________

1.The defendant in the above consolidated hearing of 2 actions applied by way of summons for leave to serve on the 3 plaintiffs interrogatories relating to matters stated in their witness statements and supplemental witness statements. Leave was obtained from Master T. Chan on 25 July 2006 for the defendant to file its proposed interrogatories on the plaintiffs and the summons was set down for argument before me today.

2.10 interrogatories were put to Kong Yiu Chung (“Kong”), the plaintiff in the 1^st action (DCCJ 4067 of 2004). 20 interrogatories were put to Tang Chi Wing Rigo (“Tang”), the 1^st plaintiff in the 2^nd action (DCCJ 4068 of 2004), and 19 interrogatories were put to Cheung Lai Yee  (“Cheung”), the 2^nd plaintiff in the 2^nd action. The plaintiff in the 1^st action opposed all 10 interrogatories. The 1^st plaintiff in the 2^nd action agreed to answer interrogatories (2),  (19) and (20) while the 2^nd plaintiff in the 2^nd action agreed to answer interrogatories (2), (18) and (19), and save for these interrogatories, the 2plaintiffs in the 2^nd action opposed all the other interrogatories.

3.It is trite law that interrogatories must not only be relevant but necessary for the fair disposal of the cause or matter or necessary for saving costs. In Lee Nui Foon  v.  Ocean Park Corp. (No. 2) (1995) 2 HKC 395, it was held that it must not be fishing exercises, oppressive, prolix or imprecise; must not be questions which went to the evidence the opposing party intended to adduce; must not be questions which required an answer which was a matter of opinion or for an expert; must not be questions which went to the facts which would assist in establishing the opposing party as opposed to the case of the party seeking to interrogate; and must not effectively ask for documents of discovery. These principles were reiterated by Recorder McCoy SC in Salt & Light development Inc. & Ors.  v.  SJTU Sunway Software Industry Ltd. (2006) 2 HKLRD 279 in the following summary:  “(1) the party seeking to interrogate must show that the interrogatory is necessary “if costs are to be saved”.  Put another way. “If any saving of costs is to be achieved” (it) must be subject to the test of necessity. (2) When answer already exists in the pleadings, witness statements etc, the party questioning must show if the matter is left until cross examination at the trial, that party will, or probably will be irremediably prejudiced in his conduct of trial or the trial may be unduly interrupted or otherwise disorganized by the late emergency of the information”. In  Esquire (Electronics) Ltd   v.  HSBC (unreported) HCA 11077 of 1994, the Hon Mr. Justice Waung again reiterated that interrogatories must be necessary for fairly disposing of the cause/matter and necessary for saving costs, and Waung J. disallowed an application when the witness would be giving extensive evidence at the trial and the interrogatories served no useful purpose and there were no saving of costs.

4.The facts of the present case was that the defendant was the developer of a project known as Royal Jubilee located at Fanling, Sheung Shui Town Lot No. 183 and at about end of 1999, the defendant began to sell the flat units in this project. The 3 plaintiffs were purchasers of 2 of these units in the defendant’s project. The main issue in these 2 cases concerned the storey height of the flats sold to the plaintiffs, whether the term “storey height or height of storey (楼  高度)” used by the defendant in its advertisement, sale brochures, and/or words of its agents had caused misrepresentation of the actual height of the flats sold to the 3 plaintiffs. The defendant described the storey height of the flats to be 10 feet 4 inches. The defendant says this height is the height from the floor of a flat to the floor of the flat above it, i.e. 10 feet 4 inches would include the thickness of the ceiling above it. The plaintiffs said the defendant had misled them with their advertisement, sale brochures and/or words of their agents that 10 feet 4 inches is the height from the floor to the ceiling of the flat itself, i.e. excluding the thickness of the ceiling. The defendant was of the view that the plaintiffs were alleging negligent or fraudulent misrepresentation, and the defendant had to defend vigorously its reputation and goodwill. The defendant denied having made any negligent or fraudulent representation to the plaintiffs, and averred that it had acted honestly, responsibly, reasonably and in complete good faith. The defendant specifically denied that the plaintiffs had relied or reasonably relied on any representation of any kind or had in any way been misled. The defendant also averred that it had acted in full compliance with reasonable and responsible trade practice, and specifically denied it had made any concealment of any kind.

5.I will first deal with the 10 interrogatories put to Kong in the 1^st action. The 1^st to 4^th interrogatories related to the reasons behind Kong’s decision to buy the flat. Kong said in his witness statement that he had visited the show flat for a few times before he decided to buy the flat. The 1^st interrogatory asked Kong if he had found the actual dimensions and/or the physical settings and/or spacing of the show flat acceptable before he decided to purchase the flat. The 2^nd interrogatory asked if Kong’s answer to the 1^st interrogatory was in the negative, why did he nonetheless decide to purchase the flat. The 3^rd interrogatory referred to paragraph 6 of Kong’s supplemental witness statement in which he stated that in his recollection, the show flat was very lofty/tall, Kong was asked if he relied on his perception of the actual dimensions and/or physical settings and/or spacing of the show flat in deciding whether or not to purchase the flat. And the 4^th interrogatory asked Kong at the time when he viewed the show flat, did he form the belief that the floor to ceiling height of the show flat was about 10 feet 4 inches. The defendant says the answers to these 4 interrogatories will serve clear, litigious purpose by saving costs and promote fair and efficient conduct of the action as the defendant would certainly need to know well in advance whether Kong placed significant reliance on the spacing of the show flat or not. This would help the defendant to decide whether they need to adduce further evidence in this regard (e.g. from other purchasers who had visited the show flat). The plaintiff opposed these 4 interrogatories on the grounds that Kong had in his supplemental witness statement given his estimation on the approximate height of the show flat, and as the answers to the questions were already provided in Kong’s supplemental witness statement, these interrogatories should not be allowed. The second ground of opposition was that the defendant was fishing as the dimension, physical settings and spacing of the show flat were within defendant’s own knowledge (defendant’s witness, Ho Kwai Kuen’s witness statement had provided the measurements of the show flat). The third ground of opposition was that these questions asking Kong of his belief of the height of the show flat and whether the height was acceptable to him are questions of credit that should not be put in an interrogatory. The defendant’s questions were on the issue of reliance. The plaintiff said the answers were already given in the Kong’s supplemental witness statements. On careful reading of Kong’s witness statements, I take the view that the plaintiff’s argument had missed the point on reliance. I do not think Kong had said anything in all his statements on reliance. Having read defendant witness, Ho Kwai Kuen’s statement in which he stated that the height of the show flat was only about 9 feet high, I can understand why the defendant wants put these interrogatories on the issue of reliance before the trial. According to Hong Kong civil Procedure 2006 para. 26/4/7, “Interrogatories are not limited to giving the plaintiff a knowledge of that which he does not already know, but include the getting of an admission of anything which he has to prove on any issue which is raised between him and the defendant”. The defendant had specifically denied that the plaintiffs relied or reasonably relied on any representation of any kind, or had in any way been misled. I do not agree with the plaintiff that the defendant was fishing here. The defendant was gathering facts to establish a line of attack already pleaded and was not seeking to ascertain whether a fact existed where the interrogating party had no reasonable grounds for belief in the existence of that fact. The third ground of opposition was that these interrogatories were solely questions of credit. Credibility of the plaintiff might be relevant here but these questions do not deal solely with credibility. “….The validity of the objection must be judged in the context of the particular interrogatory and all the surrounding circumstances” (Esquire (Electronics Limited  v.  The Hong Kong & Shanghai Banking Corporation Limited & anor. HCA 11077/1994  Waung J. (unreported 2^nd September 2003). In Kong’s supplemental witness statement, he said  “I remember that the height of the show flat was very lofty/tall. Although I do not know the exact height of the show flat, I think it was probably over 10 feet measured from bottom to ceiling (not including the thickness of the ceiling) because it was a typically old fashion ground floor shop with very high ceiling…..”   My initial understanding was that these were questions of credit that would go to discredit Kong. However, bearing in mind the central issue is one of reliance, and Kong was speaking from his memory of his several visits to the show flat, these questions would go the key issue whether Kong had placed reliance on the height of the flat before he made his decision to purchase the flat. For this reason, I think I should exercise my discretion to admit these interrogatories.

6.The 5^th interrogatory was still related to the issue of reliance, save that Kong was asked what information, if any contained in the sales brochure, did he rely on in deciding whether or not to purchase the flat. The defendant said they needed to know if the plaintiff placed significant reliance on the sales brochure, if so, which part of it. The defence case was that the answer would help them to decide whether they needed to adduce further evidence in this regard and the whole exercise would save cost and promote a fair and efficient conduct of the action. The first opposition argument was that the answer to this question was already given in Kong’s witness statement where he said  (inter alia) “In the sales brochure, it again highlighted that the height of storey of each unit in Royal Jubilee was at least 10 feet 4 inches, with some special units with even larger height of store….” Again, I take the view that the crux of the matter is on reliance and not what Kong had read or noticed from the sales brochure. The key question was whether Kong had decided to purchase the flat because it was 10 feet 4 inches high from floor to ceiling or he had purchased the flat for its other features or for other reasons. The second ground of opposition was that this interrogatory was a question of credit. I do not see how this second ground would go to credit of Kong when Kong did not in fact say anything about reliance in his statements. One issue I pondered, here and also with the first four interrogatories, was that interrogatories must be relevant.  I pondered what was the relevance of Kong’s reliance on the sales brochure and on what he had seen in the show flat to his final decision to purchase the flat. The decision to buy a flat for most of us is often the result of a combination of factors or reasons. Rarely, it is one single factor that causes us to decide a purchase. The defendant’s purpose of these interrogatories is to find out if the plaintiff had relied on the representation about the height of the storey and whether this was the or one of the main reasons why the plaintiff had decided to purchase the flat. It is an important function of interrogatories to gain information not within the knowledge of the requesting party. I bear in mind, Hong Kong Civil Procedure 2006 para.26/4/7, that the right to interrogate is not confined to the facts directly in issue. It is enough that they should have some bearing on the question at issue and that they might form a step in establishing liability. “In short, interrogatories which go to support the applicant’s case or to impeach or destroy the opponent’s case is admissible…”. Upon careful thought, the issue of reliance must surely be relevant, and the interrogatories would go to support the defendant’s case or destroy the plaintiff’s case. I would also admit interrogatory (5).

7.The 6^th interrogatory referred to paragraph 3 of Kong’s supplemental witness statement which  stated “…I am certain that the estate agents I met at the show flat, namely Joanna Tam of Ricacorp Properties Limited and her superior, whose name I cannot now recall,  did not tell me that the “height of storey” of the Royal Jubiliee included the thickness of the ceiling. Ms. Joanna Tam and her superior were the only estate agents I met in relation to the purchase of the flat”. The interrogatory asked “in relation to paragraph 3 of your supplemental witness statement, did you ask Joanna Tam of Ricacorp Properties Limited and/or her superior any question relating to the “height of storey” of the flat or the show flat? And if so, state what was asked and what the reply was”. The opposition to this question was that (1) Kong had already provided evidence on how he met Joanna Tam and her superior at the show flat, and how the storey of height was explained to him; (2) Kong will be giving evidence and these questions could be put in cross examination without causing prejudice to the party requesting for interrogatories; and (3) the question goes to evidence and credit of the plaintiff. The defendant’s case was that it served a clear litigious purpose to ascertain before trial if the evidence of Joanna Tam was going to be crucial. If it were not, it would save time and costs to find and call her. I take the view that this is an admissible question as well. It might well be returning to the issue of reliance, that the defendant wanted to find out whether the plaintiff had the storey height of the flat in mind when he juggled with the thought of putting his deposit and contract in to buy the flat. I do not think this is a dry run in anticipated cross-examination and this is not a question that goes to credit of the plaintiff. It does help to save costs and is conducive to the fair disposal of the matter in the trial. I conclude that this interrogatory is admissible too.

8.Interrogatories (7) to (9) also appear to serve a clear litigious purpose and the answers would enable the defendant to decide on the precise issues for expert evidence or opinion, and this would be cost saving and help to dispose the matter at trial efficiently. These are the questions on the cockloft which the plaintiff alleged he had in mind to build in the flat for storage purpose. His statements were vague as whether this was an idea he formed before or after the purchase of the flat. In paragraph 3 of Kong’s witness statement, he stated  “I was interested because of the cramped living condition in my mother’s place. I noticed from the Sing Tao Daily News that the height of storey of royal Jubilee was stated expressly to be 10 feet 4 inches. With this height of storey, the flat would be more comfortable and cooler in the summer.” Nothing about the building of a cockloft was mentioned at all until paragraph 15 of Kong’s witness statement where it reads Because of the reduced height of storey and the drop slab, my plan of erecting a cockloft for storage is completely shattered. The flat has become very disorderly, littered with articles. Further due to the reduced height of storey, the ventilation of the flat is not as good as I expected”. The objection to these questions were that (1) these matters could be asked during cross-examination of Kong who would be giving evidence in the trial without causing prejudice to the party requesting for the interrogatories; and  (2) these questions go to the credit of the plaintiff. The interrogatories asked when, if ever, Kong came up with the plan to erect a cockloft, in which part/s of the flat he planned to erect the cockloft/s and what were the intended dimensions of such cockloft/s. I could see that these questions do help to dispose of the matter for trial and would save considerable cost if these issues were defined before trial begins. Depending on Kong’s answers, the issue of a plan to build a cockloft might or might not be relevant. The storey height of the flat according to Kong was for comfort and for being cooler in summer, and the lower storey height was that the ventilation was not as good as expected. Expert opinion at the place/s and on the dimensions of the cockloft/s to be built might need to be called by the defendant, if this cockloft plan is a relevant issue. As I see it, the issue of credit does not occur yet until the plaintiff gives his answers to these questions. These questions clarify the issues and are necessary for disposing fairly of the cause and would save costs. I would find interrogatories (7) to (9) admissible

9.The last interrogatory (10) asked Kong if he was working, or ever worked in the construction and/or real estate and/or property valuation industry. The defendant took the view that Kong would be giving evidence on “trade practice” and they needed to know in advance whether he was in fact qualified and/or in a position to do so. I failed to understand how the defendant formed the view that Kong would be giving evidence on trade practice when Kong had not purported to testify in such a capacity and both sides are calling expert evidence in this area. All Kong said in his witness statement was “Nobody had ever mentioned to me it is the common trade practice in Hong Kong that “storey height” included the thickness of the ceiling when measuring the floor to floor height of an apartment”.  The plaintiff opposed this question saying that evidence on valuation is a matter of expert opinion and whether Kong had worked in the said industry was not relevant. Interrogatories will not generally be allowed where the object is to obtain an admission of fact which can be proved by a witness who will in any case be called at the trial, and therefore the interrogatory will not save but add to costs. Furthermore, interrogatories of matters which could be elicited during cross-examination at trial without causing prejudice to the party requesting for interrogatories are not allowed (Hong Kong Civil Procedure 2006 para. 26/4/12). I do not think there is any ground for the defendant to believe that Kong is qualified to give evidence on “trade practice”. Neither would Kong’s answer if cross-examined with this question in the trial would likely to cause prejudice to the defendant when both sides have experts to give evidence on this issue. On the other hand, I would disagree with the plaintiff when they said this was not relevant. Be that as it may, I take the view that this last interrogatory is not admissible and rule that it should be withdrawn.

10.I therefore conclude that interrogatories (1) to (9) are necessary for fairly disposing of the 1^st action and to save costs, and with these answers given by the plaintiff, the trial will proceed with greater efficiency. I will therefore direct the plaintiff to answer interrogatories (1) to (9) within 28 days of the date of handing down. I also make a costs order nisi, to be made absolute in 14 days of the date of handing down of this decision, that the defendant be awarded 90% of the costs of and incidental to this interrogatories application as against the plaintiff in the 1^st action, to be taxed if not agreed, with certificate for counsel.

11.I will now deal with the 20 interrogatories put to Tang. The first asked Tang “…state how and in what ways the sales agents impressed upon you and your wife on the “height of storey” of flats in Royal Jubilee”. The defendant said they needed to know in advance whether the evidence of these unnamed and unidentified “sale agents” were going to be crucial. If they were not, that would be the end of the matter. If they were, then they would have to spend extra time and costs in locating them. Tang in paragraph 6 of his witness statement said “Every time I visited the show flat of Royal Jubilee, either alone or with my wife, the sales agent there would impress upon me and my wife on the height of storey of the flats there. The sales agents were from different estate agencies. I was particularly informed by these sales agents that the height of storey was 10 feet 4 inches…..” And in paragraph 5of Tang’s supplemental witness statement, he stated “Before I met Mr. Edward Cheung, my wife and I had visited the show flat a number of times. The sales agents there would impress upon me and my wife on the height of the storey of the flats. The sales agents were from different estate agents. I was particularly informed by these sales agents (whose names I cannot recall now) that the height of storey was 10 feet 4 inches calculating from the floor to the ceiling. None of them had ever mentioned to me or my wife that the height of storey of the Royal Jubilee included the thickness of the ceiling.” The 1^st plaintiff’s opposition were that (1) the question asked could be put in cross-examination of Tang in the trial without causing prejudice to the party requesting for interrogatories; (2) the question goes to the credit of the 1^st plaintiff; (3) the question goes to the evidence the opposing party intends to adduce and defendant is not entitled to ask the plaintiffs upon what line of facts they are going to reply as relevant to the existence or non existence of the facts directly in issue; and (4) The question relates to the mental process and opinion on the statements made by the sales agent which should not be allowed. I do not think Grounds (2) to (4) are valid grounds of objection. I fail to understand the defendant here how this interrogatory, if answered by the 1^st plaintiff, would serve a clear litigious purpose by saving costs and promote the fair and efficient conduct of the action. Tang had already stated in his supplemental witness statement that he could no longer remember the names of these sales agents who gave him the impression that the flats in Royal Jubilee were 10 feet 4 inches high from floor to ceiling. Further these agents had not disclosed whether or not the storey height included the thickness of the ceiling. It is not hard to imagine when a prospective buyer walks into the crowds of sales agents when a new residential project was offered for sale that things were said by these agents to attract buyers, but as to who they were and who had said what, it would almost be impossible to tell. My understanding is that Tang was making a statement of what he had understood from what he heard from the sales agents there. It baffles me why the defendant said if the answer were crucial, they would attempt to find and call these unnamed and unidentified sales agents whom Tang did not know. I think the answers were already there in the general statement made by Tang and this question could be put, if the defendant still insist, in cross-examination of Tang at the trial without causing prejudice to the party requesting for interrogatories. I would rule this interrogatory not admissible and should be withdrawn.

12.There is no quarrel between the 1^st plaintiff and the defendant with the 2^nd interrogatory.

13.The defendant says interrogatories (3) and (4), if answered will certainly serve a clear litigious purpose by saving costs and promoting the fair and efficient conduct of the trial as the defendant certainly needed to know in advance whether Tang placed significant reliance on the spacing of the show flat or not, and this helps the defendant to decide whether to adduce further evidence in this aspect. The 1^st plaintiff opposed these 2 interrogatories on (1) Tang had in par. 9 of his supplemental witness statement given evidence on the height of the show flat; (2) the dimension, physical settings and spacing of the show flat are within the defendant’s knowledge, therefore these are fishing interrogatories; (3) these questions go to the credit of the 1^st plaintiff; and (4) both Tang and Edward Cheung will be giving evidence in the trial. Again, the crux of the issue is on reliance. The peculiarity of the dimensions of the show flat necessitates the defendant asking these questions in interrogatories on whether Tang had placed reliance on the show flat. I do not agree that Tang had given evidence in his supplemental witness statement on whether he had placed reliance on the dimensions of the show flat. The questions put by the defendant on reliance are certainly not fishing and although it might ultimately touch upon credibility, credit is not the sole purpose of this exercise. These are relevant questions and interrogatories that go to support the applicant’s case or impeach or destroy the opponent’s case are admissible (Hong Kong Civil Procedure 2006 para.26/4/7). The questions are necessary for fair disposing of the cause or matter and the answers given will save costs. I will find these interrogatories admissible.

14.The 5^th interrogatory also goes to the reliance issue save that the question revolves around the sale brochure. I had ruled that these interrogatories are admissible  (par (6) herein). The question is necessary for the fair disposal of the cause and the defendant is entitled to ask this question in the interrogatories. The 1^st plaintiff’s witness statement did not answer the issue of reliance. I think this interrogatory is admissible.

15.As for interrogatories (6) to (17), the defendant relies on the following reasons for asking these questions, viz. these interrogatories, if answered, will also serve clear litigious purposes by saving costs or promoting the fair and efficient conduct of the action because, depending on the answers to these interrogatories, they may have to conduct further investigations on these matters before the commencement of the trial. The answers would also show reasonableness, or the lack of it. They would also affect the quantum of any damages recoverable by Tang. Interrogatory (6) asked “Referring to paragraph 7 of your witness statement, please state in detail how Mr. Edward Cheung of Century 21 explained the meaning of “height of storey of 10 feet 4 inches” to you”. Interrogatory (7) asked  “Referring to paragraph 8 of your witness statement, prior to Mr. Edward Cheung gave you the alleged assurance, did you inform Mr. Edward Cheung of the floor on which you were intending to purchase a flat in Royal Jubilee?” Interrogatory (8) asked “Also referring to paragraph 8 of your witness statement, on what basis did you accept Mr. Edward Cheung’s representation as to the height of the new building to be erected at the said construction site?” The 1^st plaintiff opposed these 3 interrogatories for reason that (1) the evidence in his supplemental witness statement had already provided the answers to these questions; (2) by asking on what basis did Tang accept Edward Cheung’s representation, it goes to the evidence and to credit, therefore these should not be put in an interrogatory; and (3) both Tang and Cheung will be giving evidence in the trial and the proposed interrogatories will not save costs. Tang in his supplemental witness statement had stated “he (Edward Cheung) did mention to me that the height of storey of Royal Jubilee was 10 feet 4 inches. However I am certain that he did not mention to me that the height of storey of the Royal Jubilee included the thickness of the ceiling”. “Since one of the special features of Royal Jubilee was its height of storey (as represented by the various advertising materials and the estate agents), I therefore asked Mr. Edward Cheung of Century 21 whether the height of the storey of the show flat was equivalent to the height of storey of the actual flats in Royal Jubilee…in reply, Mr. Edward Cheung told me that the height of storey of the show flat and that of the actual flats in Royal Jubilee were different. According to Mr. Edward Cheung, the height of storey of the show flat was in fact much taller than the actual flats. However he assured me that the height of storey of the actual flats in Royal Jubilee would be 10 feet 4 inches measuring from floor to ceiling”. The answer to Interrogatory (7) appeared sufficiently answered in Tang’s supplemental witness statement. According to the 1^st plaintiff, Edward Cheung only mentioned the height of storey to be 10 feet 4 inches without specifying if it includes or excludes the ceiling, and the 1^st plaintiff had referred to other representations such as the sales and advertising materials, and words of the estate agents. I fail to see why it is necessary to ask of the details here and not in cross-examination, and how this question would save the defendant costs. Likewise in Interrogatory (8), I fail to see how this interrogatory is necessary for the fair disposal of the matter and could save the defendant costs. Again for Interrogatory (8), this type of questions could be asked in cross-examination of both Tang and Cheung who will be giving evidence in the trial. I do not think these are admissible questions for interrogatories.

16.Interrogatory (9) asked “did you take any step to enquire from the relevant authority as to the height of the new building to be erected at the said construction site before deciding on which floor you would choose a flat from in Royal Jubilee?” The 1^st plaintiff opposed this question for reason that it goes to evidence and it goes to credit of the witness. I would agree with the opposition that this type of question is not necessary at this stage and I cannot see how it would save cost for the defendant or that if left to be put in cross-examination would cause prejudice to the defendant. I do think it goes to the credit of the witness. I do not think this question is admissible.

17.Interrogatories (10) to (14) are questions relating to Mr. Kithen Lau, a conveyancing clerk of a solicitors’ firm. Interrogatory (10) asked “Referring to paragraph 14 of your witness statement, had Mr. Kithen Lau, the conveyancing clerk employed by the solicitors’ firm, at any point in time represented to you in terms that the floor to ceiling height of the flat would definitely be about or exactly 10 feet 4 inches.” Paragraph 14 of Tang’s witness statement stated “…we were met there by a Mr. Kithen Lau, a conveyancing clerk. He asked us to check the data on the sale and purchase agreement whereupon I discovered that our purchased unit should be Flat G, 8^th Floor, Tower 2, instead of Flat H. After correcting the mistake, Mr. Lau briefly explained the contents of the document to us such as the expected completion, the building materials etc. When my wife asked him where in the agreement it was stated that the height of storey was 10 feet 4 inches, Mr. Lau indicated that the sale and purchase agreement would be superseded by the assignment wherein the height of storey will be stated. Mr. Lau did not deny that the height of storey of the flat was 10 feet 4 inches. Relying on this confirmation by Mr. Lau, we signed the formal sale and purchase agreement on the saem date….”Interrogatory (11) asked If the answer to (10) above is in the affirmative, please state in detail what exactly was said by Mr. Kithen Lau.” Interrogatory (12) asked Still referring to para. 14 of your witness statement, when or prior to Mr. Kithen Lau gave you the alleged indication or ’confirmation’, on what basis, if any, did you consider him to be a person who had actual knowledge of the floor –to-ceiling height of the flat?”. Interrogatory (13) asked “Have you ever explicitly asked Mr. Kithen Lau whether he personally knew as a fact what the floor-to-ceiling height of the flat was?” And Interrogatory (14) asked “If the answer to (13) above is in the affirmative, please state in detail how you asked the question and what Mr. Kithen Lau’s answer was”. The 1^st plaintiff opposed these interrogatories that (1) Tang’s witness statement already contained the evidence relating to Kithen Lau and the defendant had also adduced Kithen Lau’s statement or evidence in its defence; (2) asking Tang about whether he thought Lau was the right person to ask about the floor-to-ceiling height is a matter of evidence and of credit; and (3) as both Tang and Lau will be called to give evidence in the trial, the proposed interrogatories do not save cost at all. Reading Tang’s statement, I see that he was only saying Kithen Lau had not said anything in reply in the nature of clarification that the storey height included the thickness of the ceiling to what Mrs. Tang asked or said about the storey height of the flat being 10 feet 4 inches, and the 1^st plaintiff took this to amount to a confirmation. In any event, Mrs. Tang did not ask Kithen Lau a direct question whether the storey height of 10 feet 4 inches included the thickness of the ceiling. Kithen Lau in fact said the subsequent assignment of the property would have the particulars of the storey height, presumably in the scale floor plan attached to the First Assignment. Kithen Lau would probably be right in his reply that the subsequent First assignment would have all the measurements in the scale plan. I agree with the 1^st plaintiff that the answers sought were already contained in Tang’s evidence in his statement and further questions of this kind could be put in cross-examination without causing any prejudice or inconvenience to the defendant. There is no necessity for the fair disposal of the matter to ask these interrogatories and I cannot see how cost could be saved. I would not find these interrogatories admissible.

18.Interrogatories (15) to (17) are interrogatories on the cockloft intended to be built, similar to those in Kong’s interrogatories. The arguments are the same. Tang’s statement was of course different from Kong’s but the contents were more or less the same that he had the intention to build a small cockloft for storage and the reduced height of the flat made it impossible to build a cockloft.   I take the same view that these interrogatories would serve a clear litigious purpose and the answers would enable the defendant to decide on the precise issues for expert evidence or opinion, and this would be cost saving and help to dispose the matter at trial efficiently. I therefore find these interrogatories admissible.

19.Similarly for Interrogatory (18), which is similar to Interrogatory (10) for Kong, I do not think this is admissible. It is not necessary and I cannot see how costs could be saved, and it would not cause prejudice to the defendant if not put now and only put in cross-examination.

20.Interrogatories (19) and (20) are unopposed.

21.The 19 interrogatories on the 2^nd plaintiff in the second action were largely similar to the 20 interrogatories served on the 1^st plaintiff. The argument on both sides were basically the same. Interrogatory (1) for the 2nd plaintiff is the same as Interrogatory (1) for the 1st plaintiff. For the same reason, I would find this interrogatory not admissible.

22.Interrogatory (2) is not opposed.

23.Interrogatories  (3), (4) and (5) are the same for both plaintiffs, I would admit these interrogatories for the same reasons.

24.Again, interrogatories (6) to (13) are not admissible for the same reasons I had given in the 1^st plaintiff’s case.

25.Interrogatories (14) to (16) are questions on the cockloft. For the same reasons, I would admit these interrogatories.

26.Interrogatory (17) would not be admitted for the same reason.

27.Interrogatories ((18) and (19) were unopposed.

28.To summarise, for the 1st plaintiff, the following interrogatories are admissible, viz. (3), (4), (5), (15), (16) and (17), and the following interrogatories are not admissible, viz. (1), (6) to (14),  and (18). Interrogatories (2), (19) and (20) were not opposed by the plaintiff.

29.To summarise for the 2^nd plaintiff, the following interrogatories are admissible, viz., (3) to (5), and (14) to (16), and the followings are not admissible, viz., (1), (6) to (13), and (17). Interrogatories (2), (18) and (19) were unopposed.

30.These interrogatories that I found admissible are necessary for fairly disposing of the 2^nd action and to save costs, and with these answers given by the two plaintiffs, the trial will proceed with greater efficiency. I will therefore direct the two plaintiffs to answer the said interrogatories within 28 days of the date of handing down. I also make a costs order nisi, to be made absolute in 14 days of the date of handing down of this decision, that the defendant be awarded 35% of the costs of these interrogatories applications as against the 2 plaintiffs in the 2^nd action, to be taxed if not agreed, with certificate for counsel.

Representation:

The Plaintiffs: represented by Miss Colana Yeung instructed by Messrs. T. S. Tong, Solicitors

The Defendant: represented by Mr. Kenneth Lam instructed by Messrs. Chan, Lau & Wai, Solicitors