Wong Kwan Yee v. The Incorporated Owners of Diamond Mansion (Nos. 466-468, Lockhart Road) and Another

HCA 2576/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 2576 OF 2007

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BETWEEN

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Coram: Madam Registrar Au-Yeung in Chambers (Open to public)

Date of Hearing: 2 January 2009

Date of Decision: 2 January 2009

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D E C I S I O N

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1.This is the fourth occasion the matter of expert directions came before the Court, the first one arising under the summons for directions.  Initially, the summons for directions stated, in paragraph 2, that: “Leave be given to each party to adduce one expert report.  Their respective expert reports shall be exchanged and filed within 28 days from the date of the order to be made herein.”  There was then no indication as to what were the issues on which expert evidence would be required and the type of expert to give evidence.  I therefore directed that this issue about experts be adjourned for consideration.  I also invited the parties to draw up a list of contested issues to assist the Court in deciding whether or not to give expert directions.

2.On this fourth occasion, the parties eventually came up with a revised, combined list of issues stating their respective views on expert evidence.  I call this “the List”.  Even the List is not final, because in the course of today’s arguments, certain issues have been clarified and parties’ positions stated.  I will go over the List item by item.

Item 1

3.Paragraph 30 of the Re-Re-Re-Re-Amended Statement of Claim, asserted that the Opening did consist of structural alteration and was a matter requiring expert opinion.  I have asked Mr Chin for the Plaintiff as to how resolution of this issue would affect any party’s case.  Unfortunately, there is no satisfactory answer.  In the premises, I am not prepared to give expert directions on this aspect.

Items 2, 3 and 4

4.Refer to paragraphs 36 to 38 of the Re-Re-Re-Re-Amended Statement of Claim.  In substance, the issues were whether or not there had been breaches of section 18(2)(a) of the Building Management Ordinance and section 14 of the Buildings Ordinance, together with the relevant Code or Regulations.

5.It was asserted by the Plaintiff that the Opening constituted a fire exit and involved structural works which required approval before alterations could be done by the Defendants.  The Plaintiff also questioned whether or not the Defendants’ works constituted a fire and safety hazard.

6.Mr Leung for the Defendants has very ably drawn my attention to the reply.  In Appendix A to the reply, it was clearly shown that, since 2004, the Plaintiff had not been using the Opening as a fire exit.  The Defendants queried how the Plaintiff could now turn around and say that it ought to be a fire Opening and the Defendants’ works of sealing it up constituted a fire and safety hazard.

7.I can appreciate the point taken by the Defendants.  At this stage of considering expert directions, I would certainly leave it to the Plaintiff to decide how they should go about pursuing their pleaded case.  Notwithstanding these apparent contradictions in her case at this stage, as to whether or not the Opening constituted a fire exit, I am prepared to give expert directions, but I make it clear that it is without prejudice to the Defendants’ argument that the Plaintiff’s case is doomed to failure on this aspect, and that it is not necessary to seek expert directions one way or another.

Item 5

8.The Defendants concede that if approval was required for the Defendants’ works and had not been obtained, the architect would have been negligent.  I notice that there are a number of issues set out in paragraph 46 of the Plaintiff’s Re-Re-Re-Re-Amended Statement of Claim.  In the interests of justice, I permit the Plaintiff to call for expert evidence on whether it was negligent for the 2nd Defendant not to advise the 1st Defendant to seek the necessary approval from the Building Authority.  Again, it is without prejudice to the Defendants’ argument that these expert directions are simply not necessary.

Item 6

9.In the course of argument, the terms of expert directions for this item have been varied.  A better way to put these expert directions would be: (a) whether the Opening existed before and since the first assignment of the property on 16 March 1965; (b) whether, if it had existed, it was in accordance with the structural plans filed with and approved by the relevant Government authorities.

Items 7 and 8

10.These concern and are related to the issue about breaches of the Building Management Ordinance and Building Ordinance, and also the negligent advice of D2.  I do not think separate directions need to be given in respect of items 7 and 8.

11.A new item has emerged in the course of the arguments which the Plaintiff’s solicitors initially indicated, in their letter dated 22 December 2008, they would consider.  Paragraph 6 of that letter stated that:

“We thus consider whether expert evidence should be adduced in support of an allegation of damages arising from loss of the option in renting out or selling the property in two separate portions (item 6 of the list of issues) should be decided after discovery of the tenancy agreement.”

12.That, in my view, might be an appropriate stance to take with a view to saving costs.  However, at this stage, in the event, the Plaintiff, having considered the tenancy agreement, wanted to pursue the claim for damages.  I am of the view that it is appropriate now to cater for that scenario and that expert directions ought to be sought from a real estate surveyor.

13.I sum up my directions as follows:  Leave to the parties to adduce expert evidence by way of reports limited to -

(1)  one report from an authorised person giving opinion on the following issues:

(a)  whether or not the Opening existed before and since the first assignment of the property on 16 March 1965;

(b)  if the Opening did exist, whether or not it was in accordance with the structural plans filed with and approved by the relevant Government authorities;

(c)  whether the Opening constituted a fire exit;

(d)  whether the works done by the 1st Defendant required prior approval of the Building Authority under section 18(2)(a) of the Building Management Ordinance or section 14 of the Buildings Ordinance, together with the Regulations and Code pleaded in the Re-Re-Re-Re-Amended Statement of Claim.

(2)  one report from a real estate surveyor giving opinion evidence on the rental and sale value of the property with and without the Opening.

Can I just clarify?  It will be one report from each side.  Both Defendants constitute one side, certainly.

14.The above directions under paragraphs (1)(c), (d) and (2) are without prejudice to the Defendants’ arguments that the Plaintiff’s case was doomed to fail even on her own pleaded case and that no expert evidence is required.

(Submissions on timetable)

15.Reports to be exchanged by 16 February 2009.

16.Costs in the cause.  I am assisted by counsel and I think counsel’s certificate is justified.

Mr V. Chin, instructed by Messrs. P. H. Chin & Company, for the Plaintiff.

Mr K. Leung, instructed by Messrs. Pansy Leung, Tang & Chua, for the 1^st and 2^nd Defendants.