Wong Wai Tak Belinda and Another v. Smart Team International Investment Ltd

DCCJ 1023/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1023 OF 2009

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BETWEEN

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Before: Her Honour Judge Mimmie Chan in Chambers (open to public)

Date of Hearing: 19 July 2011

Date of Delivery of Decision: 19 July 2011

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D E C I S I O N

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1.Amendments of judgments and orders can only be made under Order 20, rule 11 in relation to clerical mistakes or errors arising from any accidental slip or omission, for example, of mathematical errors or if there is some ambiguity in expression in a decision. The error or omission must be an error in expressing the manifest intention of the court. The court cannot correct a mistake of its own, in law or otherwise, even though apparent on the face of the order.

2.In this case, I allowed a total sum of $20,325.10 in respect of the Plaintiffs’ costs of repair works incurred as a result of the vibrations caused by the decoration works carried out within the Defendant’s premises.  How this sum is arrived at is, in my opinion, clearly set out and explained in paragraph 44 of my Judgment of 27 April 2011, on the basis of the quotation from Sunshine for the stated sum of $37,300 which had, on Mr Lee’s evidence, replaced the earlier one for the amount of $39,000.  I cannot see that there is anything unclear about the calculation of the sum of $20,325.10 awarded.

3.In the same way, the calculation of the total sum of $22,440 which I allowed, in respect of the costs of accommodation incurred by the Plaintiffs, is clearly set out in paragraph 47 of the Judgment.  There should not be any ambiguity as to this sum being allowed for 17 days.  It does not necessarily follow from the deduction of 20% from the costs of repairs awarded that reduction should likewise and automatically be made from the costs of accommodation allowed to the Plaintiffs.  I do not accept that there is any clerical mistake or error arising from or apparent in the awards for the respective amounts of $20,325.10 and $22,440. 

4.The intention of the court is manifest from paragraphs 44 and 47 of the Judgment. If the Defendant considers that there is a mistake in law in the awards, they must appeal instead of applying for a purported review or amendment of the Judgment. Such an application for amendment under Order 20, rule 11 is accordingly dismissed.  I agree that in view of the correspondence exchanged before the hearing and before this application for amendment under Order 20, the costs of that application must be allowed on an indemnity basis. 

5.The Defendant’s application for variation of the order nisi of the costs of the action being allowed to the Plaintiffs is on the basis that should the Court amend its award in the manner proposed or argued by the Defendant to be appropriate, then the award should be less than the amount of the sanctioned payment made by the Defendant. Since there is no basis for amendment or variation of the awards, the total award of $42,765.10 is higher than the sanctioned payment of $35,000 made by the Defendant.  The question of any costs consequences following from Order 22 therefore does not arise.

6.The Defendant argues that the award is within the jurisdiction of the Small Claims Tribunal. On the question of whether it was reasonable, at the time when the Plaintiffs issued the Writ, to have commenced their claims in the District Court, I consider that the Plaintiffs had reasonable prospects then, relying on the evidence available to them, of recovering a sum in excess of the limit of the Small Claims Tribunal.  Bearing in mind all the circumstances in this case, including the nature and the extent of the dispute, the evidence presented and in particular the fact that experts are required to give technical evidence for days on the effect of the vibrations and the cause of the cracks which appeared at the Plaintiffs’ premises, I consider that it was reasonable for the proceedings to be brought and tried in the District Court with legal representation.  The necessary and technical evidence can be properly presented and tested to facilitate the Court’s determination.  I consider that an order of costs on the District Court scale, and not the scale applicable to the Small Claims Tribunal, is appropriate in this case.

7.Finally, on the question of appeal and whether leave to appeal should be granted to the Defendant in this case, the test for granting leave is not in dispute.  The Defendant has to show that it has prospects of success in the appeal which are more than fanciful but which do not need to be shown to be probable.

8.The Defendant’s ground of appeal on the question of liability is that, essentially, the Court failed to give sufficient weight to the evidence of the Defendant’s expert, and should have preferred his evidence to that of the Plaintiffs’ expert.  This is an appeal on facts.

9.I am not satisfied that it can be shown that the trial judge was plainly wrong on the factual findings or in my preference of the evidence of one expert over the other.  In paragraph 39 of the Judgment of Bokhary PJ in Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336,he explained:

“As Lord Shaw of Dunfermline said in Clarke v Edinburgh Tranways at page 35 and Lord Edmund-Davies represented in Whitehouse v Jordan atp. 257C-D, the great respect due to a trial judge’s choice of whom to believe is ‘quite irrespective of whether the judge makes any observation with regard to credibility or not’.”

And in paragraph 41 of his Judgment, Bokhary PJ had this to say:

“On an appeal against a judgment of a judge sitting alone, Lord Sankey LC said in Powell v Streatham Manor Nursing Home at page 249: ‘the Court of Appeal will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his position ought to have been the other way.’ ”

10.On the question of the proposed appeal against the costs of the action, costs are in the discretion of the Court.  The principles are clear that an appeal will not be entertained from an order which was within the discretion of the judge to make, unless it is shown that the discretion was exercised under a mistake of law, or that the judge had taken into consideration irrelevant factors, or had failed to take into consideration relevant factors.  It has not been shown how the question of the costs of the action being allowed to the Defendant under the order nisi appealed against was a wrongful exercise of the Court’s discretion.  I am not satisfied that the proposed appeal against liability and costs has reasonable prospects of success. 

11.However, on the proposed appeal against quantum, although it does not necessarily follow from my decision to deduct 20% from the costs of repairs necessitated by the vibration that a similar deduction must be made to the costs of alternative accommodation, nevertheless, principles of law are raised concerning the correct measure of damages, and I cannot say at this stage that there are no reasonable prospects of success on an appeal on the award of damages for accommodation costs.  The effect of such an appeal, the outcome or the practical consequences of such an appeal, will have to be carefully considered by the parties as I have already observed.

12.I will accordingly grant leave to appeal, and this means I cannot restrict the grounds or the ambit of the appeal.

(Discussion re costs) 

13.Costs in the cause of the appeal.

(Discussion re costs and certificate for counsel) 

14.The costs of the application to amend the Judgment and to vary the costs order nisi are to be paid by the Defendant on an indemnity basis, with certificate for counsel.

Mr Jose Remedios, instructed by Messrs Keith Lam Lau & Chan, for the Plaintiffs

Mr Arthur Wong, instructed by Messrs Wong & Wong, for the Defendant