So Kwok Kee John t/a Spray Engineering Corporation v. Melofield Nursery and Landscape Contractor Ltd

DCCJ 1760/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1760 OF 2010

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Before: Deputy District Judge Norman Hui in Court

Date of Hearing: 28 November 2012

Date of Decision: 28 November 2012

Date of Reasons for Decision: 22 February 2013

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REASONS FOR DECISION

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1.This is the decision of the defendant’s application for leave to appeal from my judgment of 19 October 2012 (“the judgment”) whereby I granted judgment for the plaintiff and dismissed the defendant’s counterclaim.

2.The representative of the defendant, Mr Lau Sum Yan (“Mr Lau”), appeared for the defendant and the parties agreed that this application was to be conducted in English.

3.At the end of the hearing, I refused leave and indicated that I would give my written reasons later which are now provided herewith.

4.The relevant facts of this matter are set out in the judgment.  For ease of reference, the same terms and definitions referred to in the judgment are applied in this decision also.

LEGAL PRINCIPLES

5.Jurisdiction for this leave application is based upon section 63A of the District Court Ordinance, Cap 336 and the practice and procedure of the application is governed pursuant to Order 58, rule 2 of the Rules of the District Court, Cap 336H.  Subject to section 63A(2) of the District Court Ordinance, it is provided that leave to appeal shall not be granted unless the court is satisfied that, (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

6.The relevant test of whether an appeal has a reasonable prospect of success under section 63A(2) is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” as per Fok JA, in KNM v HTF, HCMP 288/2011, 7 September 2011 at paragraph 9 thereof.

THE DEFENDANT’S “GROUNDS”

7.The defendant has filed a summons for the leave application together with a supporting affirmation of Mr Lau but the summons itself provides no grounds for this leave application other than the judgment was unfair.  The defendant has not filed any skeleton submissions in support of this leave application but instead relies upon the points in the supporting affirmation of Mr Lau which were expanded upon in his verbal submissions.  Mr Tsui for the plaintiff has considerately taken no issue with the defendant’s approach to the leave application although he was entitled to.

8.As per the points raised in the supporting affirmation of Mr Lau, the defendant relies upon different “grounds of appeal”. I have considered each of the “grounds” in turn to see whether there is a reasonable prospect of success in each of the same albeit some of those grounds were interrelated.    

9.The first “ground” of the defendant was the one in which Mr Lau focused the majority of his time and effort on.  In essence, Mr Lau’s complaint is that I have unfairly placed too much weight on the plaintiff’s evidence or alternatively too much weight on the evidence in the single joint expert report of Mr John Henry Barrett dated 19 January 2012, namely the Expert Report, without any regard to the defendant’s evidence which was previously referred to as the Defendant’s Drawing at paragraph 28 and the Architect’s Plan at paragraph 64 of the judgment.

10.I refer to the judgment at paragraphs 35 to 42 where the basis and terms for which the Expert Report arose and is explained.  It is clear that the parties had agreed prior to trial that, as according to the order dated 19 December 2011, both parties agreed to appoint Mr John Henry Barrett as the single joint expert in relation to measurement of the Rocksgrass system at the Site.  If any of the parties disagreed with the Expert Report then the party still agreeing could nonetheless continue to make reliance on it.  The plaintiff chose to rely on the Expert Report whereas the defendant did not and chose to rely on Defendant’s Drawing and the Architect’s Plan.

11.I refer to the judgment at paragraphs 64 to 66 where I state the basis upon which I have considered the Defendant’s Drawing and also the Architect’s Plan.  I had clearly examined and considered both the Defendant’s Drawing and the Architect’s Plan with particularity and both documents were further challenged and considered under cross-examination. 

12.As indicated in the judgment at paragraph 67, the Defendant’s Drawing and the Architect’s Plan themselves provided no or no substantive weight on their probative value.  In addition, the defendant chose not to call the maker of the Defendant’s Drawing, but in any event Mr Lau could not identify who it was that made the Defendant’s Drawing.  The maker of the Architect’s Plan was also not called at trial and it will be noted that Mr Lau did not even attempt to do so nor even attempted to identify who the maker was.  In any event, neither the Defendant’s Drawing or the Architect’s Plan was explained in any witness statement from the defendant to provide any factual context to the said documents, let alone any attempt was made to have them adduced properly as expert reports under Rules of the District Court, Order 38, Appendix E or in any sensible fashion whatsoever.

13.It appears to me that the defendant is trying to make use of the discrepancies in the defendant’s own evidence as a ground of appeal.  I cannot accept that such discrepancies in the defendant’s own evidence can demonstrate a reasonable prospect of success in the appeal and in fact were already considered in the judgment. 

14.The second “ground” of the defendant was that I failed to compare and “cross-check” the areas surveyed in the Expert Report with that of the Defendant’s Drawing and the Architect’s Plans. 

15.I repeat the foregoing paragraphs 11 and 12 hereinabove. I also repeat paragraphs 79 to 81 of the judgment where the Defendant’s Drawing and the Architect’s Plans were considered in the context of the Expert Report and that as per paragraph 82 of the judgment that I did make a finding of fact in relation to the said documents which was adverse to the defendant.  I do not accept that the defendant has demonstrated a reasonable prospect of success in the appeal under this “ground”.

16.Without specifying which “ground” it related to but presuming that it somehow related to the second “ground”, Mr Lau for the defendant also verbally submitted for the first time that apparently there is some form of publicly available document that confirms the size of the Rocksgrass system applied at the Site.  When I enquired with Mr Lau what and where this document might actually be, without any particularity Mr Lau stated that it was in fact some form of architect’s drawing that was registered with a government body at some stage of development of the Site.  Mr Lau did not state that the said architect’s drawing were in fact the Architect’s Plan and he could not assist me further in identifying what the alleged document was or where it could actually be found. 

17.As per Ladd v Marshall[1954] 1 WLR 1489, there are 3 conditions to be satisfied before further evidence is admitted by the Court of Appeal, namely: (a) the evidence could not have been obtained with reasonable diligence for use at trial; (b) the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (c) the evidence is apparently credible, though it need not be incontrovertible. 

18.It is clear in the present case that the defendant knew of the existence of the said architect’s drawing since it has allegedly been registered with a government body at some stage of development of the Site and hence these documents would have existed prior to the trial and thus could have been obtained prior to trial. 

19.In any event, at the hearing Mr Lau was unable to produce the said architect’s drawing, nor expressly state when or where such said architect’s drawing was registered, nor say what was the actual size of the Rocksgrass system applied at the Site in the said architect’s drawing.  In fact, the very existence of the said architect’s drawing is therefore very much unknown, unsubstantiated and the credibility of even their existence is in question.

20.Additionally, the defendant has not bothered to explain that there were any special grounds relating to why the said architect’s drawing should be allowed to be produced at an appellate stage.

21.As such, I placed no weight on such alleged document, whether in fact it exists or not, and I do not accept that the defendant has demonstrated a reasonable prospect of success in the appeal under this “ground”.

22.The third “ground” of the defendant was that the plaintiff failed to abide by the terms of the Contract since the plaintiff did not execute the 12 month maintenance period. 

23.Mr Lau is repeating the same position of the defendant as at trial and failed to explain the error made in the judgment or refer to the matters upon which such “ground” of appeal has a reasonable prospect of success.  For the avoidance of doubt, this “ground” of appeal was considered at paragraphs 88 to 91 of the judgment.  Where necessary, given the broad manner in which the defendant through Mr Lau brings this appeal, I also refer to paragraphs 93 to 97 of the judgment.  I do not accept that the defendant has demonstrated a reasonable prospect of success in hisappeal under this “ground”.

24.The fourth “ground” of the defendant, as best that I can understand the point, was that an additional 60 square meters was approved to be added to the amount of 287 square meters under the Contract by the architect of the Site but the plaintiff wrongly claimed for more than that additional amount.

25.Mr Lau is again repeating the same position of the defendant as at trial and has failed to explain the error made in the judgment or refer to the matters upon which such “ground” of appeal has a reasonable prospect of success. I refer to the judgment at paragraphs 58 to 60 and then 62 to 64 which relates to the additional 60 square meters referred to by the defendant which are also to be read in conjunction with paragraphs 70 to 71 of the judgment. I do not accept that the defendant has demonstrated a reasonable prospect of success in his appeal under this “ground”.

26.The defendant has repeated the complaint, as far as I can understand the point, that the $1,000 fine levied on the defendant from the Principal Contractor should have been borne by the plaintiff.  I refer to the judgment at paragraph 98 where I have already held that due to a lack of particularity on the evidence that this was a matter that did not indicate the plaintiff’s liability.  I do not accept that the defendant has demonstrated a reasonable prospect of success in the appeal under this “ground”.

Conclusion

27.Accordingly I dismissed the defendant’s application for leave to appeal. 

28.Mr Tsui for the plaintiff prepared a skeleton bill of costs in relation to this leave application. In view of the seniority of Mr Tsui, I am satisfied that it was reasonable to have assessed his hourly rate for attendance in court at $2,600.  I made a gross sum assessment of costs for this application in the amount of $9,100 being to the plaintiff.

Mr Tsui Wai Hay of KB Chau & Co, for the plaintiff

Mr Lau Sam Yan, representative of the defendant