Wing Ming Garment Factory Ltd v. The Incorporated Owners of Wing Ming Industrial Centre

HCCT 60/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 60 OF 2006

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J U D G M E N T

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1.By a summons dated 23 August 2013, the plaintiff seeks leave to rely upon the expert report of Mr Cheung Wai-sum dated 23 August 2013. The report mainly deals with his observations of the physical features of the building as a result of an inspection made in July 2013 and, secondly, the remedial measures that are, in his opinion, appropriate or required for the purpose of addressing the defects and problems complained of by the plaintiff in this action.

2.Mr Cooney, for the defendant, objects to the parts concerning the remedial measures.  He says, not without justification, in my view, that there was very little in the previous report about remedial measures.  The only paragraphs that Mr Pennicott has been able to point to are paragraphs 5.5.2 and paragraph 7.4 of Mr Cheung’s and Mr Wu’s first report dated June 2009. 

3.As far as I can see, there is nothing directly related to the question of remedial measures for the alleged defect and problems in the subsequent reports.  Mr Cheung’s and Mr Wu’s joint report in June 2009 only deals with the question of remedies very briefly.  In paragraph 7.4 of that report, Mr Cheung and Mr Wu say that:

“The work required to effect the necessary repairs to make Wing Ming Industrial Centre watertight would not be complex. In order to prevent the seepage or leakage through the upper roof to the 11th floor, the roof waterproofing must be re-laid and the roof surface graded with effective fall, such that water will drain quickly and will not pond on the upper roof. Further, cracked tiles and jointings need to be replaced and repaired. If nothing is done, however, the damage will seriously damage the structure and the complexity and cost of the repair work will increase exponentially.”

4.In contrast, the latest report of Mr Cheung, dated August 2013, goes into the detailed proposed remedial methods for each of the relevant areas, namely the upper roof, the 11^th floor flat roof, the 11^th floor unit, the 10^th floor, as well as the basement. 

5.Although Mr Pennicott is right in saying that the topic of remedies is not entirely new, in my view, this report cannot fairly be described as an update of that particular matter.  The trial is starting on 2 October, which is only three weeks away.  In my view, this is a case of there being too much, too late in the supplemental report. 

6.I shall therefore only give leave to the plaintiff to rely on those parts of the report concerning the updated physical observations of Mr Cheung, excluding the parts about remedial methods.  In fairness to the defendant, I do not think it would be right to require either the defendant’s factual witnesses, or their experts, or their legal team to deal with something such as the parts on remedial measures in Mr Cheung’s latest report.

(Proceedings and submissions re withdrawal of admission)

7.Two of the summonses before me this morning concern the amendment made by the plaintiff to its pleadings.  The pleading in question is the re-amended reply and defence to counterclaim.  It was filed pursuant to leave given by me on 16 July 2013 following the amendment by the defendant to its re-amended defence and counterclaim for which I also gave leave on 16 July 2013.

8.On 6 September 2013, the defendant took out a summons for an order that the re-amendment made by the plaintiff in a number of paragraphs be disallowed and struck out on the ground that they did not arise from and are not consequential upon the defendant’s amendment to its re-amended defence and counterclaim. 

9.The defendant also seeks an order that the re-amendment made by the plaintiff to paragraph 51.1(2) of its re-amended reply and defence to counterclaim be disallowed and struck out on the ground that it constituted a withdrawal of admission without leave.  In response, the plaintiff took out a summons dated 9 September 2013 for leave to make the amendment to the paragraphs specified in the defendant’s summons insofar as the amendments in those paragraphs are not consequential amendments.  The plaintiff also seeks leave to withdraw the admission made in paragraph 51.1(2) of the amended reply and defence to counterclaim.

10.I will deal with the withdrawal of admission first.  Paragraph 51.1(2) pleads that on diverse dates, as referred to in paragraph 133 of the re-re-amended defence and counterclaim of the defendant, the plaintiff caused the sale of the various void areas to different parties.  What the plaintiff seeks to do is to remove the words “void areas” and substitute them with the words “car parking spaces”.  The plaintiff also wishes to add a sentence at the end of that sub-paragraph which reads:

“To the extent that the car parking space No. 2, (as shown coloured green in the plan annexed to the assignment, memorial No. 5203243) forms part of the common areas. Such area was not assigned to Sanwa Trading (Hong Kong) Limited.”

11.There is no dispute that what the plaintiff seeks to do amounts to a withdrawal of an admission, the admission being that the plaintiff did cause the sale of various void areas, areas which, according to the judgment of Reyes J in HCA 8805/1993, were common areas instead of areas within the exclusive possession of the plaintiff. 

12.Mr Cooney says that before the application to withdraw the admission can be granted or even properly determined, there needs to be an explanation from the party seeking to withdraw the admission as to the reasons for the withdrawal.  If a mistake had been made in the past, there has to be an explanation of how the mistake came to be made as it was.

13.Mr Pennicott, for the plaintiff, submits that it is clear that that mistake had been made, referring to the fact that it was thought by the plaintiff, as evidenced in paragraph 57 of Mr Yuen Man-pui’s witness statement dated May 2007, that the void areas did fall within the exclusive possession of the plaintiff.  That assumption, he says, was proved to have been mistaken by the judgment of Reyes J in December 2007.

14.In my judgment, there has to be a proper explanation which ought to be made on affirmation in the circumstances of this case as to why the mistake had been made and the reasons for the application to withdraw.  It is of note that the admission in question was made by amendment to the original reply and defence to counterclaim, with leave given in 2011, after the judgment of Reyes J, which was handed down in December 2007. 

15.In these circumstances, I am not prepared to grant leave for the admission to be withdrawn at this stage.  I say this without pre‑empting the plaintiff from applying again with a proper explanation of the relevant circumstances. 

16.Turning to the other amendments to the reply and defence to counterclaim of the plaintiff, Mr Pennicott submits that the amendments fall into two categories, namely, those that are consequential upon the defendant’s amendment to its pleadings for which, therefore, no additional leave is required, and those that he accepts to be non-consequential for which leave is required from this court.

17.I accept Mr Pennicott’s submissions that the amendments to paragraphs 49 and 50 of the re-amended and defence to counterclaim are consequential to the amendments made by the defendant, the defendant having pleaded in paragraph 140 of its amended pleading that repeated demands were made to the plaintiff to rectify, remedy or stop the wrongful acts alleged. 

18.I accept also that paragraph 51.1(4) of the plaintiff’s re‑amended reply and defence to counterclaim is a consequential amendment that is referable back to the latest amendment made by the defendant to the prayer in its counterclaim.  Paragraph 51.1(6) of the plaintiff’s re-amended reply and defence to counterclaim simply refers back to subparagraph (4).

19.The amendment made in paragraph 52 of the plaintiff’s re‑amended reply and defence to counterclaim is also, in my view, unobjectionable.  It was already pleaded before that the defendant unlawfully occupied the storeroom and the toilet without the prior consent of the plaintiff.  The addition, therefore, of the sentence that, “The storeroom is not part of the common parts of the building, but is to the exclusive use, occupation or enjoyment of the plaintiff,” simply expressly says what was already implicit there.

20.The second sentence in paragraph 52, relating to the locus of the defendant, seems to me to be an argument of law that is open in any event to the plaintiff on the facts. 

21.The amendments to paragraph 54 of the plaintiff’s re‑amended reply and defence to counterclaim seem also to me to be consequential upon the amendment by the defendant of paragraph 137 of its pleadings. 

22.The amendments to paragraphs 14, 17, 36 and 37 of the plaintiff’s re-amended and defence to counterclaim do, on the plaintiff’s own case, require leave of the court. 

23.I allow the amendments to paragraphs 14 and 17, which add the averment that certain parts constitute common parts of the building.  It seems to me that was implicit in the original pleading in any event, which alleged that the defendant, that is to say the incorporated owners, was responsible for maintaining the parts in question. 

24.I allow also the amendment to paragraph 36.1(1), which adds an averment about the roof covering and waterproof membranes.  It seems to me that is already a subject matter pleaded in paragraph 18.4(h) of the plaintiff’s amended statement of claim, where it is alleged that, “The defendant failed or refused to provide, repair, improve and upgrade the waterproofing system membrane at the common area at the upper roof level.”

25.Paragraph 37.1(2) is simply amended to refer back to paragraph 36.1(1).  That amendment is also allowed.

Mr Ian Pennicott and Mr David Tsang, instructed by K & L Gates, for the plaintiff

Mr Nicholas Cooney SC, leading Mr Arthur Wong, instructed by S H Chan & Co, for the defendant