Ready Set Goal Ltd (in Liquidation) and Another v. Kay-el (Hong Kong) Ltd

HCA 223/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 223 OF 2013

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J U D G M E N T

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1.This is an appeal against the decision of Master K W Lung of 18 November 2014 whereby he gave leave to the plaintiffs to adduce expert evidence by way of a report from an expert on the matters set out in schedule 2, items 1 to 5 inclusive, of the plaintiffs’ amended summons applying for such leave.

2.The master’s decision is admirably and comprehensively set out, if I may say so, in his reasons for his decision.  I shall adopt both the matrix of his decision and his reasoning in this short judgment.

3.The plaintiffs’ claim against the defendant is essentially that the latter, whether as agent or principal, supplied goods, for which the 1st plaintiff paid, which were defective in material respects and therefore not of merchantable quality.  Those defects are sufficiently pleaded in the Statement of Claim.  They indicate to me that they simply reflect the conclusions of an expert from his examination of the material.

4.There are other aspects of the plaintiffs’ claim with which I do not need to be concerned.  Both the Statement of Claim and the Defence are unjustifiably prolix and repetitive and ought to have crystallised the essential background, allegations and issue in a more digestible and economic form. 

5.It is, however, patently obvious that the crux of the cause of action is whether the goods supplied were defective and whether proper quality control had been exercised.  The Defence specifically avers that no admissions are made to these allegations.  I do not need to go beyond that in highlighting the relevant issues for the purposes of this appeal.

6.I have, of course, in mind the time-honoured and wholly realistic guidance in relation to the admissibility of expert evidence and the authorities in support.  These are clearly set out in Master Lung’s decision and it is unnecessary for me to repeat them.

7.It is clear beyond question, in my view, that the plaintiff needs, and is entitled to call, expert evidence to lay the foundation at trial for his case.  Without it, he would be putting a significant, if not impossible, burden upon the judge to decide whether the allegations are made out, viz whether the plastic panels of the I-goals were likely to crack; the nets were fitted too tightly or too loosely; the compression required to push the hose into the connector was too great; and whether the quality control tests were properly carried out. 

8.This is clearly one of those cases in which a judge needs expert evidence, even if he has to decide between conflicting experts.  Any argument that the costs incurred thereby are significant or wasteful is without justification.  If the expert evidence is essential, the question of cost effectiveness or proportionality does not arise.

9.The remainder of the defendant’s arguments against the admission of expert evidence loses sight of the fact that the matter of whether the products were defective and whether there was or was not quality control to be exercised by the defendant are central to this action.  I do not need to rehearse those arguments or repeat the counter-arguments ad nauseam.

10.Accordingly, I confirm the master’s decision and I dismiss this appeal with costs.

Mr Douglas Clark, instructed by Tanner De Witt, for the 1st and 2nd plaintiffs

Mr Anthony Chan, instructed by Cheung & Choy, for the defendant