KWOK HING YUEN v. GOODPOINT ENGINEERING LTD AND OTHERS

CACV 107/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 107 OF 2006

(ON APPEAL FROM HCPI NO. 736 OF 2004)

______________________

BETWEEN

   KWOK HING YUEN Plaintiff
  and  
  GOODPOINT ENGINEERING LIMITED 1st Defendant
  WING SUM CONSTRUCTION & ENGINEERING CO., LIMITED 2nd Defendant
  OTIS ELEVATOR COMPANY (H.K.) LIMITED 3rd Defendant
(Discontinued)
FAN CHOW SANG 4th Defendant
CHAN CHO LEUNG 5th Defendant

Before : Hon Cheung JA in Chambers

Date of Hearing : 8 June 2006

Date of Decision : 8 June 2006

Date of Reasons for Decision : 12 June 2006

______________________

Reasons for Decision

______________________

1. The plaintiff applied to adjourn the hearing of the appeal which is scheduled to be heard on 16 June 2006. I granted the adjournment.

2. The appeal is in respect of an order by Deputy High Court Judge Muttrie. He dismissed the plaintiff’s appeal against Master Kwan’sdecision in refusing leave to the plaintiff to adduce a supplementary report of a medical expert. There is in existence an orderdealing with expert evidence.

3. The application to adjourn became necessary because the plaintiff had, since the lodging of the appeal, applied to adduce a reportby another medical expert in substitution of the supplementary medical report. The application will be heard by Suffiad J on 14June 2006. The plaintiff’s stand is that if the application is successful then he will withdraw the appeal with costs to the defendants. If it fails, the plaintiff will pursue the present appeal and may consider lodging a further appeal against the refusal to allowhim to adduce the substituted report.

4. There is no indication that the application by the plaintiff before Suffiad J is bound to fail. In any event I have not been addressedon this issue. In terms of case management it will be unsatisfactory if the matter on whether the appeal should proceed is not dealtwith now but to be decided only after the hearing listed before Suffiad J. By then if the appeal is to be withdrawn, it will meanthat resources both in terms of the Court and the parties will be wasted. Obviously if the appeal is not vacated, then costs forthe hearing will likely to be incurred. The parties had at the meantime agreed not to prepare the appeal bundle. The suggestionby the 1st and 2nd defendants that the hearing before Suffiad J should be adjourned to a date after the appeal is also unsatisfactory because the plaintiffobviously wishes to explore a different way of dealing with the expert report first.

5. Accordingly I granted the adjournment.

Costs

6. I also ordered costs of the adjournment to be borne by the 1st and 2nd defendants. The hearing date before Suffiad J is the earliest date the plaintiff could obtain after issuing the summons on 28 March2006. Two earlier available dates were not convenient to counsel for the 1st and 2nd defendants. The plaintiff had also made known to the defendants as early as 11 May 2006 of its position regarding the appeal ifthe application is successful before Suffiad J and had sought consent from the defendants to adjourn the appeal by letter on 18 May2006. The 1st and 2nd defendants objected to the adjournment and the present application was required as a result of the objection. The objection wasunreasonable and the 1st and 2nd defendants failed in their objection. Accordingly costs should follow the event.

  (Peter Cheung)
Justice of Appeal

Mr. Charles C. T. Wong, instructed by Messrs Philip S. W. Chan, for the Plaintiff

Mr. Mok Chiu Kuen of Messrs C. K. Mok & Co., for the 1st and 2nd Defendants

4th Defendant, in person, absent

5th Defendant, in person, absent