Mitsubishi Elevator Hong Kong Co Ltd v Marriot Engineering & Construction Co Ltd

CourtDistrict Court (Hong Kong)
Judgment Date04 October 2013
Judgement NumberDCCJ3970/2011
Subject MatterCivil Action
DCCJ3970/2011 MITSUBISHI ELEVATOR HONG KONG CO LTD v. MARRIOT ENGINEERING & CONSTRUCTION CO LTD

DCCJ3970/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3970 OF 2011

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BETWEEN

MITSUBISHI ELEVATOR Plaintiff
HONG KONG COMPANY LIMITED

and

MARRIOT ENGINEERING & CONSTRUCTION COMPANY LIMITED Defendant

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Before : HH Judge Wilson Chan in Chambers
Date of Hearing : 4 October 2013
Date of Decision : 4 October 2013

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DECISION

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Background

1. By summons dated 9 September 2013, the defendant applied for leave to appoint Mr Albert So and/or a quantity surveyor as its nominated expert witness on quantum in this action. During the course of the hearing today, Mr Nigel Francis, solicitor for the defendant, informed the court that the defendant no longer wishes to pursue the application as regards Mr Albert So.

2. The application is made pursuant to Order 38, rule 44 of the Rules of the District Court, Cap 336. In effect, the defendant seeks to vary the order of Master KK Pang dated 13 December 2012, giving, inter alia, expert directions as follows:-

“1. Leave to the parties to adduce expert evidence on quantum, limited to one registered lift contractor for each party in relation to the issue as to whether there is a market, and if yes the market values, of the equipment and machinery, or parts and materials of the goods to be supplied under the Letter of Award and the said sub-contract referred to in the Statement of Claim, to the plaintiff at the time and place of the breach.”

3. It is common ground between the parties that such valuation evidence is relevant to the pleaded question of whether the plaintiff has taken all steps to mitigate its loss. As Mr Nigel Francis puts it in paragraph 7 of his skeleton submissions, it is the defendant’s case that the plaintiff failed to take the necessary steps to mitigate the loss and damage that it in fact suffered by reusing or selling the lift equipment and machinery originally contracted to be purchased by the defendant.

Relevant legal principles

4. Under Order 38, rule 44, it is the duty of the defendant to show “sufficient cause” to justify the proposed change of experts [see: Lo King Fung v China Overseas Property Services Limited, DCPI 380/2008 (Judgment of Her...

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