FUNG YAU LIN AND OTHERS v. LAM SHUET YING AND OTHERS

FUNG YAU LIN AND OTHERS v. LAM SHUET YING AND OTHERS

Despite the lateness and inadequate supporting material, substitution of the plaintiffs' expert was permitted because there was no evidence of shopping for opinion, the plaintiffs bore no culpable fault for the expert's unavailability, and the proposed timetable would not cause significant disruption; permission was conditional on a strict filing deadline for the expert report, attendance of experts at trial and costs consequences to protect defendants from prejudice.

Citation
[2019] HKDC 1228
Parties
1st Plaintiff: Fung Yau Lin; 2nd Plaintiff: Fung Kwai Lan; 3rd Plaintiff: Fung Yun Nam; 4th Plaintiff: Fung Yun Man; 1st Defendant (discontinued): Tang Ping Kuen; 2nd Defendant: UNLAWFUL OCCUPIERS OF LOT NOS. 697 AND 700 IN D.D.100 NORTH NEW TERRITORIES HONG KONG; 3rd Defendant: Lam Shuet Ying; 4th Defendant: Tang Ping Wah
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
11 September 2019
Case Number
DCCJ1005/2017
Procedural Posture
Action to Recover Land (possession and Adverse Possession) / Pre Trial Review / Directions Hearing
Outcome
Summons granted in part: plaintiffs permitted to substitute expert with conditions; costs ordered; trial directions given
Legal Topics
Adverse Possession, Expert Evidence, Trial Directions, Costs
Source Language
EN
Property Civil Procedure Evidence Adverse Possession Expert Evidence Trial Directions Costs

Case Brief

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Parties

Fung Yau Lin

1st Plaintiff

Fung Kwai Lan

2nd Plaintiff

Fung Yun Nam

3rd Plaintiff

Fung Yun Man

4th Plaintiff

Tang Ping Kuen

1st Defendant (discontinued)

UNLAWFUL OCCUPIERS OF LOT NOS. 697 AND 700 IN D.D.100 NORTH NEW TERRITORIES HONG KONG

2nd Defendant

Lam Shuet Ying

3rd Defendant

Tang Ping Wah

4th Defendant

Procedural Posture

Action to Recover Land (possession and Adverse Possession) / Pre Trial Review / Directions Hearing

Legal Issues

  1. 1 Whether the plaintiffs may substitute their expert late in the timetable
  2. 2 Whether substitution would prejudice the defendants or disrupt the trial
  3. 3 Whether the defendants have acquired possessory title by adverse possession (substantive issue)

Ratio Decidendi

Despite the lateness and inadequate supporting material, substitution of the plaintiffs' expert was permitted because there was no evidence of shopping for opinion, the plaintiffs bore no culpable fault for the expert's unavailability, and the proposed timetable would not cause significant disruption; permission was conditional on a strict filing deadline for the expert report, attendance of experts at trial and costs consequences to protect defendants from prejudice.

Court Disposition

Summons granted in part: plaintiffs permitted to substitute expert with conditions; costs ordered; trial directions given

Orders

  • Plaintiffs permitted to substitute expert Mr Joseph Wong in place of Mr Chan subject to conditions set out below
  • Unless order: Mr Joseph Wong to file and serve his expert report by 4pm on 25 September 2019