浩昌電機工程有限公司 對 高衛新
Read the full judgment text of DCCJ 195/2016 on BabelCite. This District Court judgment was delivered on 15 March 2017.
1. By Summons filed on 17 October 2016 (“Striking Out Summons”), the defendant seeks an order that (i) the Indorsement of Writ and the Statement of Claim dated 13 January 2016 (“Statement of Claim”) be struck out pursuant to RDC O 18 r 19 and this court’s inherent jurisdiction, (ii) the plaintiff’s Reply to the defendant’s Defence and the Defence to the defendant’s Counterclaim dated 31 March 2016 be struck out, and (iii) these proceedings against the defendant be dismissed.
Cited by 1 case · Cites 7 cases
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DCCJ 195/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 195 OF 2016 -------------------------
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--------------------- DECISION ---------------------- Introduction 1.By Summons filed on 17 October 2016 (“Striking Out Summons”), the defendant seeks an order that (i) the Indorsement of Writ and the Statement of Claim dated 13 January 2016 (“Statement of Claim”) be struck out pursuant to RDC O 18 r 19 and this court’s inherent jurisdiction, (ii) the plaintiff’s Reply to the defendant’s Defence and the Defence to the defendant’s Counterclaim dated 31 March 2016 be struck out, and (iii) these proceedings against the defendant be dismissed. 2.By Summons filed on 7 December 2016, the plaintiff seeks leave to amend the Statement of Claim as per the draft annexed thereto (“Draft AmSOC”) and for consequential directions. In paragraphs 7 and 8 of its affirmation in support[1], the plaintiff contends that the Draft AmSOC “has addressed all issues raised in the Striking Out Summons” and that the Striking Out Summons “has already been overtaken by subsequent events and there is no further need to have [that summons] heard.” 3.As the defendant did not agree, the matter came before me for argument. The parties however agreed that this court should approach the matter on the basis of facts pleaded in the Draft AmSOC and not those in the Statement of Claim (see LY Group Development Ltd v East Canton Ltd [2015] 4 HKLRD 84 per To J at §§13-14, cited below at §28). Factual background 4.The present dispute arose out of the Phase 3 expansion works of the Hong Kong Sanatorium & Hospital back in around 2005 (“Project”). 5.The main contractor for the Project was Kwan Shing Construction Limited (坤成建築有限公司), which subcontracted electrical installation and related works to Alliance Contracting Company Limited (聯和承造有限公司) (“Alliance”). Alliance then subcontracted the electrical installation works to the plaintiff, which in turn subcontracted part of those works to the defendant. 6.The works subcontracted to the defendant were mainly set out in 2 Chinese contracts entitled “工程合約” and the quotations attached thereto, namely: (i) Contract no. HC-KWS-001 dated 31 March 2006 for a total contract sum of HK$360,000, and (ii) Contract no. HC-KWS-002 dated 20 June 2006 for a total contract sum of HK$330,000. 7.Both contracts provide for a works period of 8 September 2005 to 4 April 2007. As to payment mechanics, the parties agreed that applications for interim payments would be made at the end of each month, and payments would be made at the end of the following month. 8.According to the defendant, the practice was that the plaintiff would pay 90% of the sums stated on his monthly applications for payment (and 50% for variation works), while retaining 10% (and 50% for variation works) for rectification of defects pending the completion of the Project. 9.The contracts also refer to certain terms and conditions set out in a document entitled “WORK ORDER TERMS AND CONDITIONS分判合約協議條款” prepared by the plaintiff (“Terms and Conditions”), which the defendant separately signed. That document contains detailed provisions on payment mechanics, termination and breach of contract, compensation, liability and insurance coverage etc. 10.As the defendant’s works began, the parties had differences as to whether the sums claimed under the defendant’s monthly applications for interim payment were reasonable. Specifically, the defendant considered that the plaintiff had unreasonably cut down on his claims. Despite this, at that initial stage, the plaintiff still paid the defendant 90% of the sums it deemed acceptable. 11.By around late 2007, the parties’ dispute escalated to the extent that the plaintiff stopped paying any part of the defendant’s monthly claims. In particular, the defendant says that the plaintiff had failed to pay him anything under his claim nos. 16, 17 and 18. As a result, the defendant was unable to pay the wages of his workers. 12.In the run-up to the Chinese New Year in January 2008, the defendant’s representatives complained to Alliance about the plaintiff’s failure to make payments to him. The defendant felt particularly aggrieved because one of his workers, a Mr Law, heard that Alliance had paid the plaintiff over a million dollars but the plaintiff still did not pay him. 13.On 18 January 2008, there was a meeting between representatives of Alliance, the plaintiff and the defendant, at which work progress and other matters were discussed. After that meeting, Alliance issued a letter dated 18 January 2008 formally terminating its subcontract with the plaintiff, making clear that it would hire a replacement contractor to complete the works and it would definitely deduct from the plaintiff’s account all necessary expenses incurred as a result (“Alliance’s 18 January 2008 Letter”). The material parts of that letter read as follows:-
14.On the same day, the plaintiff in turn issued a letter to the defendant (“the plaintiff’s 18 January 2008 Letter”), formally terminating the subcontract between them, in the following terms:-
15.Alliance then engaged the defendant’s newly formed business, Lik Sun Engineering Company (力新工程公司) (“Lik Sun”), to finish the uncompleted works. For this purpose, Alliance and Lik Sun signed a Work Order no. W08-0114 dated 29 January 2008 pursuant to which Lik Sun agreed to complete those works at a total sum of HK$500,000. 16.Separately, Alliance and the plaintiff continued to negotiate their settlement accounts. By 16 January 2010, the two sides came to agreement that the plaintiff shall receive a total of HK$138,000 in full and final settlement. That was recorded in a letter from Alliance to the plaintiff dated 21 January 2010 (“Alliance’s 21 January 2010 Letter”) as follows:-
17.Around 4 years later, in 2014 and 2015, the plaintiff brought a total of 4 claims against the defendant at the Small Claims Tribunal on the basis of various matters in relation to the Project. Very briefly, those claims and their respective outcomes are as follows:-
The parties’ pleaded cases 18.Shortly after the discontinuation of SCTC 42521/2015, the plaintiff commenced the present action against the defendant by issuing a writ of summons on 13 January 2016. The plaintiff’s pleaded case is that the defendant had acted in breach of contract (more specifically, the Terms and Conditions) in relation to the subcontracted works by[2]:-
19.Based on the above alleged breaches, the plaintiff claims the total sum of HK$714,250.94 being the loss and damage allegedly suffered by it as a result[3]. 20.In his Defence and Counterclaim filed on 3 March 2016, the defendant denies having committed any breach of contract and contends that his works were of superior quality. The defendant says that Alliance’s termination of its subcontract with the plaintiff was due to the latter’s wrongful failure to pay him hence causing unnecessary delays. He also contends that the plaintiff’s action was an abuse of process in view of its claims in SCTC 18841/2014, SCTC 27747/2015 and SCTC 42521/2015, which were dismissed or discontinued because of time-bar under the Limitation Ordinance (Cap 347). Finally, the defendant counterclaims a total of HK$413,874.60 in unpaid contract sums. 21.The plaintiff filed its Reply and Defence to Counterclaim on 31 March 2016. In it, the plaintiff relies on previously issued warning letters to demonstrate the problems with the defendant’s works. The plaintiff explains that its claims in SCTC 18841/2014, SCTC 27747/2015 and SCTC 42521/2015 were time-barred only because it needed time to locate documents. The plaintiff also contends that the issues in those claims are unconnected with its claim in this action, and that it was successful in its claim in SCTC 26726/2014. Finally, the plaintiffs says that it has fully paid the defendant and hence denies the counterclaim. 22.On 19 September 2016, the parties exchanged witness statements. Approximately a month later, the defendant took out the Striking Out Summons on 17 October 2016, which was then followed by the plaintiff’s Amendment Summons on 7 December 2016. 23.As set out in the Draft AmSOC, the plaintiff now proposes to amend the Statement of Claim under two separate subheadings, namely: (i) breach of contract and tort (“First Amended Claim”)[4]; and (ii) tortious interference by unlawful means (“Second Amended Claim”)[5]. 24.Under the First Amended Claim:-
25.Turning to the Second Amended Claim:-
26.With the above background, I now turn to the applications. Applicable legal principles 27.RDC O 18 r 19 empowers the court, either of its own motion or on application, to order any indorsement of writ or pleading to be struck out on one or more of the grounds under r 19(1)(a), (b), (c) or (d), and to order that the action be stayed or dismissed. Apart from O 18 r 19, the court also has an inherent jurisdiction to stay or strike out a claim which is obviously frivolous or vexatious (see: HKCP (2017) Vol 1 §18/19/11). 28.In LY Group Development Ltd v East Canton Ltd [2015] 4 HKLRD 84 at §13-14, To J provided a summary of the court’s approach in a striking out application when the party sought to be struck out has put forward a draft amended pleading:-
29.I also bear in mind the comment of Godfrey J (as he then was) in Hutchvision Asia Ltd v Asia Television Ltd [1993] 2 HKC 510 (at 514G-I) as to the high threshold required to succeed in a striking out:-
Grounds for striking out 30.At the hearing, Ms Lorinda Lau, counsel for the defendant, advanced 4 grounds in support of striking out, namely:-
31.Before going into each ground, I observe that the plaintiff has made no attempt to refute the defendant’s case that the Statement of Claim was liable to be struck out. As noted in the start of this decision, the plaintiff’s position is that the Draft AmSOC has “addressed all issues” raised in the Striking Out Summons etc. 32.In view of the plaintiff’s stance, the main issue for this court is whether the First Amended Claim and the Second Amended Claim, if permitted to be filed, would survive the above grounds of striking out. Ground 1 – Limitation 33.On limitation, the parties were not in dispute over the following principles:-
34.What the parties disputed was on how these principles apply to the facts, in particular when the plaintiff’s pleaded causes of action under the First Amended Claim and the Second Amended Claim accrued. 35.For the defendant, Ms Lau submitted that the plaintiff’s causes of action in breach of contract or tort accrued on 18 January 2008. Since the writ was not issued until 13 January 2016, she submitted that the plaintiff’s causes of action in the Draft AmSOC were time-barred. 36.Ms Lau relied on Alliance’s 18 January 2008 Letter in arguing that, by that date, the plaintiff’s cause of action in breach of contract had accrued as that was when (i) Alliance terminated its subcontract with the plaintiff, and (ii) the plaintiff in turn terminated its own subcontract with the defendant. She also referred to the fact that the plaintiff had issued warning letters to the defendant. On the plaintiff’s own case[13], there were at least 4 such letters issued, namely those dated 2 September 2006, 19 September 2006, 26 September 2007 and 24 December 2007. 37.As regards the plaintiff’s causes of action in tort, Ms Lau submitted that they were also time-barred because, by virtue of Alliance’s 18 January 2008 Letter, the plaintiff was made aware that Alliance would terminate its subcontract with it and would retain another contractor to complete the works. Hence, Ms Lau submitted, the plaintiff must have known by 18 January 2008 that it would suffer “some sort of loss”, including the inability to earn 100% of the contract sum from Alliance. 38.Ms Lau’s limitation argument was made against both of the plaintiff’s causes of action in tort, namely, negligence (under the First Amended Claim) and unlawful interference (under the Second Amended Claim)[14]. As I understand it, she did not seek to draw any distinction between the 2 tortious causes of action as far as limitation is concerned. 39.On the other hand, while accepting that the plaintiff’s cause of action in breach of contract was time-barred, Mr Ng submitted that the plaintiff’s causes of action in tort only accrued on 16 January 2010 and was not time-barred on 13 January 2016[15]. He submitted that Alliance’s 18 January 2008 Letter was only a termination letter and did not show how much loss the plaintiff suffered. At that point in time, argued Mr Ng, there was merely a “possibility” but “not a certainty” that the plaintiff would suffer a loss “capable of assessment in money terms”, being the threshold set out in Kensland (supra). He submitted it was only when Alliance and the plaintiff reached settlement on 16 January 2010 that the quantum of Alliance’ deductions was known (upon conclusion of the negotiations) and that the plaintiff’s loss became “crystallized” and capable of assessment. 40.Other than the test in Kensland (supra), cited in §33(d) above, Mr Ng referred to Wardley Australia Ltd (supra) at 257-259 for the proposition that no loss is suffered until any contingency for the liability is fulfilled. I do not think the defendant disputes this proposition as such and, in my view, it does not add anything material to the test in Kensland. 41.Mr Ng also referred to Law Society v Sephton & Co (a firm) & Ors [2006] 2 AC 543, in particular, §§9-18 and 30. In that case, the Law Society of England and Wales sued the accountants retained by a solicitors’ firm to prepare and certify its annual reports for negligently failing to spot the solicitors’ misappropriation of clients’ money. As a result, the Law Society suffered a loss from having to pay compensation to the affected clients out of the Solicitors Compensation Fund. The points in issue were when the Law Society incurred a loss, and hence whether the Law Society’s claim was time-barred. 42.The House of Lords held that, under the Solicitors’ Compensation Fund Rules 1995, the Law Society did not incur a liability to make a payment out of the fund when the misappropriation occurred. It only incurred such liability when (i) the misappropriation was not otherwise made good, and (ii) a claim in proper form was made. It seems to me that the decision in Sephton was made on its own facts, and went no further than illustrating the same general proposition that no loss is suffered until any contingency for the liability is fulfilled. 43.On the facts of the present case, it seems to me that the contents of Alliance’s 18 January 2008 Letter do have a material bearing on the question of time-bar. In approaching this question, however, I find it appropriate to consider the 2 tortious causes of action separately. 44.The plaintiff’s cause of action in negligence is founded on allegations against the defendant’s performance of the subcontracted works. The loss said to have been suffered was that part of the contract sum that the plaintiff had failed to earn from Alliance[16]. As shown in Alliance’s 18 January 2008 Letter (the authenticity and contents of which were not in dispute), Alliance made clear that it would hire a replacement contractor to finish the uncompleted works and would definitely deduct from the plaintiff’s account all necessary expenses incurred as a result （“並且將 貴司餘下之工作，另聘新分判商代為完成，一切所需之費用（包括人工及材料）必從 貴司在我司戶口中扣除”）. 45.As Ms Lau rightly submitted, Alliance’s 18 January 2008 Letter puts it beyond doubt that the plaintiff did suffer a loss, at least from not being able to earn the full contract sum from Alliance. Such failure to earn the full contract sum was the only head of loss pleaded in paragraph 6B of the Draft AmSOC (under the First Amended Claim). 46.Contrary to Mr Ng’s submissions, it mattered not that the exact quantum of such loss had not yet been “crystallized”[17]. As soon as Alliance terminated its subcontract with the plaintiff with uncompleted works, it was certain that the plaintiff did suffer a loss, from not being able to earn the full contract sum. That loss was, in my view, real and actual and not contingent, and was capable of being assessed on money terms. 47.The fact that it took 2 years for Alliance and the plaintiff to negotiate full settlement accounts, culminating in the agreement on 16 January 2010 as recorded in Alliance’s 21 January 2010 Letter, did not make the loss contingent. It is trite that, in the absence of the parties’ agreement that the limitation period shall be suspended during negotiations, time does not stop running (see Chitty on Contracts (32 ed) Vol 1 §28-112). As Waung J said in Chan Kwai Ha v Wong Chick Bun (t/a Sang Ming Sing Motorboat Co) [2007] 3 HKC 620 at 625D:-
48.For these reasons, I find that it is plain and obvious that the plaintiff’s tortious cause of action in negligence accrued on 18 January 2008, when the plaintiff suffered a loss from the defendant’s alleged negligent performance of the subcontracted works. It follows from this finding that the plaintiff’s cause of action in negligence was, in my judgment, time-barred when the writ was issued on 13 January 2016, and the defence of limitation is manifestly and immediately destructive of it. 49.Turning to the tortious cause of action in unlawful interference, it is important to note at the outset that, as pleaded, the defendant’s wrongful exaggerations were made after he finished the uncompleted works of the Project. This is clear from the part of paragraph 7 of the Draft AmSOC which reads “被告人亦在完成項目中餘下未完成的部分後，向聯和承造 ... 誇大物料用量及誇大被告人的工程人員的工作時間及日數，導致原告人被總承建商大幅扣減費用”. 50.Hence, as pleaded, any loss caused by the defendant’s alleged exaggerations could not have been suffered before 18 January 2008. Regardless of the viability of the Second Amended Claim (as to which no arguments were made), the plaintiff’s case appears to be that, “if the defendant had not exaggerated to Alliance, I would not have suffered such further loss from having a larger sum deducted”. It seems to me it is such further loss that the plaintiff is seeking to hold the defendant liable. 51.Thus, the question of when the tortious cause of action in unlawful interference accrued should be answered by identifying when the damage that resulted from the defendant’s alleged exaggerations were real and not contingent. As such loss could only have been suffered after 18 January 2008, I do not regard Alliance’s 18 January 2008 Letter (relied on by Ms Lau even for this claim) as being relevant. It is, in my view, necessary to approach the issue by looking at post-18 January 2008 events. 52.According to Work Order no. W08-0114 dated 29 January 2008[18], Lik Sun agreed with Alliance to finish the uncompleted works for the total sum of HK$500,000. That sum was subsequently included in the settlement accounts between Alliance and the plaintiff dated 29 January 2010[19] as one of the deduction items. That said, as noted above, Ms Lau rested her time-bar argument solely and firmly on Alliance’s 18 January 2008 Letter, but not any post-18 January 2008 events. The parties also filed no affirmation evidence on the circumstances in which the aforesaid Work Order no. W08-0114 was discussed and signed. 53.It is trite that time limitation only bars the remedy but not the legal right, and it only has effect if it is specifically raised (see Ronex (supra) per Donaldson LJ at 404D-E). In circumstances where the defendant did not expressly rely on any post-18 January 2008 events in support of his time-bar argument, and in the absence of relevant evidence on when and how the alleged exaggerations were made by the defendant to Alliance, I do not consider it appropriate for this court to take it upon itself to formulate such a limitation argument on the defendant’s behalf. 54.For these reasons, I am not persuaded that the defendant has discharged his burden to show it is plain and obvious that the plaintiff’s tortious claim in unlawful interference was time-barred on 13 January 2016. In view of my findings at §48 above, I hold that the defendant succeeds on Ground 1 only to the extent of the breach of contract and negligence claims. Ground 2 – Estoppel and res judicata 55.Ground 2 is based on “estoppel and res judicata”. As will become apparent below, it is important to first ascertain the precise nature of this ground, ie whether the defendant is relying on (i) res judicata in its “narrow sense” (a bar to relitigate in subsequent proceedings a claim which had been adjudicated upon in earlier proceedings) or (ii) res judicata in its “wider sense” (an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings). 56.A convenient starting point is the Striking Out Summons itself. Ground 2 is stated under paragraph (1)(ii) as follows:-
57.In the defendant’s supporting affidavit[20], Ground 2 is set out under a long subheading “Plaintiff sued me in the Small Claim Tribunals of HKSAR – SCTC 18841 of 2014; SCTC 26726 of 2014, SCTC 27747 of 2015, and SCTC 42521 of 2015 which amounted to abuse of Court Process and is refrained by the legal principles of estoppel and res judicata”. In the paragraphs following[21], the defendant levelled various attacks to the effect that certain part of the Statement of Claim overlapped with claims previously made and adjudicated upon before the Small Claims Tribunal. 58.In the defendant’s reply affidavit[22], he re-emphasized that the plaintiff’s cause of action in contract and tort accrued on 18 January 2008 and not 16 January 2010 (Ground 1), and additionally argued that Annex 1 to the Draft AmSOC was unclear and “embarrassing” (Ground 4). Nothing further was said on estoppel or res judicata (Ground 2). 59.On these materials, one would perhaps think that Ground 2 is based only on the “narrow sense” of res judicata. As the Draft AmSOC had removed all the former overlaps (as Ms Lau confirmed at the hearing), it was of some surprise to this court that Ms Lau had continued to press Ground 2 in her skeleton arguments by contending that the plaintiff could and should have brought the intended claims in 2014 and 2015 (ie when the Small Claims proceedings were launched). It would appear that the focus of the defendant’s argument had shifted from the “narrow sense” to the “wider sense” of res judicata, as confirmed by the cases Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 and Wong Chi Ching v Bocom Int’l Holdings Co Ltd [2016] 2 HKC 584 cited in support. 60.The principles on the “wider sense” of res judicata, also known as “Henderson v Henderson abuse”, were authoritatively set out by Ma CJ in Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at §§82-83:-
61.In Chiang Lily v Secretary for Justice [2009] 6 HKC 234, Ma CJHC (as he then was) also explained that the party alleging this form of abuse has to demonstrate two elements: there exist matters that could and should have been litigated in earlier proceedings. The learned judge emphasized that just because a point could have been raised in earlier proceedings did not of itself mean that it should have been raised, drawing on what Lord Bingham had said in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31A-E:-
62.Thus, unlike the “narrow sense” of res judicata, the focus of enquiry in the “wider sense” of the doctrine rests on ascertaining whether there has been any abuse of process, by taking into account all relevant circumstances and balancing competing interests. It is incumbent upon the party seeking to demonstrate why, based on all the relevant facts, the other party was guilty of abuse. In the context of a striking out, the one alleging abuse bears the burden to show that it is plainly and obviously so. Even if a claim could have been brought in earlier proceedings, the court should generally look into, for instance, whether the claim should have been brought earlier and whether there has been any special circumstances. 63.In both her written and oral submissions, Ms Lau only made the point that the plaintiff could have brought the amended claims earlier. As noted above, this was only one of the two elements required on the defendant’s part in showing this form of abuse. Ms Lau made no argument on why the plaintiff should have made the claims earlier. There was also no evidence before this court as to why the plaintiff did not do so earlier. 64.That was, in my view, hardly surprising. As pointed out above, there had been no hint that the defendant was relying on the “wider sense” of res judicata in any of his papers filed for the striking out, until Ms Lau lodged her skeleton argument just prior to the hearing. Such last-minute change of tack, if I may say, was unsatisfactory. In my view, this amounted to a breach of the requirement for an applicant for striking out to clearly specify its complaints (see HKCP (2017) Vol 1 §18/19/3 at (3)). 65.In all the circumstances, bearing in mind the requisite high threshold for a striking out, I am not satisfied that this is an appropriate case for me to entertain Ground 2 as belatedly formulated by Ms Lau. Even assuming I were to go into the merits, I do not consider that there was sufficiently clear evidence to demonstrate that the plaintiff was guilty of abuse of process. Therefore, Ground 2 must fall to be rejected. Ground 3 – Amendments substantially different 66.Ground 3 was not one of grounds identified in the Striking Out Summons, the defendant’s supporting affidavits or even Ms Lau’s skeleton submissions. It was raised at the hearing for the first time. That said, Mr Ng took no issue with the defendant relying on this ground. 67.In support of Ground 3, Ms Lau referred to the case of Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd [2012] 4 HKLRD 474, in which the Court of Appeal held , following Sun Focus Investment Ltd v Tang Shing Bor [2012] 1 HKLRD 738 (per Kwan JA at §21, with whom Fok JA and Lam J, as they then were, agreed), that:-
68.Relying on the above principle, Ms Lau submitted that the proposed amendments in the Draft AmSOC were based on substantially new facts, and granting leave for such amendments would mean the plaintiff could get around an issue of time-bar. Specifically, the pleas said to offend that principle are paragraphs 6A, 6B and Annex 1 of the Draft AmSOC (re: the First Amended Claim) and paragraphs 6D, 6E and 7(1)-(4) and (7) of the Draft AmSOC (re: the Second Amended Claim). 69.On the other hand, Mr Ng submitted that those paragraphs contained nothing new. He pointed out that both the complaints against the quality of the defendant’s works (under the First Amended Claim) and the defendant making exaggerations to Alliance (under the Second Amended Claim) were pleaded in the Statement of Claim. 70.In my view, even before going into the issue of whether the amendments Ms Lau identified contained substantially new facts, it is necessary to first consider whether allowing such amendments would really deprive the defendant of an accrued limitation defence. If the answer is no, the above principle from Global Bridge would not even be engaged. 71.On the First Amended Claim, in the light of (i) Mr Ng’s concession that the cause of action in breach of contract was time-barred when the writ was issued, and (ii) my above finding that the proposed cause of action in negligence would likewise be time-barred, it is in my view unnecessary to have resort to Global Bridge. There is no question of the defendant being deprived of any accrued limitation defence. 72.Regarding the Second Amended Claim, it was Ms Lau’s own argument (under Ground 1) that both the First and Second Amended Claims were time-barred on the date of writ. Such argument does not sit well with her suggestion that the defendant would be “deprived” of a limitation defence if the proposed amendments were to be allowed. As I pointed out above, the defendant has not raised any relevant limitation defence (ie one based on post-18 January 2008 events) in any event. It therefore follows that the principle from Global Bridge also does not apply. 73.Even if I were to assume the defendant does have an arguable limitation argument that would be deprived by allowing in the Second Amended Claim, I would agree with Mr Ng that the proposed amendments are not based on new facts, but originate factually from the “exaggeration claim” pleaded in paragraph 7 of the Statement of Claim. 74.For these reasons, I would also reject Ground 3. Ground 4 – “Embarrassment” 75.The complaint of embarrassment under Ground 4 is premised solely on the defendant’s assertion that, given the way they are pleaded, he was unable to relate the 25 items of works listed in Annex 1 to the Draft AmSOC to the works he carried out under the subcontracts[23]. At the hearing, Ms Lau described this ground as “only a small point”. 76.Annex 1 consists of an itemized list of works which, according to the plaintiff, the defendant had either completed late, or failed to complete altogether. The description of each item comprises the nature, location and/or the problem of the work concerned. 77.Having considered the entirety of the Annex 1, I consider that the plaintiff had provided a reasonable level of particulars on each item of complaint. I am unable to accept the defendant’s evidence that he “did not know if these were works actually carried out by [him] and/or works I got paid for by the Plaintiff”. This is particularly so given that the defendant can normally be expected to keep records on what exactly he has done. 78.With respect, the fact that it might take some time for the defendant to verify the facts pleaded in Annex 1, coupled with perhaps a request for further and better particulars, simply does not make those pleas “embarrassing”. As Ms Lau rightly accepted, parties must not be too ready to find themselves embarrassed (see HKCP (2017) Vol 1 §18/19/8). 79.Ground 4 therefore also fails. Disposition 80.For all of the above reasons, I grant leave to the plaintiff to make the draft amendments set out in the Draft AmSOC in relation to its tortious cause of action in unlawful interference, but refuse leave for the remaining amendments in relation to breach of contract and negligence. I also order such parts of the Statement of Claim specific to the plaintiff’s pleaded cause of action in breach of contract to be struck out. 81.I further direct that the plaintiff do prepare a revised form of the Draft AmSOC and a set of draft consequential pleadings directions in accordance with my above decision. Such directions should cover the relief sought in paragraph (2) of the Striking Out Summons to the extent necessary. The parties should try and agree on these matters and lodge the same for this court’s approval within 14 days from the date of handing down. If no agreement is possible, the parties do have liberty to apply. 82.Adopting the approach laid down in Lessy SARL v Pacific Star Development Limited & Anr [1996] 2 HKLR 1 per Yam J, I order that, on a nisi basis, the costs of the Striking Out Summons and the Amendment Summons including all costs reserved (if any) be to the defendant in any event to be taxed if not agreed, save that 65% of the costs of the hearing held on 25 January 2017, with certificate for counsel, be to the plaintiff in any event to be taxed if not agreed. The 35% deduction from the plaintiff’s costs of the hearing reflects its partial failure in resisting Ground 1, which took up more time than the other grounds at the hearing. The defendant’s own costs shall be taxed in accordance with the Legal Aid Regulations. 83.I thank Mr Ng and Ms Lau for their helpful and succinct submissions.
Mr Ernest CY Ng, instructed by P H Chin & Co, for the plaintiff Ms Lorinda Lau, instructed by Raymond Luk & Co, assigned by the Director of Legal Aid, for the defendant [1] First Affirmation of Chung Chun Ho filed on 7 December 2016. [2] Paragraphs 6 and 7, Statement of Claim. [3] Paragraph 8, Statement of Claim. [4] Paragraphs 6 to 6C, Draft AmSOC（“被告人的違約和侵權行為”）. [5] Paragraphs 6D to 7A, Draft AmSOC（“被告人的進一步侵權行為，即非法手段引致損失”）. [6] Paragraphs 3 and 4, Draft AmSOC. [7] Paragraphs 4A and 5, Draft AmSOC. [8] Paragraph 5B, Draft AmSOC. [9] Paragraphs 6, 6A and 6B, Draft AmSOC. [10] Annex 1（“附件一”）, Draft AmSOC sets out 25 items which the plaintiff alleges that the defendant failed to complete on time or at all. The plaintiff’s loss resulting from each such complaint is pleaded as “to be assessed” （“有待評估”）. [11] Item nos. 12, 13, 14, 15, 16, 23, 24 and 25 of Annex 1, Draft AmSOC. [12] Paragraphs 6D and 6E, Draft AmSOC. [13] Paragraph 4, Reply and Defence to Counterclaim. [14] In paragraph 13 of his Skeleton, Mr Ng suggests that the defendant was not pursuing the limitation ground against the unlawful interference claim. I do not think this is correct. According to Ms Lau’s Skeleton, the defendant’s argument was made against both the claims in contract and “tort” (see paragraph 20), and the unlawful interference claim was included under the “tortious claim” (see paragraph 14(b)). [15] Paragraphs 7 and 13, P’s Skeleton Submissions. [16] Paragraph 6B, Draft AmSOC, cited at §24(e) above. [17] Paragraph 10.2, the plaintiff’s Skeleton Submissions. [18] B/230. [19] B/260. [20] Affirmation of Ko Wai Sun filed on 17 October 2016. [21] In particular, paragraphs 23, 27, 31 and 37. [22] 2ndAffirmation of Ko Wai Sun filed on 21 December 2016. [23] Paragraphs 10 to 11, 2nd Affirmation of Ko Wai Sun. |
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