Greater Hero Ltd v. Force Way Engineering Ltd

HCA 1152/2020

[2020] HKCFI 2459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1152 OF 2020

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BETWEEN

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Before:  Deputy High Court Judge Rachel Lam SC in Chambers

Date of Hearing:  17 July 2020

Date of Written Submissions:  24 July, 13 and 20 August 2020

Date of Statement of Costs:  24 July 2020

Date of Decision:  23 September 2020

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D E C I S I O N

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1.This matter came before me on 17 July 2020.

2.By Summons dated 10 July 2020 (“the Summons”), the Plaintiff had originally sought an interlocutory injunction requiring the Defendant to hand over and vacate the property at Nos. 1-3 San Lau Street and 2 Shek Tong Street, Kowloon (“the Site”).

3.By the time the matter was first heard on 17 July 2020, the Defendant had handed over the Site back to the Plaintiff. In the circumstances, the Plaintiff agreed not to press ahead with the injunction application and sought no order on those parts of the Summons. The only issue outstanding was that of costs.

4.As at the date of the hearing, Mr Wong Yiu Wah, a director of the Defendant, had not yet formally sought leave to represent the Defendant company. I thus adjourned the matter in order to enable him to seek such leave, and gave directions for further conduct of the matter by way of written submissions.

5.Both the Plaintiff and the Defendant since have filed their respective submissions on costs. The Defendant has also filed a short affirmation with certain correspondence and other documents attached thereto.

6.In short, the Plaintiff seeks its costs of and occasioned by the Summons, as well as of the hearing on 17 July 2020.

7.Having considered the relevant materials, for the reasons briefly stated below, I have decided to award the Plaintiff its costs of and occasioned by the Summons, as well as the hearing on 17 July 2020.

8.First, I agree with Counsel for the Plaintiff Mr Solomon Lam’s submissions that the Summons was warranted and reasonable, and the Plaintiff’s conduct thereafter had similarly been entirely reasonable.

9.The Plaintiff was the registered owner of the Site, and the Employer in a building project thereon. The Defendant had been awarded the main contract works on 16 March 2016 (“the Contract”). The project did not proceed smoothly, and both sides had complaints against the other. In particular, the Defendant complained that the Plaintiff had failed to pay promptly for works carried out (a theme which is repeated in the Defendant’s submissions and evidence filed in relation to costs). What is clear, however, is that a certificate of practical completion had been issued in April 2020, and the Plaintiff (and also the architect of the project) had, prior to lodging the present application, issued correspondence determining the employment of the Defendant and repeatedly requesting the Defendant to vacate and hand over the Site, but to no avail.

10.At no juncture did the Defendant put up any cogent or even arguable defence in answer to the Plaintiff’s allegations. Whilst there were complaints that the Plaintiff had failed to tender payment on the contract and/or was using the termination as an excuse to force the Defendant off the Site, as Mr Lam has clearly pointed out in his submissions dated 14 July 2020, disputes over payment do not preclude a registered owner obtaining access to the Site. Even on the terms of the Contract, the only relevant remedies available to the Defendant would have been monetary or contractual relief in any event. There was never any basis for the Defendant to remain on the Site. (Reference may be made to inter alia The Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v Henble Limited HCA 2844/2003 (unreported decision dated 8 August 2003) at §§14-17; Times Square Ltd v Lee Kwun Kit t/a JL Music & Anor [2019] HKCFI 1641 at §§18-20; Hong Kong Housing Society v Hing Lee Construction Co Ltd HCA 4745/1998 (unreported decision dated 3 April 1998).

11.Second, a perusal of the without prejudice save as to costs correspondence further shows that:

(a)  Even on 14 July 2020 (ie three days before the 17 July 2020 hearing), the Plaintiff had offered to the Defendant that if the Site were to be handed over by 16 July 2020, they would consider settling the Summons by way of Consent Order with no order as to costs.

(b)  However, even up to 16 July 2020 (ie one day before the 17 July 2020 hearing), the Defendant refused to hand over the Site to the Plaintiff.

(c)  In the evidence and submissions filed by the Defendant subsequent to the 17 July 2020 hearing, there was a suggestion

that the Defendant had prevented the Plaintiff from entering the Site because the Plaintiff did not have the requisite insurance coverage. However, that is a non-starter in light of the fact that the Plaintiff as owner of the Site is entitled to possession thereof.

12.The parties were thus required to attend before me at the hearing on 17 July 2020 in the circumstances set out above, and costs were incurred accordingly.

13.The evidence and submissions filed by the Defendant thereafter did not improve its position. It remains the case that no arguable basis for contesting the Summons had been put up. Whilst there may very well be disputes on outstanding payments and the contract itself, this would not have been a cogent basis for contesting the interlocutory injunction application. I will make no further observations on those aspects since these are not of any immediate relevance to the injunction application. It will be for the Defendant to consider whether and how to take this up with the Plaintiff via the appropriate channels.

14.In the circumstances, the Plaintiff is awarded its costs of occasioned by the Summons, as well as the costs of the hearing on 17 July 2020. Such costs are summarily assessed at HK$150,000.

15.I thank Mr Lam for his assistance.

Mr. Solomon Lam and Mr. Matthew Cheung instructed by H. Y. Leung & Co. LLP, for the Plaintiff

Defendant appearing in person