Converge Design and Construction Co Ltd v. Mount Kelly International Ltd

HCCT 72/2018

[2021] HKCFI 1908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 72 OF 2018

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Before:  Hon Mimmie Chan J

Dates of Written Submissions:  17, 24 and 28 June 2021

Date of Ruling:  30 June 2021

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R U L I N G

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1.In the Judgment handed down on 3 June 2021, this Court directed submissions to be filed on the interest payable by the Defendant on the judgment sum awarded.

2.Having read the parties’ written submissions, my finding is that the Defendant should pay:

(1)   enhanced interest on the judgment sum at the rate of 5% above judgment rate from 29 June 2019, the expiry date of the 1^st sanctioned offer made by the Plaintiff, until the date of judgment;

(2)   interest on the judgment sum at prime rate plus 1% per annum from the date of service of the writ on 7 November 2018 until 28 June 2019 (the last day of acceptance of the Plaintiff’s 1^st sanctioned offer), and at judgment rate from the date of judgment until payment;

(3)   interest on costs (of both the action and of the counterclaim) at half of the enhanced interest rate provided for in (1) above.

3.The date from which enhanced interest is awarded should be the latest date by which the Defendant could have accepted the Plaintiff’s 1^st sanctioned offer. That offer was made after the 1^st case management conference which was held on 30 May 2019. I do not accept that there are “complex issues on liability and quantum”, as alleged by the Defendant. The Defence and Counterclaim was made without evidential basis, as apparent at trial and as pointed out in the Judgment. The expert report only supported and highlighted the lack of evidence. If the Defendant had, on receipt of the 1^st sanctioned offer, considered that it required any particular information to evaluate and respond to the offer, it could have asked for same but it failed so to do. There was no response at all to the sanctioned offer.

4.Having regard to the issues raised in the pleadings, the entire lack of evidence to substantiate the Defence and Counterclaim as pleaded, the manner of conduct of the Defence including the lack of response to the sanctioned offers, the amount of the sanctioned offer and the judgment sum awarded, there is nothing unjust in ordering the costs and other consequences provided for in Order 22 rule 24, and I consider that 5% above judgment rate is a fair and just rate.

5.The Defendant is to pay the costs of this application for interest.

Mr Adrian Leung, instructed by Wong & Lawyers, for the plaintiff

Mr Desmond Leung and Mr Adrian TY Wong, instructed by MB Kemp LLP, for the defendant