Colmat Construction and Engineering Co Ltd v. Minmetals Condo (Hong Kong) Engineering Co Ltd
Read the full judgment text of HCCT 36/2018 on BabelCite. This High Court CFI judgment was delivered on 2 September 2021 before Hon Mimmie Chan J.
Construction and Arbitration Proceedings — Consolidated actions HCCT 36/2018 & HCCT 37/2018 — Post-judgment corrections — Costs and interest — Application of Order 20 rule 11 to correct clerical slips — Corrected judgment sums aligned with expert evidence and court’s manifest intention — Enhanced interest and costs under Order 28 rule 24 awarded due to Plaintiff's failure to respond to Defendant’s sanctioned offer — Order 22 rule 23 applied to apportion costs between pre and post sanction offer periods — Plaintiff liable to pay net judgment sums and partial Defendant's costs — Draft judgment order to reflect corrected sums and costs. The Court clarified limits on permissible corrections and confirmed the appropriateness of enhanced interest given the litigation conduct. Final orders include corrected monetary awards, specified interest rates, and costs allocation reflecting parties’ relative success and conduct.
Legal issues: Correction of accidental slips in judgment sums · Application for enhanced interest and costs under Order 28 rule 24 · Costs orders relating to pre and post sanctioned offer periods · Scope of permissible corrections under Order 20 rule 11
Outcome: Plaintiff liable to pay net sum to Defendant; certain monetary errors in judgment corrected; enhanced interest and costs awarded to Defendant; costs orders specified for periods before and after 13 November 2020.
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HCCT 36/2018 & HCCT 37/2018 [2021] HKCFI 2591 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 36 OF 2018 ______________ BETWEEN
______________ AND CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 37 OF 2018 ______________ BETWEEN
______________ (consolidated pursuant to the Order made by the Honourable Madam Justice Mimmie Chan dated 6 July 2018 and HCCT 36/2018 being the leading action) Before: Hon Mimmie Chan J in Chambers Dates of Written Submissions on Costs and on Order 22: 16 and 24 August 2021 Date of Decision: 2 September 2021 _______________ D E C I S I O N _______________ Background 1.On 26 July 2021, this Court handed down its Judgment. By paragraph 195, the parties were directed to agree and submit for approval a draft judgment order which sets out the parties’ respective entitlement to the sums claimed in the original action and by counterclaim, and allowed by the Judgment, together with written submissions on costs. 2.The parties made separate submissions as to the amounts which ought to be included or allowed. By further directions issued on 17 August 2021, this Court notified the parties that only submissions on obvious typographical or other errors or omissions of the type mentioned in Order 20 rule 11 RHC, as to the expression of the manifest intention of the Court, may be considered. 3.On 24 August 2021, the Defendant made submissions as to the amounts to be corrected. The following are my findings on the submissions. Q 020 4.I accept that the sum of $126,508.50 at paragraph 117 of the Judgment is an accidental slip. The intention of the Court, as apparent from paragraphs 116 and 117 of the Judgment, was to allow the claim as per the Expert’s evidence (at paragraph 5.22.15 of his report at C-159), namely the daily rates of metal workers without any add-on for tools, in the sum of $14,950. CC 03, 05, 07, 09, 10, 21 and 24 5.I also accept that the intention of the Court, as apparent from reading paragraph 160 of the Judgment and paragraphs 8.1.1 and 8.1.2, and page C-333 of the Expert report, is to allow the sum of $324,017.50, such that the reference to $87,328.25 at the end of paragraph 160 should be $324,017.50. CC 08, 11 and 20 6.The finding made by the Court was to allow the contra charge for the 84 sets of deformed washers, “at the average daily wages of metal workers engaged in the public sector construction projects as published by the Census and Statistics Department”. That was again on the basis of the Expert’s report. 7.The rate of $2,531.76 proposed by the Plaintiff, if different to what was allowed by the Court, cannot be substituted under Order 20 rule 11. What the parties separately agree for enforcement is a separate matter. CC 18, 19, 23 8.I accept that on reading paragraph 176 of the Judgment, the manifest intention of the Court is to accept the Expert’s 2nd alternative valuation at paragraph 8.4.22 of his report, and according to paragraph 8.4.22, the correct sum is $920,836.16 (and not $837,534.89). CC 06 9.It appears that CC06 was not expressly dealt with in the Judgment. It would not be within the scope of Order 20 rule 11 for the Court to further consider or deal with this omission. 10.Again, as stated above, what the parties can agree is a separate issue. Interest 11.In view of the sanctioned offer of $6 million made by the Defendant on 16 October 2020, and having considered the time of the offer, the information available at the time of the offer, and the Plaintiff’s failure to respond to the sanctioned offer and to ultimately beat the sanctioned offer of $6 million, I accede to the Defendant’s application for enhanced interest and costs under Order 28 rule 24 (2) to (4). 12.Interest on the judgment sum is to be paid at prime rate +1% per annum from the date of service of the Writ on 4 June 2018 until 13 November 2020, and at 2% above judgment rate from 13 November 2020 until 26 July 2021 (the date of the Judgment). Costs 13.On the question of costs, the Defendant pointed out that the Plaintiff’s total claims in the action were approximately $19 million, and the Defendant’s counterclaim was approximate to such sum. Under the Judgment, the Plaintiff is liable to pay a net sum to the Defendant. 14.There are however sums included in the Scott Schedule which were agreed before the commencement of trial, and hence not dealt with in the Judgment. The Plaintiff argued that it was successful in 31 out of 43 variations claimed, whereas the Defendant was successful in 22 of the 25 contra charges claimed against the Plaintiff. The Plaintiff argued that there should be no order as to costs in the action. 15.On its part, the Defendant seeks 80% of its costs incurred before 13 November 2020, costs on indemnity basis after 13 November 2020, and interest on costs at half of the enhanced interest rate. 16.Order 22 rule 23 (5) states that the Court shall make the orders for costs on indemnity basis and interest on the costs referred to in rule 23 (4), unless it considers it unjust to do so. Rule 23 (6) sets out the circumstances to be considered by the Court. 17.Bearing in mind that the sanctioned offer was made 2 months before the commencement of trial, and the fact that the Plaintiff never responded to the offer, nor sought any information to evaluate the offer made by the Defendant, I can find no factor which can render it unjust to make the orders provided for in rule 23 (4). 18.I bear in mind however the observations made in the Judgment as to the lack of proper evidence presented by both the Plaintiff and the Defendant in the substantiation of their respective claims. I consider it necessary to reflect this in the order of costs in the proceedings. 19.In all the circumstances, the order for costs would be for the Plaintiff to pay 50% of the Defendant’s costs of the action up to 13 November 2020 (since the Defendant is the overall “winner”), whereas the Defendant is to be paid its costs on indemnity basis after 13 November 2020 (pursuant to Order 22 rule 23), with interest on such costs at half of the enhanced interest rate. 20.The costs of the application on interest and costs are to be paid by the Plaintiff to the Defendant on party and party basis. 21.The draft judgment order should be drawn up and filed within 7 days for approval, including the sums in the Scott Schedule which were not disputed by the parties (and hence not dealt with in the Judgment), and the sums allowed under the Judgment (as amended above).
Fung Wong Ng & Lam LLP Solicitors, for the plaintiff Mr Calvin Cheuk, instructed by Wong & Lawyers, for the defendant | ||||||||||||||||||||||||
Further hearings and rulings under HCCT 36/2018