Hydrotech Waterproofing Solutions Ltd v. Shun Yuen Construction Co Ltd

HCCT 44/2020

[2021] HKCFI 2785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 44 OF 2020

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BETWEEN

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Before:  Hon Mimmie Chan J in Chambers (Open to Public)

Date of Hearing:  14 September 2021

Date of Decision:  14 September 2021

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D E C I S I O N

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1.With the trial of this action which was set down by directions made on 12 January 2021 and which is scheduled to start on 27 October 2021, there must be a good explanation for the Plaintiff’s delay in making its application for leave to amend the Statement of Claim and the Reply.

2.No explanation was furnished by affidavit filed with the summons.

3.The Plaintiff only argued that the amendments are made as a result of the Defendant’s disclosure and witness statements, concerning matters known to the Defendant which, the Plaintiff claims, should not require further factual investigation or disclosure.

4.Unless and until the pleadings are properly amended, unpleaded matters raised in witness statements are irrelevant for trial and do not require to be dealt with for purposes of discovery or particulars.

5.I am not satisfied that it is fair to permit the Plaintiff to introduce, 9 weeks before trial, new claims in reliance on the actual and/or apparent authority of Jetrod or Mr Wilson Chan, or to seek an  alternative remedy of quantum meruit in respect of the work done, when the Plaintiff’s pleaded case until now has always been on the basis of the existence of a contract made between the Plaintiff and the Defendant, and that the sum claimed for the Plaintiff’s work is contractual.  Even at the pretrial review, the Court was assured that no expert evidence is required on quantum, nor as to the reasonableness of the amounts claimed.  To introduce a claim on quantum meruit would call into question the value of the work done on the basis of its reasonableness or on market rates.

6.I also agree that even as pleaded in the draft amendments, the claims of agency and on actual and on apparent authority are totally unparticularized.

7.As for the proposed amendment to the Reply, to plead deceitful conduct and possible criminal liabilities for the Defendant, its employees and representatives, are serious allegations and they require answers and further and better particulars, and are totally unjustified at this late stage.  To allow them will only distract from the main issues for determination at trial and result in prolonging the trial on peripheral matters.  The trial was fixed for 3 days on the basis of the issues defined in the original pleadings, namely the simple issue of whether there was a contract made between the Plaintiff and the Defendant in the manner pleaded by the Plaintiff.

8.I do not agree that the Defendant will not be prejudiced by this late amendment which necessarily disrupts its preparation for trial.  In Tsang Wai Fun v Hui Siu Kwong HCMP 409/2016, 12 April 2016, the Court of Appeal rejected the argument that because costs could adequately compensate the defendant, any late and unjustified application can be made.

9.The Plaintiff’s reliance on Order 1B rule 2 (2)  overlooks the fact that the primary aim in exercising the powers of the court is to secure the “just” resolution of disputes in accordance with the substantive rights of the parties.  Bearing in mind that this late application defeats nearly all of the underlying objectives set out in Order 1B rule 1, and the emphasis made since the CJR that there must be early preparations for trial, the fact that the Court has to resolve the substantive rights of the parties cannot displace the requirement that these rights have to be resolved justly. Requiring the Defendant in the remaining weeks to trial to review its pleadings and witness statements, and to prepare the evidence and make the incidental applications as necessary for particulars and discovery on the claims introduced by the Plaintiff is simply not fair, when the Plaintiff has been sitting on the matter since the close of pleadings, the exchange of witness statements and the directions for trial made in January 2021.

10.The application for amendment is refused, save for those parts of the amendments consented to by the Defendant.  The costs of and incidental to the application are to be paid by the Plaintiff to the Defendant with certificate for one counsel.

Mr Mohammed Talib (Solicitor Advocate), of Pinsent Masons, for the plaintiff

Mr Phillip Rompotis and Mr Josh Baker, instructed by MinterEllison LLP, for the defendant