Happy Dynasty Ltd. v. Wai Kee (Zens) Construction & Transportation Co. Ltd. and Others and Dyno Wesfarmers (HK) Ltd. (Third Party)

CACV000068A/1998

CACV68/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 68 OF 1998

(On appeal from High Court Construction List No. 41 of 1995)

(By Counterclaim)

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Coram : Hon. Godfrey, Leong & Rogers, JJ.A. in Court

Date of Hearing : 7 September 1999

Date of Decision : 7 September 1999

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D E C I S I O N

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Rogers, J.A. :

1. This is the order in respect of this appeal. I would just mention at the commencement that there was no need for any Notice of Motion because this was a hearing to settle the terms of the order on the appeal and the matter should simply have been restored to the list.

2. That said, the order below will be set aside and the following orders will be made :-

(1) That the action against the 1st Defendant be dismissed.

(2) That the 1st Defendant's costs of the action and its appeal be paid by the Plaintiff to be taxed, if not agreed.

(3) That there be a declaration that the 3rd Defendant is liable to pay the Plaintiff the several sums of $1,148,412, $411,180 and $3,000 amounting to $1,562,592, together with interest thereon from the date of the writ up to 2nd April 1998 at the judgment rate.

(4) That the counterclaims of the 1st and 3rd Defendants be dismissed.

(5) That an inquiry be made, that is to say, an inquiry as to what proportion of the $20 m referred to in the pleadings is, in all the circumstances, fair and reasonable for the 3rd Defendant to allow the Plaintiff and an order that the 3rd Defendant do pay to the Plaintiff the sum certified under the inquiry to be due from the 3rd Defendant to the Plaintiff.

(6) The 3rd Defendant's costs of the action, down to and including the 18th day of the trial, that is, 17th October 1997 be paid by the Plaintiff to be taxed, if not agreed.

(7) That the Plaintiff's costs of the action thereafter be paid by the 3rd Defendant to be taxed, if not agreed.

(8) That the Plaintiff's costs of the counterclaims be paid by the 1st and 3rd Defendants to be taxed, if not agreed.

(9) That there be no order as to costs of the appeal.

(10) That the Plaintiff do pay within 28 days into Court the difference between $6 m and the sums referred to in paragraph 3 hereof, together with interest at the judgment rate from 2nd April until the date of payment.

(11) That the costs of today be costs of the appeal.

3. Finally, I should mention and this is not part of the order that we do not see any sufficient reason why the inquiry should not be held by Yam, J.

Representation:

Mr. Peter Graham instructed by M/S Boase Cohen & Collins as agent for M/s Drivers for Plaintiff (Respondent)

Mr. Michael Thomas, S.C. instructed by M/S Mallesons Stephen Jaques incorporating Bateson Starr for 1st & 3rd Defendants (Appellants)