The Incorporated Owners of Shun Chi Court v. Citi-pro Property Services Company Ltd

HCA 2237/2019

[2023] HKCFI 885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2237 OF 2019

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BETWEEN

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DECISION

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1.The plaintiff claims against the defendant, the former management company of the plaintiff’s housing block, for breach of contract in that the defendant allegedly failed to provide the agreed number of personnel for station on site the plaintiff’s housing block during the service period. The plaintiff claims for alleged contractual liquidated damages or as an alternative effectively overpayment. The claim (as tabulated in the schedule to the statement of claim) is quantified by the alleged shortfall in the number of personnel for station on site according to the attendance records of the defendant.

2.The trial commenced today. This is the defendant’s application to adduce further documentary evidence. This court was not made aware of such intended application until the case opened this morning.

3.The plaintiff opposes, and for that counsel for the plaintiff provided his written submission in opposition this morning.

The principles

4.The principles have been set out and discussed in numerous decided cases. Kinetics Medical Health Group Company & Ors v Dr Tse Ivan Cheong Yau, HCA 1115/2010 (30 April 2013) cited by counsel for the plaintiff was one of those. Counsel for the defendant made no submission or produced any authority to dispute the correctness and applicability of those principles. The court has to consider whether it is appropriate in the circumstances of the case to exercise the discretion to allow or disallow the application or any part of it.

The application

5.The documents in question fall into two categories: (i) letters between the parties’ legal representatives between 20 August and 26 October 2018; and (ii) email correspondence dated between May and August 2018 and between the defendant and Mr Chu Wah Tak (“Chu”), a witness for the plaintiff.

6.Perhaps what matters more than the obvious lack of a summons is the lack of an affirmation in support from the defendant explaining: (i) to what issues such documents sought to be adduced are said to be relevant and necessary; and (ii) why they could not have been disclosed and adduced until the first day of the trial without even prior notice to the court.

7.Counsel for the defendant advanced the application only verbally.

The letters between the legal representatives

8.Counsel explained that the copies of correspondence sought to be adduced are relevant to the defendant’s contention that the plaintiff’s calculation of its claim is wrong. The calculation is wrong because the attendance records, on which the calculation is based, are said to be wrong or inaccurate. The defendant seeks to adduce the correspondence whereby the plaintiff itself pointed out to the defendant errors in the attendance records. An example was pointed out concerning the record for May 2018 with copies of the relevant monthly duty roster and time cards of the personnel enclosed. The correspondence ended with the plaintiff’s letter requesting for a full set of certified or approved attendance records from the defendant. Counsel for the defendant confirmed that the other issues mentioned in the correspondence and the other enclosures are not relevant and will not be relied on.

9.There is no dispute that the attendance records in issue are those supplied by the defendant to the plaintiff under cover of the letter dated 2 August 2018. These are the only attendance records disclosed and referred to by the parties for their respective pleaded cases. As a matter of pleading, issue is taken as to the correct interpretation of the contractual terms between the parties in respect of the provision of personnel stationed on site during the period of service. Based on its contention in respect of the correct contractual interpretation, the defendant worked out its table of stationing of personnel on the site and at the office of the defendant during the service period. Still such number of staffs were derived from the same attendance records mentioned above. See §§7 and 7A of the amended defence. Note that the paragraphs were specifically introduced by way of amendment after this court pointed out during the pre-trial review the obvious lack of alignment between the then pleaded case of the defendant and the oral evidence intended to be adduced by way of its witnesses’ statements.

10.Other than the above, the defendant just put the plaintiff to strict proof of the accuracy of the calculation set out in the plaintiff’s schedule to its pleading mentioned above. See §7B of the amended defence, which was also newly introduced by way of amendment after the pre-trial review.

11.All along and despite the aforesaid amendment with specific reference to the attendance records, the defendant has never raised any issue as to the accuracy of the attendance records, not to mention how they were allegedly inaccurate. In answering this court’s question, counsel for the defendant added that there should be other accurate attendance records, but admitted that somehow none of those has ever been disclosed or adduced. If one simply refers to the copies of correspondence now sought to be adduced by the defendant, it ended with the request of the plaintiff for certified or approved attendance records from the defendant in October 2018. There is no suggestion of any follow up on that by the defendant. In a nutshell, had such alleged other accurate version of attendance records existed, they would have already been produced to contradict those relied on by the plaintiff either in response to the plaintiff’s request in October 2018 or at the latest by now.

12.One may say that, as mentioned, even the plaintiff itself suggested in the correspondence errors in the attendance records. It would appear that this may be the reason for the defendant to seek to adduce these new documents for cross examination purpose as counsel indicated. Insofar as the defendant indeed seeks to argue that way, it is far from home dry as justification for its application. The reason is that reading the instance of error pointed out in the plaintiff’s letter (for May 2018) together with the only set of attendance records in the trial bundle as well as the schedule to the statement of claim, the so-called error is not readily apparent for one to notice, not to mention to properly understand.

13.This leads to another consideration, namely, that the documents sought to be adduced are not as self-explanatory as counsel for the defendant suggested. Proper consideration of the issue arising out of such new documentary evidence suggested by the defendant will not be meaningful without further evidence, be it oral or documentary. That counsel for the defendant indicated that he intended not to lead any additional oral evidence in chief on these documents is not an answer. Either that the documentary evidence adduced this way will have little probative value or that the plaintiff must be afforded with reasonable opportunity to deal with it in terms of its substance.

14.This lead to yet another consideration. The lack of fair opportunity for the plaintiff to be legally advised as to whether and if yes how to deal with the matters arising out of the issues to be taken by the defendant with reference to the new documents results in prejudice. Had the issue of inaccuracies of the defendant’s own attendance records been raised by pleading, the plaintiff could have considered (i) adjusting its pleading; (ii) seeking further and better particulars of such contention, which even now the defendant has never particularized; (iii) seeking further specific discovery or making own further discovery; and (iv) seeking to adduce further oral evidence.

15.Counsel for the defendant explained that the idea came about only after recent conference with lay client after counsel has come on board. That per se has for long been held to be insufficient justification. The issue of the attendance records was raised back in 2018. The defendant has always been represented by full legal team and at all times by team of two counsel including now. As mentioned, this court gave the defendant opportunity to revisit the adequacy of its pleading at the pre-trial review, and the opportunity has since been taken up. Yet the contention that the attendance records are in fact inaccurate has still not been raised. In view of the prejudice reasonably perceived, such explanation for the late application cannot be fairly accepted.

The emails

16.The email correspondence sought to be adduced by the defendant were dated between May and August 2018. Counsel for the defendant explained that they are intended to be relied on to show when the plaintiff first requested for the attendance records (and the staff/time cards). Presumably this relates to the complaint by the plaintiff about breach on the part of the defendant in providing monthly reports including the attendance records of the defendant’s personnel.

17.Again one refers to the parties’ pleaded case. The defendant denies any contractual obligation to provide the plaintiff with attendance records. Alternatively, if it was obliged to provide such records, it has done so. In any event, any breach would have been remedied by the actual provision of such records. See §6 of the amended defence.

18.As to that, the plaintiff says that the attendance records were provided by the defendant to it under cover of letter dated 2 August 2018 as mentioned above, after the plaintiff’s repeated requests and demands. The plaintiff pleads no further because it seeks no relief for such failure to provide attendance records as allegedly agreed. See §§5-6 of the amended reply.

19.In the light of the pleaded cases, whether or not the defendant was under a contractual obligation to provide at all or monthly attendance records during the service is at most a nominal dispute. The undisputed fact was that the defendant did provide the attendance records (i) only after request of the plaintiff and (ii) in August 2018. Even the plaintiff does not seek to ask the court to resolve this nominal dispute as this has no bearing on the claim actually pursued.

General credibility?

20.Last, argument was also advanced along the line of the possible need to refer to these new documents during cross examination. At one point, counsel for the defendant put it no higher than mere possibility, and even suggested to put his application on reserve depending on how the oral evidence goes. The objectionable nature of such suggestion put aside, the possible reliance on such documents at most goes to the general credibility. Suffice for me to say that such argument, which was advanced in such a way, hardly justifies late application for disclosing and adducing documentary evidence when the trial commences. Just resolution of the real dispute between the parties does not necessitate the adducing of such documentary evidence for such extent of utility as the defendant proposes.

Conclusion and order

21.All matters considered, including those specifically discussed, this court does not find it appropriate exercise of discretion to allow the application. It is therefore dismissed with costs to the plaintiff in any event to be taxed if not agreed.

[Time spent: morning session and afternoon session up to 2:50 pm]

Mr Yan Kwok Wing, instructed by Lau, Chan & Ko, for the plaintiff

Mr Patrick Chong and Mr Avery Chan, instructed by Michael Pang & Co, for the defendant