Sam Woo Bore Pile Foundation Ltd v. New Edex Construction Ltd

HCCT 26/2024

[2026] HKCFI 239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 26 OF 2024

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D E C I S I O N

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1.Introduction

1.1Before the court are the following applications:

(1)  By a summons dated 13 January 2025 (“Strike-Out Summons”), the Defendant seeks to strike out the identified paragraphs of the Statement of Claim (“SOC”) and the Amended Reply and Defence to Counterclaim (“AR&DC”);

(2)  By a summons dated 24 June 2025 (“Amendment Summons”), the Plaintiff seeks leave to amend the SOC as per the draft Amended Statement of Claim annexed (“Draft ASOC”) and directions for the filing of consequential amendments to the subsequent pleadings.

1.2At the hearing, the Plaintiff was represented by Mr Eddie SK Yeung and the Defendant by Mr Ronald Pang.

1.3In compliance with the court’s directions, a schedule (“Schedule”) has been provided to the court which identifies the relevant ground(s) under RHC Order 18, rule 19(1) relied on by the Defendant in respect of each of the impugned paragraphs which it seeks to strike out.

1.4At the hearing, the scope of the Strike-Out Summons was curtailed:

(1)  Some of the impugned paragraphs of the SOC were no longer pursued by Mr Pang or have been proposed to be deleted in the Draft ASOC;

(2)  Save as canvassed below, there was no real opposition to the Amendment Summons. As there will be consequential amendments to the Amended Defence and Counterclaim (“AD&C”) and therefore the AR&DC, counsel agreed that, save one impugned paragraph, the application to strike out the identified paragraphs of the AR&RC should be adjourned sine die with liberty to restore, no doubt for the Defendant to consider whether that part of the Strike-Out Summons remains necessary after having had sight of the consequential amendments.

1.5This is my decision on the contested parts of the Strike-Out Summons and the Amendment Summons.

2.Background

2.1These proceedings are concerned with the following 7 construction projects (collectively “Construction Projects”):

(1)  The Excavation and Lateral Support (“ELS”) and Underpinning Works for the construction project “Proposed Commercial/Residential Building at 35 Clear Watery Bay Road, Ngau Chi Wan, Kowloon” (“First Project”);

(2)  The ELS and Pile Cap Works for the construction project “Proposed Commercial Building at No 7 Lai Yip Street, Kwun Tong, Kowloon, Hong Kong” (“Second Project”);

(3)  The Earthworks, ELS and Pile Cap Works for the construction project “Foundation for Public Housing Development at Anderson Road Quarry Site R2-8 Contract No 20200348” (“Third Project”);

(4)  In respect of certain construction projects located in West Kowloon, Larch Street, Kai Tak and Wing Kwong Street, the Plaintiff employed the Defendant to deliver excavated materials to dumping site and to provide plants (respectively the “Fourth Project”, “Fifth Project”, “Sixth Project” and “Seventh Project”).

2.2The Plaintiff is one of the companies within the Sam Woo group of companies (“Sam Woo Group”). Mr Lau Chun Ming (“Mr Lau”) is the chairman of the Sam Woo Group and a director of the Plaintiff.

2.3Mr Chu Chi Leung (“Mr Chu”) is the sole director and the majority shareholder of the Defendant.

2.4According to the Agreed Chronology provided by the parties, Mr Lau first became acquainted with Mr Chu in the 1990s. In 2008, Mr Lau and Mr Chu started to have business discussions and dealings.

2.5In each of the Construction Projects, the Defendant was the Plaintiff’s subcontractor. According to the Agreed Chronology, the relevant subcontracts were awarded by the Plaintiff to the Defendant at divers times between 2014 and 2023.

2.6In these proceedings, the Plaintiff essentially seeks a final account of the Construction Projects. It is the Plaintiff’s pleaded case in the Draft ASOC that sums are due from the Defendant to the Plaintiff in respect of the First and Second Projects and sums are due from the Plaintiff to the Defendant in respect of the Third to Seventh Projects, resulting in a net sum being due to the Plaintiff. Together with four loans totaling HK$1,526,000 (“Loans”) to be taken into account in the final accounting exercise, the Plaintiff seeks to recover the pleaded outstanding sum from the Defendant.

2.7On the Plaintiff’s own case, the Loans were personal loans extended by Mr Lau to Mr Chu on four separate occasions between 2008 and 2013.

2.8Conversely, the Defendant’s pleaded case is that sums are due from the Plaintiff to the Defendant in respect of each of the Construction Projects. The Defendant counterclaims for the pleaded sum. Specifically in respect of the Loans, it is the Defendant’s pleaded case that neither Mr Lau nor Mr Chu is a party to these proceedings and the Loans “bears no relevance to this Action”. In any event, the right to recover the Loans is barred by the Limitation Ordinance Cap 347 as the present action was only commenced in April 2024.

3.The applicable principles

3.1There is no real dispute between counsel on the applicable principles.

3.2In terms of the general principles, they have been summarized at Chow Tai Fook Nominee Limited v Diamond City Limited & Anor [2021] HKCFI 3019 §39:

(1)  Applications to strike out are only for plain and obvious cases. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out;

(2)  However, plain is not the same as simple, and obvious is not the same as short. If, on a careful reading of the statement of claim, however complicated, it can be seen that there is no cause of action or the claim will obviously not succeed, then it will be struck out despite the apparent complexity;

(3)  There should be no trial upon affidavit and disputed facts should be taken in favour of the party sought to be struck out. Where the legal viability of a cause of action is sensitive to the facts, an order to strike out should not be made. However, the court should remain vigilant to ensure that its processes are not abused by the prosecution of hopeless claims;

(4)  In so far as the application is premised upon the proposition that there is no reasonable cause of action, the court must proceed on the basis that the facts alleged in the statement of claim will be established. No evidence is admissible in relation to this limb of the application and the court must address the matter simply on the basis of what is pleaded;

(5)  In so far as the pleading is alleged to be scandalous, it will only be struck out if it is degrading, indecent and irrelevant to matters which are material;

(6)  In so far as “frivolous or vexatious” is concerned, the object of the rule is to stop cases which ought not to be launched. A proceeding is frivolous when it is not capable of reasoned argument or is without foundation or cannot possibly succeed. A proceeding is vexatious when it is oppressive or lacks bona fides;

(7)  In so far as it is said that the statement of claim may “prejudice, embarrass or delay the fair trial of the action”, the court will generally give a liberal interpretation to these words but they are aimed at identifying pleadings which are unnecessary in a way which will cause undue difficulty at trial or undue difficulty to the other side because it is unable to understand the case that it has to meet. The rule is aimed at genuine embarrassment in dealing with the case or at matters which are wholly immaterial or irrelevant and which may involve expense trouble or delay in the overall resolution of the action;

(8)  In so far as “abuse of the process of the court” is concerned, this is designed to ensure that the machinery of the courts is used for bona fide purpose and is not abused.

3.3As noted at Hong Kong Civil Procedure 2026 Note 18/19/8, the mere fact that a pleading contains some unnecessary matter is not a sufficient ground for striking out so long as it is otherwise harmless. Similarly, a pleading will not be struck out unless it is clear on the face of the allegations that they are irrelevant.　 It is no part of the defendant’s duty to reform the plaintiff’s pleading; but if wholly immaterial matter be set out in such a way that the applicant must plead to it, and so raise irrelevant issues which may involve expense, trouble, and delay, then the irrelevant matter will be struck out, as it will prejudice the fair trial of the action. Also, where averments are made in the pleading which are plainly incompatible with the nature of the claim, the offending parts will be struck out.

3.4If a pleading lacks particulars, the proper course is an application for particulars to be provided, not an order for striking out: Hong Kong Civil Procedure 2006 Note 18/9/5.

3.5Where, as here, there is the extant Amendment Summons, it would be more expedient and convenient to deal with the Strike-Out Summons on the basis of the facts as pleaded in the Draft ASOC. If on that basis, the amended pleading should not be struck out, the application to amend should be allowed and the application to strike out dismissed: L Y Group Development Ltd v East Canton Ltd [2015] 4 HKLRD 84 §13.

4.The Strike-Out Summons

4.1I now deal with the impugned paragraphs of the SOC which remained the subjects of argument at the hearing.

(i)  SOC §3.2

4.2SOC §3.2 pleads the averments in respect of the Loans. SOC §3.2 was originally pleaded simply as background.

4.3However, by Draft ASOC §§3.1A and 3.2, the Plaintiff now asserts as follows:

(1)  Since December 2008, Mr Lau acting on behalf of the Plaintiff and the Plaintiff’s associated companies (ie the Sam Woo Group) and Mr Chu representing the Defendant and his other companies, reached an agreement to work together in the spirit of mutual cooperation (“Mutual Cooperation”), namely Mr Lau agreed to assist Mr Chu’s business by subcontracting some works to Mr Chu’s companies including the Defendant and the Defendant and Mr Chu’s companies committed to carrying such works with the utmost honesty in service of the Sam Woo Group;

(2)  The Loans were advanced by reason of the Mutual Cooperation;

(3)  Significantly, on 29 July 2013, an agreement was reached such that the Plaintiff could set off the Loans against any money owed to the Defendant pursuant to works carried out by the Defendant for the Plaintiff by reason that the Defendant did not have other means to repay the Loans (“Alleged Agreement”);

(4)  As pleaded at section 11 of the Draft ASOC, the Plaintiff has included the Loans in the final accounting exercise as a set off against sums due to the Defendant.

4.4As set out in the Schedule, the Defendant says that SOC §3.2 should be struck out on the grounds that it discloses not reasonable cause of action or it amounts to an abuse of process. At the hearing, Mr Pang confirmed that the abuse of process ground is based only on the argument that any attempt to recover the Loans is now barred by the Limitation Ordinance.

4.5I am unable to agree with the Defendant.

4.6First, in relation to the “no reasonable cause of action” ground, I have to proceed on the bases that the parties did operate on the basis of the Mutual Cooperation as alleged and that the Alleged Agreement was reached.

4.7For completeness, I should record that Mr Pang at the hearing for the first time made various submissions on the viability of an assignment of the Loans from Mr Lau to the Plaintiff. Quite apart from the fact that such submissions are not contained in his skeleton submissions, it is at least arguable that the Alleged Agreement constituted a variation of the terms of the Loans or a novation.

4.8Secondly, in relation of the “abuse of process” ground, whether the recovery of the Loans is barred by the Limitation Ordinance is dependent upon the terms of the Alleged Agreement. As matters presently stand, the effect of the Alleged Agreement as pleaded in the Draft ASOC is that the Plaintiff may set off the Loans against money owed to the Defendant pursuant to works carried out by the Defendant for the Plaintiff. It is also part of the Plaintiff’s pleaded case that prior to the present action, the parties did not engage in any discussion and/or negotiations regarding the final account of any of the Construction Projects. The issue of when time starts to run for the purpose of time bar in the present case is plainly fact-sensitive.

4.9For the above reasons, I decline to strike out SOC §3.2 and grant leave to the Plaintiff to amend the relevant parts of the SOC as per the Draft ASOC.

(ii)  SOC §§3.10, 5.9-5.12

4.10Draft ASOC §3.10 pleads as follows:

“…In March 2024, Mr Chu even resorted to criminal intimidation by engaging a debt collection agency to threaten Mr Lau of the Plaintiff. Consequently, the Plaintiff lodged a report at Tsim Sha Tsui Police Station on 22 March 2024 (“the Conflict”), and on 8 April 2024, the Plaintiff filed a lawsuit (the present proceedings) against the Defendant…”

4.11In other words, by Draft ASOC §3.10, the Plaintiff has voluntarily deleted the reference to criminal intimidation but maintains the averment that Mr Chu had in March 2024 threatened Mr Lau and a police report was made on 22 March 2024.

4.12SOC §§5.9-5.12 then plead (1) on 20 March 2024, Mr Lau was surrounded by three men at a restaurant for 15 minutes during which demands were made to Mr Lau to settle a debt of HK$30 million and it was not until the restaurant manager intervened that the three men allowed Mr Lau to leave; (2) Mr Lau then requested Mr Chu to attend the Plaintiff’s office on 22 March 2024 to assess the accounts and Mr Chu and the three men attended the Plaintiff’s office and (3) in the afternoon of 22 March 2024, Mr Lau reported the matter to the police.

4.13It is pertinent to note that AD&C §3.10 admits that the Defendant had engaged a debt collection agent. Notably, AD&C §§5.9 to 5.12 admit that there was a meeting between Mr Lau and Mr Chu on 22 March 2024 to discuss the accounts but otherwise only plead a non‑admission to SOC §§5.9-5.12. The Defendant specifically does not deny (1) the Plaintiff’s pleaded case on what transpired at the restaurant, (2) the allegation that the three men also attended the meeting on 22 March 2024, and (3) Mr Lau made a police report. Indeed, as pointed out by Mr Yeung, the police report was disclosed in the Plaintiff’s 1^st List of Document.

4.14Mr Pang at the hearing no longer maintained that the averment that a police report was made should be struck out. Implicit in that concession must be a recognition that the Conflict and the breakdown of the relationship between Mr Lau and Mr Chu are relevant. Yet, the Defendant says that the allegation that Mr Chu had threatened Mr Lau of the Plaintiff should still be struck out on the basis that the allegation is scandalous.

4.15I am unable to agree with the Defendant. The breakdown of the longstanding relationship between Mr Lau and Mr Chu is part of the narrative explaining the commencement of the present proceedings. I agree with Mr Yeung that the use of the word “threaten”, depending on the evidence adduced at trial (against which the Defendant is not entitled to call evidence of fact contrary to the Plaintiff’s contention: Hong Kong Civil Procedure 2026 Note 18/13/5), may be a reasonable and apt description of the events which transpired at the restaurant.

4.16I decline to strike out SOC §§3.10, 5.9-5.12.

(iii)  SOC §4.24

4.17SOC §4.24 is part of the Plaintiff’s pleading in relation to the First Project.

4.18It is common ground that one of the express terms of the relevant subcontract between the parties provides that “The Sub-contract Works shall be carried out in compliance with the Contract drawings and Specification and Hong Kong SAR Regulations.”

4.19SOC §4.24 pleads that the reference to “Hong Kong SAR Regulations” in the express term of the relevant subcontract includes all the regulations of the Hong Kong SAR in carrying out the works under the supervision of the Buildings Department.

4.20The Defendant says that SOC §4.24 should be struck out on the basis that it is vexatious due to its lack of particulars and bona fides and irrelevance.

4.21In my view, SOC §4.24 does no more than plead what the Plaintiff contends to be the effect of an express term of the relevant subcontract. On this basis alone, the application to strike out SOC §4.24 fails.

4.22In any event, as explained in the Plaintiff’s evidence[1], the relevance of the Hong Kong SAR Regulations is in relation to the Plaintiff’s case that it disputes the Defendant’s claim for the costs of engaging Technically Competent Persons provided by it to perform the supervision work as required by the Buildings Department. Mr Pang in his skeleton submissions does not deal with the foregoing evidence but erroneously advances a case that the Plaintiff is pursuing a case on breach of statutory regulations.

4.23Further, as has been noted above, to address any perceived lack of particularization, the proper course is to seek further and better particulars.

4.24I decline to strike out SOC §4.24.

(iv)  SOC §4.44

4.25SOC §4.44 relates to the First Project. Draft ASOC §4.44 pleads as follows:

“Due to the inability of the Defendant to proceed with the works of the original design, the works of the First Subcontract had been seriously delayed. The Plaintiff reserves its right to amend the pleaded to had not claimed the damages suffered by the Plaintiff for the delay caused by the Defendant should the Defendant make any other claims for the Revised Design other than the actual costs in the Revised Works.”

4.26The Defendant says that SOC §4.44 should be struck out on the basis that it is scandalous. The Defendant says that, where Draft ASOC §4.44 confirms that the Plaintiff is not claiming any damages arising out of the allegation of delay, it serves no purpose in the pleading and it merely has the effect of putting the Defendant in a bad light.

4.27I am unable to accept the Defendant’s submission. The averment at SOC §4.44 is not an allegation of general delay on the part of the Defendant but a delay causatively linked to the design change pleaded. For the reasons pleaded at SOC §§4.35 to 4.43, it is the Plaintiff’s allegation that there was a problem with the Defendant’s price quotation such that if the Defendant had proceeded with the works based on the original design, it would have incurred a substantial loss. The Defendant therefore requested the Plaintiff to, and the Plaintiff did, provide assistance by coming up with a revised design (“Revised Design”) which the Plaintiff managed to persuade the Buildings Department to approve. Where no application is made to strike out SOC §§4.35 to 4.43, I am unable to see the basis for striking out SOC §4.44.

4.28I decline to strike out SOC §4.44.

(v)  SOC §§4.50 and 4.65

4.29SOC §§4.50 and 4.65 plead the Plaintiff’s alternative claim in respect of the Revised Design. In essence, the Plaintiff’s primary claim is premised on the scenario that the Defendant’s works are to be valued and paid on the basis of the actual costs incurred in the works carried out pursuant to the Revised Design. As explained in the Plaintiff’s evidence, it is the Defendant’s pleaded case at AD&C §4.37(c) that an agreement was allegedly reached on 11 August 2022 (“August 2022 Agreement”) that the Defendant would be paid in accordance with the quoted prices as if the works were completed but for the Revised Design.

4.30In that event, the Plaintiff will mount an alternative claim to contra-charge the Defendant the costs of and associated with the Revised Design.

4.31The only point taken by the Defendant is that the alternative claim has not been pleaded in the Writ.

4.32I am inclined to agree with Mr Yeung that an amendment to the Writ is not necessary. As stated at Hong Kong Civil Procedure 2026 Note 18/15/8, a plaintiff is permitted in his subsequent statement of claim to alter, modify or extend his original claim without amending the writ provided that the new cause of action arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action mentioned in the writ. The cause of action pleaded in the Writ is premised on a proper assessment of final accounts of the Construction Projects. Not only is the alternative claim not a new cause of action, it is but one of the permutations on the assessment of the final account of the First Project.

4.33I decline to strike out SOC §§4.50 and 4.65.

(vi)  SOC §§4.80 and 6.11

4.34SOC §§4.80 and 6.11 are in materially the same terms but they respectively relate to the First Project and the Second Project:

“However, the Defendant in its latest payment application dated 11 April 2024 still claimed other items… but the Defendant fails to advise the Plaintiff of the basis or substantiations of its claims. Subject to the Defendant’s further substantiations, the Plaintiff avers that the claimed amounts of the [items relating to the First Project and the Second Project as the case may be] are included in the lump sum price of [the First Project or the Second Project as the case may be]. The Plaintiff reserves its right to plead further in the Reply and Defence to Counterclaim.”

4.35The Plaintiff has in fact issued Requests for Better and Particulars to which the Defendant did not provide as at the date of the filing of the AR&DC. The foregoing is in fact pleaded at AR&DC §§38 and 59.

4.36The Defendant says that SOC §§4.80 and 6.11 should be struck out for disclosing no reasonable cause of action, abuse of process due to pleading unnecessary matters and/or for being an attempt to plead a case in reply instead of the statement of claim.

4.37I am unable to accept the Defendant’s submissions.

4.38It may be immediately noted that, as with most construction disputes, the lack of substantiation in payment applications is a common dispute in the final accounting exercise, and so is whether a claimed item is or is not included in the lump sum price. At the hearing, Mr Pang does not suggest the contrary.

4.39The Defendant’s complaint is entirely sterile and pedantic. I decline to strike out SOC §§4.80 and 6.11.

(vii)  SOC §§4.86, 6.24, 7.22, 8.7, 9.7, 10.7 and 11.7

4.40These paragraphs are the Plaintiff’s averment that the sums found to be due in the Construction Projects should be set off against each other thereby arriving at a single net monetary entitlement. It is the Plaintiff’s case that the foregoing exercise is justified by equitable set-off. At Draft ASOC Section 11, the Plaintiff pleads its factual case on equitable set‑off, namely (1) prior to the commencement of the present proceedings, the parties did not engage in any discussion or negotiation regarding the final account of any of the Construction Projects, (2) the Defendant was engaged as the Plaintiff’s subcontractor in each of the Construction Projects by reason of the Mutual Cooperation, (3) it is fair that after the Conflict, the final accounts of the Construction Projects should be viewed as one account between the Plaintiff and the Defendant and they shall be adjudicated as a whole to determine which party is liable to pay the other party and (4) as stated at §2.6 above, it is the Plaintiff’s case that sums are due to the Defendant in respect of the Third to Seventh Projects and the Plaintiff seeks to set off such liabilities against its entitlements under the First and Second Projects.

4.41The Defendant says that the Plaintiff’s case on equitable set‑off is bound to fail.

4.42I am unable to agree. Whether there is a sufficiently close connection between the Construction Projects to engage equitable set-off is plainly fact-sensitive. In the Defendant’s skeleton submissions, Mr Pang has not sought to deal with the factual allegations pleaded at Draft ASOC Section 11 (ie §§12.0A-12.0E).

4.43I decline to strike out these paragraphs.

(viii)  SOC §§5.1-5.3 and 5.6-5.8

4.44These paragraphs are the Plaintiff’s pleading on advances made by the Plaintiff to the Defendant on 10 occasions between 1 November 2016 and 25 January 2022 totaling HK$16,300,000 (“Advances”) which the Plaintiff says by agreement with the Defendant would be taken into account in the final account of the subcontract in relation to the First Project.

4.45Indeed, in the evidence adduced is, for example, an interim payment application from the Defendant to the Plaintiff  ([C/336]) in which the Advances were treated by the Defendant as advance payments for the Defendant’s work done in respect of the First Project.

4.46As explained in the Plaintiff’s evidence (Affirmation of Wan Kwok Choi §§9.1 to 9.14), the Plaintiff did proceed to deduct the Advances from the value of the Defendant’s work done in relation to the First Project. As pleaded at Draft ASOC §4.84, the value of the Defendant’s work done is insufficient to extinguish the Advances resulting in a net sum still due from the Defendant in the amount of HK$10,330,758.88.

4.47The Defendant says that these paragraphs should be struck out as disclosing no reasonable cause of action or abuse of process since the claim on the Advances is bound to fail.

4.48There is no substance in the Defendant’s complaints. The “credit” given by the Plaintiff to the Advances is instrumental to the proper understanding of the Plaintiff’s case on its valuation of the work done by the Defendant in relation to the First Project. I decline to strike out SOC §§5.1 to 5.3 and 5.6 to 5.8.

(ix)  SOC §§7-11

4.49These paragraphs are the Plaintiff’s pleading on the Third to Seventh Projects. As noted above, it is the Plaintiff’s claim that sums are due to the Defendant under the relevant subcontracts.

4.50The Defendant says that these paragraphs should be struck out for disclosing no reasonable cause of action and abuse of process.

4.51The Defendant’s arguments are premised upon those made in relation to the viability of equitable set-off. As I understand the Defendant, as equitable set-off is not viable, a pleading that the Plaintiff owes the Defendant money is not a claim and therefore has no place in the statement of claim.

4.52I have already dealt with the issue on equitable set-off above. Again, as a matter of practicalities, I have some difficulties in understanding the Defendant’s position to strike out matters which are favourable to it.

4.53I decline to strike out SOC §§7-11.

(x)  AR&DC §35.3

4.54As noted at §4.29 above, it is alleged by the Defendant that the August 2022 Agreement was reached. AR&DC §35.3 is part of the Plaintiff’s pleading in response to the August 2022 Agreement. It is the Plaintiff’s case even if the August 2022 Agreement was reached (which is denied), such agreement amounts to unjust enrichment as the Defendant would be paid for the works of the original design whilst it had performed lesser work according to the Revised Design.

4.55The Defendant says that AR&DC §35.3 should be struck out for abuse of process due to lack of particulars and such matter should be pleaded in the statement of claim.

4.56I am unable to agree with the Defendant. Any perceived lack of particularization should be a matter to be addressed by requests for further and better particulars. I also do not see anything wrong with pleading the matter in the AR&DC when the August 2022 Agreement is expressly raised at AD&C §4.47(c).

5.Conclusion

5.1For the above reasons:

(1)  In respect of Strike-Out Summons §1, the application to strike out (in the order set out above) SOC §§3.2, 3.10, 5.9 to 5.12, 4.24, 4.44, 4.50, 4.65, 4.80, 6.11, 4.86, 6.24, 7.22, 8.7, 9.7, 10.7, 11.7, 5.1 to 5.3, 5.6 to 5.8, and 7 to 11 is dismissed;

(2)  Save that the application to strike out AR&DC §35.3 is dismissed, Strike-Out Summons §2 is adjourned sine die with liberty to restore;

(3)  In respect of the Amendment Summons, I grant an order in terms of §§1-3 thereof, save that the Draft ASOC is to incorporate all the paragraphs agreed to be deleted but as yet not deleted (eg SOC §6.8) and to correct the typographical errors (for example the figure pleaded for the alternative claim in respect of the First Project which is erroneously stated to be HK$16,266,1665.31) and the revised pleading should be filed within 14 days from the date hereof.

5.2As to costs, I take into account that the Draft ASOC was provided to the Defendant on 9 June 2025 and the Plaintiff invited the Defendant to consent to the amendment and vacate the hearing date for the Strike-Out Summons. As it turned out, the parts of the Strike-Out Summons which were pursued by the Defendant were entirely unsuccessful.

5.3Regrettably, I have come to the conclusion that the Strike-Out Summons (in particular the parts which were pursued at the hearing) as wholly unmeritorious.

5.4The unmeritorious application, at the Defendant's insistence, has prevented the present action from being set down at the 1^st Case Management Conference as is usually the case as provided in Practice Direction 6.1.

5.5Practice Direction 6.1 and the Practice Direction for the Commercial List (PD SL1.1) are similar, in that parties are usually given leave to set down the action for trial forthwith at the 1^st Case Management Conference. Cases in these specialist lists especially require practitioners to take a sensible and vigilant approach and avoid unnecessary satellite litigation which has the effect of frustrating the objectives expressly stated in the practice directions to bring the matter to trial as soon as practicable, essentially requiring practitioners to "work backwards" from the trial date (which is treated as a milestone date).

5.6It is therefore unsurprising that the commercial court has adopted a more robust approach on pleading points. In Shine Grace Investment Ltd v Citibank NA & Anor, HCCL 28 of 2008, 16 March 2010, the following observations were made:

“[45] On the one hand there can be no gainsaying the established principles as to pleading, principles laid down by Hong Kong's highest court, such as were prayed in aid by Mr Barlow on behalf of the plaintiff.

[46] Equally it is generally known that this Commercial Court before which I anticipate that this case will be tried - instinctively adopts a robust attitude to pleadings, and that as long as the issues are clear at the time of trial this Court does not become unduly exercised over pleading niceties; in his address Mr Rogers relied upon the court's comment at the outset of this application that if otherwise everything had been in place this case could be tried tomorrow, the plaintiff's complaints about the pleading defects within the current Defence notwithstanding.”

5.7In my view, the above observations are entirely apposite in cases in the Construction and Arbitration List. As recognized in Shine Grace, there are, on one end of the spectrum, cases plainly involving fundamental pleading points which are suitable for and should be the subject of a strike-out application. However, I regret to say that the Strike-Out Summons is on the very far end of the other side of the spectrum.

5.8I make a costs order nisi that the Defendant is to pay to the Plaintiff the entire costs of the hearing on 10 October 2025 and 70% of the costs of the Strike-Out Summons, the discount to reflect the facts that some of the impugned paragraphs were deleted in the Draft ASOC and that §2 thereof has been adjourned sine die with liberty to restore. In the present case, for the reasons stated above, I am of the view that such costs are apt to be taxed on an indemnity basis. The Plaintiff is to lodge and serve its statement of costs within 7 days hereof (limited to 3 pages) and the Defendant is to lodge its statement of objection within 7 days thereafter (limited to 3 pages). I will thereafter carry out summary assessment on the papers.

5.9I also make a costs order nisi in terms of Amendment Summons §4, namely that the costs of and occasioned by the Amended Statement of Claim be paid by the Plaintiff to the Defendant, to be taxed if not agreed.

5.10I further direct the parties to restore the Case Management Conference to take place within the next 2 months.

Mr Eddie S.K. YEUNG, instructed by Messrs Wong & Lawyers, for the Plaintiff

Mr Ronald PANG, instructed by Messrs CMK Lawyers, for the Defendant