Sunnic Engineering Ltd v. Unistress Building Construction Ltd

HCCT 46/2023

[2026] HKCFI 3607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 46 OF 2023

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D E C I S I O N

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1.Introduction

1.1By its summons dated 19 September 2025 (“Summons”), the Plaintiff (“P”) seeks “specific discovery” against the Defendant (“D”) in respect of the following class of documents (“Documents”).

“Record(s) and/or document(s) showing the coring test results (“CTRs”) by Falcon Construction Engineering Limited (“Falcon”) during and/or after completing the Subcontract Works (as defined below).”

1.2The Summons refers to both RHC Order 24, rules 7 (specific discovery) and 11 (production of documents). The terms of the Summons, however, only seek production of the Documents.

1.3At the hearing, P was represented by Ms Deanna Law and D by Mr Kaiser Leung. As helpfully confirmed by counsel, the only issues which require the court’s determination are (1) relevance of the Documents and (2) whether their production is necessary for the fair disposal of the cause or matter or for saving costs. It is common ground that the Documents exist, and although they are not currently in D’s possession or custody, D is in a position to obtain them from Falcon if directed to do so. The matter highlighted in the preceding paragraph has a bearing on who has the burden to show that the order sought is necessary either for disposing fairly of the cause or matter or for saving costs. For completeness, I do not understand Mr Leung to have suggested, were the Summons to be allowed, that there should first be specific discovery under rule 7 and production is only to follow thereafter.

1.4These proceedings have progressed to a relatively advanced stage. The pre-trial review is to take place on 2 November 2026 and the trial is to commence on 1 December 2026. For present purposes, it is pertinent to note that the parties’ geotechnical engineering experts, Mr Carmine Siu (“Mr Siu”) for P and Mr James Lau (“Mr Lau”) for D, have completed the joint report (“Joint Report”) and their final reports.

2.Overview of the disputes

2.1On 28 July 2022, the Government of the Hong Kong Special Administrative Region as employer (“Employer”) awarded the main contract (“Main Contract”) for the construction of two special schools (“Project”) in Kowloon Tong (“Site”) to D. Subsequently, D awarded the design, supply, installation of piling works, surveying of final as-bult position of the piling works, pre-drilling, post-drilling and coring tests works to P (“Subcontract”) as the piling subcontractor (“Subcontract Works”).

2.2There is no dispute between the parties that (1) the Subcontract Works were envisaged to be carried out by rock-socketed steel H-piles (“RSSHP”) and (2) the General Specifications (“GS”) set out in the Main Contract were incorporated into the Subcontract.

2.3By way of an overview, P’s involvement in the Subcontract Works was relatively short-lived. P commenced pre-drilling works at the Site in December 2022 and the Subcontract, on either party’s case, came to an end in June 2023. The circumstances under which the Subcontract came to be terminated form the core dispute between the parties in these proceedings. As stated below, there are cross allegations on who was in breach of the Subcontract. What is undisputed, however, is that D engaged Falcon as the replacement piling subcontractor.

2.4P’s pleaded case is, in summary, as follows.

2.5At ASOC §12, P pleads the necessary steps to be taken for the commencement of RSSHP works, one of which was the carrying out of Point Load Test (“PLT”) on rock specimens. Further on at ASOC §§32 and 33, it is pleaded that (1) pursuant to GS 5.21 (xx), the rock core samples should have a point load index strength of >1 MPa (“Required Strength”) and (2) pursuant to GS 5.21(xvii), rock specimens should be taken at top, middle, and bottom along the length of rock core samples for PLT to determine the uniaxial compressive strength.

2.6On 19 December 2022, P commenced predrilling works, including performing PLT to assess the rock strength at the Site. As determined pursuant to GS 5.21(xvii), P was required to complete 52 predrill holes and PLTs at the predrill locations.

2.7According to P’s pleaded case, the genesis of the disputes between the parties arose out of what P considered to be unsatisfactory PLT results. At ASOC §36, it is pleaded that:

(1)  Out of the 52 predrill holes, only rock core samples taken from 44 predrill holes achieved the Required Strength at any three points on the rock core samples;

(2)  There were divergent interpretations of the problematic PLT results for the purpose of GS 5.21(xvii) and (xx) between P, D and the Employer’s representatives;

(3)  Significantly, unless these divergent interpretations had been referred to, properly considered and settled by the Employer’s representatives, and they had given the necessary clarification, confirmation, approval and/or instruction to D and P, it would not be possible for P or D to establish the bedrock level or the rock socket founding level of the relevant predrill holes.

2.8P then pleads at ASOC §42 that, with what it considered to be the widespread failure of the PLTs at the Site:

(1)  According to the relevant GS (clause 5.21(xx) in particular), it was impossible for the RSSHP works to be commenced and completed without first securing at least 52 predrill holes (including additional predrill holes as replacement predrill holes) with PLT results satisfying the Required Strength at top, middle and bottom of the rock socket;

(2)  In particular, it would be impracticable or even impossible to extract the temporary casing through 40-50m of weak rock stratum with such low point load index strength due to the presence of micro-fissures and/or cracks in the rock stratum, and even if the casing could be successfully withdrawn, rock fragments from the 40-50m weak rock stratum would likely fall into the predrill holes causing the RSSHP to sit on rock fragments rather than on sound bedrock.

2.9At ASOC §§60 and 61, P pleads, in gist, that:

(1)  The RSSHP in accordance with the requirement under the relevant GS was physically impossible as the presence of a weak rock stratum of 40-50m depth (with micro-fissures and cracks) would lead to the contamination of the rock socket fragments originated from the weak rock stratum above;

(2)  It would only be possible to construct RSSHP if the relevant GS could be amended to require any three test points of rock core sample satisfied the Required Strength and ignoring all (or some) failed PLT results, and to require substantially shorter pile length in order to reduce the risk of contaminating the rock socket but P would require a formal variation instruction from the Employer’s representatives.

2.10Each of the foregoing pleaded allegations is denied by D. In particular, it is D’s pleaded case that:

(1)  It disagrees with P’s interpretation of the PLT results, and if any section of the rock specimen did not fulfil the Required Strength, the predrill hole should be further sunk to a deeper level for the purpose of obtaining rock specimen with adequate strength at a greater depth, or alternatively, P could have conducted Unconfined Compression Test: Amended Defence and Counterclaim (“AD&C”) §§10(5) and 29;

(2)  In particular, D denies that there was any need for the Employer’s representatives to consider and settle any clarification, confirmation, approval and/or instruction to D and P at the material time: AD&C §29(3);

(3)  D avers that it is not unusual for RSSHP to have a pile length in excess of 50m or longer, and significantly, D avers that after the termination of the Subcontract, Falcon had successfully completed a trial pile at the Site that exceeded 50m in length (which P alleged to be physically impossible using RSSHP): AD&C §35;

(4)  D denies the physical impossibility alleged by P and denies that a variation of the GS was required. D asserts that Falcon had completed all the necessary predrilling works for the Site for the purpose of determining the bedrock profile, and if there were indeed difficulties in the RSSHP works it was P’s obligation as D’s specialist piling subcontractor to overcome all engineering and construction difficulties in relation to the Subcontract Works: AD&C §§72-74.

2.11It is common ground between the parties that, on 8 June 2023, D issued a letter which served as a formal notice that the Subcontract was terminated. There are cross allegations on which party was in breach. On D’s part, it contends that P had clearly evinced a refusal to perform the Subcontract Works. On P’s part, it asserts that D’s termination of the Subcontract was wrongful as it remained committed in completing the Subcontract Works but it required an instruction from D as to how to overcome the physical impossibility identified by it.

3.P’s grounds

3.1As stated above, it is common ground that the CTRs are in existence and within D’s power to give discovery/produce.

3.2By way of overarching background, Ms Law refers to GS 5.22(xxii)-(xxiii). In particular, it is a contractual requirement that:

(1)  10% of the total (constructed) piles should be subject to core testing on the hardened grout;

(2)  The pile would be determined to have failed the coring test if, relevantly, the concrete core exhibits discontinuity of grout or any sample section of the core demonstrated insufficient strength.

3.3As explained by Mr Siu, in contrast to PLT, coring test is an acceptance test of the completed RSSHP works and the CTRs would demonstrate whether a pile had been sunk to the correct founding level of sound bedrock, and that the interface between the pile toe and the founding bedrock was clean without laitance or rock fragments collapsed to the bottom or in the grouting.

3.4Ms Law reasons therefore that the CTRs should be able to demonstrate the following:

(1)  The grout continuity along the socket. If the CTRs show that grout core (built by Falcon) was continuous with no voids, that would demonstrate it was practically possible to conduct RSSHP in compliance with the GS. On the contrary, if there were voids in the grout core, that would demonstrate RSSHP could not be carried out in compliance with the GS;

(2)  The interface between the pile toe and the founding bedrock. Thus, if the CTRs showed that the interface was not clean, that would demonstrate the soundness of P’s assessment on the physical impossibility of RSSHP without changes to the GS. On the contrary, if the CTRs returned a clean interface, that would undercut P’s assessment of physical impossibility.

3.5Building from the above overarching background, Ms Law says that the Documents are relevant for the following reasons.

3.6First, it is said that the Documents are relevant to P’s pleaded case. Ms Law acknowledges that P’s assessment of the physical impossibility of RSSHP at the Site was based on the PLTs conducted, but contends that it remains a live factual issue as to whether RSSHP was physically impossible if it was to be conducted under the GS.

3.7Secondly, Ms Law argues that the CTRs are relevant to the expert issues, in particular the following:

(1)  Whether the results of PLT conducted by P suggested or implied that it would not be possible to establish the bedrock level or the rock socket founding level pursuant to the technical requirements under the Subcontract, including GS 5.21 (xvii) and (xx), for the RSSHP works (“Issue 6(a)”);

(2)  Whether RSSHP with predicted length longer than 50, or alternatively, 60m are prone to structural integrity and/or post-drilling failure in light of the PLT results obtained by P at the Site? If so, by how much is the risk of such issues and/or failure increased compared to when the predicted pile length is shorter than 50, or alternatively, 60 meters in light of the PLT results obtained by P at the Site (“Issue 6(d)”);

(3)  In view of the results of PLT conducted by P, whether it was physically impossible to drill through 40-50m of rock from the ground level at the Site in accordance with the relevant contractual requirements without causing collapse of rock fragments into the pre-bored hole which would eventually cause the RSSHP works to fail (“Issue 6(f)(ii)”);

(4)  In light of the PLT results obtained from the Site, and the presence of micro-fissures and/or cracks, whether rock fragments from the 40-50m of weak rock stratum with low point load index strength would likely fall into the predrill holes, causing the RSSHP to sit on rock fragments rather than on the bedrock (“Issue 6(g)(ii)”).

3.8In terms of necessity, Ms Law says that the production of the Documents is necessary since the CTRs go to the core of the dispute of the present action, namely whether it was objectively impossible for RSSHP to be carried out by P in accordance with the GS. For good measure, Ms Law further points out that the scope of the Summons is narrow.

4.The applicable principles

4.1I do not understand that the applicable principles are in dispute. They may be shortly stated.

4.2First, relevance is to be determined by the pleadings: FBC Construction Co Ltd v Big Island Construction (HK) Ltd, HCA 1363 of 2008, 28 October 2010 §18 and Bruce James Stinson v Gu Ming Gao, HCA 2352 of 2012, 26 February 2016 §55. Importantly, a matter does not become an issue simply because it is hotly contested in affirmations in interlocutory proceedings, witness statements or expert reports: Bruce James Stinson §56.

4.3Secondly, whilst the Peruvian Guano test remains the test of relevance, fishing is not allowed: Jade’s Realm Ltd v Director of Lands, HCA 1509 of 2012, 9 January 2015 §20(7).

4.4Thirdly, for an order for production under RHC Order 24, rules 11 and 13, it is for the party applying for the order to satisfy the court that the order is necessary either for disposing fairly of the cause or matter or for saving costs: Hong Kong Civil Procedure 2026 Note 24/13/1.

5.Analysis

5.1Before I set out my analysis on the grounds advanced by Ms Law, I should first make a number of preliminary observations.

5.2First, as pointed out above, P’s involvement in the Subcontract Works was short-lived as it never carried out works beyond the predrilling stage. Conversely the CTRs were obtained by Falcon after the piles had been constructed. As canvassed with Ms Law at the hearing, the CTRs were, as a matter of timing and as a matter of progress of the Subcontract Works, very far removed from the time at which P formed the view that the RSSHP works were physically impossible, namely after P obtained the PLT results.

5.3Secondly, under the GS, a failed coring test is not conclusive. Under GS 5.22 (xxiv)(b), when a pile failed a coring test, the piling contractor could carry out a loading test on that pile to test for acceptance, and the pile would be accepted if it passed the loading test. Indeed, the foregoing is a matter of agreement between the experts that static load test was another acceptance test to ascertain the load capacity of a completed pile (see their answer to Q7(iii) set out in the Joint Report).

5.4Given the above preliminary observations, I confess that I was initially not minded to accede to the Summons as I thought that there was considerable force in Mr Leung’s following submissions:

(1)  In terms of the pleaded issues, I have already set out above the pleaded issues in general terms. Mr Leung submits that it is plain from the above summary that P reached the conclusion at the material time of physical impossibility of the RSSHP works based on its reading of the PLT results. There is no suggestion that the subsequent coring tests carried out by Falcon had or would have any relevance to or bearing P’s then conclusion based on the PLT results or its pleaded position on physical impossibility;

(2)  In terms of the expert issues, Mr Leung submits that (a) the expert issues were formulated such that the experts were to provide their opinion by reference to the PLT results (as shown by the italicized words in the expert issues recited at §3.7 above) and (b) the experts were in fact able to provide their opinions without the CTRs;

(3)  In terms of Issue 6(a), it is true that no agreement was reached between the experts but Mr Siu in his final report does not suggest that the CTRs are relevant to the opinions proffered by him;

(4)  In terms of Issue 6(d), the experts agree that, as a general principle, the risk would increase with the increase of pile depth longer than 50m;

(5)  In terms of Issue 6(f)(ii), the experts agree that, as a general principle, the difficulty in drilling through 40-50m of rock would increase and the risk of collapse of rock fragments into the pre-bored hole would also increase accordingly;

(6)  In terms of Issue 6(g)(ii), the experts in fact agree that, as a general principle, the risk of rock fragments falling into the predrill holes would increase;

(7)  Importantly, Mr Leung points out that the experts also agreed (in their answer to Issue 6(g)(iii) set out in the Joint Report) that it would not be physically impossible to construct the RSSHP in accordance with the requirement under the relevant GS.

5.5In retort, Ms Law points out that there was in fact a disagreement between the experts of Issue 6(g)(iii). Issue 6(g)(iii) is in the following terms: In light of the PLT results obtained from the Site, and the presence of micro-fissures and/or cracks whether (1) RSSHP in accordance with the GS was physically impossible and/or (2) undermine the entire piling system and ultimately affect the safety aspects of the RSSHP. Ms Law observes that the agreement between the experts is in relation to (1) but not (2).

5.6There is no dispute between the parties that the RSSHP works carried out by Falcon had been completed. On the issue of safety, Mr Lau’s opinion set out in the Joint Report is that (1) Falcon was required to carry out static load tests on selected pile after completion of the RSSHP, (2) the tests results were satisfactory and (3) he had no concern about the safety of the completed RSSHP. Conversely, it is Mr Siu’s opinion in his final report that:

“[4.7.13] As a separate matter, static load test is costly acceptance test to ascertain the load capacity of the completed pile, which only applied to 1% of the total number of piles or in this Project 2 numbers each for compression and tension piles. The findings from the results of load test cannot be considered the same effect of quality control as by the coring test in terms of obtaining cement grout core directly from the piles, as well as the number of tests which is 19 number as quoted in Falcon’s 2^nd quotation…

[4.7.14] I have reservation to the opinion of Dr Lau… I will be in the position to supplement my opinion on this issue should I be provided with the coring test results of Falcon. I repeat my reasons stated at paragraph 4.5.9 above”

5.7Mr Siu’s final report §4.5.9 reads as follows:

“… Coring tests must be carried out to ensure the relevant pile has been sunk to the correct founding level of sound bedrock and that the interface between the pile toe and the founding bedrock is clean without laitance or rock fragments collapsed to the bottom or in the grouting. Further, a coring test is an acceptance test of the completed RSS H-piling works in addition to pile loading test. Among other things, the coring test results are relevant to the issue of remedial or compensatory piles due to any failure in the coring tests. Whether there were any grout coring results that failed is relevant to whether there were rock fragments or gaps at the bottom of the RSS H-pile.”

5.8Although Mr Siu has not referred to the contractual provision at §4.7.13 of his final report, it appears that the reference to 1% of piles being subject to load test is a reference to GS 5.29.

5.9Whilst the experts’ opinions will be tested at trial, it seems to me to be far-fetched for Mr Siu to suggest that the RSSHP which has been accepted by the Employer to be unsafe.

5.10The analysis thus far points to a refusal of the Summons. Having reflected on the matter, however, I am ultimately persuaded that I should accede to the Summons for the reason that it is relevant to the issue of whether there was a variation of the GS in the final acceptance of the RSSHP works carried out by Falcon.

5.11As has been pointed out above, under the contractual specifications, that a pile has failed a coring test does not inevitably lead to it not being accepted since that pile can nevertheless be accepted if it passes a loading test.

5.12I have been taken to the copy of records of completion of Falcon’s piling works. Consistent with Mr Siu’s observations, only 4 static load tests were carried out (Pile Nos PC1H-P10, PC4A-P1, PC11B-P1 and PC11J-P11). On the present material, it would therefore mean that there was no loading test carried out by reason of a failed coring test. As a corollary, the completion records appear to suggest that all the coring tests were considered to have achieved the requirements set out in the GS.

5.13At witness statement of Mr Alex Tang (“Mr Tang”) filed on behalf of D §138, it is asserted that Falcon completed the piling works using RSSHP without any variations to the contractual requirements. Ms Law points out that there is at present no documentary evidence to support Mr Tang’s assertion. Whilst Mr Leung submits that the contract between D and Falcon has been disclosed, that does not show how and under what criteria Falcon’s works were eventually accepted.

5.14The CTRs would enable P (1) to ascertain whether all the coring tests achieved a passing grade and (2) if not, given the completion records, to ascertain further whether load test on a ailed pile was carried out, and if not, whether the acceptance of a failed pile in the absence of the load test amounted to a variation of the GS.

5.15As has been set out above, whether there was a variation of the contractual specifications is a pleaded issue. The Documents is relevant to that pleaded issue and in my view also necessary for the fair disposal of the cause or matter.

6.Conclusion

6.1For the above reasons, I make an order in terms of Summons §1, with liberty to D to apply to extend the time for compliance (now within 7 days) given that D has to obtain the Documents from Falcon.

6.2I also make a costs order nisi that the costs of the Summons be paid by D to P to be summarily assessed. P is to lodge and serve its statement of costs (limited to 2 pages) within 3 days hereof and D its statement of objections (limited to 2 pages) within 3 days thereafter. I will then carry out summary assessment on the papers.

6.3The parties are to proactively take out or agree on the appropriate applications arising from this decision (if necessary), including any applications for further expert reports and/or witness statements so as not to jeopardize the milestone dates.

Ms Deanna LAW, instructed by Messrs Hogan Lovells, for the Plaintiff

Mr Kaiser LEUNG, instructed by Messrs Ince & Co., for the Defendant