Tridant Engineering Co. Ltd. v. Paul Y. Itc (E & M) Contractors Ltd.
Read the full judgment text of HCCT000040A/1996 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 7 September 1998 before The Hon Mr Justice Findlay.
Procedure — Further particulars and interrogatories — Construction contract dispute involving a sub-sub-contractor (plaintiff) and sub-contractor (defendant) — Claims relating to work and materials supplied and counterclaims for remedial works — Defendant relies on 'pay when paid' clause and pleads a duty of co-operation — Plaintiff seeks further particulars on defence and counterclaim and to compel answers to interrogatories — Court orders defendant to supply particulars essential for plaintiff to know the case including details of costs, locations, breaches and contractual obligations — Particulars relating to receipt of notices for remedial work and payment details refused — Interrogatories relevant to the contractual relationship and payment issues must be answered while irrelevant ones rejected — Defendant’s partial success in providing particulars and interrogatories insufficient — Costs ordered in favour of plaintiff. The defendant must clarify its defence to enable fair trial preparation and avoid prejudice to the plaintiff. Orders for further particulars and answers to interrogatories made with specified timelines.
Legal issues: Further particulars relating to paragraphs 17 and 18 of the defence · Whether certain interrogatories should be answered
Outcome: The defendant is ordered to provide further and better particulars to the plaintiff in relation to paragraphs 17 and 18 of the defence within 30 days and to answer specified interrogatories within 30 days. Costs are ordered in favour of the plaintiff.
|
HCCT000040A/1996 1996, No. CON 40 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE
Coram: The Hon Mr Justice Findlay, in Chambers Date of hearing: 10 February and September 1998 Date of handing down of judgment: 7 September 1998 ______________ JUDGMENT ______________ These Proceedings 1. I have before me two summonses. One is by the plaintiff seeking an order that the defendant file and serve some specified further particulars failing which its defence and counterclaim be struck out. The other is by the defendant seeking an order that some interrogatories be withdrawn. The Litigation 2. The background litigation to these matters is an action in which the plaintiff seeks payment for work done and materials supplied in relation to a construction project. The main contractor on the project was International Tak Cheung Construction Limited. The defendant was a sub-contractor, and the plaintiff its sub-sub-contractor. 3. In its defence and counterclaim, the defendant pleads some clauses from the contract, including a "pay when paid" clause. It also pleads an implied term that the plaintiff would co-operate with the defendant in the administration of the contract and enable the defendant to properly value variations. Regarding the variation claims, the defendant pleads that there was a meeting on 27 June 1996, but does not plead any consequence flowing from this. The defendant denies liability for the claims by the plaintiff. The defence says that the defendant has not received payment from the client so payment is not due to the plaintiff. Paragraph 17 of the defence pleads that it supplied labour and materials to the plaintiff and carried out repair and rectification work. It gives a global figure for these "contra-charges" under three heads, although certain further particulars of these claims have been supplied. Paragraph 18 of the defence says that the main contractor "supplied labour and/or materials and/or carried out repair and rectification work to the works on behalf of the plaintiff and the defendant" and "In the premises" the defendant is liable to the main contractor and "is entitled to deduct and/or set off" the charges for this. The defendant does not plead any basis for this entitlement. Further particulars of these works have also been supplied. General Points 4. Firstly, I should deal with a few general points made by Mr Houghton. 5. He pointed out that many of the items in respect of which the plaintiff sought further information are comparatively small, as indeed they are. Against this, it must be said that it is the defendant which is making these claims for small amounts. If it wishes to make the claims, it cannot legitimately complain that the plaintiff wants particulars about them. 6. Mr Houghton also says that what the plaintiff is seeking is particulars of particulars, and not particulars of pleadings. I do not see that this makes any difference of substance. The particulars already supplied by the defendant are pleadings, and, if the plaintiff is entitled to particulars, it matters not that the particulars sought relate to particulars of the defence rather than the defence itself. 7. The third general point made by Mr Houghton is that the defendant has already supplied a great volume of particulars. This may be true, but this of no moment either. If better particulars are needed, it is of no consequence that some other particulars have already been supplied. Much of the volume of particulars supplied are in the form of summaries, which are not regular pleadings, but documents apparently prepared by a non-professional pleader. They are not always easy to understand, and do not always plead a point in the required manner. Other particulars supplied are supplied in the form of documents. This may be helpful for some purposes, but they do not always give the information an opponent is entitled to expect. 8. Another argument advanced by Mr Houghton is that often the particulars sought are wide-ranging. This is so, and it will be seen that I do not always consider that this wide range is justified. 9. Finally, Mr Houghton says, as I understand him, that, although conceivably there are one or more requests that are legitimate, there are so many of them that the court should not be asked to trawl through such a volume, but should reject them, and require the plaintiff to present its requests in a more readily digestible form. This is a double edged sword. To some extent, at any rate, the necessity for the plaintiff voluminous requests is due to the way the defendant has presented its case by reference to summaries and other original documents. If it had been so that the defendant had presented its claims by stating that the plaintiff had failed to perform certain work in breach of an identified obligation, that certain clearly identified remedial work had, as a result, been necessary, and given the cost of each item of such work in seriatim form, the plaintiff's requests might have been smaller in volume and easier to digest. Nevertheless, it would have been a laborious and tedious task to go through each single request and particular, and, as will be seen, I have not done this. With my grateful thanks to both counsel for their work, I have been able to deal with the requests by groups. I hope that my ruling on the essentials are clear. The Further Particulars 10. The plaintiff is seeking further and better particulars to only paragraphs 17 and 18 of the defence. Some of these requests have been withdrawn and some have been answered. As I have said, the remaining requests can be grouped under various heads for convenience. Both counsel have undertaken this exercise of grouping. I mean no disrespect to Mr Houghton in saying that I prefer the grouping prepared by Miss Cheng. Her groupings may be described as follows -
Notice 11. There are several requests for details of any notices by the employer or the main contractor requiring the work to be done. The plaintiff's obligation is to carry out the contract. It is not necessary, and not part of the defendant's pleaded case, that anyone should require remedial work to be done. Therefore, it is not necessary for the plaintiff to have these particulars to enable it to know the case it has to meet. Evidence that someone did, or did not, require work to be remedied would be irrelevant. 12. Perhaps there is some basis for asking for these particulars. In some documents produced by the defendant in answer to the request for the particulars, it is stated that some work was done at the request of the main contractor. These documents were obviously produced by a layman, no doubt with the laudable purpose of saving costs. I do not regard these statements regarding the requests by the main contractor as part of the defendant's pleaded case. 13. I decline to order that these particulars be supplied. People Involved in the Work 14. It is necessary for the plaintiff to have particulars of the amount of cost incurred and details of the materials supplied and the work done to enable it to judge whether or not the cost claimed by the defendant is fair so that it may know whether or not to call evidence in this respect. Other particulars are not necessary to enable the plaintiff to know the case it has to meet. 15. Insofar as this has not been done, these essential particulars must be supplied. Particulars of Payments 16. The plaintiff knows, or will know, the defendant's allegations that it incurred a specified cost in respect of specific materials supplied and of the actual work done. It is not necessary for the plaintiff to know the details of whether or not payment for this work has been made, or other details of these payments. Whether or not the defendant has paid the debts incurred is irrelevant. Essentially, the plaintiff's request here is for evidence. 17. I decline to order that these particulars be supplied. Location 18. I believe that the plaintiff is entitled to know precisely where it is that the defendant alleges that the remedial work was done. This was a large project. Without this information, the plaintiff cannot prepare a case to meet that of the defendant. For example, without this information, how is the plaintiff to know which workmen to speak to and call about whether or not they did a particular piece of work and the way in which they did it? 19. Mr Houghton complains that the requests often require the defendant to prepare a drawing to identify the location. I do not think this is so. The plaintiff often refers to "the drawings", meaning, I believe, the existing drawings relating to the project. If no drawing exists that could be used to conveniently indicate the location, the defendant may use any convenient means to pin-point the exact location. 20. Insofar as this information has not already been supplied, I order that the particulars be given. How the Percentage or Lump Sum was Calculated 21. I have already said that the plaintiff is entitled to know particulars of the money paid and details of the materials supplied and the work done to enable it to judge whether or not the cost claimed by the defendant is fair so that it may know whether or not to call evidence in this respect. That view applies equally under this head. 22. These particulars must be supplied to this end. How the Rate was Calculated 23. Again, the plaintiff is entitled to have sufficient particulars to be able to assess whether or not it needs to call evidence to challenge the defendant's case. 24. To this extent, the particulars must be given. Why was the work needed; that is, what was the breach? 25. Some of the requests under this head are framed in an odd way, but I think it is reasonably clear that the plaintiff wants to know on what basis it is alleged that the plaintiff is liable for the costs of the remedial work. For example, is it said that the plaintiff did not do the work at all? Or that it did the work, but, in some way, failed to do it in accordance with some identified contractual obligation? The plaintiff is entitled to know this. 26. To the extent that I have outlined, the particulars should be supplied. Which Contract Provisions Applied? 27. Again, the plaintiff has a right to know which contractual obligation it is said was breached so that the plaintiff is said to be liable. 28. To this extent, the particulars should be supplied. Details of the Work, which Assists in Identifying the Breach Alleged 29. In accordance with what I have already said, the defendant must supply particulars so that the plaintiff is able to know what it is that the defendant says the plaintiff did in breach of the contract, what materials were supplied or work was done to remedy this breach and the cost of this. To this extent only, the defendant must supply particulars. The Interrogatories The First Interrogatory 30. The plaintiff seeks an answer that will speak of the relationship between the defendant and the main contractor. 31. As I have said, the defendant relies on a "pay when paid" clause in the contract. If it is so that the defendant and the main contractor are in a cosy family relationship, this might well be relevant at the trial to show that the main contractor has not paid the defendant, not because it is not obliged to do so, but because of some factor arising out of that relationship. The effect of this clause is a matter in question between the parties. This matter will need to be investigated at trial. It seems to me that the answer should be supplied. The Second Interrogatory (Second Part) 32. This seeks to identify the payments made by the main contractor to the defendant. This information is also highly relevant to the "pay when paid" issue. The answer must be supplied. The Third Interrogatory 33. This asked for information about the defendant's entitlement to money from the main contractor. Surprisingly, the defendant says that it does not know this information. The plaintiff is asking for the defendant's view of its legitimate claim against the main contractor. It must know that. This must be answered. The Fourth Interrogatory 34. This interrogatory asks about the defendant's claims made to the main contractor in relation to the plaintiff's work. This is relevant to the defendant's obligations to pursue the main contractor under a clause it pleads itself, and the "pay when paid" issue. This information must be supplied. The Fifth Interrogatory 35. This asks for information about discussions between the defendant and the main contractor about the plaintiff's claims. I do not believe this is a legitimate interrogatory. The defendant need not answer this. The Ninth Interrogatory 36. The plaintiff asks when the defendant's works under the main contract were practically complete. This is, of course, relevant to the matter of the retention money, which the defendant says has not been fully paid or pursued. The answer must be supplied. The Eleventh Interrogatory 37. This asks about the completion certificate. It do not think this information is necessary. It need not be supplied. The Twelfth Interrogatory 38. This asks about the defendant's own allegation that the plaintiff was obliged to co-operate. I do not know why the defendant makes this allegation, but, so long as it is making it, the plaintiff is entitled to know what it is talking about. This information must be supplied. The Thirteenth Interrogatory 39. This interrogatory seeks information regarding the staffing and duties at the defendant's offices. I have already said in relation to the request for particulars that the defendant must show how its costs are made up. If it does this, this is all the plaintiff needs. The Fourteenth, Fifteenth and Sixteenth Interrogatories 40. The plaintiff asks who was responsible for valuing the variations, remeasuring work and assessing claims. I do not think the plaintiff needs to know this. The Seventeenth Interrogatory 41. The first part of this asks for the outcome of the meeting of 27 June 1996 alleged by the defendant. The defendant leaves this in the air, and one must wonder why it is pleaded. The plaintiff is entitled to know why it is pleaded. This must be answered. 42. The second and third sentences ask about other steps to value the variations. I do not think the plaintiff needs to know this to prepare its case. The Eighteenth Interrogatory 43. This asks for details of the sub-contractors and their contracts. As I have said, the plaintiff needs to know the cost and the work done so that it can prepare its case. No more is needed. The Nineteenth Interrogatory 44. This asks about the calculation of the "handling charge" by the defendant. The plaintiff is entitled to know this. The Twentieth Interrogatory 45. The remaining part of this asks if certain claims by the plaintiff are admittedly valid so that the defendant submitted the claims to the main contractor. I do not think this is a legitimate question in an interrogatory. The Twenty-first and Twenty-second Interrogatories 46. These ask about an appendix annexed to the defendant's defence. It is not clear to the plaintiff, and it is not clear to me, what the defendant is saying about the items mentioned in that appendix. The answer supplied by the defendant does not make things any clearer. I think the plaintiff is entitled to know the defendant's case on each of these items. Full answers must be supplied. The Order 47. The defendant is ordered to supply the further and better particulars as I have indicated within 30 days. I do not think and unless order is justified. Similarly, the defendant must answer the outstanding interrogatories within 30 days. The Costs 48. This aspect has not been argued. However, the plaintiff has been substantially successful in its applications, and it seems to me that there is no obvious reason why costs should not follow the event. I make an order nisi that the defendant pay the plaintiff's costs of both applications in any event. Representation: Miss Teresa Cheng, instructed by Messrs Norman MK Yeung & Co, for the plaintiff. Mr Anthony Houghton, instructed by Messrs Hampton Winter & Glynn, for the defendant.
|