Chan Bing Sum t/a Yee Hing Electricity & Watering Construction Co. V.Chan Bing Sum t/a Yee Hing Electricity & Watering Construction Co.

HCA004525/2001

HCA4525/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4525 OF 2001

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Coram : Deputy High Court Judge Fung in Chambers

Date of Hearing : 30 May 2002

Date of Reasons for Decision : 30 May 2002

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REASON    FOR   DECISION

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1.The plaintiff's claim is for work done under a sub-contract with the defendant. The Statement of Claim sets out a number of invoices less certain part-payments, and the balance is claimed. The defendant denies liability and counterclaims over-payment. They are really two sides of the same coin.

2.There are four outstanding summonses :

(1) The defendant's summons dated 5 March 2002 seeking an Unless Order to sanction the Order of Disclosure under the Statement of Claim made by Master Canon in January 2002.

(2) The plaintiff's summons dated 5 March 2002 to amend the Statement of Claim. The gist of the amendment is more a matter of form than of substance although upon the re-arrangement of the invoices a smaller sum has been arrived at, but exactly the same invoices are relied on, there is no new claim added.

(3) The plaintiff's summons dated 23 March 2002 to set aside the default judgment on the counterclaim obtained on 20 March 2002. The default judgment was obtained after the plaintiff issued the summons to amend the Statement of Claim，assuming that the defendant would not seek judgment in default of Reply and Defence to the Counterclaim.

(4) The defendant's summons dated 15 May 2002 striking out the Statement of Claim.

3.The first three summonses are set down for hearing on 3 June 2002 before a master. When the fourth summons was being called over, it was adjourned to a date to be fixed for the plaintiff to file an affirmation in opposition and the defendant to file an affirmation in reply. The master refused to adjourn the hearing of the first three summonses, including the summons to set aside the default judgment of the counterclaim.

4.Just as the claim and the counterclaim are two sides of the coin, the setting aside summons and the striking out summonses are also two sides of the coin. As the Defence was over-payment, the success of the Counterclaim, albeit by default, automatically means that the Statement of Claim cannot succeed on the pleadings. The striking out summons really adds nothing to the issue before the court, hence it is not only desirable but simply logical that the two should be heard together.

5.The plaintiff has filed the affirmation of Chan Bing Sum to support the summons to set aside the default judgment of the counterclaim. Mr Wong for the defence submitted that all the evidence of over-payments are in the 1st Affirmation of Ho Yuk Chu in opposition to the setting aside. The 2nd Affirmation of Ho Yuk Chu, in support of the striking out, was a one-liner summary of the evidence, that is, over-payment.

6.In fact the question remains of what further evidence the plaintiff needs to file in relation to the striking out. Upon clarification of the issues with the parties, Mr Man for the plaintiff submitted that he is willing to proceed on 3 June 2002 on all the four summonses, that is, including the striking out summons, on the condition that the defendant is not to rely on the 2nd Affirmation of Ho. That agreement has been given by Mr Wong.

7.Hence I make the order that all the four summonses should be heard together on 3 June 2002.

Costs

8.I make no order as to costs in respect of this hearing.

Representation:

Mr Bernard Man, instructed by Messrs Paul C.W. Tse & Co., for the Plaintiff

Mr Joseph Wong of Messrs Weir and Associates, for the Defendant