Lo Tim v. Hang Lee Construction Co and Another

HCA001332/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1332 OF 1973

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Coram: Trainor J. in Chambers.

Date of Judgment: 17th September, 1973.

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Oral Judgment reduced in writing

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1. In 1972 proceedings were instituted by one LO Tim against the Hang Lee Construction Co. and the Fook Lee Construction Co. Ltd. Those proceedings were in the Case No. 551 of 1972 and were based on a contract made on the 1st November, 1970 between the plaintiff and the defendants (the then plaintiff is now the appellant before me and the then defendants are now the respondents). In that case there was also a counterclaim by the defendants. The plaintiff's claim was dismissed and the counterclaim of the defendants was upheld and judgment was given for the defendants for a certain sum. The then plaintiff appealed to the Full Court.

2. In a very full judgment representing the judgment of the Court, Huggins J. said that there had been a breach of contract by the defendants and that the case would have been remitted to the court below for re-trial had it not been established that there had been paid to the plaintiff a sum in excess of that to which he would have been entitled on the full discharge of the contract. It was considered that nothing would be payable to the plaintiff on a re-trial, he having been paid in excess of any amount that could have been found due on the contract. The appeal was therefore allowed on the claim and the sum found on the counterclaim by the court below was reduced by the amount which had in fact been paid.

3. The instant proceedings were instituted on the 12th May, 1973 by the same LO Tim against the same Hang Lee Construction Co. and Fook Lee Construction Co. Ltd. The basis of the claim in these proceedings is the same contract as was the basis of the proceedings in Case No. 551 of 1972. In some respects the wording of the Statement of Claim is practically identical to that used in Case No. 551 and the rest of it is worded very similarly.

4. A motion was brought before the learned Registrar to have the proceedings dismissed on the ground of res judicata and on the ground that the proceedings were vexatious. The summons for dismissal was heard before the learned Mr. Registrar Mayo who ordered the dismissal of the proceedings, allowed costs to the defendants and certified for counsel. Against that Order the plaintiff now appeals.

5. In the affirmation filed by the appellant in support of his appeal he has set out the grounds on which he appeals. Initially he refers to the fact that there was a delay in filing a defence by the respondents and that a limited time was given to them within which so to do. He affirmed that the defence not having been filed within the time fixed the matter went before the learned Registrar for judgment who thereupon dismissed the proceedings on the grounds that the claim was already judicata. This in fact is incorrect. The proceedings before the learned Registrar were by way of summons to have the case dismissed as being res judicata or vexatious.

6. The appellant appeared before me in person and maintained that the instant proceedings are different to those in No. 551 of 1972. I found it somewhat difficult to discover from him in what way they are different. He conceded that the basis of the claim is the contract of the 1st of November 1970 but stated that the amounts now claimed are different. He said that he is now only claiming for a balance of profits and that this is different from what was in the claim in the earlier case and, perhaps, would have we understand, was not included in that earlier claim.

7. I have examined the Statement of Claim in the proceedings No. 551 of 1972 and the claim in the present proceedings; I have read the judgment of Briggs J. in those proceedings and the judgment delivered by Huggins J. in the Full Court. I am satisfied that what was decided in that case is very substantially the same as is in issue in the present proceedings. Nothing that has been said to me by the appellant has in any way induced me, or inclined me, towards a different conclusion.

8. I am of the opinion that the present claim is res judicata but I have not considered that aspect in detail. However the substance of the claim is so substantially the same as that made in case No. 551 of 1972 that I consider that to permit the appellant to proceed now on minutiae which, even if they exist, could, and should, have been dealt with in the earlier case would be vexatious and an abuse of the process of the court.

9. I dismiss the appeal with costs and I certify for counsel.

Representation:

Plaintiff in person

Mr. Davies (Deacons) for defendants