Bun Kee Plumbing Co Ltd v. Tang Tak Son Construction Co Ltd

HCA001069/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 1069 OF 1980.

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Coram: Hon. LIU, J. in Chambers.

Date of Judgment: 24th July, 1980.

Appeal from Registrar's decision.

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JUDGMENT

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1. Having been exhaustively led through the documents before me, I do not find it necessary to call upon counsel for the defendant.

2. The plaintiff's claim against the defendant is for $84,896.03, being the balance for the price of goods allegedly sold and delivered and services allegedly rendered by the plaintiff to the defendant. In fact, the claim arose under what has been described as a sub-contract between the plaintiff and the defendant dated the 17th March 1976 for drainage work including installation of toilet items. The amount endorsed on the Statement of Claim represents the outstanding unpaid balance said to be due from the defendant. The plaintiff also claims interests on the said sum.

3. The writ amended before service was filed on the 4th of March this year and was served on the next day on the defendant company. No appearance was entered by the defendant within the time prescribed by the Rules of Supreme Court, and judgment in default of appearance was duly entered by the plaintiff against the defendant on the 17th March 1980. As early as the 3rd of April 1980, by a letter of even date the plaintiff's solicitors were duly informed of the instructions received by the defendant's solicitors for applying, in due course, to set aside the judgment in default of appearance. It was, inter alia, intimated that the affidavit in support will be forthcoming, "immediately after the Easter holiday". There has been some delay on the part of the defendant's solicitors caused, in the main, by an oversight which was accepted by counsel for the plaintiff who, however, submitted that from the defendant's conduct reflected in the subsequent actions or inaction on the part of its solicitors and the defendant's disclosure, there has been noticeable delay on the part of the defendant in deliberately withholding these proceedings from a speedy final conclusion. It has also been charged by counsel for the plaintiff that the allegations of the defendant are evasive, shifty and unsubstantiated by any or any satisfactory particulars.

4. The defendant's defence in this fairly involved subcontract work can be broadly divided into three categories: First, delay caused by the plaintiff as sub-contractor. Secondly, dispute on extras, the claim of which in paragraph h of the particulars given in the Statement of Claim is to the tune of $141,158.10. Thirdly, the calculation of alleged completed but unpaid work set out in the particulars a to g (inclusive).

5. At the allegation of delay, the criticism levelled by counsel for the plaintiff was that it was raised, at best, only by the 15th of April in the affidavit of Mr. Stevens bearing the same date which purported to be filed for use in the proceedings in this action. But it should not be overlooked that in that opening letter from Messrs. Johnson, Strokes & Master to Messrs. Wilkenson & Grist dated the 3rd of April, the defendant through its solicitors referred to a counterclaim thus laying some foundation for a dispite over the alleged extras.

6. In addition to belated allegations, Mr. Chan for the plaintiff drew the court's attention to matters, such as the defendant's seeming indifference in furnishing particulars. As for the defendant's challenge to the calculation for the alleged work done set out in paragraphs a to g, the plaintiff complained that no issue was taken on such calculation until the affidavit of Mr. Kenneth Li filed herein on the 12th of June. The plaintiff further criticised that the defendant's allegation of delay could hardly be justified by merely a bare assertion of insufficient workers on the site. Then, it was said on behalf of the plaintiff that the plaintiff's alleged total responsibility for the delay from 16th November to the 1st December attracting a penalty for $177,300.00 liquidated damages to Government had not been consistently maintained. In paragraph 4 of the affidavit of Mr. Stevens dated 15th April 1980, only partial responsibility for the delay seems to have been alleged. However, in paragraph 3 of the same affidavit of Mr. Stevens it can be seen that the defendant claimed a delay of 15 days from 16th November. It has never been suggested that delay was attributable to any of the defendant's own omissions. When one turns to the letter dated 10th November 1978 referred to the said affirmation of Mr. Kenneth Li, reference was there made to a letter as early as 3rd November 1978 in which the plaintiff was given up to the 16th November by the defendant to complete work. I have not lost sight of the plaintiff's contention that the almost a fortnight's time given by the defendant on 3rd November was unreasonable and inadequate. But from the letter and the surrounding circumstances presently known, it can be fairly deduced that throughout the defendant maintained that the plaintiff was to be wholly responsible for delay subsequent to the 16th November 1978.

7. Thus, despite the wording in paragraph 4 of Mr. Stevens said affidavit referring to partial responsibility, it cannot truly be said that the defendant had a change of front in the course of its endeavour to defend the plaintiff's claims in this action.

8. The sub-contract between the plaintiff and the defendant dated 17th March 1976 is for a total sum of $1,170,000.00. In addition to the claim for extras, the multifarious quantities in the sub-contract are indisputably complex. There has been delay for various reasons known and unknown in the conduct of the proceedings on the part of the defendant, but the plaintiff has been compensated for in costs by the Registrar's order setting aside the judgment in default of appearance. Bona fide triable issues have been shown, and the attitude of the defendant both in the conduct of its defence and its communication with the plaintiff cannot be fairly condemned as materials for suspicion. In the circumstances, in my view, there is nothing in these proceedings to warrant the imposition of terms. Moreover, as I have said, the plaintiff's costs of and thrown away by the defendant's application to set aside the judgment in default of appearance have been adequately compensated for by the order of the learned Registrar. In the result, the learned Registrar has, in my view, come to a right decision in setting aside the default judgment and granting an unconditional leave to the defendant to defend. For all these reasons, I order that the appeal be dismissed with costs against the plaintiff for the defendant.

Representation:

Mr. Edward Chan instructed by Messrs. Wilkinson & Grist for Plaintiff.

Mr. R.E. Mayne instructed by Johnson, Stokes & Master for Defendant.