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HCA009862A/1991
| IN THE SUPREME COURT OF HONG KONG |
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| HIGH COURT |
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| BETWEEN |
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|
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PAK LIK COMPANY (A FIRM) |
Plaintiff |
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and |
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SUNG FOO KEE, LIMITED |
Defendant |
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Coram: The Hon. Mr. Justice Waung (in Chambers)
Date of Hearing: 2nd, 4th, 5th & 6th October 1995
Date of Delivery of Judgment in Court: 15th March 1996
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JUDGMENT
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| 1. |
In 1989 and 1990 the Defendant was the Contractor of two large building projects in Hong Kong at Laguna City and at the University of Science and Technology (hereinafter referred to respectively as "Laguna" and "UST"). The Defendant employed the Plaintiff as one of its sub-contractors for the supply of dayworkers at the Laguna Project and at the UST Project. In respect of each Project, the Plaintiff in turn obtained its supply of labourers from various sub-sub-contractors and combined these labour supply with some small supply of its own workers. In respect of each of the two Projects, the Defendant as one would expect, kept elaborate and careful records of the daily supply of dayworkers to the Project Site by the Plaintiff and each day's record was signed by the Site Foreman, Site Agent and Site Quantity Surveyor of the Defendant. Often these daily records were further approved and signed by the Project Manager and/or Project Quantity Surveyor. The importance of the Defendant keeping good records of these daily supply by the Plaintiff of dayworkers to the Site is obvious as the Defendant in turn will need to rely on its own records when it makes its claim for payment to the employer developer. Payments by the Defendant to the Plaintiff for supply of dayworkers were based on these carefully kept records of the Defendant and regular payments were made by the Defendant to the Plaintiff on these carefully kept records without any problem from August 1990 until September 1991. Then payments stopped and the Plaintiff pressed for outstanding payments owing to the Plaintiff of some $14 million but without success, so immediately the Plaintiff commenced this Action against the Defendant and the Writ was issued in December 1991. This was some 4 years ago. The Plaintiff is still suing for this sum plus accrued interest and the Action is nowhere close to a Trial date. If the Defendant is right in its present contentions, undoubtedly there will be further interlocutory applications by the Defendant and I suspect the Plaintiff will not see the case being tried before 1998 and effectively it would mean that if the Plaintiff is ultimately successful, the Plaintiff would have been kept out of its money for a very long time. Notwithstanding the bold and novel nature of the case presented by the Defendant, ultimately the question is whether the Defendant is correct in its contentions. To enable proper consideration be given to the various applications now before the Court, a careful analysis of:- |
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(i) |
the practice adopted by the Plaintiff and the Defendant as to the working of labour supply to the Defendant and the record keeping of such supply of labour; |
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(ii) |
the development of the litigation |
is necessary.
| 2. |
The disputes between the parties went back a long time but effectively at the hearing before me, there are the following four applications which require determination by the Court:- |
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First |
The Plaintiff's application to Strike out the Amended Defence and Counterclaim and to have Judgment entered for the Plaintiff by reason of the persistent failure of the Defendant to comply with the Order for Further and Better Particulars of the Defence and Counterclaim; |
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Second |
The Plaintiff's application for Summary Judgment and/or for Interim Payment under Order 29 rule 10 of the Rules of the Supreme Court; |
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Third |
The Defendant's application for further specific discovery; |
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Fourth |
The Defendant's application to re-amend the Amended Defence and Counterclaim. |
LABOUR SUPPLIED UNDER THE LAGUNA & UST PROJECTS & THE DEFENDANT'S SIGNED DAYWORK RECORD SHEETS (DRS)
|
3.
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The Defendant was the contractor for the construction of the Laguna Project and the UST Project. The Laguna Project comprised of the construction of a large number of residential blocks and an indoor recreation centre/carpark complex. The work on the Laguna Project took place from October 1989 to April 1992. The UST Project work took place from September 1989 to September 1991. |
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4.
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The Plaintiff however was involved with these Projects not for their respective whole periods. The Defendant employed many sub-contractors for the supply of labour and the Plaintiff was only one of the many labour sub-contractors employed by the Defendant in these two Projects. What the Plaintiff did for the Defendant was to provide daywork labour to the Defendant under these two Projects and in the case of the Laguna Project the period of such provision of labour by the Plaintiff ran from 22nd May 1990 to 15th April 1991 and in the case of the UST Project the period was from 5th February 1991 to 15th August 1991. Thus the total period of the Plaintiff's involvement with the Laguna Project was just under one year and with the UST Project was 6 months. |
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5.
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For the Laguna Project the Plaintiff was paid for work done from 22nd May 1990 to December 1990. The claim of the Plaintiff in the Action is in respect of the period under Laguna Project from January 1991 to April 1991. In relation to the UST Project, the period of work done at UST was from February 1991 to August 1991 but only some $6 million was paid to the Plaintiff. Overall therefore, the non-payment by the Defendant is in respect of labour supplied by the Plaintiff from January 1991 to August 1991 and this is the subject of the claim by the Plaintiff in this Action. The purported defence to the claim is that for the whole period the Plaintiff was involved with both Projects, namely from May 1990 to August 1991, there were mistakes by the Defendant on the Daywork Record Sheet of the Defendant ("DRS") and the Defendant had overpaid the Plaintiff and that therefore the Defendant does not owe any money to the Plaintiff. Central to the whole case raised by the Defendant are the twin questions of:- |
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(a) |
mistakes of the Defendant in respect of DRS and |
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(b) |
overpayments by the Defendant as result of the mistakes. |
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A proper understanding of how the records of DRS came to be made by the Defendant and how these records governed the relationship between the Plaintiff and the Defendant is therefore essential, as the heart of the case of the Defendant is mistakes and overpayments. |
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6.
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Because of the huge quantities of DRS involved, only limited numbers of these DRS have been exhibited in the relevant Affidavits but to gain some understanding of how the system worked, I will describe just the first 9 pages of Exhibit "SCM-8" of 3rd Affirmation of Sze Chi Man dated 6th April 1995. These can be found at Bundle 3 pages 345 to 353 and they are the DRS signed by Lai Sung Mun, an Assistant Site Foreman at Laguna, which matter had been made much of by the Defendant. Although these DRS are not translated, a brief study of these DRS will give us an understanding of the way the documentation of DRS was put together and the detailed contemporaneous data recorded by the Defndant in such DRS. Page 345 is the DRS No. 50986 dated 15th April 1991. Following the translation of the format of these DRS at page 343, DRS No. 50986 at page 345 shows the following:- |
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(1) |
at the top left under the heading Site, that the DRS relates to Laguna Project Block 13 and that it was in respect of Daywork Subcontractor the Plaintiff; |
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(2) |
in the Date Box, the date on which the daywork was carried out which is 13th April 1991; |
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(3) |
in the Labour Trade Box, the labour involved was Hacker; |
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(4) |
in the No. of Labours Box, one worker was engaged; |
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(5) |
in the Working Time Box, that the work done was from 0800 to 1900 hours; |
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(6) |
in the Works Description Box, the location where the work was done which was on the 21st Floor living room and bedroom; |
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(7) |
in the Works Description Box, the nature of the work done which was hacking concrete around the air-conditioner openings; |
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(8) |
in the Remarks Box under Item 3 Company's Responsibility, the Defendant was responsible for 1.5 labour; |
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(9) |
in the space under the heading Recorded by Section Foreman/Assistant Foreman, two signatures being that of the Site Foreman and Site Assistant Foreman dated 15th April 1991; |
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(10) |
in the space under the heading Rechecked by Site Agent, the signature of the Site Agent dated 15th April 1991; |
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(11) |
in the space under the heading Rechecked by Site QS, the signature of the Site QS (Quantity Surveyor) dated 15th April 1991; |
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(12) |
in the space under the heading Approved by Project Manager, the signature of the Project Manger dated 16th April 1991. |
| 7. |
The 8 pages following page 345 shows 8 different DRS in relation to 8 different workdays for various work at different locations. Therefore, without going into details of the nature of the work:- |
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(i) |
Page 346 is in respect of DRS No. 62695 for hacker work, done on 4th April by one worker from 0800 to 1900 on the 1st Floor open terrace Unit A; |
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(ii) |
Page 347 is in respect of DRS No. 62698 for hacker work, done on 7th April by 2 workers from 0800 to 1900 on the 1st Floor open terrace Unit E and Unit D; |
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(iii) |
Page 348 is in respect of DRS No. 62696 for hacker work, done on 5th April by one worker from 0800 to 1900 on the 1st Floor open terrace Unit B; |
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(iv) |
Page 349 is in respect of DRS No. 62691 for hacker work, done on 1st April by 2 workers from 0800 to 1900 on the 18th and 19th Floor; |
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(v) |
Page 350 is in respect of DRS No. 62692 for hacker work, done on 2nd April by one worker from 0800 to 1900 on the 20th Floor; |
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(vi) |
Page 351 is in respect of DRS No. 62694 for hacker work, done on 3rd April by 2 workers from 0800 to 1900 on the 21st and 22nd Floor; |
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(vii) |
Page 352 is in respect of DRS No. 50985 for hacker work, done on 12th April by one worker from 0800 to 1900 on the 24th Floor; |
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(viii) |
Page 353 is in respect of DRS No. 62666 for cleaner work, done on 1st April by one worker from 0800 to 1800 on G Unit and on 4th to 3rd Floor. |
| 8. |
It can be readily seen from the above account that in respect of each DRS, the information filled in by the Defendant's own responsible staff consists of something like 12 items of important data, namely:- |
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(1) |
Block No. or other part of Laguna Project; |
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(2) |
the day on which daywork was carried out; |
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(3) |
the type of labour whether hacker or unskilled labourer, etc.; |
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(4) |
how many workers were involved; |
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(5) |
from what hour to what hour work was done; |
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(6) |
the location where the work was done, namely on which floor at what unit; |
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(7) |
the detailed nature of the work done; |
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(8) |
the Defendant's responsibility for number of workdays labour; |
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(9) |
the recording of the above data by the Section Foreman/Assistant Foreman, and the signature thereof; |
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(10) |
the rechecking of the above data by the Site Agent and his signature thereof; |
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(11) |
the rechecking of the above data by the Site QS and his signature thereof; |
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(12) |
the approval of the above data by the Project Manager and his signature thereof. |
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Sometimes one can also find the signature of the Project QS as further approval of a particular DRS as can be seen for example at page 341 with translation at page 343, showing the signature of the Project QS on 26th April 1991. |
| 9. |
However, the filled in parts of the DRS are not the only relevant contents of these documents. What is also equally important is the printed Note at the bottom of the DRS. The translation of the Note of the DRS at Page 343 reads:- |
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"
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(1) |
This Daywork Record Sheet will be void unless recorded by the foreman in charge on the same day or the day after and re-checked by Site Agent and Site Q.S. within 2 days. |
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(2) |
All Daywork Record Sheets shall be re-checked and the duplicate sent to the Daywork Sub-contractor for payment application purpose within three days from the date the daywork was carried out otherwise the Daywork Sub-contractor has the right to refuse to supply labour to Sung Foo Kee, Limited. |
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(3) |
The duplicate of this Daywork Record Sheet must be submitted to the Company by the Daywork Sub-contractor for payment application within one month of the date the daywork was carried out, it will become void on expiry of the time limit." |
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10.
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The scheme or arrangement whereby the labour was supplied to the Defendant by the Plaintiff was therefore a reliance by the Plaintiff on the Defendant's data and signatures contained in the DRS and on said reliance, credit was given by the Plaintiff to the Defendant instead of the Plaintiff being paid at the end of every day's work. As can be seen from paragraph 9 of the 3rd Affirmation of Sze Chi Man dated 6th April 1995, the DRS was prepared in triplicate by the Defendant and after check and control by the Defendant pursuant to the format set out in the DRS, one of the triplicates of the DRS was then given by the Defendant to the Plaintiff. This copy DRS given to the Plaintiff by the Defendant is the basis of application for payment by the Plaintiff to the Defendant and the whole scheme is based on the agreement and understanding that what the Defendant's own layers of officials certified as work done and therefore money payable is to be relied upon by the parties and on which basis the Plaintiff provided continuous labour to the Defendant. What is important to bear particularly in mind is the provision in the Note in the DRS where the failure to provide duplicate of the DRS after 3 days gives the right to the Plaintiff to withhold further labour supply to the Defendant. |
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11.
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It was on the basis of this working of the DRS that the Plaintiff as sub-contractor was willing to carry out work, give credit to the Defendant in the meantime and continued to carry out work for the Defendant. As said earlier, the Plaintiff was paid for work carried out in accordance with the DRS for the period of work done up to December 1990. I do not believe there is any dispute that payment was made periodically on the Payment Applications from the Plaintiff to the Defendant. Then payment stopped in September 1991. It is interesting to note that the time payment stopped coincided with the time when work of the Plaintiff ceased. The Statement of Claim referred to:- |
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(A) |
Payment Application Nos. 34 to 44 for Laguna; |
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(B) |
Payment Application Nos. 1 to 12 for UST. |
| 12. |
For ease of convenience I will set out below the relevant page references from Bundle 4 of the Payment Applications in respect of Laguna:- |
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No. 34 at page 268-9 (Summary) & page 252-267 (Details of each DRS); |
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No. 35 at page 250-1 (Summary) & page 225-249 (Details of each DRS); |
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No. 36 at page 223-4 (Summary) & page 199-222 (Details of each DRS); |
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No. 37 at page 198 (Summary) & page 183-197 (Details of each DRS); |
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No. 38 at page 179-182 (Summary) & page 138-178 (Details of each DRS); |
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No. 40 at page 136-7 (Summary) & page 106-135 (Details of each DRS); |
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No. 41 at page 105 (Summary) & page 80-104 (Details of each DRS); |
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No. 42 at page 79 (Summary) & page 68-78 (Details of each DRS); |
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No. 43 at page 66-67 (Summary) & page 46-65 (Details of each DRS); |
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No. 44 at page 45 (Summary) & page 42-44 (Details of each DRS); |
| 13. |
For the UST Project, the page references of the Payment Applications are to be found in Bundle 4A:- |
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No. 1 at page 556 (Summary) & page 544-555 (Details of each DRS); |
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No. 2 at page 543 (Summary) & page 526-542 (Details of each DRS); |
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No. 3 at page 525 (Summary) & page 510-524 (Details of each DRS); |
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No. 4 at page 509 (Summary) & page 489-508 (Details of each DRS); |
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No. 5 at page 488 (Summary) & page 461-487 (Details of each DRS); |
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No. 6 at page 459-460 (Summary) & page 433-458 (Details of each DRS); |
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No. 7 at page 431-432 (Summary) & page 399-430 (Details of each DRS); |
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No. 8 at page 397-398 (Summary) & page 369-396 (Details of each DRS); |
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No. 9 at page 367-368 (Summary) & page 338-366 (Details of each DRS); |
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No. 10 at page 336-337 (Summary) & page 309-335 (Details of each DRS); |
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No. 11 at page 307-308 (Summary) & page 290-306 (Details of each DRS); |
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No. 12 at page 289 (Summary) & page 270-288 (Details of each DRS); |
| 14. |
A glance at the details of the various Payment Applications will reveal that the Payment Application is made up in each case of a very large number of claims by way of DRS. Thus for example as can be seen from Bundle 3 page 252 to 267, Payment Application No. 34 for Laguna was made up of the following DRS:- |
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40825, 40851, 40853, 40058, 40855, 40856, 40857, 38929, 38942, |
|
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40051, 40059, 40861, 40862, 17799, 17789, 38853, 38855, 38930, 38941, |
|
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40052, 40060, 17800, 38856, 38857, 38859, 38931, 38940, 40053, |
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40061, 40829, 32007, 38860, 38862, 38863, 38932, 38939, 40054, |
|
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40062, 40826, 40830, 40835, 38865, 38866, 38867, 38930, 40055, 40063, |
|
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40827, 40831, 40934, 40936, 32009, 32009, 32009, 32036, 38868, 38869, |
|
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38870, 38934, 38937, 40056, 40064, 40837, 40838, 40933, 40937, 23191, |
|
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23196, 23688, 32037, 35210, 35210, 35210, 36124, 36125, 38935, 38936, |
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40057, 40932, 40938, 23192, 23197, 23689, 32025, 32025, 32038, 35211, |
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38953, 38959, 40843, 23193, 23198, 23690, 32026, 32026, 32039, 38365, |
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38958, 38961, 38963, 40847, 23691, 32027, 32027, 32027, 32031, 32040, |
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38366, 38951, 38957, 40845, 23249, 23692, 27866, 32028, 32028, 32032, |
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32041, 38956, 38967, 40846, 23250, 23250, 27867, 32029, 32033, 32043, |
|
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38382, 38384, 38385, 38954, 38955, 38966, 23248, 27863, 27864, 32030, |
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32030, 32034, 32044, 38383, 38387, 38388, 38965, 51711, 51712, 23247, |
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27865, 32035, 32045, 38968, 38969, 51713, 51714, 32046 |
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It can be readily seen that something like 150 DRS made up the subject matter of Payment Application No. 34. Therefore in respect of the outstanding unpaid Payment Applications Nos. 34 to 44 for Laguna and partially unpaid Payment Application Nos. 1 to 12 for UST, two or three thousand individual DRS are relied upon by the Plaintiff. Each of these DRS was relied upon by the Plaintiff because it was signed by senior persons varying from 3 to 6 officers of the Defendant. |
| 15. |
Similarly, in relation to the past payments (under previous Payment Applications Nos 1 to 33 in respect of Laguna) already made to the Plaintiff by the Defendant, the same arrangement also applied. As I understand the material put before me, it is not in dispute that in relation to Laguna in respect of each and every one of the Plaintiff's Payment Application prior to No. 34, payment had been made and that the payments were all made pursuant to the thousands of the DRS which formed the subject matter of the paid Payment Applications. The relevance of these past paid DRS to the present proceedings is to what extent these thousands of DRS under these paid Payment Applications were mistakes of the Defendant and what were the overpayments in respect of these paid DRS. |
HISTORY OF LITIGATION
| 16. |
With the above account of:- |
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(a) |
the historic dealings between the Plaintiff and the Defendant in the working of the supply of labour; |
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(b) |
the arrangement for the recording and certification of labour supplied; and |
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(c) |
the payment of labour supplied, |
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I can now proceed to describe briefly the history of litigation between the Plaintiff and the Defendant leading up to the making of the four applications before me. |
| 17. |
Upon the failure by the Defendant to effect any payment after September 1991, proceedings were issued by the Plaintiff against the Defendant. I set out below a brief chronology of the steps taken in the proceedings:- |
| STEP NO. |
DATE |
DESCRIPTION OF STEP TAKEN |
| 1. |
23 Dec. 91 |
Plaintiff issued Writ with Statement of Claim endorsed thereon |
| 2. |
31 Jan. 92 |
Defendant served Defence and Counterclaim alleging mistake in the calculation of mandays and counterclaimed for overpayment due to such mistake. The Defendant said that particulars of mistake and overpayment would be supplied after discovery of the Plaintiff's documents. |
| 3. |
14 Feb. 92 |
Plaintiff served Reply and Defence to Counterclaim denying mistake and overpayment |
| 4. |
1 April 92 |
Defendant served Amended Defence & Counterclaim with same allegations of mistake and overpayment |
| 5. |
9 April 92 |
Plaintiff filed its List of Documents |
| 6. |
16 April 92 |
Defendant filed its List of Documents |
| 7. |
4 May 92 |
Plaintiff filed its Supplementary List of Documents |
| 8. |
18 May 92 |
Defendant filed its Supplementary List of Documents |
| 9. |
21 May 92 |
Plaintiff filed its Request for Further and Better Particulars of the Defendant's Amended Defence and Counterclaim relating to Defendant's allegation of "mistake on the actual number of workers provided and particulars of the amount of over-payment" |
| 10. |
4 June 92 |
Defendant filed its Further and Better Particulars of Amended Defence and Counterclaim averring that "... particulars of mistake and overpayment .... would be given after discovery of the Plaintiff's documents ...." |
| 11. |
18 June 92 |
Plaintiff filed its 2nd Supplementary List of Documents |
| 12. |
19 June 92 |
Plaintiff issued Summons seeking Further and Better Particulars of the Defendant's allegation of mistake and overpayment |
| 13. |
25 June 92 |
Plaintiff FB Particulars Summons (Step 12) adjourned by Master Beeson upon indication that the Plaintiff's Summons would be resisted |
| 14. |
1 Sept 92 |
Order by Consent of Master Bokhary on Plaintiff's Summons under Step 12 that the Defendant to provide within 8 weeks, Further and Better Particulars of the allegation of mistake and overpayment |
| 15. |
2 Nov. 92 |
Time for compliance with Order of Master Bokhary having elapsed without any step being taken by the Defendant to comply with that Order, Plaintiff issued Summons to strike out the Amended Defence and Counterclaim on the ground of Defendant's failure to comply with the Order of Master Bokhary |
| 16. |
3 Nov. 92 |
Defendant issued Summons seeking an extension of 21 days from the day of the Order to be made in that Summons, to comply with the Order of Master Bokhary (Step 14) |
| 17. |
19 Nov. 92 |
Order by Consent of Master Woolley that time for compliance of Order of Master Bokhary be extended to 27th November 1992 |
| 18. |
28 Nov. 92 |
Time (extended time to 27th Nov. 92) for second compliance with Order of Master Bokhary having elapsed without any step being taken by the Defendant to comply with that Order, Plaintiff issued Summons to strike out the Amended Defence and Counterclaim on the ground of Defendant's second failure to comply with the Order of Master Bokhary under the extended time Order |
| 19. |
4 Dec. 92 |
On the hearing of the Plaintiff's Summons (Step 18), Master Woolley ordered that unless the Defendant serve a Further Reply to the Request for Further and Better Particulars of the Amended Defence and Counterclaim pursuant to the Order of Master Bokhary at or before 4 p.m. on 18th December 1992, the Amended Defence and Counterclaim be struck out and Judgment be entered for the Plaintiff for the relief claimed in the Amended Statement of Claim with costs |
| 20. |
18 Dec. 92 |
Defendant filed a document entitled Further Reply to the Amended Request for Further and Better Particulars of Amended Defence and Counterclaim pursuant to Order of Master Bokhary |
| 21. |
16 July 93 |
Plaintiff issued Summons for inspection of documents listed in the Defendant's List of Documents |
| 22. |
30 July 93 |
Defendant issued Summons for specific discovery of documents set out in a list |
| 23. |
10 Aug. 93 |
Plaintiff complied with the Defendant's Summons (Step 22) and made an Affirmation |
| 24. |
3 Sept. 93 |
Master Cheung ordered against the Defendant specific discovery of Documents |
| 25. |
14 Sept. 93 |
Plaintiff issued Summons to strike out the Amended Defence and Counterclaim on the ground that the Defendant failed to comply with Master Cheung's Order for specific discovery |
| 26. |
15 Sept. 93 |
Defendant filed an Affirmation purporting to comply with part of Master Cheung's Order for specific discovery and Defendant issued Summons to extend time to comply fully with Master Cheung's Order for specific discovery |
| 27. |
9 Mar. 94 |
Master Bokhary gave further direction including inter alia exchange of witness statements and expert reports |
| 28. |
21 Mar. 94 |
Plaintiff filed its 4th Supplementary List of Documents |
| 29. |
12 April 94 |
Defendant issued Summons for specific discovery of documents in a List |
| 30. |
24 June 94 |
Plaintiff filed 5th Supplementary List of Documents |
| 31. |
28 June 94 |
Defendant withdrew its Summons for specific discovery of documents in a List (Step 29) |
| 32. |
18 Nov. 94 |
Plaintiff issued Summons to compel Defendant's compliance with Master Bokhary's Order of 9th March 94 for exchange of witness statements and expert reports |
| 33. |
25 Nov. 94 |
Defendant issued Summons for Specific Discovery of Documents (Third Application now being heard by me) |
| 34. |
15 May 95 |
Plaintiff issued Summons to strike out the Amended Defence and Counterclaim on the ground of failure by the Defendant to comply with Court Order (First Application now being heard by me) |
| 35. |
15 May 95 |
Plaintiff issued Summons for Summary Judgment and/or for Interim Payment under Order 29 Rule 10 (Second Application now being heard by me) |
| 36. |
22 Aug. 95 |
Defendant issued Summons to amend the Amended Defence and Counterclaim (Fourth Application now being heard by me) |
FIRST APPLICATION
STRIKE OUT FOR FAILURE TO COMPLY WITH UNLESS ORDER
|
18.
|
Of the four major applications now being heard by me, it seems to me that the one logically calls for first determination is the Strike Out Application of the Plaintiff namely the Summons that the Amended Defence and Counterclaim should be struck out and Judgment entered for the amount claimed, on the ground that there was non-compliance with the Order of Master Woolley (Step 19 of the Table). For the proper determination of this application, it is necessary:- |
| |
(i) |
to consider the pleadings and in particular the issues raised by the Amended Defence and Counterclaim; |
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(ii) |
to have regard to the Orders made and the steps taken by the Defendant in purported compliance of the Orders; |
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(iii) |
to consider whether there was proper compliance or disregard of Master Woolley's Order and in the light of the authorities, to reach a decision on whether the Amended Defence and Counterclaim should be struck out and Judgment entered against the Defendant. |
| 19. |
The claim of the Plaintiff against the Defendant is simple, based on the Payment Application Nos. 34-44 for Laguna and Nos. 1-12 for UST and as had been explained earlier these documents incorporated the thousands of DRS which made up these Payment Applications or what are described in the Statement of Claim as Invoices. In other words the case of the Plaintiff is based simply on the thousands of DRS signed by the Defendants Site Foreman, Site QS, Site Agent, Project QS and Project Manager. It is the pleaded case in the Amended Defence and Counterclaim which is really material. Paragraphs 3, 4 and 10 of the Amended Defence and Counterclaim plead:- |
| |
"3. |
The Defendant has paid the Plaintiff a total sum of HK$45,792,599.12 for the provision of the workers in the two projects:- |
|
| |
|
Particulars |
|
| |
|
|
HK$ |
|
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Laguna City Project |
|
39,595,191.52 |
|
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UST Project |
|
6,197,407.60 |
|
| |
|
Total: |
45,792,599.12 |
|
| |
4. |
As a result of mistakes on the actual number of workers provided, the Plaintiff has been overpaid by the Defendant for the provision of workers in the 2 projects. Particulars of the overpayment will be given after discovery of the Plaintiff's documents. |
|
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5. |
.......... |
|
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6. |
.......... |
|
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7. |
.......... |
|
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8. |
.......... |
|
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9. |
.......... |
|
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|
COUNTERCLAIM |
|
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10. |
The Defendant repeats paragraphs 1-4 herein." |
|
| 20. |
The pleaded case of the Defendant therefore is that:- |
| |
(1) |
There were mistakes by the Defendant on the actual number of workers provided; |
| |
(2) |
As result of the mistakes of the Defendant, the Defendant overpaid in the past the Plaintiff; |
| |
(3) |
Particulars of the overpayment will be given after discovery by the Plaintiff; |
| |
(4) |
the Defendant counterclaims for the pleaded overpayment. |
| 21. |
The Order of Master Bokhary of 1st September 1992 for the Defendant to serve answer to the Request for Further and Better Particulars of the Amended Defence and Counterclaim consist of the following 2 relevant Requests, namely Request 2 and Request 3. They read as follows:- |
| |
"2(i) |
Of the allegation that in the Laguna City Project there were mistakes on the actual numbers of workers provided by the Plaintiff resulting in overpayment by the Defendant to the Plaintiff. |
|
|
(a) |
specify each mistake relied on and in relation to each mistake state when the mistake is alleged to have occurred, what is alleged to be the actual number of workers provided, all particulars of facts, matters and circumstances relied on to show there was such a mistake and what is alleged to be the amount of the corresponding overpayment and how the same is calculated. |
|
| |
3(i) |
Of the allegation that in the UST Project there were mistakes on the actual numbers of workers provided by the Plaintiff resulting in overpayment by the Defendant to the Plaintiff. |
|
| |
(a) |
give similar particulars as requested in 2(i)(a) herein mutatis mutandis;" |
|
| 22. |
(1)
|
It is to be observed that Request 2 seeks Further and Better Particulars in respect of Laguna and Request 3 seeks Further and Better Particulars in respect of UST. |
| |
(2)
|
For Laguna, the Particulars sought is in general terms and therefore not confined to either the Invoice Numbers or Payment Applications Nos. 34 to 44 pleaded in the Statement of Claim or to the Invoices prior to No. 34. The Particulars sought in fact extend to all Invoices and to the DRS incorporated into these Invoices or Payment Applications. |
| |
(3)
|
For UST, again the Particulars sought is in general terms and therefore not confined to either the Invoice Numbers or Payment Applications Nos. 1-12 pleaded in the Statement of Claim or to other Invoices, The Particulars sought in fact extend to all Invoices and to the DRS incorporated into these Invoices or Payment Applications. |
| |
(4) |
In relation to each of these two groups of Particulars sought, it is to be observed that the particulars sought are of 6 categories, namely:- |
| |
(a) |
each mistake made by the Defendant to be specified; |
| |
(b) |
in relation to each mistake, the time when it occurred; |
| |
(c) |
in relation to each mistake, the actual number of workers alleged to be provided; |
| |
(d) |
all particulars of facts, matters and circumstances to show there was such mistake; |
| |
(e) |
the amount of corresponding overpayment as result of mistake; |
| |
(f) |
the calculation of the amount of alleged overpayment due to the Defendant's mistake. |
| |
(5) |
Having regard to the fact that it is the total of these large number of DRS which form the subject of each Payment Application, the real defence and counterclaim of the Defendant and the real dispute raised by the Defendant must be on alleged mistake relating to the DRS and the overpayment under each DRS by reason of the alleged mistake under the DRS. |
| |
(6) |
In my judgment, in relation to the Defendant's pleaded case of mistake and overpayment, the particulars sought by the Plaintiff from the Defendant in respect of each of the 2 groups are the 6 categories of particulars under (4) above for each of the DRS. |
|
23.
|
It is now necessary to analyze with some care what exactly are the particulars sought by the Plaintiff The extent to which the answer of the Defendant to these Requests can be considered wholly inadequate must be measured by the scope and nature of the Requests. The answer to the question of whether an Order of the Court for Further and Better Particulars had been complied with and whether the steps taken by the Defendant to comply with the Order were merely illusory is to a large extent dependent on comparing the scope of the Request to the scope of the answers given by the Defendant in answer to the Request. |
|
24.
|
What led to the making of the Unless Order of Master Woolley of the 4th December 1992 ("Woolley Unless Order") is the initial failure of the Defendant in June 1992 (Step 10) to answer the Plaintiff's Requests of May 1992 (Step 9) followed by repeated non compliance of the subsequent Orders of the Court made by Master Bokhary (Step 14) and Master Woolley (Step 17). But before I consider the substance of the Defendant's document of 18th December 1992 (Step 20) which is the purported compliance of the Woolley Unless Order (Order 19), I will first examine the Particulars of the Defendant filed in June 1992 (Step 10). |
| 25. |
|
In answer to Request 2 relating to Laguna City, the Answer given by the Defendant consisted of inter alia the following:- |
| |
"The requests formulated by the Plaintiff do not arise from the Defendant's pleadings. Nevertheless, so far as particulars of the mistakes and overpayment are concerned, the Defendant stated in its Defence and Counterclaim that particulars would be given after discovery of the Plaintiff's documents. Inspection of the Plaintiff's documents took place on 6 May 1992 and copies of the Plaintiff's documents were received on 14 May 1992. They are being checked against the Defendant's own documents and the Defendant reserves its right to seek further discovery by the Plaintiff. Until the document have been thoroughly checked, the best particulars which the Defendant can give in relation to the Laguna City Project are as follows:- |
|
| |
..............." |
|
1. The Answer under Request 2 then went on to state:-
| |
(1) |
what was alleged by the Defendant to be the number of workers in the Laguna recorded and claimed by the Plaintiff as shown in the DRS for period between 10th October to 20th November 1990 (a period of some 40 days only); |
| |
(2) |
the alleged maximum number of workers in both Projects based on some disclosed records of the Plaintiff; |
| |
(3) |
the number of workers engaged by the Plaintiff for Laguna according to an agreement signed by the Plaintiff and the Defendant; |
| |
(4) |
the Plaintiff being paid twice of some 8 items for June and August 1990. |
| |
It is vitally important to bear in mind that having regard to the nature and contents of the DRS and the manner and basis upon which labour was supplied by the Plaintiff to the Defendant, there was a heavy burden for the Defendant to discharge when the Defendant alleged mistake and overpayment. The mistake must be that of the Defendant because it was the Defendant who kept the DRS record and it was the Defendant who made the payment. The question to ask is always what was the mistake of the Defendant, was it in the recording of the DRS and if so what exactly was the mistake, was it in any of the particular 12 items of the DRS, such as was it in the number of workers, the timing of hours worked, the location of work, the nature of work, the company's responsible labour mandays, the signatures. If the mistake was in the payment, then again precisely what was the mistake in relation to the payment of any particular DRS. It is the Defendant's own documents and own records which could or should reveal any alleged mistake of the Defendant and it is not in the Plaintiff's records that these mistakes could be found. What is relevant in relation to every DRS which is sought to be disputed as being subject of a mistake by the Defendant is to ascertain whether there was a mistake in any of the 12 items of data recorded in the DRS by the Defendant's employees. Which of the 12 items in the DRS does the Defendant say was mistaken and what is the basis of the Defendant saying that a mistake was made by the Defendant with that item. It is only when a particular mistake under a particular item in a particular DRS had been sufficiently particularised, could the Defendant then begin to say what was the overpayment which resulted from the particular mistake. All these are what I expect ought to be properly pleaded when there was a legitimate defence on mistake of the DRS to resist a claim based on DRS or when it is sought to raise a counterclaim based on mistake and overpayment. A fully particularised mistake in a particularised DRS is the foundation of any case based on mistake and overpayment. Having regard to the nature of the DRS, a case of overpayment does not even begin to get off the ground unless a plausible case of mistake of DRS had been properly pleaded. If the defence is not that there was a mistake with DRS but a particular past payment was made for too much and in excess of what was in the DRS, then again that mistake could be clearly specified. Reading the answers to Request 2 (see page 50-51 of Bundle 1) it is quite clear to me that apart from the answers being mostly non sequiturs, no attempt was made to answer the 6 categories of particulars sought by the Request. In the circumstances, it is not surprising that subsequent Orders had to be made compelling the Defendant to answer Request 2. |
|
26.
|
In relation to answer to Request 3, namely that relating to UST, the answers given were even more disgraceful. It purported to repeat its answers to Request 2 when clearly at least 3 of the answers under Request 2 related to only Laguna (1, 3, and 4). Then it referred to nightworkers exceeded dayworkers for some days in March and April 1991 and to a reservation of the Defendant to claim overpayment of $1,000,000. That is the sum total of the particularisation of the pleaded case of mistake and overpayment in relation to UST. My earlier observations on answers to Request 2 can be repeated and again the case clearly called for Orders compelling proper answers to be given by the Defendant. |
|
27.
|
My earlier chronology shows the Order of Master Bokhary (Step 14) and Order of Master Woolley (Step 17) compelling proper particulars to be given to Request 2 and Request 3. But both of these Orders were not obeyed by the Defendant thus leading to the making of the Woolley Unless Order (Step 19). The Defendant filed a document on 18th December (Step 20) purporting to comply with the Woolley Unless Order. The question under this First Application is whether that document could be said to be a real compliance or an illusory compliance with Woolley Unless Order. |
| 28. |
I will turn first to the answer to Request 3 because it provides an immediate answer to my last question. That answer to Request 3 reads:- |
| |
"(i) |
(a) |
The Defendant paid the Plaintiff a total sum of HK$132,160 during the month of September 1990 when the Plaintiff did not provide any workers for the UST Project." |
|
At the hearing before me, Mr. Clayton readily conceded that this answer must be abandoned as it has no relevance and that no useful answer was given for the Requests in relation to UST. There was therefore no proper particulars of any kind supplied under Request 3. There was not even a semblance of an effort to comply with the Woolley Unless Order.
| 29. |
The answer to Request 2 in the document of the Defendant dated 18th December 1992 pleaded 3 matters:- |
| |
(1) |
The Plaintiff had not made full discovery and the Defendant is making further application for discovery and therefore cannot particularise more. |
| |
(2) |
For the period between 1st January 1991 to 15th January 1991, a comparison between the DRS and the notebooks disclosed by the Plaintiff indicated an overpayment of $545,560. |
| |
(3) |
For the period between June 1990 and January 1991, the amount the Plaintiff ought to receive from the Defendant should only be some $32 million, which was arrived at by multiplying a total calculated outgoing of the Plaintiff of $25 million to a calculated profit margin of 27.8%. As the Plaintiff had received from the Defendant some $36 million during that period therefore the Defendant contended that the overpayment to the Plaintiff for that period must be some $4.4 million. |
|
30.
|
As will be clear from my subsequent wholesale rejection of the general approach of the Defendant to the Defence and Counterclaim in this Action, it is my judgment that the Amended Defence and Counterclaim is an abuse of the process of the Court and to my mind raised no triable issue or defence. But even if it might be considered that there is some scope for this sort of general approach of the Defendant, which for the sake of convenience I will call such the "Financial Analysis Approach", the pleading in answer to the Request for Further and Better Particulars must nevertheless at least contain sufficient particulars as to show a real attempt to comply substantially with an unless order. In relation to the 6 categories of particulars requested in Request 2, I could see that 4 categories had not been answered, namely the first four all relating to mistakes. This glaring omission in the answer of the Defendant highlights the central fatal weakness of the Defendant and this is what the whole history of the case is about, namely the inability of the Defendant to plead in 1992 or in 1996 or in between or thereafter, a proper case of mistake. This is why in its latest application (the Fourth Application being heard by me) the Defendant had simply tried to abandon all reference to mistake. But without a case of mistake, the Defendant had no case, as it could not explain away all the signed DRS. |
|
31.
|
The heart of the dispute between the Plaintiff and the Defendant is really at the end of the day a very simple one, and it is whether the Defendant could ever successfully disown its DRS signed by all its Site and Project persons. If the Defendant could not convincingly disown its DRS, then the Defendant could not succeed on mistake and without establishing mistake, there could be no convincing case of overpayment as no court is ever going to be seduced (to use a polite expression) or misled into accepting by implication that there had been massive mistakes with the DRS, through the tortuous technical route of Financial Analysis Approach. At the end of the day, no matter how skilful or machiavellian are the experts and professionals, of and for the Defendants, and no matter how a non-specialist tribunal might find itself ensnared in the jungle of these masses of technical data, the fundamental and common sense question will always and ultimately be asked namely that in relation to each Project which must be separately considered, of the thousands of DRS signed by the Defendant's Project and Site persons, how many are unreliable and what is the basis of such unreliability and why did the Defendant make these large payments. Without a proper case of mistake by the Defendant, the Defendant has no hope of success with its Defence and Counterclaim and in reality this is a case of counterclaim in the old fashioned sense of the Defendant seeking repayment on past DRS. Having regard to my view of the nature of the case and the nature of the proper pleadings required, I have no doubt that the answers of the Defendant in its 18th December 1992 document in relation to the Laguna Request 2, fell woefully short of any standard of compliance. It was as illusory and contemptuous as all the Defendant's previous pleadings. It made no attempt to comply with the Woolley Unless Order in the same way as the Defendant previously disregarded the Orders of the Court. It did not attempt to answer because it was not able to do so and the Defendant could never do so having regard to the total lack of any case on mistake. I dare say that one can give the Defendant another 5 years of discovery of the Plaintiff's documents and the Defendant would still be unable to give proper particulars of mistake as it did not have and will never have a viable case on mistake. |
|
32.
|
This leaves me only to consider the consequence of the non compliance of the Woolley Unless Order and it was conceded by Mr. Clayton that there had been no waiver by the Plaintiff of its rights arising out of breach of the Woolley Unless Order. Before me it was debated the two approaches to an unless order. It was argued that the Woolley Unless Order is a time order and that therefore I should adopt the approach in Reiss v Woolf [1952] 2 Q.B. 557, namely that if it is a time order then I can only conclude that there should be an automatic strikeout if I come to the conclusion that the answer given in the document was clearly illusory. But if the Woolley Unless Order is not a time order then it is suggested that I should only order strikeout if I come to the decision that the Defendant had not complied with the Order and such non compliance was intentional and contumelious. It seems to me that although it does not make much difference at the end of the day, it would be fairer if I adopt the approach of regarding the Woolley Unless Order as a full compliance order and adopting that approach for reasons set out earlier, I have no difficulty in reaching the conclusion that there was no compliance with that Order. |
|
33.
|
The question then is should the court strike out the Amended Defence and Counterclaim and enter judgment or should the court having regard to the new pleading which is put forward allow the Defendant yet another chance. The authority of Re Jokai Tea Holdings Ltd. [1993] I AER 630 indicates that much may turn on the Court's finding on whether the non-compliance was intentional or contumelious. The history of the litigation and my analysis of the pleadings of the Defendant clearly show that in my view the Defendant had no intention of complying ever with the Woolley Unless Order. Twice the Defendant sought to avoid complying with the Orders of Master Bokhary and Master Woolley. For reasons why I will set out later, I find the Financial Analysis Approach of the Defendant to be an abuse of the process of the Court and their defiant act in response to the Woolley Unless Order was merely yet a further demonstration of the contumelious conduct of the Defendant. |
|
34.
|
I appreciate that this is a serious conclusion I have come to and that the result is disastrous for the Defendant. I take comfort however in two previous authorities where similar conduct led the Court to make similar draconian interlocutory orders. The first such instance is the well known case of Ka Wah Bank v Low Chung-song [1989] 1 HKLR 451. In that action, the defendant was fugitive from justice and were sued for damages for conspiracy. Unless order for discovery was made against the defendant. The list of discovery was filed in time but the list was incomplete and the address in the affirmation verifying the list was not a true address. On appeal the Court of Appeal held that there was a clear and deliberate failure to give discovery and that therefore the defence should be struck out and judgment entered for the plaintiff. Fuad, V.P. at page 461J to 462B said:- |
"... that each was in reality a "mere travesty of discovery" to adopt the language of Lord Wright in Myers v Elman or "illusory" to use the epithet employed by Devlin, J. and approved by Somerville, L.J. in Reiss v Woolf."
2. Hunter, J.A. said at page 464F:-
| |
".... this is a fundamental omission in the second schedule, which goes to the root of discovery. In the old days, blunter practitioners used to describe documents in this form as: "best read by holding them up to the light". A more polite way is to describe them as "illusory". |
|
| |
Finally, in my judgment at least, the formulae used in the further and better lists manifest a determination not to give proper discovery in this case at all. |
|
| |
In those circumstances, these defendants have demonstrated that they are not entitled to any indulgence from this Court." |
|
| |
The second case is the celebrated striking out case of Wharf Properties v Eric Cumine [1991] 2 HKLR 154 where the Privy Council struck out the Statement of Claim on the basis that it was an abuse of the process of the court. Lord Oliver at page 164E referred to Penlington, J.A.'s holding that the pleading approach of Wharf as being enough to make the action speculative litigation which should not be allowed to continue as being an abuse of the court's process. At page 165D, Lord Oliver said this:- |
".... It had been accepted that the particulars ought to be given and an unequivocal order, setting out the form that the particulars were to take, had been made. It had not been complied with and the so-called "particulars" served made it perfectly plain that it had deliberately not been complied with - going so far, indeed, as to state that the particulars which the judge himself had, after full argument, adjudged to be necessary were "unnecessary and had been deleted". Faced with the breach of the order which was avowed and contumacious, Mortimer, J. was asked if he was not prepared to strike out the pleading, at least to make an "unless" order for the particulars to be served within fourteen days. His decision, in so far as it rested (if it did) upon an opinion that the order had been adequately complied with, was plainly wrong and, in their Lordships' view, a refusal to make any order at all in the face of a clear breach of his previous order was equally plainly wrong. If Wharf were of the view that they had made an error in consenting to serve the particulars ordered, their proper remedy was not to flout the order but to apply back to the court for an indulgence. They did not do so but rested wither upon the untenable submission that the order had been complied with or upon the assertion that it might be complied with in the future to such extent as they felt appropriate after discovery. In their Lordships' judgment, the Court of Appeal rightly considered that it was able to exercise its own discretion in the matter."
| 35. |
Having regard to these two authorities, I have no doubt and I find that:- |
| |
(1) |
the answer of the Defendant to the Woolley Unless Order was a travesty of compliance and was illusory and no compliance whatsoever of the Order; |
| |
(2) |
the Defendant had made no effort whatsoever to comply with the Order; |
| |
(3) |
the Defendant was determined in relation to Request 2 and 3, not to give proper answers on mistake of the Defendant; |
| |
(4) |
the non-compliance of the Defendant was intentional and contumelious; |
| |
(5) |
the previous breaches of the Orders of Master Bokhary and Master Woolley were deliberate; |
| |
(6) |
the Defendant was not entitled to any indulgence from the Court; |
| |
(7) |
the Financial Analysis Approach pleading of the Defendant without properly pleading particulars of mistake was an abuse of the process of the court. |
|
|
particulars of mistake was an abuse of the process of the court. |
| |
In the circumstances, although draconian the order is, I have no hesitation in exercising my discretion which I do and I order that the Amended Defence and Counterclaim be struck out and Judgment be entered in favour of the Plaintiff in the amount claimed together with interests and costs of the action. |
SECOND APPLICATION
SUMMARY JUDGMENT AND/OR INTERIM PAYMENT
| 36. |
Strictly speaking my above conclusion effectively has disposed of the Action but in the event that I might be held to be mistaken on the matter of striking out I will proceed to consider the question of Summary Judgment and Interim Payment under Order 29 rule 10. |
| 37. |
The Plaintiff's application for Summary Judgment is straight forward based on the signed DRS incorporated into the Payment Applications or Invoices Nos. 34 to 44 for Laguna and Nos. 1-12 for UST. Is there any defence to these signed DRS. It is trite law that the obligation of the Defendant in resisting an Order 14 application is to condescend upon particulars and if the Defendant cannot condescend sufficiently or convincingly upon particulars as to show that there is a bona fide and believable defence, then Summary Judgment should be entered against the Defendant. I agree with Miss Eu that the Defendant cannot be heard to say that it suspected that it has a defence and upon discovery of the Plaintiff's documents, it might be able to substantiate its belief or assertion. As was said by Megarry, V.C. in Lady Anne Tennant v Associated Newspapers Group Ltd. [1979] FSR 298 at page 303:- |
"A desire to investigate obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to sufficient reason for refusing to enter judgment for the Plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism."
| |
The Defendant cannot be allowed, by the process of discovery to look for a defence from the documents of the Plaintiff. |
| 38. |
This litigation which had already taken some 5 years and in which the Defendant had managed to extract from the Plaintiff huge quantities of discovery demonstrate to my mind clearly that the Defendant was and is still seeking and will continue to seek, by the process of discovery, to establish a viable case against the Plaintiff. Did the Defendant ever have a viable case and if so what was that case. It may be instructive to know firstly what it was not. First, the Defendant had never pleaded or relied on a case of fraud so there was never any question that as result of fraud or conspiracy involving the Plaintiff and/or third parties, the DRS were fraudulently created. Secondly, there was and there is no pleaded case of any particular identified DRS being said to be mistakenly recorded or signed or paid. There was no individual identified DRS which had been singled out in the pleadings and alleged to be mistaken in any particular way (for example in respect of the one of the 12 items of data) and sought to be disowned by the Defendant. This aspect is particularly important in a building litigation when the claim is made up of thousands of pieces of work, each the subject of an individual claim and as in this case each the subject of an individual DRS. The only sensible and acceptable way that these building disputes could be resolved is by way of item by item contest in the pleadings (usually in the form of a Scott Schedule) as to what is the particular dispute under each individual DRS with full material facts in support of the particular dispute on a particular item in a particular DRS. Only in this way could the Court properly adjudicate on each and every particular dispute. But this was not done in this Action by the Defendant so it is not the case of the Defendant that any particular 100 or 500 or 1000 DRS were mistaken with details as to mistake and overpayment in respect of each individual DRS. What then is the defence. |
| 39. |
Before I consider the various defences sought to be relied on by the Defendant, it is worthwhile to emphasise that the Laguna Project and the UST Project are very different in nature. They cover different geographic areas, they involve different work, they entail different rates, they cover different periods and they involve different personnel, It is important to bear these matters in mind because as can be seen later very different considerations ought to apply to the two different Projects. |
| 40. |
I will first consider what defence there is to the claim under the UST Project. The 18th December 1992 document of the Defendant pleaded an overpayment of $132,160 but as I said earlier that obviously untenable case was abandoned by the Defendant and therefore effectively, there is no pleading of specific overpayment relating exclusively to UST. |
| 41. |
the partners of the Plaintiff. Chow was a foreman at UST but signed DRS totally only $147,000. There is no specific allegation that any of the DRS signed by Chow relating to UST was wrong. There is in fact no allegation relating to Chow even in the proposed amendment to the Amended Defence and Counterclaim. I agree with Miss Eu that any dealing between Chow and the partners of the Plaintiff are wholly irrelevant in this case. The Defendant is desperately trying to fish for a case involving Chow. Matters relating to Chow therefore gives rise to no defence in relation to the Plaintiff's claim in respect of the UST Project. |
| 42. |
Then finally there is covering both Projects, what I can only call the extraordinary forensic exercise undertaken by the Defendant and its professional advisers which commands horror for their devious ingenuity but it remains none the less totally devoid of any merit in the same way as I find most of the Defendant's case in this Action. What the Defendant tried to do is to perform a financial exercise based on an alleged market wage and alleged profit margin of the Plaintiff. In essence it relies on the following theory as to the Plaintiff's profitability:- |
| |
(i) |
From the Plaintiff's statement given to ICAC in respect of "casual workers", the Plaintiff paid their sub-contractors $180 per worker and received $230 per worker. In the premises the Plaintiff's profit/ratio was 78.3: 21.7; |
| |
(ii) |
The financial records disclosed by the Plaintiff was not consistent with this profitability ratio and therefore this casts doubt on the Plaintiff's claim. |
| |
I agree with Miss Eu when she said the whole exercise of the Defendant was a theory and has no connection with reality since profit ratio varied depending on a variety of factors such as:- |
| |
(a) |
whether workers were required to work outside normal hours; |
| |
(b) |
the type and number of workers engaged in the work; |
| |
(c) |
whether the workers were engaged directly by the Plaintiff or from their sub-sub-contractors. |
| |
Furthermore the theory rested on so many assumptions such as:- |
| |
(1) |
all the financial information relating to not just the Plaintiff 2 Projects with the Defendant at Laguna and UST, but all of the Plaintiff's other projects are fed into the financial theory calculation of the Defendant; |
| |
(2) |
total income of the Plaintiff (from all sources including projects which had nothing to do with this Action) for a given period was assumed; |
| |
(3) |
total sub-contractors costs of the Plaintiff for the same period was assumed |
| |
(4) |
the contractual relationship in the other projects remained the same as those in the 2 Projects; |
| |
(5) |
all the workers engaged in these other projects were supplied by the Plaintiff's sub-sub-contractors without themselves engaging anyone directly themselves; |
| |
(6) |
the wages of the labourers supplied to the Plaintiff and that supplied to the Defendant were at a flat rate irrespective of the type of workers involved and whether they were required to work overtime or overnight; |
| |
(7) |
payment of wages of labourers supplied to the Plaintiff were all made through the same accounts; |
| |
(8) |
all the sub-sub-contractors of the Plaintiff had been paid in full and there was no credit terms for supply of labourers (or other financial arrangements) for the supply of labourers by the Plaintiff's sub-sub-contractors. |
| |
The approach relied on by the Defendant is what I called earlier the Financial Analysis Approach namely to use selected records, apply various assumptions then by a serious of questionable financial operations arrived at a conclusion favourable to the Defendant. This is the approach which I had condemned as being wholly unacceptable in building disputes because instead of concentrating on each individual DRS and adjudicate on any real and bona fide dispute under that DRS, the court is being asked to go into the whole of the financial affairs of the Plaintiff including its work relating to other projects and receive evidence of wholly speculative nature and of questionable value. As a means of causing the maximum delay in litigation and inflicting the maximum oppression on the other side because it delves deep into the other sides' affairs, this approach to building dispute has obviously many attractions to the party resisting payments and to their professional advisers. But as far as the court is concerned, this approach cannot possibly be of any assistance or be sanctioned for it provides simply a roaming field for the party resisting payment and it provides as said in the Wharf judgment no agenda for trial. In my judgment it is an abuse of the process of the court to plead such a case and even worse to seek to advance such a case in a counterclaim for repayment or overpayment without having a solid case of mistake. This Financial Analysis Approach may cast a spell over an unsuspecting non-specialist tribunal but stripped to its naked reality, it is nothing but a conjuror's trick. In my judgment, the Defendant has no defence to the UST claim. |
| 43. |
I therefore turn to the claim of the Plaintiff in relation to Laguna. As I understand the argument of Mr. Clayton, he seeks on behalf of the Defendant to rely on the following defences:- |
| |
(1) |
The Financial Analysis Approach defence which covers both Projects; |
| |
(2) |
The claim is for $3.3 million too much having regard to the total invoiced sums and the amount already received; |
| |
(3) |
Notebook of sub-sub-contractors in respect of Laguna when compared to the DRS for 11 day period in January 1991 showed a discrepancy which applied throughout the whole period produced an overpayment of $8 million; |
| |
(4) |
The conviction of Lai foreman at Laguna for accepting money; |
| |
(5) |
$25 agreed reduction. |
| 44. |
Before analysing the individual matters raised by way of purported defence to the Laguna claim, I must remind myself that the purported defence of the Defendant is primarily in substance a counterclaim for repayment or overpayment by reason of Defendant's mistake and that in the absence of a case of mistake being properly pleaded or believable, the court is hardly likely to accept that there had been overpayment having regard to the fact that the burden of establishing mistake is high. In considering whether individual defences give rise to a credible defence, the Court must take into account this factor of lack of a case of mistake. It is of course different when an individual defence goes directly into one of the DRS being claimed in the Statement of Claim, then the question is not overpayment but only mistake of the DRS and whether it could be shown as result that any particular DRS or series of DRS must be wrong or cannot be relied on. |
| 45. |
I have earlier held that there is no substance in the Financial Analysis Approach defence in relation to the UST Project and the same applies to the Laguna Project. |
| 46. |
The second defence relied on by Mr. Clayton is that in any event the claim is for $3.3 million too much because the total invoices for Laguna and UST submitted to the Defendant by the Plaintiff is for $56.6 million and the total sum which the Plaintiff admitted to having received from the Defendant for the 2 Projects is $45.8 million, the difference is therefore $10.8 million which is $3.3 million less than the claimed figure of $14.2 million. Miss Eu's short retort to the above is that the parties are ad idem that for the work done at Laguna prior to Payment Application No. 34 the Plaintiff had submitted Invoices and had been paid in fall and the Defendant is not alleging that it had paid out on Invoices it had not received. It is therefore irrelevant to bring these earlier Invoices or amounts under these Invoices into the dispute to muddy the water. In any event. Miss Eu said that the Defendant had presented a total invoiced sum which is not correct as its list of invoices had obvious gaps in invoice numbers and mistake with invoiced sum such as with Invoice 43. Defendant admitted to have problem with missing record (see Affirmation of Patrick Ip verifying List of Documents). The Defendant's own incomplete documentation does not give rise to any arguable defence and this allegation relating to $3.3 million claim too much is just typical of the desperate attempt of the Defendant to scrape up any defence. I reject the second defence. |
| 47. |
The third defence raised is that a comparison of the notebooks disclosed by the Plaintiff and the DRS for the two weeks from 4th January 1991 to 15th January 1991 showed that the claimed mandays of the Plaintiff being 46.5% too high and that therefore applying this level of over-claiming through the whole Laguna Project of the Plaintiff it produced an overpayment of some $8.7 million. The first thing to note is that the notebooks were not those of the Plaintiff but were those of the Plaintiff's sub-contractors or its foreman since the Plaintiff was using sub-contractors to supply the labour apart from also using some of its own labour. There were different sub-contractors and different foremen for different blocks who kept different notebooks. Some of the notebooks were lost or were disposed of by these sub-contractors of the Plaintiff or by the foremen. The alleged period in question was a very short time and was deliberately picked out by the Defendant. Even one missing page of a note book or any loose sheet of one of the sub-contractors could have accounted for the discrepancy. No other period was chosen and no reason was advanced why this period was chosen or why such period could be representative or reliable. To extrapolate that deliberately chosen discrepancy and then to apply it to the whole Project is simply not a legitimate exercise. The extrapolation was not alleged in the 18th December 1992 document but time had emboldened the Defendant. It is to be noted that there was not even an effort in relation to the 11 days to specify in relation to each and every relevant DRS, a difference of mandays and to particularise properly the difference under each DRS and put forward a proper case of mistake and overpayment in respect of each such DRS. In the circumstances, I am not prepared to accept that there is a bona fide defence on the notebook discrepancy and I consider this defence as without merit. |
| 48. |
The fourth defence is that Lai Sung Mun's conviction for accepting bribe in return for overstating the number of day workers working at Laguna. It is first to be noted that there was and is (not even in the proposed amendment of the Defendant) no plea of fraud either of the Plaintiff or of Lai or even of the persons alleged to have given the bribe to Lai, namely the sub-subcontractor's foreman or employee, Li. There is no dispute that so far as the relevant DRS relevant to this Action, Lai was only involved with signing a small number of the DRS in Laguna. There is however no correlation between these DRS and the convictions nor is it clear that the bribe was paid to Lai so that he could inflate the DRS relied on by the Plaintiff. It must not be forgotten that Laguna City was a big project and that Lai was not a foreman for the Defendant just in relation to the Plaintiff's labour supply. Many other subcontractors were also involved. I do not over look what was said at paragraph 24 of the Chung Yiu Ming Affirmation that the total of DRS amounting to $523,387.50 were inflated but I am nevertheless doubtful as to the bona fide of the defence and in the circumstances, if the matter falls to be decided I would only be prepared to grant conditional leave to defend on the question raised relating to Lai but as particularised in Exhibit "CYM-6" on the basis of payment in of the disputed sum of $523,387.50. |
| 49. |
The fifth defence is that there was an agreed $25 deduction. Miss Eu contends that the concession made in the document for compensation to the Defendant was in return for prompt payment and this was not made as can be seen from the progress of this Action and therefore the Defendant is not entitled to any such $25 deduction. Furthermore, as the $25 applied only to casual labour and not to all labourers and therefore in the circumstances, even if there might be some form of deduction in respect of Laguna of $25, such deduction is very limited and certainly not as extending to overtime or overnight works as set out in Exhibit "CYM-9" of Chung Affirmation. The Appendix IV given to me by Miss Eu with her Supplementary Skeleton showed that the maximum possible deduction arising out of this $25 deduction point would be $905,550. This defence was not raised in the original pleading or even in the December 1992 document and I consider this defence to be at best shadowy. If summary judgment application requires to be decided, I will only grant conditional leave to defend on this matter of $25.00 deduction on condition that the sum of $905,550 be paid into court. |
| 50. |
In summary, if the summary judgment application has to be decided on the UST claim, I would have come to the conclusion that there should be summary judgment in the sum claimed of $5,330,453.00. On the Laguna claim, I would decide that there should be summary judgment against the Defendant in the sum of $8,891,276.00 less $523,387.50 and less $905,550, namely $7,462,338.50. I would also only grant conditional leave to defend for $1,428,937.50 limited to the DRS involving Lai and limited to the $25.00 deduction issue. |
THIRD APPLICATION
SPECIFIC DISCOVERY
| 51. |
In the light of the above decisions on the First and Second Application it is not necessary for me to decide the Third Application on specific discovery. However for the sake of completeness, I will merely indicate what would be my decision if the matter falls to be determined. |
| 52. |
It is salutary to remind oneself of the basic principles of specific discovery:- |
| |
(1) |
An Affidavit verifying discovery is prima facie conclusive; |
| |
(2) |
To overcome an Affidavit of documents, there must be established by a party seeking specific discovery, either specific documents or a class of documents that the documents sought:- |
| |
(a) |
do exist; |
| |
(b) |
are in the possession and custody and control of the other party; |
| |
(c) |
are relevant to the matter in issue between the parties; |
| |
(c) |
to be disclosed are necessary either for disposing fairly of the cause or matter or for saving costs. |
| |
|
(see Deak v Rothschild [1981] HKC 78 at page 801-81A); |
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(3) |
When discovery is sought as a class, they must be relevant as a class and not by reason of what the contents might reveal. As said by Tomlin, J. in Astra-National Productions v Neo-Art Productions Ltd. [1925] WN 218, where he said at page 220:- |
"A document might be relevant either by reason of its character-for instance, the mere fact that it was a document of a particular kind-or it might be relevant by reason of its contents, and if the applicant was relying upon a particular class of documents because they might have certain contents, in his view, it was not enough for him to say 'there must be this particular class of documents' unless the mere fact that they belonged to the class was sufficient to constitute relevancy. If the mere fact that they belonged to the class was not sufficient to constitute relevancy but the relevancy had to depend on the particular, then, it seemed to him there must be a prima facie case for contents made, under the rule, discovery could be granted."
| |
(4) |
A class of documents must be classified by its nature and not by its bearing on an issue. (see Deak v Rothschild at page 82F); |
| |
(5) |
Discovery should not be ordered to allow a party to fish for a case not yet pleaded; |
| |
(6) |
If discovery is oppressive or the probative value is slight or far outweighed by the inconvenience caused, then order for discovery would not be made. |
| 53. |
Notwithstanding the truly generous and largely unnecessary discovery which had been given by the Plaintiff to the Defendant, the Defendant is seeking further specific discovery of, what one. would call in general terms, banking documents in the form of bank statements, cheques, paid in and withdrawal slips, bank transfers records, records of movements of funds etc. It is an impressive list of documents the Defendant is after. To understand the justification for such a discovery application, I can do no better than to set out Mr. Clayton's Skeleton Argument on this aspect which said:- |
"There are three main reasons why the further documentation now sought is relevant to the issues in this action. First, as is addressed at paragraphs 21 to 27 of Mr. Bateson's affidavit of 9.1.95, the further documentation is relevant to the Defendant's case that the Plaintiff's financial records do not support a level of profit which would justify the claim made against the Defendant. Secondly, documentation is sought to identify the nature of the unidentified credits and payments referred to in paragraph 25(b) of Mr. Bateson's said affidavit. For the reasons set out in that paragraph, that documentation is relevant to the issues herein. Thirdly, very substantial amounts of money have, on present documentation, been paid to Chow Wai Sing by the Plaintiff (see paragraph 6 to 15 of Mr. Bateson's affidavit of 9.1.95). He was a foreman of the Defendant's at the relevant time working on, amongst other sites, the one at U.S.T. The statements which Chow Wai Sing and Chow Lai Ling, his sister and a partner in Pak Lik. made to the ICAC are inconsistent with these payments (see exhibit SB-5A). Mr. Sze gives evidence that payments were made to Chow Wai Sing's accounts to earn interest and the money was returned to Pak Lik (Mr Sze' Third Affirmation, para 14). The documentation sought would show whether this was the case or whether, as appears from the bank statements disclosed to date, the money was not returned and to whom it went. This issue also makes the documents sought relevant."
| 54. |
I will examine the last issue first, namely the documents connected to Chow. As I have said earlier. Chow was not even pleaded in the latest proposed amendments of the Defendant. No issue is raised in the pleadings by the Defendant in relation to Chow. This is a pure case of discovery sought to fish for a case not yet pleaded. In any event any discovery relating to Chow would be oppressive with hardly any probative value and certainly would not be necessary for disposing fairly of the cause or matter or to save costs. |
| 55. |
The second reason advanced by the Defendant is to identify the nature of the unidentified credits and payments into the Plaintiff's current account in order to confirm Mr. Bateson's theory. The Defendant's necessity to seek details of the current account of the Plaintiff is set out in paragraphs 25 and 34 of the 2nd Affidavit of Bateson and it only has to be read for the Court to conclude that:- |
| |
(a) |
as further explained below, there is no triable issue raised by the Defendant by reason of the Defendant's financial theory or what I called the Financial Analysis Approach; |
| |
(b) |
discovery sought to be made is not relevant to any proper issues in the Action; |
| |
(c) |
discovery sought to be made is not necessary for fairly dispose of the cause or matter or to save costs but will have the opposite effect, namely to make a trial which is already most unwieldy even more untriable; |
| |
(d) |
discovery sought to be made is only to fish further for a case; |
| |
(e) |
discovery sought to be made is oppressive in the extreme; |
| |
(f) |
discovery sought to be made has nil probative value and will be of no assistance to the court in deciding what exactly are the mistakes of the Defendant in the DRS and what exactly was the amount of overpayment. |
| 56. |
Then finally the first reason relied on by the Defendant for specific discovery is on the alleged case of the Defendant that the Plaintiff's financial records do not support a level of profit which would justify the claim made against the Defendant. I have earlier said why in my view the Financial Analysis Approach is not a proper issue in this Action. The only real issue in this Action should turn on the individual DRS and the ability of the Defendant to make out a case of a particularised mistake in a particular DRS to support a case of particular overpayment. The alleged case of profitability of the Plaintiff is all based on surmise and assumptions. Based on a starting point that the Plaintiff's profitability should be 21.7% of the costs, the Defendant seeks something like an audit of the Plaintiff's accounts and bank statements to ascertain its total receipts and total payments for an indefinite period in order apparently to ascertain what should be the correct level of payment by the Defendant to the Plaintiff. One only has to read the Third Affirmation of Sze Chi Man on the different rates at the two different Projects for different work and for different hours to appreciate that the profit ratio theory of the Defendant could not even get off first base. It is such a non-starter and to use financial analysis with hocus pocus technical methodology to resist a case of thousands of signed DRS where none of the persons who signed these DRS were prepared to say on Affidavit why and in what way and which of the DRS were mistaken and what overpayments were made, is for me just not acceptable. In the course of the submission by Mr. Clayton I asked whether he could give me any authority from building cases where this Financial Analysis Approach or general global approach had been sanctioned and I was told that he does not have to cite or rely on any authority and that it is based on first principle. I regret to say that his first principle is not what I regard as a legal principle I recognise or which ought to be applied by a Court and certainly not in a case such as this. Building cases do not by reason of their esoteric nature, enjoy a special privileged position. In fact because of the complexity and volume of documentation involved, it is even more incumbent for the practitioners in a building dispute to assist the court by proper and particularised pleadings which will enable disputes to be confined to manageable limits rather than expand disputes generally and into ever larger and larger number of files. I can therefore find no acceptable basis whereby discovery should be ordered based on the first reason advanced by Mr. Clayton. |
| 57. |
But in fact the objection to the discovery sought based on the first reason goes much further. For me it offends against every principle in the rules on discovery. It is fishing, it is irrelevant, it is not a class of documents, it is not necessary to fairly dispose of the matter, it is oppressive and it will produce nothing of probative value. |
| 58. |
In the circumstances, I do not believe I should labour this Judgment further with any detailed analysis of the various classes of documents sought by the Defendant in the Amended Schedule. But as an illustration I should perhaps just mention the classes of documents sought under paragraph 11 and 12 of the Amended Schedule. It reads:- |
"Copies of all statements for all accounts operated by the Plaintiff or any of its principals recording any payments made by the Plaintiff or its principals in connection with daywork labour supplied by the Plaintiff to the Defendant on the following projects:-
| |
(a) |
Shannon House; |
| |
(b) |
Gloucester Road; |
| |
(c) |
Hennessy Road; |
| |
(d) |
Cheung Sha Wan Godown; |
| |
(e) |
Baptist College West Wing; |
and copies of the front and back of all cheques by which such payments were made or other bank documents recording a withdrawal or transfer in respect of such payments."
| |
There are therefore 5 large building projects of which the Plaintiff was involved in some way (possibly as agent for principals) which had nothing whatsoever to do with this Action or with the Counterclaim and which was nowhere referred to in the pleadings and of whose contractual or building or financial arrangements we know nothing about, of which the Plaintiff was required to make discovery relating to these 5 projects all its banking and financial documents including all the cheques in and out with (this is the coup de grace) the front and back of the cheques. But the abuse does not stop there, because under paragraph 13 of the Amended Schedule, the Defendant also seeks all daily attendance sheets of the Plaintiff for each of the 5 projects which had nothing to do with this Action. The discovery sought are in general and wide terms as set out in the Amended Schedule paragraph 11, 12 and 13 and are not cut down by any limitation. This is the length of abuse of process of the Court that the Defendant was prepared to go and even for the Defendant whose way of conducting business had been the subject of adverse comments by the Hong Kong Court (see Kaplan, J. in UBC (Construction) Ltd. v Sun Foo Kee Ltd. [1993] HKLR 207, 211 at line 21-28 and Sears, J in UBC (Construction) Ltd. v Sun Foo Kee Ltd. unreported Judgment dated 10th April 1995 in Con. 10/91) the manner which the Defendant deployed the legal process to prevent the Plaintiff obtaining its just payment in this Action must be considered odious, even by the low standards of the Defendant. |
| 59. |
In the circumstances, if it is necessary for me to decide the Specific Discovery Application I would have no hesitation in dismissing it. |
FOURTH APPLICATION
RE-AMENDMENT OF THE DEFENCE AND COUNTERCLAIM
| 60. |
Again this Fourth Application does not fall for consideration but for the sake of completeness I will briefly state what would be my conclusion if the matter had to be decided. The proposed amendments consist of the following allegations:- |
| |
(1) |
The $3.3 million overclaim point (paragraph 3A of the proposed pleading); |
| |
(2) |
The 46.5% Discrepancy from the 11 days notebook exercise extrapolated to the whole period resulting in overpayment of $8.7 million (paragraph 4(1) of proposed pleading); |
| |
(3) |
The overstating of mandays by Lai, foreman at Block 13 of Laguna (paragraph 4(2) of proposed pleading); |
| |
(4) |
The Financial Analysis Approach resulting in overstatement of $5.1 million (paragraph 4(3) of proposed amendment); |
| |
(5) |
$25.00 reduction agreement (paragraph 4A of proposed pleading). |
| 61. |
I have decided that on the Summary Judgment Application that there is no valid defence raised by:- |
| |
(a) |
the $3.3 million overclaim issue; |
| |
(b) |
46.5% Discrepancy issue; |
| |
(c) |
the Financial Analysis Approach issue. |
| |
So it follows that I will not allow any amendment on these 3 issues. |
| 62. |
On the Lai overstatement issue, I was only prepared to grant conditional leave to defend but the present paragraph 4(2) of the proposed pleading does not properly plead the Lai overstatement point as reflected in the Exhibit "CYM-6". In the circumstances, if the Action is still alive and the amendment application falls to be decided, I would not allow the amendment as presently formulated but without prejudice to the Defendant to apply again for leave to re-amend when the Lai overstatement issue had been properly formulated and in particular by reference to the individual DRS alleged to be affected. |
| 63. |
On the $25.00 reduction agreement issue, the proposed pleading as presently formulated does not plead properly the amount of the alleged reduction by reference to each DRS. In the circumstances, if the amendment application falls to be decided, I would not allow the application on this issue but without prejudice to the Defendant to apply again for leave to amend when the alleged defence on the $25.00 has been properly formulated. |
GENERAL CONCLUSIONS
| 64. |
I am delivering this Judgment in open Court because it seems to me that the matters touched on in this Judgment raised a number of issues of public interest. First there is the question of the ability to plead the Financial Analysis Approach. I have given the reasons why in this case, I consider such pleading as being an abuse of the process of the Court. I have not decided that it will never be permissible in all building cases but the circumstances where this might be considered permissible must be very rare and would probably require very special facts and an overwhelmingly powerful case. |
| 65. |
The second special feature of this case is the large amount of discovery that had been extracted from the Plaintiff by the Defendant. The Defendant was represented by a specialist firm of solicitors experienced in this type of building litigation. The Plaintiff was represented by a small firm not experienced or seasoned in this type of work. The result as far as I can see is disaster for the Plaintiff because the Plaintiff should never allow itself to agree to so much discovery. Most of the pleaded case of the Defendant should have been struck out and certainly there is no justification whatsoever for the amount of discovery obtained by the Defendant's solicitors from the Plaintiff's solicitors. It can be seen that the case being relied on by the Defendant which I have to determine in this Judgment practically all stemmed from the voluntary discovery given by the Plaintiff. The Defendant fished for a case and was continuously successful in obtaining more and more material from the Plaintiff and with every batch of documents supplied by the Plaintiff, the Defendant then built up a larger and more elaborate and technical case until it became the monster it is today. |
| 66. |
Thirdly, this Action should never had been allowed to continue as an ordinary High Court Action. The Solicitors for the parties and specially the Solicitors for the Defendant who are after all specialist, ought to have transferred this Action into the Construction List a long time ago. It has no business disguising itself as an ordinary High Court Action when it is plain that this is a construction dispute which required proper specialist case management from very early days. A specialist Construction Judge should be taking on all the applications (including for example the various Orders made in 1992) and he would be able to see through many of the unmeritorious points of the Defendant for what they were and it will not give rise to the possibility of the parties benefiting or suffering as result of complex technical applications put before non-specialist judges or masters. I hereby order this Action to be transferred to the Construction List and that in future all applications to be made to the Construction Judge. |
| 67. |
It gives me no pleasure having to indicate my most unfavourable impression of the Defendant and the way the case was run by the Defendant's solicitors. But if one stands back, one can see that the Plaintiff had truly suffered at the hands of the Defendant and being quite wrongly deprived of very large sums of money for a long period. It is no coincidence that as soon as work by the Plaintiff ceased, the Defendant thought it fit to stop payment. This was in September 1991. As was said by Lord Salmon in Modern Engineering v Gilbert-Ash [1974] A.C. 689 at 724E:- |
".... A cash flow is the lifeblood of commerce. This is particularly true in the contracting business in which many contractors have been ruined because of delays in payment by building owners. Many subcontractors have suffered the same fate because of delays by the contractors."
| |
Small sub-contractors such as the Plaintiff are particularly vulnerable to the pressure which an unscrupulous contractor can exercise by resorting to long, complex, technical and expensive building disputes. Very often even hard-headed sub-contractors would rather settle on most unfavourable terms rather than face long years of expensive litigation disputes. The introduction into the Hong Kong scene of highly skilled international professional firms specialising in construction disputes can sometimes make matters worse. Whether by excessive zeal, or necessity to fill up time-sheets, or desire to be perfectionist, the professional firms with their great expertise can prolong litigation to such an extent as to benefit neither the parties nor the court. The result very often is that the plaintiff subcontractor or the defendant contractor is ruined and money which ought to go or stay with the parties, goes instead towards the payment of costs. The court must do its best to ensure that the court procedure is not abused to the detriment of the parties. In future what the court must do is to exercise greater control and vigilance over these building disputes and ensure that they are dealt with from the very beginning in a specialist court with proper case management throughout. |
| 68. |
For the reasons I have given, there must be Judgment to the Plaintiff in the total sum of $14,221,729.00. The Plaintiff will also be entitled to interests and costs and I will hear the parties as to the precise form of the order I should make arising out of this Judgment. |
| |
William Waung |
| |
Judge of the High Court |
Representation:
Miss Audrey Eu, Q.C. and Mr. K.M. Chong for the Plaintiff instructed by Messrs Richard Tai & Co.
Mr. Peter Clayton for the Defendant instructed by Messrs Bateson Starr
|