Read the full judgment text of HCCT000019A/1989 on BabelCite. This HIGH COURT judgment was delivered on 3 May 1991 before Kaplan, J. in Chambers.
Building contract dispute — summary judgment sought for retention sum withheld by defendant subcontractor. Defendant sought to imply a customary retention clause but court held no such term could be implied without detailed operative provisions, refusing to rewrite contract. Summary judgment granted for retention sum held by defendant. Defendant counterclaimed for failure of plaintiff to complete contract works causing loss and additional expense; counterclaim was vague and lacked particulars but disclosed cause of action, so court refused to strike out but ordered amendment and further particulars. Applications by plaintiff for further particulars of defence were refused as unnecessary. Court granted stay of execution of summary judgment pending appeal. Costs awarded to plaintiff on summary judgment but plaintiff ordered to pay defendant costs on particulars application, with no order on strike out summons. Relevant case law from House of Lords, Privy Council, and English Court of Appeal considered regarding implied terms, summary judgment principles, and pleading requirements. Court emphasised established tests for implying terms, pleading sufficient particulars, and balancing procedural fairness. Plaintiff awarded interest on judgment sum from specified date. Full timetable for discovery, inspection and expert reports arranged by consent.
Legal issues: Implied retention clause in building contract · Counterclaim striking out under O.18 r.19 · Whether further and better particulars of defence should be ordered
Outcome: Summary judgment granted to plaintiff for HK$620,000; counterclaim not struck out but ordered to be amended with further particulars; request for further particulars of defence refused; stay of execution granted pending appeal