Read the full judgment text of HCCT000019/1989 on BabelCite. This HIGH COURT judgment was delivered on 3 May 1991 before Kaplan, J. in Chambers.
Building contract — implied terms — retention clause — summary judgment — counterclaim — particulars — Order 14 and Order 18 r.19 — interim payment under Order 29 — The plaintiff subcontracted plumbing works to the defendant contractor for a government hospital project. A dispute arose over the existence of a retention clause and retention monies of HK$620,000 held by defendants. The court examined whether a retention clause could be implied by custom and usage, and whether summary judgment was appropriate for the retention sum. The court rejected implication of the retention clause due to lack of precision and necessary mechanisms to give effect, including uncertainty as to percentage, period, and release conditions. Summary judgment was granted to the plaintiff for the retention sum, as the defendants admitted holding the amount but had no valid defence. The court refused to strike out the defendants’ unquantified counterclaim but ordered it be amended with further particulars to address deficiencies including dates, breaches, and damages. Requests by plaintiffs for further particulars of the defence were refused as unnecessary or improper. The court considered principles governing summary judgment (O.14) and interim payments (O.29), preferring the view that interim payments are not ordered when unconditional leave to defend is granted. Costs relating to discovery and experts were reserved for determination in due course.
Legal issues: Implied retention clause in building contract · Summary judgment for retention sum · Counterclaim striking out under O.18 r.19 · Whether leave was required for counterclaim · Requests for further and better particulars of defence
Outcome: Summary judgment granted to plaintiffs for HK$620,000; counterclaim not struck out but required further particulars; requests for particulars of defence refused.