Read the full judgment text of HCCT000002/1992 on BabelCite. This HIGH COURT judgment was delivered on 26 March 1992 before The Hon. Mr. Justice Kaplan.
Construction Contract — Set-off Arising Under Separate Contract — Crown Proceedings — Leave under Order 77 Rule 6 — Interim Payment — Order 29 Rules 10–12. The plaintiffs claimed a certified sum of $2,424,166 under a 1985 contract for decking a nullah. The Attorney General contended a set-off of $3,888,636 under a separate 1981 bypass contract, seeking leave under O.77 r.6 to plead the set-off and opposed the interim payment on grounds including need/hardship. The court examined whether leave should be granted to plead set-off arising from a separate contract and held no leave should be granted, finding insufficient nexus between contracts and the risk of conflicting decisions between court and arbitration. Authorities on set-off in construction and equitable set-off principles were analysed. On interim payment, the court rejected a requirement that hardship or prejudice be shown to obtain an interim order under O.29 r.10–12, following English and Hong Kong precedents supporting judicial discretion to order interim payments absent such showing. The court ordered the Attorney General to make the full interim payment, stayed the counterclaim for arbitration, and refused leave to plead set-off, with costs reserved.
Legal issues: Whether Attorney General should be given leave under O.77 r.6 to plead set-off · Whether an interim payment can be ordered absent demonstration of hardship or prejudice
Outcome: Refusal of leave to plead set-off; interim payment ordered to plaintiffs; counterclaim stayed for arbitration