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Comtech Engineering & Consultant Co. Ltd. v. Thorn Security (H.K.) Ltd.

Read the full judgment text of HCCT53/1999 and HCCT55/1999 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 20 June 2002 before Hon Ma J.

Procedure — Construction and arbitration proceedings — Application for consolidation — Court discretion — Late application — Different works and sites — Separate evidence filed — Parties treated actions as distinct — Application dismissed. The plaintiff sought to consolidate HCCT53/1999 with HCCT55/1999. The court refused the consolidation at an advanced stage, citing fixed trial dates, significant differences between cases despite overlapping parties, and separate expert and witness materials filed. The delay in applying for consolidation was not adequately justified. Consequently, the court exercised its discretion against consolidation, maintaining the actions as separate proceedings.

Legal issues: Application for consolidation of actions

Outcome: Application for consolidation dismissed

Case No.HCCT53/1999 and HCCT55/1999
Court
高等法院原訟法庭
Date20 Jun 2002
JudgeHon Ma J
Case Document
100%Judiciary

HCCT000053/1999

HCCT53/1999 and
HCCT55/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NOS.53 AND 55 OF 1999

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BETWEEN
COMTECH ENGINEERING & CONSULTANT CO. LTD Plaintiff
AND
THORN SECURITY (H.K.) LIMITED Defendant

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(HEARD TOGETHER)

Coram: Hon Ma J in Chambers

Date of Hearing: 20 June 2002

Date of Decision: 20 June 2002

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D E C I S I O N

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1.I have before me an application by the plaintiff to consolidate HCCT53/1999 with HCCT55/1999. The two actions are at different stages. Apart from anything else, HCCT53/1999 has already been fixed for trial, the dates being 15 October with 10 days reserved.

2.I decline to make the order sought for the following reasons :

(1) First, it comes at a very late stage. As I have indicated, trial dates have already been fixed for HCCT53/1999. If there were now an order made for consolidation (or indeed any other order under Order 4, rule 9), these dates may well have to be vacated. The defendant does not desire the trial dates to be vacated.

(2) Secondly, there are no doubt similar issues of fact in the two actions but there are also significant differences, not least in the fact that the two actions relate to two different works and sites, albeit involving the same parties. These differences are reflected in the experts' reports and witness statements that have already been filed in the two actions.

(3) Thirdly, the parties have all along proceeded on the basis that the two actions were separate and distinct. This is reflected in the filing of separate experts' reports and witness statements in the two actions even though there is an identity of witnesses.

3.In these circumstances and with both actions having progressed to an advanced stage, I can see no reason why the court should exercise its discretion in favour of making an order under Order 4, rule 9. Furthermore, the plaintiff has not in my view adequately explained why it is not hitherto made this application for consolidation. I therefore dismiss the application.

( Geoffrey Ma )
Judge of the Court of First Instance,
High Court

Representation:

Mr Danny Choi, instructed by Messrs M.F. Ko & Co., for the Plaintiff

Mr Martin Downey of Messrs Denton Wilde Sapte, for the Defendant

Other Judgments in This Case

Further hearings and rulings under HCCT53/1999 and HCCT55/1999

Comtech Engineering & Consultant Co. Ltd. v. Thorn Security (H.K.) Ltd.
高等法院原訟法庭
Full analysis
20 Jun 2002