Super Keen Investments Ltd v. Global Time Investments Ltd and Another

HCA004396/1996

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Coram: Before the Hon Mr Justice Findlay in Chambers

Date of hearing: 25 June 1997

Date of handing down of judgment: 27 June 1997

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JUDGMENT

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1. I have a summons before me issued by the plaintiff on 30 December 1996. This summons asks that the action be transferred to the Construction and Arbitration List and for other directions. Some of these directions have already been given by the Master, leaving only two for me; those contained in paragraphs 7 and 8 of the summons. The parties are agreed that, if I transfer the action, those directions should be made. The dispute on the summons concerns whether or not the action should be transferred. The defendant takes a neutral stance on this, but the third party objects.

2. Miss Yuen points to the Practice Direction. There is no doubt that, on an ordinary reading, the Practice Direction says that I "may... order... with the consent of the parties, that an action pending elsewhere in the High Court... be placed in the Construction and Arbitration List.". Miss Yuen says that the third party, which is a party to the action, does not consent, and, therefore, I cannot transfer the action. I do not know why the Practice Direction is worded as it is, but I am satisfied that it cannot take away my discretion to transfer an action in the proper case.

3. Is this a proper case for the transfer of the action? From reading the pleadings, it appears to me that there are two main issues that would benefit from being tried in the Construction and Arbitration List; whether or not the building concerned was constructed utilising an aluminium curtain wall, and whether or not there has been a valid architect's extension. These are technical matters in the area of building construction. That this is so is shown by the fact that there is to be expert evidence concerning these issues. There are other issues, of course, but the resolution of these is, I think, within the competence of the judge of the List. It is also so, as Miss Yuen says, that the third party is not greatly concerned with these issues, but that does not take away from the fact that the issues have to be tried. I believe that they are best tried in the Construction and Arbitration List.

4. Accordingly, I make an order in terms of paragraphs 1. 7. and 8 of the summons.

5. The matter of costs was not argued. I am inclined to think that the proper order is that costs be in the cause because the Practice Direction is confusing. I am taking steps to seek an amendment of the direction.

Representation:

Mr John Scott, QC, and Mr David Tsang, instructed by Messrs Robert CC Ip & Co, for the plaintiff.

Mr Philip Lee of Messrs Wilfred KH Lam & Co, for the defendant.

Miss Maria Yuen, instructed by Messrs Victor Ng & Co, for the third party.