Dragages Et Travaux Publics v. Hong Kong Housing Authority

CACV000087/1984

BETWEEN

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Coram: Sir Alan Huggins, Ag. C.J., Yang & Barker, JJ.A.

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JUDGMENT

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Sir Alan Huggins, Ag. C.J. :

1. On 29th May, 1984, prior to issue of a writ, Mr. Justice Clough granted in favour of the Plaintiff an interim injunction restraining, pending the determination of an inter partes Summons, the Defendant, its servants and agents from paying out to the present Applicant moneys due upon the issue of a certificate by the architect in relation to building works. On the following day a writ was issued with a general endorsement stating the reliefs sought, but not the cause of action. An inter partes Summons was issued on 31st May and we are told, although no endorsement appears on the copy of the Summons in the papers before us and there is no copy of any formal order, that when the matter came before Deputy Judge Leathlean on 6th June the Judge did not have time to deal with the matter but adjourned it to 12th July. It would appear that the present Applicant was represented on that occasion and that the nature of the dispute was indicated to the Judge. The undisputed evidence was that the Applicant had entered into a building contract with the Defendant and had employed sub-contractors to do some of the work. After the making of that contract the Applicant and the Plaintiff had entered into a joint venture agreement, which, the Plaintiff alleged, gave the Plaintiff some right to any moneys due from the Defendant to the Applicant. We are further told that at the hearing on 6th June there were an undertaking by the Defendants to file affidavits and an undertaking by the Plaintiff to pay off sums properly certified by the architect to be due and payable to any sub-contractor. The latter undertaking was, of course, not enforceable by the Applicant.

2. This morning the Applicant applied to Mr. Justice Bewley to discharge, or alternatively to vary the terms of, the injunction. He declined to do so and the matter now comes before this court on appeal against that refusal. The appeal by the Applicant is supported by the Defendant. The Plaintiff not unreasonably raised the procedural objection that the Applicant is not a party to the action and has no locus standi to appeal. We took the view that a procedural defect of this kind should not be allowed to prevent us from doing substantial justice in the matter and we allowed the Applicant to apply to be joined so as to give it a right of appeal. This we did the more readily because we were told that, as a result of the proceedings which had already taken place, an amendment was this morning made to the Writ, alleging a building contract to which the Plaintiff and the Defendant were both parties. We have not seen that amendment but it seems to me to be entirely inconsistent with the evidence.

3. The evidence which was before Mr. Justice Clough and Judge Leathlean clearly indicates that the building contract was not made by the Plaintiff at all and I say the evidence makes this quite clear because this is not Just the contention of the Defendant: it is the Plaintiff's own evidence. Mr. Voyer, Area Manager of the Plaintiff, says that it was an agreement between the Applicant and the Defendant. He says that there was then a Joint venture agreement between the Plaintiff and the Applicant, followed by a contract entered into by the Applicant and the Defendant pursuant to the original agreement -which was the first agreement I referred to. He says in so many words that he sought to have the Plaintiff joined as a party to the building contract but that the Defendant positively refused. That is understandable if, as Mr. Molette says, the Plaintiff is not one of the "authorized contractors". On Mr. Voyer's own evidence the Plaintiff was not a party to this building agreement. There may well be some agreement between the Plaintiff and the Applicant which would enable the Plaintiff to proceedings against the Applicant in respect of this money which is owed to it by the Defendant, but that does not justify the present action, being one which alleges that the Plaintiff was and is a party to the building contract. The Plaintiff was not, and is not, a party to that contract, and it is only by virtue of its being a party that the Plaintiff could possibly be entitled to the injunction which was granted ex parts and which continues pending the hearing on 12th July. It may well be that the Applicant has not proceeded in precisely the manner which it ought to have proceeded, but clearly it is concerned and is affected by the order which has been made, and whatever the proper procedure it is clearly necessary that the Applicant should be able to take steps to prevent the effect which the order must necessarily have upon its business. In my view, whether we treat this as an application by the Applicant to be joined as a defendant and then to appeal against the order, whether we treat this as an application by the Housing Authority to strike out the Statement of Claim or the Writ, or whether we act at our own motion, is neither here nor there: justice requires that these proceedings be brought once and for all to a conclusion, because I cannot see that the action can possibly succeed in face of the evidence which has been filed by the Plaintiff. It seems to me, with respect, that the judge this morning did not grasp the nettle which was thrust before him: he never ruled whether or not there was a good cause of action vested in the Plaintiff. Had he done so, I cannot myself see that he could possibly have come to any conclusion other than that there was no cause of action, in the face of the evidence filed. Therefore in my view the appeal ought to be allowed and I think that we should here and now strike out the Writ.

Yang, J.A.:

4. I agree.

Barker, J.A.:

5. I agree.

7th June 1984