Man Sang Engineering Co Ltd v. Hung Wan Construction Co Ltd
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HCCT24/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO.24 OF 2006 --------------------- BETWEEN
---------------------- Before : Hon Burrell J in Chambers Date of Hearing : 19 March 2007 Date of Decision : 26 March 2007 -------------------- D E C I S I O N -------------------- 1.This is a plaintiff’s application under Order 24, rule 7 for further discovery. In the original summons there were seven categories of documents. Since issuing the summons the issues between the parties have been narrowed as a result of : (a) the plaintiff informing the defendant and the court that it will not pursue Items 2, 4, 6 and 7 (this was done well in advance of the hearing) and (b) the plaintiff amending the terms of Items 1, 3 and 5 (this was done at the hearing). 2.The items which remain in dispute are :
3.The plaintiff was a “steel and metal work” sub-contractor to the defendant who was the main contractor in a substantial residential project in Tin Shui Wai. The employer was the Hong Kong Housing Authority. 4.In short, Item 1 concerns the instructions to carry out variation works between the main contractor and the employer. Item 5 concerns the payment applications between the main contractor and the employer. Item 3 concerns the question of prolongation costs between the main contractor and the employer. 5.The defendant’s position in relation to Items 1 and 5 is that they have complied sufficiently with their discovery obligations. Documents have been provided. However, various parts of those documents have been edited or concealed because they are not relevant. Item 1 6.Under Item 1, the defendant says that the “covered-up” parts related to : (a) other sub-contracts (the plaintiff was merely one of a multitude of sub-contractors) and (b) build-ups of the quantities and rates between itself and the employer. 7.The plaintiff, through its counsel, Mr Jerry Chung, conceded that because of the age of this contract (it goes back almost 10 years) the plaintiff has mislaid some of its documentation and this application, in part, was a request for documents to fill the gaps in its own case. 8.Given that : (a) the documents requested refer to matters not directly concerned with the plaintiff’s contract with the defendant; (b) the information requested can be ascertained from other documents (such as the as-built drawings); and (c) the request is in the nature of a wide “fishing” exercise designed to repair the plaintiff’s own case, I dismiss the request under Item 1. 9.I am satisfied that the defendant has discovered sufficient relevant documentation to enable the court to resolve the issue concerning the reasonableness of the plaintiff’s claim for the variation works under its contract. Item 5 10.As with Item 1, the defendant has not ignored this request. The issue is whether or not the purported compliance is sufficient. Once again the contents of documents relating to other trades and other sub-contracts has been concealed. 11.I do not propose to set out which documents have in fact been discovered. They are considerable and I accept that the defendant has made a genuine and conscientious attempt to discover all that it regards as relevant. 12.However, I will accede to the plaintiff’s summons in two very specific regards. I allow Items 5A(1) (the “% complete” figure) and Item 5B(1) (Appendix A to the final account). By this I do not intend to impose new onerous obligations on the defendant. It is intended to be narrow and specific. I believe they are documents which may “fairly lead” the plaintiff in a proper and relevant “chain of inquiry” (for example, the issue of delay). However, this does not give the plaintiff a “right to roam” through all the payment applications unrelated to their own sub-contract. Item 3 13.The issue here is somewhat different. Whereas for Items 1 and 5, the defendant submit they have made sufficient discovery, in Item 3 they accept that they have not made any discovery. They submit that the plaintiff is not entitled to any documents under this category. 14.By its amendment of Item 3, made at the hearing of the summons, the plaintiff narrowed its scope and made it less of a fishing expedition. 15.In short, in its counterclaim against the plaintiff for prolongation costs, the defendant has given credit for $2.2 million, being the sum it has received from the employer in relation to the prolongation issue. 16.The plaintiff seeks discovery of the underlying documents relating to this credit to assess its reasonableness and the propriety of its acceptance by the defendant. 17.I think this is a relevant issue and I allow Item 3 but in more specific terms, namely, “ The applications and supporting documents made by the defendant to Messrs C.S. Toh & Sons dated 10/7/01, 19/4/02, 20/6/02, 22/10/02, 7/11/02, 20/12/02 and 30/12/02.” 18.Both Mr Chung for the plaintiff and Mr Geoffrey Shaw for the defendant made submissions in relation to costs at the hearing. I therefore make this final order on costs. 19.The totality of the plaintiff’s application contained a strong “fishing” element. The amendment of the summons was only made at the conclusion of the hearing to which Mr Shaw’s succinct response was “better but still opposed”. The original draft was undoubtedly too wide in many of its terms. 20.However, the plaintiff has not gone away empty handed. It seems to me to be a case in which “no order as to costs” is the fairest to both parties. I so order.
Mr Jerry Chung, instructed by Messrs Leung, Chan & Pang, for the Plaintiff Mr Geoffrey Shaw, of Messrs Deacons, for the Defendant |