Hong Kong (Sar) Hotel Ltd v. Wing Key Construction Co Ltd

HCCT 3/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 3 OF 2010

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HCCT 57/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 57 OF 2009

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(Consolidated by order of Mr Justice Saunders dated the 8th day of February 2010)

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R U L I N G

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1.The plaintiff alleges that the defendant was wrong in leaving a gap at the lowest catch-fan on the building at the Kwan Yick Street side and that the Buildings Department wanted it to be patched up. The defendant’s defence is that the Buildings Department was referring to a higher-up catch-fan and not the lowest one and that the higher-up one was later patched up. Hence the battle lines are drawn. The issue is whether the Buildings Department’s complaint was addressed to the lowest catch-fan as contended by the plaintiff.

2.The defendant, on the fourth day of the trial, wants to amend its defence and to provide a witness statement to say that the gap in the lowest catch-fan was permitted to be there by the Buildings Department.  The defendant relies on two letters, one dated 8 July 2009 from it to the Buildings Department, and the reply from the department dated 10 July 2009. 

3.The defendant, in its letter, advised the department a method statement for using a Chicago boom to hoist things from the street.  The hoisting zone covered Kwan Yick Street.  The Buildings Department, in its reply, acknowledged the method statement and imposed four conditions on the defendant, one of which was to obtain permission from the police and/or the Transport Department to close the public street.  The defendant also relies on a letter from the Labour Department but that is not an important matter.

4.The plaintiff opposes this proposed amendment on four grounds.  The first ground is delay.  The plaintiff rightly pointed out that there is no explanation for the delay when the letters are all kept by the defendant since their despatch and receipt.  This is a valid ground.

5.The second ground is that, on the face of the exchange of letters, there is no indication of whether the gap in the catch-fan in question had been discussed between the defendant and the Buildings Department in relation to the method statement for hoisting by the Chicago boom and, if so, the result of the discussion.  Hence the letter is of no use to establish the alleged permission to step back the catch-fan.  If the letters cannot establish this permission, then the amendment is of no use.

6.I have read through the supplemental witness statement of the defendant proposed to be admitted together with the proposed amendment. The only evidence for establishing the alleged permission of stepping back the catch-fan are the two letters and a photograph showing the use of a Chicago boom.  Such evidence is clearly insufficient to prove the permission to step back the catch-fan.  The amendment as pursued can therefore not be made out and hence it is of no use and should not be allowed.

7.The third ground is that even if the department had allowed the stepping-back of the catch-fan, subject to the four conditions, there is no evidence of compliance.  Hence the defendant should have patched up the catch-fan. 

8.I do not agree with this point.  If the Buildings Department had allowed the stepping-back, then the defendant did not need to make the catch-fan continuous.  If it should have failed to comply with the conditions, then it would have violated those conditions and could be dealt with accordingly by the department.

9.The fourth objection is prejudice.  The plaintiff says that it cannot now investigate with the Buildings Department on whether there was any discussion on stepping-back of the catch-fan when the method statement on hoisting with Chicago boom in the 8 July letter was discussed and considered, or whether the department had allowed the stepping-back of the catch-fan in connection with the use of the Chicago boom.

10.This is indeed true.  Furthermore, if I should allow the amendment and admit the further evidence, then I must grant the plaintiff an adjournment to investigate the matter with the Buildings Department and to seek discovery from the defendant.  The remaining six days allotted to this trial would then be wasted and it is uncertain when the trial can be resumed. Such prejudice as may be inflicted on the plaintiff should thus militate against the granting of leave to amend. 

11.I am also referred to paragraph 9 of Wise Union Industries Limited v Hong Kong Science and Technology Parks Corporation, HCAL12/2009, where A Cheung J, as he then was, said:

“9. Talking about prejudice, I do not accept that in this new era, the fact that the innocent party can ask for an adjournment (even if one that is to be paid for by the other side) would mean that there is no prejudice. In my view, at least nowadays, an adjournment itself is a prejudice. Equally, the fact that a party, not wanting to lose a hearing date, refrains from asking for an adjournment, does not mean that there is no prejudice. The unenviable position that such a party finds himself in is in itself a prejudice.”

12.I fully agree with the first, second and fourth grounds of opposition advanced by the plaintiff.  In the light of the fact that today is the fourth day of the trial and the letters have all along been in the possession of the defendant, and also the apparent uselessness of the letters to establish the point as contended by the defendant in the proposed amendment, I do not think leave should be granted to the defendant.  This should be so even before the CJR and is particularly so now.

13.I therefore dismiss the defendant’s application.  I also order the removal of the three letters in question from the trial bundles and the return of Exhibit D1 to the defendant.  I also order the costs of this application to be paid by the defendant to the plaintiff in any event. 

Mr Anthony H K Chan, instructed by Lui & Law, for the plaintiff

Mr Niehorster, instructed by Fung Wong Ng & Lam, for the defendant