So Kwok Kee John t/a Spray Engineering Corporation v. Melofield Nursery and Landscape Contractor Ltd

HCMP 2792/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2792 OF 2012

(ON AN INTENDED APPEAL FROM DCCJ NO. 1760 OF 2010)

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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.The plaintiff claimed $107,240 being the balance of the contract sum due from a building contract in which the plaintiff carried out work for the defendant. The defendant denied the claim and pleaded a counterclaim in respect of overpayment to the plaintiff. At the trial the defendant further claimed that the plaintiff had not honoured a warranty to remedy the plaintiff’s defective work and sought damages from the plaintiff in respect of the defects. It also sought reimbursement of a fine of $1,000 imposed on the defendant by its principal contractor allegedly arising out of the plaintiff’s defective work.

2.Deputy District Judge Norman Hui gave judgment to the plaintiff for the sum of $75,395 and dismissed the defendant’s counterclaim.  The defendant now seeks leave to appeal against the judgment and a stay of execution of the judgment pending appeal.  The plaintiff opposes the application.

3.The Judge found that the contract sum was subject to final measurement of the work actually carried out by the plaintiff.  He also decided on the final measurement (which was based on the opinion of a joint expert of the parties) and the plaintiff’s entitlement.

4.In respect of the counterclaim, the Judge found that the claim for the alleged overpayment must fail because of the final measurement point.  He also found that the defendant’s claim on the warranty was out of time and the defendant had failed to prove its damages.

5.In order to obtain leave to appeal, the defendant must show that it has a reasonable prospect of success of the appeal or that there is some other reason in the interest of justice for the appeal to be heard. 

6.In substance the defendant challenges the factual findings of the Judge both in respect of the claim and the counterclaim.  It went so far as to say that it will produce a document showing the finding is wrong without even producing the document.

7.The principle is that this Court will interfere if it is demonstrated that such findings are plainly wrong.  In our view the defendant has not satisfied the threshold test for obtaining leave. 

8.Accordingly we will refuse the applications with costs to the plaintiff.  We will further order that the defendant be precluded from applying for an oral hearing to reconsider this application.