United Electrical Co Ltd v. Wing Hong Contractors Ltd
Read the full judgment text of HCCT 51/2006 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 8 November 2013 before Hon L Chan J.
Construction and arbitration proceedings — discovery of documents — discovery order against defendant despite previous affirmations of non-possession — plaintiff’s dissatisfaction with produced documents from Official Receiver’s file — plaintiff sought that affirmation on discovery be sworn by director in charge, Mr C Y Hui, instead of E&M manager, Mr Lee — court held no basis to require affirmation by Mr Hui, as Mr Lee had conducted searches and swore affirmations — it is not necessary for only the project head to swear to discovery results — application dismissed with costs to defendant — no costs orders for prior hearings. Plaintiff’s application for affirmation by Mr Hui was refused, reaffirming that proper persons who conducted searches may give discovery affirmations.
Legal issues: Application for discovery by a different deponent · Validity and ordering of discovery
Outcome: Application for affirmation by Mr Hui dismissed with costs payable by plaintiff to defendant; no order as to costs for previous hearings.
Cited by 1 case
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HCCT 51/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 51 OF 2006 ____________
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_____________ D E C I S I O N _____________ 1.Saunders J made an order on 5 July 2011 for discovery by the defendant and inspection by the plaintiff. The discovery is of the vouchers, remittance advices and final accounts relating to electrical works received from the Architectural Services Department by the defendant regarding the construction project entitled “Term Contract No. TCK 031.” 2.That order was made despite two affirmations having been made by one Mr Lee Wing Hong of the defendant on about 16 March 2011 and 25 June 2011 to the effect that he had conducted two searches for the documents sought by the plaintiff, but could not find them. Mr Lee is the E&M manager of the defendant. The plaintiff says that the second affirmation was filed without leave and should be expunged. 3.The order by Saunders J was made on the understanding that the documents sought by the plaintiff were kept in a file sent by the defendant to the Official Receiver, but the defendant kept no copy of the documents. The learned judge thought that the solution to the application for discovery was for the defendant to approach the Official Receiver and procure a copy of the documents in the file. Hence the order. 4.However, the file only contained some remittance advice and did not satisfy the plaintiff. The plaintiff therefore re-listed the application for discovery, despite the two affirmations by Mr Lee. 5.Mr Lee then made his third affirmation, repeating the position of the defendant. That affirmation was filed on 13 June 2012. The plaintiff again said that this affirmation was filed without leave and should be expunged. But the real reason for the application was made clear by the plaintiff before Au J on 12 August this year. It is the plaintiff’s desire to have Mr C Y Hui, a director of the defendant, to be the deponent of the affirmation on discovery. The plaintiff’s basis for seeking this affirmation is that Mr Hui was the person in charge of the term contract and not Mr Lee. However, Mr Lee has explained twice on his second and third affirmations that Mr Hui was a senior person in the defendant and would not and did not take part in the search of documents. 6.Since Mr Lee, the E&M manager of the defendant, had gone on affirmation twice saying that he had conducted two searches for the documents sought and Mr Hui was not involved in the search, there is no basis for insisting an affirmation to be made by Mr Hui on the discovery of these documents. It is also wrong to insist that only the person in charge of the project should be the proper person to swear to the result of a search for documents in a discovery exercise. 7.I therefore dismiss this application with costs to be paid by the plaintiff to the defendant. (Discussion re costs) 8.I make no order as to costs for the hearing before Saunders J. (Discussion re costs) 9.The 5 August 2011 order is for costs reserved, I also make no order of costs for that day.
Mr H Lee, of Hong Lee & Co, for the plaintiff Ms Alice To, of Stephenson Harwood, for the defendant | |||||||||||||||||||
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