Lau Kin Sau Trading As Kin Sun Decoration & Eng. Co. v. Hung Mau Design & Contracting Ltd

DCCJ 4689/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4689 OF 2013

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BETWEEN

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D E C I S I O N

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1.The Plaintiff took out a summons on 20 March 2015 asking for leave to amend the Statement of Claim and to file a supplemental witness statement of the Plaintiff (“the Summons”). The Summons was heard at the adjourned pre-trial review hearing. Trial has been scheduled to commence on 27 April 2015 with 4 days reserved.

2.By an affirmation in support, Mr Lau, the Plaintiff, alleged that the reason for taking out the summons is that he had recently conducted a search through a USB flash drive and found soft copies of written quotations for project works submitted to the Defendant or its responsible person.  A subsequent search revealed some original copies of the same which he said were related to invoices produced for purpose of these proceedings.  It is now proposed by the Plaintiff that leave be granted for the Statement of Claim to be amended by adding an assertion that:-

“Between June 2006 and November 2009, the Plaintiff issued and the Defendant received a number of written quotations in respect of the oral work orders issued by the Defendant.  Upon receipt and acceptance of the written quotations, the Defendant instructed the Plaintiff to carry out the oral work order pursuant to the respective written quotations and/or further oral instructions.” (see proposed paragraph 5A)

3.Apart from written quotations, the proposed amendment suggested to included 2 new causes of action namely:-

(i)	That there was an implied term of the agreement between the parties that the invoiced amounts were deemed to be accepted by the Defendant unless the Defendant raised objections within a reasonable time; or alternatively, the defendant is estopped from disputing the invoiced amounts after the lapse of a reasonable time after the receipt of invoices (see proposed paragraph 4A and 4B);
(ii)	In the alternative, the Plaintiff is entitled to claim the Defendant for the completed works and additional works on a quantum meruit basis (see proposed paragraph 6C).

4.The Defendant opposed to the application for obvious reason that it was late and as a result the trial dates would have to be vacated to allow sufficient time for the Defendant to thoroughly deal with those amendments.  To deal with the written quotations now the Plaintiff seeks to rely on for the first time since commencement of the proceedings, Mr Lam for the Defendant submitted that instructions had to be taken in relation to each and every of them and that would take 52 days for the Defendant to file and serve a supplemental witness statement for this purpose. As to the proposed claimunder quantum meruit, Mr Lam said expert evidence would be necessary to assist the court in assessing the reasonable price for work done.

5.Mr Hon for the Plaintiff said that no expert evidence would be required because the related works had been completed long time ago and no assessment could be made even if expert is engaged with the task.

6.Having considered submissions made by counsel for the parties, I accept the submission of Mr Lam that the present application should not be granted for it being made at such late stage in the proceedings.  It is inconsistent with the underlying objectives set out under Order 1A in particular rule 1(b) of the Rules of District Court in which it says that the underlying objectives of these rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable.

7.Further there was no explanation given to the late addition of the two new causes of action mentioned in paragraph 3 above.

8.I am of the view that the addition of the written quotations would not bring the case of the Plaintiff much further as although they were not mentioned in the Statement of Claim it was the case of the Defendant that after oral request for service was conveyed by the Defendant to the Plaintiff, estimate fee quotes would be given by the Plaintiff (see paragraph 5(2) of the Defence).  The difference of the parties is on whether the Plaintiff is entitled to receive or whether the Defendant is liable to pay according to what had been stated in the invoices.  Moreover the Defendant would be prejudiced if the Plaintiff is allowed to add a course of action under quantum meruit at this late stage especially assessment on reasonable price is difficult if not impossible.

9.For the above reasons, the application is refused and the Summons is dismissed.

10.Costs should follow the event.  The Plaintiff should pay costs of this application to be taxed if not agreed with certificate for counsel.  This is an order nisi to become absolute if no application is made to vary the same within 14 days from the date of this decision.

Mr Kevin Hon, instructed by Messrs. Gloria Chan & Co., for the Plaintiff

Mr Solomon Lam, instructed by Messrs. Cheung & Liu, for the Defendant