LI HOI SANG v. CHAN LAP WING ALAN

DCCJ873/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 873 OF 2009

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BETWEEN

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DECISION

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1.  This is day 2 of a four-day trial of the present proceedings. The plaintiff against the defendant for work done. The plaintiff is a decoration contractor and the defendant through a company wholly owned by him and his wife is the de facto owner of No. 54 River North, 11th Street, Fairview Park, Yuen Long, New Territories (“the Property”). The Statement of Claim is premised on the simple debt claim for material and labour costs for the decoration works carried out to the Property.

2.  The Defence avers that an oral agreement had been reached between the parties in or about January 2007 whereby the defendant engaged the plaintiff to carry out woodworks for HK$91,000 and that such agreement was evidenced by a work statement in which 17 items of works were set out (“the Original Agreement”).  It is said by the defendant that the plaintiff had only substantially completed the works set out in the Original Agreement and rectification works were still outstanding, but nevertheless the defendant was prepared to pay the plaintiff under the terms of the Original Agreement.

3.  The substance of the plaintiff’s case is set out in the Reply and the Answers to the Request for Further and Better Particulars asked of the Reply.  In gist, the plaintiff says that through numerous telephone conversations the defendant had requested substantial variations, therefore increasing the scope of the decoration works to 25 work items for a total consideration of HK$636,500 (“the 25 Items”).

4.  Prior to the trial’s commencement, Mr. Francis Yip, counsel for the plaintiff, attached to his opening submissions a table setting out the plaintiff’s case on the 25 items with cross-references to documents in the trial bundle.  I had thought that this table was quite helpful and on day 1 of the trial invited Mr. King Wong, counsel for the defendant, to provide his comments to Mr. Yip’s table thereby compiling a Scott Schedule such that the trial could be conducted efficiently.  Mr. Wong initially was not receptive to the Court’s suggestion, but his attention having been brought to paragraph 18/12/38 of Hong Kong Civil Procedure 2011, he eventually accepted the Court’s invitation.

5.  On day 1, the Court dealt with another issue, namely the issue of quantum meruit. In the Agreed Statement of Issues in Dispute filed by the parties on 15 September 2010, the plaintiff raised the issue expressly but the defendant did not agree to have it included as an agreed issue.  The defendant’s objection was unsurprising since the issue of quantum meruit was not pleaded in the Statement of Claim.  The case was therefore adjourned on day 1 to enable the parties to sort out the matters as set out above because Mr. Yip had indicated that an application for amendment to include a claim for quantum meruit would be made.

6.  Today, the plaintiff formally applied for an amendment to include a claim for quantum meruit.  Mr. Wong opposes the application, firstly, as being a late application, and secondly, on a point of prejudice that the defendant simply did not come prepared to meet that unpleaded case.

7.  I think Mr. Yip accepted both of Mr. Wong’s criticisms and eventually considered that any amendment, if granted, would only be on the basis that the trial has to be adjourned and that his client be responsible for all the costs occasioned thereby.  The parties by consent therefore orally invited me to make the following orders:-

1)   Leave be granted to amend the Statement of Claim as per the draft submitted to court today and the amended Statement of Claim be filed and served within 3 days from today.

2)   The defendant be given leave to amend his Defence within 14 days thereafter and leave be granted to the plaintiff to amend the Reply within 14 days thereafter.

3)   The costs of and occasioned by the amendment be to the defendant in any event. 

4)    The cost of Friday, i.e. day one of the trial, and today be to the defendant.

5)   Following the completion of the foregoing, there be a CMC to review the conduct of the proceedings.

8.  I have with some reluctance decided to accede to the parties’ invitation.  Whilst I am cognisant that the court should not rubber stamp any steps which lead to the derailment of any trial, even if made by consent, it seems to me that the proposed amendments set out the real issue of the plaintiff’s case and the resolution of this issue is an important step in determining the real questions and controversy between the parties in these proceedings.  In agreeing to an adjournment, the defendant is obviously adopting the stance that he can properly be compensated by costs.

9.  At the upcoming CMC, I anticipate that the parties will address the court on specifically two matters, namely the provision of a Scott  Schedule and any directions on expert evidence now that reasonableness of costs incurred will likely become a key issue.  The following is of course not binding on the parties nor the court subsequently seized of the matter but I would have thought that a joint expert would be in order.

10.  I therefore make the following orders which I have already set out earlier.

11.  There is also a disagreement between Mr. Wong and Mr. Yip as to whether the costs of Friday and the costs of today should be payable in any event or forthwith.  As parties accepted, the adjourned trial will be a trial de novo.  Mr. Yip had not even started to address me on his opening and obviously the witnesses have not given any evidence.  So to that extent it seems to me that the cost of Friday and today are quite separate from the outcome of the trial to be conducted at the later stage.  So on that basis I will order that the costs of Friday and today be paid to the defendant forthwith to be taxed if not agreed with certificate for counsel.

12.  If I may also trouble Mr. Yip to provide a draft order for the Court’s approval.