EVERGREEN (FIC) LTD v. GOLDEN CUP INDUSTRIES LTD t/a SUPER STAR GROUP

HCCT 14/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

ACTION NO 14 OF 2015

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D E C I S I O N

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1. By summons dated 11 July 2016, the defendant applied for leave to file and serve the supplemental witness statement of one Lai Yin-chung, Jefrey as per the draft attached to the summons.  The supplemental witness statement of Lai seeks to exhibit a set of photographs already expressly referred to at paragraph 10 of his first witness statement.

2. In this action, the plaintiff claims as a contractor against the defendant as the employer for an outstanding balance of over HK$1.6 million for the fitting out works at the defendant’s restaurant.

3. The defendant says the plaintiff was in breach of the contract by reason of the plaintiff’s delay in completion and/or non-completion of works and the sub-standard work carried out by the plaintiff.  The defendant’s employment of the plaintiff was accordingly terminated.  The defendant therefore counterclaims against the plaintiff for loss and damage arising from its incomplete and/or defective works.

4. The defendant’s application is late.  The trial of this action is scheduled to commence on 1 August 2016.

5. Guidance for dealing with late applications for the filing of additional witness statements has been given by Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705.  At paragraphs 6 and 7, the learned Judge had this to say:

“6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the Court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of the Civil Justice Reform to ensure costs effectiveness and economy, expedition, proportionality, and fairness between the parties.

7.  It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the Court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to the other parties, and the objectives of civil justice reform...”

6. On the basis of the principles set out above, I am of the view that the court should exercise its discretion to allow the defendant’s application for the following reasons.

7. First, bearing in mind the court’s primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, the present application would assist the court in coming to a just resolution of the dispute.  In my view, the photographs are clearly relevant to the issues in dispute between the parties.

8. Secondly, the defendant has given, on its face, credible explanation for the late application in the Affirmation of Lai Yin-chung Jefrey filed on 11 July 2016.

9. Thirdly, I am unable to see any serious prejudice to the plaintiff, as the photographs had already been expressly referred to in the first witness statement of Lai.  In particular, the description of what is depicted in each of the photographs has already been stated in some detail at paragraph 10 of the first witness statement.  The photographs are to demonstrate the descriptions visually.  In that sense, the plaintiff cannot be said to have been taken by surprise.  The allegations will have to be dealt with in any event at trial.

10. For the above reasons, I would allow the defendant’s application under the summons.

(Discussion re costs and form of order)

11. Costs of and occasioned by the summons be to the plaintiff in any event, such costs to be taxed if not agreed.