XCHRX UNITED BUILDING MATERIAL (HONG KONG) LTD. v. E MAN CONSTRUCTION CO. LTD.

HCCT 109/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO.109 OF 1999

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D E C I S I O N

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1. At the invitation of both parties, the court has listened to a recording of a previous hearing in court (on 24 November 2000) in order to resolve these applications.

2. The issue arises because the sealed court order following the earlier hearing states that experts' reports be exchanged in "28 days from the date of order", which time has now well passed. However, the recollection of the plaintiff's solicitor, Mr Glenn Haley who appeared on 24 November 2000, was that the court's actual order (given orally) was that the experts' reports be exchanged 28 days after the date for the exchange of witness statements, which was ordered to be 1 March 2001.

3. Having listened to the recording, which is clear and unequivocal, I can confirm that Mr Haley's recollection is entirely correct. He asked the court to direct that the experts' reports be exchanged after the exchange of witness statements. Mr Wong, for the defendant, did not oppose that request (although he did submit that the length of time being asked for for the exchange of witness statements was too long). The court gave the plaintiff three months to exchange witness statements instead of the four months requested by the plaintiff, namely by 1 March 2001 and then said that the exchange of experts' reports shall be "28 days thereafter".

4. The order as sealed does not reflect the intention of the court. It contains a clerical error, namely the words "from the date of order" should have been "thereafter". It is not the fault of the court clerk because my handwritten note on the court file from which the order is drafted simply says "New para 3a - amend to 28 days". It omits the word "thereafter" which was uttered in court, which was requested by the plaintiff and which was not opposed by the Defence.

5. I therefore correct the order under the slip rule to read "28 days thereafter". The plaintiff's summons seeking this correction is therefore granted with costs. The defence summons requiring the plaintiff to produce its expert's report is dismissed. I have some sympathy with the defendant's solicitors because they brought their summons believing the original sealed order for directions to be correct. I make no order as to costs on the defendant's summons.