THE BANK OF EAST ASIA LTD v. TSIEN WUI MARBLE FACTORY LTD

IN THE SUPREME COURT OF HONG KONG

CONSTRUCTION AND ARBITRATION LIST

HIGH COURT

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JUDGMENT

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1. The Defendant in this case applies by summons for an order that within 14 days of the date of the order, the Plaintiff or its authorised representative make and file an affidavit stating whether the documents specified in the schedule to the summons are, or at any time have been in the Plaintiff's possession, custody or power, and if any of them having at any paragraphs in its claim, the basic issue between the parties is reasonably clear.

2. It has come to the attention of the Defendant that the architects say that they are in possession of a number of files related to the building project, and I am told that they consist of about 104 box files. It is the Defendant's case that any documents brought into existence by the architects as agents for the Plaintiff are documents which are within the power of the Plaintiff and if they are relevant to the issues in this case should be disclosed.

3. The Plaintiff's position is that it has been told by the architects that all the documents to which it is entitled to have been supplied to it and it maintains that those documents have been discovered. As to the remaining documents, the Plaintiff says that it does not know what they are and it has been told by the solicitors acting for the architects that the architects maintain that they, and not the Plaintiff, own the documents.

4. This is very unsatisfactory from the point of view of the Defendant because it submits that there must be in the 104 box files documents which are contemporary documents relating to the construction works generally and some of them must relate to the granite cladding and to the external concrete walls, and they must have been brought into existence by the architects as agents for the Plaintiff. Some examples of the type of document contemplated are photographs, drawings and minutes of site meetings. Naturally, the Defendant is unable to identify any particular document. The Plaintiff points out that in order to succeed, it is necessary for the Defendant, which is making an application under RSC Order 24 rule 7, to produce sufficient evidence that documents exist which the other party has not important part of the Statement of Claim. There is to be an inspection of the building by an expert retained by the Defendant. It is open to the Defendant to make further attempts to persuade the Plaintiff and the architect to say what documents are in the box files, and there has been some discussion about the possibility of issuing at an appropriate stage a subpoena duces tecum to the architect requiring the architect to produce the contents of the box files. This would not be ideal, since it is undesirable that a number of relevant documents should only come to light at the outset of the trial, but I am informed that it has been known for arrangements to be made for fixing an early trial date at which a witness can be required to appear bringing with him the documents in question, the trial being then adjourned and it may be that the Defendant will consider whether such a course might be appropriate in this case. If so, it can make the necessary application.

5. For these reasons, I regret to say that I feel unable to accede to the Defendant's application and the application will be dismissed.