XCHRX LEE SHING YUE CONSTRUCTION CO. LTD. v. WEST GLOBAL LTD. AND ANOTHER

HCA No. 17683/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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D E C I S I O N

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1. The Plaintiff is the main contractor under a Government contract for maintenance works. The 1st Defendant was the Plaintiff's sub-contractor; the 2nd Defendant is a director of the 1st Defendant. The Plaintiff terminated the sub-contract in August 1998. The Defendants thereafter, however, retained possession of an area of some 500 square meters (which has been referred to by the parties as "the Site") which is used as inter alia a workshop. Also in issue before me are some items called "Government Goods", which were goods collected from Government stores for the carrying out of maintenance works, which the Plaintiff says the Defendants had kept.

2. The application was for 1) an interlocutory injunction restraining the Defendants from retaining possession of the Site and/or from interfering with the Plaintiff's possession of the Site; 2) for the delivery up on oath of all unused items of the said Government Goods. The Defendants have indicated that they will vacate the Site and it is common ground that on 19th October 1998 the Defendants did deliver up items said to be the unused items of Government Goods, so the dispute before me was 1) whether the Plaintiff would have got an interlocutory injunction regarding the vacating of the Site (if the Defendants had disputed it) on consideration of the balance of convenience, and 2) whether the Plaintiff is entitled to paragraphs 2 and 3 of the draft order regarding the delivery up of the unused items of the Government Goods. The Defendants say that that damages would be an adequate remedy because the Plaintiff could have reordered those goods and in any event they have gone on affidavit to say that all unused items have been returned.

3. In my judgment, the Plaintiff would have got an interlocutory injunction if the Defendants had disputed the application. I note that this Site contained a workshop and that part of the Plaintiff's contract with the Government was that it should perform emergency works within a one hour response time. It is true as pointed out by Mr. Tsang that emergency vehicles were required to carry tools and materials, but it is in the nature of a workshop that work can be carried on conveniently there, something that could not be done in vehicles which would be used only to take workmen and tools to the place requiring the work. There is no other depot available to the Plaintiff within the area, and there is no evidence that a similar workshop of some 500 square meters could be easily rentable for short term use within the area.

4. There is some evidence that the Plaintiff's performance has not been satisfactory after possession of the Site by the Defendants. That may or may not solely be because of the Defendants' possession of the Site, but, as I have said, there is some evidence that the Plaintiff has not been performing at satisfactory levels in the past two months. In any event, even if the Plaintiff had been performing at satisfactory levels for the past two months, there is no indication that it would continue to do so, because it is in the nature of emergency work that it is not routine and some emergency work (or more emergency work) may be required in the future than in the past two months. So I am satisfied that if an interlocutory injunction for vacating the Site had been argued, I would have granted it. Needless to say, I would not have been able to decide at this stage whether the alleged agreement which has been exhibited to the affidavit of the 2nd Defendant was authentic or valid. I would have been satisfied by the Plaintiff that there was a serious question to be tried.

5. Secondly, I deal with the unused items of the Government Goods. I would not, however, grant an order in terms of paragraphs 2 and 3 of the draft order concerning the unused items in the Government Goods. The Defendants say that they have already delivered up all unused items; this has been deposed to on affidavit of the 2nd Defendant in paragraph 7. The Plaintiff has no evidence to the contrary. Therefore, no clear case has been made out before me by the Plaintiff that the Defendant is still holding onto any unused items. In the light of that, it is not necessary, in my view, to grant the orders in paragraphs 2 and 3 of the draft order.