EVERICH CONSTRUCTION & ENGINEERING LTD v. NG BIK WAY t/a YAU LUEN METAL WORKS

HCMP 987/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 987 of 2009

(On An Intended Appeal from DCCJ No. 2579 of 2008)

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DECISION

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Hon Tang V-P:

1.   I agree with the judgment of Yuen JA and have nothing to add.

Hon Yuen JA:

2.   This is an application for leave to appeal from a decision of Judge Yung given on 3 April 2009 giving summary judgment to the Plaintiff against the Defendant. Before giving summary judgment the judge had refused the Defendant’s application for an adjournment to file a further affirmation in order to produce documents in support of his defence, and the Defendant also seeks leave to appeal against that decision.

Action

3.   The Plaintiff had sued the Defendant for $408,038 being the balance of sums owed by the Defendant to the Plaintiff under four agreements connected with building works.

- The 1^st agreement was for the construction of a steel catwalk together with subsequent modifications;

- the 2^nd was for the supply of labour to do unloading work in relation to a bridge project in Macau;

- the 3^rd was for the supply of labour to do installation works in relation to a youth development centre project in Chai Wan; and

- the 4^th was for building works in a lounge in Central.

4.   The Statement of Claim was clearly pleaded. It was filed on 17 June 2008.

Defence

5.   Ten days later on 27 June 2008 the Defendant (then not legally represented) filed a Defence in which he alleged

- in respect of the 1^st agreement, delay and defective work;

- in respect of the 2^nd agreement, haphazard calculations;

- in respect of the 3^rd agreement, haphazard installation; and

- in respect of the 4^th agreement, omissions in installation.

The Defendant alleged that as a result, he had incurred losses but he did not give any estimate of his loss. There was no counterclaim, nor was there any separate action instituted by the Defendant against the Plaintiff.

Application for summary judgment

6.   More than 6 months after the Defence was filed, the Plaintiff issued a summons for summary judgment. It should be noted that the summons was for

- final judgment to be entered for the amounts claimed under the 2^nd, 3^rd and 4^th agreements;

- judgment for liability under the 1^st agreement, with damages to be assessed.

7.   This application was supported by an affirmation of Kwong Ki Loong the Plaintiff’s representative filed on 24 January 2009 exhibiting a large number of documents in support of the Plaintiff’s claim. The Plaintiff’s representative deposed that he believed that there was no defence to the Plaintiff’s claim except as to the amount of damages under the 1^st agreement.

Defendant’s affirmation

8.   More than a month after the Plaintiff’s affirmation, the Defendant filed an affirmation on 27 February 2009.

- In respect of the 1st agreement, the Defendant’s affirmation merely contained comments on the Plaintiff’s exhibits and contended that the Plaintiff had failed to prove its case. The Defendant denied that there were any modifications. However no documents were exhibited to show the Plaintiff’s delay or defective work (as per the Defence), or what that had cost the Defendant.

- In respect of the 2^nd, 3^rd and 4^th agreements, the Defendant alleged simply that there was no evidence that they had anything to do with the Defendant.

9.   There was then an affirmation in reply from the Plaintiff’s representative exhibiting contemporaneous documents sent to the Defendant in respect of the modification works.

Hearing before the judge

10.   On 3 April 2009 the parties appeared before Judge Yung on the Plaintiff’s application for summary judgment.

Defendant’s application for adjournment to file new affirmation

11.   It would appear from the transcript of the hearing that after hearing the Plaintiff’s counsel, the judge permitted the Defendant’s son and representative Ng Cho Sum to make certain unsworn allegations about the Defendant’s case. After hearing the judge’s comments on those allegations, Mr Ng then indicated that if it was necessary (Transcript p.19K), he would apply for an adjournment of 2 weeks to file an affirmation. This application was objected to by the Plaintiff. The judge then gave a ruling refusing the Defendant’s application because of the lateness of the application and the fact that in any event, Mr Ng had indicated that there were no documents to support his allegation that there were no oral agreements in his trade i.e. the building trade.

Summary judgment

12.   The judge then finished hearing submissions and gave summary judgment to the Plaintiff on the grounds that the defence case was inconsistent and unsupported by any documents.

Sealed judgment

13.   It is to be noted that the sealed judgment was that “the Defendant do pay the Plaintiff damages on the breach of the Agreements pleaded in the Statement of Claim to be assessed”. In other words, damages were to be assessed on the claims on all four agreements, and not just the 1^st agreement. The Plaintiff has not appealed against this order.

Summons for leave to appeal

14.   On 4 May 2009 the Defendant (now acting though solicitors) applied for leave to appeal from the orders refusing an adjournment to adduce further evidence and for summary judgment. The judge refused leave, hence the present application.

Discussion

15.   I have read the documents filed in the District Court and the documents filed for the present application (although for some reason the two affirmations of Ng Cho Sum placed before the judge for leave to appeal were not included in the application for leave to this court). I have also read the skeleton submissions of counsel for the Plaintiff and the Defendant respectively.

16.   The judge was entitled in the exercise of his discretion to refuse an adjournment for leave to adduce further evidence. The Plaintiff’s claim had been set out clearly in the Statement of Claim as well as in the affirmation in support of the application for summary judgment. There was a period of 10 months between the commencement of proceedings and the hearing (and more than 2 months between the application for summary judgment and the hearing), so the Defendant had adequate time to prepare his case. The Defendant now says that he was not conversant with “legal complexities or procedures”, but there were none which the Defendant had difficulty following. He had filed a Defence on time. And it is not as if he did not know that he had to put in an affirmation in defence in the summary judgment application. He in fact did so. No reason has been advanced as to why the matters pertaining to the claims set out in Mr Ng’s affirmation for leave to appeal were not advanced before the judge. Mr Ng is the Defendant’s son and the General Manager of the Defendant’s firm. He had worked for the Defendant for the past 15 years. All matters relating to these agreements were within his personal knowledge at all times. The application for an adjournment was unjustified. The prejudice that the Plaintiff would suffer from an adjournment was self-evident.

17.   As for summary judgment, it is well-established that it is for the defendant to show a triable issue. The Plaintiff had exhibited large numbers of documents showing its claims and chasers for payment. The Defendant did not exhibit a single document showing that he had complained about the alleged delay or defective work under the 1^st agreement. As for the 2^nd, 3^rd and 4^th agreements, the only defence in the Defendant’s affirmation was that these agreements had nothing to do with him as they were only made orally. There was no argument about the terms of the agreements. Nor was there any explanation why (if the 2^nd, 3^rd and 4^th agreements did not affect him) he had complained about “haphazard calculations, installation and omissions in installation” in the Defence he had earlier filed. The judge was entitled to reject the only defence advanced as a matter of law (in any event this is no longer the Defendant’s case, see his counsel’s skeleton submission (para. 41). In my view the judge was entitled in the exercise of his discretion to enter summary judgment.

18.   The Defendant cannot have a second bite at the cherry now and seek to alter his defence. As I have noted earlier, the judge’s judgment was for damages to be assessed under all four agreements and not only the 1^st agreement. This judgment already allows for examination of the quantum of the claims for damages at the assessment.

19.   In my view there is no realistic prospect of success in an appeal against liability on the agreements and I would refuse leave to appeal. I would also make an order under O.59 r.2A(8) that no party may request the determination to be re-considered at an oral hearing under O.59 r.2A(7).