TUNG NGAR AIR CONDITION & STEEL HOLDINGS LTD v. SHING HIN CATERING GROUP LIMITED

HCA 1410/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1410 OF 2009

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D E C I S I O N

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1. The plaintiff’s application under the summons dated 13 March 2014 is dismissed and I shall give very brief reasons for my decision.

2. A party seeking specific discovery under Order 24, rule 7 of the Rules of the High Court or for a further and better list of documents must demonstrate a prima facie case that the documents sought are relevant to the issues.  Relevance is to be determined by reference to the pleadings.

3. In the present case, it has never been part of the plaintiff’s pleaded case against the defendant’s counterclaim, or the plaintiff’s evidence, that the plaintiff should not be liable for the rectification works because they were undertaken as a result of the defendant’s subsequent change of layout plans, rather than being remedial in nature.

4. In the premises, the application for disclosure of the documents sought under the summons is a fishing exercise.  It should be dismissed on that basis alone.

5. Furthermore, the plaintiff has not offered a good explanation to justify the delay in bringing this application, nor as to the departure from the statements in its listing questionnaires, namely, that discovery had been completed and that the plaintiff did not intend to take out any other interlocutory applications.  From the correspondence before the court, the plaintiff’s solicitors have written to the defendant’s solicitors on 29 August 2012 seeking discovery of one of the targeted documents.  This was rejected outright as being irrelevant to the plaintiff’s pleaded case.  The defendant’s position has not changed since.  The plaintiff should have applied for discovery then.  Furthermore, it cannot be a good reason for the plaintiff to say that the defendant has been under a continuous duty to disclose documents, when the documents sought are not relevant to the plaintiff’s pleaded case.

6. Permitting specific discovery at this late stage, if the documents discovered would lead the plaintiff to a train of inquiry which may advance the plaintiff’s case or to damage the defendant’s case, would very likely prompt another round of amendment of pleadings, further witness statements and further expert reports from the existing or further experts. There is a very strong prospect that the trial would, for a third time, be derailed.  The trial dates fixed for June 2014 are, of course, milestone dates not to be varied save in exceptional circumstances.

7. For the reasons set out above, I have no hesitation in dismissing the plaintiff’s application.

[Discussion re costs]

8. I order that the costs of the application be paid by the plaintiff to the defendant.

[Further discussion re costs]

9. I do not agree that it is proper to apply a global discount of 25% to the solicitors’ costs as suggested by Mr Wong.  The costs payable by the plaintiff is summarily assessed to be $79,850, such sum to be paid within 14 days.