TRI'S ENGINEERING CO LTD v. THE INCORPORATED OWNERS OF RUBY COURT AND ANOTHER

HCA 3632/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3632 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

1. The Plaintiff claims summary judgment against the 1st Defendant ("the Incorporated Owners") or the 2nd Defendant ("Selex") in respect of 42 invoices relating to waterproofing and other renovation works ("the works") carried out in Ruby Court, 55 South Bay Road, Hong Kong. The works were carried out between 1995 and 1998.

2. The Plaintiff says that Selex acting as agent on the Incorporated Owners' behalf requested the Plaintiff to perform the works. The Incorporated Owners deny that Selex was their agent. The Plaintiff argues that, if Selex did not have authority to contract on the owners' behalf, then Selex must be liable to the Plaintiff for breach of warranty of authority. Mr Chan (who appears for the Plaintiff) has also argued this morning that Selex is liable, at the Plaintiff's election, because the Plaintiff contracted with Selex on the basis of an undisclosed agency. This last submission has not been pleaded.

3. I am not satisfied that this is a case which merits summary judgment. In my view, it is arguable on the evidence before me that Selex was authorised to act on behalf of the owners of Ruby Court as a whole in contracting for the works. On the other hand, it is equally arguable that the works carried out by the Plaintiff were not in fact for the benefit of the owners as a whole, but were instead done for the benefit of individual unitholders. For example, it is unclear to me upon examination of the DMC whether the waterproofing done to parts of the roofs and external walls of Ruby Court constituted work on common areas for which the Incorporated Owners would be liable. Given that is the case, there is a dispute as to whether the Plaintiff is entitled to sue the Incorporated Owners under Building Management Ordinance (Cap. 344) s. 16.

4. Mr Chan invites me to give interim judgment at least in respect of 8 invoices for a total of $97,850. That work was on its face (Mr Chan says) for the benefit of the owners as a whole and so must be indisputably due to the Plaintiff. But, given my doubts over the more substantial part of the Plaintiff's claim (namely, whether some $1,493,850 of the works were actually authorised by the Owners as whole or only commissioned by specific unitholders), I cannot confidently say for the purposes of an Order 14 application that the $97,850 due on the 8 invoices was properly authorised by Selex on behalf of the owners of Ruby Court. It seems to me that the better course is to allow the whole matter to proceed to trial.

5. For the above reasons, the Incorporated Owners and Selex are to have unconditional leave to defend.