YEUNG SANG METAL SUPPLIES CO (a firm) v. ANWELL/UTOPIA JOINT VENTURE (a firm)

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J U D G M E N T

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Cons, V.P.:

1. This is an appeal from the decision of Liu, J., whereby he made an interim award of damages.

2. The Plaintiff's claim is for work done and materials supplied, in the event steel bars, to the extent of $650,000 approximately. The judge awarded $257,000. His figure was based on calculations based on a measurement disclosed to him during the course of the hearing.

3. The grounds of appeal are expressed in the Notice of Appeal to be that there was insufficient evidence to justify the judge's decision at either stage of his consideration of the question in the manner approved in Shanning Ltd v. George Wimpey International Ltd [1988] 3 A.E.R. 475. It has been argued in substance upon the suggestion that the judge's calculations were flawed in four respects.

4. The first of these is the rate at which the steel bars were charged. In the Statement of Claim, that was put upon the contractual rate $4.13 per Kg. Yet during the course of the contract itself, and at the hearing before the judge, it seems to have been accepted by both parties that the contractual rate did not apply to an amount of bars above those envisaged by the contract, - some 40% more -, that were found eventually to be necessry. If that were indeed so then the price of the further bars would be a reasonable price.

5. It is suggested now that there was no evidence before the judge as to what would me a reasonable figure, and therefore nothing on which he could make an assessment for the purposes of Order 29. However, as I read his judgment, it seems to me that in effect he found that evidence in the Defendant's acceptance of the contractual rate when making the calculations which the Defendant put before him. In the absence of anything to the contrary that was, in my opinion, sufficient justification for the judge's conclusion.

6. The second matter is the quantity of bars which the judge accepted as having been delivered. This, as I have said, was based on the measurement disclosed before him. Two objections are taken to that measurement. The first is that it gives a figure which is in excess of that mentioned in the Statement of Claim. That comes as no surporise because the figure was not known to the Plaintiff when the Statement of Claim was drafted. It is accepted to be only a technical objection and, with respect, it seems to me absurd to suggest that the judge should shut his eyes to a figure that will undoubtedly and inevitably be put into, the Statement of Claim by way of amendment in due course.

7. The second objection is that the figure is subject to confirmation by the engineer. However, the actual report in which the figure appears shows that of the 1.6 million odd Kg measured, only 15,000 odd Kg require confirmation by the engineer. Even so, at the rate of $4 approximately per Kg that puts something like $60,000 in issue. The judge, for reasons with which I cannot agree found either that by the time of the hearing the engineer roust already have confirmed the figure given in the report, or if not, it would be inevitable that he should do so. For my part I do not think that necessarily follows from the circumstances. But it does seem to me, having regard to the general run of matters of this nature, that it is unlikely that the whole amount would be rejected by tae engineer. Judging, as best as I can in the circumstances, that his decision might affect up to 50%, I find the judge's conclusion in this respect to be out by $30,000.

8. The third complaint relates to two particular items, one called "daywork'' and the other called "transportation charges". It is suggested that these items have been "doubly claimed", i.e. that they mad already been included in the general rate of $4.13 per Kg.

9. The judge did not allow for these at the rate claimed by the Plaintiff. He used the lesser figures from the Defendant's own calculations. It is pointed out that these figures were qualified by the phrase "if allowable", and that the supporting Affidavit referred to them as "invalid" and having "no contractual basis''. On the other hand the appendices to the Affidavit suggest that something should be payable and this is confirmed by a parenthesis in a letter dated 3rd April this year. The judge expressly rejected that letter as an admission of liability. For this reason Mr. Scott, for the Defendant, objected to our looking at it, no Respondent's Notice having been filed. On returning to court to deliver our judgment, Mr. Yu, for the Plaintiff, asked to address us upon the objection, but we refused him as being too late. However, for my part I may say that my decision upon this point would be the same whether we looked at the letter or not. In my view the evidence at tile moment is not sufficient to justify a firm view as to the $24,000 odd in question and the judge's conclusion is thus again out to that extent.

10. The final matter refers to allegations of bad workmanship by tile Plaintiff which force part of the Counterclaim. The judge allowed for two particular instances of bad workmanship, remedial work for honeycombing and damage to the electrical conduit. Mr. Bell has referred us to two letters which mention further complaints. But his difficulty which, to my mind, he cannot overcome, is that the amount of damage has not yet peen quantified, nor even any suggestion made. In my view tile judge alas right to ignore them.

11. So, for the reasons I have given, I am quite satisfied that tile judge was justified in concluding, on the first question to which he was required to direct his mind, that the Plaintiff was likely to obtain judgment for a substantial sum. I nave some misgivings, however, as to the amount he chose in the exercise of his discretion. To my mind it is clear that he awarded what he thought was definitely due to the Plaintiff, a sum which, with a little encouragement, he might have awarded by way of judgment under Order 14. It follows, to my mind, that if he had felt himself bound to accept the views that I have just expressed with regard to the daywork and transportation charges and the items to be confirmed by the engineer, he would have made appropriate allowance. He would, I think, in a case of this kind have been right to do so. In his shoes I would have done the same. I am not prepared to uphold the higher figure, as Mr. Yu suggests, by reference to the remarks of Glidewell, L.J., at pp. 989 and 990 of the Shanning case.

12. I would, therefore, for my part, allow the appeal, but only to the extent that the figure awarded by way of interim damages be reduced to $200,000.

Clough, J.A.:

13. I agree.

Penlington, J.A.:

14. I also agree.