XCHRX MANSION FIRE ENGINEERING CO. LTD. v. TRIDANT ENGINEERING CO. LTD.

1996, No. Con 3 & 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. I have two summonses before me; one by Tridant for leave to amend its amended writ and amended defence and counterclaim, and the other by Mansion for an order that Tridant make and serve a further supplemental list of documents. I will deal with the application for leave to amend firstly.

2. Presently, Tridant pleads, broadly speaking, that Mansion failed to execute the work with due diligence, thus evidenced an intention not to be bound by the subcontracts and repudiated them. Tridant says that, on 10 October 1995, it accepted that repudiation.

3. Now, Tridant wants to plead "further or in the alternative" that Mansion evidenced an intention not to be bound and repudiated by reason of the fact that Mansion refused to order or deliver materials to the site. Tridant accepted this repudiation on 10 October 1995.

4. Mr Graham, on behalf of Mansion, says that I should not grant leave. He says this because the application is not made in good faith, the amendment would not raise the real question to be determined because the evidence does not support the plea and it is embarrassing because it raises an alternative case. It is not suggested by Mr Graham that, other than in these respects, Mansion would be prejudiced by the granting of the amendment.

5. It does not seem to me that the amendment sought raises a radically new case. It is, in fact, little different form that presently pleaded, simply being more specific than the present pleading. It is also not a case that is new in the sense that Tridant had not complained about this non-delivery; it had. There is also nothing before me from which I could possibly conclude that the application is not made in good faith. As to whether the evidence supports the plea, that is matter for the trial judge. There is certainly some evidence to support it; and there may be some evidence that does not, or contradicts it, but it is not appropriate for me to come to a conclusion on this now. I do not think either that the plea would be embarrassing. It would be a simple enough case with the amendment, as I have already outlined. Alternative pleas do not make a pleading embarrassing; they are common. Mr Graham says that Tridant should know what operated on its mind to justify the acceptance of a repudiation. I do not accept that this is a good test. Tridant is entitled to rely on repudiatory conduct by Mansion even if it did not direct its mind to this at the time of acceptance.

6. Accordingly, I can see no good reason why I should not grant leave to amend, and I make an order in terms of the summons of 13 April 1999. Mansion has leave to amend its pleadings in response within 7 days the new plea. The parties are to file and serve any additional statements necessary to deal with the new plea.

7. Mansion's application for an order that Tridant make and serve a further supplemental list of documents arises from the perception by Mansion's solicitors that Tridant has not supplied certain documents. In a wearisome exercise, Mr Graham went through all these documents, and Miss Cheng responded to the complaints made. This case has been bedevilled by a poorly organised and executed discovery process by both sides. I have listened to Mansion's complaints and Tridant's answers to those complaints. I am not satisfied that this case will be helped one little bit by me making an order on this summons. What will help will be for the solicitors to stop treating this matter as a war like that between NATO and the Serbs, and realise that the court is more likely to reach a sensible determination of this matter with the assistance of more co-operation between them. To the extent that Mansion's complaints have not been resolved, I suggest, if I have no power to order, that the solicitors sit down together soon in as amicable a fashion as they can manage, and sort out the problems, as they should have done already. I am not satisfied that either side is free from blame here, so I order that the costs of this summons be in the cause.