XCHRX WING ON CHEONG HOLDING LTD. AND OTHERS v. LAND DEVELOPMENT CORPORATION AND OTHERS

1996 No. A11980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. This is an appeal from the order of Master Poon given on 9th April 1998 dismissing with costs to the Plaintiffs in any event the Defendants' application that the Plaintiffs' claim be struck out for non-compliance by the Plaintiffs of an order of Master Chu on 5th September 1997.

2. The order made by Master Chu was an "unless" order, namely an order that unless the Plaintiffs file and serve the Answer to Further and Better Particulars of the Statement of Claim pursuant to the Defendants' request dated 25th January 1997 by 4:00 p.m. on 19th September 1997, the Plaintiffs' claim be struck out with costs.

3. According to the Statement of Claim, the 1st Plaintiff is and was the owner of Shop No. 3 on the ground floor of Wing On Cheong Building at 5-9 Wing Lok Street, Central, Hong Kong and the developer of the said building. The 2nd and 3rd Plaintiffs were tenants and occupiers of the said Shop No. 3. The 1st Defendant is and was the occupier and owner of the property at No. 11 Wing Lok Street which was adjoining the Plaintiffs' said Shop No. 3. The 2nd Defendant was the contractor employed by the 1st Defendant to perform foundation works on the 1st Defendant's property at No. 11 Wing Lok Street and the 3rd Defendant was the contractor employed by the 1st Defendant to perform demolition and/or construction works at No. 11 Wing Lok Street.

4. In about April 1993, the 1st Plaintiff and the 1st Defendant entered into an agreement whereby the 1st Plaintiff gave its consent to the 1st Defendant to demolish the party wall which was then erected on the junction line between the 1st Plaintiff's property and the 1st Defendant's property and it is pleaded that there were a number of express and implied conditions of the agreement. These included conditions that immediately after the demolition of the party wall, the 1st Defendant would cause or render water proofing works to be done on the part of the outer wall of the 1st Plaintiff's building which would be exposed as a result of the demolition, that the 1st Defendant should cause or render the extra space created by the demolition of the party wall to be plastered with water proofing mortar and to be filled with no fine concrete, and that the 1st Defendant should be responsible for all loss or damages suffered by the Plaintiffs caused by the demolition of the party wall.

5. It is alleged that between May 1993 and August 1993, in the course of the demolition of the building on the 1st Defendant's property, the 1st and/or 3rd Defendants demolished the party wall thereby causing a) that part of the outer wall of the 1st Plaintiff's building adjoining the 1st Defendant's property to be exposed, b) horizontal cracks along the junction between the floor and the wall of the 1st Plaintiff's premises adjoining the 1st Defendant's property, and c) horizontal cracks on the wall of the 1st Defendant's premises adjoining the 1st Defendant's property. Breaches of the conditions of the contracts are alleged, in that it is alleged that the 1st Defendant, inter alia, failed to render water proofing works to be done, failed to cause or render the extra space created by the demolition of the party wall to be plastered with water proof mortar and to be filled with no fine concrete and failed to cause or render the aforesaid cracks created by the demolition to be made good or sealed with proper material plastered or repainted.

6. A claim in negligence was also made. It was also alleged that between August and September 1994 when the Defendants carried out foundation works on the 1st Defendant's property, the 1st Plaintiff's premises were flooded and/or infiltrated with and/or damaged by water which escaped from the 1st Defendant's property. It was said that a nuisance was committed by the Defendants and further or alternative claims were made in negligence and under the Rule in Rylands v. Fletcher [1866] 1 Ex. 65.

7. It was also alleged that notwithstanding remedial works carried out by the Defendants, the 1st Plaintiff's premises were flooded and damaged by water which permeated through the exposed wall between June 1995 and October 1995 and again in June 1996. The Plaintiffs thus claimed damages from the Defendants. The defence filed by the Defendant is largely one of denial and non-admissions.

8. A request for further and better particulars of the Statement of Claim was made on 25th January 1997. This was a lengthy request with 48 separate requests. This was not answered and eventually Master Chu made the "unless" order on 5th September 1997.

9. Miss Yuen for the Defendants has taken me through the requests which she says has not been answered either sufficiently or at all, and has submitted that the Plaintiffs have been in breach of the "unless" order in which case their claim should be struck out. She says that the failure to answer the specific requests which she took me through was intentional and contumelious, and based on the principles set out in Re Jokai Tea Holdings [1992] 1 WLR 1196, the Plaintiffs' claim should be struck out. The principle in Re Jokai Tea Holdings has been applied in Hong Kong in a number of cases, for example, Tan Eddy Tansil v. PT Bank Pembangunan Indonesia (Persero) [1996] 1 HKC 231 and Chow Kai Sang v. Samuel Toi & ors [1996] 4 HKC 330.

10. Counsel for the Plaintiffs has submitted that the Plaintiffs have complied with the order of Master Chu. They did file and serve the Answer to the Request for Further and Better particulars of the Statement of Claim by 4:00 p.m. on 19th September 1997. He submitted that what the Defendants complain of in effect is a matter of sufficiency of the answers only.

11. In my judgment, the proper approach to this matter is to construe the order of Master Chu. I derive considerable assistance from what was said by Somervell L.J. in Reiss v. Woolf [1952] 2 Q.B. 557. The Court of Appeal there was dealing with an appeal from the refusal of Devlin J. (as he then was) to make an order that certain paragraphs of the defence be struck out. It was argued that there was a breach of an earlier order that the Defendants do not later than a specified time and date deliver the further and better particulars of the defence as requested and that in default thereof certain paragraphs of the defence be struck out. Somervell L.J. in his judgment set out what Devlin J. said in the court below as follows at p.559:

"If 'default' means default in the sufficiency of one or more of the answers I should not consider that the event was defined with precision; whether or not it had taken place might be the subject of a genuine conflict of opinion which could only be resolved by further adjudication. If I thought this to be the right construction of the order I should follow Abalian v. Innous and treat it as inoperative. The order can conform with the principle in that case only if it is treated as an order that is dealing with the time of compliance rather than with the mode of compliance. The order does fix a time very precisely, and I think it can and should fairly be construed as a time order. So construed, 'default' refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith and which can fairly be entitled 'particulars.' It must not be illusory; that is the word used by Mr. Bankes in argument in Davey v. Bentinck. That is the test, in my judgment, and not, as the plaintiff contends, whether each demand for particulars has been substantially met. Applying that test, I think there has been no default."

12. Somervell L.J. expressed the view that he agreed with Delvin J.'s construction of the order.

13. Here, in the present case, there was not a complete failure to comply with the order of Master Chu. It is clear to me that the Answer that was delivered gave detailed answers to 48 individual requests, although it was argued that some of the particulars given were not sufficient. It was made in good faith and I think the order of Master Chu should fairly be construed as a time order in the same way as the order that was construed in Reiss v. Woolf. The Answer to the Request for Further and Better particulars as I have said is a document which was made in good faith and which can fairly be entitled 'particulars'. I would also observe that in Reiss v. Woolf Somervell L.J. at p.560 said that in respect of a document which was delivered about which the argument would be "Is it illusory?", then that would be the subject of a further application. I think that applies to the present case as well.

14. In the circumstances, I dismiss the appeal with costs to the Plaintiffs.