EDEN CONNECTIONS DESIGN & ENGINEERING CO v. AYASH OMER

DCCJ 2739/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.2739 OF 2009

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BETWEEN

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DECISION

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1.  There is an application of leave to appeal before me. The intended appellant also asks for a stay of execution pending the appeal.

2.  On 8 November 2011, I handed down a Judgment in favour of the Plaintiff. As a matter of fact findings, on balance, I accepted the case of the Plaintiff and refused that of the Defendant.

3.  Briefly, the Plaintiff sued the Defendant for balance of unpaid contract price for renovation services provided in the sum of $67,611.50. The Defendant said that the performance of the Plaintiff was both late and defective.  Hence, he not only defended for the proceedings but also counterclaimed for damages.

4.  After a trial of 3 days, I preferred the evidence of the Plaintiff. I found the Defendant was the defaulting party. The delay was indeed caused by his lateness in payment of instalments and confirmation of the design in time. Parties did try to sort out the problem themselves by a joint inspection and they were able to come up with a written agreement on 17 March 2009. The Plaintiff performed his part under the agreement but the Defendant still broke his promises of payment.

5.  The Defendant said that the renovation done by the Plaintiff was defective. Such allegation was not true. He continued to run his business there. In any event, he did not inform the Plaintiff to remedy them. He also did not ask some other contractor to do the rectification. With respect, in my view, the Defendant was trying not to pay to the Plaintiff the balance of the contract price.

6.  Regarding the expert evidence, although the Plaintiff did not adduce any of them, upon consideration, I still refused to accept that of the Defendant because he had not been provided with all the necessary documentation and that he only inspected the renovation visually. 

7.  As a result, I granted judgment for the Plaintiff and dismissed the counterclaim of the Defendant. He was also ordered to pay costs, to be taxed, if not agreed.

8.  On 6 December 2011, the Defendant, through his then solicitors, took out the present summons for leave to appeal and stay of execution. There was a draft notice of appeal attached to the summons. Five grounds of appeal were set out. To sum up, it was submitted that I should have accepted the expert evidence of the Defendant.

9.  I heard the summons on 12 January 2012. The Defendant appeared in person before me as he did so at the trial. The Plaintiff was absent although it had sent somebody to attend the hearing to understand what was going on. Having heard from the Defendant, I reserved my decision to be handed down. I now do so.

10.  Upon consideration, I have decided to refuse to grant the leave sought by the Defendant. My reasons appear in below.

(a)  The relevant provision regulating whether leave should or should not be granted is located in section 63A (2) of the District Court Ordinance (Cap. 336).

“(2) Leave to appeal shall not be granted unless the Judge…is satisfied that -

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

(b) I am not satisfied either of the above grounds has been   established by the Defendants.

(c) I do not intend to deal with each of the proposed grounds of appeal individually as some of them overlap with each other. It suffices for me to say the followings.

(d) The Trial Judge is entitled to accept or refuse any of the evidence, including the expert evidence, with reasons.  I maintain the view that the expert evidence of the Defendant should not be accepted and see no reason to rule otherwise.

(e) At the hearing, the Defendant further submitted a written skeleton submission. It also consisted of five grounds of appeal.  However, they were not the same as those contained in the said draft notice of appeal.  Again, very briefly, these grounds said that the evidence of the Defendant, including the expert one, should have been accepted. As such, the judgment was not correct.

(f) Regarding the findings of facts, I remain of the same view that the case of the Plaintiff was preferred than that of the Defendant. The mere repeating of what was argued at the trial will not advance the position of the Defendant.

(g) Finally, at the hearing, the Defendant also orally supplemented a few points. In short, he felt surprised about the judgment and did not understand why I ruled against him. He thought that the Plaintiff had caused him to suffer and should be held responsible for it. To these, I do not intend to add anything but to reiterate my reasons as stated in the judgment.

11.  As to the stay application, I have also decided to refuse the same.

(a)  The general principle is that this court does not make a practice of depriving a successful litigant of the fruits of his litigation and locking up funds to which prima facie he is entitled to.

(b)  The Defendant has not been able to satisfy me any merits of his intended appeal and/or any other good reasons why execution of the judgment should be stayed.

(c)  urther, the judgment only amounts to a sum of $67,611.50. There has been no suggestion that the appeal (if any) would become nugatory if the Plaintiff was allowed to recover such sum for the time being.

(d)  Last, but not least, there is no evidence before me that there is any matter occurring since 8 November 2011 justifying that the judgment should not be executed.

12.  It appears to me that the Plaintiff has not taken any step herein, I therefore will make an order nisi of no order as to costs.