SAM WOO BORE PILE FOUNDATION LTD v. CHINA OVERSEAS FOUNDATION ENGINEERING LTD

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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Background

1. The plaintiff is the defendant's sub-contractor in relation to some piling work. There was a dispute between the parties. The plaintiff says that this dispute was settled by agreement. The plaintiff says that the defendant has not made payment to it in terms of the sub-contract and the settlement agreement. The plaintiff is taking proceedings against the defendant. The defendant is counter-claiming in respect of alleged breaches of the sub-contract by the plaintiff.

Discovery

2. The parties proceeded to discovery in the action. There was a dispute between the solicitors for the parties over discovery and inspection. The plaintiff's solicitors wanted to see the contract between the defendant and the main contractor. The defendant's solicitors supplied a copy, but with the prices in the bills of quantities omitted. This was because the plaintiff and the defendant were rivals in the piling business, and the defendant did not want the plaintiff to know its method of pricing. The defendant maintained that the prices were irrelevant to the dispute between the plaintiff and the defendant. The plaintiff also wanted all documents relating to payments by the main contractor to the defendant in connection with the work sub-contracted to the plaintiff. This dispute was carried on by correspondence over May, June and July 1997.

The Summons

3. On 13 August 1997, the plaintiff took out a summons returnable before me on 3 October 1997. This summons asked for orders that the defendant produce for inspection "the complete and original version" of the main contract; and the defendant make and file an affidavit relating to payments made between the main contractor and the defendant insofar as such payments were in respect of the work carried out by the plaintiff.

Events subsequent to the Summons

4. On 27 September 1997, the defendant's solicitors wrote to the plaintiff's solicitors disclosing copies of some pages of the bills of quantities with the prices, some other documents, a supplemental list of documents and an affirmation by the defendant's representative. The defendant's solicitors proposed that the costs of the application should be in the cause. Apparently, this letter arrived at the offices of the plaintiff's solicitors on 27 September 1997, a Saturday, but were not seen by the solicitor handling the matter until the Monday, 29 September 1997.

5. On 29 September 1997, the plaintiff's solicitors wrote to the defendant's solicitors saying, in essence, that they now had what they wanted and had been requesting since May. Before me, Mr Chan confirmed that the plaintiff was content, at this stage, with what had been supplied. Notwithstanding this, the plaintiff's solicitors sent a consent summons to the defendant's solicitors. This consent summons sought the same orders as in the existing summons, including costs to the plaintiff in any event.

6. On 30 September 1997, the defendant's solicitors replied, saying, in effect, that the orders sought were unnecessary, and that it was not appropriate that the plaintiff be awarded the costs.

Order on the Summons

7. I am not satisfied that the plaintiff is entitled to the substantive orders in the terms it seeks. And it is not entitled to any modified order. The plaintiff's solicitors say they now have what they want. Mr Chan says that the plaintiff now has what it wants. It may be, of course, that after further inspection, the plaintiff may want some more, but that is not before me now. There is no need to make any substantive order on the summons. It is dismissed.

The Costs

8. This matter would have been easier to resolve if the defendant had, when it responded to the summons on 27 September 1997, offered to pay costs to date. This is what it should have done. And what the plaintiff should have done, when the defendant failed to do this, was to seek only costs, abandoning the summons that then served no useful purpose. But these things did not happen, and I must decide which party is to pay the costs on the facts as they are.

9. Firstly, the plaintiff is clearly entitled to its costs up to and including the receipt and consideration of the letter from the defendant's solicitors dated 27 September 1997. I order accordingly.

10. The costs incurred thereafter were necessitated both by the plaintiff's conduct in pressing for orders under its summons and the defendant's conduct in failing to concede that it should pay limited costs. It is not possible for me to apportion the costs on the basis of blame, or to say that the hearing would not have been necessary if only one of the parties had given way. It seems to me that the parties are equally at fault. Accordingly, it seems to me that the just order as to costs after 27 September 1997 is that each party should bear its own costs, and I so order.