BUILDTECH LTD v. HUNG WAN CONSTRUCTION CO LTD

DCCJ1385/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1385 OF 2008

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BETWEEN

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R U L I N G

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1.  This court made an order on 16 December 2011 allowing the plaintiff’s latest statement of issues of dispute filed on 11 October 2011 to stand as the issues of dispute at the trial. 

2.  The defendant applied for leave to appeal against the order out of time on 4 January 2012.  It was heard and rejected on 11 January 2012.  The stay of execution was supplied at the time of the hearing of the leave to appeal out of time.  It was also refused on that occasion. 

3.  The defendant lodged an interlocutory appeal of that order or leave to appeal. Lodged an application for leave to appeal of that order to the Court of Appeal on 20 January 2012.  The Court of Appeal has not yet delivered or handed down its decision.  I have made an order of direction for discovery and filing of supplemental witness statements on the same day after I allowed the plaintiff’s issues of dispute to stand at the trial on 16 December 2011.  Today the defendant has failed to make any discovery or filed any supplemental witness statements and failed to comply with the timetable set down in my order of directions.

4.  At today’s second pre-trial review hearing, the plaintiff applied for an unless order for compliance of my order of directions made on 16 December 2011 for discovery to be made and supplemental witness statements to be filed.  My order was: discovery to be made by both parties within 21 days of the order and supplemental witness statements to be filed on the third issue or all issues within 21 days thereafter.  Needless to say this has yet to be complied with. 

5.  The plaintiff’s application for an unless order is made by summons taken out yesterday.  The plaintiff also requested and an abridgment of time of that summons.  Mr Docherty representing the defendant is opposed to the summons.  Mr Lam, counsel for plaintiff informed the court that the summons was served and notice was given to the defendant yesterday that the plaintiff would be making the unless order application at today’s PTR. 

6.  The reason for opposing the summons given by Mr Docherty is that should the defendant comply with the order of directions, the documents would be disclosed to the plaintiff even if the defendant should be successful in the interlocutory appeal subsequently.  Therefore, the defendant is objecting to the discovery of documents on the third issue of dispute, the relevance of which is the subject of the interlocutory appeal.  Mr Docherty admitted there are no issues of confidentiality involved in those documents.  The defendant is supposing the discovery appearing in the ground that they are irrelevant.

7.  I made a ruling on 16 December 2011 that the third issue of dispute to be an issue to be included at the trial and directed discovery and filing of supplemental witness statements to deal with the third issue.  There was no order of stay of execution made.  The trial has been set down for trial on 20 March 2012.  It is a milestone date and should not be delayed or vacated.  The incident of the dispute happened in 2003,   further delay of the trial will prejudice the trial and the witnesses’ memory will fade further due to lapse of time.  It will have an effect on the fair trial of this action.  

8.  Mr Docherty informed me that he has no idea when the Court of Appeal’s decision will be handed down.  In which case, it is inappropriate for the progress in the preparation for trial to be stay pending the outcome of the appeal.  The fact that the defendant lodged its application for leave to appeal out of time and the time the defendant took to lodge an appeal for leave to appeal to the Court of Appeal indicated the defendant is not mindful of the effect of the delay on the trial date in March.  If it is aware of the effect, then it must be intentional for the date to be vacated, that is what the court would try to avoid. 

9.  Since there is no issue of breach of confidentiality or trade secrets involved.  I do not see any valid reason for the order of 16 December 2011 not to be complied with.  Even without the plaintiff’s summons for compliance of the court’s direction taken out by the plaintiff yesterday on 9 February and at today’s pre-trial review, the court would have been alerted and dealt with the non-compliance of the court’s direction on its own volition today.

10.  I have not been given any reason for the defendant’s failure to comply with the order, which has persuaded me that it should be stayed in order that the plaintiff’s application for an unless order should not be made.   I therefore allowed the plaintiff’s application and I also allowed costs of the application and today’s hearing to be borne by the defendant to be taxed if not agreed. 

(Discussion re costs)

11.  I make an order of 16 December 2011 PTR to be in the cause.  I will grant the general liberty to apply before the trial date of 20 March 2012.