XCHRX W. HING CONSTRUCTION CO. LTD. v. NOONBRIGHT LTD.

HCA1467/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1467 OF 2001

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J U D G M E N T

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1. This is an action where the plaintiff is W. Hing Construction Company Limited against Noonbright Limited ("Noonbright") ("the Noonbright Action") where the claim for money said to be owing under a construction contract was sought. The amount claimed is about $21/2 million.

2. Noonbright is a subsidiary, as I understand, of K. Wah Properties Holding Limited. Another subsidiary of K. Wah Properties Holding Limited is Comet Ring Limited ("Comet Ring"). There is a separate claim in a separate action, i.e. HCA No.1466 of 2001, by the same plaintiff against Comet Ring in relation to a different contract for also a substantial sum ("the Comet Action") and already filed in that Comet Action is a substantial counterclaim by Comet Ring. The amount of counterclaim is something like $59 million odd.

3. The application before the Master is by Comet Ring in the Noonbright Action to be joined as an additional defendant. And the basis of that application is because of some internal arrangement between Comet Ring and Noonbright whereas Comet Ring has agreed to take over the liability of Noonbright. The Master surprisingly granted the application and allowed Comet Ring to be joined. In my view, that is totally wrong and that therefore, the course of the proceedings before me today took on the form of my calling upon Mr Coleman to justify why his client should be allowed to join into the Noonbright Action. As I see it, nothing is to be gained by Comet Ring joining in the Noonbright Action. There is no lis between Comet Ring and the plaintiff in the Noonbright Action. In fact, if there is any proper lis between Comet Ring and the plaintiff, I would have expected that to be pleaded in the counterclaim of Comet Ring in the Comet Action but that has not happened. I regret to say that I see this move of Comet Ring as a device laying down the foundation for what I think Mortimer JA had once said was objectionable satellite litigation to give to the lawyers involved a greater scope to delay the early judgment in the Noonbright Action. I see no basis for the joinder. If there is substance in what Mr Coleman had said today (assuming there is no summary judgment and there are a great deal of common issues between the two actions), then no doubt, appropriate order will be made for consolidation and as I understand it, such an application is now currently before the court and will be soon heard by the Master. So far as joinder of Comet Ring into the Noonbright Action is concerned, there is really no necessity and no reason for it.

4. The appeal of the plaintiff, therefore, is allowed and the application of Comet Ring for joinder is dismissed. In the light of that order it is inevitable that the costs must be made against Comet Ring both in the court here as well as in the court below. I will hear the parties on the matter of gross sum assessment of costs.