WING LOK CONSTRUCTION & ENGINEERING CO LTD v. TECHOY CONSTRUCTION CO LTD

HCCT 2/2023

[2025] HKCFI 3310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 2 OF 2023

___________________

____________________

_____________

D E C I S I O N

_____________

Background

1.  This is the opposed application for leave to amend the Statement of Claim filed in this action, for payments said to be outstanding under a Sub-Contract between the Plaintiff and the Defendant for demolition works (“Sub-Contract”). The Sub-Contract is one for works to be completed by the Plaintiff for an agreed lump sum of $25,020,000 (“Agreed Costs”).

2.  The original Statement of Claim (“SOC”) filed in January 2023 was a simple claim for payment of the Agreed Costs less interim payments made (“Balance”), being $1,028,094, and for payment of the costs of additional works said to have been executed by the Plaintiff on the instructions of the Defendant (“Additional Works”).

3.  The pre-trial review (“PTR”) of the action is set to take place on 4 September 2025, with trial to commence on 27 October 2025.

4.  On 28 April 2025, the Plaintiff issued its summons for leave to amend the SOC with an amended version of the pleading attached. On 9 May 2025, the Plaintiff issued a summons for leave to amend its Amended Reply and Defence to Counterclaim, with the draft amended pleading attached. On 7 July 2025, the Plaintiff issued a third summons seeking leave to amend the SOC, in a version different to that attached to the 28 April summons. The Plaintiff maintained at the hearing that only the third summons and the draft amended SOC attached to the third summons are relevant, and that the Defendant and the Court can and should ignore the version attached to the first summons issued on 28 April 2025.

5.  The application for amendment is opposed by the Defendant. In gist, the grounds are that the amendments have not been properly formulated and particularized, the amended claims are bound to fail and are useless, and that the late amendments will have an impact on the milestone dates and cause delay and prejudice to the Defendant.

6.  Although the Plaintiff claims that the first summons for amendment of the SOC and the draft amended SOC attached to the first summons should be ignored, I agree with the Defendant that considering the original SOC and the lack of full particulars given in the original SOC and in the proposed amendments, the different amendments sought in the two different summonses only add to the confusion in the Plaintiff’s case and the Court’s difficulties in understanding the claim the Plaintiff seeks to make against the Defendant.

Delay

7.  At the forefront of the Court’s consideration, the trial is set to commence on 27 October 2025, and the PTR is scheduled for 4 September 2025. Counsel for the Plaintiff dismissed the importance of these on the basis that the trial is only in October 2025 and the PTR is two months away from the hearing of its three summonses, such that even if the Defendant should have to deal with the amended claims, it will have ample time to do so.

8.  I cannot agree.

9.  Parties should bear in mind the fact that under Order 25 rule 1A RHC, the Court expects the parties to be ready for trial by the PTR (see para 25/1A/13 of the Hong Kong Civil Procedure 2025). Parties should not labour under the misconception that they should still be able to have interlocutory summonses issued, or pending disposal, at or after the PTR.

10.  The Defendant in this case justifiably pointed out that if the amendments are allowed, it will need further and better particulars of the amended claims, further amendments to be made to its Defence and Counterclaim, and further witness statement (s) to be prepared in order to deal with the new and amended claims and to explain the different figures referred to in the evidence and now sought to be relied upon by the Plaintiff by the amendments. Counsel for the Defendant further pointed out that whereas the original claim for the Balance turns on the proper construction of the terms of the Sub-Contract and the applicable rates for the works carried out, the amendments sought to be made would likely require expert evidence to be called, and this would necessitate a more complex timetable for the instructions to the experts and preparation of expert reports for use at trial.

11.  According to the Defendant, it is impractical to expect that all the above can be finalized in time for the PTR in September 2025. Even if this was possible, the Defendant will be distracted from its preparations for the trial in October on the basis of the original claim, which Counsel for the Defendant highlighted was for the total sum of $3,238,228.20, whereas the proposed amendments bring the Plaintiff’s claim to $5,878,488.12, which affect the proportionate steps already taken and to be taken to defend the claim, including the decision on whether expert evidence should be called.

12.  In my judgment, the above is evidence of prejudice.

13.  It is indisputable that the Plaintiff’s applications for amendment are late. In such circumstances, it behoves any applicant seeking to introduce late amendments to pleadings or to make late discovery of documents (not applicable in this case) for use at trial to: (1) properly formulate its proposed pleadings/identify the new documents; and (2) justify its delay by showing good reasons for leave to be granted. I repeat the observations I made in Converge Design and Construction Company Limited v Mount Kelly International Limited [2020] HKCFI 2433, at para 2:

“The courts have emphasized on repeated occasions that CJR is about early preparation for trial, in order to achieve the objectives of the Rules. It needs no further reminder that delay itself is a ground to refuse a late application, either for discovery or for the introduction of new pleadings and evidence, when trial is imminent. The onus is on the applicant to justify its delay and to show good reason for leave to be granted. Whilst delay is to be weighed against the probative value and relevance of the pleadings and the evidence sought to be introduced, it need not be emphasized further that the primary aim in the Court’s exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Such just resolution of disputes requires due consideration of the time occasioned by last minute applications to introduce amendments to the pleadings and/or evidence on the eve of trial. Prejudice is inevitably caused, in the disruptions in the preparation for trial, the need to consider the new evidence and the need to respond thereto, coupled with the need to locate witnesses at the last minute to consider and if necessary to respond to the new evidence, and the last minute distraction from the proper focus and priority of the due preparation for trial. This is actual prejudice.” (Emphasis added)

14.  The explanation given by the Plaintiff for the delay is only that it discovered that there was a mistake in omitting the sum of $739,141 in the SOC, as the Plaintiff’s accounting staff wrongly believed that the sum had been paid or accounted for. It did not specify when the alleged mistake was discovered before the application for amendment was initiated.

15.  Counsel for the Plaintiff relies on the principle that amendments before trial should be permitted to correct any defect or error in the proceedings, and that such amendments ought to be allowed for the purpose of determining the real question in dispute between the parties. That is correct, but it has always to be weighed against the other relevant matters such as disruptions to milestone dates, and any prejudice to the opponent which cannot be compensated by costs alone.

The new claim of agreed costs for the Additional Works

16.  As this Court observed at the hearing, a disproportionate amount of time had to be spent at the hearing to understand the figures and claims set out in the original pleading, its Schedules, and the amendments. This would not have been necessary if the claims had been clearly and succinctly set out and explained by adequate particulars.

17.  The Defendant correctly summarized the Plaintiff’s intended pleading to be (at least on its face):

(1)  its claim of $739,141 as an agreed sum for Additional Works, as identified in the Defendant’s Summary and Assessment of Final Account (“Summary”) annexed to its email of 3 September 2020 to the Plaintiff (“Email”), and as (allegedly) agreed between the parties; and

(2)  its claim of $3,404,026.92, again as an item of agreed costs, on the basis of the same Summary and Email, for further and different items of Additional Works.

18.  The amendments are proposed on the pleaded basis of an alleged agreement of the parties, contained in or evidenced by the Email. Counsel for the Defendant pointed out that in the witness statement of the Plaintiff’s Choi Kin Ping (“Choi”) dated 19 February 2025, it was stated that there was a “settlement of account”, as the parties had agreed on the Final Account for the contract works, but that there were two items of work and costs which were disputed and which were to be resolved in due course. This dispute related to the Plaintiff’s assessment of the costs of the relevant works involved being $3,404,026.92, and the Defendant’s assessment thereof being $1,901,118.92. For the Defendant, Counsel highlighted that this was the real issue in dispute between the parties, the difference of the 2 assessments being $1,502,908.

19.  By seeking the amendments to claim the full sum of $3,404,026.92, on the basis of the parties having agreed on the sum, the amended claim totally contradicts the Plaintiff’s evidence contained in Choi’s statement of there being an agreed settlement of account. In this context, Counsel for the Defendant pointed out that on the Plaintiff’s own evidence, the new claim of $3,404,026.92 being the agreed costs of works is doomed to fail when the evidence in Choi’s statement is taken into account, namely, that any alleged agreement between the parties did not include the 2 items (including the $3,404,026.92) now said to have been agreed.

20.  The same goes for the claim of $739,141 being the allegedly agreed sum for the works in question. According to the Summary, there was agreement on the assessment of $739,141, but this was part of an overall agreement with the deductions and adjustments, and the Defendant argued that the Summary and the Email cannot be evidence of a “settled account” covering the works agreed or assessed at $739,141, without taking into account also the other matters agreed, such as the deductions to be made, which the Plaintiff now ignores in making its amended claim. For example, the Plaintiff had agreed to the deduction of $1,916,870.30 as adjustments for the Type 3 works. Counsel for the Defendant pointed out that if the Court accepts that there was an agreement on the sum of $739,141, there should also be agreement on a deduction of $1,916,870.30, which will result in a negative amount due to the Plaintiff.

21.  Counsel for the Defendant relies on para 20/8/24 of Hong Kong Civil Procedure 2025 which states:

“Immaterial and useless amendments (rr 5, 7 and 8) - The court will always look at the materiality of the proposed amendment. An inconsistent or useless amendment will not be allowed …… nor an addition of some irrelevant matters or an amendment which fails to give the necessary material facts or particulars …… nor to make any other amendment raising a case which must fail…”

22.  The Defendant further relies on the observations made by the Court in Bank of China v Leigh Hardwick HCA 1110/2006, 28 August 2013, at para 2 of the judgment:

“The arguments in this appeal turn upon whether the new defences deployed in the Amended Defence are bound to fail. There is no dispute that if they are bound to fail, no leave should be granted for the amendment. For the purpose of this appeal, there is also no dispute that this court should take the pleaded defences at the highest.”

23.  I accept the Defendant’s submission, that on the evidence contained in Choi’s witness statement, the proposal set out by the Plaintiff in the Email cannot evidence any agreement having been reached over the alleged “settled account”, and the sums now asserted by the amendments. As Counsel submitted, the proposed amendment to seek the full sum of $739,141 without taking into account the deduction of $1,916,870.30 is bound to fail. To admit the proposed amendment of the agreed sum of $739,141 is useless, and confuses the real issues in dispute for determination at trial.

Lack of particulars of the intended claim

24.  In any event, I agree that the claims of the agreed sums of $3,404,026.92 and $739,141 are lacking in particulars, as to how the sums were calculated. Neither the SOC nor the proposed Amended SOC gives particulars of what the 2 figures comprise. It was Counsel for the Defendant who referred to the Summary attached to the Email which contained the figures in various tables. It is not known, from the draft amended SOC and the Plaintiff’s evidence, whether the Plaintiff’s intended amended claim is based on these computations, and if not, how these figures were arrived at. This is so notwithstanding the lateness of the application for amendment when it behoves the Plaintiff to make clear its intended claim so close to trial.

25.  It is wrong for Counsel for the Plaintiff to assert that the Plaintiff’s case should have been known to the Defendant, or that any documents with further and better particulars of the amended claim would be in the possession of the Defendant. That is not how pleadings work, and that is trite. Any objection to particulars on the ground that the relevant facts are within the applicant’s own knowledge is misconceived (para 18/12/65, Hong Kong Civil Procedure 2025), as “each party is entitled to know the outline of the case that his adversary is going to make against him, and to bind him down to a definite story”.

26.  As the oft-quoted judgment of Bokhary JA (as he then was) in Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd [1994] 2 HKC 264 makes it clear, the purpose of particulars and pleadings is to inform the other side of the nature of the case they have to meet, to prevent the other side from being taken by surprise at trial, to enable the other party to know with what evidence they ought to be prepared and to prepare for trial, to limit the generality of the claim and the evidence, and to tie the hands of the party so that he cannot without leave go into any matters not included.

27.  As Counsel for the Defendant submitted and I agree, the Plaintiff’s position has been shown to be evolving from the original SOC, to the different versions and formulation of its claim and figures according to the draft amendments annexed to the Plaintiff’s two summonses of April and July 2025, which makes it more important for it to be bound to any case it intends to pursue at trial.

28.  As held by the Court in Build King Construction Limited v Sam Woo Bore Pile Foundation Ltd [2025] HKCFI 894, it is wrong in principle to allow the Plaintiff to amend its pleadings without properly formulated and fully particularized claims. As His Lordship observed (at para 41 of the judgment):

“The lack of a properly formulated claim is a concern with merits. In my view, it is inappropriate to grant an amendment application which is keenly contested with the hope that proper particulars will be provided after amendment (none has in fact been offered). That is wrong in principle. Amendment application should be supported by a properly formulated set of amendments.”

Disposition

29.  Having given proper regard to the delay in the application for amendment, the unparticularised claims sought to be made, and the merits of the intended claim, and the effect of the amendment on the milestone dates in this case, I refuse leave. The two summonses for amendment of the SOC are dismissed, with costs to the Defendant in any event, with Certificate for Counsel.

30.  As for the summons to amend the Reply and Defence to Counterclaim, Counsel for the Defendant rightly pointed out that only paragraph 5A is a consequential amendment as a result of the Re-Amended Defence filed by the Defendant. That is not objected to, and is allowed.

31.  The other amendments are based on the amendments to the SOC being allowed on the Plaintiff’s summonses, and/or on claims which are based on the alleged agreement held to be doomed to fail. Since the amendments to the SOC have not been allowed, the proposed amendments to the Reply and Defence to Counterclaim are inappropriate and are not allowed as the proposed pleading stands. Paragraph 9A adds little to the original paragraph 9, and is unnecessary.

32.  The costs of and occasioned by the Plaintiff’s summons of 9 May 2025 are to be paid by the Plaintiff to the Defendant, with certificate for Counsel.