JETS TECHNICS LTD v. T.O.P. CONTRACTING LTD

HCCT 43/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 43 OF 2008

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J U D G M E N T

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I.       INTRODUCTION

1.  These proceedings concern the renovation of the Jockey Club’s Beas River Clubhouse. 

2.  TOP was the Main Contractor and Jets a Nominated Sub-Contractor for the Project.  Jets contracted to design, construct and install decking for Areas A, B, C and D of the Clubhouse.  Jets claims the sum of $1,111,000 certified by the Architect in July 2008 under an Interim Payment Certificate No. 4 (IPC 4).  TOP contends that the decking panels in Areas A, B and D were not in accordance with specification and were not properly installed. TOP counterclaims for the cost of remedying alleged defective work by Jets.

3.  Because no formal sub-contract was executed between TOP and Jets, in an earlier hearing before me Jets alleged that its true contractual relationship had all along been with the Jockey Club as Employer.  This (Jets submitted) was because of a Letter of Intent (LOI) dated 5 February 2008.  By the LOI, the Jockey Club confirmed that Jets would be a nominated sub-contractor for the Project.  The LOI instructed Jets to begin work immediately. Pending a sub-contract between TOP and Jets, the LOI (Jets argued) represented that the Jockey Club would be responsible for ensuring that Jets was paid.  No formal sub-contract ever having been signed, the LOI (Jets submitted) remained a contractual document.

4.  Jets belatedly applied to join the Jockey Club as a defendant to this action on the basis of the LOI.  But I refused joinder.  I instead struck out Jets’ claim against the Jockey Club on the basis that Jets had a contractual claim against TOP and none against the Jockey Club.  Jets has appealed against my refusal of joinder.  That appeal being pending, the trial has proceeded on the footing that my previous Judgment is valid.  I note that TOP accepts (and has never denied) that there was a contractual relationship between it (as Main Contractor) and Jets (as Nominated Sub-Contractor).

5.  Nevertheless, regardless of whether my previous Judgment is right or wrong, Jets has maintained that TOP is liable to pay the sum certified in IPC 4 on non-contractual grounds.  On Jets’ case, even if no contractual relationship ever existed between Jets and TOP, TOP is obliged to pay the IPC 4 sum by way of a quantum meruit for materials supplied and work done.

6.  Therefore, in practice, the existence or non-existence of a formal sub-contract between TOP and Jets should make no real difference to the outcome of this action.  TOP is content to proceed as if there was a sub-contract between TOP and Jets.  If Jets’ work and materials were deficient, TOP must be entitled (even on quantum meruit considerations) to set-off the cost of remedying the defective work against the amount claimed by Jets.  Further, whatever the technical niceties about the non-execution of a “formal” sub-contract, the fact is that throughout the Project Jets and TOP conducted themselves as if a sub-contract existed between them.  It would be odd then if TOP could not counterclaim for the restitution or making good of any loss which Jets may have caused to TOP as a result of defective work.

II.      DISCUSSION

7.  I shall first run through (and assess the validity of) TOP’s complaints against Jets’ work.  In light of my assessment, I shall then quantify Jets’ claim and TOP’s counterclaim.

A.      Complaints

8.  TOP’s complaints fall into 2 main groups.

9.  The first group of complaints relate to the stability of the decking panels system installed by Jets. 

10.  Areas A, B and D were to be used for restaurant purposes.  It was necessary under the Building Regulations for the decking panels installed in those areas to withstand a minimum load of 5 kPa. But the panels which Jets installed in those areas were (TOP complains) insufficiently stable to sustain the requisite load. 

11.  In relation to Area A, TOP’s has some more specific complaints. 

12.  Under Jets’ design, the decking panels in Area A were meant to rest on top of (and to be supported by) pedestals.  More particularly, in Area A, the middle part of a rectangular panel would rest on a whole pedestal, while each corner of the rectangular panel would rest on a quarter of a pedestal.  The latter pedestals would then support 4 panels.  

13.  TOP complains that the decking installed in Area A was unstable for various reasons:-

(1)     There were no spacers on top of the pedestals on which panel corners were resting.

(2)     Non-proprietary shimming pads were used to wedge panels into position.

(3)     Locking devices on the pedestals were not used.

(4)     Pedestals were not fixed in place with adhesive.

14.  Note that pedestals were not used in Areas B or D.

15.  The second group of complaints concern the quality of the frames used for Jets’ decking panels.

16.  The decking panels installed by Jets comprised 2 components:-

(1)     An RP (recycled plastic) slat (rectangular in shape for Areas A and B, but in various polygonal shapes for Area D); and,

(2)     A GMS (galvanised mild steel) frame fixed to the underside of each RP slat.

17.  Jets drawings specified dimensions for the GMS frames to be used with the RP slats. 

18.  But (TOP says) the GMS frames of the panels installed in Area D were smaller than the dimensions specified in the shop drawings. 

19.  TOP further suggests that many of the GMS frames supplied for panels in Areas A, B and (especially) D were rusting or distorted and so inadequate to sustain a requisite load of 5 kPa. TOP contends that some 25% of the GMS frames used in Area A, 80% of those used in Area B, and 100% of those used in Area D were distorted.

A.1    1st Group of Complaints: Stability of Decking Panels

20.  The contract specification required the RP panels in Areas A, B and D to be capable of being lifted and removed for access to the concrete flooring below.  The flooring could then be cleaned from time to time.  For all Areas, the preparation of the floor underneath the decking system would be responsibility of the Main Contractor.

21.  The specification for Area A required that panels be supported on pedestals “able to sustain the loading of the recycled plastic module, dead load and traffic load”.  The Nominated Sub-Contractor was to “ensure the proper fixation of the recycled plastic flooring such that it will not be shifted in position”.  In addition, whatever system was designed for the panelling in Area A, “[n]o screws fixing shall damage the existing waterproofing layers above the existing changing rooms at Old Clubhouse”.

22.  The specification for Areas B and D required panels to sit on “recycle battens installed on the floor finishes without adjustable plastic pedestals”. Again the Nominated Sub-Contractor had to “ensure the proper fixation of the recycled plastic flooring such that it will not be shifted in position”.

23.  In support of its case that its decking system was stable, Jets relied on expert evidence from Mr. Albert Leung, a civil and structural engineer.

24.  In his report, Mr. Leung expressed the view that (as designed) the decking panels would not be displaced by pedestrian and other movement on top because of “the inherent layout and arrangement of the panel system”.  In particular, “the complete system, supported vertically for its weight by the pedestals, is constrained horizontally by the boundary elements and details where the system will end and abut against”.  Thus, “[a]ny horizontal force generated will be transmitting through the [GMS] metal frame as well as the recycled plastic decking system to these boundary elements”.

25.  But the factual evidence from Mr. John So (Jets’ Director Assistant) was that, because of time pressure from the Jockey Club and TOP, panels were installed even though the actual finish of the boundaries to Areas A, B or D was not in accordance with Jets’ shop drawings.  According to Mr. So, panels had been pre-ordered in conformity with the shop drawings.  Those panels had already arrived.  Since the boundary finishes were not Jets’ responsibility (as opposed to the responsibility of TOP as Main Contractor), Jets simply installed the available panels in order not to delay the Project. 

26.  This meant that, contrary to Mr. Leung’s assumption and whatever the shop drawings might show in theory, the panels in a given Area would not necessarily fit snugly within the boundaries of that Area.  The restraint against horizontal movement of the decking panels which Mr. Leung envisaged as coming from the boundaries of an Area, might not be present in actuality.

27.  When this was put to Mr. Leung in cross-examination, he elaborated that the constraint by the boundary would not be the only element holding panels in place.  There would also (Mr. Leung noted) be the friction against the underlying flooring generated by the vertical force of the panels and their pedestals. With the exception of Area D, Mr. Leung’s calculations suggested that the friction thereby generated would be more than sufficient to offset any horizontal forces arising from the people walking on top of the panels or otherwise using the space above the decking panels for the purposes of a restaurant.

28.  Mr. Leung’s calculations suggested that, as a system, Areas A and B could withstand loads of 5 kPa.  But, for Area D, Mr. Leung calculated that, in order to bear a minimum load of 5 kPa, 85 out of 113 decking panels would need strengthening.  That strengthening would require placement of 165 additional supports to the 85 panels. Under the Building Regulations, the deck flooring of Area D would need to withstand a minimum load of 5 kPa if Area D is to be used for restaurant purposes.  It seems to me that Area D (also known as “The Pavilion”) was most likely to be used for restaurant purposes.

29.  Mr. Leung did not accept TOP’s specific criticisms of the panelling in Area A.

30.  Spacers are small plastic tabs which can be placed on top of the pedestals used in Area A.  They serve the purpose of aligning the corners of panels resting on top of the pedestals.  The mock-up of the system which Jets presented to TOP and the Jockey Club at the outset of the Project did not have spacers.  Neither did Jets’ shop drawings show spacers being used.  Jets did, however, provide TOP with a sample pedestal which had spacers on top.

31.  As far as spacers were concerned, Mr. Leung did not believe that the small plastic tabs could exert significant restraining force on panels placed above the pedestals.  He consequently did not believe that spacers were essential to keep the panels in place.  Certainly, as far as the pedestal in the middle of an Area A panel was concerned, there would be no question of using spacers since spacers would only diminish the point of contact between a panel and a pedestal.  The more significant factor (Mr. Leung believed) was the friction generated by the system of panels and pedestals resting on the ground.

32.  Shimming pads (Mr. Leung believed) were necessary to ensure that the 4 panel corners on top of a pedestal all rested evenly.  The concrete flooring below a pedestal would not be perfectly flat. There would inevitably be some unevenness in the flooring.  This unevenness would affect the positioning of panels on top of the pedestals sittings above the concrete flooring.  Thus shimming pads would be needed as wedges to fill in gaps resulting from the unevenness of the underlying flooring.

33.  Whether or not the locking devices on a pedestal were placed on lock mode, Mr. Leung demonstrated in Court that a pedestal top would not collapse downwards as a result of weight being placed above the pedestal. The locking device simply ensured that the pedestal was not accidentally lowered or raised by a twisting movement from (say) a careless worker when panels were being removed.  Further, Mr. Leung pointed out that there would only be a minimal cost incurred in locking unlocked pedestals.

34.  As for fixing the panels in place by adhesive, Jets initially used a cement/sand grouting to help keep the pedestals in place once laid down.  But TOP instructed them to remove the cement/sand. Jets complied. It then continued positioning pedestals without using any fixative.

35.  Mr. Leung accepted that fixing the pedestals to the underlying flooring by use of some adhesive could add to the stability of the deck panelling system.  But he did not believe that using adhesive was necessary, since the friction from the system should have been adequate to hold everything in place.

36.  I accept Mr. Leung’s evidence.  I found his views to be far more convincing than those of TOP’s expert, Mr. Wong Man Hong.

37.  Mr. Wong is a surveyor.  Although he took engineering courses while at university, he is not an engineer by qualification or profession.  But, in the course of giving evidence, Mr. Wong did not hesitate to comment on matters of engineering, including structural engineering.  He seemed to make such comments largely on the basis of his “experience” or “personal observation”.

38.  When invited by the Court to back up his comments by reference to sample rough calculations, Mr. Wong declined to do so.  He suggested that he could not do so without conducting “further tests,” such as determining the coefficients of friction of decking system designed by Jets. 

39.  I am afraid that Mr. Wong’s willingness to give unqualified opinions on engineering matters, coupled with his apparent inability to back up those opinions with calculations, did not inspire confidence in his views.  As far as the Court was concerned, Mr. Wong appeared to be more an advocate of TOP’s cause than an impartial expert assisting the Court in a balanced and neutral fashion.

40.  Mr. Wong was adamant that the horizontal force of a pedestrian stumbling (say) on the panelling would be sufficient to cause the whole system of deck panelling to shift significantly.  But, in the absence of calculations in support, I am unable to accept his view as anything other than assertion.  What force does Mr. Wong say a stumbling pedestrian would generate?  Why would such force be greater than any countervailing force arising from a deck panelling system capable of bearing a load of 5 kPa?  Mr. Wong was unable to provide further particulars of his view.

41.  Similarly, on the question of spacers, Mr. Wong did not provide calculations to show how much more force the use of spacers would contribute towards holding panels in place.  He only asserted that spacers were absolutely necessary.  In the absence of calculations (including details of Mr. Wong’s assumptions of the forces involved), I am unable to accept Mr. Wong’s evidence on spacers.

42.  With shimming pads, at the end of the day Mr. Wong’s criticism boiled down to the fact that the more expensive proprietary pads provided by the makers of the pedestal were not used.  Jets used its own shimming pads. 

43.  Mr. Wong complained that the shimming pads used by Jets could easily be torn.  He purported to support this by reference to shimming pads produced by TOP as an exhibit during trial.  These shimming pads were said by counsel to have been actually used by Jets on the Project. 

44.  The pads produced were indeed torn.  But the pads were suddenly produced in Court at trial without prior warning to Jets’ lawyers.  No evidence was given as to the exact provenance of the pads, so that (for all the Court knows) the pads may have been torn through some chain of events unrelated to Jets’ design and which Jets might not reasonably be expected to have foreseen. Nothing was signalled before trial that the degree to which Jets’ shimming pads could be torn was the real complaint being made by TOP.  So, not surprisingly, no tests were ever conducted before trial on the degree to which shimming pads actually used on site were capable of being torn.

45.  Accordingly, I do not accept that the torn shimming pads speak for themselves.  I do not think that Mr. Wong’s expert evidence on the shimming pads is supported.

46.  In relation to the locking device on the pedestals, Mr. Wong seemed to be implying that mere downward pressure would cause an unlocked pedestal to collapse.  Mr. Leung demonstrated that this belief was erroneous.

47.  As for use of an adhesive to fix the pedestals, in the absence of supporting calculations, I cannot accept Mr. Wong’s assertion that an adhesive is necessary.

48.  There was evidence from both Mr. Wong and Mr. Lewis Lau (TOP’s Project Manager) of a few pedestals collapsing or moving out of place.  Nonetheless, the evidence as to how, when and why the pedestals collapsed or moved out of place was unclear.

49.  Ms. Janine Cheung (appearing for TOP) attributed the collapse or movement of pedestals to poor design by Jets.  Workers moving the pedestals in the course (say) of cleaning the flooring below would not have the expertise to place them exactly where they should go. There would also be difficulty in ensuring that, having removed the panels to clean the flooring, workers could easily replace the panels evenly on top of pedestals.

50.  There is nothing in the specification about designing a decking system which can easily be opened and then put back again.  There is no evidence that a better system could readily be devised given the requirements in the specifications (for example, the use of pedestals and the stricture against use of screws in that part of Area A above the Clubhouse changing rooms).  I am not persuaded on the evidence that Jets was negligent in its design.

51.  As far as collapses are concerned, there may have been some collapses of pedestals.  It is unclear whether there was a significant number of such collapses.  In the absence of further evidence, I am equally unable to infer that the system designed by Jets was defective.  Failure of a few pedestals might be expected in the course of carrying out Project works.  That does not mean that the whole system was flawed.  Further, any failures of pedestals might easily be rectified at minimal (if any) extra expense.

52.  I note finally, in connection with this issue, evidence in the form of a fax from TOP to Jets dated 25 April 2008.  In the fax TOP complains that Jets was using c/s (cement/sand) grouting to fix the pedestals. This (TOP pointed out) was not in accordance with Jets’ shop drawings which showed that the pedestals would be free-standing.  TOP also observed that the grouting applied was “loose and very easy to peel off”.  Jets was asked to rectify the defective works.  Although the fax is not free from ambiguity, it suggests (as Mr. David Tsang for Jets submits) that at the time TOP wished the pedestals to be free standing without c/s grouting.

53.  In summary, I am not persuaded that (apart from requiring additional supports to 85 of the panels in Area D) the decking system designed by Jets was inherently unstable for a load of 5 kPa.

A.2    2nd Group of Complaints: Quality of GMS Frames       

54.  Mr. Leung’s evidence was that it was unnecessary to replace any GMS frames. 

55.  He measured the RHS (rectangular hollow sections) of some GMS frames in the course of his site inspection.  He found that these generally conformed to specification.  The exception was in relation to the secondary member of GMS frames in Area D. 

56.  These secondary members in Area D were observed by Mr. Leung to be 38 x 38 x 3.5 mm instead of 40 x 40 x 4 mm as required.  But, subject to the strengthening works through addition of intermediate pre-fabricated supports already mentioned above, Mr. Leung did not think that it was necessary to replace the deficient GMS frames identified by him.

57.  Mr. Leung accepts that some GMS frames showed distortion.  He was unable to attribute a cause for such distortion.  There is photographic evidence that workers of TOP (and possibly Jets as well) placed loads of more than 5 kPa on some panels.  For instance, there is a photograph of a large pile of cement bags (each bag weighing 45 kgs) having been placed on top of decking panels presumably by workmen for TOP or for TOP’s other sub-contractors.  There is also a photograph of decking panels having been piled on top of other decking panels.  It is not clear who did the latter, but it could conceivably have been Jets’ workers. The overloads in excess of 5 kPa could have caused decking panels underneath to buckle.

58.  Whatever the cause, in Mr. Leung’s opinion, the structural integrity of a GMS frame would not have been unduly affected by the sorts of distortions observed. 

59.  Mr. Leung walked around Areas A, B and D and for the most part did not find any unevenness in the panels attributable to distortions.  But he observed that there was a 2-3 mm level difference between some adjacent panels in Area B.  Such difference could (Mr. Leung believes) be easily cured.

60.  On rusting, Mr. Leung stated that GMS frames could not be 100% rust-proof.  Rust stains might naturally appear after exposure to (say) rain.  The appearance of rust stains in Area D frames may have been due to exposure to rain water.  Such stains as have been observed (Mr. Leung contends) are unlikely to affect the life of the frames significantly. 

61.  In contrast, Mr. Wong thought that the significant percentages of GMS frames (25% in Area A, 80% in Area B and 100% in Area D) had to be replaced.

62.  Mr. Wong explained that his percentages were based on his personal observation of the water ponding in Areas A, B and D after heavy rain.  Mr. Wong said that his observations were bolstered by what he found upon actual inspection of GMS frames. In Area A, Mr. Wong found that 32 out of 40 panels inspected had distorted frames.  In Area B, Mr. Wong found that 4 out of 4 panels inspected had distorted frames.  In Area D, Mr. Wong found that 10 out of 10 panels inspected had distorted frames.  Note that, by Mr. Wong’s count, there were a total of 200 panels in Area A, 93 in Area B and 92 in Area D.

63.  Mr. Wong suggested that, according to calculations by a structural engineer engaged by him, all of the GMS frames used by Jets were inadequate to sustain a load of 5 kPa in Areas A, B and D.

64.  Mr. Wong also contended that the GMS frames in Areas A and B was only 35 x 35 x 2 mm (instead of 40 x 40 x 2 mm).

65.  On rust, Mr. Wong stated (without any basis other than personal experience) that rust would lead to the GMS frames failing after 3 years.

66.  Again I accept Mr. Leung’s evidence in preference to that of Mr. Wong.

67.  Insofar as Mr. Wong’s replacement percentages are concerned, his water ponding test strikes me as a highly subjective and eccentric method of determining whether there have been distortions in GMS frames.  Mr. Wong did not support use of his impromptu water ponding test by reference to any literature.

68.  In relation to the frames inspected by him, it is not apparent how Mr. Wong chose the frames to be examined.  It does not seem (for instance) that his selection was based on any random sampling.  I therefore do not think that one can meaningfully extrapolate from the results which he found to the percentages which he asserts.

69.  Nor am I persuaded by Mr. Wong’s structural calculation.  Mr. Wong was unable to explain to the Court why certain assumptions were made by the structural engineer whom he engaged. TOP did not see fit to tender the structural engineer himself as an expert witness.  The Court consequently cannot assess the validity of the structural calculation.

70.  As far as Mr. Wong’s measurements of RHS are concerned, given the conflict between his measurements and those of Mr. Leung, I would regard those of Mr. Leung as probably the more careful and more reliable.  I note that Mr. Wong himself did not take the measurements in question.  They were done by an assistant under his supervision.

71.  I do not accept Mr. Wong’s evidence on rusting in the absence of more substantive explanation.

72.  In summary, although there has been distortion for whatever reason (possibly because of overloading), the distortion in GMS frames has not been shown to be excessive.  The structural integrity of the GMS frames has not been compromised.  But there is need for additional supports to 85 frames in Area D.  Some expense will also have to be incurred in relation to the uneven adjacent panels seen by Mr. Leung in Area B.

73.  Otherwise, I accept Mr. Leung’s evidence that it is unnecessary to incur the disproportionate cost of replacing GMS frames along the substantial lines advocated by Mr. Wong.  TOP has not discharged the evidential burden of showing that the GMS frames require wholesale replacement on a substantial scale.

B.      Quantum

74.  Mr. Patrick O’Neill gave QS evidence for Jets.  Mr. Wong doubled as TOP’s QS expert.  Overall, I preferred Mr. O’Neill’s evidence.

75.  On quantum, I thought that Mr. Wong was once more acting as an advocate of TOP’s cause, rather than as impartial expert.  I was not impressed by Mr. Wong’s quantum evidence.

76.  For example, the experts could not agree on the price of GMS frames.  Mr. O’Neill relied on quotes which he obtained from local suppliers.  He arrived at a rate of $631.11 per sq. m.  Mr. Wong in contrast defended the significantly higher rate of $2,950.93 per sq. m. 

77.  Mr. Wong based his rate on an assumption that a sub-contractor in Jets’ position would go into the commodities market to buy a large consignment of steel in order to turn the same into GMS frames.  That struck me as an impractical way of proceeding, especially where GMS frame components are readily available cheaply in the local market. 

78.  One asks rhetorically why one would be buying steel at a high price from the commodities market just to manufacture GMS frames for a relatively small renovation project?  Asked this question, Mr. Wong accepted that ready-made GMS components were available cheaply from local suppliers.  But he referred to the need for mill certificates to evidence the high quality of the steel used.  However, nowhere in the evidence is there any suggestion that anyone (whether the Jockey Club, TOP or Jets) was required to produce mill certificates warranting the composition of the steel frames used.

79.  Mr. Wong estimated that it would take many man-hours, effectively slightly more than 2 working days to cut and weld a GMS frame.  That strikes me as excessive.  Challenged on his estimate in cross-examination, Mr. Wong said that one had to take into account labour laws requiring welders to have adequate rest and to take safety precautions while welding.  This seemed to me to be fanciful theory. 

80.  The surest way of obtaining reliable rates is to go out into the market and enquire at what price a supplier will provide GMS frames to a certain specification.  That is what Mr. O’Neill (but not Mr. Wong) did.  I am puzzled (given the hard empirical evidence which Mr. O’Neill obtained) that Mr. Wong did not see fit to agree the GMS frame rate put forward by Mr. O’Neill.

81.  Consequently, I have no hesitation in relying on Mr. O’Neill’s rates in preference to those of Mr. Wong.

82.  Mr. O’Neill quantified the cost of the 165 remedial supports suggested by Mr. Leung for the 85 panels in Area D at $17,201.25.

83.  As for the minor repair to the few uneven adjacent panels in Area B, Mr. Tsang’s suggests (and I accept) that a rough and ready assessment of $2,210.80 would be appropriate.  The latter figure is reached by multiplying the experts’ agreed rate of $221.08 per sq. m. by 10 sq. m. (a relevant panel being 1.94 m x 0.75 m or 1.455 sq. m.).

84.  If one adds $17,201.25 and $2,210.80, a total of approximately $20,000 (rounding upwards) is obtained.  I conclude then that TOP’s counterclaim for defective work is worth $20,000.

85.  Mr. Tsang points out that the amount of $1,111,000 certified in IPC 4 does not include retention monies of $134,000 and a special deduction of $330,000 (taken as security in lieu of a bond).  Mr. Tsang submits that, the relationship between TOP and Jets having effectively come to an end, the small sum of $20,000 for defective work which I have assessed in TOP’s favour can simply be deducted by TOP from retention monies.  This is because, at the end of the day, TOP would have to account to Jets for the retention monies as well as the special deduction.  Mr. Tsang says that, in consequence, I should award Jets the entire sum of $1,111,000 certified in IPC 4 without further deduction of $20,000.

86.  In my view, Mr. Tsang’s submission is correct in the circumstances of this case.

III.     CONCLUSION

87.  There will be judgment on Jets’ claim against TOP for $1,111,000.  TOP’s counterclaim for damages arising from defective work by Jets is assessed at $20,000.  TOP has liberty to deduct the same from the retention monies.

88.  Interest will run on the sum of $1,111,000 at 1% over prime from date of Writ until judgment.  Thereafter, interest will run at the judgment rate until payment.

89.  Jets has substantially prevailed.  There will be an Order Nisi that TOP pay Jets costs of this action, such costs are to be taxed if not agreed.

90.  Prior to trial, in the course of case management, I directed the parties to make every effort to reduce the size of the trial bundle.  Unfortunately, TOP’s lawyers did not comply with my direction. 

91.  At the eve of trial, TOP’s lawyers contended that every document in TOP’s discovery was relevant and so needed to be included in the trial bundle. However, this assertion was not borne out at trial.  The documents referred to at trial by both counsel would comfortably have fitted within 2 lever arch files, instead of the 8 lever arch files of Project documents produced at trial. 

92.  Consequently, there has been a significant waste of paper and other resources, despite the Court’s direction.  This waste should not have happened.  In those circumstances, there will be an Order Nisi that TOP pay Jets’ costs in relation to the preparation of the trial bundle on an indemnity basis.