XCHRX Tung Chun Chung v. So Wa t/a So Wa Decoration

DCCJ6569/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6569 OF 2001

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J U D G M E N T

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1. This is an application for specific discovery of bank statements of the Plaintiff.

2. This action arose out of a renovation dispute. The Plaintiff commissioned the Defendant to undertake certain renovation work at his premises. It is alleged by the Plaintiff that the Defendant's work was defective and he refused to carry out adequate remedial work. So it is the Plaintiff's case that he had to engage a new contractor to do the remedial work, incurring remedial costs in the sum of $72,000, as evidenced by a quotation and a receipt issued by the new contractor.

3. The Plaintiff also alleges that to facilitate the remedial work and because the renovation work in his premises had not been completed, he incurred alternative accommodation costs for a period of time at a monthly rate of $7,500.

4. In these proceedings, by one way or another, the quotation, the remedial work receipt as well as the rental receipts, have been disclosed or made available to the Defendant. The Defendant says he is not satisfied with these documents and he wants the bank statements of the Plaintiff to show that the money in question, i.e. the remedial costs as well as the rentals have actually been paid by the Plaintiff to the respective recipients; and thus this present application for specific discovery.

5. In this sort of application, apart from Order 24, Rule 7 under which this application is made, I need to take into account Order 24, Rule 8 which says that if the court is satisfied that discovery is not necessary or not necessary at that stage, the court may dismiss or adjourn the application and shall in any case refuse to make any order insofar as discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. As noted in the commentary contained in Hong Kong Civil Procedure 2001, paragraph 24/8/1, the burden is really on the respondent of the application to satisfy the court that discovery is not necessary.

6. In the present case, so far as the remedial work is concerned, the amount in question is said to be $72,000. According to the quotation, the sum was payable by three instalments, i.e. 32,000, 20,000 and 20,000. I have before me a receipt for a total sum of $72,000. Judging from the amounts in question, I think it is a reasonable inference to be drawn, particularly in the absence of any evidence from the Plaintiff explaining how the payment was made, that this amount or these amounts was or were paid by cheque or cheques. Moreover, the quotation and the receipt were addressed to the Plaintiff personally, so again it is a reasonable inference to be drawn that the amount(s) involved must have been paid by the Plaintiff to the new contractor in question, again particularly in the absence of any contrary suggestion from the Plaintiff, bearing in mind that it is for the Plaintiff to satisfy the court that discovery is not necessary.

7. So, in short, there is a prima facie case that the Plaintiff paid the alleged remedial work by cheque or cheques and in the context of the present case, I have no doubt that these cheque payment(s), like the quotation and official receipt, comprise relevant documents to the issue in question, i.e. the quantum of the Plaintiff's claim, and I cannot say that discovery of the relevant payment documents is not necessary for the fair disposal of the dispute between the parties and, in fact, I would go further and say that the sooner the primary documents are disclosed, the better the dispute between the parties can be resolved. Certainly, this would be much more preferable to any application for discovery during the trial or discovery through the back door via cross-examination of the Plaintiff at the trial which might necessitate unnecessary adjournment for the obtaining of documents at that stage.

8. Mr Leung, on behalf of the Plaintiff, pointed out to me that there could have been many other methods of paying for the remedial work - it could be by cash, it could be by cheques of others. That may well have been so, but, as I say, prima facie there is a case before me that the Plaintiff, to whom the quotation and receipt had been addressed, had paid the amount(s) in question by a cheque or cheques and Mr Chik, during submission, was prepared to limit his application for discovery to copy cheques of the Plaintiff, if any, or copy bank statements of the Plaintiff evidencing the payment by the Plaintiff's cheque(s), if any, of the remedial work. I think this is a fair description of the class of documents required to be disclosed regarding the remedial work.

9. So, in short, I am prepared to grant a limited order relating to the remedial work discovery.

10. Now turning to the rental receipts, as I say, the monthly rate was $7,500. Unlike the case of the remedial work, I am not in a position to say that prima facie the monthly rentals must have been paid by cheques instead of say, by cash. So in those circumstances, I am not satisfied that the documents requested for, even in a similarly limited form, i.e. cheques or bank statements evidencing such cheques, if any, must exist or must have existed. So in those circumstances, I am not prepared to make any order, whether restricted or otherwise, relating to discovery of documents in relation to the rental payments.

11. Before I set out my order, I should say this: if as a matter of fact the Plaintiff never used any cheques to make payment of the remedial work in question, all he needs to do would be to state in his affirmation for specific discovery that those documents never existed and I do not see how that would prejudice the Plaintiff's position or unnecessarily affect his prosecution of his claim against the Defendant.

12. I make an order in terms of the Defendant's summons dated 26 October 2001, save that

a) "14 days" be changed to "21 days";

b) "affidavit" be changed to "affirmation";

c) the schedule be amended to read

"copy cheque(s) of the Plaintiff, if any, or alternatively, original or copy bank statement(s) of the Plaintiff evidencing payment by cheque(s), if any, of the alleged remedial work referred to in Dick's Design & Decoration Company's quotation dated 29 May 2001 and its receipt dated 29 June 2001 or any part thereof."

(Costs submissions)

13. Having heard arguments on costs, I agree that the original application for documents was too wide in scope and in fact the Defendant only succeeded in obtaining discovery of a limited class of documents in relation to the remedial work and so far as the rental payments are concerned, the Defendant did not succeed in obtaining any order. So bearing all this in mind, in my judgment and in the exercise of my discretion, I think the fairest order would be costs in the cause. Mr Chik was instructed to ask for a certificate for counsel but, very fairly, he said he made this application without full conviction. I can see his difficulty. I am not granting a certificate for counsel.