THE BORING ENGINEERING LTD. v. LAPLAND ENGINEERING LTD.

HCA 17222/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 17222 OF 1999

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J U D G M E N T

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1. This was an action commenced by writ of summons dated 4 November 1999 claiming money due to the plaintiff from the defendant for construction work carried out by the plaintiff for the defendant (pursuant to an agreement between the parties reached on or about 3 June 1999) which work was completed by 30 June 1999.

2. The sum claimed of $1,640,479.00 was arrived at by reference to agreed rates set out in 2 quotations and was particularised as follows:-

3. On 20 December 1999 the defendant by its then solicitors, filed a defence and counterclaim settled by counsel.

4. On 14 May 2001 by order of Mr Registrar CHAN leave was given to the solicitors for the defendant to cease to act.

5. No application has ever been made to the court to permit any director of the defendant company to act upon its behalf in these proceedings.

However on 14 June 2001 one such director, a Mr CHOI Ying-hon purported to file on behalf of the defendant further and better particulars of the defence and counterclaim which particulars had previously been sought by the solicitors for plaintiff.

6. On 26 September 2001 upon the plaintiff's application by way of summons issued on the 5 September an order was made by Master Lung in the following terms:-

"IT IS ORDERED that:-

leave to the Plaintiff to file and serve witness statements within 14 days from the date hereof; unless the Defendant do file and serve its witness statements within 14 days from service of this order on it, the Defendant be debarred from adducing evidence at the trial except with leave of the trial judge; the Plaintiff do have leave to set the case down for trial within 42 days in the running list before a Judge alone, estimated length of trial being 2 days; and costs of today be costs in the cause, costs between the Plaintiff and its solicitors be disallowed."

7. The defendant failed or declined to respond to that summons and was absent when the order was made. However a sealed copy of the order was served on the defendant, it being delivered by hand by an employee of the solicitors to the plaintiff to the defendant's registered office.

8. On 2 November 2001 notification of setting down and application to set a case down for trial (both dated that same day) were served on the defendant by post by the plaintiff's solicitors. Those documents were not returned to the plaintiff's solicitors by the post office.

9. There has been no direct contract between directors or employees of the plaintiff and directors or employees of the defendant since June 2001.

10. When this case came on for trial before me on 6 March 2002 the defendant was unrepresented either by lawyer or director and having recited to me the chronology which I have set out above, Mr Samuel CHAN counsel for the plaintiff invited me to proceed with the trial of the action in the absence of the defendant in accordance with Order 35 Rule 1(2).

11. That I agreed to do and proceeded to hear evidence which was set out in their witness statements from LO Man Hung (an assistant general manager of the plaintiff); YOUNG Wai Kwok (a project manager of the plaintiff), and CHEUNG Yip (the proprietor of the plaintiff's sub- contractor engaged in the project which gave rise to this claim).

12. If serves no useful purpose for me to recite here that evidence, which evidence I accept and which wholly supports or justifies the plaintiff's statement of claim and reply and defence to counterclaim.

13. Suffice it for me to say that the plaintiff's claim (as set out in its statement of claim) is established beyond doubt and that the defence and counterclaim (neither of which was supported by any evidence) must be rejected.

14. On the evidence presented to me I am entirely satisfied that

a) based upon quotations submitted by the plaintiff to the defendant in respect of 'pre. boring' works to be carried out at the defendant's site at the Kowloon Canton Railway University Station an agreement (partially oral and partially in writing) was reached;

b) the plaintiff, in accordance with that agreement, carried out the works required of it; and

c) upon completion issued an invoice (dated 4 August 1999) to the defendant for the sum of $1,640,479.00 which invoice the defendant has persistently, and despite repeated demands and requests made by the plaintiff, refused to meet.

15. For the avoidance of any doubt I will just add that on the evidence presented to me by the plaintiff there is no substance whatsoever to the defence and counterclaim filed on behalf of the defendant.

16. Accordingly on 6th March I entered judgment for the plaintiff in the sum of $1,640,479.00 and ordered that the defendant also pay to the plaintiff interest upon that sum from 4 November 1999 to 6 March 2002 at the judgment rate prevailing as at the 6 March and thereafter at full judgment rate until payment be made in full.

17. I ordered that the costs of this action be to the plaintiff, to be taxed if not agreed, and that the counterclaim be dismissed.