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HCCT97/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO. 97 OF 2003
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BETWEEN
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B.S.C. INTERIOR CONTRACT AND |
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ENGINEERING COMPANY LIMITED |
Plaintiff |
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and |
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SHINTA LIMITED |
Defendant |
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Before: Hon Burrell J in Chambers
Date of Hearing: 5 November 2008
Date of Decision: 10 November 2008
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D E C I S I O N
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Background
1. On 24 September 2008 following a 10-day trial I handed down a written judgment in the plaintiff’s favour. In the judgment, I made several decisions on quantum issues and invited the parties to agree the final sum following my findings. Because of the nature of just one of the findings it was not possible for the court to do the final arithmetic. It was however intended to be a straightforward task for the parties. Indeed, the plaintiff arrived at a figure within a week of the judgment. The figure was $4,429,477.60.
2. The defendant however declined to agree this figure (which was no more than an arithmetic calculation based on my quantum decisions).
3. The plaintiff therefore was compelled to issue a summons seeking payment of this judgment sum plus interest. The interest amount was also a specific sum (with which I shall deal later in this decision).
4. The defendant’s response was to issue a summons seeking a stay of all proceedings pending the hearing of the appeal (which has not yet been set down for hearing).
5. In reality the only proceedings they wish to stay are those which would result in their having to pay the judgment sum. They argue, inter alia, that the judgment sum is not agreed therefore it should not be ordered.
6. Early on in the hearing of this application, the defendant, contrary to its position during the last five weeks, did agree the judgment sum as calculated by the plaintiff.
7. I was therefore able to hear and consider the remaining argument as to whether the (now) agreed judgment sum should be paid. As the sole purpose of the stay application was to delay payment of the judgment sum pending appeal, I applied the usual principles applicable to such an application.
8. I was satisfied that the defendant was able to pay the agreed sum. I was satisfied that there was no real risk of the plaintiff not repaying the sum to the defendant should their appeal succeed. I was satisfied that there would be no unjust financial consequences to either party as a result of the order being made. There was no evidence as to when the appeal would be heard.
9. In all the circumstances, I found that there was no good reason to deprive the plaintiff of the fruits of its judgment. Accordingly, I dismissed the defendant’s application for a stay of proceedings and ordered the defendant to pay the costs of that application in any event.
The plaintiff’s summons
10. The plaintiff sought payment of $4,429,477.60 plus interest of $2,965,110.51.
11. Because of the late agreement by the defendant to the judgment sum, I was able to give an order in relation to it in the plaintiff’s favour, at the hearing.
12. As to the question of interest, I reserved my decision having been addressed on the matter by Mr Chan Heung Wing, solicitor for the plaintiff and Mr James Lee, counsel for the defendant.
13. There were two issues :
(i) Rate of interest. Mr Chan sought the usual rate of prime plus 1%. Mr Lee argued for a lesser rate of, at most, prime minus 0.5%. The rate to be applied is within the court’s discretion. In this case, I am not persuaded that there are sufficient grounds for departing from the usual order. It was an ordinary commercial case meriting an normal commercial rate.
(ii) Period of interest. Mr Chan submitted that interest should run from when the demand for payment was first made, namely 8 November 1999. Mr Lee submitted that a more appropriate date would be the date of the writ, 4 November 2003. Again, it is a matter of discretion.
14. Normally, interest runs from the date of the accrual of the cause of action. Mr Lee submits that, in this case the original claim was for over $9 million and in the early years, there was some confusion as to whether the plaintiff was seeking payment from the defendant or the main contractor. He also submitted that in the early years, there was without prejudice correspondence concerning settlement negotiations (denied by Mr Chan).
15. The court does not have to pick one date or the other. It is open to me to select an interim date. This I do in an attempt to reflect the balance of the respective arguments. It is not a date on which any particular event occurred.
16. I order interest at prime plus 1% to run from 1.1.2001 up to judgment and at the judgment rate thereafter. I do not think that the concession made to the defendant by the selection of this date should alter the appropriate costs order for this application. I will nonetheless make it on a nisi basis because Mr Lee asked me to do so at the hearing.
17. There will be a costs order nisi to the plaintiff in any event.
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(M.P. Burrell)
Judge of the Court of First Instance
High Court |
Mr Chan Heung Wing of Messrs Mallesons Stephen Jaques, for the Plaintiff
Mr James Lee, instructed by Messrs Charles Yeung Clement Lam Liu & Yip, for the Defendant
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