REGENT CONSTURCTION CO. LTD. v. CIVILPEN LTD.

H.C.A No. 18303/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 18303 OF 1998

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JUDGMENT

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Introduction

1. At all material times the Plaintiff carried business as a building contractor and the Defendant was the owner or occupier of a composite building ("the said building") situated at Nos. 28-30 Fuk Wa Street, Kowloon. By a written contract made between the Plaintiff and the Defendant, the Plaintiff agreed to carry out the building construction works at the said building for the price of HK$13,812,288.60, which is subject to adjustment according to the certificates issued by the architect of the said works, i.e. Prudential Surveyors International Limited ("the Architect").

2. By a Re-Re-Re-Amended Statement of Claim (leave of further amendment was granted on the date of hearing), the Plaintiff claimed against the Defendant the sum of HK$741,848.17 by way of damages or such sum as the Court may think fit; together with interest and costs.

3. The claim of $741,848.17 was particularized under paragraph 3 of the Re-Re-Re Amended Statement of Claim:

Final Contract Sum as certified by the Architect on 21st January 1998	$14,782,163.29
Special Payment as certified by the Architect on 22nd September 1997	$186,944.00
	$14,969,107.29
Less contract sum already paid	$14,227,259.12
Amount due	$741,848.17

4. The Defendant disputed the Plaintiff's sum and made a Counterclaim against the Plaintiff. For reasons to be set out in a moment, it is not necessary for me to consider the Defendant's Counterclaim.

Defendant's failure to be properly represented

5. The Defendant, a limited company, was originally represented by Messrs. Y.C. Lee, Pang & Kwok. On 2nd January 2001, the Defendant filed a Notice to Act in Person. However, the Defendant did not seek leave under Order 5 Rule 6 of the Rules of the High Court to be represented by one of its directors. The Defendant was therefore not properly represented for the purpose of these proceedings.

6. After the case was set down for hearing, the Defendant, by a letter in Chinese dated 20th February, informed the court that its director(s) were not in Hong Kong and therefore could not attend the hearing as scheduled. The Defendant also asked for an adjournment.

7. After appraising Mr. Christopher Lam, counsel of the Plaintiff, of the situation (as the Defendant did not provide a copy of the letter to the Plaintiff), Mr. Lam sought to have the Plaintiff's case formally proved before me as the Defendant was not properly represented. I acceded to his request and proceeded to hear the Plaintiff's case.

Plaintiff's case

8. The Plaintiff called three witnesses to support its claim: Mr. Hau Kwai Shing, the managing director of the Plaintiff; Mr. Kwong Shu Yu, the Site Agent of the Plaintiff; and Mr. Cheung Kwok Ho, a registered Surveyor and Authorized Person, who was an executive director of the Architect at the material time.

9. The Plaintiff's case was that it had completed the building works under the written contract between the parties and that a final certificate dated 21st January 1998 was issued by the Architect, certifying the sum of $14,782,163.29.

10. Further, the Defendant, through the Architect, had requested additional or variation work to be carried out. These additional or variation works were requested to be done after the issuance of the Practical Completion Certificate in September 1996. Particulars of such additional/variation works were listed in Appendix 1 on page 100 of Bundle C.

11. The Plaintiff had completed such additional/variation works to the satisfaction of the Architect who, by a certificate dated 22nd September, certified the Plaintiff's entitlement to a payment of HK$168,944.00. As these additional works were requested after the issuance of the Practical Completion Certificate, they amounted to works outside the main contract and could not be accounted for in the Final Account. The architect advised the Defendant to settle the payment for these additional works in the sum of $186,944 separately with the Plaintiff.

Findings

12. After hearing evidence from these witnesses with reference to documents in support, and in the absence of evidence to the contrary, I accept the evidence of these witnesses and find that the Plaintiff's has proved its case against the Defendant as claimed.

Dismissal of Counter-claim

13. As the Defendant failed to be properly represented and failed to attend, I dismiss the Defendant's Counterclaim for want of prosecution.

Order

1. Judgment for the Plaintiff against the Defendant in the sum of HK$741,848.71 with interest at judgment rate from date of Writ to full payment;

2. The Defendant's Counterclaim be dismissed;

3. Costs of this action, including the Counterclaim, be to the Plaintiff, to be taxed if not agreed.