SAM FAI CONSTRUCTION CO LTD v. YAT MING CONSTRUCTION & ENGINEERING LTD AND ANOTHER

HCCT 64/2020

[2023] HKCFI 1474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 64 OF 2020

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BETWEEN

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D E C I S I O N

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1.  After the trial of the action originally fixed for 20 June 2022 was adjourned as a result of leave being sought by and granted to the Defendants to adduce expert evidence, the Plaintiff applied by summons on 28 February 2023 to amend its Reply (“Amendment Summons”). This was to amend its original pleading on an alleged error in the drawings provided by the 1^st Defendant to the Plaintiff, on which error and consequent work the 2^nd Defendant had sought leave to adduce expert evidence. The Court has already made orders on expert evidence, on the basis of the amendments sought to be made to the Reply.

2.  The Defendants opposed the amendment application, as indicated in their letters of 24 February 2023 and 9 March 2023. By letter dated 1 March 2023, the Court reminded the parties that trial dates have not been fixed, and that the Defendants should consider whether they had grounds to oppose the application for amendment, the question of costs being a separate matter which can be dealt with.

3.  For the purpose of a hearing on 2 March 2023, Counsel for the Defendants indicated in the skeleton submissions that instructions had still not been obtained from the Defendants as to whether they would oppose the Amendment Summons.

4.  By letter dated 7 March 2023, the Plaintiff proposed to pay the costs of the amendment application, as the Amendment Summons initially provided for costs to be in the cause.

5.  At the hearing of the Case Management Conference on 5 May 2023, the Defendants maintained their stance of opposing the Amendment Summons.

6.  Unable to obtain the Defendants’ consent to the Amendment Summons, the Plaintiff fixed 7 June 2023 for the substantive hearing.

7.  It was not until 12 May 2023, that the Defendants informed the Plaintiff that they would consent to the Amendment Summons, but the parties were apparently unable to agree on the costs provision. The matter was directed to be dealt with by paper submissions – which have since been filed.

8.  It is correct, that the usual order to be made on an application for amendment of pleadings is that the applicant should pay the costs of and occasioned by the amendment, which would normally include the costs of the hearing of the summons for leave to amend. This is the usual course unless there are special circumstances which militate against such an order (Poon Wong Yee See v Lo Sau Woon Diana [2021] HKCFI 3410).

9.  In this case, the Defendants have not been able to explain satisfactorily why they chose to oppose the amendments sought to be made to the Reply. Any complaint of prejudice or costs wasted by reason of the Plaintiff’s delay in making the application can be dealt with by an appropriate order for costs. As the Court pointed out as early as 1 March 2023, the trial dates had not even been fixed, and any question of prejudice or need of time to be spent, to deal with the matters raised in the Reply, would unlikely be of such materiality as to lead to an order refusing leave to make the amendments.

10.  The procrastination and delay on the Defendants’ part in finalizing instructions on whether to oppose the amendments in substance is highly undesirable. The amendments are not substantial, and it is inexcusable for the Defendants to delay informing the Plaintiff, until 12 May 2023, that it consented to the amendments. If the Defendants had earnestly considered the proposed amendments within a reasonable time of the Amendment Summons, much of the time and costs of argument in correspondence on the entire matter, and much of the Court’s time, would have been avoided. Litigation should not be a game of gaining tactical delay or of building up legal costs. Trials should be reasonably prepared for without undue delay and unnecessary costs, and parties and their legal advisers have the duty to assist the Court to further the underlying objectives under Order 1A RHC, bearing in mind that a waste of court resources is against public policy and a matter of public interest.

11.  Having considered the particular circumstances and background history of this case, and to discourage parties from engaging in unnecessary interlocutory skirmishes to avoid, delay or complicate trial, I consider that the appropriate order of costs to make is that the costs of the Amendment Summons should be in the cause.