FORCE WAY ENGINEERING LTD v. THE INCORPORATED OWNERS OF GRAND COURT

DCCJ 3216/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3216 OF 2016

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DECISION

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1.  I shall now turn to deal with the plaintiff’s application to amend the re-amended statement of claim.

2.  The following matters are relevant considerations in this application. 

3.  First, the proposed amendments, if allowed and proved (assuming liability is established), would reduce the plaintiff’s liability on the counterclaim by a sum of up to $100,000.  Therefore, the decision to allow or disallow the amendments would affect the substantive rights and obligations of the parties.  This is clearly an important factor in support of allowing the amendments: see Order 1A, rule 2(2) of the Rules of the District Court.

4.  Secondly, on the other hand, there has been a substantial delay on the part of the plaintiff to take out the present application to amend.  As early as in October 2016, at the pre-trial review, the plaintiff had indicated to the court of the potential need to seek leave to amend.  However, the present summons was only taken out six months later on 18 April 2017, just shortly before the trial.  As a result, the application had to be dealt with on the first day of trial.

5.  The plaintiff accepts that there is no good reason or justification for the delay.  Mr Lung told the court that the need to take out the application had simply escaped the attention of the plaintiff’s solicitors.  In other words, they had simply forgotten about it.  It was only when preparation works were commenced for the trial that it occurred to the plaintiff that such an application would indeed be needed.  Clearly, the delay, coupled with the complete lack of justification, would weigh strongly, if not decisively, against allowing the amendments.

6.  There is ample authority to that effect: see, eg, Crane World Asia Pte Limited v Hontrade Engineering Limited HCA 109/2014, 17 June 2016, and Chan Wing Cheung Allan v Ho Shu Yee Susana CACV 393/2004, 10 January 2015, cases cited by the defendant.

7.  After all, the CJR is all about expeditious disposal or handling of proceedings.  The plaintiff’s act in this case, through its legal team, goes directly contrary to both the rules and spirit of the CJR.

8.  Thirdly, I accept, albeit with some reluctance, the defendant’s submission that if the amendments are allowed, instructions would need to be taken from the defendant on whether there was full or substantial completion of works on 30 May 2012, as a result of which the defendant may adduce further evidence.

9.  The defendant’s case all along has been that the works were never completed in full, so, prima facie, there would be no further or additional plea to be made by the defendant in response to the proposed amendments, because if works were not completed at all or at least not on 24 June 2012, prima facie, they would not have been completed on 30 May 2012.

10.  However, it is submitted on behalf of the defendant that it has resisted the plaintiff’s case all along by challenging the validity of the consultant’s certificate, which stated that 24 June 2012 was the date on which the works were completed by the plaintiff.  Now that the plaintiff raises an alternative plea of an earlier completion date of 30 May 2012, there is a possibility that there might be evidence on this issue of full or substantial performance by that date, which the defendant might like to adduce.

11.  I have to say that there is already evidence before the court of the alleged defects which remained unrectified at the relevant time.  However, given the last-minute application of the plaintiff, it would not be fair to deny the defendant at least the opportunity to ascertain whether it has further evidence to adduce in specific response to the alternative earlier completion date.

12.  If that is the case, allowing the amendments would necessarily mean vacating the rest of the trial dates.  The plaintiff accepts that there are really no “exceptional circumstances” justifying such a course.  The plaintiff accepts that if I am of the view that the defendant shall be given time to deal with the amendments, if allowed, the plaintiff would withdraw the summons in order to avoid the trial being delayed.

13.  Accordingly, I grant leave to the plaintiff to withdraw its summons dated 18 April 2017.

14.  I also order that costs of the summons be to the defendant, on an indemnity basis.  I do so to reflect the court’s disapproval of the dilatory attitude displayed by the plaintiff in its handling of the amendment application.  It also means that the plaintiff is now constrained by circumstances to withdraw a potential defence which may lead to a lesser liability amount.  But it is clear from the above that it has only itself to blame.

15.  That is my ruling on the amendment application.

(Discussion re time estimates)

16.  So I will put on record that these are the agreed apportioned time for the two applications – 2 hours for the amendment application and 15 minutes for the expunging application.

17.  For the amendment application, it is also with certificate for counsel.