WANG ON BUILDING SUPPLIES & CONTRACTING LTD v. BOLTON CONSTRUCTION CO LTD

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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1. On the 16 September 1966, the plaintiff commenced proceedings against the defendant claiming payment of the sum of $712,804, alleging that this sum was due to it from the defendant in respect of the construction services rendered and construction materials supplied. The plaintiff also claimed that by agreement, interest would be payable on overdue amounts at the rate of 2% per month.

2. On 14 July 1997, the defendant filed an amended defence in which, in essence, it has admitted liability to the plaintiff for the sum of $399,889.70, but that this was all that was due. This sum has been paid to the plaintiff. I am told by Mr Finley that the plaintiff does not accept that this is all there is due, and intends to proceed for the balance. He accepts that sum mentioned has been paid to the plaintiff.

3. The defendant had a counterclaim against the plaintiff, but this has now been discontinued.

4. On 5 August 1997, the plaintiff issued a summons in which it seeks that judgment be entered in the sum of $399,889.70, with interest to the date of payment in the sum of $53,056.83 and a further interest on the unpaid interest at a daily rate of $16.98 and costs, such costs included in the costs of this application. Mr Finley also asked me to make an order in relation to the costs of the counterclaim, but this matter is not before me.

5. It is clear to me that the plaintiff cannot obtain judgment for the sum that has been paid to it. A judgment is granted when the court is satisfied that the amount for which the judgment is asked is due and owing. The sum cannot be due and owing if it has already been paid.

6. The defendant disputes that it agreed to pay interest, and there is no evidence before me to establish what the pre-judgment rate of interest should be in the absence of such an agreement. It follows that I cannot grant judgment in respect of the interest claimed.

7. As to costs, it appears that the action is to proceed because the plaintiff is not satisfied with the amount paid to it. If the plaintiff succeeds in recovering more than the amount paid, it may obtain an order for payment of the costs of the proceedings as a whole. On the other hand, it may be that the court will be satisfied that the amount paid by the defendant is all that is due, and that the defendant is entitled to some of its costs both before and after the date of the payment to the plaintiff. In the circumstances of this case, it does not seem sensible, at this stage, to attempt to separate the matters in respect of which the defendant has been paid, and those matters in respect of which it now denies liability, and to attempt to allocate costs of the action accordingly. These matters are in doubt at this stage. In my view, it is premature to undertake this exercise before the question of overall liability has been ascertained.

8. For these reasons, it seems to me that the summons before me is misconceived and that it should be dismissed. I so order. There seems no reason why costs should not follow the event. Accordingly, I order that the plaintiff pay the costs of this application in any event.