COMTECH ENGINEERING & CONSULTANT CO. LTD. v. THORN SECURITY (H.K.) LTD.

HCCT53/1999 and
HCCT55/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NOS.53 AND 55 OF 1999

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(HEARD TOGETHER)

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D E C I S I O N

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1. I have before me an application by the plaintiff to consolidate HCCT53/1999 with HCCT55/1999. The two actions are at different stages. Apart from anything else, HCCT53/1999 has already been fixed for trial, the dates being 15 October with 10 days reserved.

2. I decline to make the order sought for the following reasons :

(1) First, it comes at a very late stage. As I have indicated, trial dates have already been fixed for HCCT53/1999. If there were now an order made for consolidation (or indeed any other order under Order 4, rule 9), these dates may well have to be vacated. The defendant does not desire the trial dates to be vacated.

(2) Secondly, there are no doubt similar issues of fact in the two actions but there are also significant differences, not least in the fact that the two actions relate to two different works and sites, albeit involving the same parties. These differences are reflected in the experts' reports and witness statements that have already been filed in the two actions.

(3) Thirdly, the parties have all along proceeded on the basis that the two actions were separate and distinct. This is reflected in the filing of separate experts' reports and witness statements in the two actions even though there is an identity of witnesses.

3. In these circumstances and with both actions having progressed to an advanced stage, I can see no reason why the court should exercise its discretion in favour of making an order under Order 4, rule 9. Furthermore, the plaintiff has not in my view adequately explained why it is not hitherto made this application for consolidation. I therefore dismiss the application.