TIM LEE CONSTRUCTION ENGINEERING CO LTD v. KWONG WAH t/a SUPER KING ENGINEERING CO

HCCT18/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

ACTION NO. 18 OF 2010

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DECISION

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1. I handed down judgment in this case on 20 April 2012 in which I gave judgment for the plaintiff (Tim Lee) in the sum of $758,801.29 plus interest. On 23 April 2012, solicitors for the defendant (Super King) wrote a letter to the Court inviting me to review certain figures in the judgment by taking account of the revised valuation for the supply and installation of the granite tiles as set out in the Supplemental Report of the Joint Expert.

2. Pursuant to my directions, both parties have filed written submissions on whether I should review the figures as suggested.

3. In this case, although judgment was handed down, no order has been drawn up or perfected.  Before sealing of the order, it is clear that there is general jurisdiction for the Court to revisit its judgment and rectify mistakes in it. This jurisdiction is not to be confused with the “slip rule” under order 20, rule 11 of the Rules of the High Court.

4. There are English authorities on the principles as to how the jurisdiction is to be exercised, for instance, in Re Harrison’s Settlement [1955] Ch 260; Stewart v Engel [2000] 1 WLR 2268; and Noga v Abacha [2001] 3 All ER 513.  In Hong Kong, the exercise of the jurisdiction was discussed in some detail by the Court of Appeal in Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533.  I need only to quote the following passages in the judgment of Woo JA :

“25. In Noga, the holding in the headnote summarises Rix LJ’s view on the subject, as follows :

‘The court’s jurisdiction to reconsider its judgment before its order had been perfected could only be exercised in a case which raised considerations, in the interests of justice, which were out of ordinary, extraordinary or exceptional. An exceptional case did not have to be uniquely special, and ‘strong reasons’ was perhaps an acceptable alternative to ‘exceptional circumstances’. It would necessarily be in an exceptional case that strong reasons were shown for reconsideration. In the instant case, there were no such reasons. It was a case where it was said that the judge had got it wrong, on points which had been argued. The appeal process would be subverted if the application were granted. There were, of course, cases where an error of fact or law might be too plain for argument, and it was better that the error was corrected without imposing on the parties the need for an appeal. It was wrong, however, for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided: it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits. Accordingly, the application to reconsider the judgment would be dismissed (see [41], [43] – [45], [47] and [48] of the judgment).” (emphasis added)

Woo JA continued :

“28. ...Examples of strong reasons included a plain mistake on the part of the court, a failure of the parties to draw to the court’s attention a fact or point of law that was plainly relevant, or discovery of new facts subsequent to the judgment being given. These were said not to be exhaustive.

29. Those authorities also discussed the advantage and disadvantage of reopening a decision, in that on the one hand there must be certainty and finality of a court’s decision, though orally pronounced and not yet perfected, while on the other hand, where justice demands and an appeal can be averted by a judge reopening his order and reversing it if it is plain that he was wrong, so as to save the expenses of an appeal.” (emphases added)

5. I consider that the present case is precisely one where the errors in the judgment are plain and that they should be corrected so as to save the parties the expenses of an appeal.

6. On the claim for the outstanding balance under the 5^th WO, the plaintiff based its claim on the valuation provided in the Joint Expert’s report (see paragraph 28 and 7^th Schedule of the Re-Re-Re-Amended Statement of Claim).  It is not the plaintiff’s pleaded case that the claim should be assessed by applying the formulae as set out in paragraph 47 of the judgment to ascertain the plaintiff’s entitlement in respect of this part of the claim. 

7. The discussion in paragraphs 124 to 146 of the judgment therefore proceeded on the basis of the Joint Expert’s opinion.  What has been overlooked, however, is the revised valuation of the granite tiles work in the Joint Expert’s Supplemental Report.  On the basis of the unit rates set out in paragraph 2.3(3) of the Supplemental Report, the Joint Expert opined that the plaintiff’s entitlement to the works should be $463,911.78 and $58,446.07 (totalling $522,357.85), instead of $853,047.82 and $81,079.79 adopted in his first report. 

8. Accordingly, his “market rate assessment” for item 4.8 under “A&A Works at the Covered Walkway” should be revised to $578,735.65, instead of $990,505.41 adopted in his first report. 

9. I am satisfied that by taking into account the figures as revised by the Joint Expert in the Supplemental Report, the following parts of the judgment should be amended in the manner as highlighted below :

(1)  At paragraph 124: “ … the Joint Expert opined that Tim Lee should be entitled to an aggregate sum of $1,570,286.72 for the works.  Of that sum, $891,718.22 was Tim Lee’s entitlement for works based on the 2004 SoR, and $678,568.50 based on market rates.”

(2)  At paragraph 141: “ … the total sum to which Tim Lee was entitled under the 5^th WO should be $1,530,161.16, that is ($1,120,516.66 + $678,568.50 - $268,924.00).”

(3)  At paragraph 142: “ … there remains a shortfall of $70,017.96 (i.e. $1,530,161.16 - $1,072,335.54 - $387,807.66).”

(4)  At paragraph 146: “… Tim Lee will be entitled to the sum of $70,017.96…”

(5)   At paragraph 148: “ … and $70,017.96 (under paragraph 146 above).  The total amount is therefore $341,031.53.”

10. The parts of the judgment are hereby amended in the manner indicated in the preceding paragraph.

11. I would make no order as to costs for this application.