GUARDIAN FIRE ENGINEERS & CONSULTANTS LTD v. LAW CHI SHUN t/a TECHNICOM ENGINEERING CO

HCCT95/2001
and HCCT8/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO.95 OF 2001

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(By Counterclaim)

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(Consolidated pursuant to the order of Hon Burrell J
dated 10 December 2001)

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DECISION ON QUANTUM

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1. On 1 December 2003, I handed down a judgment in the above action following an eight-day trial. As part of the judgment, I asked the parties to agree quantum following my findings on liability. It was anticipated that quantum would be a matter of simple arithmetic as a result.

2. Unfortunately, although most items have now been settled, four items remain in dispute. On one in particular the parties remain approximately $1,000,000.00 apart.

3. It is worth, at the outset, reminding the parties of my approach to this case which I was careful to explain in the judgment. The following comment was made, which underlay my approach :

"Firstly, in this case experienced contractors, experienced quantity surveyors and experienced lawyers have all been unable to settle their differences, which are largely differences of quantum, over a five-year period. At trial, the witnesses on both sides have endeavoured to assist the court. It cannot be said that any witness was evasive or lacked credibility. The court is therefore left with a difficult task. On the one hand, the burden and standard of proof must be adhered to. On the other hand, the evidence on many of the issues has been evenly balanced. In such circumstances, a considered but robust approach is necessary in order to provide the parties with the one thing they have been unable to achieve themselves, namely, a decision. The evidence has involved an examination of thousands of documents, the judgment will not."

4. The calculation which I did not carry out was in relation to the Variation Orders for the TOP 1 works (of which there were many). At the conclusion of the trial, counsel had very helpfully set out all the figures in dispute on each variation, and the nature of the dispute in each case.

5. My key finding, which I anticipated would enable the parties to calculate the quantum on each disputed issue, was :

" There were many sub-sub-issues, many differences of opinion, many differences of job descriptions, many differences of recollection. It would serve no useful purpose to set out all the competing evidence and submissions. The court's ultimate evaluation of the evidence is that the issues are borderline. The financial consequences of taking one approach rather than another, in the context of this case, are fairly significant. .....

..... On every sprinkler where Technicom claim $450.00 as opposed to $180.00 it succeeds. This however is subject to the court's second finding namely, that wherever Guardian has claimed that Technicom has duplicated a claim, it succeeds. I have had to consider and balance a considerable volume of evidence to reach this conclusion. In other words Technicom succeeds on the unit rate issue and Guardian succeeds on the duplication issue. Having applied these findings to all the sprinkler heads in issue, should there be any outstanding disagreements on quantum in relation to a residue of sprinkler heads, then, to those, Technicom's claimed rate shall apply. ..."

6. In order to resolve the quantum issue still in dispute I should not re-open the case. Having heard, briefly, the present contention of each side, my approach in relation to VO3A is to return to the figures I was presented in the closing submissions and to inform the parties the figure I would have put in my judgment had I undertaken the task of arithmetic myself, based on my findings on liability.

7. In short, I would have awarded Technicom $1,902,000.00 which is the figure Guardian conceded.

8. As for VO6, VO34 and VO44, I understand that disputes remain, which were not resolved by evidence, concerning the quantity and rate for mandays (VO6) and the degree of overlapping with other VO's (VO34 with VO7 and VO44 with VO19). In order to resolve the matter, as the sums in dispute are not large (under $80,000.00 altogether) I will take a median figure in each case, namely :

VO6 - $73,725.00

VO34 - $23,400.00

VO44 - $93,375.00

9. I have a reasonably good recollection of my approach to quantum at the time. I recall applying my findings on liability to the figures presented to me in an approximate way and as a result I said as follows :

"TOP 1

Because of my decision under Issue B it remains for the parties to make the final calculations. On the other issues I have made a final determination on quantum. The final result on TOP 1 should be a payment due to Technicom in the region of $3,000,000.00." (new emphasis)

10. In today's summons, Technicom claims $3,466,966.00 for the TOP 1 works. The result of my decisions today, which purport to give effect to what I would have done at the time, that claim is $517,325.00 too much. The figure for TOP 1 is now $2,949,641.00. A figure which is indeed "in the region of $3,000,000.00".

11. Guardian had claimed that Technicom's calculations were $1,057,425.00 too high. In fact they were $517,325.00 too high.

12. I make an order in terms of the summons amended as follows :

(i) Para. 1 to read "$2,949,641.00"

(ii) Para. 3 to read "$2,565,221.00"

(iii) Para. 7 to read "No order as to the costs of or arising out of this application."