A. I. D. LTD v. NANYANG BROTHERS TOBACCO CO LTD

HCMP 2485/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2485 OF 2015

(ON AN INTENDED APPEAL FROM DCCJ NOS. 1559 OF 2013 AND 876 OF 2014
(CONSOLIDATED))

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  The disputes between the Plaintiff (as contractor) and the Defendant (as employer) were in respect of a contract for the renovation works carried out at the toilets of the Defendant’s premises. After trial, Deputy District Judge LC Cheng [“the Judge”] found in favour of the Plaintiff and ordered on 20 April 2015 that judgment be entered in the sums of $501,060 and $118,300 with interests.

2.  The Defendant sought leave to appeal from the Judge and leave was refused on 23 September 2015. 

3.  The Defendant renewed the application for leave before us.

4.  The proposed ground of appeal turned on a pleading point.  Though the Judge held that under the original provision in the contract, the second phase of the contract should commence immediately after the completion of the first phase, he found that there was a subsequent agreement between the parties for the second phase to commence on 16 February 2013 instead.  Ms Gwilt, counsel for the Defendant, contended that there was no plea as to variation of the date of commencement of the second phase in the pleadings and therefore the Judge erred in holding that that there was no delay in the second phase works.

5.  With respect, we are of the view that this is a thoroughly bad point.   In terms of the pleadings, the Plaintiff’s case had always been that the agreement of the parties was that the second phase should start on 16 February 2013, see paragraph 13 of the Statement of Claim.  There was no challenge to that plea.  Paragraph 11 of the Defence contained an admission of paragraph 13 of the Statement of Claim.  It further pleaded that the Plaintiff started Phase 2 works on 16 February 2013. Thus, strictly speaking, there was no issue before the court as to the agreed commencement date for the second phase. 

6.  In light of such admission, there was no need to analyse whether the agreement was achieved by way of variation or otherwise. It may have been different if the Defendant had pleaded differently in its Defence. 

7.  In terms of substance, the Plaintiff’s pleadings and evidence (in the form of witness statement of a Mr Poon) had clearly set out how the commencement date for the second phase had to be postponed, viz due to the selection by the Defendant of water closets which were out of stock from the supplier.  All the material facts have been pleaded.  All the evidence was before the court.

8.  In such circumstances, we agree with the Judge the lack of use of the forensic expressions “variation” or “compromise” to describe the agreement on commencement of the second phase was of no significance. 

9.  We also find there was ample evidence to support the Judge’s findings on the further agreement on the commencement date of the second phase.  The challenge against the Judge’s factual findings is, with respect, quite hopeless.     

10.  We do not see any merit in the intended appeal. We wish to endorse whole-heartedly what Ma CJHC (as the Chief Justice then was) said in Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] HKLRD 795 at paragraph 7.  In our view, this is precisely the kind of case where the court should firmly set its face against pedantic, insignificant and unfruitful point of pleading being taken. 

11.  We therefore dismiss the application for leave and the application for stay of execution by the Defendant.  In light of the utterly lack of merit in the application, we shall order the Defendant to bear the costs of the Plaintiff on indemnity basis.  Having considered the statement of costs of the Plaintiff and heard submissions on it, we fix such costs at $94,720.