WENDER ENGINEERING SERVICE CO. LTD. v. TECHNIC CONSTRUCTION CO. LTD. AND ANOTHER

HCCT120/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO.120 OF 1997

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D E C I S I O N

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1. This is an application for specific discovery by the plaintiff against the 1st defendant under Order 24, rule 7. The principles are well known : see paragraph 24/7/1 of Hong Kong Civil Procedure 2002, together with the important qualification of Order 24, rule 8.

2. In my judgment, the plaintiff has made out a case of prima facie relevance and prima facie possession, custody and power. The documents relate to what are perhaps the only two issues in the action, namely, the contractual status between the plaintiff and 1st defendant and the issue of quantum.

3. Mr Wu, for the 1st defendant, has explained to me this morning in relation to each of the categories sought that either the documents requested do not exist or have already been provided in discovery. In my judgment, this explanation should be verified on oath, particularly as it is indicated that certain matters hitherto deposed by his client, may be inaccurate. There is also the possibility of substantial amendments being made to the defence.

4. Lastly, I refer specifically to the documents requested under paragraph 14 of the revised Schedule. In paragraph 5 of the 5th affirmation of Chiu May Lin, Verona, it is said :

"By reason of the licence borrowing/lending arrangement between the 1st and 2nd Defendants, the 1st Defendant's tender to ASD was prepared by the 2nd Defendant on behalf of the 1st Defendant ..."

This means quite plainly that the 2nd defendant was acting on behalf of the 1st defendant as far as the Architectural Services Department was concerned. The correspondence between the plaintiff's solicitors, the 1st defendant's solicitors and the ASD confirms this as well. Mr Wu says that in fact the 2nd defendant was independent of the 1st defendant, and that in reality the main contract was between the ASD and the 2nd defendant. Whether or not the pleading will be amended to reflect this, on the evidence before me at this stage, the 1st defendant must disclose the documents requested.