CHEERISE DEVELOPMENT LTD v. TONG PUN CHIU t/a TONG CHIU KEE CONSTRUCTION WORKS CO AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REASONS FOR JUDGMENT

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1. The parties are in dispute over a construction contract. On 29 August 1995. the plaintiff obtained from me. on an ex parte application. an injunction against the defendants restraining them from doing certain acts in relation to the construction site. The return day of that order was 1 September 1995. When the matter came before Rogers, J. on that day, the defendants, through counsel, said that they disputed the allegations by the plaintiff, and suggested that these allegations and cross-allegations by the defendants were best dealt with at the trial of the action. The defendants, therefore, applied for the inter partes summons to be stood over to be heard with the trial. The defendants said that they were willing for the injunction to continue on an ex parte basis. with the undertaking as to damages fortified. Rogers, J so ordered, with fortification in the sum of $200,000.

2. On 27 February 1997, the plaintiff issued a summons asking for the injunction to be discharged and the return of the $200,000.

3. On 23 May, 1997, after hearing Mr Hung, I discharged the injunction, but refused the application for the return of the money. I said I would hand down short reasons later. These are those reasons.

4. The only basis upon which I should release the fortification is that the defendants have no case that the injunctions should not have been granted, or that the defendants have no case that they have suffered any damages by reason of the injunction. But these are the issues that were to be decided under the inter partes summons stood over to the trial. I have, of course, the jurisdiction to decide the matter now. but why should that be done? The issues were stood over to the trial for the sensible reason that this might result in a saving of costs and time. What has changed so that it is desirable that the matter should be decided before trial? Mr Hung was unable to advance any satisfactory reason to do this. There is no urgency: I am told that the plaintiff does not need the money. If I were to decide that the matter should be decided before trial, it would be necessary to direct that the defendants present their case now. They have not done so far because the matter was stood over to the trial. Mr Hung says that the claim the defendants have put forward is "dubious". I cannot decide that on the skimpy material before me. It would be quite unfair to the defendants to criticise a case that they have not yet advanced and not yet advanced for good reason.

5. In the result. I could find no good reason why the manner of disposal of this matter under the order of Rogers, J should not be adhered to. Nothing has changed since that order was made to dictate that the matter should be disposed of before the trial. The reasons that existed then for the order still exist today. Accordingly. I dismissed the application by the plaintiff for the return of the money and ordered it to pay the costs of its application.