UNITED ELECTRICAL CO LTD v. WING HONG CONTRACTORS LTD

HCCT 51/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 51 OF 2006

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D E C I S I O N

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1.  Saunders J made an order on 5 July 2011 for discovery by the defendant and inspection by the plaintiff. The discovery is of the vouchers, remittance advices and final accounts relating to electrical works received from the Architectural Services Department by the defendant regarding the construction project entitled “Term Contract No. TCK 031.”

2.  That order was made despite two affirmations having been made by one Mr Lee Wing Hong of the defendant on about 16 March 2011 and 25 June 2011 to the effect that he had conducted two searches for the documents sought by the plaintiff, but could not find them.  Mr Lee is the E&M manager of the defendant.  The plaintiff says that the second affirmation was filed without leave and should be expunged.

3.  The order by Saunders J was made on the understanding that the documents sought by the plaintiff were kept in a file sent by the defendant to the Official Receiver, but the defendant kept no copy of the documents.  The learned judge thought that the solution to the application for discovery was for the defendant to approach the Official Receiver and procure a copy of the documents in the file.  Hence the order. 

4.  However, the file only contained some remittance advice and did not satisfy the plaintiff.  The plaintiff therefore re-listed the application for discovery, despite the two affirmations by Mr Lee.

5.  Mr Lee then made his third affirmation, repeating the position of the defendant.  That affirmation was filed on 13 June 2012.  The plaintiff again said that this affirmation was filed without leave and should be expunged.  But the real reason for the application was made clear by the plaintiff before Au J on 12 August this year.  It is the plaintiff’s desire to have Mr C Y Hui, a director of the defendant, to be the deponent of the affirmation on discovery.  The plaintiff’s basis for seeking this affirmation is that Mr Hui was the person in charge of the term contract and not Mr Lee.  However, Mr Lee has explained twice on his second and third affirmations that Mr Hui was a senior person in the defendant and would not and did not take part in the search of documents. 

6.  Since Mr Lee, the E&M manager of the defendant, had gone on affirmation twice saying that he had conducted two searches for the documents sought and Mr Hui was not involved in the search, there is no basis for insisting an affirmation to be made by Mr Hui on the discovery of these documents.  It is also wrong to insist that only the person in charge of the project should be the proper person to swear to the result of a search for documents in a discovery exercise.

7.  I therefore dismiss this application with costs to be paid by the plaintiff to the defendant.

(Discussion re costs)

8.  I make no order as to costs for the hearing before Saunders J.

(Discussion re costs)

9.  The 5 August 2011 order is for costs reserved, I also make no order of costs for that day.