GLOBAL BRIGHT ENGINEERING LTD. v. CWF PILING & CIVIL ENGINEERING CO. LTD.

DCCJ930/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 930 OF 2004

______________________

______________________

______________________

D E C I S I O N

______________________

1.  The plaintiff applies today for leave to appeal my judgment of 7 April 2006.  The plaintiff’s first ground of appeal was that I had relied on the opinion of Mr Khanna, the expert, to find that considering the cause of delay, the most important delay was due to the remedial works on the defective mini-piles.

2.  It is Mr Chik’s submission that the expert report was agreed on questions of quantum only, therefore I have wrongly relied on Mr Khanna’s report on the cause of delay.  Mr Chik carefully referred to and identified the parts in my judgment where Mr Khanna’s name was mentioned in his skeleton submission for leave to appeal.  All such references referred to in the expert report were on the expert’s quantum assessments. 

3.  At paragraph 80 of my judgment, the reference I made was: ‘out of all the periods of delay considering the cause of delay, the most important delay was due to the remedial works on the defective mini-piles’.  This reference to the most important delay being due to the remedial works on the defective mini-piles also happened to be mentioned on the expert’s report.  But what was said in paragraph 80 was to preface my assessment of the evidence.  If one reads through the judgment, it is clear that I have gone through each period of delay claimed by the defendant in its counterclaim and I have carefully given my findings on each of those periods of delay to support an independent conclusion.  In particular, in paragraphs 80 to 82 on page 35 to 37 of my judgment, it is apparent from those paragraphs that I have made my own conclusion, giving full reasons.  There is clearly no basis in this ground of appeal.

4.  As to the second ground of appeal, Mr Chik referred to the court’s failure to consider delay in the remedial works on the defective mini-piles was caused by the defendant’s failing to mitigate its loss.  Mr Chik relied on the evidence in cross-examination of Mr Lee at the trial that it was the defendant’s decision not to complain about the delay until four months later when the defendant raised it in its letter to the plaintiff.  The period of delay in question  was 9 July 2003 to 23 July 2003.  Mr Chik referred to the fact that I found that period of delay was not extensive.

5.  Whether the delay was extensive or not there was clearly a delay between 9 July 2003 to 23 July 2003.  It may not be extensive by comparison to the other periods of delay.  It was the cause of the delay and the circumstances behind the delay that the Court had to look at. 

6.  The defendant had claimed in its counterclaim against the plaintiff for 67 days of delay in total.  At the end of my findings, I had found that the plaintiff was liable to compensate 14 days of those 67 days claimed.  In coming to that conclusion I have considered carefully the circumstances of each period of delay and the defendant’s mitigation of its loss by the measures the defendant took at the time. 

7.  From Mr Chik’s submission today and considering his draft grounds of appeal, I cannot see the plaintiff has any merit at all in this application.  I do not consider the plaintiff has any prospects of success in the appeal and, therefore, I dismiss the plaintiff’s application for leave. 

8.  Costs of the application today to the defendant.