PAK LIK CO (A FIRM) v. SUNG FOO KEE LTD

-----------------

-----------------

JUDGMENT

-----------------

          is necessary.

LABOUR SUPPLIED UNDER THE LAGUNA & UST PROJECTS & THE DEFENDANT'S SIGNED DAYWORK RECORD SHEETS (DRS)

HISTORY OF LITIGATION

FIRST APPLICATION

STRIKE OUT FOR FAILURE TO COMPLY WITH UNLESS ORDER

1. The Answer under Request 2 then went on to state:-

At the hearing before me, Mr. Clayton readily conceded that this answer must be abandoned as it has no relevance and that no useful answer was given for the Requests in relation to UST. There was therefore no proper particulars of any kind supplied under Request 3. There was not even a semblance of an effort to comply with the Woolley Unless Order.

"... that each was in reality a "mere travesty of discovery" to adopt the language of Lord Wright in Myers v Elman or "illusory" to use the epithet employed by Devlin, J. and approved by Somerville, L.J. in Reiss v Woolf."

2. Hunter, J.A. said at page 464F:-

".... It had been accepted that the particulars ought to be given and an unequivocal order, setting out the form that the particulars were to take, had been made. It had not been complied with and the so-called "particulars" served made it perfectly plain that it had deliberately not been complied with - going so far, indeed, as to state that the particulars which the judge himself had, after full argument, adjudged to be necessary were "unnecessary and had been deleted". Faced with the breach of the order which was avowed and contumacious, Mortimer, J. was asked if he was not prepared to strike out the pleading, at least to make an "unless" order for the particulars to be served within fourteen days. His decision, in so far as it rested (if it did) upon an opinion that the order had been adequately complied with, was plainly wrong and, in their Lordships' view, a refusal to make any order at all in the face of a clear breach of his previous order was equally plainly wrong. If Wharf were of the view that they had made an error in consenting to serve the particulars ordered, their proper remedy was not to flout the order but to apply back to the court for an indulgence. They did not do so but rested wither upon the untenable submission that the order had been complied with or upon the assertion that it might be complied with in the future to such extent as they felt appropriate after discovery. In their Lordships' judgment, the Court of Appeal rightly considered that it was able to exercise its own discretion in the matter."

SECOND APPLICATION

SUMMARY JUDGMENT AND/OR INTERIM PAYMENT

"A desire to investigate obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to sufficient reason for refusing to enter judgment for the Plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism."

THIRD APPLICATION

SPECIFIC DISCOVERY

"A document might be relevant either by reason of its character-for instance, the mere fact that it was a document of a particular kind-or it might be relevant by reason of its contents, and if the applicant was relying upon a particular class of documents because they might have certain contents, in his view, it was not enough for him to say 'there must be this particular class of documents' unless the mere fact that they belonged to the class was sufficient to constitute relevancy. If the mere fact that they belonged to the class was not sufficient to constitute relevancy but the relevancy had to depend on the particular, then, it seemed to him there must be a prima facie case for contents made, under the rule, discovery could be granted."

"There are three main reasons why the further documentation now sought is relevant to the issues in this action. First, as is addressed at paragraphs 21 to 27 of Mr. Bateson's affidavit of 9.1.95, the further documentation is relevant to the Defendant's case that the Plaintiff's financial records do not support a level of profit which would justify the claim made against the Defendant. Secondly, documentation is sought to identify the nature of the unidentified credits and payments referred to in paragraph 25(b) of Mr. Bateson's said affidavit. For the reasons set out in that paragraph, that documentation is relevant to the issues herein. Thirdly, very substantial amounts of money have, on present documentation, been paid to Chow Wai Sing by the Plaintiff (see paragraph 6 to 15 of Mr. Bateson's affidavit of 9.1.95). He was a foreman of the Defendant's at the relevant time working on, amongst other sites, the one at U.S.T. The statements which Chow Wai Sing and Chow Lai Ling, his sister and a partner in Pak Lik. made to the ICAC are inconsistent with these payments (see exhibit SB-5A). Mr. Sze gives evidence that payments were made to Chow Wai Sing's accounts to earn interest and the money was returned to Pak Lik (Mr Sze' Third Affirmation, para 14). The documentation sought would show whether this was the case or whether, as appears from the bank statements disclosed to date, the money was not returned and to whom it went. This issue also makes the documents sought relevant."

"Copies of all statements for all accounts operated by the Plaintiff or any of its principals recording any payments made by the Plaintiff or its principals in connection with daywork labour supplied by the Plaintiff to the Defendant on the following projects:-

and copies of the front and back of all cheques by which such payments were made or other bank documents recording a withdrawal or transfer in respect of such payments."

FOURTH APPLICATION

RE-AMENDMENT OF THE DEFENCE AND COUNTERCLAIM

GENERAL CONCLUSIONS

".... A cash flow is the lifeblood of commerce. This is particularly true in the contracting business in which many contractors have been ruined because of delays in payment by building owners. Many subcontractors have suffered the same fate because of delays by the contractors."