TACTFUL CONSTRUCTION & ENGINEERING (HK) LTD v. UNIVIC ENGINEERING LTD

HCCT 57/2016

[2019] HKCFI 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 57 OF 2016

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D E C I S I O N

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1.  Since handing down of the Judgment on 20 June 2019, the parties have made further submissions on the draft judgment order, the “extra costs” allowed on the Counterclaim, and on costs.

2.  The parties are in agreement that despite the Court allowing the  Defendant “extra costs”  incurred  for completion  of  the  Works  at CH -18 - 6, since the contract rate allowed by the Court in the Judgment was $4,643.10, there were in fact no extra or additional costs incurred by the Defendant as pleaded. The Defendant’s “extra costs” are accordingly nil.

3.  The Defendant has argued that it should be allowed nominal damages, or damages to be assessed. Since there was no such pleading in its Counterclaim, nor any evidence adduced or argument made at trial for any other direct loss caused by the Plaintiff’s failure to complete the Works, no such claim is allowed.

4.  The Plaintiff’s original claim under the Statement of Claim is $3,618,314.70. In the Judgment, the Court disallowed the Plaintiff’s costs for the Couplers, which was for the sum of $99,000.  The Plaintiff abandoned 3 claims in the Scott Schedule. The sum allowed to the Plaintiff is accordingly $2,154,473.28, compared to its claim of $3,618,314.70.

5.  The Plaintiff has substantially succeeded on its claim, and the Defendant has recovered nothing in its Counterclaim. There is no reason to deprive the Plaintiff of its entitlement to the costs of the original action and of the Counterclaim.

6.  A sanctioned offer of $1.8 million was made by the Plaintiff on 30 August 2018, but was not accepted by the Defendant. Having considered the provisions of Order 22 rule 24, and in the absence of any evidence of any unreasonable conduct of the Plaintiff with regard to the giving or refusing to give information for the purposes of enabling the sanctioned offer to be evaluated, I allow interest on the judgment sum at the rate of 4% above judgment rate from 28 September 2018 until the date of judgment, and at judgment rate from the date of service of the Writ until 27 September 2018, and from the date of judgment until payment.

7.  I further allow costs of the action and the Counterclaim to the Plaintiff on indemnity basis from 28 September 2018, and enhanced interest on those costs at half the rate of the enhanced interest from 28 September 2018.