SAM YU CONSTRUCTION CO (suing as a firm) v. WINNING GODOWN LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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AN INTENDED ACTION

BETWEEN

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D E C I S I O N

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1. The intended plaintiff was, until recently i.e. the 20th of October, the contractor of the intended defendant for NKIL 5836, Kowloon Bay, Kowloon, Hong Kong under a building contract dated the 5th November 1985. None of the draft papers for this ex parte application has been issued or filed save for the supporting affirmation of Mr Soong Kim Sin. The proposed interim injunction seeks to order the intended defendant to desist from entering the construction site and in fact to vacate it. The Court is further invited to restrain the intended defendant from using the site office plaint, tools, equipments, materials and goods of the intended plaintiff and from removing or disposing of the same. The draft order even asks for the intended defendant to be injuncted from “employing another contractor to carry on the project” at the construction site.

2. Right from the outset, two questions were posed for consideration of Mr Lee, solicitor for the intended plaintiff: What this court would like to be assisted on is some legal justification for restraining an employer/owner from terminating a building contract. Further, it was queried why an ex parte application instead of an inter partes summons was engaged or, alternatively, why the intended plaintiff had not brought on ex parte application on notice to the intended defendant.

3. Mr Lee referred to certain passages in Keating on Building Contracts, I believe, from the latest edition. He submitted that a building contract should be strictly adhered to and complied with. That is no proposition for exercising any supervision over an employer/owner in his employment of building contractor.

4. From my understanding of the law, no restraint could be imposed on the power to dismiss a building contractor except in very unusual and inequitable circumstances. This is not claimed to be the case.

5. Mr Lee agreed that to be the law but argued that what was being sought to be interfered with here was not the owner/ employer’s perogative in the choice of the service of a building contractor, but an injunction to restrain the intended defendant from forcibly excluding the intended plaintiff from entering the site for the purposes of retrieving his vital documents, papers, plant and equipments etc.

6. Mr Lee suggested that in view of the alleged conduct of the intended defendant, any advance notice to it would likely cause all the more damage and injury to the intended plaintiff by way of loss or destruction of his papers, documents, plant, equipments and property. My attention was drawn to para. 10 of the affirmation of Soong Kim Sin, the sole proprietor of the intended plaintiff as well as para. 2 of the proposed statement of claim. Mr Lee offered to have this information properly verified by a further affirmation.

7. It is reasonably clear that except for preservation of documents, papers, equipments and other property of the intended plaintiff, the other prayers in the draft order cannot be acceded to. There is prima facie evidence, principally by way of inference, that the intended plaintiff would need imminent protection. Not without some hesitation, I am prepared to grant, in all the circumstances, the following :-

(1) that the intended defendant, whether by itself or its directors, officers, servants or agents or any of them or otherwise howsoever be restrained and an injunction be granted until further order restraining the intended defendant from taking possession of, damaging, or removing from the site at NKIL5836, Kowloon Bay, Kowloon, Hong Kong or from in any way dealing with the intended plaintiff’s records, documents, papers, site office plant, tools, equipments, materials, goods or any other property of or belonging to the intended plaintiff except for the delivery thereof to the intended plaintiff or his solicitors; and

(2) order in terms of 2 and 3 of the draft order as amended in red.