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DCCJ 3252 / 2006
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 3252 OF 2006
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BETWEEN
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HEC ARCHITECTS & DEVELOPMENT CONSULTANTS LIMITED |
Plaintiff |
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and |
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THE INCORPORATED OWNERS OF CHOI PO COURT |
Defendant |
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| Coram: |
His Honour Judge Thomas Au in Chambers |
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(open to public) |
| Date of Hearing: 25 March 2008 |
| Date of Decision: 25 March 2008 |
| Date of Handing Down Reasons for Decision: 27 March 2008 |
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REASONS FOR DECISION
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1. The Plaintiff seeks further specific discovery of various classes of documents listed out under the Schedule attached to its Amended Summons dated 7 March 2008. The application is made pursuant to O 24 r 7 of the Rules of District Court (Cap 336).
2. The Defendant opposes the same on irrelevance or that the Plaintiff has failed to show the existence of those documents.
Relevant principles
3. It is trite that in order to succeed under O. 24 r 7, the burden is on the Plaintiff to show:
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a prima facie case of the existence of the requested documents and that they are in the possession of the Defendant. |
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The documents sought are relevant to any of the disputed issues. |
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See: Hong Kong Civil Procedure 2008, para 14/7/1 |
Background
4. By a written contract dated 29 August 2005, the Plaintiff contractor was engaged by the Defendant to carry out various renovation works to the ground lobbies of Blocks A to D of Choi Po Court, a residential estate (“the Estate”). The Estates were managed by a professional manager corporation (“the Manager”).
5. The original completion date of 21 December 2005 as set out in the contract was extended a few times to 20 January 2006.
6. It is the Plaintiff’s pleaded case that it was wrongfully forced to leave the construction site on 20 January 2006 by the Defendant, and by then, it had already completed about 99% of the renovation works prescribed by the contract.
7. By way of the present action, the Plaintiff seeks to recover from the Defendant the balance of the contract sum, and further outstanding fees regarding various variation works.
8. The Defendant defends the claim on the basis that the Plaintiff was unable to complete the renovation works by the extended completion date. It also says that insofar as the completed works are concerned, they are mostly defective, and the Defendant had to engage other contractors to complete the outstanding works and to rectify the defective works left by the Plaintiff. It also does not admit that there were the variation works. The Defendant counterclaims substantial damages in relation to the uncompleted and defective works.
9. In reply and defence to the counterclaim, the Plaintiff says the any delay in the completion of the renovation works was caused by (a) lifts renovation works carried out by another contractor engaged by the Defendant, (b) the additional flooring works required to be carried out by the Plaintiff to deal with the unexpected situation that the floor finishes of the lobbies of the residential blocks were on loose soil with the lack of concrete ground slabs, and (c) water leakage occurred at a cracked drain or water pipe located at the ceiling of the lobby of Block C of the Estate.
The present application
10. In the Schedule of the Amended Summons, the Plaintiff seeks discovery of 13 classes or items of documents. For convenience, the Schedule is attached to this decision, and references to the numbered item of documents hereinbelow are references to the same items in the Schedule.
11. By way of his written skeleton provided to the Court just before the hearing, the Plaintiff indicates that it no longer pursues items X, XI, XII and XIV of the Schedule. After the morning break of the hearing, Mr Leung for the Plaintiff further informs the Court that by a consent reached between the parties, the Plaintiff will also not pursue items VII, VIII and XIII of the Schedule.
12. In other words, for the present purpose, I need only to deal with items I, II, III, XI, V, VI, IX of the Schedule.
Item I (i)
13. Mr Leung submits that the document sought relates to the issue as to whether the Defendant had during the tender stage reasonably foreseen some unexpected circumstances that might cause the delay in the renovation work.
14. There is no such issue arising from the pleadings. As set out above, insofar as the Plaintiff’s delay in the completion of the renovation work is concerned, the issues that arise from the pleadings are whether the delay was caused factually (a) by the lift renovation works carried out at the material times, (b) by the dripping drainage pipes, and (c) by the flooring incident at the lift lobbies.
15. I therefore do not accept that the documents sought relate to any of the issues of this action. I refuse the application of specific discovery of the same.
Item 1(ii)
16. After making some submissions, Mr Leung for the Plaintiff confirms that he no longer pursues this item. I therefore dismiss this application for discovery of the same.
Item I(iii)
17. This is the very contract made between the Plaintiff and the Defendant concerning the renovation works. The Defendant has in fact discovered part of it by way of its 2nd Supplemental List of Documents. In my view, this document is relevant to the dispute between the parties as to the scope of the Plaintiff’s work, and should be discovered. I therefore order that the Defendant should make discovery of the contract in full.
Item I (iv)
18. After making some submissions, Mr Leung for the Plaintiff confirms that he no longer pursues the discovery of this class of documents. I therefore dismiss the application for specific discovery of the same.
Item II(i) to (iii)
19. The Defendant by way of the 3rd Affirmation of Chan Cheong Fai[1] deposes to the effect that it does not have in its possession such documents and that the Manager had kept no such work progress report of the renovation works.
20. Mr Leung for the Plaintiff however draws my attention to two documents as attachments to another document discovered by the Defendant earlier. These two documents are entitled “WORK REPORT/PHOTO RECORD” prepared by the Manager. They contain information and photos relating to fortification works carried out at the lobbies of the various residential blocks in the Estate during the period of the renovation works.
21. I accept Mr Leung’s submissions that these 2 documents show a prima facie case of existence of work reports complied and kept by the Manager for the renovation works, and that the Defendant has possession of them.
22. These reports are clearly relevant to the disputed issues on the cause of the delay and the quality of Plaintiff’s works.
23. However, the descriptions of these documents as set out under item II of the Schedule are in my view too wide and cover other potential documents which are irrelevant to any of the issues (for example work reports relating to other subcontractors). In my judgment, the scope of discovery should be narrowed down and be limited to the Plaintiff’s renovation works and flooring work, as well as the lift renovation works, as these are the only works relevant to the issues in the pleadings.
24. I therefore order that the Defendant should make further discovery of the work reports kept by the Manager in relation to the renovation and flooring works of the Plaintiff, and the renovation works of the lifts renovation contractor.
Item II(iv)
25. The Plaintiff has failed to show the prima facie existence of these alleged records. The Defendant has also by paragraph 5 of the 3rd Affirmation of Chan Cheong Fai denies the existence of the same.
26. I am also not satisfied that these “records” have any relevance to any of the issues as defined by the pleadings.
27. I therefore dismiss this application for specific discovery of the same.
Item II(v)
28. After making some submissions, Mr Leung for the Plaintiff confirms that he no longer pursues this item. I therefore dismiss this application for specific discovery of the same.
Items III and IV
29. Mr Leung confirms that with the ordered discovery of the work reports as set out above, he no longer needs to seek specific discovery of the documents or class of documents set out under items III and IV of the Schedule, as the work reports should cover these items as well. I therefore dismiss these applications for discovery as well.
Item V
30. Mr Leung submits that the Defendant has admitted the existence of these documents by way of the 3rd Affirmation of Chan Cheong Fai, and is bound to discover all of these documents by reason of Master Lai’s previous order. But the Defendant has so far only discovered the name card of the supplier of the timber doors. It should therefore be asked to discover the rest.
31. I agree, and so order that the Defendant should make discovery of the same.
Item VI
32. Mr Leung for the Plaintiff confirms that the Plaintiff will limit the discovery under this item to those documents relating to the lift renovation contractor only. As such, he further accepts that the Defendant has disclosed item VI(i).
33. After making some submissions, Mr Leung also confirms that the Plaintiff will no longer pursue item VI(2).
Item VI(3)
34. Insofar as Item VI(3) is concerned, Mr Leung has drawn my attention to the Defendant’s minutes of meeting dated 3 August 2005 (previously disclosed by the Defendant), which shows that there should be a contract awarded to the contractor known as Diamon Term to carry out the renovation works of the lifts. Prima facie, the Defendant should therefore have in its possession the contract.
35. Mr Leung further submits that this contract would reveal the scope and nature of the lift renovation works, and the contractual period within which the lift renovation contractor had carried out the lifts renovation works. These are relevant to the issue as to whether the lift renovation works had delayed the Plaintiff’s work after 26 November 2006 for 5 to 6 days, as pleaded by the Plaintiff.
36. I accept Mr Leung’s submissions. I therefore order that the Defendant should disclose the contract between itself and the lift renovation contractors.
37. Given my ruling for the discovery of the lift renovation contract and the work reports, Mr Leung confirms that he would no longer pursue items VI(4), (5).
38. Insofar as item VI(6) is concerned, Mr Leung submits that the Defendant has only disclosed a notice concerning phase II of the lift renovation works, but has failed to disclose the notice relating to Phase I and its changeover from Phase I to Phase II.
39. The disclosed Phase II notice relates to the lift renovation works period commencing from 21 November 2006. Mr Leung also accepts that any notice relating to Phase I of the works should relate to the work period before 21 November 2006.
40. However, it is the Plaintiff’s pleaded case at paragraph 5(2) of the Reply and Defence to Counterclaim that the delay caused by the lift renovation work only relates to the period after 26 November 2006. As such, I do not see how the notice concerning Phase I of the lift renovation work is related to any of the issues arising from the pleadings.
41. I refuse this application for specific discovery of the notice.
42. In relation to item VI(7), Mr Leung for the Plaintiff also accepts that there is simply no evidence to show the prima facie existence of the alleged “timetables”. I also dismiss this application.
43. For item VI(8), in light of my order for discovery of the lift renovation contract, Mr Leung accepts that the final payment receipt of the lift renovation contractor, even if existed, has no relevance to any of the issues herein. I therefore similarly dismiss this application.
44. Mr Leung also confirms that he is not seeking any further discovery relating to the sub-items (i) to (xi) listed under item V.
Item IX(i) to (iv)
45. Mr Leung accepts that there is no evidence to show the prima facie existence of these documents. I will also dismiss these applications for specific discovery.
Conclusion
46. For the above reasons, I order that within 14 days from today:
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The Defendant should make an affirmation confirming whether the following class of documents are or have been within its possession, custody or power; and if not then in its possession, custody or power when it parted with them and what has become: |
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(i) |
The complete set of the contract with reference number CPC/GLBW/T09/2004. |
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(ii) |
The work reports kept by the Manager in relation to the renovation and flooring works carried out by the Plaintiff, and the lift renovation works carried out by the lifts renovation contractor. |
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Records kept by the Manager recording the information of the other supplier/contractor which had installed the timber doors at the lobbies (before plastering works were done by the Plaintiff), and the time schedule approved by the Manager in relation to the other supplier/constructor’s mobilization of works. |
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(iv) |
The contract between Defendant and the lift renovation contractors for the lift renovation works. |
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The Defendant should file a further and better list discovering the above class of documents, insofar as they are within the Defendant’s possession, custody and power. |
47. The Plaintiff having only partially succeeded in these applications, and having considered the proportion of its success against the original scope of the application, I regard it as just and fair to make an order that the Plaintiff should be entitled to 1/3 of the costs of the application, and the Defendant be entitled to 2/3 of the costs. After setting off these mutual costs orders, by consent as set out in the Defendant’s solicitors’ letter dated 25 March 2008 and signed by the Plaintiff’s solicitors, it is further ordered that the Plaintiff should pay the Defendant HK$10,000.00 as costs for these applications.
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(Thomas Au)
District Judge |
Mr. William LEUNG of Messrs. William K.W. Leung & Co. for Plaintiff.
Mr. LEE Wai Wah of Messrs. Chiu, Szeto & Cheng for Defendant.
SCHEDULE
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I.
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All Minutes of Meetings of the Defendant which touches on and/or concerns the Renovation Works (as defined in Witness Statement of Miss Chan Wai Fong Esther dated 13/04/2007) forming the subject matter of this Action, including but not limted to the followings:-
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(i)
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September and November 2004 when the tender was issued, together with the tender documents;
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(ii)
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June and July of 2005 when representatives of the Plaintiff attended the Meetings and when sample boards were presented;
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(iii)
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The complet set of the signed Contract, CPC/GLBW/T09/2004; and
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(iv)
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There are occasions when one of the complete the Defendant’s Owners Committee member antagonize representative of the Plaintiff, Ms. Esther Chan, there had been heated arguments and angry words, these were not recorded in the Minutes of Meetings to reflect the big conflict of arguments and even personal attack from the OC Committee member.
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II.
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Construction progress reports which touches on and/or concerns the Renovation Works (as defined in Witness Statement of Miss Chan Wai Fong Esther dated 13/04/2007) forming the subject matter of this Action having been kept by the Defendant, including but not limited to the followings:-
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(i)
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Various Construction Progress Reports and related documents kept by Kai Shing Management Limited (“KSML”) acting in their responsibility as the Defendant’s Management Company to co-ordinate works of different contractors and working parties and any other personnel happened to be on the same premises that might obstruct each other’s existence.
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(ii)
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Documents relating to Construction Progress Report kept by KSML under another name or format and they are in Chinese, or even of their own daily Management report and record.
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(iii)
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Construction Progress Reports kept by KSML of “all” other Contractors and Working Parties, namely but not limited to Utility Companies, Electrical Companies, Tele-communication Companies, Post Office and Suppliers of materials etc. whom KSML separately invited and/or allowed on the same Premises concerns the Renovation Works.
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(iv)
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KSML records of each of the above entry into different Blocks of the Premises, records of each of their work nature and purpose on the site, records of their time schedule and duration of works, records of the individual concerns the Renovation Works.
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(v)
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Construction Progress Report, records of delay of each such party if any, records of KSML’s activities in coordinating the different parties, records of conflicts etc. concerns the Renovation Works.
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III.
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Records of Kai Shing Management Limited (“KSML”) recording dates and events of what have happened when it was reported by the Plaintiff’s site representative that there was no concrete ground slabs but loosely compacted soft soil at the lobby adjoining the letterbox area and when the ground floor tiles were hacked off for replacement, including but not limited to the followings:-
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(i)
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KSML’s time schedule as his duty of Management Company.
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(ii)
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The Defendant’s own record of dates and events of what have happened, KSML’s timing taken in notification to the Defendant of the exposure of the previous Main Contractor’s rotten and dangerous works when the Plaintiff’s workers hack off the facing tiles and open up for new works.
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(iii)
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Records of the length of time the Defendant took to respond to the Plaintiff’s report of the event.
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(iv)
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Records of the timing the Defendant took to approve the Plaintiff’s proposal for rectification, namely, dates to show when this serious structural matter was brought to the attention of the Defendant and dates with reasons to show the delay of the Defendant in making decision to rectify works that fall on Critical Path Diagram, works that handicap the rest of the renovation works notwithstanding repeated request of the Plaintiff to speed up the decision.
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(v)
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Records when KSML allowed rectification work to start on site, records of completion and records of delay in payment of the Defendant when the rectification was completed.
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IV.
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Records of KSML indicating that the Defendant has approved the quotation from the Plaintiff and gave green light to the Plaintiff to go ahead to reinstate the area with concrete slabs (referred to in III above).
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IV.
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Records of KSML recording the information of the other supplier/ contractor which have installed the timber doors at the lobbies (before plastering works were done by the Plaintiff) and the time schedule KSML approved the same other supplier/ constructor’s mobilization of works, including but not limited to the followings:-
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(i)
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Annotation of what contract or supply the same (in particular, the name card being Item no. V of the Schedule) represents or which works; and
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(ii)
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Approved time schedule of the other suppliers / contractors’s mobilization of works, which should be kept by KSML.
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VI.
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Information of the each and every of contractors on the Construction Site working on the lift lobbies of the entire Blocks A,B, C & D contemporaneously with the Plaintiff during the period of the performance of the Contract (as defined in the Witness Statement of Miss Chan Wai Fong Esther dated 13/04/2007) the Renovation Works, in particular, by the Plaintiff.
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(1)
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name and address of each and every such contractors;
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(2)
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tender document between the Defendant and the separate lift renovation contractors to show their scope of work and time schedules of their respective works;
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(3)
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contract document between the Defendant and the separate lift renovation contractor to show the approved schedule of works and time schedules of their respective works;
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(4)
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construction progress reports recorded by KSML regarding the separate lift renovation contractors;
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(5)
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construction progress reports recorded by the KSML regarding the coordination work between the separate lift renovation contractor and the Plaintiff;
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(6)
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the notices issued by the KSML to the public and the residents of Choi Po Court regarding the requirement to change over the Lift Lobbies from Phase 1 to Phase 2;
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(7)
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timetables to show the record of the change over event, in particular, the dates when the KSML was ready to hand over the Lift Lobbies for the Plaintiff to receive and start mobilizing on the next state of works.
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(8)
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Final payment receipt of the separate lift renovation contractor.
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including but not limited to:
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(i)
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information of each and every of contractors on the Construction Site working on the lift lobbies of the entire Blocks A,B,C & D contemporaneously with the Plaintiff during the period of the performance of the Contract of the Renovation Works by the Plaintiff.
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(ii)
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Annotation or whatever information of what contract or supplier contract the name cards represent or which area of works they relate to.
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(iii)
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information of such presented is dubious. Records kept by KSML are not submitted to show the purpose of such personnel on site, when and where these contractors and suppliers were engaged within the Construction Sites, the information the Defendant’s approved time schedule for the other suppliers / contractor’s mobilization of works, which should be kept by KSML, are all outstanding.
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(iv)
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“Lift Renovation Contract” for the painting of all lift doors for all floors of all Block A, B, C & D contemporaneously with the Plaintiff during the period of the performance of the Contract of the Renovation Works by the Plaintiff.
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(vi)
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the separate contract for the “Lift Renovation Contract”, to discover information of the lift tender documents, lift renovation contract to show their scope of work, lift renovation program of works, when do they start mobilization on site, what is the time schedule of these contractors who were on the same site of the Plaintiff at the same time frame and conflict with the normal progress, of work and scope of services of the Plaintiff.
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(vii)
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one notice for each Block, and there should be annotation diagram attached to instruct the movement of the tenants for each individual block.
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(viii)
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coordination schedule of KSML Management Office with their various contractors is very important information to be discovered.
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(ix)
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information particular to this event of delay which was hidden from the access and understanding of the Plaintiff.
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(x)
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whether the Defendant pays his other contractors promptly or the Defendant is accustom to accepting free gifts from other Contractors appears may not be the concern of the Plaintiff, but it proves that the Defendant has usual practice finding excuses not to pay bills for works done.
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(xi)
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complaints from many other sub-contractors working for KSML, the Defendant ‘s Management Company, for not receiving their proper payment. The Plaintiff has to discover the payment schedule of the Defendant.
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VII.
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Notices sent by KSML to the public and the residents regarding the holiday stop works recording the duration from Christmas Eve 2005 until New Year 4th January 2006.
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VIII.
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Copies of correspondence between KSML and Hong Kong Post Office regarding the notification by KSML to the Hong Kong Post Office and the dates appointed for the setting up of the letterbox at different Blocks A, B, C & D, including but not limited to:
Records of documents for the other blocks (apart from for one or two Blocks).
Documents recording the dates of discussion of the Defendant on the matter and dates inviting the Plaintiff’s proposal for replacing the leaking drain pipes over the ceilings at the main lobbies but the same Plaintiff’s proposal was refused by the Defendant and/ or KSML and documents occurring the Defendant’s then instructing the Plaintiff to do the tray with rubber tubes for draining to the ground drain, including but not limited to:
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(i)
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Documents from KSML Daily Report recording the event of sudden drains leaking when reported including but not limited to:
Information concerning numerous events of serious drainage leakage over the of the main Lobbies of different Blocks and different locations of occurrence.
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(ii)
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Documents submitted to the Defendant by the Plaintiff strongly recommending the urgent needs to make use of the Renovation period to replace the defective drains.
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(iii)
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Documents recording the dates of discussion of the Defendant on the matter and dates inviting the Plaintiff’s proposal for replacing the leaking drain pipes over the ceilings at the main lobbies.
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(iv)
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Documents from the Defendant refusing the proposal to replace drains at this critical stage but instructing the Plaintiff to do the tray with rubber tubes for draining the leaking foul water to the ground drain.
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X.
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Records at Daily Management Report of the coordination work of KSML regarding the arrangement of relocating the alarm bells over the top of the lift doorframes in various Blocks in avoiding the obstruction of laying of wall tiles at that area at that time, including but not limited to:
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(i) |
Records when the Plaintiff requested relocation of the Alarm Bells. |
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(ii) |
Records when the relocation of the said Alarm Bells was arranged by KSML for the specialist Fire Services Contractors to complete the works. |
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XI.
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Records at Daily Management Report of the coordination work of the KSML regarding the arrangement of relocating the CCTV in overcoming the CCTV cables being overhanging over the lift lobby and obstructing laying of wall tiles at that area at that time, including but not limited to:
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(i)
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Relocating CCTV cables handled by the specialist CCTV Contractors and a renovation Contractor.
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XII.
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KSML’s report to the Police in safeguarding future loss of the Plaintiff’s floor tiles after a lot of them were found missing under the security protection of the KSML and the Plaintiff had to order emergency tiles at a higher cost to fill in the loss, including but not limited to:
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(i)
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The Plaintiff’s report to the Defendant’s Management Company KSML several times on several other occasions, the loss of materials at the start of the contract like sand, cement and PVC plumbing pipes and at the later period of the contract, expensive floor tiles (about HK$70-@) kept at location directed by the Defendant.
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(ii)
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The Plaintiff’s request the Defendant to report to Police of the loss but was not notified of the result in the investigation for the loss or theft.
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(iii)
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Information of each of the Defendant’s report to Police at October 2005 to January/ February 2006, some people using a van with a mini crane to remove some materials including raw and PVC pipes off the Estate of Choi Po Court.
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XIII.
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Records of the reporting to the Hong Kong Police when the Plaintiff’s workers were stopped working at the Site at 6:30 p.m. 20th January 2006 and they went back to the storeroom to get back their tools on 21st January morning 2006 but were stopped and the case was reported to police.
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XIV.
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The three numbers of artworks for each of the main feature walls for each and every Block A,B,C and D installed by the Plaintiff’s contractors during the month of January 2007. These were not found during the Survey’s visits to Site including but not limited to:
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(i)
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Record of KSML receipts of the expensive Art works to the Estate when delivered to site at January 2006.
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[1] Filed by the Defendant in compliance with an earlier Order made by Master Lai in relation to the Plaintiff’s earlier application for similar specific discovery.
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