MORISON, SON & JONES (HONG KONG) LTD. v. YIU WING CONSTRUCTION CO. LTD.

MORISON, SON & JONES (HONG KONG) LTD. v. YIU WING CONSTRUCTION CO. LTD.

The Court held that a plaintiff may bring Order 14 proceedings after pleadings and discovery; delay is a relevant discretionary factor but not fatal per se; the earlier setting aside of the default judgment did not create issue estoppel because no determination on merits was made; plaintiff's evidence established no...

Source-derived case information.

Citation
MORISON, SON & JONES (HONG KONG) LTD. v. YIU WING CONSTRUCTION CO. LTD.
Parties
Plaintiff (respondent): MORISON, SON & JONES (HONG KONG) LIMITED; Defendant (appellant): YIU WING CONSTRUCTION CO. LTD.
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
17 November 1988
Case Number
CACV76/1988
Procedural Posture
Civil Appeal / Appeal to Court of Appeal From Order of Mayo J. Granting Summary Judgment and Related Interlocutory Rulings
Outcome
Appeal allowed in part; Court of Appeal varied the summary judgment to reflect allowable set-off and granted limited leave to defend.
Legal Topics
Order 14 Summary Judgment, Setting Aside Default Judgment (order 13), Delay and Laches, Issue Estoppel, Interim Payment (order 29 Rule 10), Liquidated Damages, Estoppel by Silence
Source Language
en
Civil Procedure Contract Construction Law Equity/estoppel Order 14 Summary Judgment Setting Aside Default Judgment (order 13) Delay and Laches Issue Estoppel +3 more

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Parties

MORISON, SON & JONES (HONG KONG) LIMITED

Plaintiff (respondent)

YIU WING CONSTRUCTION CO. LTD.

Defendant (appellant)

Procedural Posture

Civil Appeal / Appeal to Court of Appeal From Order of Mayo J. Granting Summary Judgment and Related Interlocutory Rulings

Legal Issues

  1. 1 Whether a plaintiff may bring Order 14 summary judgment after defence filed and discovery
  2. 2 Whether prior order setting aside a default judgment gave rise to issue estoppel or otherwise precluded Order 14 proceedings
  3. 3 Whether delay in bringing summary judgment application is fatal or a discretionary factor

Ratio Decidendi

The Court held that a plaintiff may bring Order 14 proceedings after pleadings and discovery; delay is a relevant discretionary factor but not fatal per se; the earlier setting aside of the default judgment did not create issue estoppel because no determination on merits was made; plaintiff's evidence established no triable issue on the claim for additional work but there were triable issues on the defence of delay/liquidated damages (claimed $458,000), therefore summary judgment should be varied to allow the defendant to defend to the extent of that set-off and the judgment sum reduced accordingly.

Court Disposition

Appeal allowed in part; Court of Appeal varied the summary judgment to reflect allowable set-off and granted limited leave to defend.

Orders

  • Reduce the summary judgment sum of $1,278,120.06 by $458,000 to $820,120.06
  • Reduce interest payable proportionately to reflect the reduction of the principal