KIU MAY CONSTRUCTION CO LTD v. WAI CHEONG CO LTD AND ANOTHER

KIU MAY CONSTRUCTION CO LTD v. WAI CHEONG CO LTD AND ANOTHER

The judge admitted additional evidence created after the Master's hearing because an Order 58 appeal is a re-hearing where the judge may receive fresh evidence absent special reasons to exclude it; the subsequently created Clause 22 certificates (23 Sep 1983 and 18 Oct 1983) could validly give rise to a triable issue and a defence by set-off that extinguishes the Plaintiff's claim under the interim certificate, therefore the appeal was allowed and the Defendants were given unconditional leave to defend.

Citation
KIU MAY CONSTRUCTION CO LTD v. WAI CHEONG CO LTD AND ANOTHER
Parties
Plaintiff: Kiu May Construction Company, Limited; 1st Defendant: Wai Cheong Company, Limited; 2nd Defendant: Dominica Realty Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 November 1983
Case Number
HCA5829/1983
Procedural Posture
Appeal From Master's Decision Under Order 58 Against Summary Judgment Under Order 14 / Hearing on Appeal (re Hearing); Judgment Delivered 11 November 1983
Outcome
Appeal allowed; additional evidence admitted; Defendants granted unconditional leave to defend; original Master's costs order left undisturbed; costs of the appeal ordered in the cause
Legal Topics
Summary Judgment, Admission of Fresh Evidence on Appeal, Liquidated Damages, Set Off, Extension of Time, Interim Certificate
Source Language
EN
Civil Procedure Contract Law Construction Law Summary Judgment Admission of Fresh Evidence on Appeal Liquidated Damages Set Off Extension of Time +1 more

Case Brief

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Parties

Kiu May Construction Company, Limited

Plaintiff

Wai Cheong Company, Limited

1st Defendant

Dominica Realty Limited

2nd Defendant

Procedural Posture

Appeal From Master's Decision Under Order 58 Against Summary Judgment Under Order 14 / Hearing on Appeal (re Hearing); Judgment Delivered 11 November 1983

Legal Issues

  1. 1 Whether additional evidence created after the Master's hearing may be admitted on an Order 58 appeal against summary judgment under Order 14
  2. 2 Whether Clause 22 certificates could operate as a set-off extinguishing the Plaintiff's claim under the interim certificate
  3. 3 Whether an interim certificate entitlement is equivalent to cash such that subsequent evidence should be excluded

Ratio Decidendi

The judge admitted additional evidence created after the Master's hearing because an Order 58 appeal is a re-hearing where the judge may receive fresh evidence absent special reasons to exclude it; the subsequently created Clause 22 certificates (23 Sep 1983 and 18 Oct 1983) could validly give rise to a triable issue and a defence by set-off that extinguishes the Plaintiff's claim under the interim certificate, therefore the appeal was allowed and the Defendants were given unconditional leave to defend.

Court Disposition

Appeal allowed; additional evidence admitted; Defendants granted unconditional leave to defend; original Master's costs order left undisturbed; costs of the appeal ordered in the cause

Orders

  • Admit additional evidence filed October 1983 including Clause 22 certificates dated 23 September 1983 and 18 October 1983
  • Allow the appeals by 1st and 2nd Defendants and grant unconditional leave to defend