AU YEUNG LUN KAN v. CHO & PARTNERS ENGINEERING LTD

AU YEUNG LUN KAN v. CHO & PARTNERS ENGINEERING LTD

The judge accepted uncontroverted evidence that the plaintiff's quotation and interim payment applications were based on external dimensions and on established construction trade practice; the subsequent main contract was irrelevant as it post-dated the agreement between the parties; there were no reasonable prospects of success on appeal, therefore leave to appeal was refused.

Citation
AU YEUNG LUN KAN v. CHO & PARTNERS ENGINEERING LTD
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 May 2009
Case Number
DCCJ4297/2005
Procedural Posture
Application for Leave to Appeal Against District Court Judgment / Decision on Leave Application in Chambers (refusal of Leave)
Outcome
Leave to appeal refused.
Legal Topics
Interim Payment Applications, Pricing Dispute (external Vs Internal Dimensions), Leave to Appeal, Adverse Inference, Evidence
Source Language
EN
Contract Construction Civil Procedure Appeals Interim Payment Applications Pricing Dispute (external Vs Internal Dimensions) Leave to Appeal Adverse Inference +1 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Application for Leave to Appeal Against District Court Judgment / Decision on Leave Application in Chambers (refusal of Leave)

Legal Issues

  1. 1 Whether the judge erred in disregarding the price list and in finding the quotation was based on external dimensions
  2. 2 Whether terms of a subsequent main contract reflect the parties' intention in the earlier contract between plaintiff and defendant
  3. 3 Whether an adverse inference that the defendant overpaid the plaintiff was justified

Ratio Decidendi

The judge accepted uncontroverted evidence that the plaintiff's quotation and interim payment applications were based on external dimensions and on established construction trade practice; the subsequent main contract was irrelevant as it post-dated the agreement between the parties; there were no reasonable prospects of success on appeal, therefore leave to appeal was refused.

Court Disposition

Leave to appeal refused.

Orders

  • Leave to appeal refused with costs to the plaintiff to be taxed if not agreed with certificate for counsel
  • Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations