SMARTEK E & M ENGINEERING (HK) LTD v. WIN WIN WAY CONSTRUCTION CO LTD

SMARTEK E & M ENGINEERING (HK) LTD v. WIN WIN WAY CONSTRUCTION CO LTD

Credibility and contemporaneous documents established plaintiff left site with defective and incomplete works and failed to provide required substantiation; final account was not finalised and defendant never acknowledged or made the alleged part payment that could revive limitation; the causes of action for each VO accrued on the invoice dates in 2010 and are therefore time‑barred; further, defendant is entitled to equitable set‑off for costs incurred in rectifying defects (net HK$530,800), so plaintiff's claim is dismissed and costs awarded to defendant on an indemnity basis.

Citation
[2022] HKDC 32
Parties
Plaintiff: SMARTEK E & M ENGINEERING (HK) LIMITED; Defendant: WIN WIN WAY CONSTRUCTION CO. LIMITED
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
7 January 2022
Case Number
DCCJ5104/2017
Procedural Posture
Contract / Building and Construction Dispute / Trial Judgment
Outcome
claim dismissed
Legal Topics
Variation Orders, Part Payment and Limitation, Set Off, Defective Works, Final Account, Costs (indemnity)
Source Language
EN
Contract Law Construction Law Limitation Law Equitable Set Off Civil Procedure Variation Orders Part Payment and Limitation Set Off +3 more

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Parties

SMARTEK E & M ENGINEERING (HK) LIMITED

Plaintiff

WIN WIN WAY CONSTRUCTION CO. LIMITED

Defendant

Procedural Posture

Contract / Building and Construction Dispute / Trial Judgment

Legal Issues

  1. 1 Whether the plaintiff completed the contracted works and variation order works
  2. 2 Whether the final account had been finalised and defendant's payment obligation had arisen
  3. 3 Whether the plaintiff's claims are time-barred under the Limitation Ordinance

Ratio Decidendi

Credibility and contemporaneous documents established plaintiff left site with defective and incomplete works and failed to provide required substantiation; final account was not finalised and defendant never acknowledged or made the alleged part payment that could revive limitation; the causes of action for each VO accrued on the invoice dates in 2010 and are therefore time‑barred; further, defendant is entitled to equitable set‑off for costs incurred in rectifying defects (net HK$530,800), so plaintiff's claim is dismissed and costs awarded to defendant on an indemnity basis.

Court Disposition

claim dismissed

Orders

  • Claim dismissed with costs to the defendant
  • Costs to be taxed on the District Court scale on an indemnity basis, to be taxed if not agreed, with certificate for counsel