OTIS ELEVATOR CO (HK) LTD v. WIDE PROJECT ENGINEERING AND CONSTRUCTION CO LTD

HCA015214/1983

IN THE HIGH COURT OF JUSTICE

Action No. 15214 of 1983

BETWEEN

	OTIS ELEVATOR COMPANY (HK) LIMITED	Plaintiff
	AND
	WIDE PROJECT ENGINEERING & CONSTRUCTION COMPANY LIMITED	Defendant

____________

Coram: Hon. Liu J.

Dates of Hearing: 24 - 26 April 1985

Date of Delivery of Judgment: 6 May 1985

___________

JUDGMENT

___________

1. By a Sub-Contract dated the 13th August 1981 and made with the defendant as Main Contractor, the plaintiff agreed as Sub-Contractor to supply and install 18 lifts in an industrial building to be erected on K.C.T.L. 336, Kwai Chung, New Territories. For ease of reference, I will call the plaintiff the Sub-Contractor and the defendant the Main Contractor.

2. On the 17th December 1981, various mechanical parts were delivered by the Sub-Contractor to the site in some 56 wooden boxes. Two days later, on the 19th December, a fire broke out and, according to the Loss Adjuster's Report at page 161 of the Agreed Bundle, destroyed four lift motors, four selectors and seven control boxes. In his said report, the Loss Adjuster accepted a claim of $284,607.49 subject to a deductible first $10,000 and a $1,500 salvage value. Despite the criticisms levelled against the report, I can find no justification for doubting its accuracy. Particulars of loss were also supplied to the Main Contractor and the architects. See pages 119-120 of the Agreed Bundle. All were linked to the invoices at pages 97 and 98 and the charges at page 128 of the same Bundle. I accept the fire loss report and the quantum of $284,607.49. The Sub-Contractor now claims $274,607.49, being a sum well within such accepted value of the subject materials damaged and destroyed by the said fire. The Sub-Contractor further claims interest and costs.

3. The Main Contractor denies liability, and the controversy which revolves round the Sub-Contract is a question of construction.

4. The Sub-Contractor had insured the subject materials against all risks, and the Main Contractor counterclaims for a declaration that the Sub-Contractor holds its all risks policy and/or the insurance money thereunder "FOR THE BENEFIT OF" the Main Contractor. In addition to costs, the Main Contractor further counterclaims for damages and interest, which are both not particularized.

5. The Sub-Contract is Exhibit "P1", and a copy of it is included in the Agreed Bundle. All the pagination references here are in respect to this Agreed Bundle.

6. The Sub-Contract was expressly made supplemental to the Main Contract between one Fook Luen Co., Ltd. as employer and the Main Contractor. The Sub-Contract was divided into the following (1) to (10) parts (See "Content" at p.5) :

	(1)	The Sub-Contract conditions in a standard form issued by the Hong Kong Institute of Architects, The Royal Institution of Chartered Surveyors (Hong Kong & China Branch) and the Society of Builders, Hong Kong, the 1968 edition (see "G2-C1" at p.32 and the back sheet of the standard form at p.16);
	(2) - (6)
		The tender documents and its acceptance;
	(7) - (9)
		"The Particular Specification of Works to be done and material used for" the Sub-Contract. (See the Heading on p.24).
		The Particular Specification was subdivided into:
	(7)	"Preliminaries'' (p.p. 24 - 34) and
	(8)	"Lift Installation" (p.p. 35 - 57; see in particular "Content" at p.36);
		The "Preliminaries" in (7) above and "Lift Installation" in (8) above had, in each case, their own Particular Specification and General Specifications:
		For the "Preliminaries" in (7) above:
		(i)    the Particular Specification was (B) - (v)  at p.p. 24 - 29 and (ii) the General Specifications were (A) at p.24, the additions to standard General Specifications in (W) at p.p. 29 - 31 and (X) at p.p. 31 - 34 as well as the standard General Specifications for Tender in Section G1 at p.p. 58 - 60, the standard General Specifications for Preliminaries in Section G2, "Part A" and "Part C" at p.p. 61 - 68 and p.p. 69 - 80 respectively.
		For the "Lift Installation" in (8) above:
		(i) the Particular Specification was paragraphs 1 - 11 with the exception of paragraph 3 at p.36 and (ii) the General Specifications were paragraph 3 at p.37, the additions to standard General Specifications at p.p. 37 - 40 and the standard General Specifications in Section M5 at p.p. 81 - 86 and Section M5a at p.p. 87 - 96. Section M5 was also described at p.81 as "General Specification For General Condition" or just "General Conditions" at p.36. In effect, Section M5 comprised just General Specifications for "Lift Installation".
	(9)	The standard General Specifications as issued by the architects in Sections G1, G2, M5 and M5a: They were either incorporated intact as in G1 (see p.58) and M5 (see p.37 and p.81) or modified as in G2 (see (W) and (X) at p.p. 29 - 34) and M5a (see p.p. 37 - 40). For instance: Take the first item "G2-A1 Definitions - refers; and" at p.30. That means that the architects' standard General Specification "G2-A1" in Part A was modified and added to. Take items such as "G2-A19 Architect'sRepresentative" or "G2-A22  Overtime" at P 31, the modification was extensive. Subject to these modifications and additions, all the standard General Specifications were expressly made "relevant to" the Sub-Contract or "applicable''. (See p.p. 29, 31 and 37). They are all in grey colour pages in Exhibit "P1".
		Therefore, all the architects' issued standard General Specifications both for "preliminaries" and "Lift Installation" including these modifications and additions were "conditions stated in the Particular Specification", a term used in (B) at p.24.
		All these standard General Specifications were: Section G1 (p.p. 58 - 60), Section G2, Part A (p.p. 61 - 68), Section G2, part C (p.p. 69 - 80), Section M5 (p.p. 81 - 86) and Section M5a (p.p. 87 - 96);
		The standard General Specifications in Section G2 Part A were made to be "applicable to all Contracts, Sub-Contracts and Specialist Contracts". (see p.61). Those in Section G2 part C were to be "applicable to Nominated Sub-Contracts only". (see p.69). Sections G1, M5 and M5a contained no explicit indication in this direction. The only definition of "Contractor" was given in Section G2 part A alongside the definitions for "Main Contractor", "Nominated Sub-Contractor" and "Specialist Contractor". (See p.62). That definition of "Contractor" would seem to extend coverage to the other parts of the Sub-Contract and defined a contractor as "including the Main Contractor, Nominated Sub-Contractors and Specialist Contractors".
	(10)	Drawings.

             

7. The relevant provisions in the Sub-Contract are set out below: Clause 4 (p.7):

"4.

The Main Contractor and Sub-Contractor respectively shall, so far as is reasonably practicable, effect and keep in force during all material times policies of insurance with such insurance company or other insurers and of such an amount as shall be approved by the other against their respective liabilities under any statute in force for the time being in respect of injuries to persons and at Common Law in respect of injuries to persons or property arising out of and in the course of the execution of the Main Contract Works and the Sub-Contract Works and/or arising out of and in the course of the employment of any workmen employed by them respectively or caused thereby or due thereto respectively; subject as regards loss or damage by fire, lightning, typhoon, flood, earthquake, aircraft or aerial devices or articles dropped therefrom and riot to the provisions of clause 5 of this Sub-Contract."

8. Clause 5 (p.p. 7 & 8):

	"5.	(a)	The Sub-Contract Works (including materials and goods of the Sub-Contractor properly on the site for use in the Sub-Contract Works) shall as regards loss or damage by fire (whether such fire be caused by the negligence of the Sub-Contractor or those for whose actions the Sub-Contractor is responsible or otherwise), lightning, typhoon, flood, earthquake, aircraft or aerial devices or articles dropped therefrom and riot be at the sole risk of the Main Contractor.
		(b)	In the event of any loss or damage by fire, lightning, typhoon, flood, earthquake, aircraft or aerial devices or articles therefrom and riot being caused to the Sub-Contract Works (including any of the materials and goods of the Sub-Contractor properly on the site for use in the Sub-Contract Works) the Main Contractor to the extent of such loss or damage Shall pay to the Sub-Contractor the full value of the same, such value to be calculated in accordance with clause 10 hereof.
		(c)	The Main Contractor shall for the benefit of himself and the Sub-Contractor at all material times insure for the full value thereof the Sub-Contract Works (including materials and goods of the Sub-Contractor properly on the site for use in the Sub-Contract Works) and keep them or have them kept insured against loss or damage by fire, lightning, typhoon, flood, earthquake, aircraft or aerial devices or articles dropped therefrom and riot.
		(d)	The Sub-Contractor shall observe and comply with the conditions contained in the policy or policies of insurance of the Main Contractor against loss or damage by fire, lightning, typhoon, flood, earthquake, aircraft or aerial devices or articles dropped therefrom and riot."
page 24:

	"Particular Specification of Works required to be done and material used for The Supply and Installation of Lift Sub-Contract for Proposed Industrial Building on K.C.T.L. 336, Kwai Chung, New Territories
	Section G2 -Preliminaries

	(A)	This specification is to be used and read in conjunction with the General Specification G1, G2A, G2C, M5 and M5A of Wong & Ouyang & Associates, Architects and Engineers.
	(B)	Scope of Work
		The whole of work shall be executed by a firm to be selected by the Architect and designated as Nominated Sub-Contractor to the Main Contractor, here-in-after called sub-contractor.
		It is expressly agreed that the conditions stated in the Particular Specification shall form part of the contract and shall over-ride any other conditions in this sub-contract conditions for use where the sub-contractor is nominated under the standard form of Building Contract for Hong Kong, which may be contradicting or differ from this Particular Specification.
		The Lift sub-contractor is responsible to supply, deliver to site and install two (2) nos. Fireman's/Passenger Lifts, eight (8) Low Zone cargo lifts and eight (8) nos. High Zone cargo lifts as specified here-in-after in the Particular Specification."

	Page 31:
	"(X)	Relevant G.S. Clause (G2-C)
		The following G.S. Preliminaries are relevant to this contract, any additional requirements shall be specified here-in-after: -
		G2-C1	Form of Contract

		G2-C2	Conditions of Tendering
		G2-C3	Insurance
		G2-C4	Copy of Clause "Nominated Sub-Contractors"
		G2-C5	Visit site and Measurement
		G2-C6	Protection of Work
		G2-C7	Damage to Buildings
		G2-C8	Damage to Contractor's Works, etc.
		G2-C9	Equipment, Plant, etc.
		G2-C10	Sub-Contractor's user of scaffolding and General Facilities of Contractor
		G2-C11	Sub-contractor's user of scaffolding of Main Contractor
		G2-C12	Sub-Contractor's sheds, etc.
		G2-C13	Provision of water, etc. for Sub-contractor's works
		G2-C14	Workmen Living on Site
		G2-C15	Plant, tools, etc. of Sub-Contractor to be at his sole risk
		G2-C16	Risk of fire and tempest
		G2-C17	Right of access of contractor and Architect
		G2-C18	Cutting away and Making good
		G2-C19	Builder's Work
		G2-C20	Remove rubbish, etc."

9. The additions to the General Specification

10. Page 32:

                    "G2-C3 Insurance - refers; and

		a)	The contractor's all risks insurance and third party liability insurance will be insured and maintained by the Main Contractor.
		b)	The Sub-contractor shall provide workmen compensation insurance in respect of all workmen and other persons who may be employed on the work. The workmen's compensation insurance is to be extended to cover the Defects liability period and until no further work of any kind is being carried out.
		c)	The Sub-contractor shall also include in his tender the insurance against theft, damages, third party risks, etc. commencing from signing of the contract up to two weeks after the goods and articles delivered to site. After this insurance is expired, all goods and articles delivered to provided by the main contractor with exception of the basic excess which will be borne by the Sub-contractor."

11. The architects' issued standard General Specifications

12. The standard General Specification G2-C3 was subject to the above modifications and additions:-

13. Pages 70 and 71:

                     "G2-C3     INSURANCE

	Particular attention is drawn to Clauses 18 and 19 inclusive of the Main Conditions of Contract which detail the requirement with regard to insurance of workmen under the Workmen's Compensation Ordinance of 1953.
	The Sub-Contractors shall include in their tender the insurance against theft, damages, third party risk, etc. commencing from signing of Sub-Contract up to two weeks after the goods/articles have been delivered to site.
	After the insurance of Sub-Contracts is expired, all goods delivered to site or work done by the Sub-contractors shall be covered by the insurance policy of Building Contract with exception of the excess which shall be borne by each self of the Main Contractor, Sub-Contractor or Specialist Contractor.
	In case of claim arising from more than one party, the excess shall be shared in proportion by the parties concerned.
	The insurance is to be taken out with a company to be approved in writing by Architect.
	The Sub-contractor shall be responsible to the insurance of workman's compensation to cover the period from commencement of work until the end of Defects Liability Period and until no further work of any kind is being carried out."

14. The standard Genera  Specifications G2-C16 and M5-17 were both included without modifications or additions:-

15. Pages 78 and 79:

                    "G2-C16   RISK OF FIRE AND TEMPEST

	a)	The Contractor shall insure the full value of the whole work including all works executed and all unfixed material and goods intend for, delivered to, and placed on or adjacent to the works by the Sub-Contractor against loss or damage by Fire, Lightning, Typhoon, Flood, Earthquake, Aircraft or aerial devices dropped therefrom and riot, etc.
	b)	In the event of the completion of the Sub-Contract works being (in the opinion of the Architect) delayed by damage caused by fire, lightning, storm, earthquake or other accident, the Architect shall allow such extra time as may in the opinion of the Architect be required for completion of such works."

16. Page 85:

"M5-17 INSURANCE

	The Contractor shall insure against loss or damage by fire, lightning, typhoon, flood, earthquake, theft, soil, war risk, nationalization and during transportation on board or on land for the full value of the every part of the equipment up to two weeks after the date of arrival to site.
	Thereafter, the contractor shall notify the Architect to arrange for insurance of the equipment delivered to site.
	The Contractor shall be responsible for insurance for workmen compensation to cover his staff and labourers working on site and insure the tools,  instruments, plants, temporary building and equipment owned by the Contractor.		For any damage to the equipment delivered to site or installation, the contractor shall be responsible for the amount in excess for each claim of compensation against the insurance as stated in the policy of insurance demanded by the Main Contractor."

17. In the Sub-Contract, distinct references were constantly made to the expressions "main contractor" and "sub-contractor". There is no obscurity in those usages. Even in G2-C16 and M5-17, where only "Contractor" appeared, that expression could admit of no ambiguity in their respective context. Obviously "Contractor" meant the Plain Contractor in G2-C16 and the same expression meant the Sub-Contractor in M5-17.

18. I have completed the narrative. I should now endeavour to ascertain what the Sub-Contract provided. I ought to begin with Clause 5(c) at p.8 which required the Main Contractor to insure for the benefit of himself and the Sub-Contractor, at all material times, against "loss or damage by fire, lightning, typhoon, flood, earthquake, aircraft or aerial devices or articles dropped therefrom and riot". Then, under "(B) Scope of Work" at p.24, the second paragraph in effect expressly stipulated that the General Specifications were to override Clause 5 in case of conflict. I cannot accept that the impact of this stipulation was necessarily impaired by its inclusion in the "Scope of work". It would seem that this second paragraph in (B) at p.24 had a general application. M5-17 is a General Specification for the Sub-Contractor to insure against "loss or damage by fire, lightning, typhoon, flood, earthquake, theft, soil, war risk, nationalization and during transportation on board or on land" up to two weeks after delivery to site. M5-17 embraced "theft, soil, war risk, nationalization" and "transportation" but was silent on "aircraft or aerial devices or articles dropped therefrom and riot". Concentrating on fire risk, what must not be lost sight of is that the respective obligations on the part of the Main Contractor and the Sub-Contractor to insure were not mutually exclusive. Clause 5(c) cast the responsibility to insure at all material times against loss or damage by fire on the Main Contractor, and M5-17 on the Sub-Contractor but only for two weeks. These provisions were not inconsistent and could both be implemented without contradiction. Moreover, Clause 5(c) enjoined the Main Contractor to insure against fire risk for the benefit of HIMSELF and the Sub-Contract. Whether the Sub-Contractor was also required to insure against fire risk for a period would not interfere with or derogate from the Main Contractor's obligation to insure, at least, for himself, particularly when risk and property had passed to the Main Contractor upon delivery to site under Clause 5(a). It would be fallacious to assert that only one party could insure against fire risk or that the Main Contractor or Sub-Contractor had no spearate insurable interests. Thus, standard General Specification M5-17 at p.85 could not be and was not in conflict with the Main Contractor's duty to insure imposed by Clause 5(c) at p.8 and another standard General Specification. G2-C16 (a) at p.78.

19. Even if there existed some inexorable contradictions, the Sub-Contract offered no guidance as to which of two wholly inconsistent General Specifications was to prevail. G2-C16 appeared earlier in the sequence, but that by itself would create no priority, vice versa. They both formed part of the architects' issued standard General Specifications in alphabetical order of "G" and "M".

20. Much was sought to be made by the Main Contractor from an even earlier General Specification in the modified G2-C3 which, by its paragraph (c) at p.32, called upon the Sub-Contractor to "include in his tender the insurance against theft, damages, third party risks, etc. commencing from the signing of the contract up to two weeks after the goods and articles delivery to site".

21. There was no evidence that goods had been ordered, ascertained, appropriated, put in a deliverable state, dispatched or shipped at the time of the tender. The invoices at p.p. 97 and 98 bear a date in November 1981. To the Sub-Contractor it was unpredictable as to whether its tender would be favourably received and, if it was accepted, when the Sub-Contract would be signed. Any demand for including an insurance policy with the Sub-Contractor's tender would have run Counter to business efficacy. The parties to the Sub-Contract could only have intended to include in the tender the estimated premium for the two weeks' requisite insurance.

22. A subsidiary question propounded was: What insurance risks were envisaged by paragraph (c) of this modified G2-C3 at p.32. "Theft" is reasonably clear; so is "third party risks". What is "damages"? It is not "loss or damage" in respect of the Sub-Contractor's plant, tools, equipment or other property as in G2-C15 or "loss or damage" by fire, tempest or other fortuitous occurrences as in G2-C16 both at p.78. At p.76, G2-C6 referred to protection of work from damage, G2-C7 to damage to adjoining property and G2-C8 to damage to any work, unfixed materials or plant of others. Under Clause 19 of the Sub-Contract at p.13, the Sub-Contractor was to be held responsible for, inter alia, damage caused by its plant, tools, equipment or other property. It would seem that it was the premium of insurance against this category of damages, which needed to be included in the Sub-Contractor's tender. In other words, the Sub-Contractor would not be expected to insure against fire or any other risks than damages of this class. Whatever meaning is to be ascribed to "damages", in my view, by no stretch of imagination can the word "damages" in paragraph (c) of the modified G2-C3 at-p.32 or the second paragraph in G2-C3 at p.70 be interpreted as fire damage or damage to or loss of property caused by fire.

23. Therefore, paragraph (c) of the modified G2-C3 or the second paragraph of its standard version did not inferentially impose a two weeks' obligation to insure against fire damage on the Sub-Contractor. Even if it had, the obligation each envisaged could not have had the effect of displacing the Main Contractor's duty to insure under Clause 5(c).

24. The last sentence in paragraph (c) of the modified G2-C3 at p.32 seemed to be attempting at a somewhat different arrangement from that in the third paragraph of the standard General Specification G2-C3 at p.70. This third paragraph at p.70 referred to coverage by "the insurance policy of Building Contract". The excess was to be borne by "each self of the Main Contractor, Sub-Contractor or Specialist Contractor". In this incomplete and unintelligible modified version in paragraph (c) at p.32, the last sentence sought, to throw the whole excess of some different policy "provided by the Main Contractor" onto the Sub-Contractor. No capital was sought to be made of this sentence or unfinished sentence, and I can derive no assistance from it.

25. To sum up: Paragraph (a) of the modified G2-C3 at p.32 placed on the Main Contractor the burden of effecting and maintaining "the contractor's all risks insurance and third party liability insurance". Needless to say that it did not contradict or depart from Clause 5(c).

26. G2-C16(a) at p.78 reiterated the Main Contractor's obligation to insure against fire risk. That could present no challenge to Clause 5(c).

27. Under M5-17 at p.85, the Sub-Contractor was contractually obliged to insure its equipment against fire and other risks for two weeks after delivery to site. How would this M5-17 conflict with Clause 5(c) even assuming the word "equipment" in M5-17 to be synonymous with the terms "the Sub-Contract Works" in Clause 5(c) and "the whole work" in G2-C16(a)? The Main Contractor and the Sub-Contractor had separate insurable interests. Their rights to effect an insurance were not mutually exclusive. Moreover, it was incumbent on the former to insure against fire risk at all material times for the benefit of both including its own, and the latter was required by M5-17 to maintain an insurance policy against fire and other risks for two weeks and then to liaise with the employer's architect.

28. In its vigorous attempt to deny liability, the Main Contractor introduced M5-17 as an overriding General Specification clause allegedly contradictory in terms to Clause 5(c). I can detect no such incompatibility.

29. At the hearing, construction of these various provisions had been attempted with not inconsiderable confusion. Was such an undertaking necessary? On behalf of the Sub-Contractor, Mr. Lewis submitted that it was a futile exercise by reason of the terms in Clause 5. 1 agree.

30. Clause 5 is against a marginal reference of "Damage by Fire" Clause 5(a) transferred "the sole risk" and hence property of the subject materials destroyed by fire to the Main Contractor as regards fire and other risks. Pausing here for a moment, one would not expect "the sole risk" or the property of the subject materials to revert back to the Sub-Contractor upon any failure to insure on the part of any party. There can be little doubt, in my view, that Clause 5(a) was a free-standing provision independently of any obligation to insure.

31. I pass then on to Clause 5(b), whereby the Main Contractor was bound, without any reservation, to pay to the Sub-Contractor the full value of fire loss to be calculated in accordance with another provision of the Sub-Contract. If, in fact, the parties to the Sub-Contract had intended to subject the Sub-Contractor's right to be paid under Clause 5(b) to any condition precedent, they could have simply said so in plain language. The doctrine of contra proferentem need not be invoked. Even if the operation of Clause 5(b) had been made dependent on a binding obligation on the part of the Main Contractor to insure against fire risk, I have held the Main Contractor to its duty so to insure as a matter of construction.

32. The Sub-Contractor had throughout maintained an all risks insurance policy. I was told by counsel for the Main Contractor that the Main Contractor had likewise insured against fire risk for the subject materials. But these insurance policies would be of no assistance to the court. It was contended by Mr. Wong on behalf of the Main Contractor that the Main Contractor's liability to pay under Clause 5(b) hinged upon the Main Contractor's legal obligation to insure at the material time rather than on what had in fact transpired. Therefore, the Main Contractor's insurance policy is of no relevance.

33. It is trite law that a stranger not enjoying privity of contract with the Sub-Contractor's insurers, cannot claim under the Sub-Contractor's insurance policy. See paragraphs 8-08 and 3-28 of the Law of Insurance, 5th edition. I have rejected a belated attempt of the Main Contractor to introduce an allegation that the Sub-Contractor was obliged to take out an insurance policy for and on behalf of the Main Contractor. Therefore, neither of the insurance policies of the Sub-Contractor can be relevant in the instant case. As a matter of fact, M5-17 did not require the Sub-Contractor to insure against fire and other risks on behalf of or for the benefit of the Main Contractor. There was no evidence that any one of the Sub-Contractor's policies was entered into for the Main Contractor's benefit or on its behalf. The Sub-Contractor was not contractually bound to the Main Contractor to file any claim under its own policy to which the Main Contractor was a total stranger. It was not even suggested that the Sub-Contractor had received any insurance money. The declaration prayed for in the Counterclaim is wholly unsupported and cannot be acceded to.

34. The claim for damages is not founded on any or any proper pleading; nor was it substantiated by evidence. I know not what the Main Contractor's claim is in damages. Special damages have also not been specifically set out in the Counterclaim. No action for damages can be expected to succeed in these circumstances. I need say no more. The interest claim also falls consequently to the ground.

35. Since the plaintiff's claim as Sub-Contractor is less than the quantum of loss that I have accepted on the balance of probabilities, I give judgment to the plaintiff as claimed with interest thereon from the date of writ to the date of judgment at the rate of, subject to what counsel have to say, 12% per annum. I would also grant costs to the plaintiff against the defendant.

(B. Liu) Judge of the High Court

Representation:

Mr. C. Maxwell Lewis instructed by M/S Deacons for the Plaintiff.

Mr. A. Wong instructed by M/S Szeto & Yeung for the Defendant.

HCA015214A/1983

BETWEEN
	OTIS ELEVATOR COMPANY (HK) LIMITED	Plaintiff
	AND
	WIDE PROJECT ENGINEERING & CONSTRUCTION COMPANY LIMITED	Defendant

__________

Coram: Hon. Power, J.

Date of Hearing: 2 May 1984

Date of Delivery of Judgment: 23 May 1984

__________

JUDGMENT

__________

 

1. In this matter the Plaintiff, Otis Elevator Company (HK) Limited, is suing the Defendant, Wide Project Engineering & Construction Company Limited, for reimbursement of the sum of $274,607.49, being the value of 4 lift motors, 4 selectors and control boxes which were destroyed by fire on about the 19th December 1981 at a works site on K.C.T.L. 336, Kwai Chung, New Territories.

2. The Plaintiff claimed, in paragraph 3 of its Statement of Claim, that, under a "Sub-contract" entered into between it and the Defendant,it was provided, by clause 5(a), that damage by fire would be at the sole risk of the main contractor, i.e. the Defendant. It also pleaded that clause 5(c) the "Sub-contract" provided that the Defendant shall for the benefit of both the Plaintiff and the Defendant at all material times insure for the full value thereof. the "Sub-contract" works and keep them insured against loss by fire.

3. This writ of summons was issued on the 17th December 1983 and was served by leaving it at the Defendant's registered office on 21st December 1983. No notice of intention to defend having been given by the Defendant, a judgment was entered thereon on the 9th January 1984. The Defendant then took out a summons which went before the Master asking that the judgment and the execution issued thereon be set aside and that it be at liberty to defend the action.

4. On 9th April 1984 the Master refused to set aside the judgment and the matter comes before me on appeal from that decision.

5. On 3rd April, prior to the hearing before the Master, the Defendant filed an affidavit by its Managing Director, Mr. Wong Hung Hui. Mr. Wong said that he only became aware of the writ when the Bailiffs of the Court called at his office for the purpose of levying execution. He said that in the latter part of 1983, his wife was under treatment for terminal cancer and that in December of that year he took her to Shanghai for treatment.

6. Mr. Wong gave an explanation as to why he personally did not receive notice of the writ. It is, however, difficult to understand why some member of his office staff would not have received the writ and informed him thereof. I accept that he was in a very distressed condition in December of 1983 and January of 1984. Indeed his wife died on the 14th February 1984. He said that immediately the writ came to his attention, he instructed his solicitors to handle the matter. He also said that one reason why he had put the whole matter from his mind was because he believed that his insurance company was handling it for him.

7. The application was made under 0.13 r.9. The rule reads:-

"Without prejudice to rule 7(3) and (4), the court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order."

The notes to that rule cite Lord Atkin in Evans v. Bartlam⁽¹⁾ where he said:.-

"The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.

 

The note goes on to state:-

 

"If the judgment is regular, then it is an (almost) inflexible rule that there must be an affidavit of merits i.e. an affidavit. stating facts showing a defence on the merits ........... For the purposes of setting aside of the full judgment, the defence on the merits which the defendant is required to show need only disclose an arguable or triable issue."

8. There should, of course, be an explanation as to the delay but there is, as the white Practice states at 13/9/6 "no rigid rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion."  Given either that there is a reasonable explanation or that the Court is satisfied that the circumstances are such that it should grant the relief sought even though there has been no such explanation, it is for the Defendant, where there has been a regular judgment against him, to establish an arguable or triable issue.

9. The explanation in the present case is not a strong one. Indeed I am not satisfied that I could properly characterize it as "a reasonable explanation" however I am satisfied that it is enough to put the Defendant into Court if he can establish an arguable or triable issue.

10. I turn now to consider whether the Defendant has established such an issue. There was no doubt that clause 5(a) of the "Sub-contract'', referred to in the Statement of Claim, provided that the Sub-contract works shall, as regards loss or damage by fire, be at the sole risk of the main contractor. However, Mr. Wong said,. in his affidavit, that the contract between the Plaintiff and the Defendant was made up not only of the "Sub-contract" referred to in the Statement of Claim, but also of a series of 9 other documents. These 10 documents are bound together to form a single sealed bundle which is collectively referred to, on the cover page thereof, as the "Sub-contract" and the "Articles of Agreement made this 13th August 1981 between Wide Project Engineering & Construction Company Limited and Otis Elevator Company (HK) Limited". The "Sub-contract" referred to in the Statement of Claim is Document l in the bundle and is described in the list of "Content", which appears at the second page of the bundle, as "(1) Standard Form of Sub-contract for use where the Sub-contractor is nominated under the standard form of Building Contract for Hong Kong. (1968 Edition). This full set of documents was exhibited as "WHHSA-1" to an affidavit of Mr. Wong filed on the 30th April 1984, after the date of the hearing before the Master. I must stress that "WHHSA-1" does not faithfully reproduce the original document as the words "Sub-contract" and "Articles- of Agreement made etc." which I have set out. above, are printed in white on the original, which was produced at the hearing before me, and do not appear at all on the photostat copy thereof annexed to the affidavit. Having seen the original I am satisfied, that there can be no doubt that the contract between the Parties consists of all the documents set' out in "WHHSA-1".  I will refer to this contract hereafter as "the Contract".

11. The document to which the Defendant made particular reference was Document No.7 which the list of "Content" describes as the "Particular Specification for Preliminaries". Let me say immediately that it is no easy task to understand exactly how these documents are meant to interlock. They appear for the most part to be standard form documents which are selected and bound together to meet the requirements of an individual sub-contract.

12. Document No.7 itself bears the heading "Particular Specification of Works required to be done and material used for The Supply and Installation of Lift Sub-Contract for Proposed Industrial Building on K.C.T.L. 336, Kwai Chung, New Territories": Under the sub-heading "Section G2 -Preliminaries" there is a Paragraph"(B) Scope of Work" which reads as follows:-

"The whole of work shall be executed by a firm to be selected .by the Architect and designated as Nominated Sub-contractor to the Main Contractor, here-in-after called sub-contractor

 

It is expressly agreed that the conditions stated in the Particular Specification shall form part of the contract and shall. Override any other conditions in this sub-contract conditions, for use where the sub-contractor is nominated under the standard form of Building Contract for Hong Kong, which may be contradicting or differ from this Particular Specification.

 

13. Although the wording in this paragraph is a little difficult to follow there was no argument advanced that this did not mean, as was contended by the Defendant, that conditions in "the Particular Specification" formed part of the Contract and overrode other conditions in the Contract which contradicted or differed from the conditions in "the Particular Specification."

14. It was clearly an issue of fundamental importance to ascertain what document was the Particular Specification" and whether it contained anything which dealt with insurance and so overrode stipulations as to insurance relied on by the Plaintiff appearing in Document 1. The matter was complicated by the fact that Document No.8, in "WHHSA-1," was referred to in the list of 'Content' as the 'Particular Specification for Lift'. There were therefore two "Particular Specifications", one for preliminaries and one for lift. Was Document 7 itself 'the Particular Specification''. referred to in Document 7 or was it Document 9 or was it made up of both documents?

15. If it was Document 8 then there was nothing therein dealing with insurance. However, Document 7 contains in paragraph "(X)'', which is headed "Relevant G.S. Clause (G2-C)", a clause dealing with insurance. Clause (X) is, it is to be noted, headed: "The following G.S. Preliminaries are relevant to this contract, any additional requirements shall be specified hereinafter:-" There is no argument that 'G.S.' stands for "General Specification. The clause dealing with insurance reads as follows:-

"G2-C3 Insurance - refers; and(c) The Sub-contractor shall also include in his tender the insurance against theft, damages, third party risks, etc. commencing from signing of the contract up to two weeks after the goods and articles delivered to site. After this insurance is expired, all goods and articles delivered to provided by the main contractor with exception of the, basic excess which will be borne by the Sub-contractor.

 

16. It was common ground that the goods were destroyed two days after delivery to the site. It is certainly arguable that "the Particular Specification" referred to in Document 7 is Document 7 itself. Support for this contention is given by the use of the words "this Particular Specification'' in Clause B: On the other hand all that Clause (X) purports to be doing is reciting the "relevant" General Specification Preliminaries. If the term as to insurance is a General Specification condition and not a Particular Specification condition it would not override other provisions as to insurance in the Contract.

17. In the General Specification, which is Document 9, under the heading "G2-C3 Insurance" there appears a similar, but rather more intelligible, version of Clause (X) G2-C3 which reads as follows:-

.

"The Sub-Contractors shall include in 'their tender the insurance against theft, damages, third party risk, etc. commencing from signing of Sub-Contract up to two weeks after the goods/articles have been delivered to site.

 

After the insurance of Sub-Contracts is expired, all goods delivered to site or work done by the Sub-Contractors shall be covered by the insurance policy of Building Contract -with exception of the excess which shall be borne by each self of the Main Contractor, Sub-Contractor or specialist contractor."

18. Indeed Clause (X) G2-C3 can only be made sense of if, in the interpretation of it, the above clause is prayed in aid. The argument of Mr. Maxwell Lewis, who appeared for the Plaintiff, was that, even if  "the Particular Specification" was Document 7, the provision as to insurance was not a binding part of that document. He argued that all. that paragraph (X) did was to refer to those of the General Specification Preliminaries, Document 9, which were relevant to this contract" and such a reference was not such as would incorporate those provisions as operative and binds parts of Document 7.

19. Mr. Maxwell Lewis went on to argue that even if the clause was incorporated it was not worded so as to impose any obligation on the Sub-contractor to take out any insurance. He contended that all its wording required was that the Sub-contractor include in his tender the amount of the insurance premium. He submitted that there was no requirement upon him to take out such insurance and that the provision in Clause 5(a) of Document 1 that damage by fire was at the sole risk of the Defendant was in no way, affected. I must say that I do not find this argument very persuasive. It seems to me that it can be strongly contended that what was intended was that the Sub-contractor both include the amount of the premium in his tender and take out insurance to cover the specified risks to the goods for a period of two weeks after delivery to the site and that thereafter the risk would be covered by insurance taken out by the contractor.

20. As can be seen there are a number of difficult points of interpretation raised by the defence. It is in my view unarguable that the contract between the parties is contained in all 10 documents that make up "WHHSA-1". It was not argued that stipulations in the Particular Specification" as to insurance would, if they were in contradiction thereof, override the stipulation relied on by the Plaintiff in clause 5 of Document 1. It is arguable that ''the Particular Specification" referred to in Document 7 is Document 7 itself. It is also arguable that Document 7 at Clause (X) G2-C; contains a condition that is an overriding stipulation as to insurance. The Defendant has, therefore, made out an arguable issue and must, I am satisfied, be allowed to defend. The judgment is therefore set aside. I make an order nisi that the Plaintiff pay the Defendant's costs both here and below.

	(N.P. Power)
	Judge of the High Court

(1)    (1937) A.C. 480.

Representation:

Mr. Cameron Maxwell Lewis instructed by Deacons for Plaintiff.

Mr. Alexander Wong instructed by Philip K.H. Wong & Co. for Defendant.