DCCJ4302/2008 PINK BOX LTD v. HENG WAH (HONG KONG) DECORATION CO LTD - LawHero
DCCJ4302/2008
區域法院（民事）Deputy District Judge R. Yu28/4/2011
合併案件：DCCJ4545/2008DCCJ4302/2008
DCCJ4302/2008
由此
A A
B DCCJ 4302/2008 B
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CIVIL ACTION NO. 4302 OF 2008
F
-------------------- F
BETWEEN
G G
PINK BOX LIMITED Plaintiff
H and H
I HENG WAH (HONG KONG) Defendant I
DECORATION CO. LTD.
J J
--------------------
K DCCJ 4545/2008 K
L L
IN THE DISTRICT COURT OF THE
M HONG KONG SPECIAL ADMINISTRATIVE REGION M
CIVIL ACTION NO. 4545 OF 2008
N N
--------------------
O BETWEEN O
HENG WAH (HONG KONG) Plaintiff
P P
DECORATION CO. LTD.
Q and Q
R PINK BOX LIMITED Defendant R
S -------------------- S
(Consolidated pursuant to the Order made by Master R. Lai
T T
Of the District Court in Chambers dated 28th November 2008)
U U
V V
由此
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A A
B B
Coram : Deputy District Judge R. Yu in Court
C C
Date of hearing : 24-26, 29 November 2010 and 20 December 2010
D Date of handing down Judgment : 29 April 2011 D
E E
JUDGMENT
F F
G 1. This is a dispute arising from a construction contract. G
H H
2. The Plaintiff (Pink Box Limited) is and was at all material
I times a limited company carrying on the business of a retailer of jewellery. I
It has a number of shops in Hong Kong and China. In 2006, the Plaintiff
J J
was to start a new shop in 廣州市天河區廣百中怡店二層 (“the GZ
K K
Shop”). 廣百中怡店 (“the Mall”) is a department store and the GZ Shop
L would be a section thereof. L
M M
3. The Plaintiff engaged the Defendant (Heng Wah (Hong Kong
N Decoration Co. Ltd.) to design and build the GZ Shop. It is the pleaded N
case of the Plaintiff that the agreement is contended in a quotation no. hw
O O
(hk) q260706-02 (rev3) dated 15 September 2006 issued by the Defendant
P to the Plaintiff (“the Quotation”). The Plaintiff has endorsed its agreement P
when its employee/agent, Choy Chui Yin (“PW1”) amended the quotation
Q Q
and signed thereon on 18 September 2006.
R R
4. Details of the work to be done have been set out in the
S S
Quotation (“the Works”) and the Plaintiff claims that the Defendant has
T T
U U
V V
由此
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A A
B agreed to carry out the Works at the contract price of HK$164,709.00. B
This is admitted by the Defendant.
C C
D 5. The Plaintiff also claims that it is an express or, alternatively, D
implies term of the Quotation, or alternatively, the contract for the
E E
decoration/renovation of the GZ Shop as evidenced by the Quotation that
F F
G
(a) the Defendant shall carry out the Works in all manners G
and respects in compliance with the specifications,
H H
requirements and measurements as set out and laid
I
down by the Plaintiff. I
J J
(b) the Defendant shall carry out and complete the Works
K in all manners and respects in good or reasonable or K
merchantable quality, finishing and condition in
L L
compliance with and in accordance with the
M specifications and especially the requirement of the M
Plaintiff in using the Premises for operating a fashion
N N
jewellery shop.
O O
(c) the Defendant shall ensure that the furniture, fitting and
P partition built and set up by the Defendant at the P
Premises shall be reasonably and practically useable
Q Q
and workable and fit for the specific use and purpose of
R the Plaintiff in using the Premises as a fashion R
jewellery shop.
S S
T T
6. The above implied terms are denied by the Defendant.
U U
V V
由此
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A A
B B
7. It is the Plaintiff’s case that some of the Works completed by
C C
the Defendant are defective as particularized in the Amended
D Consolidation Statement of Claim. The Plaintiff has to engage another D
contractor to rectify the defects and suffers loss. The Plaintiff claims
E E
against the Defendant for the sum of RMB¥192,750 being the cost of
F F
engaging another contractor as damages it suffered.
G G
8. The Defendant denies that the Works completed are defective
H H
as claimed by the Plaintiff or at all.
I I
9. Further, the Defendant claims that on 28 September 2006, it
J J
was instructed by the Plaintiff to stop all the Works and the site of GZ Shop
K was returned to the Plaintiff for the Plaintiff to arrange for the grand K
opening of the Mall on 1 October 2006.
L L
M 10. As an alternative defence, the Defendant claims that they M
were prevented from completing all the Works. The witness of the
N N
Defendant claims that most of the Works are completed and handed over to
O the Plaintiff on 28 September 2006. They agree that some structures are O
temporary measure for the grand opening and they would return later to
P P
“rectify” such temporary measures. But they have not been allowed to
Q return to work after the grand opening of the Mall and should not be liable Q
to the Plaintiff for any loss.
R R
11. In the Amended Consolidated Defence and Counterclaim, the
S S
Defendant relies on the following express term of the Quotation:-
T T
U U
V V
由此
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A A
B • Payment Terms: a. 50% deposit upon job B
confirmation
C C
nd
b. 40% 2 payment upon
D D
completion half of the site
E
works E
c. 10% balance after 7 days
F F
upon job completion
G • Maintenance service at quotation within one month upon G
job completion
H H
I 12. The Defendant also claims that the Quotation has the I
following implied terms:-
J J
K (a) The Plaintiff shall not prejudice the Defendant’s rights to K
receive the payments for the Works done.
L L
M (b) The Plaintiff shall as soon as reasonable pay the M
Defendant for the Works done.
N N
(c) The Plaintiff shall not in any way hinder and/or prevent
O O
the Defendant from carrying out and completing the
P Works. P
Q Q
13. It is not disputed that the Plaintiff has only paid
R R
HK$82,354.50 being 50% of the price. The Defendant counterclaims the
S
balance of HK$82,354.50. S
T T
U U
V V
由此
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A A
B 14. In the Consolidated Reply & Defence to Counterclaim, the B
Plaintiff claims that by reason of the matters pleaded in the Amended
C C
Consolidated Statement of Claim and in the Consolidated Reply, the
D Defendant is not entitled to claim the said balance of HK$82,354.50 or any D
damages.
E E
F F
15. In her opening, Ms. Yap, counsel for the Plaintiff submits that
G
the completed work is so badly done that the Plaintiff is entitled to treat G
such breach as a fundamental breach and has accepted the repudiation on
H H
11 October 2006 at a meeting between the Plaintiff and the Defendant,
I
when Mr. Visuit of the Plaintiff (“PW2”) notified the Defendant that their I
service is no longer required. The Quotation is then terminated.
J J
K 16. But repudiation and the particulars as outlined by Ms. Yap K
have not been pleaded in the Plaintiff’s pleading. After all the factual
L L
witnesses have given evidence, Ms. Yap seeks to re-amend the Statement
M of Claim. There is no justification of such a late application which I M
refused.
N N
O 17. Ms. Yap agreed with Mr. Yeung, counsel for the Defendant O
that the following are the issues in dispute:-
P P
Q a. What are the contractual agreements? Q
R R
b. What would be the consequences of a push to finish the
S work on 28 September 2006? S
T T
U U
V V
由此
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A A
B c. Did the Plaintiff hinder or prevent the Defendant from B
finishing the Works?
C C
D d. What are the defects, if any? D
E e. What are the experts’ opinions on workmanship and E
costs for rectification?
F F
G
f. Is the Plaintiff entitled to the sum of ¥192,750, or any G
part thereof, as pleaded in the Amended Statement of
H H
Claim?
I I
g. Is the Defendant entitled to set off and/or counterclaim
J HK$82,354.50 as the balance of the contract sum? J
K K
18. It is not disputed that the express terms of the contract were
L contained in the Quotation. One of the issues in question is the agreed L
completion date. The following Remarks of the Quotation would be
M M
relevant to consider if there is an agreed completion date:-
N N
Remark 2 - Site work will be started after deposit received.
O O
P Remark 4 - 20 working days for preparation. P
Q Q
Remark 5 - Match remarks item 4, Anticipate 14 working
R days upon sign back quotation to job completion. R
(To be arranged and confirmed)
S S
T T
U U
V V
由此
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A A
B 19. Prima facie, these Remarks are terms of the contract between B
the parties. This is disputed by the Plaintiff.
C C
D 20. The first factual witness for the Plaintiff is the said Madam D
Choy Chui Yin (“PW1”), the general manager of the Plaintiff. According
E E
to the evidence of PW1, she has an oral agreement with the Defendant that
F F
the Defendant should commence their work on 14 September 2006, and to
G
complete the work on or before 29 September 2006, before signing the G
Quotation. She said the Remarks have been replaced by the oral
H H
agreement.
I I
21. When PW1 was cross-examined by Mr. Yeung, she said she
J J
reached the agreement with Madam Lai Ka Po of the Defendant (“DW1”),
K when she contacted the Defendant in July 2006. And she has also K
mentioned to Mr. Ho Chun Yu of the Defendant (“DW3”) that the shop
L L
must be completed before 1 October 2006.
M M
22. I note that PW1 signed the Quotation for the Plaintiff. Before
N N
she signed, she has made some amendments to the Quotation. Mr. Yeung
O put to PW1 that if there is such an oral agreement, why she has not O
amended the Quotation to that effect before she signed. PW1 said it is her
P P
mistake. I do not believe that such an important term could be forgotten
Q when she has paid attention to the detail of the Quotation by making the Q
amendment.
R R
S 23. Madam Cheung Fung Kwan Anna of the Plaintiff (“PW3”) S
also said in her evidence that there is an agreement with Defendant to
T T
U U
V V
由此
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A A
B complete all works on or before 29 September 2006. When being B
cross-examined, she agreed that the Defendant has not promised to
C C
complete the work before 29 September 2006, but they agreed to match (配
D D
合) the time for the said grand opening of the Mall.
E E
24. DW1 said in her evidence that the completion date calculated
F F
according to the Remarks 4 & 5 should be 27 October 2006. On
G cross-examination she said she did not know the GZ Shop had to be opened G
on 1 October 2006. She agreed that the Plaintiff had requested for
H H
completion on 29 September 2006. She also said the Plaintiff had
I requested them to push ahead the completion date to 28 September 2006. I
She had not agreed to push ahead to 28th, but only promised to try.
J J
K 25. DW3 also said in evidence that the completion should be K
about 20 days for preparation, and 14 days for the construction work, as
L L
stated in the Remarks of the Quotation. He agreed that in July, he prepared
M the work schedule showing that the Works could be completed before 1 M
October 2006. Later, the plans had been amended and the Works could not
N N
be completed before the National Day.
O O
26. The Quotation is the written contract for the renovation work.
P P
The parties are bound by the terms therein set out. Having heard all the
Q Q
evidence, I am not convinced that there is an oral agreement on the
R
completion date that overrides the Quotation. The best of PW1’s evidence R
is that she has “agreed orally” with DW1 when she contacted the
S S
Defendant. I do not believe there could be any agreement reached at such
T T
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V V
由此
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A A
B an early stage, when the other terms of the contract had not been finalized. B
It is at best a matter being discussed.
C C
D 27. Further, according to the evidence, there were exchanges of D
e-mail before DW1, and PW1 & PW3. Proposed work schedule has been
E E
submitted. The Plaintiff or PW1 or PW3 has not raised any objection to
F F
the work schedule. And the work schedule sent on 14 August 2006 shows
G
a completion date on 20 October 2006. G
H H
28. I also refer to a series of e-mail between DW1 and PW1 on 20
I
September 2006. DW1 clarified with PW1 that the handover date is not 28 I
September 2006. But the Defendant would try their best to finish the site
J J
work around 28 September 2006. And PW1 has no objection to this
K comment by DW1 in her e-mail in reply. K
L L
29. Ms. Yap tries to argue the 14 working days as stipulated in the
M Quotation is just an estimate. And the Defendant has started the M
preparation work at the earliest in July (according to the evidence of DW1).
N N
There is no meeting of mind for the provision of “20 working days for
O preparation” in the Quotation. O
P P
30. PW1 has amended the Quotation before she returned it to the
Q Defendant. If she disagrees with any of the Remarks, or if there is the Q
alleged oral agreement on completion, I see no reason why she would not
R R
amend the remarks before she returns the Quotation. I am not convinced
S that there is no meeting of the mind for the above terms. S
T T
U U
V V
由此
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A A
B 31. In conclusion, I found that the completion date should be B
fixed according to the terms in the Quotation, and it would be after the
C C
National Day. Using the last schedule presented to the Plaintiff by DW1,
D the completion date has been advanced to 9 October 2006. D
E E
32. The completion date is only relevant to the argument of the
F F
Defendant that, as the completion date was push ahead to 28 September
G
2006, some works “completed” were temporary measure and they should G
be allowed to return to rectify such works. If the completion date is on 29
H H
September 2006, as alleged by PW1, the difference is only 1 day. But if
I
the completion is sometime in October, the change would be more I
significant.
J J
K 33. I should come to consider the evidence on the defects. K
According to paragraph 6 of the Amended Defence and Counterclaim, the
L L
Plaintiff set out 11 items of defects/damages it discovered after completion.
M The burden rested on the Plaintiff to prove that these are defects and what M
are the reasonable costs for carrying out remedial work.
N N
34. The evidence relied on by the Plaintiff could be divided into
O O
two main parts. The first part of evidence is from factual witnesses and
P documents. PW1 and PW3 gave evidence on the items of defects. Further, P
after the Works has been handed over, there are 5 defect lists prepared by
Q Q
the Defendant and submitted to the Plaintiff. For the first 4 lists, they are
R agreed by the Plaintiff, and the Plaintiff relies on these lists to show the R
defective work done. But they disagreed with the contents of the 5th defect
S S
list, as the Plaintiff claims that certain items in the earlier defect lists have
T T
not been included.
U U
V V
由此
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A A
B B
35. The second part of the evidence comes from the experts.
C C
They comment on the existence of any defects, and the costs of repair.
D There are two experts in this case, Mr. Martin Lam (“Mr. Lam”) engaged D
by the Plaintiff and Mr. Terence Kwan (“Mr. Kwan”) engaged by the
E E
Defendant. Mr. Lam prepares his report dated 13 July 2007 and he has the
F opportunity to carry out site inspection. When Mr. Kwan prepares his F
report in October 2009, the defects in the GZ Shop had been rectified and
G G
he has no opportunity to examine them.
H H
36. For convenience, I would refer to the relevant evidence of the
I I
witnesses (both factual and expert) as I consider each defect as claimed by
J the Plaintiff. J
K 37. First item of defects is in respect of wooden board partition. It K
is claimed by the Plaintiff in the Amended Consolidated Statement of
L L
Claim that the wooden frame of the single side wooden board partition
M M
could not reach the ground to match at the same level of the glass panel. It
N
is the evidence of PW1 that the partition is not wide enough and the N
Plaintiff has to engage contractor to extend the partition. The extension
O O
was support by a wooden frame, which could not reach the ground and
P
could not match and/or support the partition. Her evidence is different P
from the pleaded case of the Plaintiff and is not helpful.
Q Q
38. DW1 said this item was not stated in any of the defect lists.
R R
39. Both experts agreed that this defect had not been stated any of
S S
the defect lists and no rectification is necessary since there is no safety or
T T
functional problems resulted. I accept the evidence of the expert and found
U U
V V
由此
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A A
B that no rectification would be required and hence no damages should be B
awarded.
C C
D 40. The second items of defects are in respect of the mirror D
panels. The Plaintiff had three complaints. Firstly, according to the
E E
evidence of PW1 and Mr. Lam, the left and middle glass panels of the
F F
mirror on wooden board partition had spot stains and the right glass panel
G
had oil paint stains. PW1 said they could not remove the stains. As the G
Plaintiff is a jewellery shop selling expensive items, all settings must be of
H H
high standard. Hence they have to replace the mirror panel. Mr. Lam was
I
of the view that the stains could not be removed. He also recommended a I
replacement of the glass panel.
J J
41. Mr. Kwan commented that this is a minor defect that could
K K
easily be rectified.
L L
42. A photograph of the stains was produced in the report of Mr.
M M
Lam. It shows that the stains are very small in size. They are just three
N very minor dots of less than the tip of a ball pen in size. They are not at all N
obvious. I fail to see how they could render the mirror defective. Ms. Yap
O O
tried to explain that the Plaintiff is a jewellery shop and any defect cannot
P be tolerated. Accepting that the Plaintiff is a jewellery shop, I am not P
convinced that such minor defects would in any way affected the overall
Q Q
image of the shop. I found this a minor defect and I do not consider the
R recommendation of replacing the mirror reasonable. I found that no R
remedial work would be required and no damages is allowed.
S S
T T
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由此
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A A
B 43. The second complaint on the mirror panel is there are three B
nails found on top of the glass panel. Both experts agree these are minor
C C
defects. And Mr. Tsui Kang Wu of the Defendant (“DW2”) in evidence
D confirms they have been removed and I accept his evidence. No further D
work is required and no damage would be awarded.
E E
F F
44. The third complaint is in respect of the size of the mirror panel.
G
The overall size of the mirror is only 9 sq. meters while according to the G
Quotation, the mirror panel is 14 sq. meters. Both experts confirmed that
H H
this is a minor defect.
I I
45. DW2 explained that while the contract provided that the
J J
minor is of 14 sq. meters in size, this is an estimation and subject to the
K actual measurement on site. K
L L
46. In most of the construction cases, there could be minor
M variation of size due to limitation at the construction site. Ms. Yap submits M
that DW2 confirmed that they have not informed the Plaintiff of the
N N
variation in size. This means the Plaintiff has not agreed to the variation.
O This entitled the Plaintiff to claim damages for replacing the mirror. O
P P
47. I agree with Ms. Yap that the variation has not been agreed.
Q But I do not agree that the mirror panel has to be replaced. Ms. Yap would Q
be corrected if this is one piece of mirror. But this is a mirror panel. It is
R R
possible to extend the panel. This item is item 1 in the agreed defect lists,
S which the Defendant agreed to extend the mirror panel by 1 meter. S
T T
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由此
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A A
B 48. Accordingly, this is a defect in that 5 sq. meters of mirror B
panel has not been provided to the Plaintiff. Unfortunately I have no
C C
evidence on the costs of extending the mirror panel by 5 sq. meters as the
D remedy suggested by Mr. Lam is on replacement. In the alternative, the D
Defendant should not be entitled to the price of the mirror panel not
E E
supplied and I could assess the loss to the Plaintiff by adjustment in the
F F
price. I would come to this point on assessment of damages
G G
49. The third defect relates to spotlights and down lights. It is the
H H
case of the Plaintiff that the total number of the spotlights for the display
I
cabinet exceeded the specifications and were not functioning due to I
overheating. According to the joint opinion of the 2 experts, there is no
J J
conclusive evidence to show that there is overheating of the installation.
K And the relevant drawing showed that 12 spotlights are specified to be K
installed. There is no non-compliance to the specifications. I adopt the
L L
opinion of the experts and found that there is no non-compliance or defects
M with this complained item. M
N N
50. In respect of the spotlights and down lights, the Plaintiff
O further complains that the transformers provided by the Defendant were O
not approved by the management company of the Mall. As a result, they
P P
had to acquire the appropriate transformers from the management
Q company and they had paid the costs. It is the evidence of PW1 that the Q
installation of the transformers as supplied by the Defendant was stopped
R R
by the management company due to overheating and absence of CCC
S Certificate, a form of quality certificate used in China. PW1 said DW1 S
agreed on spot to be responsible for the costs.
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由此
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A A
B B
51. It is the evidence of DW1 that the Defendant has provided
C C
copies of the CCC Certificate to the Plaintiff and it is for the Plaintiff to
D provide the Certificate to the Shopping Mall. She knew that the D
management company rejected the transformers but she denies having
E E
agreed to bear the costs. She said the Plaintiff agreed to buy and provide
F F
the transformers themselves.
G G
52. It is also the evidence of DW2 that they had supplied copies of
H the CCC Certificate to the Plaintiff. DW2 also said they must have the H
CCC Certificate, or otherwise they would not be allowed by the
I I
management company to bring the transformers into the Mall.
J J
53. The burden rests on the Plaintiff to prove that the transformers
K K
do not have CCC certificate and/or they are not in accordance with the
L specification required by the Mall. I have no evidence from the L
management company of the Mall. The only evidence came from PW1
M M
and she could not explain the problem with the transformers. Mr. Lam
N could not verify whether the transformers had been approved by the N
Plaintiff or not. Mr. Kwan opines that the Plaintiff is responsible for his
O O
own choice of material. He also noticed from the correspondence between
P the Plaintiff and the Defendant that the Defendant had supplied copies of P
the CCC Certificate for the lighting equipment used to the Plaintiff in one
Q Q
of its fax dated 20 September 2006. He confirmed that it is not a
R non-compliance. R
S S
54. On balance, there is no evidence to support the claims that the
T T
transformers supplied by the Defendant do not comply with the
U U
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由此
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A A
B requirement of theMall, or that they are defective. Further, if the B
Defendant agreed to pay for the transformers, there is no explanation why
C C
the Plaintiff paid for the transformers in the first place. I am not convinced
D that there is any agreement for the Defendant to pay the costs. I do not D
award any damages for purchase of transformers from the management
E E
company.
F F
G
55. The fourth item of defects as pleaded in paragraph 6 of the G
Amended Statement of Claim relate to the VIP service counters. There are
H H
a number of defects complained of by the Plaintiff and they asked for
I
replacing the counters. I
J 56. PW1 complains that the length of the VIP service counter was J
shorter than the approved drawings. According to Mr. Kwan, for both VIP
K K
counters, the length was shorter than the drawings by about 100 mm.
L L
57. It is the evidence of DW1 that she had informed the Plaintiff
M M
of the change which was necessary because the corridor was too narrow.
N She also referred to an e-mail dated 16 September 2006 to PW1 which N
attached a drawing of the shop layout, when it was written in Chinese that
O O
the corridor is only 480 mm in width. PW1 denied any agreement. But
P there is no evidence that she rejected the drawings. P
Q Q
58. I accept the evidence of DW1 that she had been brought to the
R attention of the Plaintiff the width of the corridor and informed PW1 any R
changes required. I can safely infer that the variation has been agreed by
S S
the Plaintiff. After all, the variation is a minor one.
T T
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由此
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A A
B 59. The main complaint by PW1 on the construction of the VIP B
service counter is the position of the VIP service counter from the
C C
overhead spotlights and down lights. It was built closer to the super
D graphic light box and as a result, the spotlights and down lights could not D
be directly on top of the VIP counters, and could not focus on the jewellery
E E
displayed inside the counter. This was confirmed by Mr. Lam in his report.
F F
And Mr. Kwan did not raise any observation as he had not seen the position
G
of the VIP counters. G
H H
60. According to DW2, there is no difficulty in moving the VIP
I
counter in order for the spotlights and down lights be directly on top. Mr. I
Lam did not comment on whether the VIP counter could be moved.
J J
K 61. There is no evidence from the Plaintiff to prove that the VIP K
counter could not be re-located. DW2 is the site supervisor of the
L L
Defendant who has attended to installing the VIP counters. I accept his
M evidence that it is not difficult to move this VIP counter to come under the M
spotlights. Prime facie, the position of the VIP counter to the spotlights
N N
would not be a ground for rebuilding the VIP counter. Even if the lightings
O direction could not be adjusted, possibly the only remedy required is to O
reset the lightings.
P P
Q 62. The Plaintiff also complains that the locks to the VIP counters Q
did not function. Mr. Lam confirmed that the lock could not function
R R
properly, but he had only checked a few of the locks. DW1 recalled there
S have been about 5 locks that could not work and they have replaced the S
same.
T T
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由此
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A A
B B
63. On the balance, I accept the evidence of Mr. Lam that the
C C
locks are not in working order. But this defect itself would not justify
D replacing the VIP counter. Appropriate damages should be awarded to the D
Plaintiff to replace the locks and I consider this as a defect in the VIP
E E
counters.
F F
64. The other complaint by the Plaintiff is in respect of the
G G
workmanship of the counter. They complain that the use of glass glue was
H in the below average standard as compared with similar item in other shops H
of the Plaintiff in China. It is also complained that the hairline stainless
I I
steel finish did not cover the bottom of the glass display counter. Mr. Lam
J considered this as defect. However if this is the only defect, surely I cannot J
agree with Mr. Lam that it justified replacing the VIP counters. Regarding
K K
the stainless steel cover for the base of the counter, Mr. Kwan rightly
L pointed out that according to the drawings, such would not provide. L
Accordingly, the Defendant has not in breach of the agreed designs and
M M
drawings.
N N
65. The witnesses have not explained the unsatisfactory glass
O O
glue that was supplied, and how it affects the structure. I am not convinced
P by the Plaintiff that this is an unsatisfactory workmanship. P
Q Q
rd
66. Ms. Yap also relied on the 3 defect list when the Defendant
R agreed to replace the VIP counter SC 001. I shall at this stage come to the R
question of the defect list.
S S
T T
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由此
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A A
B 67. It is not disputed that after the handover, the parties have B
returned to the GZ Shop to consider the rectification work required. DW1
C C
said in her evidence that the lists are revised after discussion. The
D Defendant has issued 5 defect lists. D
E E
68. The defect lists are evidence of the parties’ attempts to agree
F F
on defects to be rectified. It is obvious from the conduct of the parties that
G
there was no agreement at the end. Hence I cannot regard these as the G
agreed items to be rectified. And the Plaintiff has not relied on the defect
H H
lists in the pleading as any form of agreement from the Defendant to rectify
I
the works therein. In fact, the defects claimed are more extensive. Hence, I
at best, these are evidence to support the Plaintiff’s case of defective works.
J J
They have to be read together with the other evidence before me, including
K expert evidence and oral evidence of the Plaintiff’s witnesses and the K
Defendant’s witnesses.
L L
69. Having considered all the evidence, and on the balance, I am
M M
not convinced that the VIP counters are defective and have to be replace,
N and the only rectification is what I have found above on the locks. N
O O
70. The next item of defects that the Plaintiff complained is one
P of the glass covers of one VIP counter was broken. Both experts made no P
comment on this item. PW1 said in her evidence that the glass broke after
Q Q
working hour. There is no evidence as to the cause of the breakage. In the
R circumstances, the Plaintiff failed to prove this is a defect arising from R
unreasonable workmanship of the Defendant, and no damage would be
S S
awarded.
T T
U U
V V
由此
- 21 -
A A
B 71. Inside the VIP counter, the Plaintiff requested the Defendant B
to provide them with safety box. The Plaintiff claims that the dimension of
C C
the safety box was not in accordance with the specifications. Both experts
D are of the view that the actual size of safety box matched with the D
Defendant’s sketch faxed to the Plaintiff on 15 September 2006. They
E E
confirmed that there is no non-compliance to the specifications. I adopt the
F F
joint opinion of the experts. There is no defect on this alleged item.
G G
72. Jewellery trays had to be placed inside the VIP counters. It is
H H
the case of the Plaintiff that by reason of the shortening of the VIP counters
I
as aforesaid, the jewellery trays have to be replaced. I
J J
73. The Defendant said it is not required to provide the jewellery
K trays under the Quotation, which is not disputed. DW1 said the Defendant K
has provided the jewellery trays as a gesture of good view to assist the
L L
Plaintiff that the shop could be opened with the Mall. Accordingly, they
M should not be held liable. M
N N
74. The Plaintiff claims the cost for replacing all the trays. There
O is no comment by Mr. Lam. Mr. Kwan also comments that this is not an O
item in the contract. The Quotation expressly excludes this item. I agree
P P
that the supply of trays is not part of the Quotation, and the loss, if any, for
Q replacing the trays would not be a defect of works to be provided under the Q
Quotation. The Plaintiff is not entitled to claim any damage.
R R
75. Further, even if the trays cannot fit into the small counter, I
S S
thought all Plaintiff needed was to replace one tray for smaller size. The
T T
claim for replacing all the trays is unreasonable.
U U
V V
由此
- 22 -
A A
B B
76. The next item of defects is in relation to double-sided display
C C
cabinet. The main complaint is directed to the front glass panel.
D According to the contract, the glass should be made of black colour glass. D
According to the evidence of DW1, she admitted that they should supply
E E
black colour glass. Due to constraint of time, they have only provided
F F
transparent glass with a black paper backing. This created the effect of
G
black colour glass but they intended to replace it afterward. G
H H
77. There is no suggestion that the use of transparent glass was
I
approved by the Plaintiff. Accordingly, this must be a defect and should be I
replaced. DW1 complained that they were not allowed to return to rectify
J J
which I should deal with later.
K K
78. And in respect of the other complaint that there is only one
L L
iron earring for the front glass panel, this may be rectified at the same time
M with the replacement of the glass. The issue does rest on my subsequent M
consideration as to whether the Defendant was deprived of the opportunity
N N
to rectify the defects, and whether replacement of the cabinet is justified.
O O
79. It is not disputed that the Plaintiff supplied at least five films
P P
or slides for insertion in the super graphic light box. The Plaintiff claims
Q one was lost. According to Mr. Lam, the film has not been lost but Q
wrongly installed. I accept his evidence and the claim failed.
R R
S 80. The next item of defect is in relation to the super graphic light S
box. The main complaint by the Plaintiff is that the light box could not be
T T
U U
V V
由此
- 23 -
A A
B opened for replacement of the fluorescent tubes inside or to replace the B
film/slide inside.
C C
D 81. It is not disputed that, according to the initial drawings, the D
light box could be opened by lifting the front panel. Later, a supplemental
E E
drawing has been provided to the Plaintiff that the panel would be divided
F F
into three parts. The left and right panels are fixed and could not be opened.
G
Only the middle panel could be lifted and opened. Once the middle panel G
is lifted up, one could easily move the sliding boards holding the
H H
fluorescent tube at the left and right panel for replacement. And there
I
appears to be sufficient spacing for replacing all the films or slides placed I
inside the light box.
J J
K 82. According to the evidence of Mr. Lam, he had tried to open K
the light box, but he could not. He found there was no opening. It is the
L L
evidence of PW1 that they could not open the light box for replacement of
M the fluorescent tubes or slides. Clearly, a light box that could not be M
opened for replacement of the slide inside and to replace the fluorescent
N N
tube is defective, and may impose a danger.
O O
83. DW2 explained in his evidence that the middle part could be
P P
opened. He explained that there is a “bus track device” at the top. By
Q engaging the bus track, the middle part could be moved to one side and Q
enabling the Plaintiff to replace the fluorescent tubes and the slides.
R R
S 84. I would be surprised if a bus track open device had been S
installed, it could not be discovered by the expert Mr. Lam. DW2 has been
T T
U U
V V
由此
- 24 -
A A
B examined at length on how the device works. And with the assistance of B
the photograph in the reports, it is not clear how this bus track operates, or
C C
whether it exists at all. I am not convinced that the bus track has been built.
D D
85. Further, if it was the original design to flip open the light box,
E E
which appears to be a more simple and strict forward device, what is the
F F
reason for changing the opening to a bus track, which according to DW2 is
G
an expensive device. And there is no suggestion that this variation has G
th
been approved by the Plaintiff. And I add under that the 5 List, the
H H
Defendant agreed to rebuild the super graphic light box which supports the
I
complaint of the Plaintiff that the light box is defective. I
J J
86. In conclusion, I confound that the light box was defective.
K Alternatively, it is not build in accordance with the agreed design. This K
should be replaced by the Defendant.
L L
M 87. The next defective item is the full height logo light box M
cabinet. The Plaintiff complains that the Plaintiff’s logo film slide was
N N
missing. Further, there was no space provided for replacing the fluorescent
O tube and the logo film slide. The Plaintiff also complains that the O
workmanship of the edge was below standard and the wooden frame of the
P P
logo slide did not match with the original design.
Q Q
88. DW2 when gave evidence said the top of the cabinet could be
R removed for replacement of the fluorescent tube and the logo slide. He R
denies the loss of the slide.
S S
T T
U U
V V
由此
- 25 -
A A
B 89. As Mr. Kwan has not inspected the cabinet, he could not B
make any comment. Mr. Lam in his expert report states that the Plaintiff’s
C C
logo was missing. There was no space to replace the fluorescent tube and
D the logo slide. During cross-examination, Mr. Lam agreed that he had not D
examined the top of the cabinet.
E E
F 90. I accept the evidence of DW2 that an opening was provided at F
the top. In any event, I do not believe that the cabinet has to be replaced in
G G
total. Reading the photographs with the evidence of DW2, the design of
H having an opening at the top is workable. Hence, if an opening has not H
been provided, the top could be converted to have a flip door or removable
I I
door for replacing the fluorescent tubes or slide. Accordingly, the costs
J would be much lower. J
K K
91. The final complaint by the Plaintiff is that the full height
L computer cabinet had to be replaced if the full height logo light box cabinet L
has to be replaced. They are attached together and they could not remove
M M
or replace the full height logo light box without damaging the computer
N cabinet. Since I find against the Plaintiff for replacing the logo cabinet, N
this item of claim must fail.
O O
P 92. The Plaintiff claims that they suffered loss. For those items P
that I accept as damaged, and subject to my further discussion on whether
Q Q
there are recoverable damages, they should be assessed in accordance with
R the opinion of the experts on the reasonable cost. What the Plaintiff has R
actually spent is only a matter to be taken into account. Further, given my
S S
ruling that not all the items of defects as claimed by the Plaintiff had been
T T
U U
V V
由此
- 26 -
A A
B proved, I am not prepared to award the full amount of damages claimed. I B
would assess the loss according to the opinion of the experts.
C C
D 93. It is the Defendant’s argument that while they agreed that D
certain defects ought to be rectified, they are not liable for any damages for
E E
the following reasons. It is an implied term of the Quotation that the
F F
Plaintiff should not in any way hinder and/or prevent the Defendant from
G
carrying out and completing the Works. It is not disputed that the Plaintiff G
requested the Defendant to push ahead the completion date to 28
H H
September 2006. According to the evidence of DW2, which is not
I
disputed, the Defendant was instructed to stop all Works and was I
requested by the security guard of the Mall to leave the site on the evening
J J
of 28 September 2006.
K K
94. Further, the Defendant claims that it is an implied term of the
L Quotation that the Plaintiff should co-operate with the Defendant and L
provide them with reasonable time to rectify the defects. But the Plaintiff
M M
only agreed to allow them to have two nights to carry out all the
N rectification works as listed in the 5th List. It was unreasonable. And N
lastly, according to the Quotation, there would be a 1-month maintenance
O O
period. The Plaintiff has denied them the right to maintain and/or rectify
P the Works within this month. P
Q Q
95. Mr. Yeung refers me to the judgment in Ying Ho Company
R Limited v. The Secretary for Justice FACV 17 of 2003, when Mr. Justice R
Bokhary approved the principle that the court is often willing to imply a
S S
term that the parties shall co-operate to ensure the performance of their
T T
bargain. I believe there should not be an argument to this principle.
U U
V V
由此
- 27 -
A A
B B
96. The argument that the Plaintiff should not prevent the
C C
Defendant from completing the Works is grounded on an implied terms.
D But it is not disputed that the time for the grand opening is set by the Mall. D
By co-operation, it must be a mutual obligation. The Defendant would
E E
equally be obliged to assist the Plaintiff to hit the deadline set by the Mall.
F If the Works or part thereof cannot be completed because of the direction F
to stop working, it may be a defence to not having completed all Works on
G G
time. But it would not be a ground for the Defendant to say that they are
H entitled to present defective workdone or goods. This is not helpful in this H
case as the complaint is on goods and work done completed and delivered.
I I
97. Mr. Yeung also refers me to the cases of Pamax Ltd. v. Cross
J J
Max Interiors Ltd. [2008] HCA 218/2002. As commented by Deputy
K judge Gill, “fundamental to the obligation of a claimant in such K
circumstances is that he must mitigate his loss. In the context of
L L
construction contracts this invariably means giving the defaulting
M M
contractor the chance to remedy the faulty workmanship; see Chitty on
N
Contracts, 29th edition, 37-199 ....” N
O 98. The judgment was followed by Deputy Judge Carlson in O
Shun Fai Decoration Handicraft Co. Ltd. v. F & F Investment Ltd.
P P
[2009] HCA 1588/2006 and said the Defendant could not be held to be in
Q breach for defective workmanship in circumstances where it had been Q
denied the opportunity to put right items which required further work.
R R
S 99. Ms. Yap did not address the point directly. However she S
refers to the evidence of DW1 who said the remedial work would take 20
T T
U U
V V
由此
- 28 -
A A
B preparation days and 14 working days. And DW2 said the remedial work B
would take 10 working days. It shows the scale of rectification required. I
C C
believe Ms. Yap was submitting that there was no substantive completion
D which is a matter I would consider further in respect of the counterclaim. D
E E
100. The defence of a reasonable chance for the Defendant to
F F
rectify the defects is nothing more than a claim that the Plaintiff has failed
G
to mitigate his loss. (See paragraph 129 of the judgment of Deputy Judge G
Gill in Pamax Ltd.’s case.) Since this is a matter of mitigation, the
H H
question is whether the failure on the part of the Plaintiff caused or
I
contributed to the loss. Even if the Plaintiff may have been unco-operative I
in some aspects, loss not created or caused by such failure would still be
J J
recoverable. I have to consider each item and I do not agree that a board
K bush approach to disallow all the damages claim should be appropriate. K
L 101. And having heard all the evidence, save for some items when L
the Defendant admits that they took temporary measure to hit the deadline,
M M
such as the display cabinet, it is the case of the Defendant that they have
N been completed the Works delivered. N
O O
102. The main complaint of unreasonableness, or denial for a fair
P
chance to rectify all loss is the request of the Plaintiff for the Defendant to P
complete all Works within 2 nights. In any event, while I accept that the
Q Q
Plaintiff may be unreasonable in only allowing 2 nights, but from the
R evidence DW2, the Defendant had returned to the site to carry out some R
remedial works. In considering if this request is unreasonable, I would
S S
take into account other opportunity given to the Defendant to carry out
T remedial work. T
U U
V V
由此
- 29 -
A A
B B
th
103. I note that the Defendant in the 5 defect list requested 14
C C
working days on site. Ms. Yap submits that the time indicated a substantial
D rectification project to be undertaken. I am also surprised by the length of D
time required, when comparing with the items of work suggested in the 5th
E E
defect list. Mr. Kwan assessed the time required to be 4-5 days. It only
F shows that the request of the Defendant is unreasonable. F
G 104. I have to bear in mind that the GZ Shop has started their G
business. And substantive work would affect the business. 2 nights,
H H
together with earlier chance for rectification, and taking into account only
I a few rectifications are necessary as stated in the 5th defect list, I cannot say I
that the Plaintiff is unreasonable. The VIP counter would be built before
J J
hand, and it must be a matter of fixing and setting up. Mr. Yeung submits
K that the new contractor was allowed 4 nights to complete the job. But they K
have a longer list of item to complete. Balancing all the evidence before
L L
me, I am not convinced that the Plaintiff has failed to offer a reasonable
M M
opportunity for the Defendant to return to work or to mitigate the loss.
N N
105. I now proceed to assess the damages.
O O
106. There are 4 items of defects which I found in favour of the
P Plaintiff. First, for the replacement of locks for all the VIP counters. It is P
unfortunate that I do not have any proposed figure from the experts. I do
Q Q
not even have the number of locks. Judging from the photographs, there
R would be about 15 locks. They are not special one. I assess a sum of R
HK$1,500.00 for replacing the locks.
S S
T T
U U
V V
由此
- 30 -
A A
B 107. For the double side display cabinet, the front clear glass panel B
is not built according to the design. For replacing this cabinet, Mr. Lam
C C
said the costs is HK$7,400.00 x 130% (for working at night) =
D HK$9,620.00. Messrs. Loong Shing (the contractor who was later D
engaged by the Plaintiff to carry out the remedial work) charged
E E
RMB¥7,600.00 for the work, which is about HK$9,047.61 (using an
F F
exchange of 0.84).
G G
108. The argument would be that replacing the glass panel would
H be sufficient to rectify the loss. It means additional workdone to remove H
the glass panel without doing any damage to other parts of the cabinet,
I I
before the proper glass panel could be installed. I do nto believe it would
J make much difference for a new cabinet made. I award HK$9,047.00 to J
the Plaintiff for this defect.
K K
109. For the super graphic light box, Mr. Lam assesses the costs at
L L
HK$22,500.00 x 130% (for working at night) = HK$29,250.00. Messrs.
M M
Loong Shing charged RMB¥11,000.00 for replace the light box. I award
N
HK$13,095.00 to the Plaintiff for this defect (again using the exchange rate N
of 0.84).
O O
110. For the glass panel, the Defendant failed to provide 5 sq.
P P
meters. The unit price in the Quotation is HK$550.00 per sq. meter. The
Q loss to the Plaintiff is assessed at HK$2,750.00. Q
R R
111. The Defendant counterclaims for the balance of the contract
S price. According to the Quotation, 50% of the price has to be paid on job S
confirmation, which has been paid. 40% of the price has to be paid upon
T T
U U
V V
由此
- 31 -
A A
B completion of half of the work. And the balance is paying 7 days after job B
completion.
C C
D 112. There can be no doubt that the work handover is more than D
half of the Works. I see no defence to the 40%. And given the background
E E
aforesaid, the job is completed on 28 September 2006. Ms. Yap argues
F that in light of the substantive remedial work suggested in the fourth and F
fifth defect lists, there is no substantial completion. I cannot agree.
G G
113. I also refer to the judgment of Judge Newey QC in Emson
H H
Eastern Ltd (in receivership) v. EME Developments Ltd (1991) 55 BLR
I 114, which has been quoted by Deputy Judge Gill in his above judgment – I
J J
“I think that probably the most important background fact which
I should keep in mind is that building construction is not like the
K manufacture of goods in a factory. The size of the project, site K
conditions, use of many materials and employment of various
L types of operatives make it virtually impossible to achieve the L
same degree of perfection as can a manufacturer. It must be a
rare new building in which every screw and every brush of paint
M is absolutely correct.” M
N 114. I have gone through each item claimed by the Plaintiff to be N
defective. Other items of work would be assumed to be properly done and
O O
delivered. Indeed, there is substantial completion and the remedy to the
P Plaintiff is at damages. P
Q Q
115. Ms. Yap also submits that the Plaintiff has terminated the
R R
contract. I have ruled earlier that it has not been pleaded and the Plaintiff
S
could not rely on this as the reason for not paying the balance. S
T T
U U
V V
由此
- 32 -
A A
B 116. Further, on termination, the Plaintiff relied on the evidence of B
Mr. Imthanavanich Visuit (“PW2”), a shareholder director of the Plaintiff.
C C
PW2 said in a meeting with the DW3 on 15 November, 2006, he told DW3
D that if the Defendant refuses or could not rectify the defects, the Plaintiff D
would engage another contractor but the Defendant would not be entitled
E E
to the balance of the contract price. DW3 rejected his suggestion. And
F F
even on his evidence, it is not clear that he has terminated the contract.
G
And in fact, according to PW2, after the meeting, the staff of the Plaintiff G
has requested the Defendant to carry out rectification work. It clearly
H H
shows that the Plaintiff has not treated the Quotation or contract with the
I
Defendant as being terminated. I
J 117. In conclusion, I found that the Plaintiff is liable to pay the J
balance of the contract price.
K K
118. The amount of damages should be set off against the balance
L L
of contract price –
M M
Balance of Contract Price HK$82,354.50
N Less N
Locks HK $1,500.00
O Double side Cabinet HK$9,047.00 O
Super Graphic Signbox HK$13,095.00
P
Glass Panel HK$2,750.00 P
Balance
HK$55,962.50
Q Q
119. There be interest on the judgment sum of HK$55,962.50 from
R R
date of writ until judgment at 8% p.a. and thereafter at judgment rate until
S payment. The Plaintiff is successful in part of its claim which is well S
within the jurisdiction of the Small Claim Tribunal. And the Defendant
T T
U U
V V
由此
- 33 -
A A
B has succeeded in its Counterclaim. While it is usual to order the Plaintiff to B
have costs of the action and the Defendant to have costs of the
C C
counterclaim, I take into account the matter aforesaid and give an order nisi
D that the Defendant do have 75% of the costs of the action (including both D
claim and counterclaim) with certificate for counsel. The order nisi shall
E E
become absolute within 14 days and the costs shall be taxed if not agreed.
F F
G G
H H
I I
J J
K ( R. Yu ) K
Deputy District Judge
L L
M M
Miss Ophelia Yap, instructed by M/s W. K. To & Co., for Plaintiff.
N
Mr Stephen Yeung, instructed by M/s Huen & Partners, for Defendant. N
O O
P P
Q Q
R R
S S
T T
U U
V V
PINK BOX LTD v. HENG WAH (HONG KONG) DECORATION CO LTD
由此
A A
B DCCJ 4302/2008 B
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CIVIL ACTION NO. 4302 OF 2008
F
-------------------- F
BETWEEN
G G
PINK BOX LIMITED Plaintiff
H and H
I HENG WAH (HONG KONG) Defendant I
DECORATION CO. LTD.
J J
--------------------
K DCCJ 4545/2008 K
L L
IN THE DISTRICT COURT OF THE
M HONG KONG SPECIAL ADMINISTRATIVE REGION M
CIVIL ACTION NO. 4545 OF 2008
N N
--------------------
O BETWEEN O
HENG WAH (HONG KONG) Plaintiff
P P
DECORATION CO. LTD.
Q and Q
R PINK BOX LIMITED Defendant R
S -------------------- S
(Consolidated pursuant to the Order made by Master R. Lai
T T
Of the District Court in Chambers dated 28th November 2008)
U U
V V
由此
- 2 -
A A
B B
Coram : Deputy District Judge R. Yu in Court
C C
Date of hearing : 24-26, 29 November 2010 and 20 December 2010
D Date of handing down Judgment : 29 April 2011 D
E E
JUDGMENT
F F
G 1. This is a dispute arising from a construction contract. G
H H
2. The Plaintiff (Pink Box Limited) is and was at all material
I times a limited company carrying on the business of a retailer of jewellery. I
It has a number of shops in Hong Kong and China. In 2006, the Plaintiff
J J
was to start a new shop in 廣州市天河區廣百中怡店二層 (“the GZ
K K
Shop”). 廣百中怡店 (“the Mall”) is a department store and the GZ Shop
L would be a section thereof. L
M M
3. The Plaintiff engaged the Defendant (Heng Wah (Hong Kong
N Decoration Co. Ltd.) to design and build the GZ Shop. It is the pleaded N
case of the Plaintiff that the agreement is contended in a quotation no. hw
O O
(hk) q260706-02 (rev3) dated 15 September 2006 issued by the Defendant
P to the Plaintiff (“the Quotation”). The Plaintiff has endorsed its agreement P
when its employee/agent, Choy Chui Yin (“PW1”) amended the quotation
Q Q
and signed thereon on 18 September 2006.
R R
4. Details of the work to be done have been set out in the
S S
Quotation (“the Works”) and the Plaintiff claims that the Defendant has
T T
U U
V V
由此
- 3 -
A A
B agreed to carry out the Works at the contract price of HK$164,709.00. B
This is admitted by the Defendant.
C C
D 5. The Plaintiff also claims that it is an express or, alternatively, D
implies term of the Quotation, or alternatively, the contract for the
E E
decoration/renovation of the GZ Shop as evidenced by the Quotation that
F F
G
(a) the Defendant shall carry out the Works in all manners G
and respects in compliance with the specifications,
H H
requirements and measurements as set out and laid
I
down by the Plaintiff. I
J J
(b) the Defendant shall carry out and complete the Works
K in all manners and respects in good or reasonable or K
merchantable quality, finishing and condition in
L L
compliance with and in accordance with the
M specifications and especially the requirement of the M
Plaintiff in using the Premises for operating a fashion
N N
jewellery shop.
O O
(c) the Defendant shall ensure that the furniture, fitting and
P partition built and set up by the Defendant at the P
Premises shall be reasonably and practically useable
Q Q
and workable and fit for the specific use and purpose of
R the Plaintiff in using the Premises as a fashion R
jewellery shop.
S S
T T
6. The above implied terms are denied by the Defendant.
U U
V V
由此
- 4 -
A A
B B
7. It is the Plaintiff’s case that some of the Works completed by
C C
the Defendant are defective as particularized in the Amended
D Consolidation Statement of Claim. The Plaintiff has to engage another D
contractor to rectify the defects and suffers loss. The Plaintiff claims
E E
against the Defendant for the sum of RMB¥192,750 being the cost of
F F
engaging another contractor as damages it suffered.
G G
8. The Defendant denies that the Works completed are defective
H H
as claimed by the Plaintiff or at all.
I I
9. Further, the Defendant claims that on 28 September 2006, it
J J
was instructed by the Plaintiff to stop all the Works and the site of GZ Shop
K was returned to the Plaintiff for the Plaintiff to arrange for the grand K
opening of the Mall on 1 October 2006.
L L
M 10. As an alternative defence, the Defendant claims that they M
were prevented from completing all the Works. The witness of the
N N
Defendant claims that most of the Works are completed and handed over to
O the Plaintiff on 28 September 2006. They agree that some structures are O
temporary measure for the grand opening and they would return later to
P P
“rectify” such temporary measures. But they have not been allowed to
Q return to work after the grand opening of the Mall and should not be liable Q
to the Plaintiff for any loss.
R R
11. In the Amended Consolidated Defence and Counterclaim, the
S S
Defendant relies on the following express term of the Quotation:-
T T
U U
V V
由此
- 5 -
A A
B • Payment Terms: a. 50% deposit upon job B
confirmation
C C
nd
b. 40% 2 payment upon
D D
completion half of the site
E
works E
c. 10% balance after 7 days
F F
upon job completion
G • Maintenance service at quotation within one month upon G
job completion
H H
I 12. The Defendant also claims that the Quotation has the I
following implied terms:-
J J
K (a) The Plaintiff shall not prejudice the Defendant’s rights to K
receive the payments for the Works done.
L L
M (b) The Plaintiff shall as soon as reasonable pay the M
Defendant for the Works done.
N N
(c) The Plaintiff shall not in any way hinder and/or prevent
O O
the Defendant from carrying out and completing the
P Works. P
Q Q
13. It is not disputed that the Plaintiff has only paid
R R
HK$82,354.50 being 50% of the price. The Defendant counterclaims the
S
balance of HK$82,354.50. S
T T
U U
V V
由此
- 6 -
A A
B 14. In the Consolidated Reply & Defence to Counterclaim, the B
Plaintiff claims that by reason of the matters pleaded in the Amended
C C
Consolidated Statement of Claim and in the Consolidated Reply, the
D Defendant is not entitled to claim the said balance of HK$82,354.50 or any D
damages.
E E
F F
15. In her opening, Ms. Yap, counsel for the Plaintiff submits that
G
the completed work is so badly done that the Plaintiff is entitled to treat G
such breach as a fundamental breach and has accepted the repudiation on
H H
11 October 2006 at a meeting between the Plaintiff and the Defendant,
I
when Mr. Visuit of the Plaintiff (“PW2”) notified the Defendant that their I
service is no longer required. The Quotation is then terminated.
J J
K 16. But repudiation and the particulars as outlined by Ms. Yap K
have not been pleaded in the Plaintiff’s pleading. After all the factual
L L
witnesses have given evidence, Ms. Yap seeks to re-amend the Statement
M of Claim. There is no justification of such a late application which I M
refused.
N N
O 17. Ms. Yap agreed with Mr. Yeung, counsel for the Defendant O
that the following are the issues in dispute:-
P P
Q a. What are the contractual agreements? Q
R R
b. What would be the consequences of a push to finish the
S work on 28 September 2006? S
T T
U U
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由此
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A A
B c. Did the Plaintiff hinder or prevent the Defendant from B
finishing the Works?
C C
D d. What are the defects, if any? D
E e. What are the experts’ opinions on workmanship and E
costs for rectification?
F F
G
f. Is the Plaintiff entitled to the sum of ¥192,750, or any G
part thereof, as pleaded in the Amended Statement of
H H
Claim?
I I
g. Is the Defendant entitled to set off and/or counterclaim
J HK$82,354.50 as the balance of the contract sum? J
K K
18. It is not disputed that the express terms of the contract were
L contained in the Quotation. One of the issues in question is the agreed L
completion date. The following Remarks of the Quotation would be
M M
relevant to consider if there is an agreed completion date:-
N N
Remark 2 - Site work will be started after deposit received.
O O
P Remark 4 - 20 working days for preparation. P
Q Q
Remark 5 - Match remarks item 4, Anticipate 14 working
R days upon sign back quotation to job completion. R
(To be arranged and confirmed)
S S
T T
U U
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由此
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A A
B 19. Prima facie, these Remarks are terms of the contract between B
the parties. This is disputed by the Plaintiff.
C C
D 20. The first factual witness for the Plaintiff is the said Madam D
Choy Chui Yin (“PW1”), the general manager of the Plaintiff. According
E E
to the evidence of PW1, she has an oral agreement with the Defendant that
F F
the Defendant should commence their work on 14 September 2006, and to
G
complete the work on or before 29 September 2006, before signing the G
Quotation. She said the Remarks have been replaced by the oral
H H
agreement.
I I
21. When PW1 was cross-examined by Mr. Yeung, she said she
J J
reached the agreement with Madam Lai Ka Po of the Defendant (“DW1”),
K when she contacted the Defendant in July 2006. And she has also K
mentioned to Mr. Ho Chun Yu of the Defendant (“DW3”) that the shop
L L
must be completed before 1 October 2006.
M M
22. I note that PW1 signed the Quotation for the Plaintiff. Before
N N
she signed, she has made some amendments to the Quotation. Mr. Yeung
O put to PW1 that if there is such an oral agreement, why she has not O
amended the Quotation to that effect before she signed. PW1 said it is her
P P
mistake. I do not believe that such an important term could be forgotten
Q when she has paid attention to the detail of the Quotation by making the Q
amendment.
R R
S 23. Madam Cheung Fung Kwan Anna of the Plaintiff (“PW3”) S
also said in her evidence that there is an agreement with Defendant to
T T
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由此
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A A
B complete all works on or before 29 September 2006. When being B
cross-examined, she agreed that the Defendant has not promised to
C C
complete the work before 29 September 2006, but they agreed to match (配
D D
合) the time for the said grand opening of the Mall.
E E
24. DW1 said in her evidence that the completion date calculated
F F
according to the Remarks 4 & 5 should be 27 October 2006. On
G cross-examination she said she did not know the GZ Shop had to be opened G
on 1 October 2006. She agreed that the Plaintiff had requested for
H H
completion on 29 September 2006. She also said the Plaintiff had
I requested them to push ahead the completion date to 28 September 2006. I
She had not agreed to push ahead to 28th, but only promised to try.
J J
K 25. DW3 also said in evidence that the completion should be K
about 20 days for preparation, and 14 days for the construction work, as
L L
stated in the Remarks of the Quotation. He agreed that in July, he prepared
M the work schedule showing that the Works could be completed before 1 M
October 2006. Later, the plans had been amended and the Works could not
N N
be completed before the National Day.
O O
26. The Quotation is the written contract for the renovation work.
P P
The parties are bound by the terms therein set out. Having heard all the
Q Q
evidence, I am not convinced that there is an oral agreement on the
R
completion date that overrides the Quotation. The best of PW1’s evidence R
is that she has “agreed orally” with DW1 when she contacted the
S S
Defendant. I do not believe there could be any agreement reached at such
T T
U U
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由此
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A A
B an early stage, when the other terms of the contract had not been finalized. B
It is at best a matter being discussed.
C C
D 27. Further, according to the evidence, there were exchanges of D
e-mail before DW1, and PW1 & PW3. Proposed work schedule has been
E E
submitted. The Plaintiff or PW1 or PW3 has not raised any objection to
F F
the work schedule. And the work schedule sent on 14 August 2006 shows
G
a completion date on 20 October 2006. G
H H
28. I also refer to a series of e-mail between DW1 and PW1 on 20
I
September 2006. DW1 clarified with PW1 that the handover date is not 28 I
September 2006. But the Defendant would try their best to finish the site
J J
work around 28 September 2006. And PW1 has no objection to this
K comment by DW1 in her e-mail in reply. K
L L
29. Ms. Yap tries to argue the 14 working days as stipulated in the
M Quotation is just an estimate. And the Defendant has started the M
preparation work at the earliest in July (according to the evidence of DW1).
N N
There is no meeting of mind for the provision of “20 working days for
O preparation” in the Quotation. O
P P
30. PW1 has amended the Quotation before she returned it to the
Q Defendant. If she disagrees with any of the Remarks, or if there is the Q
alleged oral agreement on completion, I see no reason why she would not
R R
amend the remarks before she returns the Quotation. I am not convinced
S that there is no meeting of the mind for the above terms. S
T T
U U
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由此
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A A
B 31. In conclusion, I found that the completion date should be B
fixed according to the terms in the Quotation, and it would be after the
C C
National Day. Using the last schedule presented to the Plaintiff by DW1,
D the completion date has been advanced to 9 October 2006. D
E E
32. The completion date is only relevant to the argument of the
F F
Defendant that, as the completion date was push ahead to 28 September
G
2006, some works “completed” were temporary measure and they should G
be allowed to return to rectify such works. If the completion date is on 29
H H
September 2006, as alleged by PW1, the difference is only 1 day. But if
I
the completion is sometime in October, the change would be more I
significant.
J J
K 33. I should come to consider the evidence on the defects. K
According to paragraph 6 of the Amended Defence and Counterclaim, the
L L
Plaintiff set out 11 items of defects/damages it discovered after completion.
M The burden rested on the Plaintiff to prove that these are defects and what M
are the reasonable costs for carrying out remedial work.
N N
34. The evidence relied on by the Plaintiff could be divided into
O O
two main parts. The first part of evidence is from factual witnesses and
P documents. PW1 and PW3 gave evidence on the items of defects. Further, P
after the Works has been handed over, there are 5 defect lists prepared by
Q Q
the Defendant and submitted to the Plaintiff. For the first 4 lists, they are
R agreed by the Plaintiff, and the Plaintiff relies on these lists to show the R
defective work done. But they disagreed with the contents of the 5th defect
S S
list, as the Plaintiff claims that certain items in the earlier defect lists have
T T
not been included.
U U
V V
由此
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A A
B B
35. The second part of the evidence comes from the experts.
C C
They comment on the existence of any defects, and the costs of repair.
D There are two experts in this case, Mr. Martin Lam (“Mr. Lam”) engaged D
by the Plaintiff and Mr. Terence Kwan (“Mr. Kwan”) engaged by the
E E
Defendant. Mr. Lam prepares his report dated 13 July 2007 and he has the
F opportunity to carry out site inspection. When Mr. Kwan prepares his F
report in October 2009, the defects in the GZ Shop had been rectified and
G G
he has no opportunity to examine them.
H H
36. For convenience, I would refer to the relevant evidence of the
I I
witnesses (both factual and expert) as I consider each defect as claimed by
J the Plaintiff. J
K 37. First item of defects is in respect of wooden board partition. It K
is claimed by the Plaintiff in the Amended Consolidated Statement of
L L
Claim that the wooden frame of the single side wooden board partition
M M
could not reach the ground to match at the same level of the glass panel. It
N
is the evidence of PW1 that the partition is not wide enough and the N
Plaintiff has to engage contractor to extend the partition. The extension
O O
was support by a wooden frame, which could not reach the ground and
P
could not match and/or support the partition. Her evidence is different P
from the pleaded case of the Plaintiff and is not helpful.
Q Q
38. DW1 said this item was not stated in any of the defect lists.
R R
39. Both experts agreed that this defect had not been stated any of
S S
the defect lists and no rectification is necessary since there is no safety or
T T
functional problems resulted. I accept the evidence of the expert and found
U U
V V
由此
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A A
B that no rectification would be required and hence no damages should be B
awarded.
C C
D 40. The second items of defects are in respect of the mirror D
panels. The Plaintiff had three complaints. Firstly, according to the
E E
evidence of PW1 and Mr. Lam, the left and middle glass panels of the
F F
mirror on wooden board partition had spot stains and the right glass panel
G
had oil paint stains. PW1 said they could not remove the stains. As the G
Plaintiff is a jewellery shop selling expensive items, all settings must be of
H H
high standard. Hence they have to replace the mirror panel. Mr. Lam was
I
of the view that the stains could not be removed. He also recommended a I
replacement of the glass panel.
J J
41. Mr. Kwan commented that this is a minor defect that could
K K
easily be rectified.
L L
42. A photograph of the stains was produced in the report of Mr.
M M
Lam. It shows that the stains are very small in size. They are just three
N very minor dots of less than the tip of a ball pen in size. They are not at all N
obvious. I fail to see how they could render the mirror defective. Ms. Yap
O O
tried to explain that the Plaintiff is a jewellery shop and any defect cannot
P be tolerated. Accepting that the Plaintiff is a jewellery shop, I am not P
convinced that such minor defects would in any way affected the overall
Q Q
image of the shop. I found this a minor defect and I do not consider the
R recommendation of replacing the mirror reasonable. I found that no R
remedial work would be required and no damages is allowed.
S S
T T
U U
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由此
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A A
B 43. The second complaint on the mirror panel is there are three B
nails found on top of the glass panel. Both experts agree these are minor
C C
defects. And Mr. Tsui Kang Wu of the Defendant (“DW2”) in evidence
D confirms they have been removed and I accept his evidence. No further D
work is required and no damage would be awarded.
E E
F F
44. The third complaint is in respect of the size of the mirror panel.
G
The overall size of the mirror is only 9 sq. meters while according to the G
Quotation, the mirror panel is 14 sq. meters. Both experts confirmed that
H H
this is a minor defect.
I I
45. DW2 explained that while the contract provided that the
J J
minor is of 14 sq. meters in size, this is an estimation and subject to the
K actual measurement on site. K
L L
46. In most of the construction cases, there could be minor
M variation of size due to limitation at the construction site. Ms. Yap submits M
that DW2 confirmed that they have not informed the Plaintiff of the
N N
variation in size. This means the Plaintiff has not agreed to the variation.
O This entitled the Plaintiff to claim damages for replacing the mirror. O
P P
47. I agree with Ms. Yap that the variation has not been agreed.
Q But I do not agree that the mirror panel has to be replaced. Ms. Yap would Q
be corrected if this is one piece of mirror. But this is a mirror panel. It is
R R
possible to extend the panel. This item is item 1 in the agreed defect lists,
S which the Defendant agreed to extend the mirror panel by 1 meter. S
T T
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由此
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A A
B 48. Accordingly, this is a defect in that 5 sq. meters of mirror B
panel has not been provided to the Plaintiff. Unfortunately I have no
C C
evidence on the costs of extending the mirror panel by 5 sq. meters as the
D remedy suggested by Mr. Lam is on replacement. In the alternative, the D
Defendant should not be entitled to the price of the mirror panel not
E E
supplied and I could assess the loss to the Plaintiff by adjustment in the
F F
price. I would come to this point on assessment of damages
G G
49. The third defect relates to spotlights and down lights. It is the
H H
case of the Plaintiff that the total number of the spotlights for the display
I
cabinet exceeded the specifications and were not functioning due to I
overheating. According to the joint opinion of the 2 experts, there is no
J J
conclusive evidence to show that there is overheating of the installation.
K And the relevant drawing showed that 12 spotlights are specified to be K
installed. There is no non-compliance to the specifications. I adopt the
L L
opinion of the experts and found that there is no non-compliance or defects
M with this complained item. M
N N
50. In respect of the spotlights and down lights, the Plaintiff
O further complains that the transformers provided by the Defendant were O
not approved by the management company of the Mall. As a result, they
P P
had to acquire the appropriate transformers from the management
Q company and they had paid the costs. It is the evidence of PW1 that the Q
installation of the transformers as supplied by the Defendant was stopped
R R
by the management company due to overheating and absence of CCC
S Certificate, a form of quality certificate used in China. PW1 said DW1 S
agreed on spot to be responsible for the costs.
T T
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由此
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A A
B B
51. It is the evidence of DW1 that the Defendant has provided
C C
copies of the CCC Certificate to the Plaintiff and it is for the Plaintiff to
D provide the Certificate to the Shopping Mall. She knew that the D
management company rejected the transformers but she denies having
E E
agreed to bear the costs. She said the Plaintiff agreed to buy and provide
F F
the transformers themselves.
G G
52. It is also the evidence of DW2 that they had supplied copies of
H the CCC Certificate to the Plaintiff. DW2 also said they must have the H
CCC Certificate, or otherwise they would not be allowed by the
I I
management company to bring the transformers into the Mall.
J J
53. The burden rests on the Plaintiff to prove that the transformers
K K
do not have CCC certificate and/or they are not in accordance with the
L specification required by the Mall. I have no evidence from the L
management company of the Mall. The only evidence came from PW1
M M
and she could not explain the problem with the transformers. Mr. Lam
N could not verify whether the transformers had been approved by the N
Plaintiff or not. Mr. Kwan opines that the Plaintiff is responsible for his
O O
own choice of material. He also noticed from the correspondence between
P the Plaintiff and the Defendant that the Defendant had supplied copies of P
the CCC Certificate for the lighting equipment used to the Plaintiff in one
Q Q
of its fax dated 20 September 2006. He confirmed that it is not a
R non-compliance. R
S S
54. On balance, there is no evidence to support the claims that the
T T
transformers supplied by the Defendant do not comply with the
U U
V V
由此
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A A
B requirement of theMall, or that they are defective. Further, if the B
Defendant agreed to pay for the transformers, there is no explanation why
C C
the Plaintiff paid for the transformers in the first place. I am not convinced
D that there is any agreement for the Defendant to pay the costs. I do not D
award any damages for purchase of transformers from the management
E E
company.
F F
G
55. The fourth item of defects as pleaded in paragraph 6 of the G
Amended Statement of Claim relate to the VIP service counters. There are
H H
a number of defects complained of by the Plaintiff and they asked for
I
replacing the counters. I
J 56. PW1 complains that the length of the VIP service counter was J
shorter than the approved drawings. According to Mr. Kwan, for both VIP
K K
counters, the length was shorter than the drawings by about 100 mm.
L L
57. It is the evidence of DW1 that she had informed the Plaintiff
M M
of the change which was necessary because the corridor was too narrow.
N She also referred to an e-mail dated 16 September 2006 to PW1 which N
attached a drawing of the shop layout, when it was written in Chinese that
O O
the corridor is only 480 mm in width. PW1 denied any agreement. But
P there is no evidence that she rejected the drawings. P
Q Q
58. I accept the evidence of DW1 that she had been brought to the
R attention of the Plaintiff the width of the corridor and informed PW1 any R
changes required. I can safely infer that the variation has been agreed by
S S
the Plaintiff. After all, the variation is a minor one.
T T
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由此
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A A
B 59. The main complaint by PW1 on the construction of the VIP B
service counter is the position of the VIP service counter from the
C C
overhead spotlights and down lights. It was built closer to the super
D graphic light box and as a result, the spotlights and down lights could not D
be directly on top of the VIP counters, and could not focus on the jewellery
E E
displayed inside the counter. This was confirmed by Mr. Lam in his report.
F F
And Mr. Kwan did not raise any observation as he had not seen the position
G
of the VIP counters. G
H H
60. According to DW2, there is no difficulty in moving the VIP
I
counter in order for the spotlights and down lights be directly on top. Mr. I
Lam did not comment on whether the VIP counter could be moved.
J J
K 61. There is no evidence from the Plaintiff to prove that the VIP K
counter could not be re-located. DW2 is the site supervisor of the
L L
Defendant who has attended to installing the VIP counters. I accept his
M evidence that it is not difficult to move this VIP counter to come under the M
spotlights. Prime facie, the position of the VIP counter to the spotlights
N N
would not be a ground for rebuilding the VIP counter. Even if the lightings
O direction could not be adjusted, possibly the only remedy required is to O
reset the lightings.
P P
Q 62. The Plaintiff also complains that the locks to the VIP counters Q
did not function. Mr. Lam confirmed that the lock could not function
R R
properly, but he had only checked a few of the locks. DW1 recalled there
S have been about 5 locks that could not work and they have replaced the S
same.
T T
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由此
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A A
B B
63. On the balance, I accept the evidence of Mr. Lam that the
C C
locks are not in working order. But this defect itself would not justify
D replacing the VIP counter. Appropriate damages should be awarded to the D
Plaintiff to replace the locks and I consider this as a defect in the VIP
E E
counters.
F F
64. The other complaint by the Plaintiff is in respect of the
G G
workmanship of the counter. They complain that the use of glass glue was
H in the below average standard as compared with similar item in other shops H
of the Plaintiff in China. It is also complained that the hairline stainless
I I
steel finish did not cover the bottom of the glass display counter. Mr. Lam
J considered this as defect. However if this is the only defect, surely I cannot J
agree with Mr. Lam that it justified replacing the VIP counters. Regarding
K K
the stainless steel cover for the base of the counter, Mr. Kwan rightly
L pointed out that according to the drawings, such would not provide. L
Accordingly, the Defendant has not in breach of the agreed designs and
M M
drawings.
N N
65. The witnesses have not explained the unsatisfactory glass
O O
glue that was supplied, and how it affects the structure. I am not convinced
P by the Plaintiff that this is an unsatisfactory workmanship. P
Q Q
rd
66. Ms. Yap also relied on the 3 defect list when the Defendant
R agreed to replace the VIP counter SC 001. I shall at this stage come to the R
question of the defect list.
S S
T T
U U
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由此
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A A
B 67. It is not disputed that after the handover, the parties have B
returned to the GZ Shop to consider the rectification work required. DW1
C C
said in her evidence that the lists are revised after discussion. The
D Defendant has issued 5 defect lists. D
E E
68. The defect lists are evidence of the parties’ attempts to agree
F F
on defects to be rectified. It is obvious from the conduct of the parties that
G
there was no agreement at the end. Hence I cannot regard these as the G
agreed items to be rectified. And the Plaintiff has not relied on the defect
H H
lists in the pleading as any form of agreement from the Defendant to rectify
I
the works therein. In fact, the defects claimed are more extensive. Hence, I
at best, these are evidence to support the Plaintiff’s case of defective works.
J J
They have to be read together with the other evidence before me, including
K expert evidence and oral evidence of the Plaintiff’s witnesses and the K
Defendant’s witnesses.
L L
69. Having considered all the evidence, and on the balance, I am
M M
not convinced that the VIP counters are defective and have to be replace,
N and the only rectification is what I have found above on the locks. N
O O
70. The next item of defects that the Plaintiff complained is one
P of the glass covers of one VIP counter was broken. Both experts made no P
comment on this item. PW1 said in her evidence that the glass broke after
Q Q
working hour. There is no evidence as to the cause of the breakage. In the
R circumstances, the Plaintiff failed to prove this is a defect arising from R
unreasonable workmanship of the Defendant, and no damage would be
S S
awarded.
T T
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由此
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A A
B 71. Inside the VIP counter, the Plaintiff requested the Defendant B
to provide them with safety box. The Plaintiff claims that the dimension of
C C
the safety box was not in accordance with the specifications. Both experts
D are of the view that the actual size of safety box matched with the D
Defendant’s sketch faxed to the Plaintiff on 15 September 2006. They
E E
confirmed that there is no non-compliance to the specifications. I adopt the
F F
joint opinion of the experts. There is no defect on this alleged item.
G G
72. Jewellery trays had to be placed inside the VIP counters. It is
H H
the case of the Plaintiff that by reason of the shortening of the VIP counters
I
as aforesaid, the jewellery trays have to be replaced. I
J J
73. The Defendant said it is not required to provide the jewellery
K trays under the Quotation, which is not disputed. DW1 said the Defendant K
has provided the jewellery trays as a gesture of good view to assist the
L L
Plaintiff that the shop could be opened with the Mall. Accordingly, they
M should not be held liable. M
N N
74. The Plaintiff claims the cost for replacing all the trays. There
O is no comment by Mr. Lam. Mr. Kwan also comments that this is not an O
item in the contract. The Quotation expressly excludes this item. I agree
P P
that the supply of trays is not part of the Quotation, and the loss, if any, for
Q replacing the trays would not be a defect of works to be provided under the Q
Quotation. The Plaintiff is not entitled to claim any damage.
R R
75. Further, even if the trays cannot fit into the small counter, I
S S
thought all Plaintiff needed was to replace one tray for smaller size. The
T T
claim for replacing all the trays is unreasonable.
U U
V V
由此
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A A
B B
76. The next item of defects is in relation to double-sided display
C C
cabinet. The main complaint is directed to the front glass panel.
D According to the contract, the glass should be made of black colour glass. D
According to the evidence of DW1, she admitted that they should supply
E E
black colour glass. Due to constraint of time, they have only provided
F F
transparent glass with a black paper backing. This created the effect of
G
black colour glass but they intended to replace it afterward. G
H H
77. There is no suggestion that the use of transparent glass was
I
approved by the Plaintiff. Accordingly, this must be a defect and should be I
replaced. DW1 complained that they were not allowed to return to rectify
J J
which I should deal with later.
K K
78. And in respect of the other complaint that there is only one
L L
iron earring for the front glass panel, this may be rectified at the same time
M with the replacement of the glass. The issue does rest on my subsequent M
consideration as to whether the Defendant was deprived of the opportunity
N N
to rectify the defects, and whether replacement of the cabinet is justified.
O O
79. It is not disputed that the Plaintiff supplied at least five films
P P
or slides for insertion in the super graphic light box. The Plaintiff claims
Q one was lost. According to Mr. Lam, the film has not been lost but Q
wrongly installed. I accept his evidence and the claim failed.
R R
S 80. The next item of defect is in relation to the super graphic light S
box. The main complaint by the Plaintiff is that the light box could not be
T T
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由此
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A A
B opened for replacement of the fluorescent tubes inside or to replace the B
film/slide inside.
C C
D 81. It is not disputed that, according to the initial drawings, the D
light box could be opened by lifting the front panel. Later, a supplemental
E E
drawing has been provided to the Plaintiff that the panel would be divided
F F
into three parts. The left and right panels are fixed and could not be opened.
G
Only the middle panel could be lifted and opened. Once the middle panel G
is lifted up, one could easily move the sliding boards holding the
H H
fluorescent tube at the left and right panel for replacement. And there
I
appears to be sufficient spacing for replacing all the films or slides placed I
inside the light box.
J J
K 82. According to the evidence of Mr. Lam, he had tried to open K
the light box, but he could not. He found there was no opening. It is the
L L
evidence of PW1 that they could not open the light box for replacement of
M the fluorescent tubes or slides. Clearly, a light box that could not be M
opened for replacement of the slide inside and to replace the fluorescent
N N
tube is defective, and may impose a danger.
O O
83. DW2 explained in his evidence that the middle part could be
P P
opened. He explained that there is a “bus track device” at the top. By
Q engaging the bus track, the middle part could be moved to one side and Q
enabling the Plaintiff to replace the fluorescent tubes and the slides.
R R
S 84. I would be surprised if a bus track open device had been S
installed, it could not be discovered by the expert Mr. Lam. DW2 has been
T T
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由此
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A A
B examined at length on how the device works. And with the assistance of B
the photograph in the reports, it is not clear how this bus track operates, or
C C
whether it exists at all. I am not convinced that the bus track has been built.
D D
85. Further, if it was the original design to flip open the light box,
E E
which appears to be a more simple and strict forward device, what is the
F F
reason for changing the opening to a bus track, which according to DW2 is
G
an expensive device. And there is no suggestion that this variation has G
th
been approved by the Plaintiff. And I add under that the 5 List, the
H H
Defendant agreed to rebuild the super graphic light box which supports the
I
complaint of the Plaintiff that the light box is defective. I
J J
86. In conclusion, I confound that the light box was defective.
K Alternatively, it is not build in accordance with the agreed design. This K
should be replaced by the Defendant.
L L
M 87. The next defective item is the full height logo light box M
cabinet. The Plaintiff complains that the Plaintiff’s logo film slide was
N N
missing. Further, there was no space provided for replacing the fluorescent
O tube and the logo film slide. The Plaintiff also complains that the O
workmanship of the edge was below standard and the wooden frame of the
P P
logo slide did not match with the original design.
Q Q
88. DW2 when gave evidence said the top of the cabinet could be
R removed for replacement of the fluorescent tube and the logo slide. He R
denies the loss of the slide.
S S
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A A
B 89. As Mr. Kwan has not inspected the cabinet, he could not B
make any comment. Mr. Lam in his expert report states that the Plaintiff’s
C C
logo was missing. There was no space to replace the fluorescent tube and
D the logo slide. During cross-examination, Mr. Lam agreed that he had not D
examined the top of the cabinet.
E E
F 90. I accept the evidence of DW2 that an opening was provided at F
the top. In any event, I do not believe that the cabinet has to be replaced in
G G
total. Reading the photographs with the evidence of DW2, the design of
H having an opening at the top is workable. Hence, if an opening has not H
been provided, the top could be converted to have a flip door or removable
I I
door for replacing the fluorescent tubes or slide. Accordingly, the costs
J would be much lower. J
K K
91. The final complaint by the Plaintiff is that the full height
L computer cabinet had to be replaced if the full height logo light box cabinet L
has to be replaced. They are attached together and they could not remove
M M
or replace the full height logo light box without damaging the computer
N cabinet. Since I find against the Plaintiff for replacing the logo cabinet, N
this item of claim must fail.
O O
P 92. The Plaintiff claims that they suffered loss. For those items P
that I accept as damaged, and subject to my further discussion on whether
Q Q
there are recoverable damages, they should be assessed in accordance with
R the opinion of the experts on the reasonable cost. What the Plaintiff has R
actually spent is only a matter to be taken into account. Further, given my
S S
ruling that not all the items of defects as claimed by the Plaintiff had been
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A A
B proved, I am not prepared to award the full amount of damages claimed. I B
would assess the loss according to the opinion of the experts.
C C
D 93. It is the Defendant’s argument that while they agreed that D
certain defects ought to be rectified, they are not liable for any damages for
E E
the following reasons. It is an implied term of the Quotation that the
F F
Plaintiff should not in any way hinder and/or prevent the Defendant from
G
carrying out and completing the Works. It is not disputed that the Plaintiff G
requested the Defendant to push ahead the completion date to 28
H H
September 2006. According to the evidence of DW2, which is not
I
disputed, the Defendant was instructed to stop all Works and was I
requested by the security guard of the Mall to leave the site on the evening
J J
of 28 September 2006.
K K
94. Further, the Defendant claims that it is an implied term of the
L Quotation that the Plaintiff should co-operate with the Defendant and L
provide them with reasonable time to rectify the defects. But the Plaintiff
M M
only agreed to allow them to have two nights to carry out all the
N rectification works as listed in the 5th List. It was unreasonable. And N
lastly, according to the Quotation, there would be a 1-month maintenance
O O
period. The Plaintiff has denied them the right to maintain and/or rectify
P the Works within this month. P
Q Q
95. Mr. Yeung refers me to the judgment in Ying Ho Company
R Limited v. The Secretary for Justice FACV 17 of 2003, when Mr. Justice R
Bokhary approved the principle that the court is often willing to imply a
S S
term that the parties shall co-operate to ensure the performance of their
T T
bargain. I believe there should not be an argument to this principle.
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A A
B B
96. The argument that the Plaintiff should not prevent the
C C
Defendant from completing the Works is grounded on an implied terms.
D But it is not disputed that the time for the grand opening is set by the Mall. D
By co-operation, it must be a mutual obligation. The Defendant would
E E
equally be obliged to assist the Plaintiff to hit the deadline set by the Mall.
F If the Works or part thereof cannot be completed because of the direction F
to stop working, it may be a defence to not having completed all Works on
G G
time. But it would not be a ground for the Defendant to say that they are
H entitled to present defective workdone or goods. This is not helpful in this H
case as the complaint is on goods and work done completed and delivered.
I I
97. Mr. Yeung also refers me to the cases of Pamax Ltd. v. Cross
J J
Max Interiors Ltd. [2008] HCA 218/2002. As commented by Deputy
K judge Gill, “fundamental to the obligation of a claimant in such K
circumstances is that he must mitigate his loss. In the context of
L L
construction contracts this invariably means giving the defaulting
M M
contractor the chance to remedy the faulty workmanship; see Chitty on
N
Contracts, 29th edition, 37-199 ....” N
O 98. The judgment was followed by Deputy Judge Carlson in O
Shun Fai Decoration Handicraft Co. Ltd. v. F & F Investment Ltd.
P P
[2009] HCA 1588/2006 and said the Defendant could not be held to be in
Q breach for defective workmanship in circumstances where it had been Q
denied the opportunity to put right items which required further work.
R R
S 99. Ms. Yap did not address the point directly. However she S
refers to the evidence of DW1 who said the remedial work would take 20
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A A
B preparation days and 14 working days. And DW2 said the remedial work B
would take 10 working days. It shows the scale of rectification required. I
C C
believe Ms. Yap was submitting that there was no substantive completion
D which is a matter I would consider further in respect of the counterclaim. D
E E
100. The defence of a reasonable chance for the Defendant to
F F
rectify the defects is nothing more than a claim that the Plaintiff has failed
G
to mitigate his loss. (See paragraph 129 of the judgment of Deputy Judge G
Gill in Pamax Ltd.’s case.) Since this is a matter of mitigation, the
H H
question is whether the failure on the part of the Plaintiff caused or
I
contributed to the loss. Even if the Plaintiff may have been unco-operative I
in some aspects, loss not created or caused by such failure would still be
J J
recoverable. I have to consider each item and I do not agree that a board
K bush approach to disallow all the damages claim should be appropriate. K
L 101. And having heard all the evidence, save for some items when L
the Defendant admits that they took temporary measure to hit the deadline,
M M
such as the display cabinet, it is the case of the Defendant that they have
N been completed the Works delivered. N
O O
102. The main complaint of unreasonableness, or denial for a fair
P
chance to rectify all loss is the request of the Plaintiff for the Defendant to P
complete all Works within 2 nights. In any event, while I accept that the
Q Q
Plaintiff may be unreasonable in only allowing 2 nights, but from the
R evidence DW2, the Defendant had returned to the site to carry out some R
remedial works. In considering if this request is unreasonable, I would
S S
take into account other opportunity given to the Defendant to carry out
T remedial work. T
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A A
B B
th
103. I note that the Defendant in the 5 defect list requested 14
C C
working days on site. Ms. Yap submits that the time indicated a substantial
D rectification project to be undertaken. I am also surprised by the length of D
time required, when comparing with the items of work suggested in the 5th
E E
defect list. Mr. Kwan assessed the time required to be 4-5 days. It only
F shows that the request of the Defendant is unreasonable. F
G 104. I have to bear in mind that the GZ Shop has started their G
business. And substantive work would affect the business. 2 nights,
H H
together with earlier chance for rectification, and taking into account only
I a few rectifications are necessary as stated in the 5th defect list, I cannot say I
that the Plaintiff is unreasonable. The VIP counter would be built before
J J
hand, and it must be a matter of fixing and setting up. Mr. Yeung submits
K that the new contractor was allowed 4 nights to complete the job. But they K
have a longer list of item to complete. Balancing all the evidence before
L L
me, I am not convinced that the Plaintiff has failed to offer a reasonable
M M
opportunity for the Defendant to return to work or to mitigate the loss.
N N
105. I now proceed to assess the damages.
O O
106. There are 4 items of defects which I found in favour of the
P Plaintiff. First, for the replacement of locks for all the VIP counters. It is P
unfortunate that I do not have any proposed figure from the experts. I do
Q Q
not even have the number of locks. Judging from the photographs, there
R would be about 15 locks. They are not special one. I assess a sum of R
HK$1,500.00 for replacing the locks.
S S
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A A
B 107. For the double side display cabinet, the front clear glass panel B
is not built according to the design. For replacing this cabinet, Mr. Lam
C C
said the costs is HK$7,400.00 x 130% (for working at night) =
D HK$9,620.00. Messrs. Loong Shing (the contractor who was later D
engaged by the Plaintiff to carry out the remedial work) charged
E E
RMB¥7,600.00 for the work, which is about HK$9,047.61 (using an
F F
exchange of 0.84).
G G
108. The argument would be that replacing the glass panel would
H be sufficient to rectify the loss. It means additional workdone to remove H
the glass panel without doing any damage to other parts of the cabinet,
I I
before the proper glass panel could be installed. I do nto believe it would
J make much difference for a new cabinet made. I award HK$9,047.00 to J
the Plaintiff for this defect.
K K
109. For the super graphic light box, Mr. Lam assesses the costs at
L L
HK$22,500.00 x 130% (for working at night) = HK$29,250.00. Messrs.
M M
Loong Shing charged RMB¥11,000.00 for replace the light box. I award
N
HK$13,095.00 to the Plaintiff for this defect (again using the exchange rate N
of 0.84).
O O
110. For the glass panel, the Defendant failed to provide 5 sq.
P P
meters. The unit price in the Quotation is HK$550.00 per sq. meter. The
Q loss to the Plaintiff is assessed at HK$2,750.00. Q
R R
111. The Defendant counterclaims for the balance of the contract
S price. According to the Quotation, 50% of the price has to be paid on job S
confirmation, which has been paid. 40% of the price has to be paid upon
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A A
B completion of half of the work. And the balance is paying 7 days after job B
completion.
C C
D 112. There can be no doubt that the work handover is more than D
half of the Works. I see no defence to the 40%. And given the background
E E
aforesaid, the job is completed on 28 September 2006. Ms. Yap argues
F that in light of the substantive remedial work suggested in the fourth and F
fifth defect lists, there is no substantial completion. I cannot agree.
G G
113. I also refer to the judgment of Judge Newey QC in Emson
H H
Eastern Ltd (in receivership) v. EME Developments Ltd (1991) 55 BLR
I 114, which has been quoted by Deputy Judge Gill in his above judgment – I
J J
“I think that probably the most important background fact which
I should keep in mind is that building construction is not like the
K manufacture of goods in a factory. The size of the project, site K
conditions, use of many materials and employment of various
L types of operatives make it virtually impossible to achieve the L
same degree of perfection as can a manufacturer. It must be a
rare new building in which every screw and every brush of paint
M is absolutely correct.” M
N 114. I have gone through each item claimed by the Plaintiff to be N
defective. Other items of work would be assumed to be properly done and
O O
delivered. Indeed, there is substantial completion and the remedy to the
P Plaintiff is at damages. P
Q Q
115. Ms. Yap also submits that the Plaintiff has terminated the
R R
contract. I have ruled earlier that it has not been pleaded and the Plaintiff
S
could not rely on this as the reason for not paying the balance. S
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A A
B 116. Further, on termination, the Plaintiff relied on the evidence of B
Mr. Imthanavanich Visuit (“PW2”), a shareholder director of the Plaintiff.
C C
PW2 said in a meeting with the DW3 on 15 November, 2006, he told DW3
D that if the Defendant refuses or could not rectify the defects, the Plaintiff D
would engage another contractor but the Defendant would not be entitled
E E
to the balance of the contract price. DW3 rejected his suggestion. And
F F
even on his evidence, it is not clear that he has terminated the contract.
G
And in fact, according to PW2, after the meeting, the staff of the Plaintiff G
has requested the Defendant to carry out rectification work. It clearly
H H
shows that the Plaintiff has not treated the Quotation or contract with the
I
Defendant as being terminated. I
J 117. In conclusion, I found that the Plaintiff is liable to pay the J
balance of the contract price.
K K
118. The amount of damages should be set off against the balance
L L
of contract price –
M M
Balance of Contract Price HK$82,354.50
N Less N
Locks HK $1,500.00
O Double side Cabinet HK$9,047.00 O
Super Graphic Signbox HK$13,095.00
P
Glass Panel HK$2,750.00 P
Balance
HK$55,962.50
Q Q
119. There be interest on the judgment sum of HK$55,962.50 from
R R
date of writ until judgment at 8% p.a. and thereafter at judgment rate until
S payment. The Plaintiff is successful in part of its claim which is well S
within the jurisdiction of the Small Claim Tribunal. And the Defendant
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A A
B has succeeded in its Counterclaim. While it is usual to order the Plaintiff to B
have costs of the action and the Defendant to have costs of the
C C
counterclaim, I take into account the matter aforesaid and give an order nisi
D that the Defendant do have 75% of the costs of the action (including both D
claim and counterclaim) with certificate for counsel. The order nisi shall
E E
become absolute within 14 days and the costs shall be taxed if not agreed.
F F
G G
H H
I I
J J
K ( R. Yu ) K
Deputy District Judge
L L
M M
Miss Ophelia Yap, instructed by M/s W. K. To & Co., for Plaintiff.
N
Mr Stephen Yeung, instructed by M/s Huen & Partners, for Defendant. N
O O
P P
Q Q
R R
S S
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