Pang Yau Shing Glendy and Another v. Sano Engineering Ltd
Read the full judgment text of DCCJ 61/2013 on BabelCite. This District Court judgment was delivered on 29 January 2016.
1. This is a claim brought by the plaintiff for breach of contract in relation to the renovation of a residential premises.
Cited by 6 cases · Cites 4 cases
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DCCJ61/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 61 OF 2013 --------------------
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--------------------- JUDGMENT ---------------------- 1.This is a claim brought by the plaintiff for breach of contract in relation to the renovation of a residential premises. BACKGROUND 2.The 1st and the 2nd plaintiffs (“P1” and “P2”) are wife and husband respectively and the registered owners of the premises situated at Flat C, 10th Floor, Block 2 Seaview Garden, 1 Tsing Yung Street, Tuen Mun (“the Premises”). 3.The defendant is a limited company in the business of providing decoration and renovation services. 4.At the material time of the case:-
5.By a Chinese contract dated 7 March 2012 (reference no. N-07012A), the defendant was engaged to provide 61 items of renovation works (“the Original Works”) on various parts of the Premises (“the Contract”). 6.The Contract provides, inter alia, that: (i) contract price was at HK$328,000; (ii) the price for electrical installations would be subject to actual number of articles installed by the defendant; and (iii) the defendant was to commence the Original Works on 12 March 2012 and to complete them within 2 months, ie on 11 May 2012 (“the Completion Date”). 7.On 7March 2012, pursuant to the Contract, by way of deposit, the plaintiffs paid the defendant a sum of HK$98,400. It is common ground that, throughout the period of 7 March 2012 to 17 May 2012, the plaintiffs have paid the defendant a total sum of HK$308,200. 8.Sometime between 12 March 2012 and late March 2012, the defendants commenced the Original Works at the Premises. 9.On 16 April 2012, after repeated complaints made by P1, Tong, for and on behalf of the defendant, signed a Chinese document entitled “客戶保障” (“Customer Protection”)(“the Declaration”) which contained the following clauses:-
10.It is common ground that, on various occasions after 7 March 2012, the defendant further provided 5 items of works in addition to the Original Works, namely: (i) installing pipes at the external of the Premises （做屋外水喉(銅喉))；(ii) re-installing flooring and waterproof layer at bathroom (重做廁所地台連防水); (iii) installing speakers’ cable(喇叭線) x 4; (iv) installing single wire (獨立線) x 1; and (v) installing earth wire (水線) x 7 (“the Additional Works”). 11.Further, it is not in dispute that during the work in progress, the defendant “re-did” 2 items of the Original Works, namely: (i) removing certain tiles on the walls of the kitchen and bathroom and putting on new ones; and (ii) repainting the walls of the master bedroom and the ceilings of the Premises (“the Re-doing Works”). 12.On 22 August 2013, the plaintiffs’ expert, Mr Stewart Wong (“plaintiffs’ expert”) and the defendant’s expert, Mr Tsim Chai Nam (“defendant’s expert”) attended the Premises for a joint inspection. Thereafter, a joint expert report, a supplemental joint expert report and a 2nd supplemental joint expert report were filed on 15 November 2013, 27 March 2014 and 22 September 2014 respectively for the purpose of this trial (collectively, “the Joint Expert Reports”). The plaintiffs’ case 13.It is the plaintiffs’ case that the entire agreement between the parties is partly written and partly oral. 14.The plaintiffs allege that the written part is contained in and/or evinced by the Contract and the Declaration, whereas the oral part is evinced by:-
15.As such, the plaintiffs claim that the Completion Date does apply to all the Original Works, the Additional Works and the Re-doing Works (collectively, “the Works”). 16.In essence, the plaintiffs’ case is that, (i) the defendant did not complete the Works on or before the Completion Date; (ii) the defendant did not render its service with reasonable skill and care; and (iii) the Works done were defective. Hence, the defendant was not only in breach of the express terms of Plaintiffs’ Alleged Agreement, but was also in breach of certain implied terms. 17.Those implied terms which the defendant has allegedly been in breach of have been pleaded in §§14-15 of the re-re-amended statement of claim as follows:-
18.The plaintiffs further claim that, as a result of the defendant’s breach of Plainitffs’ Alleged Agreement, they had to engage another contractor to re-do the Works, and thereby incurred additional costs for rectification work, pest treatment and alternative accommodation. 19.Hence, the plaintiffs claim against the defendant for damages in total sum of HK$666,116 under the following heads:-
The defendant’s case 20.On the scope of agreement between the parties, the defendant denies that it has, through Tong or any other person, made the oral agreement as alleged by the plaintiffs. The defendant’s case is that, the entire agreement consists of:-
21.In essence, the defendant’s case is that it has completed all the Original Works and delivered vacant possession of the Premises to the plaintiffs on or before the Completion Date. What remained to be done was merely touch-up work. 22.On the Additional Works and Re-doing Works, the defendant alleges that they were all out of the scope of the entire agreement between the parties and that they constituted a separate contract. As such, the Completion Date of the Contract has no relevance to this separate contract. 23.On quality of the Works, the defendant’s case is not one of blanket denial. Save that the quality of various items of the Works are in dispute, the defendant, through its expert, in the Joint Expert Reports, conceded that certain defects do exist in 11 items of the Works done. 24.The defendant claims that the plaintiffs’ failure to pay the balance of the Contract evinced an intention not to be bound and the plaintiffs thereby repudiated D’s Alleged Agreement. As such, the defendant was entitled to terminate the agreement upon the acceptance of such repudiation and to counter-claim for the balance of the Contract. ISSUES TO BE DECIDED 25.The issues I have to decide in this case are:-
THE TRIAL 26.At the trial, the plaintiffs called two witnesses, Madam Pang Yau Shing Glendy, ie P1 and Ngai. The defendant called two witnesses, Lam Chun Pang (“Lam”), a worker who was responsible for part of the painting and tiling works done in the Premises, and Tong. 27.The Joint Expert Report had been produced for the purpose of the trial. Hence, the experts of both parties were not called to give evidence in court as ordered by the court at the case management stage of the proceedings. DISCUSSION (I) Terms of the Agreement 28.It is common ground that the Contract is valid and binding between the parties, and thus constitutes part of the Agreement. 29.On one hand, the plaintiffs claim that, in addition to the Contract, the Declaration and Plaintiffs’ Oral Agreement also form part of the Agreement. On the other hand, the defendant claims that the Contract, Defendant’s Oral Agreement and the 3-D Drawings together form the whole of the Agreement. (a) Oral Terms 30.What are the oral terms agreed between the parties ultimately would turn on my assessment of the credibility of the relevant witnesses. 31.First, I accept the evidence given by P1 in its entirely in this regard. In my view, she is an honest and reliable witness who has tried her best to tell the court the truth in regard of her dealings with the defendant. I do not find the defendant’s submission on P1’s credibility convincing, as it emerged from her cross-examination, P1 and the defendant had a different understanding of the meaning of a “入牆櫃” (“Built-in cupboard”), and most importantly, in my judgment, inconsistencies on peripheral matters do not affect her credibility overall. On the other hand, I find the defendant’s witness, Tong, an evasive and not truthful witness. His evidence in this regard is largely selective, self-serving and inconsistent with some of the documentary evidence. 32.I would prefer the evidence given by P1 over the evidence given by Tong. In particular, I accept P1’s evidence that, during the period between 2 February 2012 and 7 March 2012, the defendant had on various occasions, through Tong, orally agreed to her requests in the following terms:-
33.In this regard, Ngai’s evidence was to the same effect, and I accept that too. 34.The defendant’s solicitor endeavored to criticize and undermine Ngai’s credibility during her cross examination by relying on the fact that she was previously arrested by the police for alleged misappropriation of the defendant’s money. In both his written opening and closing submissions, the defendant’s solicitor also drew the court’s attention to this matter. 35.With respect, I do not see how this is relevant. It is a fundamental principle that under our criminal justice system, that a person is innocent until proven guilty. It is clear that Ngai, although previously arrested by police (as she frankly admitted), was not even charged for the alleged offence. I simply do not see how an allegation on its own can affect her credibility. 36.I further accept that the plaintiffs’ case in this regard is inherently more probable than the defendant’s case and it tallies with common sense for the following reasons:-
37.Given the above, in my judgment, it is more likely than not that the plaintiffs would raise and the defendant would agree to the terms as I have found in §32 above. 38.Further, I reject the defence raised by the defendant, namely, it is a usual practice in the renovation industry that any hidden part of the walls (either by false ceilings or furniture) need not be painted or tiled for the following reasons:-
39.Hence, I am satisfied that, on balance, the “usual practice” alleged by the defendant is unlikely to be true. Even if it is true, the plaintiffs were not fully informed by the defendant, and thus were not in a position to be able to agree to it. (b) The Additional Works 40.I accept that the parties have orally agreed that the defendant would carry out the Additional Works during the work in progress and they are additional terms intended by the parties to be incorporated to the Contract. 41.First, it is undisputed that the defendant had carried out the Additional Works during the work in progress despite the fact that they were not included in the Contract. The only logical and reasonable inference is that the parties had reached an agreement orally for the provision of those works. The said oral agreement shares the same subject matter with the Contract and manifests the parties’ intention to expand the scope of the renovation works done in the Premises. As such, viewing from the surrounding circumstances of the case, it forms part of the Agreement. 42.There is no evidence as to when the oral agreement in relation to the Additional Works was reached. I therefore agree with the plaintiffs’ submission that, it is unnecessary for me to decide whether the parties have also agreed that the Additional Works had to be completed on or before the Completion Date, or whether there was any express or implied variation in this regard. The reason is that, the plaintiffs have agreed that all the Additional Works have been completed on or before the Completion Date, and hence they are not relying on that as the cause of the defendant’s delay in completion. (c) The Re-doing Works 43.I accept P1’s evidence that, after the plaintiffs’ repeated complaint and demand, Tong agreed, on behalf of the defendant, to re-do 2 items of the Original Works, namely:-
44.In my view, this oral agreement also forms part and partial of the Agreement as it clearly touches upon the same subject matter of the Contract, and the 2 items which had to be re-done are clearly within the scope of the Contract. 45.However, as I accept P1’s evidence that the plaintiffs’ request to re-do these 2 items were not made until late April 2012 or the beginning of May 2012, I find it unreasonable to hold that the Completion Date would apply to the Re-doing Works. The reason is that, upon being dissatisfied with the 2 items of work done by the defendant, the plaintiffs, by making request to re-do the said items, impliedly waived the applicability of the Completion Date to these 2 items and allowed a reasonable time for these 2 items to be re-done. (d) The Declaration 46.In my view, the Declaration is valid and binding between the parties, whether it forms part of the Agreement or whether it is a separate enforceable agreement on its own. 47.First, it is trite that a person is prima facie bound by what he had signed. This position has been clearly expounded on in Chitty on Contracts, 31st Ed. Vol. 1 para 12-002:-
48.It is common ground that the Declaration was signed by Tong, on behalf of the defendant, on 16 April 2012. The defendant is therefore prima facie bound by it whether or not Tong has read the content of the Declaration and whether or not he was ignorant of its precise legal effect. 49.In his cross-examination, Tong alleged that the Declaration was drafted by Ngai and/or P1, and it was Ngai who persistently requested him to sign on it. In my view, whoever drafted the Declaration is immaterial, what is material is the fact that Tong had indeed signed on the Declaration. I find it hard to accept that Tong, who has over 30 years of experience in the renovation industry, would sign on a document of such nature without first fully understand its effects. 50.Further, I reject the defendant’s contention that the Declaration is void or voidable and therefore does not form part of the Agreement on the grounds of lack of consideration and/or the key term being unconscionable. 51.The defendant’s solicitor cited Stilk v Myrick [1809] 170 ER 1168 in support of his argument. He relied on the principle that a contracting party cannot use his promise to perform, or his actual performance of, a pre-existing obligation as consideration for a new promise in his favour by his opposite contracting party, and as such, some fresh consideration is required. 52.In my view, while the principle in Stilk v Myrick cited by the defendant’s solicitor is no doubt correct, the defendant’s solicitor did not in any way address the court as to, whether, in the factual circumstances of the case, there was any fresh consideration on the part of the plaintiffs in exchange for the additional terms as contained in the Declaration, which was signed on behalf of the defendant by Tong. 53.In my judgment, clearly there is. 54.It is an established principle that the courts “may regard an act or forbearance as consideration even though the promisee “did not consciously realize that [he was] subjecting himself to a detriment and [was] giving consideration for the [promisor’s] undertaking” or even though it was not the object of the promisor to secure it”: see Chitty on Contracts, 31st Ed. Vol. 1 para 3-010. 55.Hence, in the present case, I regard the plaintiffs’ forbearance to complain about the Works done up till 16 April 2012, as valid consideration in exchange for the defendant’s promises as contained in the Declaration. 56.The defendant’s solicitor also sought to argue that the key term, namely, “根據N-070312A工程合約, 本公司會在2012年05月11日完成所有工程，得到客人簽署完工紙為實” of the Declaration was unconscionable in that “完成所有工程” was defined by “得到客人簽署完工紙為實”. 57.In short, the defendant’s solicitor’s argument is that, if this term were a valid term, the plaintiffs would be entitled to claim $1,000 per day from the defendant as long as they have not signed their acknowledgement of completion. 58.I find this argument wholly unfounded. I do not see why the plaintiffs, both being reasonable people, would deliberately withhold their acknowledgment of completion if the Works had truly been completed to their satisfaction. To do so, they would not only bring inconvenience to themselves, but would also have to incur extra costs for alternative accommodation. That in my view would completely defeat the purpose of renovating the Premises in the first place. 59.I also find that the amount of $1,000 per day for any delay after the Completion Date is reasonable, and therefore such amount is not penalty but as reasonable estimate of loss/compensation to the plaintiffs. 60.In this regard, the plaintiffs’ counsel relied on the principle of affirmation and quoted Chitty on Contracts, 31st Ed. Vol. 1 para 24-003 and para 24-004 to support the plaintiffs’ contention that the Declaration has been affirmed by the defendant in its letter dated 8 August 2012 to the plaintiffs, and therefore it is binding as between the parties. 61.The principle of affirmation is concerned with situation where there was a breach by a party, and the innocent party thus acquired a right to either affirm the contract or to accept the repudiation and thereby rescind the contract. If the innocent party elects to affirm the contract, his/her right of rescission is lost: see Cheshire, Fifoot & Furmston on Law of Contract, 16th Ed, p 363. It follows that, upon affirmation, the contract will still be treated as valid and binding as between the parties. 62.As I have found that the Declaration is valid and binding in the first place, for being supported by consideration and not unconscionable, I turn now to consider whether the Declaration has been affirmed by the defendant. 63.In my view, when faced with the plaintiffs’ alleged breach of non-payment of the final balance, the defendant had a right to accept the plaintiffs’ alleged repudiation and thereby rescind the Agreement altogether, and then sue for damages. However, they did not do so. 64.In my view, the letter dated 8 August 2012 from the defendant to the plaintiffs in which it was stated, inter alia, that “實際完工期是6月13日遲5天, 應扣5000元給客人” (“The actual date of completion was on 13 June, a delay of 5 days; ought to deduct $5,000 in favour of the client”) is an affirmation of the Declaration for the following reasons:-
(e) The 3-D Drawings 65.I reject the defendant’s submission that the 3-D Drawings do form part and partial of the Agreement. 66.The matter was never put to P1 during her cross-examination by the defendant’s solicitor, and the document itself clearly shows that the parties did not intend it to be valid and binding upon them as many of the measurements contained therein were stated with question marks. I am of the view that the 3-D Drawings were merely for illustration purpose only. (f) Implied Terms 67.The existence of the implied terms as pleaded by the plaintiffs was not in dispute, and I accept they are the implied terms which are applicable in the present case. (II) Breach of the Express and/or Implied Terms 68.I now would turn to deal with whether the defendant was in breach of any of the express and/or implied terms of the Agreement. (a) Whether the defendant was late in completion? 69.It is undisputed that, both under the Contract and the Declaration, the Original Works had to be completed on or before 11 May 2012. 70.As I have indicated above, it is unnecessary for me to decide whether the Completion Date also applies to the Additional Works, as the plaintiffs are not relying on the delay in Additional Works as a cause of the delay in completion. There is no need for me to discuss further on this matter. 71.I have also indicated above that, in my view, the completion date for the Re-doing Works was impliedly varied by the parties and a reasonable time should be allowed for their completion. 72.Viewing from the evidence, the parties have agreed in their “Agreed Schedule setting out Works carried out by the defendant after 11 May 2012” (“the Agreed Schedule”) that the works carried out by the defendant after the Completion Date were as follows:-
73.In addition to the above, the defendant’s solicitor submitted that, according to the evidence of Tong and Lam, the bathroom flooring re-installation work and the re-painting of the master bedroom with a paint of a different colour were all commenced in mid May 2012. 74.However, in Lam’s cross-examination, he said he could not remember when the re-painting of master bedroom was completed, and he confirmed that the bathroom flooring re-installation work was completed on or before 11 May 2012. In reply to the question from the bench as to what works he had carried out in the Premises after 11 May 2012, he said he could not remember. 75.In any event, the plaintiffs are not relying on the delay in these works as a cause of the delay. I therefore find that it is unnecessary for me to rule on when exactly did the defendant complete these works, suffice to say is that the parties do not dispute these works were eventually completed. 76.Hence, I find that, on the issue of delay in completion, the only relevant item of Re-doing Works left for the court’s consideration is the re-painting of the ceilings in the Premises. 77.The defendant, in its letter dated 8 August 2012 to the plaintiffs, admitted that all the Works (including the re-painting works and the replacement of tiles on the bathroom floor) were completed on 13 June 2012, with the touch-up works completed on 13 July 2012. 78.Tong, in his cross-examination, sought to explain the reason why he stated 13 June 2012 as the completion date in the letter. He said such date was a deliberate invention of his, so that by stating the defendant was 5 day late in completion (excluding: half day of Saturdays, full day of Sundays, 6 days for re-installation of bathroom work, 3 days for re-painting the ceilings of the Premises, and 5 days for re-painting of the wall of the master bedroom), he could reduce the total outstanding amount by HK$5,000 in order for his claim against the plaintiffs for the balance to fall under the jurisdiction of the Small Claims Tribunal. 79.I do not accept that. If that was truly Tong’s intention, he could have simply waived any amount above $50,000 in his small claim action, or, he could have simply stated that the defendant was 5 days late in completion and thereby reduced $5,000 in total. There is simply no need for every minute detail as stated in the defendant’s letter. Tong’s account on this matter is plainly unbelievable. 80.Hence, I accept that, by the letter dated 8 August 2012, the defendant admitted and acknowledged that the completion only took place on 13 June 2012, and all the touch up works were completed on 13 July 2012. 81.The question that the court then has to decide is, whether one month, ie the period from 13 May 2012 to 13 June 2012, is a reasonable time for the re-painting of ceilings of the Premises. Judging from the fact that the whole renovation of the Premises was agreed to be completed within 2 months only, the mere re-painting of ceilings, in my view, should require no more than 3 days, as admitted by the defendant in its letter dated 8 August 2012 to the plaintiffs. The defendant’s delay in completion therefore would run from 15 May 2012 to 13 June 2012, ie 30 days in total. 82.As I have already stated in para 44 above, the fact that P1 demanded the defendant to re-paint the ceilings of the Premises and accepted the defendant’s carrying out of the actual re-painting, she impliedly varied the completion date of such work by conduct. Otherwise, she could have left the painting works as it was, and then claimed against the defendant for damages for defective works done, just like other alleged defective items in the present case. 83.Hence, in my view, the reasons why the colour of the ceilings was changed and who recommended the choice of colour are irrelevant and immaterial, and I will not delve into it. (b) Quality of works done / service Undisputed Defects 84.I will first deal with the defects that are not in dispute. As I have said, the defendant’s case is not one of blanket denial. The defendant’s expert, in the Joint Expert Reports, has admitted the existence of certain defects in the furniture or works done by the defendant, which the plaintiff’s counsel has helpfully summarised as follows:-
85.I accept the plaintiffs’ submission that the defects as stated in para 84(d), (i) and (k) above are particularly serious and the existence of all the said defects together results in a breach of the implied conditions under sections 15, 16(2) and 16(3) of the Sales of Goods Ordinance (Cap.26) (“SOGO”) and section 5 of the Sales of Services (Implied Terms) Ordinance (Cap. 457) (“SS(IT)O”) for the following reasons:-
Other Defects 86.The other defects, which the parties’ experts are unable to agree upon, concern various alleged defects regarding the making of the furniture, the electrical works and the principal works as categorized in the Joint Expert Reports. The particulars of which were summarised by the plaintiffs’ counsel in Schedule A of his Re-Re-Amended Statement of Claim. 87.Both parties rely on their respective expert’s opinion in the Joint Expert Reports on the quality and value of works done by the defendant. The joint expert report filed on 15 November 2013 (“1st Report”) contains 2 sections, namely, “(A) Particulars of Agreement between both Experts on the “Works””; and “(B) Particulars of Disagreement between Mr Stewart Wong and Mr Tsim Chai Nam”. Both experts also set out their assessment methodology, and their CVs were attached. 88.The supplemental joint expert report filed on 28 March 2014 (“2nd Report”) contains a few amendments and additions to the 1st Report, and the 2nd supplemental joint expert report filed on 22 September 2014 (“3rd Report”) contains the experts’ comments on the issue of water seepage from the aluminum windows installed by the defendant. 89.There is no attack on the expertise of both parties’ experts, and I am satisfied that both of them are qualified to give expert evidence in this trial. Ultimately, my findings on this issue depends on how much weight I attach to each side’s expert’s evidence. I state at the outset that I prefer the plaintiffs’ expert’s opinion for the following reasons:-
90.On the other hand, I find the plaintiffs’ expert’s opinion to be objective and largely consistent with the photos taken in the Premises. As the photos adduced by the plaintiffs are self-explanatory and objective evidence that reflects fairly the state of the works done by the defendant, I accept them in full. 91.As I have rejected the defendant’s expert evidence for being tainted with bias, I do not think it is necessary for me to go through each and every item in dispute. Suffice to say it that, judging from P1 evidence, the plaintiffs’ expert’s opinion in the Joint Expert Reports and, most importantly, the objective documentary evidence in the present case, I am satisfied that the plaintiffs have proved, on balance of probabilities, that the alleged defects did exist in the Works done by the defendant in the Premises. I summarize and categorize them briefly as follows:-
92.The existence of the above defects rendered the defendant in breach of the express terms of the Agreement as I have found above, as well as the implied conditions under the SOGO and the SS(IT)O. Flea Problem 93.Apart from the defective works done by the defendant, the plaintiffs also complained about the flea problem, which they alleged, was brought into the Premises by the wooden furniture made and provided by the defendant. 94.The defendant denied the flea problem in its entirety and sought to rely on the defendant’s expert’s opinion that he did not see any live insects on the day of Joint Inspection. Further, the defendant contended that even if the fleas did exist, which it denied, they must have come from other sources, not from the wooden furniture made or provided by the defendant. I have no hesitation to reject the defendant’s submission in this regard. 95.First, I accept P1’s evidence that:-
96.Second, P1 was able to provide the court with ample and overwhelming evidence to support her account of the flea problem. For instance, the 80 pages of Dead Fleas Sample was very telling, one could hardly imagine how disgusting and frustrating it was to live in the Premises with these countless fleas. 97.Third, in its letter dated 23 August 2012 to the plaintiffs, the defendant acknowledged the fact that Mr Leung Kwok Chu (“Leung”), the contractor of the Works, had on 5 July 2012 taken away 2 samples of flea from the Premises and allegedly brought them to the factory in China for further investigation. In the same letter, the defendant also stated that it had arranged 2 times of pest control for the plaintiffs on 11 July 2012 and 18 July 2012. In my view, this is clear evidence that the defendant did have notice and/or knowledge of the existence of fleas in the Premises. 98.Fourth, even after the day of Joint Inspection, insects and fleas were still found in the Premises. In particular, the defendant’s surveyor’s report prepared by Assured Reliance (HK) Ltd (“ARL”) after its site inspection at the Premises on 29 August 2012, admitted that insects were found in the Premises, and photos were taken accordingly. Not only that, the plaintiffs’ expert has conducted another inspection in the Premises in early September 2012, and once again, he found fleas and other insects in the wooden furniture. Photos of those insects were also taken. 99.By reason of the above, I am satisfied that it is more likely than not that the flea problem was brought into the Premises by the defendant through the wooden furniture and/or material that they provided to the plaintiffs. Hence, I find that the defendant is in breach of the implied conditions under the SOGO and the SS(IT)O. Clearly, they are fundamental breaches which go to the root of the Agreement. (III) Quantum of Damages 100.As I find the defendant to be liable, I now turn to assess the quantum of damages that I shall award to the plaintiffs as a result of the defendant’s various breaches. Diminished value of the Works 101.Both experts stated their respective assessment on value of works done by the defendant in the Joint Expert Reports: the plaintiffs’ expert’s assessment on the total value of the Works done by the defendant is HK$255,539, while the defendant’s expert’s assessment is HK$334,280. 102.As evinced by the receipts issued by the defendant or its related company, it is undisputed that the plaintiffs had paid to the defendant a total amount of HK$308,200 for the Works. 103.As I have explained in detail above the reasons why I prefer the plaintiffs’ expert evidence and reject the defendant’s expert evidence, for the same reasons, I further accept the plaintiffs’ expert valuation of the Works done by the defendant. 104.Adopting the plaintiffs’ expert’s assessment, the actual value of the Works done by the defendant would worth HK$52,661 less than the amount that the plaintiffs had paid for. Judging from the seriousness of flea problem and the congeries of defects as I have found as a matter of fact, I find the plaintiffs’ experts assessment to be reasonable and appropriate in the circumstances of the case. Hence, I find the defendant liable for HK$52,661, being the difference between HK$308,200 and HK$255,539, under this head. Costs of rectification by Everart 105.Under this head, the plaintiffs claim a total sum of HK$328,455 for rectification works done by another contract, Everart. As submitted by the plaintiffs’ counsel, it is no doubt correct that even if the Works are of some value (HK$255,539 as assessed by the plaintiffs’ expert), it does not mean that the plaintiffs would have to accept the Works in their defective state and be debarred from rectifying the defects: see Grace Garments Ltd v Tajmahal’s Ltd [1974] HKLR 239. 106.The plaintiffs are clearly entitled to rectify the defective works. However, the amount of costs of rectification this court would allow must be subject to the principle of reasonableness and necessity. Even if the defendant is liable for its defective Works, as I have found, it does not necessarily mean that the plaintiffs are free to incur any costs of rectification as they wish without limitations. 107.Pursuant to the 2 invoices from Everart to the plaintiffs dated 30 November 2014 and 16 February 2015 respectively (“Invoice A” and “Invoice B” respectively), the plaintiffs have paid Everart a total sum of HK$406,875 for their rectification works done in the Premises, which commenced in August 2014 and was completed in December 2014. 108.The plaintiffs has sensibly waived and excluded a total sum of HK$78,420 for costs of items which they regarded either as an upgrade of items under the Agreement, or items which were not included in the Agreement. I agree this is the proper course to take. Had the plaintiffs not expressly waived and excluded these items, I would not allow them in any event. 109.The gist of the plaintiffs’ submission for damages under this head is that the court should allow the amount of HK$328,455 (being HK$406,875 – HK$78,420) in full because, apart from items 9, 15 and 20 of Invoice A, the defendant’s solicitor did not challenge the reasonableness or necessity of the items contained in the invoices issued by Everart during the cross-examination of P1. 110.I agree that the defendant’s solicitor has failed to put to P1, during her cross-examination, a great deal of matters in the defendant’s case, and therefore he is not entitled to submit on those areas in his closing submissions. Only items 9, 15 and 20 of Invoice A have been asked, and P1 was able to provide a reasonable explanation as to why these items required replacement. I accept P1’s evidence that:-
111.The plaintiff’s expert evidence in this regard largely supports P1’s account. However, in relation to Item 9, he was of the opinion that the bathroom door merely required repair but not replacement, and the estimated cost for repairing the bathroom door is HK$500. I agree. The plaintiffs could not justify why a replacement of the door, changing it from a normal door to a sliding door, was reasonable and necessary while their own expert only recommended the appropriate course to take was to repair it. I would therefore only allow HK$500 for this item. Since this amount has already been accounted for as one of the items under the head of Diminished Value of the Works, to allow it under this head would be a double counting of damages. 112.In relation to item 15 of Invoice A, the plaintiffs’ expert was of the opinion that the costs for replacement and repair of the toilet bowl would be HK$1,200. I agree with this amount. Again, since this amount has already been accounted for as one of the items under the head of Diminished Value of the Works, to allow it under this head would be a double counting of damages. 113.In relation to item 20 of Invoice A, the plaintiffs’ expert suggested a total replacement of all the electrical works but he was silent on the need for re-installation of flooring on the kitchen. However, as I accept that some of the wires were buried under the floor of the kitchen, to effect a complete replacement, the re-installation of flooring on the kitchen was reasonable and necessary. I would therefore allow HK$3,000 as claimed under this item. 114.I do not agree with the plaintiffs’ submission that by reason of the fact that the defendant’s solicitor failed to challenge and/or was not entitled to challenge the reasonableness and necessity of the other items (excluding those items expressly waived by the plaintiffs and items 9, 15, 20 which have been dealt with above), the court should grant the amount in full claimed by the plaintiffs. 115.Even if the defendant’s solicitor was not allowed to make submissions on these items due to the fact that he failed to put his case, the court still has to determine what is the reasonable and necessary cost of rectification for each and every item. I now turn to consider each of them accordingly.
116.As I have allowed the costs for repairing the defective windows and pest treatment, I do not need to deal with the plaintiffs’ alternative claim in regards of these two items. By reasons stated above, I find that the defendant is liable for HK$79,007 in total under this head. Damages for inconvenience and discomfort 117.As I have found liability against the defendant for the flea problem in this case, there is no doubt that the plaintiffs will be entitled to general damages for inconvenience and discomfort they suffered. 118.I agree with the plaintiffs’ submission that there is no scientific way of translating inconvenience and discomfort into a sum of money, and the damages awarded had to be a conventional sum: see So John & Anor v Lau Hon Man & Ors [1993] 2 HKC 356. 119.While considering the amount of damages to be awarded to the plaintiffs under this head, I take into account the following matters:-
120.Given the duration and extensiveness of the flea problem, I have no hesitation to find that the plaintiffs did suffer substantial inconvenience and discomfort for a period of 2 years and 2 months. 121.Although there is no comparable authority which concerns inconvenience and discomfort cased by flea problem, I accept the plaintiff counsel’s submission that the extent of inconvenience and discomfort in this case is comparable to those brought by water seepage of moderate to serious extent. In particular, I accept that they are both persistent nuisance to daily living and affect the use of the dwelling. 122.Hence, taking into account the authorities submitted by the plaintiffs’ counsel are both more than a decade ago, I would take into account the factor of general inflation and allow general damages of HK$100,000: see Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456; Chung Che Sum v Dong Sai Ming, DCCJ 21504/2001 (unreported, 15 February 2007). Damages under the Declaration 123.As I have found above that the defendant’s delay in completion would run from 15 May 2012 to 13 June 2012, ie 30 days in total, I find the defendant to be liable of HK$30,000 (30 x HK$1,000) under this head of damages. 124.Suffice to say is that HK$1,000 per day for the defendant’s delay is a contractual sum agreed between the parties. In my view, this amount is reasonable and represents a genuine pre-estimate of loss that the plaintiffs would suffer as a result of the defendant’s delay. CONCLUSION 125.In conclusion, for the reasons stated above, I find the defendant liable for breach of the express and implied terms of the Agreement in this case. 126.I therefore would enter judgment in favour of the plaintiff in the sum of HK$261,668 as I have assessed above, which is made up as follows:
127.There will be interest for the above sum at 1% above prime rate from date of breach, ie 11 May 2012 to date of judgment and thereafter at judgment rate. 128.Costs will follow the event. I make a costs order nisithat the defendant shall pay the plaintiffs costs of this action (including costs previously reserved, if any), such costs to be paid on a party and party basis, to be taxed if not agreed with certificate for counsel. The order nisi will become absolute unless the parties apply within 14 days from the date of this judgment to vary the same.
Mr Matthew Ho, instructed by W K To & Co, for the 1st and 2nd plaintiffs Mr Andrew Wong, of Huen & Partners, for the defendant |
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