Creation & Technique Interior Design v. Chou Young Kang

DCCJ 3092/2015

[2020] HKDC 141

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.3092 OF 2015

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Before: Deputy District Judge S.H. Lee in Court

Dates of Hearing: 21 – 24 & 27 May 2019

Date of Judgment : 27 March 2020

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JUDGMENT

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1.The subject matter of this litigation has a rather long history. The earliest event in dispute goes back to 2005. These proceedings began in 2015. Hence, it is useful to start with a historical account of the major undisputed or indisputable events and of the course of these proceedings.

The plaintiff firm

2.At all material times, the plaintiff firm carried on a business of interior design and decoration works. One of its partners is Mr Wong Hau Man (Mr Wong). Mr Wong had carried on a previous firm called Innovative Interior Design (the Previous Firm).

Past & other dealings

3.Between 2001 and 2003, the defendant had engaged the Previous Firm to decorate a house at Pine Villas in Sai Kung (the Pine Villas House). In Mar 2003, the Previous Firm issued a completion statement (工程完工單) to the defendant in respect of such works.

4.In Apr 2006, the defendant paid the plaintiff $37,300 in settlement of a work order (工程單) dated 25 Jan 2006 in respect of the Pine Villas House.

5.Between 2002 and 2008, the defendant also engaged Mr Wong to work on another house at Silver Strand Lodge (the Silver Strand House) and a flat at Hillview Court (the Hillview Court Property) both in Sai Kung.

6.In Nov 2006 and Mar 2008, the plaintiff issued respectively a work order (工程單) and a completion statement (完工單) to the defendant for decoration works at the Silver Strand House. In Jan 2007 and Feb 2008, the defendant paid the plaintiff $83,680 and $86,400 respectively in full or partial settlement of them. In June 2008, the defendant also paid the plaintiff $5,080 for materials purchased by it and supplied to the Silver Strand House.

7.In Mar 2010, the defendant asked Mr Wong for, and Mr Wong furnished him with, another quotation for decoration works at the Silver Strand House.

The defendant

8.At all material times between 2005 and 2010, the defendant and his wife (the Wife) owned all the shares[1], and were the only 2 directors, of Tin Lung Knits Ltd (Tin Lung) who owned the Hillview Court Property.

9.At all material times, the defendant was also the owner of the subject property i.e. House 34, Bella Vista in Sai Kung (the House)[2]. The House has 2 storeys, a roof and a garden.

Decoration for the House

10.In or about Dec 2005, the defendant engaged the plaintiff to carry out various decoration works to the House.

The 2004 Quotation

11.The defendant admitted under cross-examination that the plaintiff had first prepared and supplied him a 4-page quotation (工程報價單) with (工程單編號) No.0009 dated 14 Nov 2004 in the total sum of $457,840 for the said decoration works (the 2004 Quotation). He was not satisfied with it and had crossed it out on each of its 4 pages.

The 2005 Quotation

12.The plaintiff had later provided the defendant with a 6-page quotation (工程報價單) with (工程單編號) No.0009 dated 8 Oct 2005 in the total sum of $780,030for the said decoration works (the 2005 Quotation).

13.As was shown by the 2005 Quotation, the said decoration works were to be carried out at, inter alia, various parts of the House:

(1)  living room (the Living Room), guest toilet (the Guest Toilet), master toilet, kitchen (the Kitchen), maid’s room, guest room all on G/F;

(2)  master toilet, guest toilet, family room, bedroom, master bedroom all on 1/F; and

(3)  the roof

and they included interior decoration, lighting, electrical and drainage works.

Payment terms

14.There is serious dispute as to what document(s) evidenced parties’ oral contract. Irrespective of its outcome, it is common ground that the agreed payment terms for the said decoration works are as per these Chinese words:“甲方須付乙方定金30%，工程中期付40%，完工交回單位時付20%，完工後15天内付尾數10% (bold supplied)”(The Payment Terms). The Payment Terms also appear in the 2005 Quotation.

The List

15.In respect of the said decoration works at the House, the defendant had alsohimself prepared, and provided the plaintiff with, a 2-page 34-item detailed list entitled【碧濤花園34號裝修工程概要】dated 20 Oct 2005 (the List). The List has no pricing information.

Works duration

16.The plaintiff began the said decoration works at the House in about Dec 2005. It not only carried out works at the House, but also purchased materials on defendant’s behalf and supplied them to the House. The said decoration works lasted until Feb 2010.

Staged payments

17.The defendant had paid the plaintiffone deposit and 4 partial paymentstotaling $970,000 for the said decoration works (the Staged Payments) as follows:

(1) 6 Dec 2005 - $270,000 (deposit);

(2) 23 Oct 2006 - $200,000;

(3) 14 Feb 2007 - $200,000;

(4) 8 June 2009 - $200,000; and

(5) 5 Feb 2010 - $100,000.

Materials payments

18.The defendant had also made the following payments totaling $213,778 to the plaintiff in settlement of materials purchased by plaintiff on its behalf and supplied to the House, namely: -

(1)  $105,300 in Dec 2006;

(2)  $100,000 in Nov 2008 (towards partial payment ofthe Sunaletc Invoice, see below); and

(3)  $8,478 in Mar 2009

(collectively the Materials Payments).

Work progress

19.Though it is disputed whether or not and, if so, how much and when the plaintiff had completed the said decoration works, and when the defendant had retaken possession of the House, the progress of the said decoration works by July 2009 was captured by considerable number of photos of different parts of the House taken by the plaintiff in July 2009 and produced at trial[3].

20.In the meantime, correspondences were exchanged between parties from about May to Aug 2009.

Return of keys

21.It is not disputed that the plaintiff had by 5 Feb 2010 returned all the keys of the House to the defendant i.e. the same day of defendant’s last payment for the said decoration works.

22.And further correspondences were exchanged between parties from about May to Dec 2010.

Dishonored cheque

23.On or about 28 Oct 2010, the defendant once issued and gave plaintiff a cheque in sum of $34,115.20 in purported settlement of security (burglar alarm) system installed at the House by Chubb Hong Kong Ltd. He, however, countermanded payment of the said cheque on 29 Oct 2010.

Harassment of defendant

24.On 8 Dec 2010, the defendant wrote to the plaintiff complaining of harassment of him over the phones, in person at public place, at his residence and office, and harassment of his female staff, by “rogues” engaged by the plaintiff. Under cross-examination, Mr Wong admitted the same.

Lawyers instructed

25.On or about 12 May 2011, the plaintiff by its 1^st former solicitors issued letter to the defendant and the Wife demanding payment of alleged outstanding balance of $767,595.20 for works done and materials supplied at the House (the 1^st Letter).

26.On or about 31 May 2011, solicitors on instructions of the Wife[4] replied to plaintiff’s 1^st former solicitors denying all plaintiff’s allegations in the 1^st Letter and demanding from plaintiff copies of all plaintiff’s contract and invoices of alleged renovation works of the House to verify plaintiff’s claim.

27.In Apr & May 2012, the defendant wrote to the plaintiff complaining of alleged threats of violence to him. In reply, the plaintiff strenuously denied the same.

28.On or about 23 June 2014, the plaintiff by its 2^nd former solicitors issued letter to the defendant saying that he had failed to pay $767,595.20 as demanded in the 1^st Letter. Putting on record that the plaintiff had duly furnished him with relevant completion invoice (完工單) and purchased material invoice (購買項目發票), they demanded the defendant to pay alleged outstanding balance of $769,334.20 for works done and materials supplied.

This action began

29.On 6 July 2015, the plaintiff by its 2^nd former solicitors issued writ indorsed with statement of claim (SOC) seeking to recover alleged outstanding balance of $767,595.20 for works done and materials supplied for the said works at the House.

Plaintiff’s case

30.The plaintiff puts its case at para 11 of SOC as one for balance of the contract sum for “works done and materials supplied” to the defendant pursuant to “an oral contract evidenced in writing”.

31.At para 3 & 4 of SOC, the plaintiff says that it “has carried out various works at the House” and “supplied various materials to the defendant” pursuant to defendant’s instructions “throughout the working period from about Dec 2005 to about early Feb 2010”, and that it “finished all of then contracted decoration works on or about 10 July 2009”.

32.At para 5 of SOC, it was pleaded that “throughout the working period, the plaintiff has sent to the defendant quotations and amended quotations containing the description of various works and supporting documents for the purchase of materials and equipment supplied with price information for confirmation. In accordance with such confirmations, the plaintiff has carried out the works… and supplied various materials to the defendant … (italics supplied)”.

33.At para 6 of SOC, it was pleaded that “in or about July 2009, the plaintiff sent to the defendant a Completion Statement/Invoice with a Purchased Material Invoice dated 23 July 2009 (the 2009 Completion Statement and the 2009 Material Invoice respectively) for payment of the balance of the contract sum …”.The total amount stated in the 2009 Completion Statement is admittedly $1,574,960 and that in the 2009 Material Invoice is $154,885.20.

34.According to para 4, 7 & 10 of SOC, at defendant’s request, the plaintiff carried out additional works and supplied additional materials to the House after July 2009 and an additional amount of $7,750 is payable by the defendant.

35.Hence, the alleged outstanding balance of $767,595.20 the plaintiff sought recovery is arrived at by the calculation of $1,574,960 + $154,885.20 + $7,750 - $970,000.

Development of defence before trial

36.On 25 July 2015, defendant’s solicitors filed on behalf of defendant acknowledgment of service.

37.In Aug 2015, the defendant filed Defence & Counterclaim (D&C). Two years later, he effected major changes to it by filing Amended Defence & Counterclaim (AD&C) on 25 Sept 2017.

Defence & Counterclaim

38.At para 4 of D&C, the defendant avers that he had engaged the plaintiff to carry out renovation works to the House as per the List and the 2005 Quotation and that the parties had verbally agreed that the said works would be completed within 12 months.

39.The defendant avers at para 5 of D&C that the plaintiff has failed to complete by July 2009 and, on his taking possession of the House around beginning of 2010, he found incomplete works and materials defective in quality, and he immediately requested the plaintiff to rectify.

40.At particulars given for para 5 of D&C, the defendant avers that there was water seepage on Guest Toilet (the Water Seepage) on his taking possession of the House. It persisted and worsened such that he had engaged Yick Fung Engineering & Design Ltd (Yick Fung) in or about Apr 2015.

41.It was pleaded that Yick Fung inspected and discovered i) a crack at the flush water pipe in the Guest Toilet which has deteriorated over a period of time (the Flush Water Pipe Defect) and also detected ii) seepage at the joint of the drainage pipe connecting the rooftop through the Guest Toilet to ground floor drain (the Drainage Pipe Defect).

42.At particulars given for para 5 of D&C, the defendant also raised iii) the Rusts Defect; iv) the Pipe Defect; and v) the Sewer Pipe Defect later defined in AD&C.

43.“Save for receiving various amended quotations (bold, underline and italics supplied)”, the defendant does not admit para 5 of SOC: see para 6 of D&C. The defendant avers that “most of the materials were purchased by himself (italics supplied)” and puts the plaintiff to proof.

44.The defendant denies para 6 of SOC and avers that he “has never received (italics supplied)” the 2009 Completion Statement and the 2009 Material Invoice: see para 7 of D&C.

45.The defendant suggested at particulars of para 7 of D&C that he had made total payment of 1.39M odd to the plaintiff from Dec 2005 to Jan 2010 for the works covered by the List and the 2005 Quotation.

46.The defendant further denies para 7 & 10 of SOC: see para 8 & 11 of D&C. He avers at para 11 of D&C that “no additional work and/or materials supplied were at the request of the defendant to the plaintiff”.

47.The defendant only counterclaimed at D&C for such sum for engaging Yick Fung to identify the Flush Water Pipe Defect and the Drainage Pipe Defect by inspection, complete and remedy the works in the Guest Toilet and the Living Room.

Amended Defence & Counterclaim

48.At para 3(vi) of AD&C, the defendant first avers that “Mr Wong orally informed the defendant that the contract price has to be increased to about $900,000 which was agreed by the defendant. The defendant was not given any revised quotation or contract, but after the commencement of this action…, the defendant knew that the exact agreed price of the contract was $895,242 from a document dated 29 Oct 2005 and titled “工程合約” disclosed by the plaintiff (bold and italics supplied)”.

49.At para 3A of AD&C, the defendant for the first time avers that, apart from the 2005 Quotation, he “has never receivedany further quotation or document from the plaintiff in respect of the renovation and decoration works of the Houseprior to the commencement of this action (italics supplied)”.

50.The defendant advanced for the first time at para 4A of AD&C that he suffered loss of enjoyment of the House as a result of (i) plaintiff’s alleged undue delay in completing the renovation works of the House; and (ii) nuisance caused by defects in plaintiff’s renovation works. And he expanded his counterclaim to seek damages for his alleged loss of enjoyment.

51.The defendant changed from a simple denial of para 4 of SOC at para 5 of D&C to plead at para 5 of AD&C: “Paragraph 4 is denied, in particular, the defendant denies that there was any additional works apart from the additional works agreed by the defendant as set out in Schedule 1 annexed hereto (the Agreed Additional Works) (italics supplied)”[5].A 3-page 38-item Schedule 1 giving detailed particulars of the Agreed Additional Works totaling $208,320 was annexed to AD&C (Schedule 1).

52.At para 5 of AD&C, the defendant clarified to say that he eventually took possession of the House from the plaintiff in around Feb 2010.

53.The defendant first gave particulars at para 5(i) of AD&C of alleged renovation defects he allegedly demanded the plaintiff to rectify in his letter dated 25 June 2010 by reference to Schedule 2 annexed thereto (Schedule 2), which covers many parts of the House and extend even to alleged matters complained of in defendant’s letters dated 27 Oct 2010 and 8 Dec 2010.

54.At para 5(ii) of AD&C, the defendant avers for the first time that the plaintiff had used alleged “poor quality bagasse board” to build cabinets at the Kitchen, thus causing moulds and worms to be found in such cabinets.

55.At para 5(iii) of AD&C regarding the Drainage Pipe Defect, the defendant avers for the first time that the said joint of the drainage pipe was “defectively installed(italics supplied)” by plaintiff inside the wall partitioning the Living Room and the Guest Toilet.

56.The defendant changed from non-admissionof para 5 of SOC at para 6 of D&C to one of denial at para 6 of AD&C, which reads: “Save as to having receiving [the 2005 Quotation]…, para 5 is denied. It was averred that apart from [the 2005 Quotation], the defendant has never received from the plaintiff any further quotation or amended quotation or supporting document for purchase of materials and equipment prior to the commencement of this action (italics supplied)”.

57.At para 7 of AD&C, the defendant clarified to say that he has never received the 2009 Completion Statement and the 2009 Material Invoice “prior to the commencement of this action (italics supplied)”.

58.At para 7 of AD&C, the defendant first alleged that “the agreed contract price is $895,242 plus the costs of the Agreed Additional Works, instead of $1,574,960 as alleged (bold and italics supplied)”.

59.Save repeating that most of the materials were purchased by himself at D&C, the defendant added at para 6 of AD&C that he“used to make payments to the plaintiff whenever the plaintiff informed him of having purchased materials or equipment on his behalf (italics supplied)”.

60.The defendant at second para 7B of AD&C reduced the total of his 9 payments to the plaintiff between Dec 2005 and Jan 2010 to $1.18M odd. Out of these 9 payments, the defendant admitted at para 7C of AD&C that 4 of them were applied by the plaintiff “in settlement of amounts paid by plaintiff for materials and/or appliance purchased by the plaintiff for the defendant (italics supplied)”

61.Hence, at para 7D of AD&C, the defendant avers that he had paid $970,000 to the plaintiff for the works as per the List and the 2005 Quotation, which was “part of agreed contract price of $895,232 plus the costs for the Agreed Additional Works (bold and italics supplied)”.

62.At para 7 and 1^st para 7B of AD&C, the defendant introduced a limitation plea that all such amounts claimed by the plaintiff for materials and equipment purchased for the defendant, save for 3 invoices below, were incurred more than 6 years before issue of writ and thus the maximum amount that the plaintiff is entitled to claim is limited to $13,536 (the 1^st Limitation Plea).The 3 invoices not so time-barred are: -

(1)  invoice in sum of $135,242 dated 25 July 2009 issued by Sunaltec Design & Decoration (Shenzhen) Co Ltd(the Sunaltec Invoice) (the defendant also alleged at para 7A of AD&C that the plaintiff had “double-charged” by repeating $26,800 of the works of the Sunaletc Invoice in the contract price of $895,242);

(2)  invoice in sum of $694 dated 15 July 2009 issued by I. Lighting & Switches Ltd; and

(3)  invoice in sum of $4,400 dated 21 Aug 2009 issued by H2O (pro) (Right Century Ltd).

63.At para 7E of AD&C, the defendant introduced another   limitation plea to aver that, based on the Payment Terms, the plaintiff is barred by s.4(1) of Limitation Ordinance, Cap.347 (LO) from claiming first 70% renovation fee as they had accrued in early 2008 by the latest (the 2^nd Limitation Plea).

Development of defence during trial

64.The parties have, in Feb 2018, identified in their agreed joint statement of issues in dispute as many as 20 issues for trial. Mr David Fong appearing for the defendant (Mr Fong) abandoned many of them after, or even before, their pursuit at trial.

65.Mr Fong first accepted in his written opening submissions that any counterclaim first introduced in AD&C for alleged defendant’s loss of enjoyment of the House due from alleged delay of completion is time-barred and decided not to pursue at trial defence allegation of delayed completion, including alleged verbally agreed completion period of 12 months, and defence claim of loss of enjoyment as a result.

66.At the outset of the 3^rd day of the trial, Mr Fong further abandoned: -

(1)  alleged “double-charging” of certain items of Sunaletc Invoice by the plaintiff; and

(2)  the Rusts Defect, the Pipe Defect and the Sewer Pipe Defect as defined in AD&C.

67.By his oral closing submissions, Mr Fong elected also not to pursue:

(1)  the allegation of the plaintiff having used “poor quality bagasse boards” to build cabinets at the Kitchen;

(2)  the 2^nd Limitation Plea.

Scott Schedule

68.At pre-trial review, parties were directed to prepare, and MrPatrick Szeto appearing for the plaintiff (Mr Szeto) and Mr Fong have helpfully prepared, a Scott Schedule (the Scott Schedule) setting out parties’ respective cases of the amount of:

(1)  contracted work agreed between the parties;

(2)  materials purchased by the plaintiff on defendant’s behalf;

(3)  additional works agreed between the parties;

(4)  all payments made by the defendant to the plaintiff; and

(5)  balance due from one party to the other.

As parties have reached agreement on item (4) as indicated above, I will focus my discussion below on parties’ respective cases on items (1) to (3) and defendant’s remaining counterclaim.

69.Before that, I will first give my general assessment of the evidence.

Discussion

Documentary evidence

70.There are, on my rough estimate, 800 to 900 pages of documents adduced into evidence, with less than 100 pages from the defendant and the rest from the plaintiff.

(1)  Defendant’s documents mainly consist of the 2005 Quotation, the List, defendant’s various letters to the plaintiff in 2010 and 2012, documents related to Yick Fung and defendant’s own payment records.

(2)  Plaintiff’s documents mainly consist of (i) quotations, contract, orders and invoices issued to the defendant regarding works at and/or materials supplied to the House; (ii) about 150 pages of work papers like memo, drawings, plans and notes between parties (the Work Papers); (iii) parties’ correspondences in 2009 and 2010; (iv) photos taken by plaintiff; (v) payment records between parties; and (vi) documents in respect of materials purchased from third parties.

71.Nine category (i) plaintiff’s documents that have appeared in the evidence from time to time (collectively the Plaintiff’s Quotations & Invoices) are:-

(1)  The 2004 Quotation (工程報價單) in total sum of $457,840;

(2)  The 2005 Quotation (工程報價單) in total sum of $780,030;

(3)  One 6-page contract (工程合約) with (工程單編號) No.0009 dated 29 Oct 2005 in total sum of $895,242 (the 2005 Contract);

(4)  One 9-page work order (工程單) with (工程單編號) No.0009 (R-1) dated 5 Oct 2006 in total sum of $1,275,612.40 (the 2006 R1 Order);

(5)  One 16-page work order (工程單) with (工程單編號) No.0009 (R-2) dated 12 Dec 2008 in total sum of $1,434,100 (the 2008 R2 Order);

(6)  One 1-page purchased material invoice (購買項目發票) with (工程單編號) No.0009 dated 12 Dec 2008 in total sum of $127,743.20 (the 2008 Material Invoice);

(7)  The 2009 Material Invoice (購買項目發票) consisting of 2 pages with (工程單編號) No.0009 dated 23 July 2009 in total sum of $154,885.20;

(8)  The 2009 Completion Statement (完工單) consisting of 17 pages with (工程單編號) No.0009 dated 23 July 2009 in total sum of $1,574,960;

(9)  One 17-page completion statement (完工單) with (工程單編號) No.0009 dated 2 May 2011 in total sum of $1,582,710 (the 2011 Completion Statement).

72.As neither side took step to challenge the authenticity of any of parties’ documents adduced at trial, I find all of them genuine documents i.e. made by such maker(s), and to such recipient(s), identifiable on their face or identified in the evidence.

73.In particular, I am satisfied that correspondences had been made by or to the defendant as the documents themselves purported to show despite he answered Mr Szeto at trial that he had “no impression” or “no strong impression” of them.

74.For example, I find that he did send a letter dated 24 July 2009 by fax to the plaintiff despite he claimed “no impression” of it. The admitted fax number of, and the fax record of, Tin Lung is prominent at the top of the letter.

75.Were the defendant to claim that he never received or sent certain correspondences, one would have expected him to “disagree” with Mr Szeto (as he did with e.g. the 2009 Completion Statement) and not to have answered “no strong impression”.

76.Considering the contents of those correspondences that the   defendant had selectively answered so as aforesaid, I have formed the distinct “impression” that he had so answered to avoid embarrassing contents made by him or incriminatory contents adduced against him, and not because of lapse of memory over time.

77.Save except with the 2009 Completion Statement, I also accept all parties’ documents adduced at trial as contemporaneous documents because both sides had not challenged nor successfully challenged the accuracy of their dates.

78.Regarding the 2009 Completion Statement dated 23 July 2009, considering the words “完工單已差不多完成” appearing at the bottom of the plaintiff’s letter dated 24 July 2009 to the defendant, Mr Wong agreed with Mr Fong, and I find, that it had not been ready by 24 July 2009.

79.Mr Fong further submitted that the 2009 Completion Statement had not been ready even by 14 Aug 2009, such that Mr Wong had been discredited on, he argued, his central evidence that the 2009 Completion Statement, and the 2009 Material Invoice, had been sent by fax to the defendant by 31 July 2009.

80.Mr Fong relied on plaintiff’s letter dated 14 Aug 2009, where the plaintiff only asked the defendant to pay $410,000 in these words “請付款90%，41萬（付師傅人工及材料費用等項目）”, which, Mr Wong agreed with Mr Fong, came from Mr Wong’s own handwritten entry on 24 June 2009[6] on one 工程預計時間表 in form of a calendar with entries from 3 May to 30 June 2009 (the Timetable).

81.On plaintiff’s case of completion by July 2009 thus entitling the plaintiff to claim, on the Payment Terms, 100% of works 15 days after completion, had the 2009 Completion Statement and the 2009 Material Invoice been sent by fax to the defendant by 31 July 2009 as claimed, there was no reason, argued Mr Fong, for Mr Wong to have requested the defendant to pay as little as $410,000 on 14 Aug 2009. Mr Wong agreed with Mr Fong that as much as $704,960 was due after the issue of the 2009 Completion Statement i.e. $1,574,960 thereof less $870,000 total part-payments paid up to then (not to mention $154,885.20 also due on the 2009 Material Invoice).

82.In re-examination, Mr Wong answered Mr Szeto that he arrived at the sum of $410,000 requested from the defendant by adding the approximate total sum of $130,000 in the 2008 Material Invoice to 40% of $704,960 i.e. approximating $280,000.

83.Mr Szeto submitted that the letter dated 14 Aug 2009 was more like a request of lump sum payment than a formal demand with particulars of individual items of works. It was nothing extraordinary, and there was every reason, for the plaintiff to request a lesser sum than it was entitled to by way of parties’ strict contractual rights, especially when the defendant had been, and would likely be, unwilling to pay in full. The plaintiff still obtain benefit in getting at least some payment, which is, after all, better than nothing.

84.I agree with Mr Szeto. His submissions make commercial sense to me and accord, I note, with parties’ previous and subsequent conducts on the correspondences.

(1)  Though the plaintiff demanded the defendant to pay $330,000 (or 70% of works done) on 19 May & 1 June 2009, the defendant only paid it a lesser sum of $200,000 on 8 June 2009.

(2)  By a letter dated 8 June 2009 to the defendant, the plaintiff   made it clear that the lump sum of $410,000 requested for 90% of works done was approximate figure i.e. “約數”.

(3)  As late as in Dec 2010, as Mr Szeto rightly noted, the plaintiff also offered to allow the defendant to pay as little as 1/3 of outstanding sum of $767,595 first.

85.Hence, I disagree with Mr Fong’s submission that the 2009 Completion Statement had not been made ready even by 14 Aug 2009, or that Mr Wong’s evidence that the same and the 2009 Material Invoice had been sent by fax to the defendant by 31 July 2009 should be disbelieved for this reason.

86.In light of the words “已差不多” in the same letter and other evidence to be discussed below, I find it likely that the 2009 Completion Statement, and the 2009 Material Invoice, was ready (and had been sent to the defendant by fax) by 31 July 2009 as Mr Wong said.

87.On matters in dispute, unless otherwise stated below, I give full weight to the contents of parties’ documentary evidence, including legible, intelligent and contemporaneous handwritten remarks on them such as the words “已 fax周生“ at top right corner of the 2006 R1 Order, and prefer them to witnesses’ testimony before me.

Expert Report

88.In June 2018, Mr Vincent Chung (Mr Chung) was appointed as parties’ single joint expert on liability. On 13 July 2018, he inspected the House.Mr Chung’s single joint expert report dated 7 Sept 2018 (the Expert Report) was ordered to be admissible as evidence at trial without calling him.

89.All things considered, I give full weight to contents of the Expert Report. But its limitation is that it addressed the conditions of the House in July 2018 i.e. many years after the events in dispute. And Mr Chung has apparently not considered photos taken by Yick Fung in 2015 referred below (nor witness statement of Mr Chan below) in giving his opinion.

Factual witnesses

Mr Chan

90.Mr Chan Suet Fung (Mr Chan), a director of Yick Fung, gave factual evidence on defendant’s subpoena by adopting his witness statement dated 24 Aug 2017.

91.Mr Szeto did not dispute Mr Chan’s evidence save except as to the month of April 2015 in which Mr Chan allegedly took his photos of the House (the 2015 Photos) annexed as Annexures 1 & 2 to his witness statement. Such challenge is, I think, valid as the annexures give different months on their face. I agree with Mr Fong that the said difference is likely a typographical mistake and accept that the 2015 Photos were taken in May and July 2015 instead.

92.I find it likely that Mr Chan had inspected the House in May & July 2015, took the 2015 Photos, and that Yick Fung had by Aug 2015 carried out such works itemized as (A), (B) & (C2) of its unsigned quotation dated 7 May 2015 to the defendant and was paid $27,270 by the defendant.

93.With the above correction and clarification, I accept the rest of Mr Chan’s factual evidence and give them full weight.

The defendant

94.The defendant, aged about 85 at trial and provided by court with hearing aid and magnifying glass, elected to give evidence from his wheelchair at the witness stand assisted by court interpreter. He adopted his witness statement dated 12 June 2017 and his supplemental witness statement dated 22 Sept 2017.

95.Having made full allowance for his old age, his health and the long lapse of time, I am afraid I do not find the defendant a reliable or truthful witness.

96.The defendant gave, I think, illogical and self-contradictory answers. His defence case or assertion is not consistent over time. His evidence cannot stand against the contents of the contemporaneous documents, including his own documents. And his evidence is inherently improbable and incredible.

97.For example, he complained of delay in completion in D&C and raised a counterclaim of loss of enjoyment for that in AD&C, only to have it abandoned at trial. Under cross-examination, he effectively agreed with plaintiff’s reply by answering Mr Szeto “possibly, but no strong impression” that works had stopped almost completely at the House from 2007 pending his choice of wood materials and that they did not resume until after he made up his mind in 2009.

98.To give another example, I find it likely from the planning evidenced by the Timetable, the contemporaneous correspondences, the number of photos taken by plaintiff of various parts of the House in July 2009, the progress captured by these photos that the plaintiff had substantially completed its works at the House by, and that completion did take place on or about, 10 July 2009, with the defendant inspecting the House and accepting completion of the works done generally. On 2 May 2012, the defendant also wrote to the plaintiff to say: “2009年中前後，裝修工程基本完工”.

99.As the defendant agreed under cross-examination, the plaintiff has returned the keys of the House to him in stages, with those of the main door returned first. That was so because he left behind the key to the backdoor of the House with the plaintiff for it to carry out rectification works. I find it likely that possession of the House had already been returned to the defendant in July 2009 with most keys of the House then returned to him with the last key i.e. that of its backdoor returned to him in Feb 2010.

100.Reading the contents of defendant’s numerous letters to the plaintiff in 2009 and 2010 requiring the latter to follow up on various matters, including on choice of materials and appliances to be purchased, manner of their installation, quality of works done and rectification works, I cannot but observe that the defendant was very meticulous, outspoken and of strong-minded in those days. Mr Szeto’s description of defendant having close oversight over every details of the works at the House as “瞭如指掌” in cross-examination is, in my view, most apt. For instance, he was able, and saw fit, to point out to the plaintiff on 27 Oct 2010 that one halogen lamp (石英燈) costing as little as $100 at the Guest Toilet could not be turned on.

101.Had the Guest Toilet suffered from seepage causing mold to form at cabinet before he took possession of the House as the defendant first claimed in his witness statement, one thinks it most likely that he would have written to the plaintiff to point that out and/or to require plaintiff’s follow-up without delay. But there is not a single reference to that effect at all in the correspondences in 2009 and 2010 before me. I disbelieve him on that.

102.Accordingly, save for admissions given by the defendant, which I give full weight, I do not accept the rest of his evidence on matters in dispute.

Mr Wong

103.The plaintiff called Mr Wong as its sole witness, who adopted his witness statement dated 12 June 2017 and his supplemental witness statement dated 17 Nov 2017.

104.I find Mr Wong generally truthful and reliable. His evidence is, I think, inherently likely and probable, supported by contemporaneous documents and defendant’s admissions. And the plaintiff’s case has beengenerally consistent over time. Overall, he was unshaken after cross-examination by Mr Fong.

105.Unless otherwise stated, I accept Mr Wong’s evidence on the matters in dispute and prefer his evidence to those of the defendant in so far they are in conflict.

Plaintiff’s claim

Agreed contract work & Additional works confirmed by defendant

106.These 2 items are, I think, related and I find it appropriate to discuss them together.

Plaintiff’s case

107.In terms of amounts, the plaintiff’s case is as follows:

(1)  The amount of agreed contract workis $895,242found in the 2005 Contract.

(2)  The total amount of agreed additional works is $687,468 i.e. $1,574,960 found in the 2009 Completion Statement less $895,242 found in the 2005 Contract plus $7,750 for alleged additional works carried out after July 2009.

(3)  Hence, the total amount of works, exclusive of materials purchased, is $1,582,710 i.e. $895,242 + $687,468.

Defence case

108.In contrast, the defence case is as follows: -

(1)  The amount of agreed contract work, said by Mr Fong and agreed by the defendant in the box, is also $895,242.

(2)  The amount of agreed additional works is the total sum of $208,320 set out in Schedule 1 of AD&C for the Agreed Additional Works.

(3)  Hence, the total amount of works, exclusive of materials purchased, is $1,103,562 i.e. $895,242 + $208,320.

Mr Wong’s evidence

109.Mr Wong said at para 7 to 9 of his witness statement that, after the 2004 Quotation, the 2005 Quotation, the List and after several discussions and amendments, the defendant finally engaged the plaintiff to proceed with decoration works at the House after plaintiff’s submission of the 2005 Contract.

110.At para 12 to 15 of his witness statement, Mr Wong said, as was his previous dealings with the defendant and common in the trade practice, there could be a number of amendments and variations of the works order and purchase of materials. The amount of the contracted sum will be varied over the work period.

111.On defendant’s request, the specifications of scope of works, said Mr Wong, varied for a number of times and revised invoices were given to defendant for confirmation. The plaintiff only proceeded after his confirmation. Very often, he put down the variations and additions in writing and sent them by fax and in person to get defendant’s confirmation by words or in writing. The quotation and works order were thus varied for a number of times and he referred to the 2006 R1 Order, the 2008 R2 Order and the 2008 Material Invoice.

112.Mr Wong added at para 9 of his supplemental witness statement that all the varied or amended invoices were issued to the defendant over the work period by fax or by hand to his office address. After the issue and delivery of the 2009 Completion Statement and the 2009 Material Invoice, he further went through the items stated therein with the defendant over the phone.

Defendant’s evidence

113.At para 3 to 10 of his witness statement, after referring to the 2005 Quotation and the List, the defendant said he orally agreed with Mr Wong to increase the price of the decoration works to $900,000. He verily believed that parties’ contract was composed of, and its “scope of work was all along confined to (italics supplied)”, the items in the 2005 Quotation and those in the List and an “agreed contract price of $900,000 (bold supplied)”.

114.The defendant said that he “has never instructed the plaintiff to carry out any additional decoration… works (italics supplied)”[7]. Apart from the 2005 Quotation, he “was not given and has no knowledge of any other quotation or document (italics, bold and underline supplied)” until this action began. Further, he has “never received” the 2009 Completion Statement now produced in this action.

115.The defendant stressed at para 6 of his supplemental witness statement that, throughout the renovation works up to this action, the plaintiff has “only provided him with [the 2005 Quotation]”. It was “after this action and a lapse of 10 years that the plaintiff alleged that there are other quotations and completion statement provided to him, which he had not received until after this action”.

116.After “perusal of the several quotations and completion statement provided by plaintiff after this action, the defendant confirmed that there were additional works done by the plaintiff (italics supplied)” i.e. [the Agreed Additional Works as per Schedule 1]. Apart from them, said the defendant, “there was no further additional works” done by the plaintiff for the renovation of the House.

Defendant’s evidence rejected

117.Having considered the relatively large size of the House on the photos and plans, the relatively large scale of works to be carried out at so many different parts of the House as shown by the 2005 Quotation and the List, the relatively long duration of time the said works ultimately lasted, it is, I think, inherently most likely and probable that variations and additions beyond those items set out in the 2005 Quotation and the List (and further materials) would be required over the course of working period for the said works.

118.The initial position of the defendant in D&C and in his witness statement that scope of parties’ contract was all along confined to the items set out in the 2005 Quotation and in the List is, with respect, improbable. No wonder it was soon abandoned afterwards in AD&C and defendant’s supplemental witness statement.

119.By trial, the defence also abandoned the agreed contract price of $900,000 pleaded in AD&C and found in defendant’s witness statement. Mr Fong put down the figure of $895,242 in item (1) of the Scott Schedule and the defendant agreed with it under cross-examination. But the figure of $895,242 came from the 2005 Contract which, on defence case, the defendant has never received from the plaintiff before this action began.

120.Defendant’s answer in the box that this figure of $895,242 was agreed upon between parties after this action began in 2015 is, I agree with Mr Szeto, illogical (the same applies to plea of exact agreed price being $895,242 at para 3(vi) of AD&C).

121.Unlike the 2005 Quotation in total sum of $780,030, the List had no pricing information. Had the plaintiff sent no other contract (such as the 2005 Contract) or quotation to the defendant before this action as claimed, one wonders how the parties could have agreed on an increased contract price of $895,242 on defence case.

122.It appears from para 6 of D&C that the defendant had once admitted that he had received “various amended quotation” as alleged at para 5 of SOC but he later withdrew from the same in AD&C. Such earlier admission, of course, supports the plaintiff’s case.

123.Defendant’s admission of Agreed Additional Works for the first time in AD&C and supplemental witness statement also supports, I think, plaintiff’s case of parties having agreed on variations and addition of works over the course of time.

124.Significantly, the defendant has never condescended into particulars how the Agreed Additional Works, as many as 38 items, came to be agreed upon in the first place.

125.Defendant’s suggestion at para 6 of his supplemental witness statement that he confirmed the Agreed Additional Works on perusal of several quotations and completion statement provided by plaintiff after this action began cannot explain how they came to be agreed upon either. As Mr Szeto submitted and I agree, this para raises more questions than it purported to answer.

126.As revealed by cross-examination, it is, one thinks, of no coincidence that, save for item 2 at 1/F cloakroom, all the remaining items of the Agreed Additional Works in Schedule 1 can be found in the 2009 Completion Statement, with identical details of item number, description, measurements, quantities and pricing (individual and total). For instance, one finds same “item 15 of Guest Toilet” of the two to be exactly the same i.e. “installation of 3 halogen lamps at ceiling costing $100 each”.

127.With agreed contract price limited at $895,242, one begs to ask why the defendant was prepared to pay, and did pay, the plaintiff the Staged Payments as much as $970,000 by Feb 2010. As explained below, he fails, I think, to give a satisfactory explanation for the same on the defence case.

(1)  On cross-examination, the defendant purported to explain by reference to costs of materials purchased. But $970,000 was all the Staged Payments. He had made the Materials Payments by 3 other payments. And he claimed that he has never received (and thus could not have known the amount allegedly due under) the 2009 Material Invoice before this action began in 2015.

(2)  By adding the total sum of $208,320 of the Agreed Additional Works to the agreed contract price of $895,242, Mr Fong stressed that the defendant had only paid 88% of the sum total of $1,103,562 i.e. $970,000/$1,103,562. The defendant had, however, never so explained the Staged Payments in the box. Had he so explained, on the defence case, he confirmed the Agreed Additional Works only after perusal of quotations and completion statement after this action began in 2015. He thus could have not known the said figure of $208,320 either before this action began.

128.As recorded by the correspondences, the plaintiff had, I note, been pressing the defendant for payment in 2009 and 2010. Mr Wong had raised with the defendant the figure of $767,595 in plaintiff’s payment reminder dated 8 June 2010 (sic). By 24 Dec 2010, the plaintiff even proposed to the defendant that each to appoint own surveyor to inspect the House and to make their respective assessment.

129.However, at no time during these times did the defendant raise with the plaintiff that he should be asked to pay only by reference to an agreed contract price of $895,242, a total sum of $208,320 for the Agreed Additional Works, or their sum total of $1,103,562, or any other combinations of these figures.

130.Instead, on 24 July 2009, the defendant saw fit to remind the plaintiff that it “had not yetsent its invoice (發票) for his payment (等著清數) and requested its delivery to be expedited! (請從速處理!)”, to which the plaintiff replied: “完工單已差不多完成” on the same day。

131.Considering defendant’s other dealings with the plaintiff over other Sai Kung properties, there is, I think, every reason to believe that the defendant was in July 2009 expecting the plaintiff to prepare a completion statement (完工單) for his settlement. As Mr Wong explained to Mr Fong, the 2009 Completion Statement served like an “invoice” for demanding payment from the defendant.

132.Looking at the subsequent correspondences, the defendant did not thereafter follow up with the plaintiff on such outstanding “invoice” required for his “settlement”. He suggested instead to the plaintiff on 17 Aug 2009 that such rectification costs payable by him to other contractors be deducted from the “outstanding balance” (在餘數內扣除). On 23 July 2010, he even wrote to Mr Wong saying he found “the so-called outstanding debt of $767,595 (所謂港幣767,595.00的欠款) wholly unconvincing and wished the plaintiff to verify its records in details (bold supplied)”.

133.In my views, the above correspondences strongly suggest that the defendant had thereafter received the 2009 Completion Statement and the 2009 Material Invoice by fax by way of “invoice” as he had earlier requested from the plaintiff and came to realize that he was said to owe a sum around the region of $767,595 to the plaintiff for works done and materials supplied at the House.

134.For the reasons above and such reasons below for accepting Mr Wong’s evidence as may be applicable here, I reject defendant’s evidence on this issue.

Mr Wong’s evidence accepted

135.I adopt such of the above reasons for rejecting defendant’s evidence as may be applicable here.

136.In line with Mr Wong’s evidence of price variation over time, the 2005 Quotation that the defendant had admittedly received expressly provides by 2 clauses at its last page[8] that its quoted contract price would be subject to variations and additions (the 2 Clauses).Indeed, the 2 Clauses were repeated in the 2005 Contract, the 2006 R1 Order, the 2008 R2 Order and the 2009 Completion Statement.

137.And, consistent with Mr Wong’s evidence as to the manner variations and amendments were reached and revised documents were delivered, the defendant agreed under cross-examination that, during the work period, there has been much communication (and exchange or delivery of documents) between the parties in persons, by telephone, by fax, by hand delivery and/or by collection at the House, the office of Tin Lung and/or the office of the plaintiff in order to discuss how the works at the House should be carried out.

138.As many as close to 150 pages of the Work Papers were, Mr Szeto also put to the defendant, sent to him during the work period for taking his instructions. The defendant admitted that he could not tell the total number as there were “so many” that were so sent to him for his instructions. Indeed, on the List he himself prepared, the defendant also asked the plaintiff for drawings on several items. That also called for defendant’s instructions in the future.

139.And many correspondences were admittedly exchanged between the parties up to 2010, and no small number of them was sent by fax to and from Tin Lung’s office, as was evidenced by fax record of Tin Lung over them.

140.All the above parties’ communication, discussion, delivery of documents, exchange of correspondences, I think, opened up and enabled the making and agreement of variations and amendments on defendant’s further instructions common-place in the trade and inherently likely in a decoration project of this scale and duration as Mr Wong said.

141.Reading the Plaintiff’s Quotations & Invoices all addressed to the defendant, one finds instances in them of contemporaneous records indicative of their delivery to, discussion with and/or contribution from, the defendant.

(1)  Handwritten record of fax delivery of the 2006 R1 Order to the defendant, and handwritten record of fax and hand delivery of the 2008 R2 Order to the defendant, is found at top right corners of the two documents.

(2)  Items of “additional works” were marked in the 2006 R1 Order, the 2008 R2 Order and the 2019 Completion Statement by express words of “後加工程” and/or an asterisk at the beginning of the items concerned.

(3)  Handwritten remarks of various sorts appear at many places of the 2005 Contract, the 2006 R1 Order and the 2008 R2 Order indicative of instructions to be sought from, and instructions given by, the defendant.

142.Furthermore, reading the Plaintiff’s Quotations & Invoices as a whole series over time as they appear, one also finds every proof that they are interlinked documents “evolving” over time, suggestive of “continuing” contribution from the defendant over the course of time.

(1)  Their Chinese names with identical reference number 0009   are, one thinks, indicative of them being in the same series.

(2)  The 2005 Quotation, the 2005 Contract, the 2006 R1 Order, the 2008 R2 Order and the 2009 Completion Statement (the 5 Documents) have, I note, more or less the same format setting out the works at different parts of the House but their respective total sums increased over time from one document to the next.

(3)  Regarding the 5 Documents, as Mr Wong explained to Mr Fong by comparing the 2006 R1 Order against the 2005 Contract, and comparing the 2008 R2 Order against the 2006 R1 Order, variations and amendments of different sorts are found to happen over time from one document to the next.

(4)  Hence, items of one document came to be deleted in the next. Election given at one document came to be selected at the next. Items turned out to become “FREE” items. And additions came to be found in the next document. Items of additional works originally marked by express words “後加工程” or with asterisk in one document came to become ordinary items without such marking or asterisk in the next.

(5)  As was put to the defendant, ordinary item 11 to 17 of the Kitchen without asterisk in the 2009 Completion Statement can be traced back in time as additional items 11 to 17 of the Kitchen marked with asterisk in the 2008 R2 Order.

(6)  As was also put to the defendant, items 14 to 17 of Guest Toilet of the Agreed Additional Works are found as additional items marked with asterisk in the 2009 Completion Statement and, further back in time, as handwritten remarks at bottom of page 2 of the 2008 R2 Order.

(7)  The 2009 Material Invoice also contains paid items (totaling $8,478 paid on 24 Mar 2009) and outstanding items which were carried forwards from the 2008 Material Invoice.

143.It makes, I think, good commercial sense for the plaintiff to put into a single document from time to time such numerous agreed variations and amendments to works in order to act as parties’ record, to obtain parties’ confirmation and to obtain payment in future. Hence, it is, I think, perfectly possible and likely for a number of such documents i.e. the Plaintiff’s Quotations & Invoices to come into being in this 5-year-long project as Mr Wong said.

144.For reasons below, it is, I think, also inherently most likely for the plaintiff to have sent the Plaintiff’s Quotations & Invoices to the defendant by fax, and also delivered by hand the 2008 R2 Order, as the case may, on or about their respective dates or by 31 July 2009 in the case of the 2009 Completion Statement and the 2009 Material Invoice, as the case may be, as Mr Wong testified in the box.

(1)  The defence affords no plausible explanation why the plaintiff would not have sent them, or did not bother sending them, to the defendant even up to the commencement of this action in 2015 (especially the Wife’s solicitors had formally demanded plaintiff’s 1^st former solicitors in 2011 for copies of contract and invoices).

(2)  Mr Fong once challenged Mr Wong about absence of printed fax report for the Plaintiff’s Quotations & Invoices. But Mr Wong has, I think, adequately explained that plaintiff’s fax machine did not have such a function at the material time.

(3)  It is, one thinks, rather strange and odd for the plaintiff to have sent the Work Papers to, and exchanged the correspondences with, the defendant (and many of them by fax) at the material times but did not do the same at the same time for the Plaintiff’s Quotations & Invoices.

(4)  There is, I think, absolutely every reason for the plaintiff to have also sent the Plaintiff’s Quotations & Invoices to the defendant at the material times.

(i)  If not made for the purpose of serving them on the defendant, one asks why the plaintiff would have spent the considerable time and efforts to have prepared them in the first place.

(ii)  The plaintiff needed to pay its employees and its contractors for the said works, as Mr Wong told Mr Fong. It was, one thinks, unlikely for the plaintiff to commit to and/or to have spent on these labour and materials without securing defendant’s confirmation to them so recorded in these documents sent to defendant.

(iii)  The plaintiff needed, one thinks, also to show to the defendant these documents in order to get its proper percentage of the Staged Payments.

(iv)  Allowing for the Staged Payments of $970,000, a balance remains due from the defendant on defence case of all the works costing $1,103,562. The plaintiff must still, one imagines, serve the defendant with at least one INVOICE advising the latter to pay the outstanding amount.As said above, the defendant had on 24 July 2009 also required the plaintiff to expedite delivery of its invoice in order for him to settle the outstanding amount.

145.It also makes good commercial sense, in my views, for the plaintiff to secure, and hence, likely for the plaintiff to have secured, defendant’s confirmation to the Plaintiff’s Quotations & Invoices as Mr Wong testified. Realistically,the plaintiff would not have commenced anywork or anyadditional works(and would not have paid for anyor anyadditional materials) unless confirmation was forthcoming from the defendant, including confirmation as to their pricing. At the end of his cross-examination, the defendant also agreed with Mr Szeto to the above effect.

146.For the above reasons, I accept Mr Wong’s evidence on this issue and prefer them to those of the defendant.

Oral contract evidenced in writing

147.Mr Fong submitted that, even if Mr Wong’s evidence is accepted, there is a lacuna in plaintiff’s evidence which fails to prove that parties have reached agreement to vary the items of work and their contract sums in the 2005 Contract to those of the 2009 Completion Statement (and, one should add, the 2009 Material Invoice) now being sued upon.

148.He first complained of lack of particulars of agreement and/or confirmations in para 5 & 6 of SOC.

149.He further laid emphasis on the following points arising from his cross-examination of Mr Wong, who: -

(1)  explained that the 2009 Completion Statement, like the 2009 Material Invoice, was like an “invoice” made for the purpose of demanding payment from the defendant. Hence, it is, he submitted, neither the contract nor a contractual document.

(2)  admitted that he had not obtained defendant’s confirmation to the total sum of $1,434,100 of the 2008 R2 Order after its delivery. Hence, no agreement was, he submitted, reached between the parties as per that said total sum.

(3)  never claimed to have sent any document in between the 2008 R2 Order and the 2009 Completion Statement for the defendant to confirm variation of the total sum of $1,434,100 in the 2008 R2 Order to that of $1,574,960 in the 2009 Completion Statement.

150.I cannot agree with Mr Fong.

151.Though I find Mr Fong’s complaint of lack of particulars justified, the defence has not sought such particulars before trial. It is thus open to the plaintiff to prove by evidence of parties’ unspecified communication and discussion conducted over the years by various means to prove its case pleaded in SOC.

152.Although Mr Wong said he had not confirmed with the defendant the total sum of $1,434,100 of the 2008 R2 Order over the phone after the plaintiff delivered the said document by fax to the defendant, he at the same time maintained, and I accept, that he had required the defendant to read all the individual items and all their individual pricing for confirmation.

153.I do not think the mere failure to require reading of, or to confirm, a single total sum prevents an agreement from being reached at law when the parties had already agreed or confirmed on all individual items with all their individual pricing.

154.And Mr Fong cited no authorities in support of his bold submissions.

155.It is also true that there was no other document passing between the parties between, say, Jan to June 2009 and the 2009 Completion Statement (and the 2009 Material Invoice) was, like an invoice, sent to the defendant after completion on or about 10 July 2009 to demand payment from him.

156.I also accept that the 2009 Completion Statement (and the 2009 Material Invoice) is neither parties’ contract nor contractual document.

157.But Mr Fong overlooks, I think, that they also serve as evidence of parties’ oral contract. The plaintiff’s case in SOC is an “oral contract evidencing in writing (italics supplied)”. Parties reached their agreements orally and these documents are evidence of such oral agreements which came into being from time to time based on numerous communication and discussion.

158.On Mr Wong’s evidence that I accept, I find that the 2009 Completion Statement and the 2009 Material Invoice are accurate record of parties’ previous oral agreements of works, including additional works, and materials purchased for the House (especially one bears in mind Mr Wong’s evidence in the next paragraph).

159.In any event, I have also accepted Mr Wong’s evidence at para 9 of his supplemental witness statement that he had over the phone gone through with the defendant all the items in the 2009 Completion Statement and the 2009 Material Invoice after their delivery to the defendant. Were I wrong on my analysis above, defendant’s agreement to the works and materials recorded in these 2 documents can also, I think, be so inferred.

160.I therefore reject Mr Fong’s lacuna submissions above.

Additional works & materials after July 2009?

161.On plaintiff’s case, this is put at $7,750 at para 10 of SOC and is evidenced by the difference in the respective total sums of $1,574,960 and $1,582,710 found in the 2009 Completion Statement and the 2011 Completion Statement.

162.At para 37 of his witness statement and under cross-examination, Mr Wong could only point to: 

(i)  an invoice (or cash memo) in sum of $694 dated 15 July 2009 issued by I. Lighting & Switches Ltd; and

(ii)  an invoice (or receipt) to the plaintiff in sum of $4,400 dated 21 Aug 2009 issued by H2O (pro) (Right Century Ltd)

to explain this claim allegedly totaling $7,750. He could not explain further. Neither did Mr Szeto elect to re-examine Mr Wong to clarify by reference to the 2 documents or otherwise.

163.The said 2 invoices are, I note, exactly 2 out 3 invoices that the defendant had admitted by way of materials purchased on his behalf and agreed not to be time-barred under the 1^st Limitation Plea.

164.Hence, I find that the plaintiff has only proven additional materials purchased for defendant to the extent of $5,094 only i.e. $694 + $4,400.

Materials purchased on defendant’s behalf

165.On plaintiff’s case, the outstanding amount of materials purchased by the plaintiff on defendant’s behalf is $154,885.20found inthe2009 Material Invoice.

166.Mr Fong made it clear in his oral closing submissions that the defendant no longer took issue whether or not agreement has been reached over the purchase of such materials particularized in the 2009 Material Invoice (in any event, on my findings of fact and analysis of the legal position above, I would have also found for the plaintiff on this issue if taken by defence).

167.Mr Fong relied solely on the 1^st Limitation Plea to oppose plaintiff’s claim on this head in his oral closing submissions. If such a plea is upheld, the maximum outstanding amount of materials purchased that the defendant is liable to pay is, he submitted, $40,336[9].

168.Mr Fong relied on 6-year time-bar in s.4(1)(a) of LO for action founded on simple contract (he abandoned in his oral closing submissions all his written submissions of money lent advanced at pp.14 to 16 of his written closing submissions).

169.Mr Fong pointed to the dates of most individual items of materials purchased set out in the 2009 Material Invoice being prior to 6 July 2009 i.e. 6 years before issue of writ.

170.Mr Fong submitted that there is no agreed payment term of the parties regardingmaterials purchased by the plaintiff on defendant’s behalf.No such express term is found in 3 purchasedmaterial invoices adduced at trial.

171.Hence, time, Mr Fong submitted, should start to accrue from the individual dates, or plaintiff’s payment dates, of individual items of materials set out in the 2009 Material Invoice, as the plaintiff purchased materials and made payments on behalf of the defendant, who reimbursed the plaintiff for such payments later.

172.For following reasons, I reject the 1^st Limitation Plea and Mr Fong’s submissions in support thereof.

173.I think the plaintiff had purchased materials on defendant’s behalf pursuant to defendant’s engagement of the plaintiff to decorate the House and not otherwise. The plaintiff’s claim at para 11 of SOC is, I note, for the balance of the contract sum for the “works done and materials supplied (italics supplied)” to the defendant during the working period.

174.Hence, though the Payments Terms are not spelt out in the 3 purchased materials invoices before me, I agree with Mr Szeto that the Payment Terms also govern at law reimbursement of materials purchased by the plaintiff on defendant’s behalf.

175.In other words, the plaintiff was, I agree with Mr Szeto, not entitled to sue the defendant whenever it purchased materials on the defendant’s behalf. No cause of action would accrue upon the mere purchase of materials by plaintiff. The plaintiff would only have a cause of action to sue when the defendant refused to make payment pursuant to the Payment Terms.

176.Indications to the above effect are, as noted by Mr Szeto and I agree, that the plaintiff dated the 2008 Material Invoice and the 2008 R2 Order for the same date and noted the former at the last page of the latter and that the plaintiff did the same for the 2009 Material Invoice and the 2009 Completion Statement. The plaintiff, I think, effectively treated works done and materials supplied as one single engagement though he issued separate materials invoices for defendant’s record, confirmation and payment.

177.All circumstances of plaintiff’s engagement by defendant considered, including the 2 Clauses found in the 5 Documents, I also agree with Mr Szeto that the parties had been operating during the working period with the defendant having a “running account” with the plaintiff for works done and materials supplied from time to time to the House, with the defendant liable at any given time for such outstanding balance pursuant to the Payment Terms after giving credit for all partial payments and materials payments made by him.

178.Hence, plaintiff’s claim is, I think, a claim for debt.

179.It being common ground that the defendant made his last partial payment of $100,000 to plaintiff on 5 Feb 2010, I agree with Mr Szeto that, as the defendant had made his last “part payment” on 5 Feb 2010 as per s.23(3) of LO, plaintiff’s right of action to recover its debt (including materials purchased) from the defendant shall be deemed to accrue on and not before the date of such last part payment i.e. 5 Feb 2010: see Lee Kwok Wing v Chung Chuen Hei,unreported, HCA809/2008, 9 July 2012, para 84-95.

180.Hence, the plaintiff, I think, commenced this action within time on 6 July 2015.

181.I therefore allow plaintiff’s claim on his head in full.

Conclusion on plaintiff’s claim

182.Accordingly, the defendant is thus liable to pay the plaintiff $764,939.20 on plaintiff’s claim i.e. $1,574,960 + $154,885.20 + $5,094 - $970,000.

Defendant’s counterclaim

183.By his oral closing submissions, Mr Fong quantified defendant’s counterclaim at a total sum of $176,420, consisting of the following 3 claims, namely: -

(1)   $27,270 already paid by the defendant to Yick Fung to identify and rectify the Flush Water Pipe Defect and the Drainage Pipe Defect;

(2)   $124,150 for alleged costs of reinstating such damaged parts of the Living Room and the Guest Toilet due to water seepage; and

(3)   $25,000 for defendant’s alleged loss of enjoyment of the House due from nuisance caused by the Flush Water Pipe Defect and the Drainage Pipe Defect.

The Flush Water Pipe Defect

184.This counterclaim was pleaded at para 5(ii) of AD&C, where it was said that in “about Apr 2015, the defendant engaged Yick Fung for inspection and discovered a crack at the flush water pipe in the Guest Toilet which has deteriorated over a period of time (italics supplied)”.

185.I think this counterclaim fails for the following reasons.

186.Though Mr Chung was jointly instructed to answer specifically whether or not, among others, “alleged damage … at the foot of the walls of the entire Living Room, in particular, the walls adjacent to the Guest Toilet were caused by alleged water leakage resulting from defective works of the plaintiff in the installation of water pipes in the Guest Toilet (bold and italics supplied)”, he merely opined at para 6.1 of the Expert Report that there is high chance that seepage in Guest Toilet “facilities” (設施) had caused seepage at the foot of the walls of the Living Room.

187.As Mr Szeto rightly pointed out, Mr Chung has not pinpointed any problem with “water pipes”, not to mention that he never opined that the plaintiff had carried out defective works in the installation of such water pipes. Hence, Mr Chung’s opinion on this point does not, I think, assist the defendant.

188.Mr Fong sought to rely on para 5(i) & 6 of the witness statement of Mr Chan, who said that, in 2015, he found that the flush water pipe at the Guest Toilet had “burst/broken” (爆裂) and he had afterwards replaced it.

189.Mr Fong asked this court to read the said factual observation of Mr Chan of the Guest Toilet in 2015 together with Mr Chung’s opinion based on inspection of the Guest Toilet in 2018 to find that the source of seepage for the Living Room was due to a “crack” of the flush water pipe and NOT other “facilities” in the Guest Toilet.

190.I cannot.

191.The question posed to Mr Chung is specific enough to refer to water pipes. Had it been the case, one thinks Mr Chung would have answered using the words “water pipes”. I am also not satisfied on the evidence before me that “water pipes” were the only “facility” (設施) found within the Guest Toilet. One simply does not know whether Mr Chung would alter his opinion or not upon looking at the witness statement of Mr Chan and the 2015 Photos annexed thereto.

192.In any event, Mr Chan is no expert to give opinion why the flush water pipe in the Guest Toilet “broke” or “burst” in 2015 (and he has not given such opinion either), in particular whether or not it was caused by defective works of the plaintiff in their installation during the decoration of the House from 2005 to 2010.

193.There is, I think, a significant long lapse of time between 2010 and 2015. And I have disbelieved defendant’s evidence of finding seepage at the Guest Toilet before he took possession of the House in Feb 2010. As Mr Szeto submitted and I agree, there is no document whereby the plaintiff gave any warranty for water pipes installed by it.

194.The defendant has, I think, failed to prove that such seepage observed in the Guest Toilet in 2015 by Mr Chan had anything to do with plaintiff’s decoration works from 2005 to 2010.

The Drainage Pipe Defect

195.This counterclaim was pleaded at para 5(iii) of AD&C, where it was averred that “the plaintiff’s defective installation resulted in the Drainage Pipe Defect which aggravated the water stain marks on the floor in the Living Room adjacent to the Guest Toilet and the peeling off of paint and plaster at the foot of the walls of the Living Room (italics supplied)”.

196.This counterclaim also fails, I think, for the following reasons.

197.Posed with the question whether there is any water leakage defects in the drainage pipe installed by the plaintiff connecting the roof top through the Guest Toilet to the ground floor drain causing the water leakage as alleged in AD&C, Mr Chung answered at para 6.2 of the Expert Report that the said drainage pipe has not “produced” or “caused” the said seepage affecting the Living Room.

198.Again, Mr Chung’s opinion does not assist the defendant.

199.Mr Fong again relied on para 5(ii) & 6 of witness statement of Mr Chan who said that he discovered in 2015 “seepage” (漏水) from drainage pipe installed inside the wall of the Guest Toilet and that he “had stopped the said seepage” by installing “holding tray” (接水盆) within the false ceiling “to hold seeped rainwater”.

200.Mr Fong stressed that Mr Chung also found holding tray having been installed in the false ceiling of the Guest Toilet on his inspection in 2018. That corroborates, he submitted, evidence of their installation in 2015 given by Mr Chan.

201.However, the dye test carried out by Mr Chung on the roof of the House in 2018 produced no color at the false ceiling of the Guest Toilet: see para 6.2.1 of the Expert Report. More importantly, despite it was rainy on the day of inspection (and there was 62.5mm rainfall recorded for the last 14 days), the “holding tray” at the false ceiling of the Guest Toilet was “dry”: see para 6.2.2 of the Expert Report. Hence, in 2018, it appears that the holding tray installed in 2015 did not stop seepage by “holding” seeped rainwater as it did in 2015.

202.I cannot reconcile the above conflict of evidence between Mr Chung and Mr Chan.

203.In any event, neither Mr Chung nor Mr Chan gave opinion or evidence of “defective installation” of the said drainage pipe to support defence allegation for this counterclaim.

204.Moreover, considering the long time gap from 2010 to 2015 (not to mention Mr Wong’s undisputed evidence I accept that installation of the said drainage pipe was completed as early as in Mar 2006), the absence of any written warranty given by the plaintiff for drainage pipe installed by it and my disbelief of defendant’s evidence of finding seepage at the Guest Toilet before he took possession of the House, I fail to see how the defendant can link such seepage observed by Mr Chan in 2015 with plaintiff’s decoration works from 2005 to 2010.

Alleged loss of enjoyment due to nuisance

205.As I disbelieve defendant’s evidence on water seepage and find against the defendant on both the Flush Water Pipe Defect and the Drainage Pipe Defect, any nuisance allegedly so caused by them to the defendant cannot, I think, be attributable to the plaintiff. For this reason alone, this counterclaim for alleged loss of enjoyment of the House also fails.

206.In any event, Mr Fong has focused this counterclaim for the period from mid-2014 (when seepage allegedly worsened) to July/Aug 2015[10] (when Yick Fung had completed its rectification of the 2 alleged defects) but the defendant has never said specifically in his 2 witness statements that he has resided at the House during this period of time.

207.At best, the defendant said at para 11 of his supplemental witness statement that “the water seepage problem had caused nuisance to me and my family for many years… As a result of plaintiff’s defective renovation works, I and my family have suffered loss of enjoyment of the House. During the period from 2007 to 2010, the market rental value of the House was in the range of $120,000 to $150,000 per month (italics supplied)”.

208.The defendant gave no particular of the years concerned except for the period from 2007 to 2010. Neither did he give particulars of his family members who allegedly also suffered loss. Nor did he give particulars of the alleged nuisance. With respect, I do not find such bare assertion reliable. For these additional reasons, I would not have allowed this counterclaim either. If this claim is allowed at all, I would have allowed nominal damages only.

Conclusion on counterclaim

209.As such, the defendant fails to prove all his remaining counterclaims.

Disposition of counterclaim

210.I dismiss the counterclaim.

Interest on plaintiff’s claim

211.Mr Szeto sought interest on such judgment entered in plaintiff’s favour at judgment rates from Mar 2010 until to date of full satisfaction.

212.I decline to award pre-action interest as I think the plaintiff has been guilty of delay in commencing this action as late as in 2015 despite it was legally advised as early as in 2011.

213.And I think commercial rate of interest should be sufficient to compensate the plaintiff for its loss.

Disposition of plaintiff’s claim

214.I therefore enter final judgment on plaintiff’s claim against the defendant in sum of $764,939.20, together with interest at 1% above HSBC best lending rates from 6 July 2015 to the date of judgment and thereafter at judgment rates until full payment.

Costs of both claim and counterclaim

215.I make an order nisi that the defendant shall pay the plaintiff both the costs of plaintiff’s claim and of defendant’s counterclaim, including all reserved costs and the costs of this trial together with certificate for counsel, both costs are to be taxed if not agreed. This shall become absolute if none applies to vary within 14 days.

216.Finally, I thank Mr Szeto and Mr Fong for their submissions.

Mr Patrick SZETO, instructed by Messrs. L & Y Law Office, for the plaintiff

Mr David FONG, instructed by Messrs. Huen & Partners, for the defendant