Wong Kot Ki v. Fantastic State Ltd
Read the full judgment text of DCCJ 4604/2015 on BabelCite. This District Court judgment was delivered on 10 March 2025.
1. The saying ‘A man’s word is his bond’, an alleged belief held by the Plaintiff (the “P”), sets a prelude to the current dispute between the parties over an oral agreement made in around 2009.
Cites 3 cases
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DCCJ 4604/2015 [2025] HKDC 345 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4604 OF 2015 ------------------------- BETWEEN
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------------------- JUDGMENT ------------------- 1.The saying ‘A man’s word is his bond’, an alleged belief held by the Plaintiff (the “P”), sets a prelude to the current dispute between the parties over an oral agreement made in around 2009. 2.There is, of course, no legal requirement that a contract must be concluded in writing, or be evidenced in some form of written record. A contract can be binding without any formality as long as the parties have reached an agreement, which is intended to be legally binding, supported by consideration, and is sufficiently certain and complete to be enforceable. Judges are tasked to apply an objective test in ascertaining parties’ intention by considering what was communicated between the parties in all the circumstances and the surrounding facts. 3.The absence of a written record however poses difficulties in proving the existence and terms of a contract. Evidence inevitably will largely be based on recollections of what was said in an undocumented conversation which occurred some time ago. However, reliance on such evidence may be inherently problematic since memory can be fallible. With the recognition of such dangers in relying on potentially unreliable human memory, Lord Hodge JSC said in Wood v Capita Insurance Services Ltd [2017] AC 1173 at paragraph 13 that the correct interpretation of contracts which are marked by informality, brevity or in the absence of skilled professional assistance may be achieved by a greater emphasis on the factual matrix. 4.This is such a case as the alleged oral agreement (or a series of agreement) was made 15 years ago between the then 66-year-old Plaintiff and Leung, who was the manager of the Property Investment and Valuation Department of the Defendant (the “D”), a property investment company subsidiary of Cheung Kong Asset Holdings Limited. Not only was the agreement purely by oral but there is also no contemporaneous documentary record of any kind. 5.Guided by the principles stated above, I find it pertinent to study precisely the backgrounds of the parties involved, and the surroundings and circumstances leading to, and subsequent to the alleged agreement made. Background to the dispute 6.The dispute between P and D was over a reconstruction of a fence wall. 7.P was 81 years old at the time of trial. He left Hong Kong for England after finishing primary school, and returned to his homeland after 35 years, in or around 1995. P has been the registered owner of the property known as House No 138A, Block 12 in Tai Po Fung Yuen Village and Lot 208B3 (“P’s Site”) since November 2001, and there was a fence wall built for demarcating P’s Site from other neighbouring plots (“Old Fence Wall”). We learnt from the evidence that P’s Site was under construction from around March 2009 for his new village house (“P’s House”). The construction finished around late 2009 or early 2010 followed by another year-long renovation. P moved in the P’s House in or around 2011. 8.D was a developer that had acquired a piece of land next to P’s House in the 2000s and commenced a residential development known as Mont Vert in or around 2007. D’s only witness Mr Alex Leung (“Leung”) was a manager of the Property Investment and Valuation Department of D at the time when the alleged oral agreement was made. He was responsible in negotiating with P over the demolition of the Old Fence Wall. 9.Despite the construction of Mont Vert did not start till 2011, Leung gave evidence that he started inspecting the Mont Vert site from time to time as early as 2000 with his superiors. The negotiations between P and Leung 10.It is D’s case that it was informed by the Lands Department in 2007 that the Old Fence Wall together with the fence wall of P’s neighbour Madam Chan (“Madam Chan”) were illegal encroachments upon D’s land. 11.Both parties agreed that P was approached by Leung in 2008 to discuss the issue of illegal encroachment (“the 2008 Meeting”), and it is a common ground that Leung suggested to P that D would, at its own cost, demolish the Old Fence Wall, and erect a new fence wall for P. However, no consensus was reached in 2008. 12.Notwithstanding the dispute as to when an agreement was reached, both parties agreed that there were further negotiations in 2009 in the presence of P, Leung, the contractor’s representative Chow (“Chow”) and the supervisor of the site of Mont Vert. 13.It is P’s case that he agreed to let D to erect a fence wall resembling the original state and condition of the Old Fence Wall (“P’s Averred Agreement”) at a meeting in May/June 2009 (“the Mid-2009 Meeting”). And since the Old Fence Wall was tiled with mosaic tiles with a one-foot foundation, these two features should form part of the conditions of the new built wall. 14.On the other hand, D averred that no agreement was made at the Mid-2009 Meeting despite Leung having told P that D was willing to demolish the Old Fence Wall and erect a new one for him along the boundary on his land at D’s cost. Leung further stated in his witness statement that an oral agreement was reached between P and D on 30 December 2009 (“the Dec 2009 Meeting”) where (i) D agreed to erect a new fence wall wholly within P’s Site at D’s costs, and (ii) P would be responsible for both the materials and labour costs should he decide to lay tiles on the New Fence Wall (“D’s Averred Agreement”). 15.The Old Fence Wall was demolished accordingly, followed by the erection of a new fence wall in January 2010, which was plastered with cement but without any tiling (“the New Fence Wall”). 16.As averred by P, there was a further negotiation between himself and Chow in around May 2010 where P would provide the tiles and D providing labour to complete the tiling work of the New Fence Wall (“the Tiling Agreement”). Upon Chow’s promise, P claimed that he bought new tiles in or around May to June 2010. Complaints from P Foundation 17.According to P, there was a one-foot foundation in the Old Fence Wall but he noticed the workers did not lay any foundation for the New Fence Wall. He said the workers ignored his complaints. Tiling Work and Cracks found on New Fence Wall 18.In or around July 2010, P claimed that he made enquiries with Chow as to when the tiling work would be commenced. Chow explained it had to wait until the completion of construction work at his neighbour Madam Chan’s property. 19.P went to Chow again around late January 2011. Chow explained the Construction Department (工程部) of D said the tiling work would have to be further delayed until they finished erecting a new wall for Mont Vert, which would sit closely next to the New Fence Wall. 20.By early 2012, P said cracks and crevices on the New Fence Wall were observed on the New Fence Wall and he went to D’s site office to complain since Chow and his team had left the site after finishing the piling work. A meeting was arranged between a representative from the then contractor Paul Y Construction and P (“the Aug 2012 Meeting”) where the former agreed, on behalf of D, to repair and finish the tiling work. It was not disputed that the cracks were later patched up (“the First Repair”) but the tiling work had to wait until the completion of the neighbouring Mont Vert wall. 21.However, more cracks and crevices were found in 2013. P averred he contacted Leung directly in October, November 2014 and early 2015 chasing about the tiling work. P said Leung refused to follow up as it was an issue to be followed up by the Construction Department. 22.P wrote a letter to Leung’s supervisor in March 2015 followed by two demand letters through his then instructing solicitors Messrs. Rene Hout & Co (“RHC”) in April and August 2015, requesting D to provide labour in repairing the cracks, completing the tiling and grouting work. A meeting was held thereafter between P and D’s contractor Ka Shun Civil Engineering Company Limited in the absence of Leung (“April 2015 Meeting”) where P requested D to tile up the New Fence Wall. 23.D’s contractor repaired the cracks on the New Fence Wall in June 2015 (“the Second Repair”). No tiling work was done up to date. 24.P filed the Writ of Summons on 8 October 2015 demanding the costs of the tiling work, the costs of rectifying the absence of foundation, and the costs of replacing the tiles P bought for the New Fence Wall. The Issues 25.Counsels for P and D agreed on a statement of issues in dispute with four main questions, and I found all these issues being valid thus arise for decision:
26.Counsel for P proposed two more issues which I expressed at the trial being merely questions within the relevant factual matrix of the agreed issues. They are:
The Witnesses 27.Of the people mentioned above, P called three witnesses including himself, Madam Chan and the then village representative Mr Mak (“Mr Mak”). Leung is the only D’s witness. 28.Hon Coleman J in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923 went into great detail in relation to the fundamental problem of evidence based on memory. Like this present case, the plaintiff in Yu Man Fung Alice relied on an alleged oral agreement she made with the defendant 18 years ago. The learned judge explained, and which I respectfully agree that the credit of a witness does not rely solely on their abilities in recollecting events, but the principal uses for witness evidence are to allow the court to evaluate the witness’s inherent qualities of mind and character, and in some instances, to verify the truthfulness of contemporaneous documents:
29.I also bear in mind the non-exhaustive list of indicators of unsatisfactory witness evidence identified by Lewison J (as he then was) in Painter v Hutchison [2007] EWHC 758 (Ch) at para 3:
30.Thus before moving to my factual findings, I would give my observations as to every factual witness: P 31.P’s credibility and reliability have been heavily criticised by D’s Counsel. Such criticism was not without cause when looking into the heavily amended Statement of Claims, and the discrepancies in P’s evidence under cross-examination. These discrepancies, however, are mostly pointed to (1) the precise wordings that was used in the conversations P had with various people; and (2) the chronology of events. I agree there were occasions where P gave evidence that was never mentioned in both the pleadings and his witness statements. My general impression is that while some of this ‘new evidence’ cast grave suspicion (which I will give detailed examples later in this judgment), most of them were recollections retold in a self-enhancing light that could not be seen as dishonest fabrication of evidence. On the contrary, I found he was firm in his beliefs and gave mainly straightforward answers which were in his mind, to be truthful. I would not reject his evidence all together but will place less weight for those inconsistent or self-conflicting aversions he made. Madam Chan 32.Madam Chan is and was P’s neighbour, and had signed a written contract with D for the demolition and reconstruction of her fence wall and glasshouse. Although I do not consider Madam Chan’s evidence central to the resolution of the main dispute in this case, I found her to be a direct, frank, and reliable witness who had a clear and independent recollection of events. Mr Mak 33.Mr Mak was the village representative at the material time, and acted as an intermediary between P and D at the Aug 2012 Meeting. He is an independent witness with no axe to grind. The Court can place significance reliance on his evidence. Leung 34.The only and key witness of D. He started working for D from around 1996 and was promoted as the manager of the Property Investment and Valuation Department in 2008. His department was responsible for management before the commencement of building construction, and the Development Department would take over the management after commencement of building works. Between 2008 and 2012, he was dealing with two to three projects where Mont Vert was one of them. 35.Strictly speaking Leung is not a businessman, but he shouldered the responsibility of negotiating deals with indigenous villagers in the course of his company’s billion-dollar development projects. He was a newly promoted manager at the time when he was instructed to deal with P and Madam Chan. I beg to differ with D’s counsel submission that Leung is an independent witness who has no personal interest in these proceedings. Given the number of years he has served D, and the fact that the root of the present dispute arose from his and P’s ‘oral agreement’, he surely has a stake in a particular version of events. 36.I found Leung was a meticulous man who tended to give brief and concise answers, which was largely consistent to his written statements. He has a good recollection as to the chronology of events. I observed that he would not volunteer information unless being specifically asked for, and when being confronted by questions that could be seen as adverse to D’s case, his answers would be less direct bordered on evasive. For example, when P’s Counsel Ms Chan questioned him about the foundation of the Old Fence Wall, he attempted to place the most strained observations on some plain photos shown to him. Although these observations do not imply dishonesty, I found all his answers were measured, selective, and could only offer a limited scope of factual insight to the background of this case. The fact findings 37.Before addressing the issues, I shall make findings of fact relating to the events surrounding the alleged oral contract and the subsequent disputes. Where the facts are in dispute, I make my findings on the basis of the balance of probabilities. 38.The absence of express terms may be the result of reaching a course of oral negotiations and agreements between non-legally trained people, and it is useful to look into the words used by the witnesses and to understand their thoughts, motives and intentions throughout their negotiations. D’s Averred Agreement 39.It was transpired during trial that Leung did propose to P to demolish the Old Fence Wall and reconstruct a new one at D’s expenses as early as in 2008. Leung said he omitted this from his witness statement because he considered it was irrelevant as no agreement was made. Likewise, P was challenged under cross-examination as to the absence of the 2008 Meeting in his original pleadings. I came to a conclusion that the omission of the parties’ first meeting bears little relevance to their credibility as no agreement was made. It is nonetheless important to note that P perceived a ‘preliminary understanding’ was reached between parties about the project（「雙方就有關工程有初步共識」）and he explained under cross examination such‘preliminary understanding’meant he would consider Leung’s proposal to have D building a new fence wall to its original condition and state for him（「依照原有圍牆原樣重建給本人」） 40.The quotation obtained by Leung from contractor劉燕良建築裝修機械地基工程（“LYL”）subsequent to the 2008 Meeting serves to confirm the substance of P’s evidence in relation to the ‘preliminary understanding’ of the parties and his requirement of having the new wall built in its original condition. As can be seen from the contents of the LYL’s quotation dated 28 November 2008（“the LYL’s Quotation”）, (1) P allowed LYL to take all the measurements of the Old Fence Wall for the purpose of D’s proposal; (2) P was present at the time when LYL took the measurements; (3) P enquired about some details concerning the features of the fence wall after reconstruction; and (4) LYL promised P that such details would be identical to the Old Fence Wall. It is also worth mentioning that the LYL’s Quotation included a 1.5 foot foundation but not the tiling work（免貼紙皮石）. Although none of these can reflect the terms and conditions between P and D, it demonstrated P’s openness in considering D’s offer, and the emphasis of having the new fence wall the same features as the old one. 41.In Leung’s oral evidence, he agreed the fence wall project was imperative and he considered the negotiation in 2008 was a failure. The construction of Mont Vert was to commence in 2010 and there was, naturally, a pressing need to get the deal done in 2009. The subsequent Mid-2009 Meeting was therefore significant to Leung, and I perceive the introduction of the contractor and site supervisor to P was to show the ‘sincerity’ and ‘determination’ of D in reaching an agreement. 42.Although parties held different views as to when a binding agreement was reached, I do not think it can be a fundamental issue for the resolution of the ultimate dispute in this case, and in any event, the context of D’s Averred Agreement that was allegedly made in the Dec 2009 Meeting is substantially similar to terms that Leung averred have been agreed in other earlier discussions (see below). This indicates that the Dec 2009 Meeting was served to corroborate both parties’ earlier understandings, and to formalise their commercial relationship with details confirmed between parties. 43.To fully understand what gave rise to D’s Averred Agreement, Leung explained the followings in the trial:
44.According to Leung’s witness statement, the above conversations were made in some follow-up discussions after the Mid-2009 Meeting but without any details as to the time and background. On the balance of probabilities, I am inclined to believe that such alleged conversations, if they had taken place at all, would have been at the Mid-2009 Meeting when parties were trying to canvass the framework of their agreement. 45.As to the context of these alleged conversations, I bear in mind at this point of the chronology P’s House was still under construction, and the renovation was yet to commence, it therefore made perfect sense for P to consider some new furnishing for the new wall rather than using the same mosaic tiles. However, there were internal inconsistencies of Leung’s oral evidence when on one hand he repeatedly said the parties never discussed about the finishing of the fence wall, he nonetheless agreed the above conversations took place out of his concern for P. My attention was also drawn to his answer “就問佢會唔會想襯返個色，都係想俾個選擇佢，如果佢話唔使，咁我哋照做返都冇問題”. 46.I think it is inherently unlikely that P, when presented with choices, would have said, as Leung suggested “yes, I agree to shoulder all costs for the furnishings of the wall even D is willing to do it for me for free” and “all D needs to do is to build a wall with similar height as my old one”. Whilst it was possible that Leung presented an option for P on the choice of tiles, I found he deliberately avoid the discussion as to the responsibility of labour work, or tried to fuse these two distinct topics to cause certain degree of confusion. I am convinced that to P’s mind, he only agreed to bear the cost of tiles but never the labour work. 47.It was already understood from the 2008 Meeting that it was imperative for P to have a wall same as his old one, and Leung himself recognised in cross-examination that their earlier negotiation was a failure, there was therefore no reason why P would expressly accept anything less than what he reiterated earlier. 48.On this point, I think D tried to rely on the alleged illegal encroachment as the reason why P would accept less. However, it was a common ground that P did not admit to any encroachment in 2008 and there was no reason why he would in 2009. As Leung put it, D wanted to maintain a good relationship with P and did not want to take any legal action, I therefore do not see that the negotiation in 2009 was ever made in the context of P’s fault. Rather, I find that when Leung was dealing with P, he would tell P what interests would the new wall best serve him with an objective to have P to agree to the deal once his concern was alleviated. This observation could be supported by a conversation between the parties when Leung told P the new fence wall would be built in straight line rather the original one with a slight curvature. 49.It seems therefore an oddity in D’s case that P would expressly agree to shoulder the costs of both materials and labour work (no matter in the Mid-2008 Meeting or the Dec 2008 Meeting), when there was no evidence of evolving or prior discussion of P’s liability in encroachment, nor any kind of negotiation or justification of the sort, and thus it seems unlikely that P would simply agree to a commercial arrangement to his financial detriment when he admitted no fault on his part. 50.With the reasons explained above, I have grave doubts as to the reliability and accuracy of D’s Averred Agreement, which served essentially in the best interests of D only. I accordingly reject Leung’s evidence that P expressly agreed to bear the costs of materials and labour for the furnishing of the New Fence Wall. 51.By rejecting the D’s Averred Agreement does not mean an acceptance of P’s Averred Agreement. I do not have to find either one or the other in its entirety, and I might accept neither or perhaps aspects of both. P’s Averred Agreement 52.P’s pleaded case, after some amendments, was reduced to one representation allegedly made by D, that is the P’s Averred Agreement made at the Mid-2009 Meeting. Mr Lok, counsel for D, criticised the deletion of two other alleged representations from the original Statement of Claims that could implicate issues on credibility. After studying the differences between the Statement of Claim (“SOC”) and Amended Statement of Claim (“ASOC”), I found the second representation that was to deal with loss and damages resulting from the demolition and erection of the fence wall did not bear much relevance to the disputes in these proceedings. Taking into account of the change of hands in solicitors in these proceedings, I incline to think that the deletion of the original second representation was a matter of professional decision, and thus could not hamper P’s credibility. 53.Other salient amendments that could go to fundamental issues of the dispute will be dealt with when considering other factual matrix of the case. 54.The essence of P’s Averred Agreement is that D would rebuild a fence wall for P that would be in the same state and condition of the Old Fence Wall. Mr Lok placed much emphasis on the words“原樣”which were used in P’s witness statement, and tried to challenge P that such phrase was never used in his negotiation with Leung, and even if it was used, it was a term with uncertainty. Mr Lok contended that the phrase 原樣could not be equated with“original state and condition”and such phrase could just be P’s convenient adoption from what Madam Chan used when dealing with D. 55.It is to me a futile exercise to investigate the ‘actual phrase(s)’ P chose to use at the material times, and it is impractical to make any comparative studies of various phrases used or the literal accuracy between the English and Chinese translation. One must not forget that pleadings and witness statements are drafted by legal professionals who are conscious of the significance for the issues in the case of what witnesses do not, most of the time, understand or appreciate. The adoption of particular words or phrases usually play very little significance to witnesses as long as the context is correct to their minds. Thus the touchstone when interpreting terms of an agreement is to take its natural meaning that would be understood by reasonable person. 56.To me, the simple phrase 原樣 bears the same meaning as other commonly-used phrases such as 「原貌」「同原本一樣」「照樣」which all are to be understood as ‘the original look’. With respect, I consider Mr. Lok went a little too far when he challenged P if the ‘original look’ should be referred to the condition back in 1998 when the Old Fence Wall was newly built or the withered looking one in 2009. Bearing in mind that the discussions were conducted between two non-legally trained people, the correct approach is to take its natural meaning, which in my view, implicates that the new wall should ‘look like the original one’. 57.In passing, it is a convenient time to address one of the issues raised by P’s Counsel that is whether the restoration to its original state and condition was a ‘pre-condition’ to the parties’ agreement. I view there is in fact no natural meaning to the need for a ‘pre-condition’ in this context but more likely to be a legal jargon employed in the pleadings. Whether parties ever used this term in their discussions is immaterial to my judgment. 58.So did P tell Leung that the new fence wall has to be restored to its original look? It was held in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm), Leggatt J, as he then was, that the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. I find this approach is of particular relevance in assessing the witness evidence in this case given a long time has already elapsed since the relevant events. 59.Mr Lok submitted that it was illogical for P not to insist a written agreement with D especially after Madam Chan told him ‘words of mouth are no guarantee（口講無憑）. I beg to differ on this point. I gained an impression that P was not a man without means, and is not someone who was trying to gain any advantage from this deal (D would have suggested so if this was the case). He was retired at the material time and has never been a businessman. The oral agreement was reached through civilised and cooperative negotiations. The inference I draw from the background facts is that neither parties would like to get involved in litigation, and the reconstruction of the fence wall would not cause P much inconvenience given the on-going construction of P’s House. The costs involved in the fence wall project was insignificant not only to D, but also to P when considering the amount of money involved in building a house. In broad terms, it would be harmless for P to accede as long as he suffered no financial detriments. I find it believable for someone with P’s background to trust D (or its parent company, the multinational conglomerate Cheung Kong Holdings Limited) to live up to their promise without any written agreement. 60.P tendered Madam Chan to give evidence in a vain attempt that the Court can take reference of what had been agreed between D and his neighbour. Not only this does not go anywhere in support P’s case, the other side of the coin is that P may have agreed to Leung which with hindsight did not serve his best interest when comparing to what Madam Chan got from D. I therefore place no reliance on any terms agreed between Madam Chan and D, as that would be matters privy to the relevant parties and their respective bargaining powers. 61.In saying this, Madam Chan’s evidence cast some light on Leung’s state of mind and attitude during the course of negotiation. Madam Chan said there were discussions about the rooftop of her glasshouse where Leung said no need to take down. Madam Chan was skeptical about his advise and insisted having a second opinion from D’s contractor. She gave evidence that Chow, after a brief visual inspection and without any hesitation said the rooftop must be taken down or there would be risk of collapse. 62.I have also paid particular attention to the working practices of Leung, and appreciated that his duties rest primarily to matters prior to the commencement of construction, thereafter will be in the hand of the Development Department. He answered to my inquiry that he was the only authorised person to make agreement with P and Madam Chan（「唯一有權答應便是我」）and his department has the power as to the choice of contractors, but details would be left to the Development Department（「決定權在我部門，但細節在發展部」）. But I was also drawn to his evidence that the Second Repair required the consent from the Development Department（「小工程，發展部批准做」）. 63.The impression I gained from the above is that first, Leung lacks knowledge about construction but had the authority to enter into agreement of such sort with P. Secondly, he felt in his own mind that there was no need to speak to other departments before promising or making any representations to P and Madam Chan. His goal was to give them information they wanted to hear and trusted that the information he gave them would assist in moving matters forward. He realised contractors would have to be involved and that he would then cease to play a part and thereafter the P or Madam Chan’s concerns would be dealt with by other parties. This can be evident from his answer under cross examination when he explained the construction of the openings on the New Fence Wall (which will be further discussed below):
Indeed, this answer could be seen as consistent to his earlier answer elicited in paragraph 43 above, where he explained whether D planned to plaster the original mosaic tiles for P: 「又唔一定嘅，總之係紙皮石，佢都可以俾意見我哋嘅，喺往後」. I therefore find it entirely possible that Leung did not discuss and reach any small details of the construction work with P, but told P the contractors would work on the details of the new fence wall according to his requests. 64.Having expressed my views of P and Leung’s motives and intentions, I will now turn to the factual matrix. I have already explained the significance of the LYL’s Quotation which in my view, giving a cue of P’s emphasis of having a new wall restoring to the old wall’s condition. While the conversation between P and LYL could not prove any terms of the actual agreement, strong inference of the terms of the oral agreement can be drawn from the end result of the New Fence Wall. 65.It is worth-noting that the New Fence Wall bears the same dimension as the Old Fence Wall despite the D’s Averred Agreement did not specify such requirement. The New Fence Wall was built of brick but this was only because, as Leung explained, the standard material to be used. Particular telling, in my view, is those openings on the New Fence Wall, not only the spacing between each opening is the same as the Old Fence Wall, but their peculiar shape of half an octagon looks exactly the same. When being asked, Leung said the parties never discussed about those openings, but it is a normal feature for fence walls and the standard spacing would be 20 metres apart. He later agreed to P’s Counsel Ms Chan’s proposition that the openings were built because it was part of the features on the Old Fence Wall. 66.Judging from the striking similarities of the Old and New Fence Walls, I prefer the evidence of P that the parties did agree, and with mutual understanding that the new fence wall would be re-erected to its original state and condition for the Plaintiff. 67.Existence of such agreement however does not imply foundation and tiling work being part of the ‘state and condition’, and it is a necessary to assess whether P specified to D that the new fence wall would include a one-foot foundation below ground, and be finished with tiles being the material used for the original fence wall. One-foot Foundation 68.P tried to rely on photos taken after part of the Old Fence Wall collapsed in around July 2019 to prove the existence of the one-foot brick foundation, and Leung’s knowledge of its existence. I have the benefit of scrutinising the photos exhibit, and while agreeing that the photos are able to reveal parts of the foundation below ground, it cannot be a conclusive evidence to parties’ agreement. In fact, it is my finding that parties never reached any agreement to the foundation based on the following observations:
69.In light of the above, I consider it is highly possible that the ‘foundation problem’ was only raised when P became aware of the cracks and has sought to convenience himself by saying that he did tell D there must be a ‘one-foot brick foundation’, but on this aspect of the case, I prefer the evidence of D that he did not. Tiles and tiling work 70.Unlike the foundation below ground which is not naked to eyes, tiles are naturally an important and apparent feature of any wall structure, and I accept Leung’s evidence that the parties did discuss about it. As explained in paragraphs 46-49, I find it unrealistic that P would expressly agree to bear the costs of labour when Leung said D could do it for him（我哋做返都OK）, but on the same note it does not make commercial sense for D blindly agree to bear the costs of whatever tiles P eventually decided upon as the price range for tiles can be wide depending on their materials, designs and origins. 71.In fact P indicated under cross examination that he would source the tiles at his own cost:
72.Mr Lok then brought P’s attention to the original Reply where it said the first time P agreed to provide tiles at his own costs was in April 2015 instead of May 2010. P disagreed vehemently but could not provide any reason why that was stated by his then lawyers. I bear in mind ‘blaming legal advisors’ can raise a red flag as to a witness’ credibility under Painter, supra, but the Court has the duty to investigate if there could be any plausible explanation to the inconsistency between P’s evidence and earlier pleadings. 73.Indeed, one could immediately find the Reply prepared by RHC is problematic and has internal inconsistency when reading together with the First Demand Letter, where the following was stated:
74.This First Demand Letter serves as a documentary evidence of P’s ‘first complaint’ closest to the event. Although the word ‘tile’ is not spelt out therein, the word ‘reinstate’ implies restoring the new fence wall to its original state, which would certainly be tiled taken into account of all the previous complaints P raised to D. As such, I accept it has always been P’s case that the agreement included tiling work, and the original Reply prepared by RHC did not fully reflect P’s stance, and thus could not hamper P’s credibility. 75.Now going back to the question whether D agreed to tile up the fence wall for P, in determining the existence or otherwise of a non-purely written guarantee, the court may have regard to evidence of subsequent conduct, see Newbury v Sun Microsystems [2013] EWHC 2180 (QB) §27):
76.Thus the Court is entitled to look at the parties’ subsequent conduct in determining whether D agreed to provide tiles and labour to reinstate the new fence wall. Conducts subsequent to Dec 2009 Meeting 77.Paragraphs 17-24 have explained the complaints taken by P after the New Fence Wall was erected. I do not think there is any other way to view than P was persistent in having the New Fence Wall tiled throughout the material times. 78.P gave evidence that he made complaints to D’s representative/contractor in 2010, 2011, 2012, 2014 and 2015. No evidence was elicited from D to deny this nor did D tender any contractors or officers to rebut P’s aversions. Although the subsequent conduct of D could only demonstrate their willingness in patching up the cracks, the significance of Mr Mak’s evidence is that he was present at the Aug 2012 Meeting where D’s contractor Paul Y Construction promised to do the tiling work for P after the erection of a fence wall at the Mont Vert Site. 79.I consider there are more reasons pointing to an agreement included tiling work, and this is my factual finding on inferences drawn from the evidence I have already canvassed so far: Leung and D reached an agreement in principle at the Mid-2009 Meeting, which became binding at the Dec 2009 Meeting where parties orally confirmed on the date of commencement together with other details of the project. The terms of their agreement had not been varied but essentially to have D re-erect a new fence wall which would look the same as the Old Fence Wall. Since P had not decided on his choice of tiles yet, it was a mutual understanding of the parties that P would bear the cost of the tiles should he decide on something that was different from the original mosaic tiles, but in any event, D would bear the cost for labour work. Leung, with a sole objective to get the deal done, did not feel the need to go into much construction details with P, but left matters such as the openings of the fence wall and tiling work to be further discussed between P and the contractor Chow. Chow, with his professional background, erected a wall with a foundation that was different from the alleged original brick-foundation. The New Fence Wall was constructed in January 2010 without any tiling work since P had not bought his tiles yet. I view that the Tiling Agreement in around May 2010 was not so much a new agreement, but a confirmation between P and Chow to the earlier agreement reached in the Dec 2009 Meeting. 80.Neither Leung nor any D’s representatives denied liability when P chased them about the tiling work, but just adjournment after adjournment. Unfortunately, contractor Chow left the site in 2012 and at that point, I do not think Leung had much authority over the new contractor Paul Y Construction. Despite so, the Aug 2012 Meeting confirmed the parties’ earlier oral agreement where D’s representative agreed to do the tiling work after a fence wall was erected within the Mont Vert site. 81.To live up to his promise, P did not make any complaint in 2013 but only started to chase D again some months after the Mont Vert wall was erected in late 2014. P approached Leung again after D’s contractors refusing to complete the tiling work, and at this point of time, Leung hardly had any control over the site or the contractor. 82.In my judgment, both parties sought convenience from the absence of a written contract during the negotiation in late 2015, where D denied liability in the tiling work and P averred an agreement of more precise terms that with hindsight served his interests. Quality and workmanship of D’s Repairment 83.It is not disputed that the New Fence Wall started showing cracks and crevices in around early 2012, and had undergone two repairs in August 2012 and June 2015 respectively. It is P’s case that the New Fence Wall remained in defective condition, and Ms Chan contended that the 1st and 2nd Repair proved D’s recognition of the defects, and thus an acknowledgment of its breach to re-erect a wall that was to the ‘original state and condition’ of the Old Fence Wall. 84.It is a weak argument. The New Fence Wall was without cracks and crevices when it was first built and I have already found that it was built to the like of the Old Fence Wall besides the lack of tilings. P simply could not adopt the condition of the New Fence Wall in 2012 to suggest a breach unless there was a pleading of warranty. Likewise, P cannot make out a case on poor workmanship, as Mr Lok rightly pointed out, in the absence of any express or implied term in the ASOC that the New Fence Wall should be of ‘good quality and workmanship’. 85.In any event, P has the burden of proof to show that the subsequent crevices and cracks were triggered by other causes, and in this case, P argued they were caused by inter alia, the lack of foundation work and the piling work at the Mont Vert site. 86.P however did not engage any expert to provide the causes of the cracks and crevices, nor any evidence to prove the alleged sinkage. While P claimed all these features rendered the New Fence Wall unsafe and defective, I refuse to draw any conclusion without any expert’s opinion besides that the New Fence Wall looked objectively speaking, unsightly. It is trite that the Court should refrain from stepping into an expert’s shoes to speculate liability when the issues in dispute cannot be resolved by mere common sense. In my judgment, P has failed to prove any correlation between the alleged defects and P’s Averred Agreement. Conclusion to the Agreed Issues 87.To sum up the above, the followings are the court’s findings to the parties’ agreed issues:
88.To conclude, I find D liable to the costs of labour for plastering the New Fence Wall and I accept the single joint expert’s valuation as being HK$66,263.23. D is to pay P such amount with interest at half of the judgment rate from the date of the Writ till judgment, and thereafter at judgment rate till payment. 89.It is a regrettable reality that both parties have spent so much of their time and efforts in these proceedings with legal fees probably outweigh the disputed amount. As both parties are not entirely successful in their respective case, I make an order nisi that there be no order for costs in favour of any party, and thus each party bears their own costs. In all the circumstances, I believe that this is a fair and appropriate order. 90.Lastly, it remains for me to thank Ms Chan and Mr Lok for the assistance provided to the Court.
Ms Vivian Chan, instructed by C Y Tsang & Co, for the Plaintiff Mr Michael Lok and Mr Billy Liu, instructed by Kao, Lee & Yip, for the Defendant | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 4604/2015