Ng Man Sheung v. L.C.A. Engineering & Construction Co (A Firm)

HCA003491/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

CIVIL JURISDICTION

ACTION NO. 3491/1982

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BETWEEN

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Coram: His Honour Judge Downey, sitting as a Deputy Judge of the High Court.

Date: 16 April 1984

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ADDENDUM

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When pronouncing judgment in this case, I completely overlooked the fact that the plaintiff also claimed interest at the rate of 17.5% from the 1st September 1981, this was an accidental omission on my part. As my judgment has not yet been drawn up, I propose to amend the same to the effect that the sum of $137,080.70, awarded to the plaintiff, is to carry interest at the rate of 14% from the 1st September 1981 until judgment. In fixing that rate I have taken into account fluctuations in interest during the period in question.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

CIVIL JURISDICTION

ACTION NO. 3491/1982

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BETWEEN

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Coram: His Honour Judge Downey, sitting as a Deputy Judge of the High Court.

Date: 13 April 1984

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JUDGMENT

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1. The present dispute arises out of certain construction works carried out at a site in Sassoon Road between August 1980 and the summer of 1981. It is between parties who can be described in very loose and general terms as "sub-contractors" engaged upon various works on that site. The main contractor was Fugar Engineering & Constructions Co. Ltd. ("FUGAR"), and it would seem that the defendant firm was the main or principal sub-contractor. The plaintiff was engaged by the defendant, in or about August 1980, to carry out various works, which mainly consisted of plastering internal and external walls, and stairs, and affixing various kinds of tiles to the rooves, floors and walls of the 8 houses constructed on the site. Apart from a written quotation in Chinese, prepared by the plaintiff (Item No. 1 in plaintiff's bundle of documents and Exh. P.2) in August 1980, all business dealings between the parties to the present dispute were conducted on an informal and oral basis.

2. By a writ, issued on the 3rd May 1982 and amended at the trial, the plaintiff seeks to recover $173,380, as the balance of the cost of the various works carried out by him for the defendant at the site between October 1980 and July or August 1981. At all material times, the defendant has endeavoured to diminish or extinguish the amount of this claim by contending that it has suffered various substantial losses and expenses as a result of various breaches of the admitted implied condition that the plaintiff should perform and complete the various works with "due care, skill and diligence and in a good and workmanlike manner, and with good and proper materials." No issue arises on the latter part of the implied condition, since it is common ground that the defendant was to provide all the basic materials (e.g. sand, cement, and tiles),and that these were adequate. Essentially, the plaintiff was to supply a skilled team of workmen to carry out the works set out in his written quotation.

3. After the plaintiff left the site, at the end of July or beginning of August 1981, he prepared a statement of his charges for the work done (Exh. P.3 and Item 2 on Plantiff's bundle). He claimed a total sum of $618,400. The defendant has not questioned this amount but, at all material times, has contended that it is entitled to deduct various sums on account of defective work by the plaintiff. Furthermore, it is not disputed that between December1980 and August 1981 the defendant made various payments to the plaintiff totalling $445,020. I am satisfied that these payments were advances made to enable the plaintiff to pay wages to his workmen. In making these payments, I find that the defendant was in no way waiving the alleged breaches by the plaintiff. Indeed, it has not really been suggested that it did so. Accordingly, the questions before me are whether the defendant has proved that the plaintiff committed the breaches of the implied condition, and the amounts of its alleged losses, as set out in its Amended Defence and Counter-claim. Subject to the defendant's Counterclaim, the plaintiff's claim is effectively admitted.

4. In general, the plaintiff disputes the Counterclaim on the ground that he did not carry out any defective work in the course of performing his contract, or that all defective works were rectified by him between September and December 1981, at no additional cost or charge to the defendant. The defendant, however, contends that numerous serious defects in the plaintiff's work were discovered in November 1980 and subsequently, which the plaintiff promised to rectify, but never did so, and that it had to employ its own workers and other contractors to undo the defective work and carry out the same to the satisfaction of Fugar and the architect.

5. In order to arrive at my findings on specific aspects of these issues, I have had to consider a considerable amount of documentary material, some of which has proved to be irrelevant or unhelpful due to its content or manner of presentation. In addition, I have heard evidence on behalf of the defendant, principally from Mr. CHIK Yip-fai, who is a partner of the defendant firm, and from the plaintiff and some of his workers. The fact that the defendant was not legally represented at the trial, having dispensed with the services of legal advisers in January of this year, has made my task more difficult, in the sense that I had to assume a more active role in the trial, which, in turn, did not make it easy for Miss SZE Kin, counsel for the plaintiff, to discharge her professional duties to her client and the court. Nevertheless, I consider that she has done so admirably, and I am greatly indebted to her for her valuable assistance at all stages of the trial.

6. In her final address, Miss SZE Kin advanced detailed and general submissions to support her contention that the defendant had wholly failed to discharge the onus of proving its Counterclaim. From the manner in which the defendant eventually replied to the plaintiff's statement of account (Exh. P.3), and the manner in which its case has been pleaded, I gained the initial impression that the defendant, instead of putting forward a bona fide claim to make substantial deductions for defective work, was really seeking to evade or avoid its obligations to the plaintiff, or attempting to discourage him from pressing his claim. The evidence before me was in many respects, unsatisfactory, and tends to confirm, to a substantial degree, this initial impression. But there are significant features of the evidence, which lead me to the firm conclusion that the defendant has established, on the balance of probabilities, some of the allegations in its counterclaim. Although I harbour grave suspicion regarding the defendant's pre-trial conduct towards the plaintiff's claim, on the totality of the evidence placed before me at the trial, and after giving anxious and careful consideration to Miss SZE Kin's persuasive submissions, I consider that it would be unjust to yield to the temptation of taking the easy course of dismissing the defendant's Counterclaim for lack of sufficient proof.

7. In coming to that general conclusion, and making specific findings on certain aspects of the defendant's Counterclaim, I have not overlooked the formidable points which have been, or can be, made against the defendant's conduct in this dispute. The failure to reply immediately to the statement of account (Exh. P.3), rendered by the plaintiff in August 1981, can, in my view, be explained by the defendant's understandable wish to wait and see if the plaintiff's various assurances to rectify defective work would be honoured. For reasons I give later in this judgment, I am satisfied that some of the work done by the plaintiff was defective, and not all of such defective work was rectified by the plaintiff before or after he left the site. I find as a fact that this occurred at or about the end of July 1981, when the plaintiff moved to another site. His written "apology" (Item 35 of Plaintiff's Bundle and Exh. D4), dated the 31st July 1981, acknowledges that there had been cause to complain about some of the plastering, and confirms, in my view, that certain assurances had been given that these, and any other defects, would be rectified so as to enable the defendant to hand over the site to Fugar in a condition which satisfied the defendant's obligations under the main sub-constrict.

8. I am, however, less disposed to take a similar favourable view of the defendant's eventual reply (Exh. P.5) to the plaintiff's renewed demand for payment of the balance. This document, which purported to enumerate the defective works and to estimate the cost of rectifying the same, was described by Mr. CHIK as a "warning letter", because it was sent before the present proceedings were instituted. I am not impressed by that euphemistic description of what was, in my view, a clear attempt to discourage the plaintiff from pursuing his claim. The figures set out in Exhibit P.5 have clearly been inflated, and items for which the plaintiff never agreed to be responsible have been included, so as to arrive at a global figure which would virtually extinguish the balance claimed by the plaintiff. The estimated expenses for rectifying the alleged defects bear no relation to quotations (e.g. Exh. D7) then in the possession of the defendant. The cost of rectifying defective plastering was at least twice the amount quoted by TSANG Tung, the contractor allegedly engaged by the defendant to carry out this remedial work. I will not dwell upon other valid criticisms of the contents of this document, beyond remarking that, insofar as it may have been intended as a sort of "opening gambit", designed to induce the plaintiff to come to the negotiating table and settle the dispute in an atmosphere of informality, and in accordance with customary practices, it was wholly unrealistic. I am not at all surprised that the plaintiff declined this invitation and, instead, sought legal advice and instituted the present proceedings.

9. The fact that this conduct or posture of the defendant was maintained, after legal proceeding were commenced, in the original "Defence and Set-off" filed on the 29th May 1982 by solicitors then acting for the defendant, has caused me to give long and anxious thought to the question whether there is, or ever has been, any merit in the defendant's contentions. This pleading was, in my respectful view, obviously inept and inappropriate in many respects. It was based almost entirely upon the contents of Exh.P.5. Whether the pleader had before him (or her) the various other documents placed before me at the trial is, perhaps, doubtful. It may be that some of these were not made available by the defendant to its solicitors at that time, or, if they were, that their significance was not fully appreciated until after that pleading had been drawn and filed. I do not propose to speculate upon the precise relationship between the defendant and its legal advisors at this or any other stage. I would merely remark that the "Amended Defence and Counterclaim", which was filed an July 1983, with the consent of the plaintiff's solicitors after merely token opposition is, in my view, a more realistic attempt to particularise and quantify the defendant's losses allegedly suffered in this dispute. By this time, the defendant had consulted other solicitors.

10. If this documentary material were the only evidence before me, the conclusion that the defendant had failed to prove any part of its Counterclaim to the required degree would be almost irresistible. However, I must endeavour to resolve the various issues on the basis of all the evidence placed before me at the trial, both oral and documentary, although I have taken into account the pre-trial conduct of the parties in my assessment of the credibility of their oral testimony. Neither the plaintiff nor Mr. Chik were entirely satisfactory witnesses. On some points I preferred the evidence of the plaintiff; on others, I found Mr. Chik to be a more reliable witness. After considering all the evidence, I am unable to accept the plaintiff's assertions that there were no defects, or that he had caused all defects to be rectified after he had left the site. Nor do I accept his evidence that the defendant did not complain about his work until April 1981. On the other hand, I am far from satisfied that the defective work was as extensive as Mr. Chik appeared to suggest, or that he incurred expenditure in rectifying the defective work on the scale of the amounts contained in the pleadings and many of the documents placed before me. Although the authenticity of the various invoices and receipts produced by the defendant has not been seriously challenged, I have found them to be of limited assistance, because many of them contain general or global sums for a variety of work, some of which covered items for which the plaintiff could not be held liable.

11. Although I am satisfied that the defendant has proved that some of the work agreed to be carried out by the plaintiff was left unfinished, and that other work was so defective as to amount to a breach of the implied condition, the extent of its loss resulting from such breaches has not, with a few exceptions, been proved with sufficient certainty or particularity. This situation has been brought about largely, in my view, by the defendant's informal and unsystematic approach to its work in general, and this litigation in particular. Instead of attempting to isolate the losses, fairly and reasonably attributable to the plaintiff's breaches, it has tended to lump together indiscriminately all of the expenses which a principal sub-contractor is likely to incur in carrying out its contract with the main contractor, and has sought to hold the plaintiff responsible for the bulk of these expenses. Before dealing with the specific items set out in paragraphs 4 and 6 of the Amended Defence and Counterclaim, I will indicate my findings of fact on the principal issues.

12. I find as a fact that serious defects in the plastering work being done by the plaintiff were discovered as early as November 1980, and that these were brought to the notice of the plaintiff by Mr. Chik at the end of November 1980. I also find that this defective workmanship continued as work on the site progressed, and that serious defects in the tiling work done by the plaintiff were also discovered. That there was cause to be disatisfied with the plaintiff's plastering and tiling work throughout the period he was on the site is, in my view, amply borne out by the various letters of complaint from Fugar sent between November 1980 and august 1981(Exhibits D1 and D2). I reject the plaintiff's evidence that Mr. Chik first complained about the defective work in April 1981, and had merely mentioned the need for improvement earlier. I am satisfied that Mr. Chik complained on numerous occasions, but did not act upon Fugar's advice, that he should change his sub-contractor, because of promises by the plaintiff that the defects would be rectified before he left the site. In my view, the tone and contents of Fugar's letters during this period suggest that the defective work was serious and extended to each of the 8 houses under construction.

13. It was the plaintiff's case that when he left the site all the work he had contracted to do had been completed, and that he left behind four of his workers to carry out rectification of various defects, which was effected between September and December 1981. He called Mr. Ng Ha, who was in charge of this work, and three other workers, to support this contention. I was not greatly impressed by their evidence. Apart from some contradictions as to the identity of these workers and the numbers engaged on the site, they do not really support the plaintiff's evidence that his 4 workers each worked for 75 days, or his claim to have paid them some $20,000 for their work. On the basis of a daily rate of approximately $140, the total wages bill would be substantially higher. But, on the evidence, I find that they were paid by Ng Ha out of monies provided by the defendant. At the end of July, 1981, the plaintiff was in financial difficulties and had no money to engage anyone for work on the site. His letter (Exh. D4) tends to confirm Ng Ha's evidence that he was paid by Mr. Chik, payment of $27,020 is reflected in the sums credited to the defendant, of which the plaintiff has acknowledged receipt. Furthermore, whilst I think that some of these workers carried out some rectification work, they were, in my view, mainly engaged on completing unfinished work. Indeed, I find as a fact that this was what Ng Ha was principally engaged to do - finishing work left undone by the plaintiff when he left to start work on another project. On this aspect of the case, and despite some reservations about the quality of the evidence, I find that such workers as were left behind were mainly engaged upon completing unfinished work, which was done during August 1981, and thereafter, the bulk of the rectification work was carried out by workers or subcontractors engaged by the defendant.

14. On the 30th April 1982, Fugar wrote to the defendant (Exh. D3), requiring it to remedy various defects discovered at an inspection held on the 27th April 1982. On the totality of the evidence, I am satisfied that some of these defects are attributable to defective work done by the plaintiff before he left the site. They relate mainly to leakages around the window frames and other parts, which were probably due to defective filling and plastering work. Whilst, I am not surprised that these defects were not detected until April 1982, it is odd that they were not included in the defendant's original Defence and Set-Off, but only appear in the Amended Defence and Counterclaim, filed in July 1983. It may be that the cost of rectifying these defects was not known when the original pleading was drawn or delivered. But, whatever may be the explanation, any suspicion which might arise from this omission does not cause me to doubt that the defects, which the defendant has isolated by the use of green ink, are fairly and reasonably attributable to work done earlier by the plaintiff.

15. Being satisfied, as I am, that the defendant has proved in broad and general terms the substance of its complaints, as alleged in paragraphs 3 and 5 of the Amended Defence and Counterclaim, I now turn to the infinitely more difficult task of assessing damages for such breaches. Although the various amounts claimed under paragraphs 4 and 6 are vouched for by the various documents before me, it is extremely difficult to ascertain precisely how much (if any) was spent on rectifying defects caused by the plaintiff's poor workmanship and how much was spent on remedying defects caused by other sub-contractors, or on the general "tidying-up" work which would be necessary before the site could be finally handed over to the employer or architect. Insofar as I have been able to arrived at definite figures, it has been achieved by a process of gleaning facts and figures from the various documents, and the evidence. Whenever there has been no attempt to breakdown the cost of individual items in composite bills, I have generally taken the view that the defendant has failed sufficiently to quantify and prove its losses. To make an allowance or deduction, on the basis that some of the work covered by these various bills must have been due to breaches by the plaintiff, would be pure guess work on my part. Since the burden of proof is upon the defendant, it must accept the consequences of its failure to isolate and present its losses in a more coherent or systematic fashion. Furthermore, I must guard against the risk of being misled by duplication and exaggeration of some of the figures in these documents.

16. I would, however, add that I am regrettably not in a position come to a finding, on one issue raised by the pleadings; namely, the allegation in paragraph 4 of the Amended Reply and Defence to Counterclaim, which would relieve me entriely of the difficult task of assessing the defendant a losses. The Plaintiff alleged that the work he contracted to do was found to be satisfactorily completed by Mr. Lam Shu Wai, a partner in the defendant firm and by Fugar's foreman, after an inspection and handing over of the site on the 3rd December 1981. I am satisfied that there was no handing over, formal or otherwise. There was certainly no evidence that Fugar had accepted the plaintiff's work as satisfactory, and I am satisfied, by the evidence of Mr. Chik and Mr. Lam that the defendant never accepted the work done by the plaintiff as being satisfactory at that, or any other, time. The plaintiff has wholly failed to prove the alleged unconditional acceptance of his work or waiver of his breaches. I will now deal separately with the amounts claimed by the defendant in the order in which they appear in the Amended Defence and Counterclaim.

17. Paragraph 4(1) Although I am satisfied that the defendant employed its own workers, during the period from September to December 1981, on various works of rectification, the defendant has not satisfied me that the sum of $37,563 is wholly attributable to the plaintiff's breaches. Mr. Chik sought to justify this sum by reliance on his daily pay lists (Exh. D9). The total of the amounts set out in this exhibit for wages paid between September and November 1981 exceed the amount claimed under this head. It may be that the excess covers part of the sum claimed under paragraphs 4(2). But, with one exception, I am not satisfied that these labour costs are attributable solely or mainly to work occasioned by the plaintiff's breaches. The pay lists do not specify the work done by the various workers. I think that one or more of the defendant's workers were probably employed to take down defective plastering and tiling before the necessary re-plastering and re-tiling was done. I am also satisfied that the latter (and other work)was done by Mr. Tsang Tung ( cf. exhibits D6, D7 and D14). Three of the pay lists suggest that one worker - a Mr. Lee - was engaged on work connected with that carried out by Tsang Tung. (See pages 37, 63 and 97 of the Defendant's Bundle of Documents.) These wages come to a total of $3577.30. This is the maximum I would "allow" under this head. (I am conscious of the fact that I am not engaged upon the process of taking an account or taxation of costs. I use the expressions "allow" or "disallow" merely for convenience to signify the items which, in my view, have or have not been proved, according to the well-established and pragmatic guidelines to be found in Ratcliffe v Evans (1892) 2 QB 524 at 532-3).

18. Paragraphs 4(2) and 4(3) I "disallow" the amounts claimed under these heads because they are not sufficiently proved. There is no documentary or other evidence to support the precise figure of $8,000 for transportation costs. It is impossible to make even an intuitive guess at the cost of the re-plastering or re-tiling done by Tsang Tung in respect of defects discovered prior to July 1981. Exhibit D7 is the only document which could conceivably be regarded as proof of the loss claimed under paragraph 4(3). It does not indicate how much of the fee for each block was attributable to re-painting or painting. Painting was not part of the work undertaken by the plaintiff. Insofar as any re-painting was necessitated by defective plastering or other works clearly undertaken by the plaintiff, I consider that the plaintiff is not liable therefor, because I find as a fact that any original painting of such defective parts, as was done, was done after the defects had been discovered and before they might have been rectified by the plaintiff before he left the site. Any wastage in this respect is a loss which the defendant must bear. I realise that, by "disallowing" the amounts set out in Exhibit D7, I may be depriving the defendant of damages legitimately occasioned by the plaintiff's breaches. However, this is a penalty or loss, which must be accepted by any litigant who fails to make a realistic attempt to particularise its specific losses or to obtain satisfactory proof thereof.

19. Paragraph 4(4) I have no hesitation in rejecting the amount claimed under this head in its entirety. Apart from the fact that Mr. Chik was unable to offer any satisfactory explanation for the apparent increase in the cost of the services apparently rendered by "Cheng Brothers" (cf para, (c) of Exhibit P.5 and Exhibit P.1), from $28,000 to $32,000, I fail to see how the plaintiff can be held responsible for these expenses. The work allegedly done by "Cheng Brothers" appears to relate entirely to general cleaning and painting on the site. Although I do not accept the plaintiff's contention that it was no part of his contractual duty to clean up any mess or rubbish left behind by his workers, it is impossible for me to determine how much of the cleaning work allegedly done by Cheng Brothers was attributable to the plaintiff's refusal to perform its admitted duty to perform his work "in a good and workmanlike manner." In my view, cleaning-up any mess occasioned by one's own work is a necessary incident of that obligation. It is, perhaps, pertinent to observe that Mr. Tsang Tung appears to have accepted that the cost of cleaning is something to be borne by the person who does the actual work, instead of the person who contracts for that work to be done. (cf Exhibit D6). Nevertheless, the cleaning work allegedly done by Cheng Brother is not obviously related to any default on the part of the plaintiff. Insofar as any part of the alleged expense deals with painting or re-painting, the defendant cannot hold the plaintiff responsible therefor, for the reasons I have already expressed.

20. Paragraph 4(5) By the terms of the contract between to the defendant and the plaintiff, the defendant was obliged to supply the basic materials for the work to be done by the plaintiff. Much of this work involved plastering of external and internal walls and other areas. This would necessarily require the use of a considerable amount of cement and sand. Insofar as the work done by the plaintiff was defective, and had to be re-done by its own workers, or others engaged by the defendant, after the plaintiff had left the site, a considerable quantity of basic materials would have been wasted. The cost of replacing those basic materials should, in my view, be taken as the measure of the defendant's loss. The figures mentioned under this head of the defendant's Counterclaim clearly relate to the documents which emanate from Kwong Loong Co (Exhibit P10) and Tong Yan (Exhibit D12).

21. On the basis of Mr. Chik's evidence, the goods included in these receipts whould have been delivered to the site some 7 to 15 days prior to the dates of the receipts. Accordingly, I find as a fact that the materials supplied by Kwong Loong Co, with the exception of those covered by receipt No.0367, were delivered to the site between April and July 1981. The plaintiff was still working on the site during that period. As I have already found that the plaintiff had not completed all the works which he contracted to do by the time he left the site, at the end of July 1981, it is impossible to determine whether any of these materials were used on rectifying earlier defects. However, I find that the materials covered by receipt No. 0367 were delivered in September 1981, and, on the basis of my earlier findings, I infer that these materials were used exclusively in rectifying defects in the plaintfiff's work, which had not been carried out by such work as was done by Ng Ha and other workers left on the site by the plaintiff. I, therefore, allow only the amount of $1,166 for materials supplied by Kwong Loong Co.

22. On the other hand, I find as a fact that the materials covered by Exhibit D12 were supplied by Tong Yan between September and November 1981, and I infer that they were used exclusively in rectifying the remaining defects in the plaintiff's work. I, therefore, allow the sum of $16,179 paid to Tong Yan as the defendant's proved loss under this head of damage. In the result, I assess the defendant's proved damages under paragraph 4 at the total sum of $20,922.30.

23. The sums claimed under Paragraph 6 are mainly concerned with eradicating leakages due to defective plastering around the windows. I am satisfied that the bulk of this remedial work was carried out by Tsang Tung, and is covered by Exh. D6 For the reasons given earlier, I am not persuaded that the defendant has proved that it incurred separate labour costs in preparing for this remedial work. Accordingly, I disallow the sum of $11,056 claimed under paragraph 6(1). I think that it is more probable that the cost of "hacking around the windows, etc" is already reflected in Tsang Tung's bills (Exhibit D6). In contrast to his earlier account or estimate (Exhibit. D7), the works covered by Exhibit D6 are more clearly and specifically related to the defects, which the defendant has realistically and, in my view, jsutifiably isolated as attributable to the plaintiff by the use of green ink on Exhibit D3.

24. Paragraph 6(2) I am satisfied that some of the remedial work carried out by Tsang Tang in 1982 could not be done without some slight damage to the aluminium window frames already installed. The cost of repairing the frames is verified by Exhibit D8 and I would allow the sum of $2,410 claimed under this head.

25. Paragraphs 6(3) and 6(4) The sums claimed under these heads are covered by Exhibit D6. The amount of $8840 does not, however, take into account the $360 which Tsang Tung deducted by way of a cleaning fee. The amount actually paid to him was $8,480, and I would allow this sum under paragraph 6(3). I am also satisfied that the repairs to window ledges and tiles (see the amended invoice: Exhibit D14), amounting to $2,040, were also due to defective work done by the plaintiff. When precisely the repair work was done is, prehaps, uncertain, because the receipt for such payment is dated "16.7.80". But, I think that this is probably a clerical error. I would, accordingly, allow $2,040 under paragraph 6(4).

26. Paragraph 6(5) I reject the claim under this head, because the receipts contained in Exhibit D5 show clearly that Mr. Wong Yung Kiu did painting on the site, as distinct from "re-pointing", and for the reasons already given, this was no part of the work under taken by the plaintiff.

27. Paragraph 6(6) The remedial work carried out near the window frames, in my view, necessarily involved some wastage of sealing materials, just as it involved wastage of cement and sand used in plastering these areas. The cost of replacing such wasted materials is recoverable, and I would allow the sum of $1,447, covered by Exhibit D.11, under this head.

28. In summary, I am satisfied that the defendant has sufficiently proved the following specific losses:-

29. The Counterclaim also includes a prayer for damages for breach of contract. Having regard to the nature of the evidence before me, any award of general damages for breach cannot be anything more than a nominal or notional sum. But, I am satisfied that the defendant has suffered loss and damage, if only in relation to cleaning up the mess left behind by the plaintiff. For the reasons I have already given, I am satisfied that this was part of the plaintiff's contractual duty. His attempt to prove that it is usual or customary for the main contractor to be responsible for all cleaning costs has failed, and is refuted by Tsang Tung's acknowledgment that it is an expense which should be borne by the individual sub-contractor. I think that the amount of time and labour spent on cleaning up the mess left by the plaintiff's workers, such as removing plaster from tiles and bath tubs etc, was probably greater than that spent by Tsang Tung in 1982, for which he made a deduction of $360. In all the circumstances, I would award the defendant $1,000 as general damages for breach of contract. In the result, the total amount I award on the Counterclaim is $36,299.30.

30. When reserving judgment, I indicated to the parties that I would deliver the same in accordance with the procedure set out in Order 42 rule 5A of the Rules of the Supreme Court. I have not had the benefit of any argument on costs or the form in which judgment should be given. At all material times, the defendant has sought to set off the amount found due on its counterclaim against the admitted amount claimed by the plaintiff. Apart from the issue raised by paragraph 4 of the Amended Reply and Defense to Counterclaim, which I have resolved in favour of the defendant, this case has been fought entirely on the Counterclaim, upon which the defendant has only been partly successful. I have considered the authorities cited in the paragraph 15/2/6 of the Supreme Court Practice 1982, but in all the circumstances of this case, I consider that justice indicates that I should dismiss the Counterclaim and give judgment to the plaintiff for the reduced balance of his claim, i.e. $137,080.70, with costs to the plaintiff. However, I do not consider that his is a case where the plaintiff should recover his costs in full. Although he was virtually compelled to resort to litigation to recover his money, his refusal to acknowledge that any of his work was defective has, in my view, unreasonably added to the length and costs of the trial. I will, therefore, make an order nisi that the defendant should pay 70% of the plaintiff's costs, Which are to be taxed in accordance with the Legal Aid Regulations. In case either party wishes to contend that judgment should be expressed in some other form, I will further direct that my judgment be not drawn up until 14 days after my decision is pronounced, with liberty to either party to apply within that period for any variation in the form thereof.

Representation:

Miss Sze Kin, Counsel instructed by Messrs. Edward C. T. Wong & Co., for Plaintiff.

Defendant in person.