Wong Hung Chun and Another v. Tsao Chin Lan

DCCJ004386/2002

DCCJ4386/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4386 OF 2002

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Coram: His Honour Judge Wong in Court

Dates of Hearing: 3, 4, 5 & 8 December 2003

Date of Handing Down Judgment: 7 January 2004

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JUDGMENT

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The Plaintiff's claim

1.The Plaintiff claims against the Defendant for $176,979.00 being the balance of the decoration and renovation services rendered by the Plaintiff to the Defendant at apartment D804, 8th floor, Block CD of Oriental Garden. The said sum was pursuant to an agreement dated 18 November 1998 and additional work less cancellation of certain items.

Defence and counterclaim

2.The defence is that the Plaintiff was in breach of the agreement in that

(1) the Plaintiff did not complete the work in time and that the Plaintiff did not complete the work

(2) the Plaintiff's work was defective

(3) because of the defective work the Defendant had suffered loss of damage

3.The Defendant counterclaims the following items:-

(1) $6,250 for repairing outstanding works

(2) $90,870 for defective works

(3) $24,900 for outstanding works

(4) $31,050 for repair work for water seepage

(5) $27,600 being amount paid to surveyor for report

(6) $38,000 being rent the Defendant paid during the decoration of the premises

(7) $780 for 12 handles

(8) $1,085 for 7 locks

(9) $94 for 9 hinges

(10) $68 for 2 S shringes

(11) $6,500 being the amount the Plaintiff overcharged in respect of the front door.

Total $227,197.00

The Plaintiff's case

4.The Plaintiff's case is that the Plaintiffs entered into a written agreement dated 18 November 1999 in which the Plaintiff undertook decoration and renovation work for the Defendant at $370,000 to be paid in 4 instalments. The 1st and 2nd instalments in the sums of $111,000.00 & $86,334.00 had been paid. The Plaintiff now claims the 3rd and 4th instalments of $86,334.00 each totalling $172,668.00.

5.After commencement of work there were variations to the agreement in that there were the following additional works:-

(1)	balcony titles	$6,400
(2)	additional 15 plugs @	$550 = $8,250
(3)	supply of granite	$6,000
	Total	$20,650

And the following deductions:-

(1)	Cancellation of wall kerb	$5,005
(2)	Cancellation mirror installation	$5,005
(3)	Cancellation of ceiling kerb	$4,550
(4)	Cancellation of wash basin	$2,047
(5)	Transport of furniture	$2,730
	Total	$19,337

6.The Defendant has therefore to pay an extra of $(20,650 - 19,337) = $1,313

7.The Plaintiff further claims $3,000 being the balance of the money paid by the Defendant for use of enamel paint instead of emulsion paint particulars of which are as follows:-

Additional price $8,000

less money paid by the Defendant $5,000

This claim was waived by the Plaintiff on 10 November 2003.

The Defendant's case

8.The Defendant agreed that she had entered into the said agreement and that the Plaintiff agreed to complete the work by 18 January 1999. But the Plaintiff did not finish work in time hence the Defendant had to rent a flat until 31 March 1999.

9.The Defendant further called the Surveyor to support her claim.

THE ISSUES

10.The issues are simply that on finding of fact which items the parties were entitled to claim and if so what is the reasonable amount.

The Plaintiff's claims

(i)	The 3rd and 4th instalment payments
	I accept that the Defendant had paid $33,600 on 13 February 1999 to a partner of the Plaintiff firm. Apart from that the 3rd and 4th instalments had not been paid.
(ii)	Balcony tiles
	According to the agreement the Plaintiff was only required to place tiles on the ceiling and the balcony floor. It did not include the flower-bed. I accept Mr. Wong's explanation that work on the flower-bed would need extra work and would need more time to finish the project. I accept that $6,400 is a reasonable sum for that additional work.
(iii)	Additional 15 plugs
	I accept the Defendant's evidence that originally there were already 65 plugs there was no need for an extra 15 plugs. On balance I do not find the Plaintiff had installed an extra 15 plugs. So this item is disallowed.
(iv)	Supply of granite
	There is no evidence concerning the supply of granites so this item is disallowed.

11.The agreed contract sum is $370,000.

12.The Defendant has paid the Plaintiff the 1st instalment in the sum of $110,000, 2nd instalment in the sum of $86,334 another sum of $33,600, less deduction of certain items in the contract in the sum of $19,337.00. The Defendant has to pay an extra sum of $6,240 being addition work for flower-bed.

13.The Defendant subject to counterclaim is liable to pay the Plaintiff $370,000 - 110,000 - 86,334 - 33,600 - 19,337 + 6,240 = $126,969.00.

The Defendant's counterclaim

14.The Defendant has filed a surveyor's report in respect of the Plaintiff's defective works. The investigation by the surveyor is of microscopic detail. Some items were cancelled by the Defendant before the work started. Although the surveyor had given a break down figure for carrying out the individual items of remedial work but most of the items had been used by the Defendant and many items have minor defects and the estimation or breakdown figures are unreasonable.

(1)	Costs for outstanding works in the sum of $24,900
	Items mentioned in 5.3.1, 5.3.4 and 5.3.5 were items the Defendant agreed to be deleted from the original contract. So $5,500, $5,500 and $5,000 should be deducted. The costs for outstanding works is therefore $24,900 - 5,500 - 5,500 - 5,000 = $8,900.
(2)	Costs for defective works
	Most of the finding on defective works are minor albeit not perfect. They can be used and have still been used by the Defendant. I am not satisfied that it needed $90,870.00 to remedy the defective works. I am of the opinion that $60,000 is a generous sum to be awarded under this head.
(3)	Costs of Surveyor's report
	I am of the view that $27,600 is a reasonable sum for such detailed report.
(4)	Rental
	The contract did not specify that time is of the essence. The Defendant had to move elsewhere during the decoration of the whole flat. I agree with the Defendant's counsel that 2 months' rent is reasonable. So I allow $(7,600 x 2) = $15,200.
(5)	Water seepage
	The photographs show that bolts had not been removed and there were holes which support the surveyor's finding that the seepage was due to the defective work of the Plaintiff. So I allow $31,050.00.
(6)	Costs for repairing outstanding works
	These concern the accessories for the construction of cabinets. I accept the surveyor's finding and allow $6,250.

15.There is no evidence of the Plaintiff having overcharged in respect of the front door.

16.Apart from that I also allow the Defendant's claim in respect of $780 for handles, $1,085 for locks, 94 for hinges, $68 for shringes, totalling $2,027.

17.In the premises I find that the Defendant is entitled to counterclaim

(1) $8,900 for outstanding works

(2) $60,000 for defective works

(3) $27,600 being surveyor's fees

(4) $15,200 being rentals Defendant incurred for delay in completion of the decoration work

(5) $31,050 for remedy to water seepage

(6) $6,250 for accessories in respect of cabinets

(7) $2,027 for miscellaneous items

Total $151,027

18.In the premises I give judgment for the Plaintiff in the sum of $126,969 and judgment for the Defendant in respect of the counterclaim in the sum of $151,027. Interests in respect of the Plaintiff's claim and the Defendant's counterclaim at 1% above prime rate per annum.

19.Order nisi : costs to the Plaintiff in respect of the Plaintiff's claim and costs to the Defendant in respect of the Defendant's counterclaim

Representation:

Miss Hui Ying Ying instructed by Messrs. C.H. Chan & Co. for Plaintiff.

Mr. Wong Colin instructed by Messrs. W.S. Szeto & Lee for Defendant.