Tsang Kau, Proprietor of the Kam Ling Construction Co v. Tsoi Tai Leung
Read the full judgment text of HCA 39/1946 on BabelCite. This High Court CFI judgment was delivered on 17 December 1948.
1. On the 11th March, 1946, the plaintiff (who is a building contractor) entered into a written contract with the defendant (who is the owner of Nos. 118, 120, 122 and 124 Jaffe Road) for the repair and reconditioning of those premises which had been damaged during the Japanese occupation of Hong Kong. The plaintiff, on a specially endorsed writ, claims the balance of the contract price $3000 and extras $2912.55 but makes an allowance of $1411.35 for materials supplied by defendant, leaving the
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HCA000039/1946 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 39 OF 1946 -----------------
Coram: Gibson C.J. Date of Judgment: 17 December 1948. ----------------- JUDGMENT ----------------- 1. On the 11th March, 1946, the plaintiff (who is a building contractor) entered into a written contract with the defendant (who is the owner of Nos. 118, 120, 122 and 124 Jaffe Road) for the repair and reconditioning of those premises which had been damaged during the Japanese occupation of Hong Kong. The plaintiff, on a specially endorsed writ, claims the balance of the contract price $3000 and extras $2912.55 but makes an allowance of $1411.35 for materials supplied by defendant, leaving the net claim at $4501.20. The defendant filed a Statement of Defence which baldly denies liability but bears little resemblance to a pleading. It indicated an intention to file a counterclaim and leave to do so was obtained. The counterclaim alleges, for the first time, that plaintiff abandoned the contract and claims $7046.20 as liquidated damages. The plaintiff filed a Defence to Counterclaim (accepting apparently the idiosyncracy of defendant's pleading) denying abandonment and alleging fulfilment of the contract. 2. A great deal of evidence was led on both sides but apart from the formal witnesses Chan Yau, Fung Shum and Leung Man who were called by defendant, whose evidence I accept subject to the comments which follow, the only witness who impressed me as completely a witness of truth was Mr. Harry way, the architect. The plaintiff was clearly prepared to go outside the truth in support of his case on a number of matters and his witnesses were merely shadows. For instance, I do not accept his story that all the work was either done as provided in the contract or alternatively accepted by defendant, or that defendant did not complain until her solicitors wrote the letter of May 8th or that defendant accepted everything as satisfactory on May 13th. I equally disbelieve plaintiff's explanation (after he had given two previous versions) that defendant stopped the $3000 cheque at the end of May because of a dispute about the tiling of the floor of No.124 - a matter not provided in the contract at all. On the other hand defendant was not, In my opinion, telling the truth, for instance, when she said that plaintiff abandoned the work through inability to pay his men, etc., and she was very obviously not telling the truth when she said she was satisfied with the work of her contractor Chan Yan Kee - a statement which she modified in cross-examination at least to the extent of admitting that her tenants complained of Chan Yan Kee's work. 3. Reviewing the evidence as a whole, I am quite satisfied that the plaintiff did not abandon the work. I am of opinion that he substantially completed his contract within the contract time though some of the work was not entirely satisfactory and was not accepted as such by defendant or her representative. This being go, the principle of Dakin v. Lee 1916 1 K.B. 566 is applicable and the plaintiff is entitled to recover the balance of the contract price subject to deduction of an amount sufficient to put the work in the condition in which it ought to have been according to the contract. 4. Defendant is not therefore entitled to recover on items 1(1) and 2 of her counterclaim. 5. What then should be the deduction Defendant has said that plaintiff, because of financial embarrassment, agreed that she should employ other contractors to put the work in order and gave her carte blanche in this connection. I reject this evidence which is both improbable in itself and inconsistent with plaintiff's actual conduct. There was a difference of opinion as to whether the contract had been satisfactorily completed. The plaintiff considered it had been and was therefore unwilling to do any more and demanded the balance of the contract price and the defendant was complained - in general terms that the work was not in accordance with the contract. But on my view of the evidence, although she knew the plaintiff regarded the contract as concluded and had removed his workmen after completing the extra work and although she had let in tenants in ten of her sixteen flats by the end of June (some of them had been let in earlier), there is no satisfactory proof that she gave plaintiff specific notice of the defects in the performance of the contract of which she complained, or of any subsequent faults which plaintiff was required to put right under clause 34 of the contract, before she employed other contractors to do the work. On the principle approved in the London and South Western Railway Co. v. Flower L.R. 1 C.F. 77, I do not think she would be entitled to deduct or counterclaim the sums paid to the other contractors even if I was satisfied that all the work they did for her was satisfactorily done and was work which plaintiff was liable to do. I am not so satisfied. There are no detailed specifications before me of the work these other contractors did and no evidence that they knew the terms of the plaintiff's contract and regarded the work as within those terms. The defendant is clearly a rather biased witness (she regards all contracters as bordering on the dishonest and found not one thing right in the work done by the plaintiff and I am not content to accept, on her evidence, that all the work done by the other contractors was work which plaintiff was liable to do or was done satisfactorily. Then again, the work done by Chan Yan Kee and Yu Kwong was done before the premises were inspected by the architect, Mr. Way, and a lot of it in the very work of which Mr. Way complains in his report. Referring to Chan Yan Kee's work, the defendant said in her evidence: -
I do not believe defendant forgot to tell Chan Yan Kee to do any appreciable quantity of work which was later done by Shum Tai and, even if she had forgotten but was content with Chan Yan Kee's work, she could easily have repaired the omission without switching to Shum Tai. She clearly regarded Chan Yan Kee as both unsatisfactory and expensive. 6. Mr. Way estimated that it would cost $3000 to make the work conform with the contract and I think this is the most reliable figure to take as the amount to deduct from the contract price. Of course he gave this estimate after work had been done by Chan Yan Kee and Yu Kwong and after tenants had been let in who may have done some damage as tenants will. But, although I am unable to assess the value of the work which Chan Yan Kee and Yu Kwong did which should have been done by plaintiff, I am at least prepared to believe that Mr. Way’s figure would not have been lower if they had done no work at all, and the tenants are not likely to have done any very appreciable damage in the short time that they occupied the premises. Moreover, I am encouraged to believe that, in taking the architect's figure I shall do substantial justice, by the fact that defendant did not spend as much as $3000 on the premises after the date of the architect's inspection. 7. It follows that the first item on the claim is cancelled by the deduction. I think the amounts of the claim for extra work and the amount allowed for used materials are justified by the evidence. Items 1(2), 1(3), 1(4) and 1(6) of the counterclaim are not substantiated for the reasons given. Item 1(5) has been abandoned and item 1(10) is admitted. I am not satisfied on the evidence that items 1(7), 1(8) and 1(9) are justified. 8. There will therefore be judgment for the plaintiff on the claim for $1501.20 and for defendant on the counterclaim for $449.50.
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