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D Mondo Limited v. Yau Chiu Wing also known as Edmund Yau and Another

Case No.HCCT 18/1994
Court
HIGH COURT
Date12 Dec 1995
JudgeHon Mr Justice Findlay
Case Document
100%

HCCT000018/1994

Con. & Arb. List No. 18 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

D MONDO LIMITED

 Plaintiff
and
YAU CHIU WING also known as EDMUND YAU First Defendant
MRS EDMUND YAU Second Defendant

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Coram: Hon Mr Justice Findlay, in Chambers

Date of hearing: 8 December 1995

Date of handing down of judgment: 12 December 1995

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JUDGMENT

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1. The plaintiff is an interior designer and contractor. Between July and August 1993, the plaintiff entered into a contract with the defendants to redesign and renovate a flat in Homantin.

2. The plaintiff has issued a summons claiming judgment under Order 14, or an interim payment under Order 29, in respect of the amount that, the plaintiff alleges, is indisputably due by the defendants. This is the summons before me.

3. Mr Beaumont has argued that I should not consider this now for various reasons; in effect, saying that this is not the appropriate time. I am satisfied, however, that, if a sum is due to the plaintiff, which is not disputed by the defendants, there is no reason why the plaintiff should be kept out of this money until trial.

4. The position taken by the plaintiff may be summarised in the following table -

Contract price $1,292,800.00
Extras $314,136.00
$28,570.00
Total $1,635,506.00
Less payments $950,000.00
Balance $685,506.00
Less claims by defendants as $168,388.00
recalculated by the plaintiff
Balance $517,118.00
Interest at 10% to July 1995 $114,000.00
Total due $631,118.00

5. On the other hand, the defendants say that the plaintiff has already been overpaid. Their view is reflected in the following table -

Value of work completed by plaintiff $1,256,500.00
Less cost of completion and rectification work $260,100.00
Less cost of remedial work for drainage leak $16,565.00
Less over payment $24,323.75
Less damages for loss of enjoyment $60,000.00
Total $895,512.75
Already paid to plaintiff $950,000.00
Balance due to defendants $54,488.75

6. In my view, the plaintiff's general approach is right. That is, one starts from the contract price, which is not in dispute. To this, one adds the extras that are not in dispute. On the basis of the following table, the extras not in dispute amount to $164,971.31

Invoice dated 10 November 1995 - Part A
Item 1 - not disputed $38,750
Item 2a - admitted in sum of $12,195.20
Item 2b - admitted in sum of $3,680.50
Item 2c - admitted in the sum of $1,062.50
Item 2d - not disputed $1,485
Item 2g - adjusted $2,763.48
Item 3 - admitted in the sum of $42,885
Item 4 - not disputed $4,750.60
Items 6b-6d - admitted in sum of $7,322.75
Item 6e - admitted in the sum of $1,098.40
Item 7 - admitted in the sum of $9,182
Item 9 - admitted in the sum of $27,300
Item 10 - admitted in the sum of $2,095.88
Part B - Item 1 - admitted in the sum of $10,000
Invoice dated 23 November 1995 - Item $200
4 - admitted in the sum of
Item 5 - admitted in the sum of $200
Total admitted as due by defendants $164,971.31

7. This makes a total of $1,457,771.31, from which should be deducted the sum of $950,000 already paid, leaving a balance of $507,771.31. From this must be deducted the claims by the defendants. I am not prepared at this stage to examine these closely to see if they are justifiable. They are certainly arguable, and that is sufficient at this stage. This leaves a balance due to the plaintiff, which the defendants cannot dispute, of $146,783.31. This is my calculation -

Contract price $1,292,800
Extras admitted by defendants $164,971.31
Total $1,457,771.31
Less payments $950,000
Balance $507,771.31
Less claims by defendants $360,988
Balance $146,783.31

8. To this must be added interest at 10%, a rate which Mr Beaumont did not challenge, from 19 November 1993 to the date of this judgment. I leave this to be parties to calculate. If there is any difficulty about this, the parties may seek directions.

9. I think it is more appropriate to order the payment of the amount due to the defendants to the plaintiff as an interim payment under Order 29. Accordingly, I so order.

10. As to costs, it seems, on the face of it, that the plaintiff is entitled to costs, and I make an order nisi accordingly.

Representation:

Mr Anthony Houghton, instructed by Messrs Tsang Chan & Wong for the plaintiff.

Mr Ben Beaumont, instructed by Messrs Ng & Shum, for the defendants.

JK FINDLAY
Judge of the High Court