Ho Tak Eng t/a Hung Man Interior Design Co v. Fame Brilliant Ltd

DCCJ 2138/ 2005

IN THE DISTRICT COURT

OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2138 OF 2005

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Coram:  Deputy Judge E. Yip in Chambers

Date of Hearing:  8 December 2005

Date of Judgment:  8 December 2005

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JUDGMENT

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1.This is an action taken by the plaintiff to claim contract sums under an agreement in which the plaintiff decorated the defendant’s house.  In April 2005, the plaintiff terminated the agreement before completion of all works.  The plaintiff left the house shortly afterwards in April 2005.  The defendant agreed to pay a bill under this agreement (“the 1^st Agreement”).  Later, the defendant refused to pay.  After negotiations between both parties, the plaintiff issued a reduced bill.  The defendant agreed to pay this bill (“the 2^nd Agreement”).  Later, the defendant refused to pay. 

2.The plaintiff claims payment under the 1^st Agreement, alternatively under the 2^nd Agreement, and alternatively by way of quantum meruit for work done.

3.After issuing the Writ of Summons in May 2005, the plaintiff and the defendant had exchanged correspondences through their solicitors for a quantity surveyor to be appointed to assess work done.  The dialogue continued over several months.  A 1^st inspection by the surveyors was conducted on 28 July 2005 in which the plaintiff’s surveyor found certain works not related to the agreement between the plaintiff and the defendant.  The plaintiff sought a 2^nd inspection to take measurements of various works but the defendant refused.

4.On 8 November 2005, the defendant’s solicitors wrote to tell the plaintiff’s solicitors that “remedial work and/or completion of in-completed work have been carried out by the [subsequent] contractor”.  The plaintiff is not in a position to tell what works had been completed by the subsequent contractor up to 8 November 2005.  He is able to tell, however, by his 2^nd affirmation dated to-day (8 December 2005) that between 8 November and 6 December 2005 so such works have been carried out.

5.On 6 or 7 December 2005, the plaintiff found that some workers were carrying out demolition works in the house.  The police were informed and attended the scene.  The workers left.

6.To-day, 8 December 2005, the plaintiff applies for an interim injunction to preserve the status quo of the decoration works so that the plaintiff can retain his surveyor to do a 2^nd inspection.

7.In order to get an interim injunction, the plaintiff must show, amongst other factors, that damages will not be a sufficient remedy (HKCP 2004 at 29/1/11).  The plaintiff argues that a refusal to grant an interim injunction will deprive the plaintiff of evidence to support its claim on quantum meruit.  On this factor alone, the plaintiff’s case must fail.

8.Besides, there is no status quo to be preserved.  The subject-works had altered on or before 8 November 2005.  The plaintiff argues that the Court should help to preserve the subject-works as much as possible.  I do not see that as a realistic option, given the clear terms of the defendant’s solicitors’ letter dated 8 November 2005.

9.I dismiss the plaintiff’s application. 

Dated this 8 December 2005

Attached hereto is a Chronology of Events

DCCJ 2138/2005

Chronology of Events

1.  On 7 April 2005 P asked D to cease work after jobs at hand completed.  Some works in the entire agreement had yet to be done by D.

2.  On  about 20 April 2005, P and Chan met at the house and inspected works done by P.  P submitted a final listed account to Chan. 

3.  On about 21April 2005, P and Chan met there again.  Chan said the sum was reasonable. 

4.  On about 27 April 2005, Chan wrote back to deduct substantial part of the sum. 

5.  On 4 May 2005, P’s solicitors wrote to Chan alleging that there were photos and video of the works done, available at Chan’s request.  P demanded payment of the full sum, also suggesting an independent chartered surveyor be jointly appointed to assess the works done, and asking D not to interfere with the decoration works in the meantime.  P gave no undertaking for damages.

6.  The writ of summons was filed on 10 May 2005 with a general indorsement to claim damages.  No injunctive relief was mentioned in the prayer.    

7.  The defendant filed the Acknowledgment of Service of Writ of Service and stated its intention to contest the proceedings.  The Acknowledgment was received by the District Court Registry on 18 May 2005.

8.  P filed his Statement of Claim on 1 June 2005.  No injunctive relief was mentioned in the prayer.      

9.  On 21 June 2005, Chan’s solicitors wrote to ask for the photos and video.  Chan agreed to let P’s appointed surveyor inspect the house within 7 days. 

10.  On 22 June 2005, P’s solicitors wrote to propose a jointly appointed surveyor at both sides’ expense. 

11.  On 23 June 2005, Chan’s solicitors wrote to give 3 named surveyors to choose from. 

12.  Later same day, P’s solicitors wrote to ask for c.v. of the surveyors.

12.  The defendant filed its Defence and Counterclaim on 29 June 2005. 

13.  On 8 July 2005, P’s solicitors wrote to ask for c.v. of the surveyors. 

14.  On 8 July 2005, Chan’s solicitors wrote to say they had not received P’s letter dated 23 June 2005, being only aware of it on 5 July 2005 in another of P’s fax.  (The 5 July 2005 fax is not exhibited to the present application by P.)

15.  On 13 July 2005, P’s solicitors proposed Cheung Kwok Ho Richard, with c.v. enclosed, as the surveyor. 

16.  On 15 July 2005, Chan’s solicitors wrote to query why P had not proposed one of the 3 named surveyors (as per Chan’s letter dated 23 June 2005).  Chan counter-proposed Ivan Y.C. Cheung, the most qualified of them.  Chan asked P to make an appointment with P’s surveyor to inspect the house forthwith or within 7 days.  After 7 days, Chan would instruct another contractor to perform the remedial work.

17.  On 18 July 2005, Chan’s solicitors wrote back to justify why Ivan Y.C. Cheung was more desirable.  Chan proposed a joint inspection even if separate surveyors were to be retained. 

18.  On 28 July 2005, after the inspection (“1^st inspection”) P wrote for a 2^nd inspection by his surveyor for 12 August 2005 because Chan had failed to make the building plans, as requested by P, available to P’s surveyor in the 1^st inspection.  (There is no mention of the date of the 1^st inspection in the letter.)

19.  P filed his Reply and Defence to Counterclaim on 20 July 2005.

20.  On 1 August 2005, Chan‘s solicitors wrote to P’s solicitors.  (The letter is not exhibited in the present application.)

21.  On 3 August 2005, P’s solicitors wrote to put on record certain alteration and extension works done as at P’s surveyor’s 28 July 2005 inspection.  Those works did not correspond with P’s Quotation.  P’s surveyor asked for an approved plan to make comparison.  P asked for a 2^nd inspection. 

22.  On 4 August 2005, Chan’s solicitors gave their reasons for refusing to give the approved plan and the 2^nd inspection to take measurements on the ground that all works were done by P and no other contractors had yet been retained by Chan up to the 1^st inspection, on 28 July 2005.   

23.  On 25 October 2005, P’s solicitors repeated request for a 2^nd inspection. 

24.  On 3 November 2005, P’s solicitors repeated request on the ground of well-known surveying practices.  P indicated a injunctive relief, if necessary. 

25.  On 8 November 2005, Chan’s solicitors wrote that remedial and remaining works had been carried out by his subsequent contractor already.  There was no point for a 2^nd inspection.  P might rely on the 1^st inspection and photos and video. 

26.  On 10 November 2005, P’s solicitors wrote that the photos and video could not facilitate accurate measurements.  P’s surveyor took no measurements in the 1^st inspection.

27.  On 7 December 2005, P’s solicitors wrote that Chan had caused the subsequent works to be done with a view to destroy the evidence of P’s decoration.  P demanded Chan to stop the subsequent works and let P’s surveyor take measurements. 

Miss Gekko Lan, instructed by M/s Lam and Lai, for the Plaintiff