Maze Aluminium Engineering Co Ltd v. Go-tech Fire Protection Co Ltd

HCA 30/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 30 OF 2005

____________

BETWEEN

____________

Before: Deputy High Court Judge Gill in Court

Date of Hearing: 6 April 2006

Date of Judgment: 21 April 2006

______________

J U D G M E N T

______________

1.The plaintiff (Maze) engages in the specialist business of fitting aluminium windows in construction projects.  It came to be employed to fit the windows in a proposed residential development in Tuen Mun.  The contract specified a particular type of glass to be used; namely, fire resistant glass known in the trade as FRP glass.

2.Maze contracted with the defendant (Go-Tech) for the supply of FRP glass, which went by the trade name Pyrobel. 

3.Supply was begun in November 2001.  Maze completed the installation in August 2002 and by September 2002 had fully paid Go-Tech the contracted price for the glass.

4.The head contractor of the project was Hip Hing Construction Co. Limited (Hip Hing).  By August 2003, Hip Hing had complained to Maze of defects in many of the panes of the FRP glass.  Maze reported this to Go-Tech.  There was correspondence entered into, site visits and discussions on the cause.  The manufacturer in Europe called Glaverbel and Glaverbel’s sole agent in Hong Kong CT Choy Company Limited (CT Choy) were involved.  So were representatives of the architect, and Hip Hing, and the owner and developer of the project Winner Max Enterprises Limited (Winner Max). 

5.Various explanations were put up and discussed.  The representative for Winner Max declined to accept these and called upon Maze to replace the defective FRP glass.  Maze looked to Go-Tech to supply and deliver new panes.  Go-Tech denied responsibility.  By now it was October 2003.

6.By February 2004, with no remedial work undertaken, Hip Hing informed Maze that the management company now managing the project was calling for immediate rectification.  Maze told Go-Tech.  There was another site visit. 

7.However in the end Winner Max engaged another sub-contractor to supply and install new FRP glass to replace the defective panes.  This was begun in June 2004 and completed in September 2004.  The cost of that came to $1,500,202.  Winner Max looked to Hip Hing to pay that, and Hip Hing was reimbursed by Maze. 

8.This action by Maze is to recover that amount from Go-Tech.

The Pleadings

9.Referring to the contract between the parties as the Supply Contract, Maze noted express warranties, which included that the glass had to conform with its description and specification in the order and that it must be of good merchantable quality and good for the purpose for which it was supplied.

10.It also pleaded that Go-Tech was bound to rectify defects by carrying out at its expense remedial work at its costs and without delay.

11.It pleaded that the glass was found to be defective in 2003 and, in the absence of Go-Tech remedying such defects, that the project’s owner and developer was obliged to have the remedial work carried out by an independent contractor at a cost of $1,500,202.  With Maze bound to make good this extra expenditure, it looked to Go-Tech for recompense under the Supply Contract. 

12.In its defence Go-Tech alleged that a term of the Supply Contract was that it was not bound to accept any claim after 7 days of the date of delivery.  It did not admit there were defects in the glass.  An inherent feature of Pyrobel is that because it is multi-laminated glass assembled with intumescent interlayers, minor imperfections such as small inclusions and bubbles may appear.  But these features do not affect the quality of vision or fire resistance and are not regarded as defects.

13.Further, such irregularities as might have developed were because the affected panes were not orientated according to the label, as set out in the manufacturer’s directions, when assembled by Maze; thus, that Go-Tech should not be liable for Maze’s faulty workmanship.

14.In its reply Maze rejected that there was a 7-day, or other specific time bar to its claim.  It also rejected the proposition that the defects were minor imperfections and could not be classified as defective.  It denied that there was a manufacturer’s instruction requiring “correct orientation according to its label”.  Moreover there were defects in many of those panes which were orientated on what Go-Tech asserts is the correct side.

Pre-Trial

15.The usual pre-trial directions for the exchange of witness statements were given.  This took place.  However prior to trial the solicitors for Go-Tech applied to be discharged.  I acceded to the application.  Go-Tech was directed to seek leave to be represented by a director, before the Registrar.  But the Registrar refused leave.  There the matter rested, until trial.

16.On the first day of trial a director of Go-Tech attended.  He told me that the company had taken no steps to engage solicitors anew.

17.So it was that the trial proceeded without attendance by Go-Tech.

The Evidence

18.This was adduced for Maze by a director called Hung Kin Yung, who as manager and supervisor of works on site had hands-on conduct of the contracts with Hip Hing and Go-Tech.

19.He had as directed made a comprehensive witness statement, and adopted that as his evidence in chief.

20.He recorded that prior to the parties contracting, Maze got hold of a catalogue about Pyrobel that Glaverbel had prepared and had sent it to Hip Hing for approval of the product.

21.Pertinent extracts from it highlight its particular properties and features and I repeat these :

“(1) ‘Architects and designers are increasingly looking for larger glazed screens and doors to provide buildings with new aesthetic designs and more comfort and safety for the people who use them.  But in many cases, these glazings must be fire resistant to comply with the building regulations which aim to stop the spread of fire and to enable a safe evacuation of the building.

To fulfil these requirements, Glaverbel has developed the Pyrobel range of fire resistant glasses, tested and approved according BS476:Part 22:1987, on both integrity and insulation criteria.

Pyrobel is a fully transparent fire resistant glass, available in large sizes, which offers valuable sound reduction properties and complies with the safety requirements of BS6206.’

(2) ‘Pyrobel is a multi-laminated glass assembled with clear intumescent interlayers.’

(3) ‘Pyrobel is a clear glass that provides distortion free vision.  It does not incorporate any wire and its light transmission is comparable to clear float glass.’

(4) ‘Pyrobel may exhibit or develop some minor imperfections such as small inclusions and bubbles, a slight distortion and a light haze.  These features which do not affect the free vision nor the fire resistance of the glazing shall not be considered as defects provided the variation of haze and light transmission do not exceed 5%.’

(5) ‘Pyrobel external grade must be correctly orientated, according to its label.’”

22.Following the installation and then discovery of the apparent defects Maze notified Go-Tech.  There was correspondence, in which it was suggested that the defects might have been caused by Maze’s faulty installation which damaged the protective edges of the panes and thus the intumescent interlayers.  Maze rejected this contention having as was said taken special precautions on edge protection.  From the witness box, Mr Hung reiterated that the glass had been properly handled during installation.  Rubber suckers were used, to ensure the protective edges would not be handled or disturbed.

23.The counter proposition from Maze was that the supposed weather sealing of the intumescent interlayers had already been damaged in the fabrication by Go-Tech.

24.There was a site visit held on 5 September 2003, which revealed that almost all of the panes had air bubbles within them.  A Mr Yeung of Go-Tech promised to liaise with the manufacturer to explore how these defects could be rectified.

25.There was a further meeting on 22 September, attended by representatives of Winner Max and Hip Hing and as well Mr Yeung of Go-Tech and Mr Hung of Maze.  Mr Yeung attempted to explain the defects as resulting from the “wet climate location” of the project at Siu Lam.  Hardly surprisingly, this was rejected outright by Winner Max.  Maze was directed to rectify, on or by 5 October 2003.  Maze in turn directed Go-Tech to advise a delivery schedule. 

26.There was, apparently, communication between Go-Tech and Glaverbel/CT Choy in which it pursued some form of financial assistance in the supply of replacement FRP glass.

27.Go-Tech referred the response to Maze.  It was dated 26 September 2003.  In it it was alleged that the panels adversely affected by the presence of air bubbles had become defective because they had been installed “in reversed orientation causing the existence of air bubbles”; in other words, the wrong way round.  It went on to clarify that in accordance with Glaverbel’s instructions, an etched stamp on each pane has to be on the inside of the pane to ensure the UV filter placed on the opposite side could perform its function.

28.Go-Tech wrote back to point out that many of the panes were internal or under cover yet still suffered from the presence of readily observable air bubbles.  Again a discount was asked for.  The response was a quotation to supply replacement glass.

29.Maze rejected this, and gave an ultimatum to Go-Tech dated 6 October, giving it 3 days to come up with a remedial programme.  The response of 9 October was that Go-Tech was not responsible and would not replace the defective FRP glass; that the fault lay in the glazing.

30.Maze did not accept this and notified Go-Tech that another supplier would be engaged, at Go-Tech’s expense.

31.The next development was in February 2004.  Go-Tech requested a further site meeting.  Maze agreed to attend; it was scheduled for 10 March.  But Maze made it clear that it had already engaged another supplier, called Easy Smart, to supply and deliver new FRP glass and an installer to carry out the replacement, to begin mid-March.

32.The meeting took place when random spot checks of the defective glass were undertaken.  But no positive result was achieved.  Meanwhile, Easy Smart warned Maze that the glass it was scheduled to supply, this time called Flamguard, was also showing sizes of internal bubbling on other projects.  Maze did not want to proceed, at least not without approval from Hip Hing, whom it notified.

33.Then it was that Hip Hing by letter told Maze that Winner Max had decided to get the replacement work completed by an independent contractor; that the cost of that would be deducted from the final account due to be paid to Hip Hing; that Hip Hing would in turn deduct the same from what was due to Maze.

34.And that is what happened.

35.Mr Hung next dealt with Go-Tech’s defences as pleaded.

36.The first was that Go-Tech would not be liable for any claim by Maze not made within 7 days.  It is to be noted that the defence pleads that this was as per contract.  But it was not particularized.  And Mr Hung asserted that there was in fact no such term in the Supply Contract, express or implied.

37.On the issue of the extent of the imperfections, stated in the defence to be minor; he said the defects were far from being minor imperfections.  Air bubbles were found throughout the affected panes and clearly and obviously distorted vision.  He produced photographs to back this up.

38.Then he went to the defence of incorrect orientation.  Of this he stated “I have to say that Go-Tech’s allegation is wholly misconceived”.  He referred to the results of an inspection undertaken by Maze, that defects were found in numerous panes of glass throughout the project, regardless of which way round they were installed.

Determination

39.Go-Tech having chosen not to engage lawyers and otherwise not being entitled to participate in the trial, the burden lies still on Maze to prove its case.

40.That said, I am satisfied from the evidence adduced by Mr Hung as corroborated by documents including reports and photographs :

(a)     that there were significant and material defects in a large number of panes of the FRP glass supplied by Go-Tech;

(b)    that there was no improper handling of the glass by Maze in the installing so that the protective edges remained intact;

(c)     that there was no term of the contract express or implied that any claim giving rise to a breach had to be made in 7 days.

(d)    that given the high number of panes in which the defects were present regardless of the orientation of the panes it made no difference as to which way round the panes were installed;

(e)     the defects began to appear after installation as a result of an inherent defect in the manufacturing process;

(f)     that consequently Go-Tech was in breach of its contract of supply with Maze to provide a product of good merchantable quality and good for the purpose for which it was supplied;

(g)     that Go-Tech was given the opportunity to undertake the remedial work necessary to make good the defects, but declined to do so;

(h)     that Maze was obliged to meet the cost of making good the defects, undertaken by the project developer;

(i)              that Maze is entitled to look to Go-Tech to recover that cost in damages.

41.Thus it is I find for Maze for the amount claimed, and a declaration indemnifying it from any further loss incurred by Go-Tech’s breach of contract.

42.Maze is further entitled to interest at prime from 20 July 2004 being the date it suffered the reduction to the date of this judgment; thereafter at the judgment rate.

43.Costs are nisi.  They are to the plaintiff.

Mr J Chung, instructed by Messrs Leung, Chan & Pang, for the Plaintiff

The Defendant in person, absent