Leung Kin Sung Diana v. Wong Chi Wai t/a Waiss Design & Contracting

DCCJ 5283 / 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5283 OF 2005

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Coram:  His Honour Judge Thomas Au in Court

Date of Hearing: 1 April 2008

Date of delivery of Judgment: 1 April 2008

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JUDGMENT

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Introduction

1.In July 2003, the Plaintiff Ms Leung engaged the Defendant Mr Wong Chi Wai (trading as Waiss Design & Contracting) to carry out complete renovation and decoration works at her newly purchased house in Tai Po.   By way of this action, Ms Leung claims against Mr Wong for damages for his breaches in contract in his delay in substantially completing the works and for providing defective works.

2.Interlocutory judgment was entered against Mr Wong on 23 November 2007.  This is the hearing of the assessment for damages. 

3.The items of damages claimed by Ms Leung are as follows:

(1)	HK$87,400.00 (HK$1,900 x 46 days) as liquidated damages for late substantial completion. Alternatively:
	(a)	HK$80,477.40, as additional rental expenses when she had to stay in a service apartment at Gateway in Tsim Sha Tsui for 46 days.
	(b)	HK$11,040.00 as additional parking fee incurred by Ms Leung during the delayed 46-days period.
	(c)	HK$5,000.00 as additional petrol cost incurred by Ms Leung for attending the house to check for the progress of the works during the delayed 46-days period.
(2)	HK$28,350.00 as expenses incurred by her in engaging subcontractors to remedy the defective works and uncompleted works left behind by Mr Wong.

4.Mr Wong does not attend today’s hearing.  In fact, he has not been taking any part in the proceedings since Ms Leung’s claim was transferred from the Small Claims Tribunal to the District Court on 27 October 2005.

5.In light of the affirmation of service dated respectively 27 and 31 March 2008 filed by Ms Leung, I am satisfied that Mr Wong has been properly served of today’s hearing bundle and skeleton, which are marked with today’s hearing date.  He is therefore taken to be aware of today’s hearing.  In the premises, I am satisfied that the hearing should proceed despite his absence.

The Heads of Damages

6.Liability being not in issue, I will deal with the proof of each of the heads of damage as follows.

Liquidated damages

7.Ms Leung has provided this court with the subject matter contract between herself and Mr Wong, which bears Ms Leung’s signature and an authorized signature for Mr Wong. 

8.It is expressly provided in the contract that (a) the works should be completed on or before 25 October 2003, and (b) as “penalty”, HK$1,900.00 per day would be deducted from the contract sum for late completion.

9.It is Ms Leung’s own case that the HK$1,900.00 per day deduction represents liquidated damages. 

10.There is no evidence before me to suggest that the HK$1,900.00 per day calculation does not represent a fair and genuine pre-estimate of loss of Ms Leung in case of delay.  In the circumstances, I accept that this is a liquidated damages clause.

11.Further, by confirming her witness statement, Ms Leung gives evidence that the works were only substantially completed on 10 December 2003, representing a 46 days’ delay.  I have no reasons not to accept Mr Leung’s evidence.

12.In the circumstance, I accept as proved that the liquidated damages suffered by Ms Leung by reason of the delay in completing the works is HK$87,400.00 (HK$1,900 x 46).  Mr Wong is therefore liable to Ms Leung for the same.

Additional rental, additional car park fee and petrol cost

13.Given my ruling on Mr Leung’s entitlement for the liquidated damages as claimed for the 46 days’ delay in completion, I do not think she is further entitled to any damages suffered as a result of the said delay.  This is the effect and purpose of having a liquidated damages clause agreed by the parties.   This is also accepted by Mr Liu, counsel for Ms Leung.

14.In the premises, Ms Leung is not entitled to the alternative damages of additional rental, additional parking fee and additional petrol cost.

15.However, in case I were wrong in my above ruling on liquidated damages, I would also have accepted as proved by Ms Leung’s evidence (including his witness statement evidence, oral testimony and the documentary evidence filed) that she had incurred these three items of additional expenses by reason of the late completion, in the respective quantum as claimed.

Additional expenses to rectify the defects

16.I also accept as proved that Ms Leung had incurred expenses in the total sum of HK$28,350.00 to engage contractors to carry out additional works to rectify Mr Wong’s defective works and uncompleted works.   This is supported by her witness statement and oral testimony (of which I accept), and the respective quotations issued by the two contractors. 

17.I therefore also hold that Mr Wong is also liable to Ms Leung for this sum of HK$28,350.00 as damages.

Conclusion

18.For the above reasons, I order that Mr Wong shall pay Ms Leung the sum of HK$115,750 (HK$87,400.00 + 28,350.00), with interest on the same sum at 1% above the prime rate as from time to time quoted by the Hongkong and Shanghai Bank from the date of Writ to the date of this judgment, and thereafter at judgment rate until full payment.

19.I further order that costs of the assessment of damages be to Ms Leung to be taxed if not agreed, with certificate for counsel.

Mr C Y LIU, instructed by Messrs. Amelia Cheung & Co. for Plaintiff.

Defendant, acting in person, absent.