May Tik Decoration Co Ltd v. Ronacrete (Far East) Ltd
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DCCJ384/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 384 OF 2005 -------------------- BETWEEN
---------------------- Coram : Deputy District Judge K. Lo
Judgment 1.The Plaintiff is and was a subcontractor for retiling works of Hanison Contractors Ltd. (“Hanison”), the main contractor at a development known as 9-13, Ventris Road, Happy Valley, Hong Kong (‘The Project’). 2.The Defendant is and was a supplier of tile bonding adhesive materials in Hong Kong, selling inter alia Ronacrete Tile Adhesive (‘RTA’). 3.Pursuant to Supply Contracts between the parties, the Defendant had sold and delivered to the Plaintiff RTA for use in the Project. 4.During the retiling works, there was falling of tiles resulting from debonding of tiles. 5.The Plaintiff claimed that the Defendant committed breach of the Supply Contracts. 6.The Plaintiff alleged that the RTA supplied by the Defendant did not comply with the project requirements “PA 17.4 Standards”, made known to the Defendant, which the Plaintiff claimed formed a term of the Supply Contracts. 7.In addition, the Plaintiff said that the RTA supplied by the Defendant did not conform to the sample of RTA supplied by the Defendant for use in preparation of mock up of the Pull Out Tests prior to the issue of purchase orders of the Plaintiff. The Plaintiff maintained the Supply Contracts were contracts of sale by sample. 8.Further, the Plaintiff claimed the Defendant had warranted that the RTA supplied by the Defendant should satisfy in quality and performance to the descriptions and values stated in its project brochures including but not limited to the standard specified in BS5980 of the British Standards Institute. 9.The Plaintiff claimed that it was an implied term/warranty of the Supply Contracts that the RTA supplied were of merchantable quality and fit for purpose for use as tile adhesive in the Project and conformed with the standards laid out in technical brochures and the samples submitted by the Defendant in the Pull Out Tests. The Plaintiff said that RTA supplied by the Defendant was of defective, unsatisfactory and/or unmerchantable quality and failed to meet the PA 17.4 Standards required in the Project and warranted by the Defendant. 10.As a result of the breaches aforesaid, the Plaintiff said there were falling tiles and they had to hack off the tiled areas and redo the tiling works using other adhesive materials. 11.The Plaintiff now claimed for loss and damages. 12.The Defendant denied that PA 17.4 Standards of the specifications requirements of the Project was a term of the Supply Contracts between the parties. 13.The Defendant also did not agree to the sale being a contract of sale by sample. 14.The Defendant further denied the RTA supplied was of unmerchantable/defective quality. 15.The Defendant counterclaimed $154,380, being unpaid price of tile adhesive products sold and delivered to the Plaintiff between 7 September 2004 and 4 December 2004 which the Plaintiff failed to pay, interests and costs. 16.During trial the Plaintiff admitted the counterclaim and seeked to set off such counterclaim by the Defendant herein. The Plaintiff’s Claim Issues
(1) Whether PA 17.4 Standards was a term of the Supply Contracts between the parties 18.It was agreed between the parties that in the pre-contractual stage, both Hanison and May Tik Decoration and Painting Engineering (‘May Tik D&P’) had made known to the Defendant the contract specifications and requirements laid out in the main contract of the Project, in particular PA 17.4 Standards which they had to meet, the same read:-
19.It was also agreed that prior to enquiry of May Tik D&P, the Defendant had submitted quotation of tile adhesive materials, including that of RTA to Hanison, in which the Defendant submitted that the offer was “subject to the company’s standard terms and conditions which is available upon request.” 20.It was not in dispute that the Defendant had sent also the technical brochure of RTA together with the said quotation. The quotation was sent pursuant to request by Hanison because in the facsimile transmission dated 19 January 2004 from C.K. Wong of Hanison to Billy Ng of the Defendant, Hanison requested “Please return your quotation with catalogue before 28 January 2004.” 21.In the Specifications for RTA in the technical brochure, it stated, amongst other things, that the product conformed to BS5980 Class AA adhesive and once again stated that the “materials are supplied subject to our standard terms and conditions of sale, available on requests”. 22.Subsequent to the enquiries by May Tik D&P, the Defendant had sent similar quotation to May Tik D&P. 23.The Defendant had also performed two Pull Out Tests using RTA in the mock up on site of the Project in May 2004 and August 2004, pursuant to requests by Hanison and the Plaintiff. 24.It should be mentioned that the tile adhesive system adopted for August 2004 Pull Out Tests was the same tile adhesive system later adopted in the Project. 25.For these trials, the mock ups were prepared by the workers of the Defendant, under supervision by the Defendant, and in strict compliance with the instructions for use, specifications and method statements of RTA. RTA did achieve the PA17.4 Standards, i.e. adhesive strength of over 0.7 MPa after application on site. Performance was proved by Pull Out Tests conducted on site by Hong Kong Testing Co. Ltd. using the In House Method MIS-PHY-0101 (method 1) in these tests. 26.Purchase orders were subsequently issued by the Plaintiff resulting in Supply Contracts. 27.According to Mr. Li Fu Tin (“Li”), director of the Plaintiff, although the Defendant did refer in the quotation of the offer as being subject to their standard terms and conditions of sale (“STC”), the Plaintiff were never made aware or shown the actual terms and conditions. 28.Further, Li said at all times, the Defendant was aware of the PA 17.4 Standards and that they knew that both the Plaintiff and Hanison had to meet the same and that RTA supplied was for use in the Project. 29.This was the Plaintiff’s case that as the Pull Out tests performed by the Defendant in August 2004, witnessed by Hanison and the Plaintiff were undertaken to test the compliance of PA 17.4 Standards by RTA and that the same occurred after the quotation by the Defendant to Hanison and the Plaintiff, the Defendant clearly had accepted the PA 17.4 Standards as a term of the Supply Contracts. 30.Further, the Plaintiff said, which the Defendant admitted, that on 25 July 2004, i.e. before the debonding of the tiles noted by the Clerk of Works (“COW”), the Defendant did offer to provide a Materials Supply Guarantee in respect of the tile adhesive materials supplied to the Incorporated Owners’ Committee of Ventris Place (“the Owner”) for 10 years. 31.The Plaintiff said the STC of the Defendant should not apply because they were so unreasonable and by virtue of Control of Exemption Clauses Ordinance (Cap. 71) should be excluded. 32.The Plaintiff said also that by operation of Section 16 (3) Sale of Goods Ordinance, PA 17.4 Standards was also made a term of the Supply Contracts. 33.The Plaintiff said it was reasonable to infer in circumstances of the parties’ pre-contract dealings that the Plaintiff had relied on the Defendant’s skill to recommend a product that would meet the requirements set out in PA 17.4 Standards. 34.The Plaintiff said that they would surely not issued the purchase orders had the Defendant informed them that they were unwilling to be bound by PA 17.4 Standards. 35.The Defendant on the other hand said the Plaintiff did not rely on the skill of the Defendant in making their choice of the tile adhesive for the Project. The Defendant said the Plaintiff had relied solely on the test results of the Pull Out Tests instead. 36.The Defendant said the Plaintiff, in order to satisfy themselves that RTA would be able to achieve a bond strength of 0.7 MPa after application on site had requested the Defendant to perform the two Pull Out Tests in May 2004 and August 2004 and had relied on HK Testing Co. Ltd., an independent laboratory conducting the tests. 37.The Defendant said, only in reliance of the test results did the Plaintiff choose to purchase RTA from the Defendant. 38.The Defendant referred this Court to paragraphs 17, 20, 23, 24 and 30 of witness statement of Li as well as paragraph 18 of witness statement of Fan, the Clerk of Works of the site. 39.The Defendant also said they had over 35 business dealings prior to the Supply Contracts with May Tik D&P of which Fan was the sole proprietor. The Defendant said that in each of the related invoices, the STC were printed at the back. As Li was a director and shareholder of the Plaintiff here, the Defendant said the Plaintiff had knowledge, deemed or actual of the STC of the Defendant. 40.The Defendant further stated that though the Defendant was aware of the contract requirements of PA 17.4 Standards, they had never agreed that RTA would comply with the same. 41.The Defendant averred that as Clause 1 of the STC expressly excluded any terms and conditions that the customer seeked to impose unless otherwise agreed by the Defendant in writing, even if the Plaintiff had intended to impose the PA 17.4 Standards on the Defendant, the same had been excluded. 42.Further, the Defendant said by reason of the Plaintiff failing to rely on the skill of the Defendant, section 16 (3) of the Sale of Goods Ordinance did not apply. 43.The Defendant further submitted as PA 17.4 dictated a bond strength of tiles to be achieved after application on site, the Defendant had no control on the workers of the Plaintiff in performing their work and therefore should not be bound by the PA 17.4 Standards. Analysis 44.Firstly the Plaintiff agreed that the Defendant should only be liable for damages arising from non-compliance of PA 17.4 Standards provided that the workers in using the RTA did comply with instructions for use, updated Method Statement for use of RTA provided by the Defendant. 45.It was admitted by Li that he had knowledge of reference to STC by the Defendant in the quotation. It was not disputed by Li that in the many dealings in past when he was acting in capacity of sole proprietor of May Tik D&P, the invoices of the Defendant had made similar reference to the STC. 46.Counsel for the Defendant referred this Court to the Court of Appeal case of Hoi Kong Container Services Co. Ltd. v. Bewise Motors Co. Ltd. [1997] 2 HKC where Bohkary PJ adopted the view of Taylor LJ in Circle Freight International Ltd. v. Medeast Gulf Exports Ltd. [1988] 2 Lloyd’s Rep. 427 at 433:
47.Bohkary PJ stated further in the Hoi Kong case that the quotation, whether it amounted to an offer or only to an invitation to treat, gave the notice of which Taylor LJ spoke and the Fast Tran terms formed part of the contract. 48.Here, Li had actual knowledge of express reference to the STC in invoices of previous dealings and in quotations of the present case. Although he did not actually request for copies of these STC, reference to the STC was not unusual in the supply of goods. 49.Clause 1 of the STC stated that the standard terms and conditions of the Defendant applied to the sale of their product to the exclusion of any terms and conditions customer may seek to impose unless otherwise expressly agreed by the Company in writing. 50.Clause 10 of STC stated:-
51.Clause 13 of STC stated:-
52.Clause 10 and Clause 13 of the STC appeared to contradict each other. In order to give effect the both clauses, one must read clause 13 in the light of wordings of clause 10, namely to read the same as not to mean that the Company exclude all liability in the use of its Products but only exclude liability in circumstances when the use was not in compliance with the instruction for use. 53.This Court did not agree that clause 13 should be read in isolation to mean that the Defendant excluded all liability in the use of its Products. If that were so, the clause would definitely be considered unreasonable under the Control of Exemption Clauses Ordinance. 54.According to Chitty on Contracts (29th Edition), Volume 1 p. 777 and p. 778:-
55.In this case, the invitation to treat being the fax by the Plaintiff to the Defendant inviting the latter for quotation dated 29 April 2004 read:-
56.It was clear that the Plaintiff had clearly made known to the Defendant that the latter should only give quotation of tile adhesive system that fitted the criteria set out in its fax, i.e. in compliance of PA 17.4 Standards. It was pursuant to this invitation that the Defendant tendered its quotation. 57.There was nothing in the quotation of the Defendant that related to warranty of quality. Again there was no warranty as to quality in the STC. 58.Lam, general manager of the Defendant said that to his understanding although the Plaintiff was aware of the PA 17.4 Standard requirement, the Defendant had never guaranteed the 0.7 MPa adhesion strength on site, under all site conditions. 59.This Court found that although the Defendant did enclose copy of the product brochure with the quotation, the same was merely for information only as the same included a lot more the data and specifications of the product other then tensile strength. 60.In the absence of warranty as to quality, I find it a necessity to have the PA 17.4 Standards implied as a term of the Supply Contracts. 61.Although the Defendant did argue that PA 17.4 Standards was an unclear term as there was no approved on site test under that BS Standards. This Court could not accede to such argument. 62.PA 17.4 Standards referred to ‘on site tests’ by ‘an approved independent laboratory’ in accordance with an ‘endorsed procedure’ with reference to the relevant BS Standards. 63.The Defendant knew well before the Supply Contracts that the on site tests referred to above was the same Pull Out Tests performed in May 2004 and August 2004. These Pull Out Tests were ‘on site’, tested by ‘independent laboratory’, namely HK Testing Co. Ltd. and performed in accordance with endorsed procedure with reference to the only relevant BS Standard, BS 5980 for tensile strength, i.e. In House Method MIS-PHY-0101 (method 1). 64.In fact, the Defendant had in paragraph 3 of their Defence and Counterclaim pleaded that “The Defendant had carried out independent demonstration pull-off tests of the RTA on or about May and August 2004 and the Plaintiff was satisfied with the quality of the RTA. The provisions of the said clause PA 17.4 were satisfied once the pull-out tests showed that the adhesion strength referred to in the clause was achieved.” 65.Throughout, the Defendant had never challenged the methodology or appropriateness of the testing method used by HK Testing Co. Ltd. 66.There was nothing ambiguous about the tests referred to in PA 17.4 Standards. 67.Further, using the ‘Officious Bystander’ test, there would be no doubt that the parties had intended the Defendant to be bound by this term or else he would have expressly denied incorporating the said term into the Supply Contracts. 68.This Court accepted the submissions of Counsel for the Defendant that the Plaintiff had not relied on the skill of the Defendant in choice of RTA but had in fact relied on the Pull Out Tests results in August 2004. 69.The witness statements of Li referred to by Counsel for the Defendant was abundantly clear on this point. 70.Paragraphs 30 of Li’s witness statement read:-
71.Again, Fan Siu Keung (“Fan”), the clerk of Works employed by the Owner for the Project, and a witness for the Plaintiff said inter alia, that his duty was to monitor workmanship and scrutinize the quality of work and materials supplied by Hanison and its subcontractor, including the Plaintiff and to ensure works were executed in accordance with Project Specifications. 72.In his witness statement referred to by Counsel for the Defendant, Fan stated:-
73.It needed to be mentioned here that these Pull Off Tests were performed by the Defendant and other suppliers of tile adhesives, not just the Defendant. 74.These Pull Off Tests clearly were an assessment process by Hanison and the Plaintiff. 75.This Court was satisfied that the Plaintiff did not rely on the skill of the Defendant in entering into these Supply Contracts. 76.Accordingly, it could not be said that s. 16 (3) of the Sale of Goods Ordinance applied. (2) Whether the Defendant had warranted that the RTA supplied conform in quality and performance to Standards specified in BS5980 of the British Standards Institute as per the Technical brochure? 77.Although the Defendant in paragraph 8 of its Defence and Counterclaim denied the same, during trial, the same was admitted. 78.In any event, the Material Supply Guarantee offered by the Defendant on or about 28 July 2004 guaranteed such performance and quality. 79.The Defendant clearly had warranted the above if the instructions to use and method statement was adhered to. (3) Whether the Supply Contracts are contracts of sale by sample? 80.Section 17 (1) of the Sale of Goods Ordinance provided that,
81.There was no express provision to this effect in the Supply Contracts. 82.Was this term implied?
83.If one were to ask whether one would expect the Plaintiff to complain if the RTA supplied to the Plaintiff, pursuant to the Supply Contracts differed from the sample used in Pull Off Tests of August 2004, the answer must be yes. 84.The average performance level of RTA sample in August 2004 Pull Out Tests was more than 0.7 N/mm2. 85.This Court was satisfied that, in this case, there was an implied condition that the bulk of RTA supplied under the Supply Contracts would correspond with quality of the sample used for preparation of mock up in August 2004 Pull Off Tests. 86.The Supply Contracts were contracts of sale by sample. (4) Did the Defendant warrant that the RTA supplied would be of merchantable/satisfactory quality? 87.The Defendant had all along accepted that the products supplied under the Supply Contracts would be and were of merchantable quality and not of defective or unsatisfactory quality. (5) Whether there was breach of any of the above warranty by the Defendant? 88.It was not in dispute that the Defendant had warranted RTA Supplied would not be of defective/unmerchantable/unsatisfactory quality. 89.As mentioned earlier, Fan discovered debonding of tile on or about 6 October 2004. Fan said in his witness statement that he discovered large number of loose or debonding tiles at the water tank location at roof of Block C. Tapping tests were performed in that area and he found large patches of tiled areas yielded a hollow sound when tapped. The severity of the debonding was such that the Plaintiff and the Owner had deemed it right to hack off all tiled area and retiled the Project. 90.Throughout, the Defendant had not challenged the need/reason for the retiling work. 91.Save for the phenomenon of debonding tiles which led this Court to suspect breach of BS 5980 there was not sufficient evidence before the Court to show the Defendant did breach this warranty as the tests performed by the Plaintiff were not laboratory test as required by BS 5980. 92.In fact, the Plaintiff did write a letter to the Defendant setting out preliminary measurement of area with debonding tiles in the Project, which, subject to final certification by both parties stood at at 2471m2. The Defendant did not object to this measurement. 93.Subject to findings of any workmanship problem of the Plaintiff’s workers, the RTA supplied was defective and not performing properly. 94.It was submitted by the Plaintiff that the performance of different batches of RTA supplied by the Defendant was inconsistent, suggesting that there was problem with quality control in the manufacture of RTA by the Defendant. 95.The many Pull Off Tests prepared by HK Testing Co. Ltd. subsequent to deliveries under the Supply Contracts, exhibited as Appendix B in the Plaintiff’s expert report of Mr. Samson Wong (“S. Wong”) showed that a lot of RTA Supplied had failed to meet PA 17.4 Standards and further that a list of RTA Supplied when tested did not conform with the sample supplied by the Defendant for August 2004 Pull Out Tests. 96.In support of this allegation, the Plaintiff relied on results of Pull Off Tests. 97.The Pull Out Tests performed by the Plaintiff however did not employ the methodology specified by BS 5980 of the British Standards Institute and thereby could not be used to prove the breach of BS 5980. 98.On the other hand, result of test performed by Materialab at request of the Defendant on 3 February 2005 on materials returned from site, i.e. Batch No. B0040408088 previously delivered to the Plaintiff on 23 September 2004 and dated 15 February 2005 showed that the RTA tested did conform to BS 5980 for tensile adhesion strength. 99.Further, the Defendant obtained a report dated 19 November 2004 from Materialab confirming that the chemical composition of RTA Batch No. B0040408210, supplied to the Plaintiff under the Supply Contracts and later returned to the Defendant was consistent with the Defendant’s standard product formulation. 100.It was noted however that the Plaintiff was never made fully aware of the formula/composition of RTA although they did ask. The Plaintiff therefore could not cross check the reliability of this report dated 19 November 2004. 101.Nevertheless, all mock ups for Pull Off Tests on 11 November 2004 and 27 November 2004 were performed by the Plaintiff’s workers at site and Pull Off Tests were witnessed by the Defendant’s representatives. 102.The test result of 11 November 2004 tests on mock up panels were largely good but not for those on 27 November 2004. 103.Although these were only 7 days tests, according to the Plaintiff’s expert witness, Mr. Samson Wong (“S. Wong”), the tile adhesive strength attained after 7 days would usually be 60% to 70% of its maximum strength. One could therefore postulate the adhesive strength at 14 days using the readings at 7 days. This piece of evidence of was not challenged. 104.The Plaintiff had performed further Pull Out Tests on 27 November 2004. 105.Again, as per the 11 November 2004 tests, the mock up panels for these tests were also prepared by the Plaintiff’s workers, supervised by Fan and in absence of representative from the Defendant although Lewis Lam of the Defendant was present at the Pull Off Tests. 106.Different batches of RTA Supplied were tested, namely Batch Nos. B004048325, 9038, 9012 and 8078. Each batch was used to prepare 2 panels with open time of 10 minutes and 20 minutes. 107.The test results of these Pull Off Tests were very poor except for Batch No. 9012 with 10 minutes Open Time. 108.One reading was as poor as 0.023 NM2 which was said by the Defendant’s expert as “no better than zero”. They definitely failed to perform. 109.It was said that as the open time adopted in the November 27 tests were only of 10 minutes and 20 minutes that Open Time should not be the cause for failure which this Court accepted. 110.It was submitted by the Plaintiff further that as these two sets of November tests were both performed by the Plaintiff’s workers under supervision of Fan, Hanison, workmanship should not be a problem and that the real cause for the drastically different test results was due to the quality of RTA materials supplied. 111.On request by Hanison, Dr. C.M. Tam (“Tam”) CityU Professional Services Ltd., a subsidiary of City University of Hong Kong had visited the site of the Project on 5 November 2004 and collected samples of a piece of bonded “mosaic” (ceramic) tile that lied adjacent to area which have failed the Pull Off Tests, another piece that lied adjacent to the mock up area which have passed the Pull Off Tests, as well as sample from a bag of pre-packed bonding adhesive used for fixing the failed “mosaic” (ceramic) tiles on site. 112.Tam was a professor in Department of Building and Construction at City University of Hong Kong and had been a consultant to a number of cases investigating debonding of tiles. His curriculum vitae clearly confirmed Tam as a clearly very experienced tiling/retiling consultant. 113.Tam performed another site visit to the Project on 11 November 2004 to witness the Pull Off Tests to newly fixed tiles, most of which failed with very poor adhesive strength results. 114.He performed Fourier Transform Infrared Spectroscopy Investigation (FTIR) on the samples obtained form grinding the bonding adhesive from mosaic tile sample collected from area with poor Pull Out Test results, good Pull Off Test results and from raw bonding adhesive pre-packed in a bag collected from site on 5 November 2004 which was used at site resulting in failing Pull Off Test results and from raw bonding adhesive pre-packed in a bag collected on 11 November 2004 with passed Pull Off Tests results. 115.It was observed in Appendix 1 of the report by Tam dated the 19 November 2004 that test results of the FTIR disclosed the quantitative contents by measuring the areas at wavelength of around 1150 cm–1 under the respective curves of the esters and ethers group. For samples which failed the Pull Out Tests, area under the curve was smaller than area under the curve for samples which had passed Pull Out Tests, indicating therefore that possibly, different amount of ester and ether were added to different lots of RTA. 116.Tam said he also performed Scanning Electron Microscopic (SEM) investigation to sample from mosaic tile section collected from area with poor Pull Off Tests results and good Pull Out Tests results and he attached the SEM images as Appendix 2 in his report. 117.The images he said showed that the physical bonding between the tile and bonding adhesive was tight due to the infiltration of the adhesive with the rough and porous surface of the tile in sample extracted from good Pull Out Tests results and that there was large crack at the interface which indicated a fragile interface the amount of spin-shape ettringities formed in cement slurry was much larger than that of the bonding adhesive, indicating weaker strength development of cement slurry. 118.Tam concluded as a result of the SEM test that though the chemical composition of the samples were very similar, there was difference between the two lots of bonding adhesive in terms of quantity of chemical ingredients. The amount of esters and ethers in the lot giving lower pull off test results was less than the lot giving good pull off test results. 119.Tam concluded the cause for the above phenomenon might be result of poor quality control during production of RTA or contamination/expiry of the guaranteed period of the bonding agent or whatsoever reasons changing the chemical ingredients of the mixes. 120.He said the SEM examination further confirmed the obvious difference in interfacial bond between the tiles and the two lots of adhesive. 121.He admitted that there was only small number of samples under test, the results might be biased by small sampling size. 122.He also confessed that effect of the difference in esther/ether contents of the lots of bonding adhesive on the bonding strength needed to be further investigated using other test. 123.Christopher Stanley (“Stanley”) the Defendant’s expert witness was an Engineer and Material Scientist. He had 47 years experience as a Consultant in the Construction Industry and specialized in the investigation of defects in construction. He was the Defendant’s expert witness and had made criticism of the said City U report by Tam. 124.Stanley said little credence should be placed on the results of Pull Off Tests. 125.He also criticized that sampling was not witnessed by the Defendant. 126.Stanley said in his report filed 12 November 2007 that since adhesive was a multiphase material, it would be useless to take a small sample out of a bag and test it. As the contents of the bag might have settled during storage, the correct procedure would be to thoroughly mix the entire contents of a bag and then subdivide it by quartering or riffling until a suitable reference sample was obtained. 127.He said because test used a small individual sample of normally only a few grams, it was essential that any sample used in the test was sampled and prepared correctly to accurately reflect the overall situation of the test area or material being sampled. 128.In response to criticism by Stanley that FTIR could only provide a qualitative analysis but not a quantitative analysis because for the latter, one needed the sample compared against a carefully prepared reference sample, Tam said the carefully prepared reference sample used by him were those good bonding samples. He said therefore the FTIR system could generate some quantitative results on the difference in percentage contents of the chemical in dispute. 129.As for the criticism of small quantity of testing samples, Tam replied that the samples had in fact been carefully prepared. For powder samples, Tam said they asked Hanison to collect 500 grams from each package for them to screen out the appropriate samples. He said unless the whole population was tested, it was impossible to get a 100% level of accuracy. He also agreed the accuracy could be improved when the sampling was greater. 130.Tam said if the tile adhesive material was well blended, even a small sample could give good representation of the population. He said his concern was exactly on the likelihood of poor quality control in the production of the adhesive resulting in inconsistent product. He said FTIR was a commonly accepted quality control method for medicine and drugs, (also a multiphase materials) in the pharmaceutical industry. He therefore denied that it would be useless to take a sample out of a bag and test it. 131.Tam denied comment of Stanley that he was not comparing like with like. He said he had been comparing mixed adhesive with mixed adhesive and raw material with raw material. 132.Tam also challenged saying of Stanley that grinding of sample to fine powder might heat up the sample due to friction leading to change in chemical composition. He said the heat created by hand grinding was so low that it would only affect volatile chemicals. 133.In reply to Stanley’s saying that there was considerable difference in the graphs of different samples and even in the same graph, Tam said this was the reason why he was concerned with the quality control of production, generating inconsistent tile adhesive. 134.He discarded the suggestion by Stanley that use of Differential Thermal Analysis or X-ray Diffraction test could give reliable answer as he said X-ray diffraction techniques were based on elastic scattering of X-rays from structures that had long range order. He said it would be more appropriate for use in study of any crystalline molecules. He maintained FTIR as the most suitable method of assessing chemical bonds of organic elements, including polymer. 135.This Court found the evidence of Tam convincing and reliable. He admitted readily the limitations of the tests he performed. 136.Despite what was said by Stanley, this Court preferred evidence of Tam that FTIR was a suitable methodology for analysis of multi-phase adhesive as RTA. Albeit there was limitations to this FTIR investigation as frankly and readily admitted and disclosed by Tam, the FTIR results was evidence indicative of inconsistency in RTA supplied due to possible reasons as disclosed in Tam’s report. 137.This Court agreed also that the failure of the Defendant in issuing certificates of conformity to the bags of RTA from side batches delivered to the Plaintiff at time of delivery was also indication poor quality control, the same had obviously caused difficulty in identifying any batches complained of, as in this case. 138.Mr. Samson Wong (“S. Wong”) was the also Plaintiff’s expert witness in this case. He is and was a registered professional Building surveyor and Authorized person (list III) in Hong Kong for over 29 years. 139.He had a site inspection of the Project on 19 January 2005. According to him, the roofs, utility rooms, external walls and common areas of Block A, B and C were inspected. During the inspection, most of the tiled areas were left with no tiles, only bedding mortar was left. It was agreed that during this time, new tiling work was in progress. Visual inspection and simple tapping tests were carried out at random areas to check the strength of the surface materials, their consistency and the mode of failure as there was complaint of insufficient tile adhesive problem evidenced by failure in Pull Out tests. 140.S. Wong said some areas of the external walls were left just with bedding mortar which could easily be removed by hand chisel. He said the results showed that the failure plane occurred between the tile and the tile adhesive. He said further that at places where the tile adhesive was left, the same could be easily removed by hand chisel. This indicated, he said, the required tensile adhesion strength and shear adhesion strength was not achieved. 141.He said further that during inspection, he did not notice any visible crack on the walls. The surface were all even, the corners were straight and the joints were all in alignment. 142.He said in the report by City U, Tam had confirmed that the components of the adhesive employed in failed Pull Out Tests was different from the adhesive employed in the passed Pull Out Tests. 143.S. Wong also considered that out of 46 tests (40 tests relating to RTA) performed by Hong Kong Testing Co. Ltd, RTA failed in 33 tests (Appendix B of his report dated 16 September 2005). 144.He said he had personally been involved in many external wall tile replacement projects. He also accepted that factors such as surface preparation, application procedures, open time, work environment as to dust and humidity were relevant to performance of tile adhesive. 145.He said in Hong Kong, it was common to use tile adhesive in tiling work. 146.He excluded the possibility of the site tile as being cause of the failure. He said the tile had a matt surface and standard pattern at the back to provide added surface area to contact with the bedding mortar or the adhesive to enhance the bonding strength. There was no contamination by dust or grease on tile. 147.He said further that according to the test report from materials (04319ST41937/04360ST42006 dated 26 November 2004), the tested site tiles all fell within the range indicated in BS5385: Wall and Floor Tiling Part 1 : 1995. He said subsequent test in using another adhesive, i.e. E-Mix achieved the required adhesive strength using the same tiles. 148.S. Wong further went on to say that the City University FTIR report suggested that there were significant difference in quantities of esters and ethers in the 4 sample batches used for testing. The batches with less quantities of esters and ethers gave failed Pull Out Tests. He admitted limitation in small sample size and that further tests needed be undertaken to address on correlation (if any) between ester/ether content and bonding strength. However, the test result indicated large variation in ester/ether contents in RTA might result in difference in product performance. He again commented on the failure by Defendant’s company to include in the delivery note and the Certificate of conformity loose bags of materials delivered to the Plaintiff from side batches. This, he said clearly cast doubt on the quality control and quality assurance system of the Defendant. 149.He said further that during his visit, he did not detect any malpractice on surface preparation and application of adhesive. He concluded that the failure of bonding was done to the quality of RTA supplied. 150.He disagreed that there was evidence of poor workmanship or there was deviance from Defendant’s method statement by workers of Plaintiff at site, as alleged by the Defendant’s expert witness. He said Defendant’s expert had never inspected the site. 151.He concluded the more probable cause was the deviance in ingredients in different batches of the same product and clear empirical evidence of product failure, i.e. due to the Defendant’s adhesive. 152.Mr. Peter Douglas Gregory (“P. Gregory”), the Quality Manager of the Defendant said in his supplemental witness statement said the Defendant was operating in a quality management system that complied with requirements in ISO 9001:2000 Standard for Quality Management Systems. He said as an integral part of this system, they would on receipt of customers’ complaint record and review such complaints. 153.He said further that the quality management system also covered on site support and that as poor site practice was common in Hong Kong, including workers failing to comply with Method Statements regarding preparation and use of their products, that they would on request offer on site advice to end user to ensure the customer get the best results from their products. 154.He said his job was also to identify any batch of production that did not meet the criteria for consistency and performance and isolating such materials from the Defendant’s customer. 155.He said that in the 6 months prior to and subsequent to receipt of the Plaintiff’s complaint, there was no quality control failure noted nor did they receive further complaint. 156.In this case, the Defendant submitted, which was not disputed, that RTA was manufactured and supplied to other users, apart from the Plaintiff and they did not receive further complaint. 157.One should note however that although RTA was used in other construction site, the tile adhesive system adopted at these sites was not known nor was the standard on adhesive strength requirement on these sites known. 158.Defendant general manager Lam, in his supplemental witness statement dated 30 July 2007 said that during a joint meeting with Hanison, the architect and Owner of the Project, he had been asked about debonding of tile problem at Belcher’s Garden and he replied that the system proposed to the Project was different from the system adopted in Belcher’s Garden. 159.Lam in his witness statement 21 October 2005 stated that it had always been the Defendant’s in house procedure and practice that if the delivery of goods included limited number of bags from another batch (not being a full batch of 48 bags), then the batch number of these bags would not be recorded in the delivery note. 160.It followed therefore that it would be extremely difficult for the Defendant to track down and identify the batch no. of goods complained of. This practice certainly was not satisfactory. 161.Lam said the Defendant did not monitor the workmanship. It was strange that they had not done so, even after receiving complaint from the Plaintiff that the RTA was not performing. Should they have any suspicion that workmanship was a possible cause, they would have done so. It was not disputed that the Defendant’s workers were never denied access to site. 162.Further according to P. Gregory, poor site practice was common in Hong Kong. It was strange if workmanship was really a problem that the Defendant, being an experienced supplier of tile adhesive had failed to point out the problem to the Plaintiff at the time and/or failed to monitor workmanship after receipt of complaint of non-performance of RTA. 163.The Defendant in defending the Plaintiff’s claim said the failure of RTA to perform was due to workmanship problem of the Plaintiff’s workers. The Defendant’s case on workmanship rest mainly on the photos allegedly taken at the site. The photo taker however, did not testify in Court. 164.Lam said photos of the walls where the tiles were hacked off showed trowels marks on the adhesive which, according to his experience over the years, indicated that the tiling workers had not pressed the tiles properly during application or the open time of the adhesive had been exceeded before the tiles were applied. He said this was common trade knowledge that visible trowels marks indicated that open time was exceeded. 165.S. Wong did not agree to presence of trowel marks being signs of tiles not adequately and sufficiently pressed into the tile adhesive. 166.He said for November 27 test, the Defendant did not witness the preparation of the panels and therefore there was no way that the Defendant could ensure the adhesive was properly applied. He said therefore he had refused to admit their adhesive was substandard. 167.Firstly, this Court agreed to the address by Counsel for the Defendant as to reliability of the opinion expressed by Mr. Anson Chan of Messrs. Freeverse Arch Ltd. in its letter dated 30 November 2004 regarding the cause for debonding of tiles since Mr. Anson Chan and Mr. Wilson Lee both did not testify in Court. This Court had not placed any weight on this letter. 168.Counsel for the Defendant submitted that Pull Out Tests performed at Podium or swimming pool passed whereas most Pull Off Tests performed on high floors and roof failed. He said the only Pull Off Tests in laboratory also passed. 169.He said this was evidence of poor workmanship that once the work of the worker was not closely monitored, they failed to comply with instructions for use/method statement when using RTA. 170.This Court noted that some of the failure gave readings as low as 0.0023 MPa (test on 27 November 2004 at C6 Roof water tank on RTA Batch 80178), 0.11 MPa (test on 27 November 2004 at C5 26/F on RTA batch 9012), 0.07 MPa (test on 27 November 2004 at C5 26/F on RTA batch 9038 and 8325), 0.03 MPa (test on 11 November 2004 at C5 27/F Guest Bedroom), 0.04 MPa (test on 11 November 2004 at C5, 27/F Guest Bedroom), 0.06 MPa (test on 2 November 2004 at toilet), 0.08 MPa (test on 2 November 2004 at B4 water tank with waterproof layer). 171.It was agreed that the purpose of adding polymer in adhesive agent was to enhance the bonding between cement and sand mortar.It was said also that if one merely used ordinary cement/sand mortar to fix ceramic tile, with proper application, the tile would not fall off within 10 to 20 days and even then, the readings of their bond strength should not be as low as above mentioned. It was said therefore that the difference in concentration in esters and ethers would not reduce the bonding strength at all and that the same would not result in falling of tiles. 172.It was also queried by Counsel for the Defendant that although RTA Batch 8078 failed badly in 27 November 2004 Pull Off Test, nevertheless, RTA Batch 8088 manufactured by the Defendant on the same day was able to perform and comply with BS5980. 173.The Defendant submitted that poor workmanship of the Plaintiff’s workers as the cause of the failure of RTA. 174.The Plaintiff’s witness Fan said his duty as clerk of work on site included inter alia, overseeing and monitoring the quality of workmanship and materials by Hanison and subcontractor like the Plaintiff here. He said that although there was some isolated incidents of unsatisfactory workmanship, the workers of the Plaintiff did, when using RTA, comply with the method statement by the Defendant and had observed open time as instructed. 175.He said on or about 6 October 2004, he noticed some debonding of tiles at water tank location on roof of Block C, large patches of tiled area yielded hollow sound on tapping test. 176.He said he examined back of tiles at failed areas and found very little adhesive adhered to the tile which led him to suspect that there might be problem of tile adhesive quality or tile quality due to water absorption problem. 177.He issued a letter to Hanison on 19 October 2004 suggesting room for improvement by Hansion and the Plaintiff its subcontractor, regarding dampening and render surface and not to exceed open time (30 minutes) of adhesive and sufficient tapping. 178.Fan said subsequent to occurrence of the debonding problem, Lam and Chan of the Defendant did frequently come to site to investigate the problem. They monitored the workmanship and held meetings to solve the problem. Open time was the first issue to be addressed and as a result, a reminder method statement involving reduction of open time was issued by the Defendant in November 2004. 179.Fan said further that he was present at the Pull Off Tests on site on 11 November and 27 November 2004. He did not notice any workmanship problem in preparation and set up of these Tests although the Defendant’s representatives were not present at the preparation stage. 180.Concerning the tests on 27 November 2004, Fan said Tam and Lo from City University, Lam of the Defendant and representatives from Hanison and the Plaintiff were there and most of the tiled bonded with Ronacrete system fetched very low bond strength, ranging 0.1 to 0.3 MPa, the strength of which was even lower than ordinary cement mortar. 181.He said the 27 November 2004 tests were conducted at request of Hanison. He said as a result of tests on 27 November 2004, Hanison decided to change the adhesive system using replacement adhesive. He said later there was hacking off tiles and retiling using new adhesive system. 182.He said Hanison later introduced new quality control plan on site to ensure both workmanship and materials and that all retiling works completed and passed in April 2005. 183.Trevor Gregory (“T Gregory”), witness for the Defendant, agreed that Fan should be well aware of site application procedure of RTA and importance of good workmanship and site practice. 184.He said Fan did say ‘very little adhesive adhered to the tile’ which meant insufficient pressure was applied to the tile during installation and such that the adhesive could not encapsulate the tile and grip the ‘ridges’ to the back of the tile. He said this was not evidence showing there was problem with the adhesive. 185.T Gregory said Fan did say he used hammer testing and detected voids. This, he said indicated poor workmanship. 186.T. Gregoary when shown the tiles collected from site. He said tile exhibit P1(2) and P1(5) were uneven and therefore would create void when pressed. 187.He was shown tile P1(5), at the back of which was grey residue material between the grooves. He said if tiles were applied properly, the grooves would be full of tile adhesive materials. 188.As for the back of tile P1(3) and P1(4), where there was no grey material on its back, T Gregory said these tiles were never stuck on the wall but only remained standing on the wall for some time. 189.On examination of P1(5), this Court did not find any unevenness, and as for P1(1), there was only very slight unevenness. 190.T Gregory said first by reading the photos allegedly taken at site that he could form a view of his own without the need for him to talk to the photographer. 191.He said by looking at the wall where tiles were hacked off, one could see there was adhesive still stuck to the render and there was no debonding. 192.When asked how he managed to know whether additional and sufficient pressure was applied to the tile merely by looking at the photos, T. Gregory said he could tell by his experience. 193.Frankly, this Court was not persuaded that by looking at the static photos alone, in the absence of evidence from the photographer, one could reasonably give such answer. 194.It was also not safe to conclude these tiles (with little or no tile adhesive at back) were all actual tiles removed from the walls based on photo 11 in his report as no one came to court and explained if these tiles were all tiles hacked off or partly tiles hacked off, partly tiles abandoned due to quality problem or unused tiles. 195.This Court had reservation to accept of T. Gregory evidence in full. 196.It was said by Counsel for the Defendant that although Fan had been inspecting the site on daily basis, he was not in a position to ensure good workmanship because the site consisted of 3 blocks and he could not possibly be at different locations at the same time when different groups of tiling workers worked at different locations. Fan agreed to this but he said that the workmanship of workers in each block was also supervised by a foreman. 197.This Court said it was a practical reality that no quality control plan could ensure 100% workmanship problem free. The supervision of work system employed by Hanison at the site at the material times could not be said to be substandard or defective. 198.In this case, there was no eye witness from the Defendant that came before the Court and testified on poor workmanship of the Plaintiff. 199.The Plaintiff further said since occurrence of debonding problem, despite all the investigations done by the Defendant, Hanison and the Plaintiff and apart from the letter of Fan dated 19 October 2004 and the subsequent revised method statement from the Defendant, poor workmanship was never brought up, not until the present litigation. 200.Counsel for the Plaintiff referred this Court to the contemporaneous correspondence between the parties. 201.It was noted by the Court that throughout the correspondence, the Defendant did not deny failure of RTA, instead the Defendant had attempted to explain reasons for such failure. 202.Letter from the Plaintiff to the Defendant dated 4 November 2004 and 5 November 2004 showed that parties had by that time already undertaken several weeks of investigation. 203.Letter of 5 November 2004 from the Defendant to the Plaintiff confirmed that the Defendant was unable to establish cause for failure. The Defendant also proposed another of their tile adhesive for trial by the Plaintiff. 204.By 11 November 2004, the Plaintiff again complained the Defendant for lack of response and cooperation, as well as substandard goods. They discovered some bags of RTA delivered on site were not covered by Certificate of Conformity issued by the Defendant. 205.Later, on 15 November 2004, the Defendant wrote to the Plaintiff and said according to their in house test report WI 575, low pull off strength were achieved using their RTA on the site tiles as compared to other Japanese tiles. They said there was considerable decrease in bond strength for site tiles if the open time was 25 minutes. The Defendant then still suggested further investigation on quality of site tiles to determine reasons for failure. 206.It must be noted that the Defendant was aware of the specifications of site tiles prior to the Supply contracts. 207.The Defendant on 15 November 2004 also explained that bags of RTA from side batches would not be recorded on the delivery note and therefore would not be covered by their Certificate of Conformity. They asked the Plaintiff to provide them with the batch number of the ‘problematic’ bags of RTA. 208.This clearly was poor quality control management. The supplier should always keep note of the particulars of each delivery of goods, including but not limited to time, place, quantity and batch no. of each bag of RTA delivered to client, for obvious reasons. The reason that this was not done in this case and the fact that the Certificate of Conformity failed to include these bags was unprofessional management. 209.In the letter of 15 November 2004, the Defendant maintained by reason of chemical analysis by materialists that their products conform to their quality standard. 210.As the Plaintiff was not aware of formula of RTA, the Plaintiff had resorted to FTIR analysis as aforesaid instead. 211.On 16 November 2004, the Plaintiff informed the Defendant in writing that the installed tile had totally failed to meet their client’s requests, enclosing record of the areas affected. 212.Hanison wrote to the Plaintiff on 20 November 2004 complaining about defective quality of the Defendant’s RTA. This letter same was copied to the Defendant. The Defendant on 24 November 2004 wrote to the Plaintiff insisting that tile quality was the suspected cause for failure. They maintained RTA supplied to site was consistent in quality. 213.The Defendant then asked the Plaintiff to cease using the site tiles. The Defendant also suggested daily joint site visit, arranged factory visit to the Defendant’s factory in China, chemical analysis laboratory test for every 50 bags of RTA supplied, provide site staff to witness Pull Out Tests on site. 214.The Plaintiff, in response to the active response of the Defendant and in reliance of the good Pull Out Tests results on 11 November 2004, placed further orders of RTA. 215.Later on 27 November 2004, the Plaintiff at request of Hanison made further Pull Out Tests, using RTA and other tile adhesive. Pull Out Tests result for RTA was extremely poor whilst the Pull Off Tests results for other tile adhesive achieved PA17.4 Standards. Preparation work of these Pull Off Tests were all undertaken by the same Plaintiff workers. Workmanship problem clearly was ruled out as cause of failure. 216.This Court did not agree to the suggestion by Counsel for the Defendant that 27 November 2004 Pull Off Tests were designed by the Plaintiff to work against the Defendant. Evidence showed that it was Hanison who suggested the 27 November 2004 tests. 217.On reading the contemporaneous correspondence between the parties, since early November 2004, Hanison and the Plaintiff both had indicated their frustration at the poor performance of RTA on site, the attitude adopted by the Defendant (i.e. stating problem resulted from quality of site tiles), the poor management of the Defendant in missing Certificate of Conformity of some loose bags from side batches. It was understandable that in the circumstances Hanison requested for further Pull Off Tests, using RTA and other tile adhesive in the Pull Off Tests. 218.Again, the Plaintiff’s workers were responsible for the preparation works of these Pull Out Tests. The result of Pull Off Tests showed other tile adhesive, such as E-mix, was able to achieve PA 17.4 standards whereas RTA failed badly. Although the Defendant did not witness the preparation, they did witness the Pull Off Tests. 219.It was noted also that there was only little adhesive at back of tile even though there was strong adhesive strength. 220.Although the Defendant did allege that the workers of the Plaintiff might not have adhered to updated method statement of the Defendant, such as exceeding open time, it was not disputed that in fact, Li, Fan and the workers of the Plaintiff were all familiar and experienced in the use of RTA and that they all knew the finger touching tests, that open time of RTA was not exceeded if mixture were still tacky and could be used to apply to affix tile. 221.Workmanship was again ruled out as cause for such failure by RTA. 222.It should also be noted that the Plaintiff or May Tik D & P had prior to this project been using RTA in other projects and therefore his workers were not new to the use of RTA. There was no evidence that the Plaintiff did complain quality of RTA then. 223.In fact, according to Fan, the retiling took place after the tiled areas were hacked off and was completed satisfactorily using replacement tile adhesive without any problem. 224.Further, as the workers of the Plaintiff should all be aware of the debonding problem at site, they were supervised both by Fan on behalf of Hanison and the Plaintiff when they prepared for the November tests, it was highly unlikely if not impossible that they would have still workmanship problem as late as 27 November Pull Out Tests. 225.The Defendant did not summon the photographer to testify. They explained that the witness had left their employment and was not located. 226.Alex Chan (“Chan”), Technical Sales Manager confirmed in Court that the photos taken represented the site conditions. This Court nevertheless doubted the reliability of such evidence. How could one possibly recognize the site by looking at the photos in question? In any event, it was never alleged by Chan that he was present when these photos were taken. 227.He said in his witness statement that on receipt of complaint of low bond strength of RTA on site in October 2004, he went to investigate along the line of poor tile qualities and poor workmanship. 228.He said in paragraph 15 of his witness statement that he recalled Hanison and the Plaintiff once complained that Monoprufe DP was difficult to apply and he found the same was not mixed properly as the Plaintiff’s worker did not have a proper mixer. He later demonstrated to them how to use the mixer and the problem was solved. Nothing more on poor workmanship or site condition was mentioned in this witness statement of Chan dated 15 September 2005. Had he witnessed poor workmanship on site as shown in the photos, he would have included these other workmanship problem in his witness statement. This Court doubted his evidence as to the photos. 229.It was clear that the Defendant had, in fact, not suspected workmanship as the cause of the failure of RTA. 230.Lam of the Defendant in his witness statement said that subsequent to trials with Monoprufe DP carried on site in October 2004, the Defendant were of opinion that cause of failure were as a result of workmanship. 231.This was not true because if one read the contemporaneous correspondence between the parties, even up till late November 2004, the Defendant were silent on workmanship issue. Instead they were firm and in no way diplomatic in suggesting that site tiles was cause of the problem. 232.This Court found that despite the continuous complaints by the Plaintiff of poor bonding strength of RTA, the Defendant had failed to immediately identify the batch no. of the RTA in question and retrieved from their storage under their quality control plan sample from such batch and did in house tests on such samples and also perform samples from returned RTA to clarify if there were problems of inconsistency in composition in the RTA supplied, as alleged. The only tests they did on the questionable returned materials were a chemical analysis test and a Pull Out Test. This was inadequate in view of numerous failing Pull Out Test results performed by the Plaintiff and Hanison and the large areas of debonding at site. 233.In any event, what was the use of keeping samples from batch without testing them even on receipt of complaint and instead telling client i.e. the Plaintiff that the cause for failure was due to the site tile quality when there was no evidence that the site tile in question was different from the site tile used in August 2004 Pull Out Tests? 234.It was said that the very poor test results of the 27 November 2004 tests were definitely due to poor workmanship because the readings were worse than those attained by ordinary cement slurry, without use of adhesive. 235.This Court accepted this as a factor that should be considered but this was by no means conclusive. 236.The Defendant’s representative were there at 27 November tests and they knew the poor result but as late as 3 December 2004, the Defendant’s solicitors in reply to letters from the Plaintiff’s solicitors regarding substandard quality goods still did not raise workmanship issue. It meant up till then, they were still not of the view that there was workmanship problem. The saying by the Defendant that they did not so mention in order to maintain good relationship with client was not accepted as they were very direct in pointing out ‘site tile problem’. 237.Apart from the Plaintiff, Hanison was also very interested in ensuring compliance of contract specifications. 238.Although the Defendant alleged that Fan was covering up defective workmanship by the Plaintiff’s workers, this was also illogical and unlikely as Fan, employed by Hanison, and being well aware of serious debonding problem, would still neglect his duty to monitor workmanship. It would not benefit Fan if he covered up poor workmanship of the Plaintiff. In fact, he did not hesitate to remind the Plaintiff’s workers of strict adherence to method statement for use of RTA as early as October 2004. 239.It was not in dispute that on 18 November 2004 i.e. subsequent to the 11 November testing, the Plaintiff had placed further order of 432 bags of RTA with the Defendant for use in the Project. 240.It should also not be forgotten all these tests by City University and HK Testing Co. Ltd. were commissioned by Hanison, not the Plaintiff. 241.In assessing the evidence of S.Wong, this Court had considered the criticism by Counsel for the Defendant that S.Wong had exaggerated his experience in tiling work. 242.At the same time, T Gregory admitted that he had no previous experience in on site tiling work involving use of RTA or where there were extensive debonding of tiles. 243.It should be noted that perfect workmanship was not required from the Plaintiff’s workers but reasonable workmanship. 244.This Court, on balance, was not persuaded by the Defendant that there was workmanship problem by workers of the Plaintiff. This Court was satisfied that the Plaintiff’s workers had performed well and had complied with the instructions for use and method statement in the use of RTA. The debonding in this case was due to failure of RTA to fulfill PA17.4 standards, failure to conform to sample of August 2004 Pull Out Tests and of non-merchantable quality. (6) Was the Plaintiff entitled to recover damages from the Defendant? If so, how much? 245.The breach of warranties had resulted in the debonding/falling of tiles to such extent that had led to the need to hacking off and retiling at the site. 246.This Court did not see any reason for the hacking off and retiling other than consequential to the breach aforesaid. 247.The same had therefore resulted in loss and damages to the Plaintiff. 248.We now proceeded to assess the amount of loss and damages that the Defendant was liable to the Plaintiff, i.e. loss and damages of and incidental to the said hacking off and retiling. 249.Counsel for the Plaintiff had helpfully set out as Appendix B in his Closing Submission the heads of damages claimed by the Plaintiff. This Court would adopt the same here. a. Leveller （紙皮石墨綠）
250.Both parties agreed this item was to be deducted from the Plaintiff’s claim as his work related to other areas, not subject matter of this case.
251.Counsel for the Plaintiff said Li in Court admitted he was informed by his foreman that these workers handled the demolition work but he was not aware of the exact nature of his work. He based his claim on hearsay only. 252.Li said that he had retained workers on site pending the actual demolition work and when work at the Project site was suspended because he did not know when work could be resumed and one could not just dismiss all workers as they needed to fit in and complete the contract works within a tight schedule. 253.Further, Li said they needed to retain workers on site for cleaning works, assisting in preparation of mock up samples for testing. 254.Pull Off Tests, taking protection measures and preparation work for re-tiling. 255.This Court accepted evidence from Li, his explanation was reasonable and logical in the circumstances. 256.This Court was satisfied that $6,000 and $4,200 was loss and damages suffered by the Plaintiff being the expenses defrayed by the Plaintiff as a result of the retiling and the same were allowed. b. Workers for Hacking Off and Plastering
257.Here, this Court agreed with the observations by Counsel for the Defendant. Although Plaintiff claimed 48.5 man day and 28 man day for worker Lam and Ho respectively, according to the document disclosed, the number of man day which fell within the period when demolition and retiling were carried out was only 12 man day from 16 December 2004 to 31 December 2004 and therefore the sums were adjusted to $4,200 and $5,400 accordingly. 258.As for worker Leung Cheung Lun (2 I/Nov, 2 I/Dec) $1,800, there was nothing on record of the Plaintiff of the work by Leung in December and as for the 2 days work in November, the same took place on 1 November and 2 November when the demolition work had not yet commenced. This Court did not accept the work by Leung as relating to the retiling.
259.Similar criticism for the work by Lee because the 10 man day worked by him took place before the demolition work commenced, the whole claim of $4,500 should be dismissed. c. Subcontractor cost for retiling
260.Hence, the Plaintiff had merely relied on original subcontract between the Plaintiff and its subcontractors for costs on the demolition and retiling work. 261.Fan in Court did testify that the tiled areas were all hacked off and retiling completed later. There was no challenge that this was a fact. 262.Counsel for the Defendant submitted however that it was unreasonable that the Plaintiff should pay the subcontractor the same fee for demolition and retiling as in the original subcontractor because a lot of the items in the subcontract were no longer required. 263.In the closing submission, the Defendant submitted that the Plaintiff did not disclose any documentary evidence regarding payment to the subcontractor for such work (even though the trial was adjourned for one year after Li of the Plaintiff was cross-examined on the appropriateness of paying the subcontractor the same rate). 264.It was noted that the Defendant in their pleadings did deny the damage claimed by the Plaintiff and asked that the same be proved. 265.The Defendant submitted that it might well be that the subcontractor had redone the job for free as they knew of their own poor workmanship. Li however was not cross-examined in Court by the Defendant on this, i.e. whether he had in fact paid such sum, as alleged. 266.Although the Plaintiff was not cross-examined on whether he did actually pay for this sum, the burden still remained with him to prove that he did. In the absence of any company records or documentary evidence to such effect, this Court was not satisfied that the claim under item C was proved. d. Material Cost
267.Although the Plaintiff relied solely on the debit note in sum of $61,550 from Hanison to the Plaintiff and there was no evidence of actual payment by the Plaintiff of the tiling cost, this Court was satisfied that the Plaintiff did suffer such a loss as a result of the retiling. Retiling Work Tile adhesive and grout Cost (E-Mix) 268.Here, this Court accepted the submission by Counsel for the Defendant. According to Li’s evidence, each bag of E-Mix is $58, the same could cover 8 to 10 m2 of work, therefore the average cost of E-Mix per m2 is $6.525/m2. Total cost of E-Mix covering the 2462 m2 would be $16,065, as opposed to $33,389.80. 269.The total loss and damages to be awarded to the Plaintiff would therefore be: $6,000 + $4,200 + $4,200 +$5,400 +$61,550 + $16,065 totalling $97,415. 270.Although in closing submission, the Defendant did challenge the need to hack off and retile such large areas of tiles, the issue had never been raised before. In fact, prior to the Plaintiff hacking off the same, the Plaintiff had sent letter to the Defendant inviting them to confirm the area affected. The Plaintiff did not query then or at any later stage as to why there was the need to hack off the whole tiled area. 271.At trial, the Plaintiff had conceded the revised counterclaim of $154,380. 272.After set off of the counterclaim, it was ordered that the Plaintiff should pay the Defendant
Costs 273.As for costs, there was no reason why costs should not follow the event. Accordingly this Court made an order nisi that the Defendant should pay the costs of the claim herein (with certificate for Counsel) and the Plaintiff should pay the Defendant costs of the counterclaim herein (with certificate for Counsel). 274.This Court allowed certificate for Counsel in this case because of the complex nature of this case. 275.This case was originally set for 6 days but had ultimately heard over 20 days as a result of repeated adjournments due to repeated grossly under estimates of outstanding length of trial by the parties and the very tight court schedule. The hearing of this case was further extended due to the illness of Defendant’s expert witness and myself during trial. 276.In this case, costs incurred was greatly disproportionate to the claim/counterclaim in question, largely because of extensive cross examination of expert witnesses engaged by the parties and the large number of Pull Off Tests, chemical analysis and other tests undertaken by the parties to test/establish the quality and performance of the RTA in question.
Representation: Miss Janine Cheung, instructed by Messrs. Huen & Partners for the Plaintiff Mr. Anthony W.L. Chow, instructed by Messrs Thomas Li & Yu for the Defendant |
Further hearings and rulings under DCCJ 384/2005