Trio Design v. The Incorporated Owners of Hung Fook Building, Shun Ning Road
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DCCJ 3592 of 2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3592 OF 2008 _________________
Coram : Deputy District Judge A. Kot in Court Date of Hearing : 14th September 2010 to 16th September 2010 Date of Judgment : 7 October 2010 _________________ J U D G M E N T
INTRODUCTION 1.The Plaintiff claims against the Defendant for the sum of HK$72,000 being contract price for the service of the Plaintiff in the supply and installation of 28 sets of fire rated door leaves (“the Work”) at the Hung Fook Building (“the Building”). 2.The Defendant counter-claims for damages in the sum of HK$19,700 being extra costs to be borne by the Defendant for engaging another contractor for the Work as a result of the breach of an implied term of the contract on the part of the Plaintiff. 3. It is agreed by the parties that the issues to be determined are : (i) factual dispute as to whether the Defendant did engage the Plaintiff to perform the Work knowing that by replacing the door leaves but not the door frames, the requirement under the fire regulations could never be met;
UNDISPUTED FACTS 4.Mr. Lai Sum Yin is the sole proprietor of the Plaintiff carrying on a business of interior design and renovation, including the installation of fire rated doors. The Defendant is the Incorporated Owners of the Building situated at No. 26-36 of Shun Ning Road, Sham Shui Po, Kowloon. 5.On 27 July 2007, the Management Committee of the Defendant resolved to change the fire rated doors of the Building. Kong Shum Union Property Management Company Limited, the Manager of the Building (“the Manager”) was instructed to invite tenders from various contractors. In this regard, the Manager had prepared a standard quotation form for the potential contractors to fill in, format of which as appeared on page 261 of Bundle. 6.Three quotations were received by the Manager. At the Management Committee held on 7 April 2008, the handwritten quotation dated 8 March 2008 of the Plaintiff (“the Quotation”) for the price of HK$69,900 was being introduced (page 260 of Bundle). It was resolved to engage the Plaintiff for the supply and installation of 28 fire rated doors at the Building and a Work Unit (“the Work Unit”) was established to oversee the progress and to inspect and accept the work upon completion. Mr. Lai Wing Chung, the Chairman of the Management Committee at the time was authorised to sign on the Quotation and such was done on 8 April 2008. 7.The Quotation contains, inter alia, the following terms and conditions :
8.The Work was completed by the Plaintiff on or about 7 May 2008 and a Certificate of Completion (page 143 of Bundle) was being issued by the Manager. On 5 July 2008, the Defendant instructed the Manager to carry out a joint inspection of the Work with the Plaintiff who eventually failed to turn up due to job commitment. It was discovered that all the door leaves did not closely fitted to the door frames and the gap between the door leaves and the floor was greater than 4mm. A Defect List was prepared after the inspection (page 144 of Bundle). 9.On or about 13 July 2008, the Plaintiff attended the Building as requested by the Defendant and added a wooden plank to 6 out of the 28 door leaves. Yet, the gap between the door leaves and the floor was still greater than 4mm. 10.The Plaintiff had through its solicitors, by a letter dated 27 July 2008 demanded from the Defendant the payment of the sum of HK$72,000. Since the Defendant failed to make any payment, the writ in this case was being issued on 15 August 2008. 11.The Defendant had obtained another three quotations for the replacement and installation of the 28 fire rated doors in September 2008 and had selected Fusion Engineering Company Limited which quoted a price of HK$89,600 (page 264 of Bundle) for the Work. 12.The statutory requirements for fire doors are contained in Fire Safety (Buildings) Ordinance 2007 which refers to the Code of Practice for the Fire Resisting Construction 1996 (“CoP”). Section 17.3 of the CoP specifies that “All such (fire resisting) doors should be closely fitted around their edges to impede the passage of smoke or flame. The bottom gap between such doors and the floor should not exceed 4mm.” (page 159 of Bundle) The Building Department also requires that the fire doors manufacturer should carry out fire test to verify fire performance in accordance with BS476 : Part 22 : 1987 (“Performance Test”). Test report for the door leaves installed by the Plaintiff is at page 161-192 of Bundle. WITNESSES 13.The witness for the Plaintiff are :
14.The witness for the Defendant are :
THE PLAINTIFF’S CASE 15.The Plaintiff denied that the requirement to comply with the CoP was specifically provided in the Quotation or it was implied that the Work should be in compliance with the CoP. On the contrary, it is the Plaintiff’s case that the Defendant had been specifically warned that the Work could not comply with the requirement under the CoP. 16.PW3 testified that he had attended the Building before submitting the Quotation to take measurement of each and every door leave. He was accompanied by PW1, PW2 and Mr. Leung, a staff of the Manager (“Mr. Leung”). Upon inspection of the doors, PW3 discovered that the door frames were rotten and the concrete floor slabs were also uneven. He told those present that by replacing the door leaves but not the door frames and without the floor slabs being rectified, the bottom gap between the door leave and the floor may exceed 4 mm not in compliance with the requirement of the CoP. PW3 said that he knew about this fact from his experience in another job. PW1 then asked about the costs for everything to be fixed and PW3 replied in the region of HK$200,000. 17.Eventually, PW1 told PW3 to submit tender quotation for the Work only since the Defendant did not have sufficient funding for the door frames to be replaced as well. So the Quotation was submitted by the Plaintiff on 8 March 2008 without mentioning the requirement under the CoP. On 10 May 2008, the Plaintiff submitted another invoice (page 273 of Bundle) for additional work in the price of HK$2,100 (“the Invoice”) on the request by PW1 and Madam Luk Wing Kum, a member of the Management Committee. 18.Upon completion of the Work in early May 2008, the Manager had, on 10 June 2008 issued a Certificate of Completion to the Plaintiff after inspecting the Work for and on behalf of the Defendant. The original Certificate of the 28 fire rated doors (page 265 to 270 of Bundle) had also been given to the Defendant. 19.PW1’s evidence is in line with PW3. After the site inspection, PW1 raised the concern of PW3 with the other Management Committee members at meetings but it was eventually decided that only the Work were to be done for the meantime. So all the members of the Management Committee were aware of the fact that the bottom gap of the fire resisting doors may not comply with the CoP. In fact, it was always the intention of the Defendant to replace only the door leaves. 20.The Manager had, on the 10 June 2008, inspected and accepted the Work done by the Plaintiff for and on behalf of the Defendant. PW1 explained this was because there was a dispute amongst the members as to whether the Work should be accepted. Assistance had been sought from a District Board member who suggested that the Manager should be the one to inspect and decide whether to accept the Work. PW1 had also seen some original Fire Proof Certificates but can’t recall how many had he seen. 21.PW2 confirmed that he was present when PW3 conducted the site inspection together with PW1 and Mr. Leung but he had not paid attention to what PW1 said to PW3 upon PW3 raising the need to replace the door frames as well. It had been discussed at meetings after March 2008 and it was confirmed that only the door leaves were to be replaced but not the door frames. THE DEFENDANT’S CASE 22.The Defendant denied there was any site inspection conducted by the Plaintiff and neither did PW1 reported to the Management Committee the opinion of PW3 as to the necessity to replace the door frames as well in order to comply with the CoP. It is also denied that the Work had been accepted by the Defendant or had ever received any Fire Proof Certificate from the Plaintiff. 23.DW1 testified that the Management Committee decided that the fire rated doors should be replaced but as to whether the door frames should also be replaced, the Defendant was relying upon the expertise of the contractors and would heed their advice. DW1 accepted there was no instruction to the Manager to look for contractors with expertise in fire requirements and it must be the implied term that the fire rated doors should comply with the CoP. 24.He was not sure if any contractor had ever conducted any site inspection but according to the visitors’ record kept by the Building, there was nothing to show that PW3 had ever been there. DW1 also denied PW1 had ever raised the issue that the Work cannot be in compliance with the CoP at any meeting and there was nothing to such effect shown in the minutes kept. The Invoice was not part of the Quotation and he could not tell if it was added upon the request of PW1 and Madam Luk. 25.As for the inspection by the Manager, DW1 agreed that a District Board member was involved but maintained that the Manager was only to check and see that the number and items done was in line with the Quotation and further inspection to accept the Work done should be conducted by the Work Unit and he knew nothing about the Certificate of Completion issued by the Manager nor had he ever seen any Fire Proof Certificate from the Plaintiff. Even though another contractor had been chosen to conduct the Work again, such work had not been carried out pending the outcome of this action. 26.DW2, being the Assistant Property Manager, had all along been involved in the Work from tendering stage to completion. The Manager, in inviting tenders, had only provided the number of fire rated doors to be replaced to various contractors and had never arranged for any site inspection to be conducted. At no time had the Manager been informed of the damage on the door frames and the uneven floor slab which will cause the doors not comply with the CoP. 27.DW2 said that it was PW1 who requested the Manager to inspect the Work and to issue the Certificate of Completion. The Manager did not know whether the Work Unit had inspected and accepted the Work. After confirming the number of doors replaced and the work done did tally with the Quotation, the Manager then prepared the Certificate of Completion and passed it to PW1 leaving the date blank. The Manager had never received the original of the Fire Proof Certificates but just got fax copies of less than 28 of them. EXPERT EVIDENCE 28.Both experts agreed that the gap clearances between the fire rated doors and the floor were too wide, i.e. exceed 4mm (“the Gap”). It is also agreed that just replacing the fire doors but not the door frames will not be able to comply with the requirement under the CoP and Performance Test is being carried out on a door set i.e. the door leave and the door frame together and cannot be for the door leave alone. 29.PW4 opined that the Gap was due to the condition of the door frames which were not straight (門框變形) and the uneven floor slab. In order to attain the one hour fire resistance period, both the door leave and the door frame must be replaced as a set. The Fire Proof Certificates were issued by the supplier of the doors to confirm that the doors had one hour fire resistance period if installed with the required door frames under the Performance Test. As for the addition of wooden planks to fill up the Gap, PW4 opined that paragraph 3.3 of the test report (page 164 of Bundle) did allow for overpanel to be installed as long as the door did not exceed the maximum height of 2 metres and of certain density. It is PW4’s estimation that the 28 fire rated doors installed by the Plaintiff can withstand fire for more than 30 minutes since the make of it met with the old requirement issued by the Building Department for that period of resistance. 30.DW3 opined that the Gap resulted purely from the defective workmanship of the Plaintiff because these doors were supposed to be site measured with accurate dimensions, ordered and tailor-made from the supplier. Yet he cannot tell if the condition of the door frames had also a part to play in causing the Gap since he was not instructed to inspect the door frames but just to check and see if the doors comply with the CoP. Neither can he tell if the door frames were not straight. But he found the floor slab to be rough only but not uneven. The adding of wooden planks of different density onto the 6 doors had changed the integrity and the fire resisting character of the fire rated doors. Judging from the wordings of the standard tender document (page 261 of Bundle), DW3 opined that the work should be for the replacement of the fire doors only. And as far as the “heat proof certificate” (耐熱證書) mentioned in the tender document is concerned, DW3 could not tell what it was but since it only said heat proof instead of comply with the CoP, the Certificates provided by the Plaintiff should be sufficient in answer to this requirement. DW3 also said that he could not tell whether the doors were of fire resistance or how long it can stand the fire. FINDING OF FACTS 31.The first issue is whether the conversation between PW1 and PW3 concerning the need to replace the door frames in order to comply with the CoP did exist. Both DW1 and DW2 knew nothing about such conversation and there is nothing to rebut the evidence of PW1 and PW3. This issue solely turns on the credibility of the Plaintiff’s witnesses. Having heard the evidence and on a balance of probability, I accept the evidence of the Plaintiffs. 32.DW1 had tried to establish that there was in fact no site inspection as alleged by the Plaintiff witnesses since no such record was being shown on the visitors’ record kept by the Building. Yet, this was never mentioned in his witness statement and was raised under cross-examination only. Neither had such record been adduced as the Defendant’s document throughout this proceedings to support such a contention. I found no weight should be attached to such evidence of DW1. 33.It is also DW1’s evidence that there was nothing in the minutes of the Management Committee to show that PW1 had ever mentioned that the Work could not meet the CoP requirement. Again no such document had been produced and the explanation by DW1 that he didn’t know the minutes had to be produced cannot be accepted. Again, I found no weight should be attached to such evidence. In any event, it was the evidence of DW1 under cross-examination that not every item discussed at the meeting would be recorded in the minutes. Given this fact, DW1’s challenge cannot be substantiated. 34.DW1 also agreed that a District Board member had been involved since there was a dispute as to whether the Work should be accepted and eventually the Manager was instructed to inspect and accept the Work. Yet DW1 and DW3 insisted that the inspection and acceptance by the Manager was only to confirm the number and items of work done. This is inconsistent with what was being recorded in the minutes of the Management Committee dated 17 June 2008 (page 257 of Bundle) which stated that the Manager had accepted the Work in accordance with the Quotation after inspection. There was nothing in the minutes to suggest that the inspection was confined to certain criteria as alleged. 35.The Defendant had also produced the bank records to challenge the evidence by PW1 and PW3 that the Defendant did not have sufficient money to replace the door frames as well. Yet, it was the evidence of PW1 that he did not know about the detailed bank balance since it was kept by another member and he only overheard that the balance was about $100K to $200K. And PW3 frankly admitted that he only heard of the figure from PW1. I found PW1 might have mistaken about the actual bank balance of the Defendant since he got no first-hand information and this did not affect my findings of his credibility. 36.The main attack by the Defendant on the credibility of PW1 and PW2 is that their witness statements are more or less the same and whilst PW1 said he did it together with PW2, PW2 said there was no discussion with anyone. Counsel for the Defendant contends that their evidence is inconsistent and one of them must be lying. But such a contention had overlooked the evidence of PW2 that he and PW1 went to the solicitor firm together, related their evidence separately and there was no discussion. Then they went to the solicitor firm again on different dates to sign on the type-up version now before the court. There is nothing to support the contention that the two of them had ever discussed and/or collated their evidence. Since the statements was describing the same event and were prepared and typed up by someone from the solicitor firm, similarity in the use of wordings or layout appeared in it is understandable. 37.Even if I found PW1 and/or PW2 to be lying, there is nothing to cast doubt on the evidence of PW3 whatsoever. I found PW3 was not shaken under cross-examination and is a truthful and reliable witness. 38.On the issue of the Invoice, again there is no evidence from the Defendant to rebut the allegation that the work particularised in the Invoice was done upon the request of PW1 and Madam Luk. The Invoice itself contained the signature of PW1 and Madam Luk to confirm the same. 39.I found as a fact that PW3 did alert PW1 of the fact that by replacing the door leaves but not the door frames, the requirement under the CoP could not be met and the Defendant had been made aware of the same by PW1 at Management Committee meeting. Given this fact, nothing can be implied from the Quotation that the door leaves had to comply with the CoP. And I also found that the additional work particularised in the Invoice was done by the Plaintiff on the request of PW1 and Madam Luk. ANY IMPLIED TERMS 40.Even if my finding of facts is wrong, I would also find that the compliance with the CoP cannot be an implied term of the Quotation. 41.There is no argument that the general presumption is against implying terms into written contracts. And in order for a term to be implied, 5 conditions must be fulfilled. They are :
42.Both expert witnesses are of the opinion that it would be impossible to comply with the CoP with the door leaves not being replaced with the door frames in one set. Furthermore, PW4’s opinion that the condition of the door frames rendered the elimination of the Gap impossible is not in dispute by DW3 who had not conducted any test on the door frames. Given this fact, it would not be reasonable and equitable to imply a term the performance of which is impossible. 43.The implied term that the Work must comply with the CoP is rejected on the ground that it was unreasonable and inequitable in the circumstances of this case. The Order 44.It is ordered that :-
Mr. Allan Kwong instructed by Messrs Hui & Lam for the Plaintiff Ms. Vivian Wong instructed by Messrs Sidney Lee & Co for the Defendant | ||||||||||||||||||||||