Technicom Interiors Design Engineering Ltd v. Tse Yuet Yi and Another
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DCCJ 5965/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5965 OF 2008 --------------------
Coram : Deputy District Judge R. Yu in Court Date of Hearing : 12th, 13th, 16th, 17th, 18th and 19th August 2010 Date of handing down Judgment : 2nd November 2010 ________________________ JUDGMENT ________________________ Background 1.At all material time, the Plaintiff carried on the business of interior design and engineering business in Hong Kong. 2.The 1st and 2nd Defendants are and were at the material time the registered owners of Flats A & B, 30/F, Block 27 Park Island, No. 8 Pak Lai Road, Ma Wan, New Territories (“the Property”). 3.On or about 24 August 2007, the 1st Defendant has entered into a Chinese Agreement with the Plaintiff by which the Plaintiff agreed to carry out renovation work and building of various cabinets and furniture at the Property for the price of HK$350,000.00 (“the Agreement”). The 1st Defendant has entered the Agreement on behalf of both Defendants. Full details of the items of work to be performed have been set out in the Agreement. And the said price does not include materials to be purchased. 4.According to the proviso in the Agreement, the contract price shall be paid as follows:-
5.Further, according to the proviso, all the works should be completed within 60 good working days commencing from approval of the drawings for the works by the Defendants. And it is not disputed that the plans and drawings have not been approved when the Agreement has been signed. It is the Plaintiff’s case that all the plans and drawings have only been approved by the 1st Defendant on 15 October 2007. 6.On or about 25 September 2007, the Defendants and the Plaintiff have entered into a variation agreement (“the 1st Variation”). Certain items of work in the Agreement had been cancelled. Further items were added to the project. As a result, the contract price of the whole project was reduced by HK$7,320.00. And further, on or about 24 January 2008, the Defendants and the Plaintiff entered into a second variation agreement (“the 2nd Variation”) when further items in the Agreement have been cancelled, and further items of work have been added. As a result, the contract price for the whole project has been increased by HK$6,020.00. By reason of these variations, the total contract price is HK$348,700.00. 7.It is the case of the Plaintiff that they have carried out all the contract works according to the Agreement and the 1st and 2nd Variations. The Defendants have only paid a total sum of HK$280,000.00 leaving a balance of HK$68,700.00. The Plaintiff now claims the balance from the Defendants. Defendants’ complaints 8.The Defendants complain that some of the works of the Plaintiff are not of reasonable workmanship. They refuse to pay the balance. They also counterclaim for damages and seek to set off any amount they have to pay against their Counterclaim for damages. Pre-action Attempts for settlement 9.It is the case of the Plaintiff that they have entered into negotiation with the Defendants to resolve the matter amicably. 10.And at the stage of negotiation, the Plaintiff has offered to waive the charges for 2 cabinets (being items B1 and B3 on the Agreement and hereinafter called the “B-cabinets”) with a further reduction of HK$18,740.00 on condition that the Defendants would pay the balance of the contract price of HK$49,960.00 immediately. But the Defendants have refused to pay. 11.From the evidence, the Plaintiff has agreed to give special discount for some more items, resulting in a claim for about HK$10,000.00. When the Defendants still refused to pay the reduced balance, the Plaintiff brought an action in the Small Claims Tribunal to claim the sum of HK$49,960.00. 12.The application in the Small Claims Tribunal has been contested by the Defendants and they filed a Counterclaim in the sum of HK$377,572.00. In view of the amount of the Counterclaim, the learned adjudicator has transferred the case to the District Court. 13.Now in the District Court, the Plaintiff revises its claim to HK$68,700.00 on the ground that the charges for the B-cabinets should be restored, as the Defendants failed to pay the contract price. In any event, the waiver is not supported by any consideration and they are entitled to restore the claim. It is the case of the Defendants that this waiver is unconditional and the Plaintiff is not entitled to claim these charges herein. The Defence and Counterclaim 14.Initially, the Defendants are not represented by solicitors. In a Chinese Defence and Counterclaim prepared by the Defendants, they admitted entering the Agreement and the 1st and 2nd Variations. 15.The Defendants have a different interpretation of the proviso to the Agreement as to the day of completion. The Defendants’ case is that all works should be completed on 7 November 2007, which is 60 good working days from the day of the Agreement. However, the Plaintiff only completed the work and handed over the Property on 24 January 2008. The Defendants claims the airfare for the 1st Defendant to return to Hong Kong for the expected handover of the Property on 7 November 2007. 16.And for the agreement on the completion dated, there is evidence from the 2nd Defendant suggesting that there has been a collateral agreement between the 1st Defendant or the 2nd Defendant with the Plaintiff that the renovation could be ready by 7 November 2007. But this has not been pleaded and I shall come to the issue in details later. 17.On the outstanding contract price, it appears that the Defendants only challenged the payment for the B-cabinets which they claim the Plaintiff has waived and could not be recovered. The main issue is their Counterclaim when they claim reduction in price and damages. It is the case of the Defendants that the Plaintiff has agreed to provide services and goods under the Agreement. Accordingly, the goods sold shall be of merchantable quality and there is an implied terms that the goods sold should serve the purpose. The Defendants also contend that there is an implied term that the Plaintiff should provide service with reasonable care and workmanship. I believe this requirement for the service and goods sold by the Plaintiff are not in dispute. 18.The main complaint by the Defendants had been set out in paragraph 12 of the Defendants’ Counterclaim as follows:-
19.To prove the defective works of the Plaintiff, the Defendants seek to rely on an expert report prepared by Messrs. K&K Chartered Architect & Associates (“the Architect Report”). And on damages, the Defendants seek to rely on a quotation prepared by Mr. Yuen Siu Lun of Hang Kee Engineering Company Limited (“the Costs Report”). Leave has been granted to the Defendants to adduce the reports but the contents are challenged by the Plaintiff. 20.I am informed by Mr. Yip, counsel for the Defendants that Madam Wong Suk Wa, the architect who prepared and signed the Architect Report has passed away. They could only call Mr. Mark Man, an inspector who accompanied Madam Wong for the inspection, to adduce the Architect Report and be cross-examined. Miss Leung, counsel for the Plaintiff challenges the expertise of Mr. Man. I shall come back to the expert evidence later. 21.As for the Costs Report, the signer of the report Mr. Yuen Siu Lung who appeared on the 1st day informed the Court that the report has been prepared by his colleagues, one Mr. Law. The Defendants confirmed that they would call his colleague Mr. Law but at the end of the day, the Defendants could not locate Mr. Law. As a result, this report cannot be admitted as evidence in Court. The Scott Table 22.Based on the Architect Report and the Costs Report, the Defendants have prepared a Scott Table of the alleged defects and the costs of remedial works. The Plaintiff has set out their response and has conceded some items of claim. 23.But given that the Costs Report could not be produced, I note that both counsels do not go through the Scott Table item by item in the closing submission. This is sensible. Given that there is no proof for the damages as the Costs Report could not be adduced in court now, it serves little purpose to go through the Scott Table item by item. The Defendants focus on the damages from the alleged items of defect as set out in paragraph 13 of the Defence and Counterclaim. It is unfortunate that substantial costs in preparing the Scott Table and the joint statement on issue relating to the Scott Table are wasted when the Plaintiff could not secure the attendant of their experts. 24.I shall now first consider the evidence for the Plaintiff. The Plaintiff’s Evidence 25.The 1st witness for the Plaintiff is 張家耀 (“PW1”). PW1 was a designer employed the Plaintiff. He adopted his witness statement dated 21 May 2009 as his evidence in chief. 26.According to the evidence of PW1, he met the 1st Defendant in July 2007 to discuss the renovation work required. This includes pulling down some partition wall to make Unit A & B of the Property into one unit, wall and ceiling painting, building various furniture and cabinets in the Property. After execution of the Agreement, the 1st Defendant paid the 1st payment towards the contract price in the sum of HK$105,000.00. 27.As the 1st Defendant had to return to Canada, it was agreed between the Plaintiff and the 1st Defendant that they would start to carry out the demolition work at the Property. At the same time, PW1 would prepare the plans and drawings for approval by the 1st Defendant. According to the evidence of PW1, he had sent all the plans and drawings to the 1st Defendant by email. Because of the time difference between Hong Kong and Canada, he would speak to the 1st Defendant by long distance call at mid-night. Upon receiving instruction, he would make further amendment to the plans and drawings. 28.PW1 also confirmed that during these discussions by long distance call, he and the 1st Defendant agreed on the 1st Variation on or about 28 September 2007. And the 1st Defendant finally approved all the plans and drawings for the furniture on 10 October 2007. And for other decoration works in the Property, he was confirmed by the 1st Defendant on 15 October 2007. PW1 confirmed that the approval was given to him by the 1st Defendant in the telephone conversation. Accordingly, PW1 claimed that the completion day should be on 4 January 2008, which would be 60 good working days from 15 October 2007. 29.Mr. Yip put to PW1 that both the 1st and 2nd Defendants had requested for completion on 7 November 2007. PW1 responded that he had explained to the 1st Defendant that they could not complete on 7 November 2007. 30.PW1 also said that on or about 5 September 2007, he had by email notified the 1st Defendant to remove all the electric appliances from the Property as soon as possible to prevent damage. But the electric appliances had not been taken away. While the Plaintiff had taken measurement to protect the electric appliance from damage by wrapping, due to the working process, some dusting on the appliances is inevitable. 31.According to the Counterclaim, the Defendants claim that 1 electric stove has been lost. The Plaintiff concedes liability on this electric stove. 32.PW1 gave evidence and said that on 16 October 2007, he asked for the 2nd payment from the Defendants. He first met the 2nd Defendant face to face on 11 November 2007. The 2nd Defendant paid the 2nd installment but raised a number of complaints. 33.It is the evidence of PW1 that they managed to speed up the work and all the works had been completed on 25 November 2007. They arranged a contractor to clean the house before handing back the key to the 1st and 2nd Defendants, who were both present. The 2nd Defendant considered that there were further works and improvement to be carried out and agreed that they might keep the key to the Property. PW1 said he and his workers in the next 2 months entered the Property on a number of occasions to follow up the problems. He returned possession and the key of the Property to the 2nd Defendant on 24 January 2008. 34.On cross-examination by Mr. Yip, PW1 corrected himself that on 25 November 2007, the 2nd Defendant did not appear at the Property. It is a few days later when the 2nd Defendant asked him to visit the Property and set out those defects/improvements he required. 35.PW1 said that since the November meeting, starting from 16 December 2007, the 2nd Defendant sent a number of emails to him making further request for remedial works. He said the items of work demanded by the 2nd Defendant increased and on the email dated 27 February 2008, there were total of 57 items of additional works/complaints. PW1 also said the requirement of the 2nd Defendant is peculiar. For example, he would require the underneath part of drawers to be covered by plastic veneer. This was not the usual requirement and other customers did not have similar requests. Nevertheless, they tried the best to satisfy the requirement of the 2nd Defendant and it is not disputed that the Plaintiff had covered the drawers accordingly. 36.Mr. Yip on cross-examination referred to the emails from the 2nd Defendant to PW1, and PW2. Mr. Yip put to PW1 that he had not responded to any of these emails. PW1 said he had explained the position to the 2nd Defendant on site. And on re-examination, it appears that for at least one of the email, the one sent on 13 January 2008, PW1 had responded in writing. 37.PW1 also gave evidence that the B-cabinets in the sitting room are up to the requirement of the 1st Defendant as per the agreed drawing. But he was required by the 2nd Defendant to remove the B-cabinets and to build new ones for the Defendants. As alternative solution, the Defendants would only pay part of the contract price. And to satisfy customer, they agreed if the 2nd Defendant would pay the balance of the contract price, there would waive the fees of B-cabinets and would not remove them from the Property. Since the Defendants failed to pay the balance of the contract price, the Plaintiff considered that they would be entitled to claim the price. 38.Mr. Yip put to PW1 that when he offered to waive the charges of the B-cabinets, he had not imposed any condition that the Defendants should pay the balance of the contract price forthwith. PW1 disagreed. And he stated in cross-examination that the 2nd Defendant promised to pay them the balance some time in January 2008. Mr. Yip further put to PW1 that he had initially agreed to rebuild the B-cabinets. PW1 agreed. PW1 said since the Defendants failed to pay the purchase price, they did not proceed to build the new cabinets. 39.On the charge of insurance premium, PW1 explained that according to their practice, they would agree a lump sum with their customer for arranging insurance to be taken out. Having been advised by solicitor, they agreed that they should only charge their client according to the actual premium paid. The policy has been produced and they agreed to refund a sum of HK$1,200.00 to the Defendants. 40.On the complaint by the Defendants that some of the furniture had touch up on the painting, PW1 explained that some touch up is inevitable. Since the furniture was built in PRC, when they arrived in Hong Kong, notwithstanding the protective wrapping, there could be some slight damage. The Plaintiff would use the original colour paint to touch up minor defects and for major defect, they would replace the whole veneer. In the email from the 2nd Defendant, he only agreed to pay 20% of the original price of some cabinets with the alleged defects. PW1 considered the request of the 2nd Defendant unreasonable. 41.PW1 also said he built all the furniture according to the approved plans. He denied that the sizes or fittings were not correct. 42.In respect of the cracks on the false ceiling and wall, PW1 said these are cracks on the surface painting. He had explained to the 2nd Defendant that due to humid weather in Hong Kong, and that the Property is close to the sea, cracking on painting was possible. They would carry out touch up when the painting and the plastering were sufficiently dry. They had not refused to do some remedial works for the Defendants when necessary. But the request by the 2nd Defendant for a reduction of price was unfair. He also explained that the cracking could take a few months to stabilize and it would be a waste to start touching up the crack too early. 43.And on the tiles and wooden planks purchased for installation in the Property, PW1 said they had calculated the quantity according to the approved plans. He disagreed with the method of calculation by the 2nd Defendant and denied any wastage. 44.As for the ceiling, PW1 emphasized that the original ceiling of the Property was not leveled. This was an existing problem of the Property before they carried out the work. Since they were only instructed to carry out painting work, they could not go as far as to level the ceiling. Further, Flats A & B of the Property were 2 individual units. The Defendants had taken down the partition walls between the Flats to form one big unit. As a result, the beam running through these 2 Flats did not have a straight or perfect matching. Again, it would be a problem from the structure of the Property which they could not remedy by painting work. And PW1 said they were only instructed to carry out painting work in the Property. 45.When he was referred to the photographs from the K&K Architect and Associates report, PW1 disagreed that the defects as suggested by the Architect Report existed when the works were completed. PW1 said the report was prepared on 4 November 2008, almost 1 year from completion. The furniture had been used. Some defects could be due to wear and tear. And given the sharp observation of the 2nd Defendant, he could not have accepted those “defects” if they exist at the time of handover. 46.The Plaintiff also called Mr. 羅志順 (“PW2”). He adopted his witness statement dated 27 May 2009 as his evidence in chief. PW2 is a manager of the Plaintiff. After the initial negotiation with the 1st Defendant, he appointed PW1 to follow up the project. He gave evidence that in October 2007, he was informed that the Defendant was late with the 2nd payment and the 2nd Defendant made a number of complaints. He had followed up the 2nd Defendant for payment. He said he never promised to complete the work on 7 November 2007. He only agreed to try to accommodate their requests and reminded the 2nd Defendant that the day for confirmation of all drawings is only on 10 October 2007 (which should be on 15 October 2007). 47.When he was cross-examined by Mr. Yip, he was referred to his email to the 2nd Defendant dated 2 November 2007. He mentioned therein “We believe the time still be in our control. Of course, we would try to meet your time schedule 7 November 2007 and therefore surely we won’t mind that the air ticket will be as a gift from you to your lovely wife according to our last confirmation for all drawings as at 10 October 2007.” 48.PW2 explained that was exactly what he meant. He would try to meet the schedule but he had not promised to advance the completion date. Accordingly, PW2 said it was unfair for the Defendants to claim against them for the airfare for the 1st Defendant to come back to Hong Kong in November 2007. 49.On the B-cabinets, Mr. Yip put to PW2 that they agreed to waive the fees because they did not wish to remove the B-cabinets and to rebuild a new one. He denied. PW2 repeated that it is a condition for the waiver that the Defendants should pay the balance of the contract price. Since the Defendants had not paid the balance of the contract price, the Plaintiff was not obliged to waive the charges. 50.Mr. Yip also referred to a setoff table prepared by the Plaintiff, which appears as annexure F of the witness statement of the 2nd Defendant. In this setoff table, the Plaintiff had agreed to give further concession to a total of HK$38,148.00. 51.Mr. Yip put to PW2 that he had indeed conceded liability on a number of items when they made “a special offer”. PW2 denied any admission. He emphasized that these were special offer made with a view to resolve the matter as soon as possible. This action had been dragging on for too long and costing them losses. The Defendant’s Evidence 52.There is only 1 witness for the Defendants, the 2nd Defendant himself. 53.The 2nd Defendant adopted his witness statement dated 26 May 2009 as his evidence in chief. There is no dispute on the Agreement and the 1st and 2nd Variations except that the 2nd Defendant maintained the completion day should be on 7 November 2007. He also clarifies that he has to pay for materials purchased by the Plaintiff on behalf of the Defendants in the sum of HK$63,813.00 and air-conditioner work in the sum of HK$14,000.00, while maintaining his claim that there is over-purchase of material. He also confirms that the 1st Defendant has to return to Canada by end of August 2007 and she has communicated with PW1 by long distance calls. Subsequently he had followed up the project in Hong Kong. 54.The 2nd Defendant said when he first visited the Property on 7 October 2007, he discovered that only the walls had been taken down. He also noticed that all the electric appliances such as refrigerator, stoves, washing machine and part of the air-conditioner had not been wrapped. He informed the 1st Defendant and he believed the 1st Defendant had complained to PW1 on or about 8 October 2007. He visited the Property again on 14 October 2007 and found there was no improvement. He issued a complaint email to the Plaintiff to complain and followed up by telephone call on 15 October 2007. He said PW1 agreed to handle the problem and would try to complete the work on 7 November 2007. 55.And the Plaintiff on 24 October asked for the 2nd payment under the Agreement. He replied with email to PW1 enquiring how they would deal with the delay in the project and also asked for the meaning of (中期). In his opinion, not 1/4 of the contracted work had been performed by then. 56.The 2nd Defendant followed up the matter by email on 28 October 2007. He also visited the Property and found that only some items of work were carried out. 57.On or about 30 October 2007, PW2 contacted the 2nd Defendant by email and confirmed that all the electric appliances had been cleaned and wrapped. PW2 again asked for the 2nd payment. On 31 October 2007, the 2nd Defendant replied complaining that the cleaning of the appliances had not been properly done and he was worrying that the electric appliances would not be as durable. He also complained that the Plaintiff engaged some unprofessional workers to carry out work in the Property and he worried that the project could not be completed on 7 November 2007. 58.The 2nd Defendant also referred to the email by PW2 on 2 November 2007 when he confirmed that he would try to complete the work on 7 November 2007. He therefore said the Plaintiff knew that they should complete the work on 7 November 2007. 59.The 2nd Defendant agreed that the Plaintiff intended to handover the Property on 25 November 2007. But there were problems and he refused to takeover. 60.When he was crossed-examined by Miss Leung, he agreed that the 1st Defendant had told PW1 that some of their relatives would take the appliances away. When asked why their relatives had not come to take them away, he then said it was because no one would help to move those electrical appliances. He disagreed with Miss Leung that the appliances were damaged because their relatives did not come to take them away. The 2nd Defendant considered that, since the Plaintiff was in possession of the Property and the appliances were kept there, they were obliged to take good care of them. 61.Miss Leung put to the 2nd Defendant that he had been unreasonable when in one of his email suggested that the Plaintiff should provide him with new set of appliances. The 2nd Defendant said it was a humorous way of responding to the Plaintiff. I only need to repeat that the Defendants only counterclaimed loss of 1 stove which is admitted by the Plaintiff. 62.The 2nd Defendant denied that the work was completed on 25 November 2007. And even after 24 January 2008 when he finally received possession of the Property there were a number of problems remaining. He also explained that he was not trying to delay the payment. But the progress of the project was very slow and there were poor workmanship. After completion, crack appeared on a number of walls. 63.The 2nd Defendant said on 11 November 2007, notwithstanding that not half of the project had been completed, he did paid the Plaintiff HK$140,000.00. And on 25 March 2008, notwithstanding the Plaintiff had not completed all the remedial works, he paid the Plaintiff a further sum of HK$35,000.00. 64.On the claim for the airfare for the 1st Defendant to return to Hong Kong in November 2007, Miss Leung put to the 2nd Defendant that since he was in Hong Kong in November 2007, there is no need for the 1st Defendant to return to Hong Kong for the handover. The 2nd Defendant disagreed. But anyway, it is not in dispute that the 2nd Defendant did not come back on 7 November 2007 but come back 2 weeks later. 65.The 2nd Defendant also complained that when he took over the Property in January 2008, he found there was dust everywhere. He felt that the Property had not been cleaned properly by the Plaintiff. But he was not suggesting that the Plaintiff did not clean the Property before the handover. 66.The 2nd Defendant said the B-cabinets looked like monster and were not presentable. He told PW1 that he would not accept the B-cabinets and they could take it away. Alternatively they had to do it again. PW1 originally promised to rebuild the B-cabinets and would give him a new plan. PW1 did provided him with some drawings in January 2008 and say the B-cabinets could be available in mid-March. He agreed. But on 25 March 2008 PW1 asked for payment. PW1 also said the Plaintiff would not take the B-cabinets away, and would not rebuild them, and would not charge. When cross-examined by Miss Leung, he insisted that there was no condition precedent for the Plaintiff to waive the payment. 67.On his complaint that the Plaintiff had purchased more than enough material for the work, he agreed that there was no agreement on how to calculate the material. No details of the over- purchased material has done given in evidence. 68.Further, the 2nd Defendant had attached to his witness statement a number of emails between himself and the Plaintiff. In each of these emails, there were complaints of defective works done and he also relied on the same as his evidence of the defective works. In particular he referred to his email dated 4 July 2008 which set out 67 items of defects. 69.On cross-examination, he confirmed with Miss Leung that he is not claiming for the rental he had to pay for November and December 2007, when he could not move into the Property. He has clarified that items 40 to 43 of paragraph 13 of the Defence and Counterclaim are related to future expenses. If he had to instruct a contractor to carry out the remedial works in place of the Plaintiff, the Defendants would have to move out of the Property for about 2 months. Accordingly there would be charges for rental, moving fees, storage fees, and after the work he had to change the lock to the main door for security reason. 70.When cross-examined about the B-cabinets, the 2nd Defendant agreed that the plan had been approved by the 1st Defendant. But he did not explain how the products were not built according to the drawings, or why they were not merchantable. 71.And on his 2nd payment of HK$140,000.00, Miss Leung put to him that at the material time, he had to pay about HK$200,000.00 including payment for the air-conditioning system. Hence, he failed to make full payment. The 2nd Defendant denied. And on the further payment of HK$35,000.00, Miss Leung put to the 2nd Defendant that if he was not satisfied with the work, he would not have paid HK$35,000.00. The 2nd Defendant said he knew he had some money to pay to the Plaintiff. But it would not be the amount that they are asking for. Accordingly he only paid HK$35,000.00. He disagreed with the suggestion by Miss Leung that he was satisfied with the work done by the Plaintiff. 72.Miss Leung also pointed out that between February 2008 and June 2008, there were no further complaints by the 2nd Defendant. The 2nd Defendant explained that he had by then returned to Canada. 73.On the payment pattern of the Defendants, Miss Leung put to the 2nd Defendant that since August 2007, the Defendants did not intend to settle the contract price, which was denied by the 2nd Defendant. Miss Leung put to him that he used the excuse of the electric appliances being damaged and there were no progress for not making payment. And when he discovered that the Plaintiff would not carry out the work if he did not pay, then he paid HK$140,000.00. This was denied by the 2nd Defendant. 74.Miss Leung referred to an email from the 2nd Defendant dated 18 June 2008 and put to the 2nd Defendant that he was not willing to settle the balance in the sum of HK$49,960.00 and therefore he counterclaimed for around HK$77,298.00. Again that was denied by the 2nd Defendant. Miss Leung put to him that only in or about 18 June 2008 he increased the number of complaints to 67 items. In truth he did not want to pay the balance. All these were denied by the 2nd Defendant. Expert Evidence 75.The Defendants seek to rely on the Architect Report. The contents were challenged by the Plaintiff and Madam Wong has passed away. The Defendants seek to adduce the report by Mr. Man Wai Chung, the inspector who examined the Property with Madam Wong and had taken photographs in the Property to prepare the Report. 76.Miss Leung challenged the qualification of Mr. Man to be an expert. Mr. Man confirmed that he had not taken any course to study on examination of defects of the Property or procedure for handover of the Property. He was a holder of Higher Diploma in Architectural Study. 77.When Mr. Man gave evidence, he confirmed that he is the person who took the photographs. To that, the photographs could be produced in court. Nevertheless, the comments to the photographs were not prepared by him. Mr. Yip has not asked any question on why he comes to those conclusions. 78.Leaving aside the qualification of Mr. Man, the so-called expert report are basically photographs taken of the Property in November 2008. Comments have been made on each photograph. If I take photograph No. 1 as an example, it is a photograph of the ceiling and light trough. There are 2 remarks to the side of the photograph stating:-
79.The photograph is of smaller than 3R size, and of poor inkjet quality. One has to rely on the person who takes the photograph to understand what the defective works are. And further, if this is meant to be an expert opinion I will have expected that the expert to explain how she/he comes to the conclusion. Brushed mark present is neither here or there unless the expert explains why brushed mark in such surface is a defective works. Uneven or un-straight ceiling cannot be observed from the photographs. And there is no explanation if these are defective works of the Plaintiff. 80.The same observation could be made to all the 218 photographs and comments. The only written notes on the methodology employed by Madam Wong is at the preamble of the report. I only need to quote part of Paragraph 2.2 -
81.Miss Leung submitted that Mr. Man is not qualified as an expert. And further, the report merely contains a lot of photographs and descriptions describing the photographs. There is no opinion stated as to the cause of the alleged defects. I agree with the judgment of Achkner J. in Ollett v. Bristol Aerojet Ltd. which has been reported as Practice Note in [1979] 1 WLR 1197:
82.An expert is not to draw the conclusion for the Court. He should note the relevant findings of fact and state the opinion for the cause of that finding. And it is for this Court to decide if I adopt his opinion. When a report merely set out some facts, and no opinion is expressed, it serves no useful purpose to the Court. 83.The report in its current state is not useful as an expert report. These comments are at best conclusion. But to decide whether I should adopt those comments, I must know the academic or logical reason behind. When no reason was given, the conclusion is not qualified as expert evidence and is practically useless. 84.I accept that an expert could be qualified if he has sufficient working experience. Mr. Man claims to have carried out inspection for defects. But even if Mr. Man could be qualified as an expert, he has not given any evidence on how the conclusion on the report is reached, or the reason therefore. 85.In conclusion, I reject the admission of the Architect Report. It would remain as an exhibit with photographs of the Property taken on 2 November 2008. 86.As such, there is no expert evidence on the defective work as claimed, and there is no expert evidence on the remedial works that had to be carried and the cost thereto. The Defendants have to rely on the evidence of the 2nd Defendant, who is only a factual witness. Issue in Dispute 87.I shall now proceed to consider the issue in dispute. I bear in mind the Joint Issue in Dispute prepared by the parties. 88.It is not really in dispute that the Plaintiff and the Defendants have a contractual relationship governed by the Agreement and the 1st and 2nd Variations. As far as this contract is concerned, the main issue in dispute is how to determine the completion date. And as a related issue, whether there is an oral agreement by the Plaintiff with the Defendants that the completion day has been fixed on 7 November 2007. 89.The 2nd issue in dispute is when the project was completed, 25 November 2007 or 24 January 2008? Paragraph 14 of the Defence and Counterclaim pleaded that the Defendants suffered pain and inconvenience, which I presumed they mean loss of comfort and convenience. Interestingly, general damages has not been not expressively pleaded in the prayer, and the Defendants only claimed damages relating to the defective work in the sum of HK$377,572.00. And as a matter of facts, Mr. Yip has not addressed me on general damages in the closing. So I must presume that paragraph 14 has not been pursued by the Defendants anymore. The agreed completion date would be relevant to the claim of airfare for the 1st Defendant to return to Hong Kong for the handover in November 2007. 90.The 3rd issue in dispute is whether the Plaintiff had agreed to waive the charges for the B-cabinets and whether it could still claim the charges now. 91.The 4th issue in dispute must be the amount of the Counterclaim. Given the position that there is no expert evidence on the defects, the Defendants have to rely on the oral evidence of the 2nd Defendant on the items of defects. There would be difficulties in assessing the loss as there is no expert on what would be the costs for rectifying the defects. It is trite law that I should not adjourn the damages if any to be assessed by Master. I shall come to the very ingenious argument of Mr. Yip on assessing the loss of the Defendants later. 92.For determining the Counterclaim, I do not consider necessary or helpful to go through the Scott Table any more, as there is indeed no evidence to support the defect work itemized in the Scott Table. Both counsels took me through the 43 items of defects/complaints as set out in paragraph 13 of the Defence and Counterclaim. My Findings 93.I shall go through each of the 43 items of Counterclaim as set out in paragraph 13 thereof. The 1st item of Counterclaim is the costs for carry out remedial works for the problem left by the Plaintiff, and the Defendants claimed the amount of HK$179,450.00. There is no particular for this item. To prove this item of claim, the Plaintiff has to rely on the Architect Report and the Costs Report. Since both reports had been extruded, there is in fact no evidence to support the Defendants’ claim. The 2nd Defendant cannot give evidence on the costs of the remedial works if any. 94.Mr. Yip invited me to adopt the evidence of the 2nd Defendant and the photographs produced. He suggested that some defects were so obvious and no expert evidence is required. 95.I agreed that some defects are very obvious such as when an item is not level. Nevertheless, I also need evidence to comment on whether these defects are poor workmanship in light of the contract between the Plaintiff and the Defendants, in particular the contract price, the drawings, and any trade practice. Or it may be a latent defect of the Property as suggested by PW1. What may appear to be unsatisfactory to a layman does not necessarily means that it is defective. There has to be a reason for it to be classified as defective. The 2nd Defendant could not give evidence in these aspects, as these are evidence from expert. And I believe that the whole reason why parties have been granted leave earlier on to introduce expert evidence. 96.And in any event, I need someone to explain to me, if there are defects, what would be the reasonable remedial works that has to be done, and the cost before I could assess the loss. 97.Anyway, from the evidence of the 2nd Defendant, there is no detail of the defective works. I conclude that the Defendants fail to prove there are defects as pleaded in item 1, and no evidence on quantum has been adduced. Accordingly, in respect of item 1, I found that the Defendants have not proved their damages or loss. 98.In respect of item 2 of the Counterclaim, it is not disputed that the Defendants have to reimburse the Plaintiff on the overcharged payment for the 3rd party insurance. 2 insurance policies had been produced when the total premium come up to HK$3,600.00. Miss Leung conceded that a sum of HK$1,200.00 should be deducted. Accordingly, the Counterclaim is allowed at HK$1,200.00. 99.The 3rd item of the Counterclaim is a request by the Defendants to deduct cleaning charges in the sum of HK$2,800.00. Under the Agreement, the Plaintiff shall clean the Property before handing over. It is the evidence of PW1 that the Plaintiff has arranged sub-contractor to carry out cleaning work on November 2007 and have also arranged their contractor’s worker to clean the house on 24 January 2008. I believe his evidence. 100.The 2nd Defendant does not dispute that some cleaning has been done. He only said that he felt the place is dusty. I have no evidence as to how good or how poor is the work being carried out. There is no evidence that the Defendants had to engage cleaners to clear the house again. I accept the evidence of PW1 that the workers had been engaged to carry out the cleaning work and they are entitled to charge the workdone. 101.Mr. Yip has tried to pursue me that there was concession made by the Plaintiff. In the setoff chart prepared by the Plaintiff which I referred to above, the Plaintiff had given a special offer of “less 40%” from the price for cleaning. I note that the offer is marked as “special offer”. I accept what PW2 said, that these are attempted by the Plaintiff to resolve the matter speedily. The offer has nothing to do with defecting work and I do not agree with Mr. Yip that there is any admission or concession made by the Plaintiff. In summing up, I disallow the 3rd item of the Counterclaim. 102.For items 4, 6 and 7 of the Counterclaim, it is the complaint by the Defendants that according to the Agreement, the Plaintiff shall provide new doorframe and doors. It is admitted that the original frames and doors have been retained by the Plaintiff who only repainted the same. Miss Leung rightly conceded that their client is not entitled to claim the charges for these items and accordingly items 4, 6 and 7 of the Counterclaim are allowed as claimed. 103.For item 5 of the Counterclaim, the Defendants claimed a reduction of $10,950.00, being the price of a closet in bedroom 1. It is not very clear as to 2nd Defendant’s complaint as his evidence has not explained why he said the closet is defective. If I refer to his email to the Plaintiff, it appears the complaint related to workmanship, and that there have been touched up on colouring. I need not repeat what I say above that if the workmanship is in issue, there had to be expert evidence. Since there is no expert evidence from the Defendants on the defects, they failed to prove their case. Accordingly I dismiss this claim. 104.For item 8 of the Counterclaim, the 2nd Defendant says the painting for the door and doorframe for toilet at Unit A has not been properly done. Mr. Yip referred to photograph No. 215 of the expert report. It shows that there was incomplete painting to Louver blades on the door. And when PW1 gives evidence, he explained that the photograph was taken from a low angle and the area there has not been painting cannot be seen from normal angle of view. 105.If the Defendants are complaining about workmanship, it is sufficient for me to say that I have no expert evidence to explain whether the back of the blades should be painted. If it should be, it is a minor defect which could not justify a total reduction of the amount. I disallow this item of claim. 106.Item 9 of the Counterclaim relates to the marble surface of washing basin and the cabinet thereunder at the storeroom. The Defendants claim that they are incomplete. Miss Leung submitted that this was never mentioned in the expert report and the Defendant had failed to prove that there are any defects or that they were caused by the Plaintiff. Mr. Yip in his closing referred me to photograph No. 209 of the report. I do not think the photograph shows any defect. The Defendants have failed to prove this item of their Counterclaim and I would disallow this item. 107.For Item 10 of the Counterclaim, the 2nd Defendant claimed that the TV socket installed by the Plaintiff in Bedroom no. 2 could not be used. Miss Leung submits that this has not been mentioned in the Architect Report. Mr. Yip submits that whether a TV socket could be used is just a matter of testing by the Defendants. 108.I agree with Mr. Yip that anyone can tell whether there is signal from a TV socket. But we need a bit more information from someone who knows about electricity and television setting to tell whether these are defective work or whether it is for other reason. I disagree with Mr. Yip that when there is no signal from the TV socket, I could conclude that it is defective workmanship of the Plaintiff. It is not disputed that these TV socket has been installed. The Defendants fail to prove the defect is a result of the poor workmanship of the Plaintiff. Again, there is no evidence of the loss. I disallow this item of the Counterclaim. 109.Item 11 of the Counterclaim relates to the telephone line in Flat A. Miss Leung submitted that this is not mentioned in the Architect Report. And it is the job of the telephone company to connect telephone line. Again that is a matter which I need expert to assess me on the defects and the cost of remedial works. I found that the Defendants failed to prove that the telephone line setting had not been properly set up and I disallow this head of Counterclaim. 110.For item 12 of the Counterclaim, the 2nd Defendant complains that the skirting of the living room and master bedroom are uneven. There were gap and some part of the skirting is missing. My difficulty with the Defendants’ claim is there is no direct evidence on the problem. I suspect the evidence should be covered by the Architect Report, which has been rejected by me. It has not been covered in the witness statement of the 2nd Defendant. 111.Very generally, there are photographs by the 2nd Defendant which he claims to show the defects. But again there is no expert evidence to explain whether these defects are caused by the Plaintiff. The Defendants have not discharged their duty to prove their loss. 112.Further, I have to assess the damages arising from such defects, if proven. As I approach similar claims earlier on, for each defect, there has to be evidence on the remedial works required and the costing. There could be minor defect when no damage or nominal damage would be awarded. It all depends on whether remedial works need be carried out. Since neither the defective workmanship nor the quantum of remedial works have been proven, I therefore disallow this head of the Counterclaim. 113.For items 14 to 17 of the Counterclaim, I am afraid they have the same problem as item 12. There is no specific evidence on the defects. There is no evidence on the remedial works required. Accordingly, I could not assess the loss. I only need to repeat that the Defendants failed to prove each of those heads of damage and or that the defects are caused by the Plaintiff. 114.For items 18 and 19 of the Counterclaim, it is conceded by the Plaintiff that the 2 fluorescent lights in the kitchen and 2 fluorescent lights in the storeroom are original. The Plaintiff conceded HK$400.00 to be setoff from each of those items. Since the Plaintiff has not performed work according to the Agreement, they are not entitled to charge for these 2 items. I allow items 18 and 19 of the Counterclaim. 115.For item 20 of the Counterclaim, the Defendants complain that there is duplication in charging the installing of the sink in the storeroom. Unfortunately, there is no evidence to support this claim. I dismiss the claim. 116.For item 21 and 22 of the Counterclaim, the Defendants complain that the change of telephone main switch and the TV main switch could not be identified by PW1. The 2nd Defendant suspects that the switches have not been built. When PW1 gave evidence, he pointed out the position in the photographs. He explained that at the time when he handed over the Property, he did not know the position as he had checked with his contractor. I accept the evidence of PW1 and that the Plaintiff had carried out those works. It is entitled to the charges. I dismiss the claim items 21 and 22 of the Counterclaim. 117.For item 23 of the Counterclaim, the Defendants claim that the Plaintiff has not worked on the ceiling at the back of 2 loud speakers （背後天花頂沒有做）. I do not quite get what the Defendants meant with that statement. Unfortunately their counsel has not asked the 2nd Defendant to explain the problem when he gives evidence. Mr. Yip in his closing referred to an email by the Defendant to the Plaintiff sent on 4 July 2008. But he is just repeating what was stated in the Counterclaim. 118.In conclusion, I agreed with Miss Leung that the Defendants failed to prove this item of claim and it is dismissed. 119.By item 24 of the Counterclaim, the Defendants claim that the air-conditioner socket of Flat B had not been repositioned. However, there is no evidence by the 2nd Defendant on the original position of the socket to prove that it has not been relocated. It is the evidence of PW1 that the Plaintiff have repositioned this socket. On the balance, I accept the evidence of the Plaintiff. I found that the Defendants failed to prove that the Plaintiff had not carried out the work. Accordingly, this head of Counterclaim should be dismissed. 120.On item 25 of the Counterclaim, it is not disputed that the air conditioning position in Flat A had not been relocated. Accordingly the Plaintiff conceded a deduction of HK$3,500.00. On the relocation of the air-conditioner position at Flat B, the Defendants agree that the work has been done. The 2nd Defendant said the relocation is not necessary. But there is no suggestion that this was not done according to the approved plans and drawings. And he has not explained why it need not be relocated. 121.In any event, matter on whether a construction is necessary would be matter for expert evidence. The Defendants fail to prove that they are entitled to this setoff and item 25 is dismissed. 122.On item 26 of the Counterclaim, the Plaintiff conceded that they lost an electric stove of the Defendants and agreed to pay HK$3,680.00. I allow the claim. 123.For item 27, it is not disputed that as part of the renovation work, the Defendants have instructed the Plaintiff to dispose of 3 wooden doors. On each of the door there is a lock. The 2nd Defendant said he authorized the Plaintiff to dispose of the door but not the locks. They should have removed the locks and returned the same to him. 124.It is the argument of Miss Leung that when the locks are part and partial to the doors, it naturally follows that an instruction to throw away the doors would include the locks. 125.I tried to approach the problem this way. The lock is attached to the door and if the Defendants asked the Plaintiff to throw away the doors only and to keep the locks, it is common sense that removing a lock from the door means additional work. Naturally there would be a separate charge. When there is no suggestion that the lock could be used in a new door, it appears to me that the Defendants could not have agreed to pay for the locks to be removed. Hence, I agree with Miss Leung that when given instruction to throw away the doors would include the locks, unless specified to the contrary. 126.If I were wrong on this point, there have to be a quotation for the value of the locks. I have no idea as to what kind of locks they are and whether they could be used in future. There have been a quotation in the Costs Report but unfortunately that part of the evidence could not be adduced. It is impossible to assess the loss. As the burden rest on the Defendants to prove their damage, they had failed to prove any damage. In those circumstances, I again dismiss this item of claim. 127.For the claim under item 28 to 31 of the Counterclaim, Mr. Yip on 17 August 2010 confirms that the Defendants would abandon those claims. Accordingly I dismiss these items of claim. 128.Item 32 of the Counterclaim relates to damage to the main door and doorframe. Again I have no evidence from the Defendants as to the defect, the degree of damage and the loss. I disallow this head of claim. 129.Item 33 and 34 of the Counterclaim claim that the lower part of the doorframe of the toilet of master bedroom and the toilet of Flat A have not been repaired. Again there is no evidence on the damage, the degree of damage and the loss. I disallow both items of Counterclaim. 130.By item 35 of the Counterclaim, the Defendants claim that the sandstone top of the basin and the sandstone floor of the toilet have been damaged. By item 36, the Defendants claim that the windowsill of the living room was damaged. Again, there is no evidence of damage, the degree of damage and the loss. In any event, for these 2 items, the Defendants said the loss is included in item 1. Given my ruling in respect of item 1 when no damage is awarded, I make no finding of damage for these 2 items and I therefore dismiss these 2 items of Counterclaim. 131.Item 37 of the Counterclaim is the claim for the fees of the Architect Report. Miss Leung submits that it should be part of the cost and should not recover as damages. I agree. In any event, the Architect Report has not been adopted as an expert report and I see no reason why the Defendants could recover such fees. Accordingly, this item should be dismissed. 132.Item 38, 40, 41, 42 and 43 of the Counterclaim have all been abandoned by the Defendants on 17 August 2008 and I now formally dismiss them. That left behind item 39, which is the airfare for the 1st Defendant to come back to Hong Kong in November 2007 for the 1st handover by the Plaintiff. 133.In his closing, Mr. Yip submitted that by supplemental oral agreement made between PW1 and the 1st Defendant, the completion day had been brought forward to 7 November 2007. However, such oral agreement has not been pleaded by the Defendants in their Defence and Counterclaim. Further, the 1st Defendant has not given evidence in court and we have no evidence as to how she reached such an agreement with the Plaintiff. 134.I agree with Mr. Yip that in some of the emails mentioned above, the date 7 November 2007 has been mentioned by the parties. Reading them in detail, I found there are no more than promise that the Plaintiff would “try” to complete on 7 November 2007, but not contractual agreement. And according to the Agreement, the completion day was 60 days from approval of all plans and drawings. All parties are bounded by this expressed provision in the written contract. The agreed completion date is in January 2008. 135.It might be argue that, leaving aside the issue of completion date, if the Plaintiff offered to handover on 25 November 2007, it would be reasonable for the 1st Defendant to return to Hong Kong for the handover. The issue is whether the 1st Defendant has to be present in the handover at all. 136.I agree with Miss Leung’s submission that for taking possession of the Property on completion, it does not require both Defendants to be in Hong Kong. The 2nd Defendant was in Hong Kong at all material time and he has been following up the progress with PW1 and PW2. There is no reason why the 1st Defendant has to come back to Hong Kong. When crossed examined by Miss Leung, the 2nd Defendant did not give a satisfactory explanation why the 1st Defendant has to come back to Hong Kong. Her return is not necessary. 137.In those circumstances, I rule against the claim for this airfare ticket. 138.The Defendants also argue that the Plaintiff has waived the charges for the B-cabinets. They are not entitled to claim the charge again. First, the 2nd Defendant has not demonstrated in Court why he said the B-cabinets are defective. In fact, what he is suggesting is a unilateral waiver on the part of the Plaintiff that they would not re-do the B-cabinets and they would not charge. 139.I see no reason why the PW1 is prepared to waive the charges on behalf of the Plaintiff with no reason. It makes perfect sense that they would waive the charges on condition that the Plaintiff would pay the balance of the price. I believe the evidence of PW1. Since the Defendants have failed to pay, they have not provided any consideration for the waiver and the Plaintiff would be entitled to claim the charges. 140.In his closing, Mr. Yip also argues that, based on the setoff table referred to hereinbefore, the Plaintiff has conceded some defective works and offered to give further deduction and to carry out some remedial works. 12 working days are required for the suggested remedial works. Assuming that a workman costs HK$700/day, the damages would be HK$8,400.00. I do agree that this is a correct approach to assess damages. What Mr. Yip suggests is based on speculation. I reject the suggested method of assessing damages. In any event, as I found earlier, the setoff table only recorded the attempts by the Plaintiff to resolve the matter and not admission of defects. I do not accept the offer of remedial work is relevant to the alleged damages by the Defendants. 141.That basically completed my ruling on the Counterclaim. There has been discussion on over-purchase of materials. Unfortunately, the evidence of the 2nd Defendant is not clear. I could make no award in this item. There were further admission under the Scott Table amounted to HK$11,980.00. In total, I allowed a total sum of HK$32,010.00 on the Counterclaim. 142.As for the claim, given I allow the Plaintiff to maintain the claim for the charges for the B-cabinets, I rule that the Plaintiff should be entitled to a judgment on the claim for $68,700.00. And the Plaintiff should be allowed a judgment for HK$36,690.00 (HK$68,700.00 - HK$20,030.00 - HK$11,980.00) with interest from the date when the claim was brought in the Small Claim Tribunal to today at 8% per annum and thereafter at judgment rate until payment. Costs 143.Ms. Leung submitted that the Plaintiff should be entitled to cost and further, the Defendant should be liable to pay costs on indemnity basis. 144.Miss Leung submits that the Defendants have no intention to pay the balance of the contract price. They have raised all sorts of complaints, and save for a few, they cannot be justified after trial. When the Plaintiff offered to waive the charges of the B-cabinets, the 2nd Defendant seeks a compensation for $120,000 odd. Later on, he increased the complaints to 67 items, and Miss Leung submits that many items are extremely trivial. When the Plaintiff offers to fix the complaints and further reduce the balance to about $10,000.00 in the set off chart, the Defendants still rejected the offer. 145.When the Plaintiff brought this action in the Small Claim Tribunal, the Defendants adduced an expert report with more complaints and filed a Counterclaim for $377,572.00, resulting in the case being transferred to the District Court. Miss Leung submits that this is a tactic by the Defendants to frighten the Plaintiff off as the Plaintiff would incur legal costs in the District Court. 146.Miss Leung refer to Sung Foo Kee Ltd. v. Pak Lik Co. (a firm) [1996] 3 HKC 570 when Godfrey JA said the Court have power to order taxation on an indemnity basis against litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion as to what is at stake. 147.Miss Leung submits that many owners try to get away with renovation fees by Counterclaiming an enormous amount from contractors, complaining of defects and delay and making long pleadings to discourage those less determined contractors to abandon their claim. She also refers me to the judgment of Deputy Judge Carlson in Shun Fai Decoration Handicraft Co. Ltd. v. F & F Investment Ltd. HCA1588 of 2006 when the Honourable Deputy Judge found that the defendant had attempted to present a strong case on paper and perhaps having regards to their social standing relative to that of the plaintiff that they might be able to bully him into submission, ordered the defendant to pay costs on indemnity basis. 148.Mr. Yip submitted that while some of the damages cannot be proved, one cannot say that they do not exist. The complaint by the Defendants is groundless. He also complained that Miss Leung spent a lot of time to cross examine his client to pave way for the application for argument on costs, which prolonged the hearing. 149.First, when a plaintiff is successful with his claim, and a defendant is successful with his counterclaim, the Court could grant cost of the action to the Plaintiff and the Defendant to have the costs solely referable to the Counterclaim. This kind of order does not always give a just result (per Denning L.J., in Chell Engineering Ltd. v. Unit Tool and Engineering Co. Ltd. [1950] 1 A.E.R. 378 at 383). 150.As for costs, I see no reason why the Plaintiff should not be entitled their costs of the action. It is true that the net award in favour of the Plaintiff is less than HK$50,000.00. However, the Plaintiff has rightly brought the action in the Small Claims Tribunal. The action has been transferred to the District Court by reason of the Counterclaim. Hence, even if the Plaintiff recovered less than HK$50,000.00, this is an appropriate case for the court to allow the Plaintiff to recover costs on District Court’s scale. 151.I do not ignore the fact that the Defendants are partly successful with their Counterclaim. The award in the Counterclaim is less than $50,000.00. They should have brought this action in the Small Claims Tribunal. If they should be allowed costs of the action they should only be allowed a sum equal to the award of costs in the Small Claim Tribunal. And in reality, the Defendants fail in almost all the counterclaim items, except for those conceded by the Plaintiff. This is a just case to depart from the usual order and I would allow the Plaintiff to have all the costs of this action including the Counterclaim. 152.On when to order indemnity costs, the learned authors of the Hong Kong White Book 2010 at paragraph 62/app/12 have the following comments:-
153.I have considered in details the evidence of PW1 and the 2nd Defendant on the dispute on work and payment. While I have sympathy with the position of the Plaintiff, I am not persuaded that in lounging the Counterclaim, the Defendants intend to employ it as a tactic to bully the Plaintiff. 154.But in addition, I should comment on the Scott Table and the related documents. Substantial costs must have been spent on the Scott Table. It is wasted because the Defendants do not have any evidence on the damages. 155.But more, if one looks at the Scott Table again, the Defendants have done no more than listing the 218 items of alleged defects as set out in the Architect Report. The solicitors acting for the Defendants have not contributed any effect to make this a usable table for the Court. And on the first day of the hearing, I have raised with the parties and indeed, counsels have kindly grouped the items into category which form the basis of a systematic analysis of evidence. This should be done much earlier.156.And for the Joint Statement on the Scott Schedule, which is supposed to assist the trial judge by the parties setting out their respective case on each item on dispute, the Plaintiff has set out in details its factual assertions. The Defendants only repeat the comments from the Architect Report and adding a standard paragraph –
157.This magic paragraph has been repeated over 80 times in the Joint Statement. It is not helpful at all. On the contrary, the Plaintiff has set out in details the issue to be determined for each item. I could only conclude that the effort of the Plaintiff to co-operate with the Defendants to narrow down the issue is completely wasted. This is a clear case that the Defendants are only paying lip service to the case management direction of Master. 158.I should remind practitioners that, after the CJR, there are new amendment to Order 62 rule 5 which includes –
159.I believe the purpose of Order 62 rule 5 (1) (e) is to allow the Court greater flexibility to give indemnity costs when the conduct of the parties so justify. This is one of the situations when I should invoke the new power. 160.Taking all these into account, I would give an order nisi that the Plaintiff should have the costs of the action (including the counterclaim) to be taxed on party and party basis save that all costs of and occasioned by the Defendants’ Scott Schedule, the Plaintiff’s Reply to the Scott Schedule, Joint Statement regarding Scott Schedule should be taxed on indemnity basis. There shall be certificate for counsel for the trial.
Miss Shannon Leung, instructed by M/S Cheung & Choy, for the Plaintiff. Mr. Thomas Yip, instructed by M/S Charles Chan & Co., for the 1st and 2nd Defendants. | ||||||||||||||||||||
Cases cited in this judgment