孫燕枝 v. Wong Pik Kuen t/a Jin Fung Furniture Centre Formerly Known As Golden Maple Household Centre
|
DCCJ 4415/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO.4415 OF 2008 ______
Coram: Master B. Mak in Court Date of Hearing: 14th October 2010 and 22nd November 2010 Date of Handing down of Judgment: 17th December 2010 _______________________________ ASSESSMENT OF DAMAGES _______________________________ Background 1.This is an assessment of damages of the Plaintiff’s claim against the Defendant. 2.Interlocutory Judgment was entered on 16th December, 2008 with damages to be assessed due to her failure to give notice of intention to defend. 3.The Defendant’s application to set aside the said Judgment was dismissed by Master S. Lo on 26th March 2010. 4.At the hearings on 14th October 2010 and 22nd November 2010, the Defendant was absent. I have read the 10th, 11th, 12th, 13th, 14th and 15th Affirmation of Tang Chi Keung Leo regarding service of the Notice of Appointment of Assessment of Damages and other documents and Notice of the adjourned hearing on the Defendant. I am satisfied that due notice of hearing has been given to the Defendant. Therefore, the Assessment of Damages was proceeded in the absence of the Defendant. The Plaintiff’s case 5.The Plaintiff together with members of her family are the registered owners of House 77, No. 583 The Wonderland, Tai Po, New Territories, Hong Kong (“ the said property”). 6.After the purchase of the said property, the Plaintiff on or about 12th January 2008 engaged the Defendant to do declaration works to the said property at the price of $380,000. 7.Under the contract, the Defendant promised to complete the decoration works within 90 days with a grace period of 15 days. 8.The Plaintiff had paid the Defendant the first 3 instalment payments under the contract in the total sum of $210,000. 9.However, the defendant had only carried out a small portion of the works and eventually stopped short of finishing the declaration works under the contract. 10.On 20th May 2008, the Plaintiff's husband on behalf of the Plaintiff engaged one Mr. Tsui Yan Kwai to complete the decoration works unfinished by the Defendant (save and except the construction of a fish pond) at the price of $516,150. This was the lower price obtainable from two different contractors, namely, Kin Sun Eng. Service Co. and Yue Hing Decoration & Engineering Company. 11.Eventually, the electrical wiring works were done by one Chong Wai System Limited instead of by Mr. Tsui at the price of $35,300. For that reason, the Plaintiff only paid Mr. Tsui $466,150. 12.In respect of the construction of a fish pond in the garden, the Plaintiff has engaged one Garden Sensation to do the work at the price of $47,500. After I pointed out to the Plaintiff that the said price included a lot of accessories which were not specified in the contract with the Defendant, the Plaintiff decided to abandon her claim on the fish pond. 13.The Plaintiff called Mr. Tsang Kwok Yin Eric of Assured Reliance (Hong Kong) Ltd to give expert evidence on the state of the decoration works performed by the Defendant. 14.Apart from his other academic qualifications, Mr. Tsang is a full member of the International Institute of Loss Adjusters and holder of a Professional Certificate of Waterproofing Work and a Professional Certificate of Building Inspection and Maintenance. He has been accepted as an expert in the areas of decoration works and water leakage disputes by the Courts of Hong Kong since 2005. 15.Mr. Tsang inspected the said property on 2nd May 2008. He testified that the decoration works contracted to be done by the Defendant were uncompleted and he assessed the value of the works which were done by the Defendant at $50,260. Measure of Damages 16.In the case of a building contract where there is a failure to build at all or in part, the normal measure of damages is the cost to the owner of completing the building in a reasonable manner less the contract price. See McGregor on Damages, 18th Edition at 26-004. 17.I accept that the same principle applies to a contract for decoration as in the present case. Findings 18.I accept Mr. Tsang as an expert in the area of decoration works. 19.In giving his evidence, Mr. Tsang said that the original contract price of $380,000 for the decoration of a 3-storey village house with an area of 700 square feet each with a garden is on the low side. He is of the view that the costs of decoration of the said property should be in the region of $500,000. 20.The Plaintiff has spent $501,450 ($466,150 + $35,300) to finish the works left behind by the Defendant (with the exception of the fish pond). I am satisfied that this is a reasonable sum obtainable in the market. 21.Under the original contract, the Plaintiff has a shortfall of $170,000 to pay. 22.Therefore, I find that the Plaintiff is entitled to recover $331,450 ($501,450 - $170,000) from the Defendant. Interest 23.The Plaintiff is entitled to interest on the said sum of $331,450 at judgment rate from the date of Writ to the date of Interlocutory Judgment and thereafter at Judgment rate until payment. Costs 24.The Defendant should bear the costs of the Assessment of Damages with Certificate for Counsel. 25.I have considered the Plaintiff’s Statement of Costs in respect of works not already covered by any previous costs orders. By summary assessment, I order that the Defendant do pay the Plaintiff costs of this action on works not already covered by any previous costs orders including costs of the Assessment of Damages in the sum of $85,000, to be paid by the Defendant forthwith.
Miss Queenie Lau instructed by Messrs. Y.T. Chan & Co. for the Plaintiff Defendant: absent | |||||||||||||||||||