Teamways Ltd v. Wp Engineering Ltd

DCCJ 2753/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.2753 of 2010

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ASSESSMENT OF DAMAGES

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Introduction

1.This is the assessment of damages of the Plaintiff’s claim against the Defendant in respect of breach of an agreement for renovation works at the premises situated at Nos.93-97 Lockhart Road, Wanchai, Hong Kong (“the Premises”). At all material times, the Plaintiff was and is carrying the business of a restaurant and bar at the Premises under the trade name of “The Bridge”.

2.Interlocutory Judgment was entered on 29^th September 2010 for damages to be assessed and costs upon the Defendant’s failure to give notice of intention to defend. 

3.The Defendant had never attended to any part of these proceedings.  Upon this Court’s request, a search at the Companies Registry was carried out and produced to the Court on the date of assessment which shows the Defendant’s registered office address as at the last Annual Return up to 5 September 2010 remains to be the same as the address for service stated in the Writ of Summons, which is Unit 03, 15^th Floor, Block A, Profit Industrial Building, 1-15 Kwai Fung Crescent, Kwai Chung, New Territories, Hong Kong.   

4.By an Order of Mr. Registrar C Lee dated 12 January 2011, the assessment of damages hearing was fixed for today.  The Order and the Assessment Bundle were served upon the Defendant by leaving the same at its registered office address on 17February 2011.  There is a 4^th Affidavit of Chow Yiu Bun confirming such service.  I am satisfied with the service and proceed with the assessment in the absence of the Defendant.

The Plaintiff’s case

5.On or about 18 March 2010, the Plaintiff and the Defendant entered into an agreement partly in writing and partly oral under which the Defendant agreed to undertake certain renovation works at the Premises (“the Agreement”).  There was a Quotation at pages 66 and 67 of the Trial Bundle setting out 27 items of work with a contract price against each individual item of work.  The total being $335,250 but after discount it comes down to $322,000.   Although the project address stated in the Quotation is 93-107 Lockhart Road, Wanchai, Hong Kong which is not 93-97 as pleaded in the Statement of Claim, I am satisfied that this is the Premises where the renovation work was to be carried out.

6.The Quotation contains the following General Terms and Conditions :-

“(1) All material is included unless otherwise stated.

(2) We need confirmation 3 weeks before the works start on site for preparing the design and material.

(3) All drawings need to be confirmed by the Client.

(4) 50% Downpayment is required before commencing the work.

(5) The Balance is due on a monthly basis according payment schedule.

(6) The work can be completed within 9 week plus approximately 1 week defect work.

(7) If we need to work at Night (10pm – 6am) extra charge of HK$90 per hour/worker will apply. We need to be allowed to work minimum 9 hours per any shift.

(8) Any deposit payable to the Building Management must be paid by the client, if any.

(9) No 3^rd party insurance is included.

(10) The quotation is valid for 14 days.”

7.As pleaded in paragraph 4 of the Statement of Claim, the oral terms of the agreement are :-

“(1) Time is of the essence for the Plaintiff to capture the business potential of the World Cup in June 2010;

(2) All samples of renovation materials need to be confirmed by the Plaintiff;

(3) The Defendant is responsible for submitting the design drawing of the bar counter to the Buildings Department, Fire Services Department and Food and Environmental Hygiene Department for approval;

(4) The Agreement includes the relocation of the air-conditioner to make room for the bulkhead of the smoking room;

(5) The Defendant has to avoid disruption of the Plaintiff’s business at the Premises so that the Defendant’s workers will work from 10:00 am to 6:00 pm at the Premises; and clean up the renovation materials each day.”

8.The Quotation was signed for acceptance by the Plaintiff’s then General Manager Mr. Claudio Conforti who testified in Court today. Pursuant to the agreement, the Plaintiff had made the following payments by cheques  (at pages 70 to 72 of the Bundle), totaling HK$296,000 :-

(a) HK$161,000	(date of cheque : 12 March 2010);
(b) HK$90,000	(date of cheque : 5 April 2010);
(c) HK$40,000	(date of cheque : 17 May 2010); and
(d) HK$ 5,000	(date of cheque : 17 May 2010).

9.As pleaded in paragraph 8 of the Statement of Claim, the Plaintiff paid the Defendant HK$296,000 pursuant to the said Agreement.

10.As pleaded in paragraph 9 of the Statement of Claim, the Plaintiff extended the completion deadline to 20 May 2010 but still the Defendant had refused and failed to complete or commence at all the contractual works under the Agreement.

11.The Statement of Claim contains particulars of each and every allegation of  breach of the Agreement by the Defendant under paragraphs 9, 11 and 12 therein.

12.As pleaded in paragraph 13 of the Statement of Claim, the Defendant ceased to perform its obligations under the Agreement in or about early June 2010 and thereby evinced an intention not to be bound by the Agreement and repudiated the same.

13.As pleaded in paragraph 14 of the Statement of Claim, the Plaintiff accepted the Defendant’s repudiation of the Agreement by refusing to accept or request the Defendant to complete the renovation works under the Agreement.

14.As pleaded in paragraph 18 (which should be numbered as 16) of the Statement of Claim, the Plaintiff suffered loss and damage as a result of the Defendant’s breach of the said Agreement.  The Plaintiff then went on to particularize

the loss and damages under 2 headings, namely, (A) Wasted Costs of $25,500; and (B) Loss of Profit of $136,000.  The total sum is therefore $161,500.

15.In paragraph 15 of the Statement of Claim, it was however pleaded  :-

“In the premises, the Plaintiff is entitled to the return of $245,000 being  the total payment made ($296,000) less total value of completed works($50,900).”

16.In the prayer of the Statement of Claim, it was pleaded :-

“ (1) Refund of $245,000;

(2) Damages of HK$161,500;

(3) Interest;

(4) Further or other relief; and

(5) Costs.”

17.The Statement of Claim was settled by Counsel Mr. Ross Yuen who appeared for the Plaintiff for this assessment of damages hearing.

Cause of action

18.As can be seen from the Plaintiff’s pleaded case, the cause of action being one of breach of contract for services rendered and materials supplied by the Defendant.  Four (4) payments had been made to the Defendant pursuant to the terms of the said Agreement which the Defendant had repudiated.  Such repudiation was duly accepted by the Plaintiff (see paragraph 14 of the Statement of Claim). 

19.However, in the claim for refund of the sum of HK$245,000 under paragraph 15 of the Statement of Claim and in paragraph (1) of the prayer, the Plaintiff is effectively seeking restitution although without expressly pleading such cause of action as an alternative to the main cause of action of breach of contract.

20.At today’s hearing, Counsel for the Plaintiff in his opening submission produced to me a revised amount of calculation on the refund claim for the incompleted works at HK$234,544.  For the sake of completeness, such revised calculation is reproduced as follows :-

“Claim for Refund of Incomplete Works
(1) Total Value of Incomplete Works
(a)	Total Contract Sum before Discount	$335,250.00
(b)	Total Contract Sum after Discount	$322,000.00
(c)	Discount		_______4%
(d)	Total Contract Sum of Incomplete Works	$271,400.00
(e)	Total Value of Incomplete Works after Discount		$260,544.00

(2) Total Value of Completed Works
(a)	Total Contract Sum after Discount	$322,000.00
	Less
(b)	Total Value of Incomplete Works after Discount	$260,544.00
	Equal
(c)	Total Value of Completed Works		$61,456.00

(3) Refund Amount
(a)	Amount Paid	$296,000.00
	Less
(b)	Total Value of Completed Works	$61,456.00
			$234,544.00

21.Counsel for the Plaintiff in his written Opening submission also sets out those items of work which the Defendant had not done at all and those items of work which had either been done unsatisfactorily or intended to do but beyond the extended contractual dead line for completion which the Plaintiff rejected. 

The Evidence

22.The Plaintiff’s witnesses PW1 Mr. Claudio Conforti and PW2 Mr. Cheung Wai Sum (the Expert) testified at the hearing.

23.Mr. Conforti (PW1) was the person who signed the Quotation on behalf of the Plaintiff and had filed his witness statement at Pages 22 to 34 of the Bundle. He confirmed all the four cheques (copies at Pages 70 to 72 of the Bundle) had been given to the Defendant.  Counsel for the Plaintiff, however, had not adduced further evidence from Mr. Conforti to confirm that all those 4 cheques had been cleared by the Bank and moneys passed over to the Defendant.  This is essential to his case of seeking refund.  In the end, I allowed Counsel to re-open the Plaintiff’s case in the afternoon of the hearing and Mr. Conforti was re-called.  The relevant bank statements, upon my direction, were also produced at the hearing as Exhibits P2, P3 and P4.  Mr. Conforti had earlier produced as Exhibit P1 an invoice for HK$2,700 relating to installation costs of a new set of vanity which the Defendant had not installed under Item 19 of the Quotation.

24.Mr. Conforti, apart from other photos in the Expert Report, was shown Photo No.P12 at Page 49 of the Bundle in relation to the exact position of the air-conditioner.  Simply by looking at this photo which is not a 3-dimensional one it is difficult to tell the exact location.  He testified that the air-conditioner was directly above the metal bar where the folding gate was hinged.   The Bulkhead which was     supposed to be built should be immediately above the metal bar all the way up to the ceiling so as to form a smoking room.  Therefore, moving the air-conditioner further inside was needed so as not to obstruct the Bulkhead installation.

25.The Expert Mr. Cheung (PW2) generally affirmed his Report (at Pages 35 to 65 of the Bundle) without supplement.  However, upon my enquiry, he was asked to clarify the position of the air-conditioner as shown in Photo No.P12 (Page 49 of the Bundle).  His answer was that the air-conditioner was located inside the enclosed area where the Bulkhead was required to be built by the Defendant.  He also confirmed relocating the air-conditioner is not required.  This evidence is crucial as one of the alleged oral terms of the Agreement (see paragraph 7 of this Judgment) was that the Defendant was required to relocate this air-conditioner in order to give way for building the Bulkhead from the metal bar up to the ceiling to form a smoking room. Therefore, Mr. Cheung’s evidence is in direct conflict with Mr. Conforti on this issue.

26.In one of the emails dated 18 May 2010 at 4:47 pm (at Page 152 of the Bundle) where the Defendant wrote to Mr. Conforti :-

“In addition please note, relocating the A/C above the folding door is not including in the quotation.  It will cost 5500HK$”

27.Considering this email, I prefer the evidence of Mr. Conforti to that of the expert on the necessity of relocating the air conditioner.  The text message referred to the air conditioner above the folding door.  This is consistent with what Mr. Conforti testified today.  However, I must stress that this finding restricts only to the location of the air conditioner but not as to whether such oral term exists in the contract. 

The Law

28.Counsel for the Plaintiff submitted for my consideration the case of The Hong Kong Society for Rehabilitation –v- Ho Lai Chuen Cadia trading as Resolution Software Consultants  (CACV No.372/2003). I was also referred by Counsel to extracts from Chitty on Contracts 13^th Ed, Vol 1, paras 26-052 to 26-057; 29-055 and 29-06. I have not been assisted by Counsel with any other cases or authorities.

29.The only cited case of The Hong Kong Society for Rehabilitation is an appeal against the Judgment of Mr. Justice Suffiad (HCA No.18618/1998) where the learned Judge ordered the return of a deposit. In that case, the deposit was made by the Plaintiff to the Defendant for installation of a so-called “Roadshow 85” system which is a transportation package system from USA. The system was said to be capable of routing large numbers of vehicles and also it was equipped with an updated road map of Hong Kong.   Though the software system was installed, it did not cater for the purposes which the Plaintiff had made known to the Defendant before purchase. 

30.In the Judgment of Mr. Justice Suffiad at the court below at paragraphs 114 to 116, the learned Judge concluded that the Defendant had failed to deliver a complete system of the “Roadshow 85” system since what was delivered did not include the DAR group order which was an integral part of the system ordered by the Plaintiff.  It was thus not unreasonable for the Plaintiff to accept the repudiation of the Defendant when the Defendant, being a distributor of the system at all times, should have known about the system but only informed the Plaintiff almost at the eleventh hour after the project was purchased and in place a year ago.  The Defendant should have known about the difficulty which had arisen and the Plaintiff should have been told well before it entered into any contract for the purchase of the Roadshow system.  The learned Judge went on to say that had the Plaintiff been informed, it may not have entered into the agreement which it did with the Defendant.  To that extent, the learned Judge concluded there was a misrepresentation.

31.To start with, in the leading House of Lords case of Johnson –v- Agnew [1980] AC 367 where Lord Wilberforce at page 400 said  :

“The general principle for the assessment of damages is compensatory, i.e. that the innocent party is to be placed, so far as money can do, in the same position as if the contract had been performed…….”

32.There is another case of Pamax Limited –v- Cross Max Interiors Limited (HCA No.2181/2002) where Deputy High Court Judge Gill at paragraphs 95 and 96 of his Judgment said  :

“95. This is no less apposite when the measure of damages has to be determined for defective building work. Dealing with such a case, Lord Cohen, in East Ham Corporation –v- Bernard Sunley & Sons Ltd [1966] AC 406, said at p.434 : ‘the learned editors of Hudson’s Building and Engineering Contracts, 8^th ed. (1959) say at p.319 that there are in fact three possible bases of assessing damages, namely, (a) the cost of reinstatement; (b) the difference in cost to the builder of the actual work done and work specified; or (c) the diminution in value of the work due to the breach of contract.  They go on: ‘There is no doubt that wherever it is reasonable for the employer to insist upon reinstatement the courts will treat the cost of reinstatement as the measure of damage.’  In the present case it could not be disputed that it was reasonable for the appellants to insist upon reinstatement and in these circumstances it necessarily follows that on the question of damage the trial judge arrived at the right conclusion.”

96.  In Bellgrove –v- Eldridge (1954) 90 CLR 613, the High Court of Australia after referring to the same point in an earlier edition of Hudson, said at p.617 :

“The measure of the damages recoverable by the building owner for the breach of a building contract is… ……the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract …….””

Discussion

33.In the present case, the Plaintiff having accepted the repudiation by the Defendant, had not arranged other contractors either to rectify the unsatisfactory work or had they engaged other contractors to take over the uncompleted contractual work. The reason given was that the contractual works were intended to capture the business potential of the World Cup event which had passed.   Having said that, I accept that it is natural and reasonable for the Plaintiff not to insist reinstatement and seek such reinstatement costs as their damages.  In such a case, there remain the issue as to whether the general principles of assessment as propounded in Johnson –v- Agnew are to apply or the other two remaining bases of assessing damages in East Ham Corporation (supra) should be adopted. 

34.In the process of assessment of damages, the Court may take note of the cause of action upon which the Interlocutory Judgment was entered, say, be it a tortous claim or a breach of contract action so as to determine the proper approach or basis of assessment.  The Plaintiff’s pleaded case as settled by Counsel Mr. Yuen in the Statement of Claim seeks damages arising from repudiation.  The issue thus arises is whether the Plaintiff could seek refund of the deposit or part thereof on a restitutionary basis whilst seeking damages for repudiation.  In my view, the answer must be in the negative unless the contract is a divisible one to the extent that breach or non performance of one part of it would have no effect on the other parts which are divisible and where consideration had completely failed.  

35.I noted that in the Privy Council case of Shanghai Tongji Science & Technology Industrial Company Limited –v- Casil Clearing Limited, FACV No.13/2003, Mr. Justice Ribeiro PJ at paragraphs 89 and 90 said :

“89. In dealing with this argument, care must be taken to distinguish between cases (i) where the plaintiff makes payment to the defendant pursuant to a subsisting contractual obligation owed by him to the defendant; and (ii) where the plaintiff makes payment to the defendant pursuant to a contractual obligation owed by the plaintiff to a third person.”

90. It is generally accepted that in relation to the first category, a restitutionary claim based on total failure of consideration is excluded during the subsistence of the contract……………”

36.Mr. Yuen, Counsel for the Plaintiff, has not provided me with any other authorities except citing the case of The Hong Kong Society for Rehabilitation (supra) where full refund of deposit by the Defendant to the Plaintiff was ordered without      further additional damages awarded on repudiation.  With respect, I do not think this case is of relevance to the facts of the present case. However, there are other cases which I have not been assisted by Counsel.

37.In the case of Brainchild Productions Limited –v- Kam Kwong Design Company (a firm), HCA 311/1984, which is an action for breach of contract where the Plaintiff alleged failure by the Defendant to erect works by the stipulated time.  Mr. Justice Macdougall, in finding the contract to be an entire contract, said at paragraph 99 of the Judgment as follows :

“99. I agree with counsel for the plaintiff that this was an entire contract. Although the parties had agreed that the plaintiff would pay two sums before the defendant had completed his obligations under the contract and that the balance of the contract price would be paid some days thereafter, I do not think that such an agreement created a divisible contract. This was not a case where certain sums were allotted to separate and distinct works to be performed independently of each other (my emphasis). The contract was not divisible in the sense that it created an obligation to pay for a divisible part of the performance which was independent of the performance of the other parts of the contract.”

38.Further, there are other passages in the Judgment which I found useful for the facts of this case.  At paragraph 93, the learned Judge considered “deposit” which was defined in Chitty on Contracts General Principles 25^th edition para 1971 to be required as a security for completion of the contract by the payer and will be forfeited to the other party if the payer fails to perform his side of the contract.  The learned Judge said :

“….……..It seems to me, however, that this statement of principle must relate only to situations where there are no external circumstances to indicate the nature of payment. If the surrounding circumstances, including the prevailing practice relating to such payments and the reasons therefor, are so well understood by the parties as to eliminate the need for them to state the obvious, I do not think that the parties’ failure to enter into an explicit agreement as to the conditions governing the payment of such a sum requires the court to find that it was a security for the completion of the contract.”

39.Further, at paragraph 107 of the Judgment, in dealing with an issue of pleading raised by Defence Counsel, the learned Judge said :

“………However, no specific reference to general damages was made in the prayer. Counsel for the defendant argued that such an omission precluded the court from making an award of general damages to the plaintiff. His argument was based on the provisions of Order 18 rule 15(1) of the Rules of the Supreme Court. I do not accept this argument. The issue of general damages clearly arose on the pleadings and, in my view, the mere failure of the plaintiff to make this claim the subject of a separate heading of claim in the prayer does not shut it out. In any event the court has power to award damages that the plaintiff has omitted to ask for if the justice of the case so requires. The defendant has not been taken by surprise as counsel for the plaintiff dealt with the claim for general damages in his opening address and the existence of such a claim is clear from the pleadings in general.”

40.The payments totaling HK$296,000 (which consists of a 50% down payment of HK$161,000) made by the Plaintiff were made pursuant to the General Terms and Conditions Nos.4 and 5 and in accordance with a Schedule (at page 68 of the Bundle) attached to the Quotation.   Considering the prevailing practice nowadays for decoration and renovation works in Hong Kong, stage payments with a substantial percentage ranging from 30% to 50% of the entire Contract price as a down payment or deposit made at or prior to the commencement of work are not uncommon.  The balance of the contract price normally would have to be paid according to a fixed schedule whether by reference to time or progress of the work.

41.In the present case, there is no difference.  To decide whether the Agreement in this case is an entire contract or a divisible contract simply by reference to the mode and amount of payment without regard to the contract details and other surrounding circumstances will be unjust.   In the Brainchild case, the agreement there involved contractual sums payable before completion of work and thereafter.  It was found to be an entire contract.  However, the learned Judge opined the situation may be different where certain sums were allotted to separate and distinct works to be performed independent to others.

42.In my view, this is exactly what happened in the present case.  Each of the 27 items of work listed in the Quotation contains an individual fixed amount without reference to other items.  The fact that one particular item of work may, to some extent, in substance link or relate to another item of work does not affect the divisibility nature of the contract as 27 contracts.  Had the parties intended one entire lump sum contract, I would have thought the contract price for each individual item would not have to be stated in the Quotation. 

43.The fact that the discount was given to the total contract sum adjusting it from HK$335,250 down to HK$322,000 rather than given to each individual item is simply for ease of calculation since the end result percentage discount on each item will be the same.

44.The absence of allocation of the amount of the down payment and subsequent payments towards the contractual price of each individual item of work     would not affect the divisibility nature either.   Reason being that each item of the contractual works, though divisible, was to be carried out at or about the same time so as to capture the World Cup event.   To split and allocate payments made against each individual item of work would add nothing but complexity in accounting.

45.I find the Agreement as evidenced in writing by the Quotation at pages 66 to 67 of the Bundle is a divisible contract.

The assessment calculation

46.With the finding of divisibility, it follows that those items of work under the Quotation where performance had not been commenced at all provided no consideration for the moneys paid therefor.  However, there still remains the difficulty in deciding how much the exact amount was out of those payments made to reflect those part or parts of works where consideration had completely failed.                

47.Counsel for the Plaintiff approached the calculation by simply adding up the total contractual value of the 19 items of incomplete works which is HK$271,400.  He then discounted it by 4% (which is the discount rate for bringing the entire original contract sum of HK$335,250 down to HK$322,000) to work out a so-called “value of incomplete works after discount” at HK$260,544 (i.e. HK$271,400 x 4%). He then      took the discounted contractual sum of HK$322,000 (i.e. HK$335,250 x 4%) to deduct such value of incomplete works after discount of HK$260,544 to arrive at the value of completed works to be HK$61,456.    By off-setting such value of HK$61,456 from the actual sum paid of HK$296,000, Counsel arrived at the figure of HK$234,544 to be the amount sought for refund.

48.It is plain and obvious that Counsel’s calculation was based upon a straight calculation by reference to contractual value and discount rather than considering the testimonies of the expert or the expert report.   With respect, I do not agree this is the correct way of calculation.   I would not adopt Counsel’s calculation but would rather      approach the calculation by reference to the Expert’s Report and oral evidence given by the expert Mr. Cheung Wai Sum at this hearing.

49.According to paragraph 4.1 (at page 39 of the Bundle) of the Expert Report, the expert confirmed items 1, 8, 9. 19, 22, 23 and 24 of the works had been completed though three of them, namely, items of 1, 8 and 9 contained defects requiring repair. He gave oral evidence that the repair costs for item 1 is $2,500; item 8 is $1,500 and item 9 is $4,000.  The total repair costs are $8,000.   The expert assessed the total value for these seven items of work done (with defects considered) to be HK$63,850 whereas the contractual sum is HK$67,850. Therefore, the diminution in value is HK$4,000.  

50.On item 19, the assessed value by the expert is the same as the contractual value.  Thus, the Exhibit P1 produced by Mr. Conforti showing $2,700 was spent for replacing new vanity (whole set) on item 19 is not accepted by me in calculation of the amount of damages.

51.In paragraph 4.2 (at page 39 of the Bundle) of the Expert Report, the expert found items 2,  3,  4,  5, 6, 10, 11, 12, 13,14, 15, 16 17, 18, 21, 25, 26 and 27 (total 18  items) had not been executed or properly completed.   He assessed nil value to each of these 18 items. The total contractual sum (before the 4% discount) for these 18 items is HK$267,100. I have considered the report and those photos relating to these items. I accept the evidence of the expert.  I am satisfied that the consideration paid for these items had failed. The Plaintiff should be entitled to whatever value paid for performance of these 18 items. 

52.In my view, the total contractual sum of HK$267,100 for these 18 items should bear the discount of 4% when assessing their true value.  Hence, the discounted contractual value would be HK$256,416 (i.e. HK$267,100 x 4%) of which the consideration had been paid by the Plaintiff to the Defendant out of the down payment and those subsequent payments but had failed.

53.Regarding the 3 items of work, namely, Items 1, 8 and 9, which the Defendant had performed but with defects, the damages would either be the costs of repair of $8,000 or the diminution in value of $4,000.  Since the defects could be repaired and restored to conform with the contractual requirements for the Plaintiff’s use, I am prepared to allow repair costs as damages for these 3 items, which is $8,000. 

54.The Plaintiff’s total amount of damages, in so far as the 27 items of work under the Quotation are concerned, will be HK$264,416 (HK$256,416 + HK$ 8,000).

55.Now I will deal with the other loss and damages which the Plaintiff claims to be arising from the Defendant’s repudiation and being foreseeable. The Plaintiff claims the following :-

(a) Loss of Profits due to 2 days closure of the bar counter estimated at a loss of HK$20,000;

(b) Loss of Profits due to failure to clean up for 38 days at HK$2,000 per day, totaling HK$76,000;

(c) Loss of Profits due to shortage of stools to accommodate 20 customers per night for the World Cup event for 10 nights with an estimate of $200 spending by each customer, totaling $40,000.

56.At the hearing, Counsel for the Plaintiff withdrew the claim for HK$20,000 under item (a) above. 

57.In the absence of any accounting records, I am not persuaded there is enough evidence to support the claim for 38 days loss of profits at HK$2,000 per day.  It is also doubtful that the Plaintiff would allow the alleged failure to clean up to continue for over a month up to 38 days.  I will not allow this item of claim at all.  

58.As regards the alleged loss of profits of HK$40,000 due to non-delivery of stools to accommodate customers for the World Cup event, again there are no accounting documents for me to consider or are there any statistics produced to show customers’ spending.  I will not allow this item as claimed but will summarily assess a sum of HK$10,000 since I am satisfied that there are likely to be some loss.

Conclusion

59.Based on the above, I assess the Plaintiff’s damages in the sum of HK$274,416 ( i.e. HK$264,416 + HK$10,000).

Order

60.I now make the following Orders :-

(a) Damages assessed in the sum of HK$274,416 pursuant to the Interlocutory Judgment dated 29^th September 2010 to be paid by the Defendant to the Plaintiff;

(b) Interest at the rate of 8% per annum from the date of Writ until date  of Judgment and thereafter at Judgment rate until payment;

(c) Costs of this action including costs of this assessment be to the Plaintiff in any event, to be taxed if not agreed; and

(d) There be Certificate for Counsel.

Representation :

Mr. Ross MY Yuen instructed by Messrs. Yip, Tse & Tang, Solicitors for the Plaintiff

The Defendant unrepresented being absent