Lo Tim v. Hang Lee Construction Co and Another

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 551 OF 1972

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Coram: Briggs, J. in Court

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J U D G M E N T

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1.  The plaintiff is a carpenter and at the material time was a sub-contractor engaged on two building sites by the first defendant, who is the agent of the second defendant: the latter being responsible for the construction. The second defendant really does not come into the picture at all. They have taken no part in these proceedings.

2.  A written agreement was entered into between the plaintiff and the first defendant on November 1st 1970. This agreement sets out the terms on which the work was to be performed by the plaintiff. Attached was a list called Form of Work Price List. This sets out a number of different jobs to be done and the price per cheng or hundred square feet per job. The prices were settled by the plaintiff after he had visited the sites, and agreed to by the first defendant. The contract definitely states that the prices include the “materials used, equipment, tools and workers”. This means, I take it, that the plaintiff would be responsible for hiring and paying the workers necessary for the work to be done.

3.  There is one provision of this contract which is of importance to this case, and that is that if the plaintiff “sends too few workers to the site, and insufficient number of workers are doing the work and in spite of oral warning administered by the site foreman, [the plaintiff] still fails to send additional workers within 24 hours .….. [the first defendant] within 24 hours or any time without informing [the plaintiff] [may] contract [the work] out to some one else: or [the first defendant] shall engage workers themselves to carry out the work on behalf of [the plaintiff]”.

4.  This contract was not prepared by a solicitor and it contains several terms which are of the nature of a penalty: indeed the terms could operate in a very harsh manner to the disadvantage of the plaintiff. However we are not concerned with that. It is only the terms quoted above which need bother us in this case.

5.  The plaintiff started work. Despite the contract’s terms the wood necessary for the job was provided by the first defendant. The nails and equipment including two electric lathes, were provided by the plaintiff, who engaged workmen.

6.  From time to time the first defendant would supply the plaintiff with sums of money which he, the plaintiff used to pay the wages of his workmen and himself. This is a not uncommon practice in this trade: the payment is made on the completion of certain work. The foreman if the first defendant certified that such work had been done and payment was then made to the plaintiff.

7.  The first defendant’s case is that as from about one month of the signing of the contract they began to complain that there were not enough men being employed on the site. In March 1971 a different method of payment was agreed to. It seems that the plaintiff had not enough money to meet the wages bill so it was agreed that the workmen who had of course been engaged by the plaintiff should be paid directly by the first defendant.

8.  So matters continued until May 1971. In the contract of November 1st 1970 no dates are given. There is no provision that the work must be completed by a certain period of time. The first defendant were of opinion that the workwas being delayed because the plaintiff would not employ enough workmen at the sites. On May 16th 1971 the first defendant induced the plaintiff to sign a document which states that he, the plaintiff, agreed that he would complete the Form Work at one of the sites within 15 days from that date. This is not a contract. It is more in the nature of a warning.

9.  The evidence leaves me uncertain whether the work was in fact completed within the time stated. And I only mention this fact because if shows that the plaintiff was well aware of the complaints of the first defendant.

10.  On June 10th 1971 the first defendant acting under the contract of November 1st of the previous year took back the work from the plaintiff. This was done by means of a letter which stated that there had been delay due to the lack of workmen on the sites, that frequent warnings of this had been given, and that no improvement in the situation had resulted. And it was for those reasons that the first defendant intended to carry out the work contracted to be done by the plaintiff themselves. The plaintiff left the site soon afterwards. The two electric lathes which had been brought to the sites on the plaintiff’s behalf were retained by the first defendant: one of them being used by them for a short period.

11.  In this Statement of Claim the plaintiff asks for $15,000 which he says is for payments of wages of workers which he, the plaintiff, made on behalf of the defendants. This sum has not been particularised. And I do not think that this sum is owing. The plaintiff was clearly responsible for paying the workers under the contract. The first defendant supplied him with money to effect this and later paid the workers direct. But both these payments were for the plaintiff, made on his behalf. The workers were employed by the plaintiff not by the first defendant. There was no question of the plaintiff paying his workers on behalf of the first defendant.

12.  The plaintiff produced an account which showed that he owed his workers a balance of $58,708.60 as at March 1st 1971. However he added that the first defendant had paid the workers some money directly and there was left a balance of $10,000 owed by the first defendant to him as claimed in the Statement of Claim. I do not follow this at all. The workers were paid with money supplied by the first defendant on the plaintiff’s behalf. I find that this plaintiff had not made out this claim.

13.  The second claim is for $4,500 being the sum spent on nails by the plaintiff under the contract. The contract as I have said clearly includes the price of such materials as nails in the prices given in the annexure as the prices for the jobs to be done. This sum is not recoverable therefore.

14.  The third claim is for $3,800 which is in respect of certain preliminary work done which, I think largely consisted of the sawing of planks into suitable lengths.

15.  Mr. Wong Ching Kwong a director of the first defendant firm said that the money issued to the plaintiff was for the wages of his, the plaintiff’s employees and that would include wages for work done, whether the work was of a preliminary nature or not. Those workers engaged in the sawing work were included as well as those engaged in the Forming Work. I accept that evidence which is only common sense. I do not think that the plaintiff can succeed here.

16.  The next sum is for $50 per diem representing the profit which the plaintiff could have made if he had had his electric lathes handed over to him. There was no evidence to support this claim. The position as to the lathes is this: one has been returned to Mr. Chow; the other remains with the first defendant who in court gave an undertaking to return it to the plaintiff. Again this claim cannot succeed.

17.  The next claim is for $8,400 representing the wages of the plaintiff at $40 per day for the whole time he was working at the site. I do not understand this at all. There is abundant documentary evidence put in by the plaintiff himself to show that he received his wages. And in the witness box he agreed he had been paid.

18.  By an amendment to the Statement of Claim the final claim of the plaintiff is for $25,000. This sum is stated to be owing as “overtime” compensation in favour of the plaintiff for night work as manager. No mention of this made by the plaintiff at the trial. It appears to be another claim for the wages of the plaintiff. I have already dealt with this above.

19.  The plaintiff’s whole claim must therefore be dismissed.

20.  The first defendant counterclaims for $22,980.39. This sum has been adjusted as a result of a minor mistake noticed during the trail. The sum is made up as follows:

21.  The plaintiff admitted that he had been paid $151,145.90 under the contract.

22.  After he left the sites the first defendant carried out a survey of the work done. Using the prices which are contained in the contract the plaintiff had completed work to the value of $128,165.41. If that is taken into consideration the plaintiff owes the first defendant the balance of $22,980.39.

23.  These figures were not challenged by the plaintiff and I have no reason to consider that they are anything but correct (as amended).

24.  There was also a claim for a further sum of $21,296 representing the cost for the completion of the Form Work. This figure makes me wonder whether the plaintiff was not the author of his own misfortunes when he fixed the prices in the contract. Be that as it may the first defendant has, quite rightly in my opinion abandoned that claim. The contract did not bind the plaintiff to complete the work on the sites.

25.  The claim of the plaintiff is therefore dismissed with costs. There will be judgment for the first defendant for $22,980.39.

26.  There is one further point I must make. The first defendant produced certain exhibits which were written in Chinese. Many were not translated and those which did have translations did not have those translations certified by a court translator. This applied amongst other documents to the contract which was the basis of the whole action. The plaintiff produced a translation correctly certified of this document. And the differences in that translation and the uncertified translation put in by the first defendant are most marked and material.

27.  It is disgraceful that documents for use in the Supreme Court should not be properly prepared. And Counsel for the first defendant was embarrassed thereby. This is the fault of the solicitors to the first defendant and I order that he pays the costs of the preparation of the first defendant’s bundle of correspondence personally. Subject to this the first defendant is to have the costs of the counterclaim.

28.  There will no order as to the costs if any of the second defendant.

Plaintiff in person.

Wesley Wong (Deacons) for Defendants