潘景鴻 v. LEUNG TAK SING, PETER t/a ARCHINTERIORS

DCCJ4446/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4446 OF 2011

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JUDGMENT

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1. This is the trial hearing of a contractual dispute arising from the renovation works agreed to be carried out at Flat B, 22^nd Floor, the Forfar, No. 2 Forfar Road, Kowloon (“the Apartment”).

2. The defendant was carrying on the business of interior design and renovation works.  He was engaged in a project to carry out interior design and renovation works for the Apartment in September 2010.  In this connection, the defendant entered into an agreement with the plaintiff for the latter to do the renovation works according to his design. 

The plaintiff’s case

3. According to the Amended Statement of Claim filed on 24 May 2012, the plaintiff潘景鴻(“Poon”) is claiming for outstanding payment for renovation works done at the Apartment between September 2010 and March 2011 at the request of the defendant Leung Tak Sing Peter t/a Archinteriors (“Leung”) in the sum of HK$378,000.

4. Poon’s claim is based on an agreement evidenced by quotation no 100916-2 dated 24 September 2010 (“the Quotation”) in the sum of HK$478,000.  He later issued 3 invoices nos 110221 for HK$686,500 (“1^st Invoice”), 110222 for HK$75,805 (“2^nd Invoice”) and 110318 for HK$16,250 (“3^rd Invoice”) respectively dated 21 February 2011, 22 February 2011 and 18 March 2011.  His case is that works amounting to HK$778,600 under the 3 invoices had been done but Leung had only paid HK$400,000.  Therefore, Poon is claiming HK$378,600 against Leung in the Amended Statement of Claim.

The defendant’s case

5. According to the Re-Amended Defence & Re-Amended Counterclaim filed on 11 April 2013, Leung’s case is that some of the items in the Quotation were no longer required after the modification for the design plan on 7 October 2010 and HK$50,500 should be deducted from the Quotation price HK$478,000.  Poon orally agreed to give a 5% discount on the Quotation.  Taking into account the deduction and the 5% discount, Leung is only liable to pay Poon HK$406,125 under the Quotation.

6. Regarding the 3 Invoices which cover the works in the Quotation and additional works outside the Quotation, Leung’s position is that he is liable to pay for the additional works outside the Quotation.  These additional works have been identified in Annexure A to the Amended Defence & Re-Amended Counterclaim. 

7. While admitting his liability to pay under the Quotation and the additional works outside the Quotation, he counterclaims HK$181,000 as loss and damage caused by Poon’s delay.

Joint experts’ report

8. The parties have adduced a joint experts’ report prepared by Mr Tang Lim Kit for Poon and Mr Henry Tsin for Leung dated 2 April 2013.  The experts assessed the reasonable valuation of the items of works under the 3 Invoices to be HK$622,350 without the 5% discount alleged by Leung after discarding those items which the experts said they could not assess due to insufficient information.  If the 5% discount is included, the experts’ valuation would be HK$601,731.

9. The experts’ method of assessment was that if an item in the 3 Invoices was the same or substantially the same as an item in the Quotation, the price/unit rate of the item in the Quotation would be adopted.  For an item which had no corresponding item in the Quotation, the price/unit rate of a similar item in the Quotation would be adopted as the basis for making adjustment eg by adopting a pro-rata method. For an item which had no similar corresponding item in the Quotation, the experts would adopt a reasonable price/unit rate eg by reference to the market price.

10. According to the order of Deputy Judge Lui dated 2 December 2013 at pre-trial review, the joint experts’ report is to be admitted as evidence at trial without calling the makers.

Parties’ common grounds at trial

11. In the course of trial, counsel for Poon and counsel for Leung informed the court of the followings in relation to the 3 Invoices:-

(a) Some of the items in the 2^nd Invoice and the 3^rd Invoice are no longer pursued by Poon and the same have been crossed out.  These are the same as those described by the experts as items that could not be assessed due to insufficient information.

(b) For some of the items in the 3 Invoices, Leung has agreed to pay according to the assessment by the experts and each of these has been marked with a tick.  They amount to HK$480,530 according to the experts’ assessment before the application of the 5% discount which is in dispute.

(c) After taking away the items in (a) and (b), these are the disputed items which have been highlighted in orange colour.  They amount to HK$141,820 according to the experts’ assessment before the application of the 5% discount which is in dispute.

The plaintiff’s position at trial

12. Poon’s position at trial is that he no longer insists on claiming HK$378,600 as stated in the Amended Statement of Claim.  He accepts the experts’ assessment without discount at HK$622,350 (ie HK$480,530 + HK$141,820).  After taking into account the HK$400,000 already paid, Poon says he should be entitled to a payment of HK$222,350 from Leung. Poon does not agree that he ever promised a discount would be given to Leung.

Issues at trial

13. The issues for this trial identified by the court are as follows: -

(a) How much should Leung pay to Poon under the 3 Invoices?

(b) Did Poon and Leung ever agree that a 5% discount would be given on the Quotation?

(c) Whether the HK$400,000 already paid by Leung to Poon is sufficient to cover the amount under (a) after determining the existence of discount in (b)?

(d) Was there any delay in completing the renovation works on the part of Poon?

(e) If the answer to (d) is yes, did Leung suffer any damage and if so, how much should Poon compensate Leung?

Witnesses at trial

14. The only 2 witnesses at trial are the plaintiff Poon and the defendant Leung.  Poon adopted his witness statement dated 20 November 2012, supplemental witness statement dated 31 May 2013 and 2nd supplemental witness statement dated 4 February 2014.  Leung adopted his witness statement dated 30 November 2013, supplemental statement dated 31 May 2013 and 2nd supplemental statement dated 4 February 2014.

The defendant’s position at trial

15. I understand that Leung’s original position was that he regarded the Quotation as the basis of his contract with Poon.  For items in the 3 Invoices that were covered by the Quotation, Poon should charge according to the rate in the Quotation.  For items that were outside the Quotation, Poon could charge according to the actual measurement of the works done.  He accused Poon of overcharging in the 3 Invoices and duplication in charging.

16. As pointed out in paragraph 11 above, Leung’s position at trial is that he is now willing pay according to the assessment by the parties’ experts except those disputed items highlighted in orange colour.

17. The disputed items amount to HK$141,820 according to the experts’ assessment before the 5% discount which is in dispute.  They are set out as follows: -

C  泥水工程
6.  公主房廁所門口廣安灰麻石級咀收口包工料	HK$700
7.  走廊客廁級咀收口包工料	HK$300
8.  廚房級咀收口包工料	HK$500
9.  客廁級咀收口包工料	HK$500

E	石膏板
1.  全屋天花新造石膏板	HK$20,500
5.  主廁修補石膏板天花	HK$800
6.  走廊客廁修補石膏板天花	HK$400
7.  廚房修補石膏板天花	HK$400
8.  大廳裝吊燈修補石膏板天花	HK$800
9.  修補原有天花	HK$800

F  木器
女房  4.  新造黑手掃漆床頭櫃連T5光管配白膠片	HK$5,500
5. 新造手掃漆吊盒連T5光管配白色膠片	HK$3,500
飯廳  2.  新造TV圍身板	HK$4,000
廚房  1.  新造啞白色門連框	HK$4,500

G  地板
1.  修補拆牆位置包工料	HK$14,400
2.  全屋腳線板拆裝翻油啞白手掃漆	HK$6,000

H  油漆牆紙
1.  全屋天花鏟底批灰上Nippon白乳膠漆 妥當	HK$12,000
2.  全屋牆身上牆紙人工	HK$22,500
3.  全屋房門連框翻噴啞白手掃漆	HK$3,000

J  電器工程
10. Tel 及Data線喉位	HK$7,000
11. 衣櫃T5光管供電位	HK$9,800

代支
1.  掹皮工程	HK$13,900
5.  KDK抽風機	HK$2,720
主人房加改
3.  電視機底玻璃面舖電白鋁片包工料	HK$2,000
窗簾殼後加
1.  主人房、衣帽間及公主房加窗殼包油漆	HK$3,300
妥當
網絡後加
1.  代買電腦配件包括路由器、電線分線器等	HK$2,000
2.  電腦網絡線測試及安裝妥當人工2天
	___________
	HK$141,820

Discussions

18. Poon has confirmed that the items under the 3 Invoices had been done by him.

19. In light of the different stances of Poon and Leung in relation to the disputed items, I need to set out the same and rule on them individually.

C: 泥水工程： 6. 公主房廁所門口廣安灰麻石級咀收口包工料(HK$700) & C: 泥水工程: 7. 走廊客廁級咀收口包工料(HK$300)

20. Leung’s version is that he did not give instructions to Poon to do the granite sill at the door of the toilet in daughter’s room no 2 or the granite sill at the guest door of the toilet near the corridor.  These items are not in the Quotation.  Either Poon installed these without instructions or he made up these claims.

21. Poon’s reply is that these were done on the instructions of Roy Ma, the assistant designer engaged by Leung.

22. I need to decide whether Roy Ma gave instructions to Poon on these items.  I have come to the view that he did.  I do not think it would be a reasonable suggestion that Poon would do these items without instructions and thus running a risk of not being paid for the same.  Roy Ma was at the meeting attended by Poon and Leung around mid September 2010 for the purpose of discussing the renovation project.  On 22 September 2010, Roy Ma was present when Poon went to the Apartment for inspection and taking measurements.  Leung was the one responsible for the interior design of the Apartment and Roy Ma worked for Leung until he resigned in late November 2010.  He would carry out site inspections on the instructions of Leung.  He was the one to liaise with Poon and check the quality of works done.  He would instruct Poon and answer Poon’s queries in the actual carrying out of works.  It would be possible and reasonable for Roy Ma to give instructions in relation to works outside the Quotation.

23. I have also considered Leung’s argument that he was the one from Archinteriors who could make decisions.  He does not think that Roy Ma could have given additional instructions to Poon.  But this is only Leung’s own belief.  He has not called Roy Ma as witness to testify.

24. As to the allegation that Poon had not done these items of works, I find this not supported by any concrete evidence.

C: 水泥工程: 8. 廚房級咀收口包工料(HK$500)

25. Leung says Poon had not done this item.  The style of design was aimed at making the kitchen door less noticeable.  There was no need to make a granite sill at the kitchen door which would make it more visible.

26. Poon’s reply is that this was done on the instruction of Roy Ma, the assistant designer engaged by Leung.

27. As to the allegation that Poon had not done this item, I find this not supported by concrete evidence.  For similar reasons given under items C6 and C7.  I believe Poon had done this item pursuant to Roy Ma’s instruction.

C: 水泥工程: 9. 客廁級咀收口包工料(HK$500)

28. Leung states that he does not know whether the granite sill at the guest toilet door had been done by Poon or not.  Even if it had been done, he had not requested for this.

29. Poon’s reply is that this was done on the instruction of Roy Ma.  Granite sills were required at the entrances of all toilets and kitchen.  The purpose was to prevent flowing of water from toilets and kitchen into the living room.

30. I find Poon’s explanation reasonable.  For similar reasons given under items C6 and C7.  I believe Poon had done this item pursuant to Roy Ma’s instruction.

E: 石膏板: 1. 全屋天花新造石膏板(HK$20,500)

31. Leung’s version is that he accepted Poon had installed the false ceiling in the daughter’s room and is willing to pay for the same.  But the living room, the master bedroom and the toilets had false ceilings already.  There was no need for Poon to install.

32. Poon agreed that there were existing false ceilings in the living room, master bedroom, daughter rooms no 1 and no 2.  In about late September 2010.  Roy Ma instructed Poon to dismantle the false ceilings and requested new ones to be installed (100 mm below).

33. I find Poon’s explanation reasonable.  The works on the false ceilings can be found in items E1-4 of the Quotation.  Leung must have requested for these items in the first place.  For similar reasons given under items C6 and C7, I believe Poon had done this item pursuant to Roy Ma’s instruction.

E: 石膏板: 5.主廁修補石膏板天花(HK$800), E: 石膏板: 6.走廊客廁修補石膏板天花(HK$400), E: 石膏板: 7. 廚房修補石膏板天花(HK$400), E: 石膏板: 8. 大廳裝吊燈修補石膏板天花(HK$800) & E: 石膏板: 9. 修補原有天花(800)

34. Leung says these items should be included in item E1 above.  The charges for installation of false ceilings should also include the costs of installing the lights in the false ceilings and the costs of repairing.

35. Poon’s explanation is that E5 was necessary after the variation works to the glass curtain and the installation of exhaust fan.  The construction of plasterboard ceilings was done by plasterers while the installation of lights was done by electricians.  They were different trades and therefore different charges.  The works were instructed by Roy Ma. For E6, E7, E8 and E9, Poon’s explanation is similar.

36. I accept Poon’s explanation.  If lights were required to be installed, the false ceilings needed to be repaired after the installation works due to possible damage during the installation process.  It is reasonable for Poon to charge for the costs of repairs.

F: 木器:女房: 4. 新造黑手掃漆床頭櫃連T5光管配白膠片(HK$5,500) & F: 木器:女房: 5. 新造手掃漆吊盒連T5光管配白色膠片(HK$3,500)

37. I understand Leung’s complaint is that item F4 for HK$5,500 is the same item as D3f in the Quotation with quoted price of HK$1,600.  Item F5 for HK$3,500 is the same item as D3c in the Quotation with quoted price of HK$1,000.  Leung is saying that Poon should charge according to the Quotation instead of listing out new prices in the Invoices.

38. Poon’s reply is that there are no corresponding items for F4 and F5 in the Quotation.  There were substantial design changes after the submission of the Quotation.

39. I have compared these 2 items with the items D3f and D3c in the Quotation.  The descriptions are not the same and the dimensions are different.  I accept Poon’s explanation that there were design changes so that the original prices in the Quotation were no longer applicable.  These 2 items in the Invoices had been assessed by the experts which is the common ground.  The experts stated that the details of these items of works could be found in drawings nos IE-04_R3 and IE-05_R3.  I agree that Poon is entitled to charge for the same according to the experts’ assessment.

F: 木器:飯廳: 2. 新造TV圍身板(HK$4,000)

40. Leung’s complaint is that this item was not done.  It is about a timber-cladding which is the same as item D2b in the Quotation with quoted price of HK$4,000.  Wall paper was used instead and this should have been covered by item F for Painting & Wallpaper in the Quotation or covered by item H for Painting & Wallpaper in the 1^st Invoice.

41. Poon says Leung   is incorrect.  This timber-cladding to the wall facing the dining area had been done.  It was covered by textured wallpaper.

42. As to the allegation that Poon had not done this item, I find this not supported by any concrete evidence.  This item of work had been identified by the experts and assessed with reference to drawing no AR-01-R7.  The experts did not say that it duplicated with any other items in the 3 Invoices.  I allow this item.

F: 本器: 廚房 1. 新造啞白色門連框(HK$4,500)

43. Leung’s complaint is that this item was not in the Quotation.  The work required to be done was to add a piece of glass to the existing wooden kitchen door.  He had not authorized or requested Poon to install a new kitchen door.  The glass to be added to the existing kitchen door should have been covered in the glass works in the 2^nd Invoice.

44. Poon’s reply is that this item was done on the instruction of Roy Ma.  The installation of glass mentioned by Leung was additional work which had been settled separately and not covered in the 3 Invoices.

45. As to the allegation that this item was not done, Leung has not produced any concrete evidence.  For similar reasons given under items C6 and C7, I believe Poon had done this item pursuant to Roy Ma’s instruction.  This item had been assessed by the experts with reference to a similar item D6a in the Quotation.  I accept their assessment.

G: 地板: 1. 修補拆牆位置包工料(HK$14,400)

46. Leung’s complaint is that this is already included in the Quotation as item G1 with quoted price of HK$5,000. But Poon is charging HK$18,000 for this in the Invoices.  This was a unilateral price increase by Poon.

47. Poon’s reply is that the price quoted in the Quotation was for minor repairing works excluding the supply of materials.  After the commencement of the renovation works, Roy Ma instructed that all floor areas in the vicinity of the demolished partition walls should be replaced (approximately 20m2).  European “Boen” tiles were used.  The price charged under the Invoices included the supply and installation.

48. The experts stated that the original scope of work covered in the Quotation was for installation only and was unclear.  They agreed that the work under the Invoices included the supply and installation of timber flooring due to demolition and shifted alignment of walls etc.  For similar reasons given under items C6 and C7, I believe Poon had done this item pursuant to Roy Ma’s instruction and should be entitled to HK$14,400 as assessed by the experts.

G: 地板: 2. 全屋腳線板拆裝翻油啞白手掃漆(HK$6,000)

49. Leung’ complaint is that he had never instructed Poon to do this item of work.  Either Poon did this without instruction or he made up this claim.

50. Leung’s reply is that this item was outside the Quotation.  It was done on the instruction of Roy Ma.  The work included the taking down, re-fixing and painting of the existing skirts of the premises.

51. For similar reasons given under items C6 and C7, I believe Poon had done this item pursuant to Roy Ma’s instruction.  This item had been assessed by the experts with reference to drawing no. AR-01-R7 and assessed at HK$6,000.

H: 油漆牆紙: 1. 全屋天花鏟底批灰上Nippon白乳膠漆妥當(HK$12,000) & H: 油漆牆紙: 2. 全屋牆身上牆紙人工(HK$22,500)

52. Leung’s complaint is that these 2 items should have been included in the Quotation as item F1 with quoted price of HK$25,000.  But Poon unilateral raised the price to HK$50,000 in the Invoices.

53. Poon’s explanation is that the price in the Quotation was only for minor repairing work.  After the commencement of the renovation works, Roy Ma instructed that all ceiling areas should be painted with Nippon emulsion paint and all the exposed areas of the walls should be covered with wallpapers.

54. For similar reasons given under items C6 and C7, I believe Poon had done these 2 items pursuant to Roy Ma’s instructions.  They had been assessed by the experts with reference to drawing no AR-01-R7 at HK$12,000 and HK$22,500 respectively.  These are 2 items of works and wider than the original scope in the Quotation.  I accept that Poon is entitled to charge for the same separately.

H: 油漆牆紙: 3. 全屋房門連框翻噴啞白手掃漆(HK$3,000)

55. Leung’s complaint is that for doors that were newly installed, there was no need for spraying.  For old doors and frames that needed spraying, Poon should have already charged for the same under wooden works in the Quotation.  There is duplication in charging by Poon.

56. Poon’s reply is that all the doors were required to be repainted pursuant to the instruction of Roy Ma, except for new doors.

57. Both sides agree that there was no need for painting the new doors.  The only dispute is whether the old doors were painted.  For similar reasons given under items C6 and C7, I believe Poon did this pursuant to Roy Ma’s instruction.  This item had been identified by the experts in drawing no AR-01-R7 and they stated 3 doors should be allowed at HK$1,000 each with a total assessment at HK$3,000.  The experts found that 6 other doors had been valued under other items and had not included the same when assessing this item.  Leung’s allegation of duplication in charging is not justified.  Poon’s charge for this item is not pursuant to the Quotation but pursuant to the Invoices.

J: 電器工程: 10. Tel 及Data線喉位(HK$7,000)

58. Leung’s complaint is that the number of electrical switches and outlets was 39 at the unit price of HK$650. The total amount charged should be HK$25,350.  He says Poon’s charges for electrical works under items J5-10 of the Invoices amounting to HK$30,650 are excessive.

59. Poon’s reply is that this item J10 under the Invoices was done as per drawing no EM-01.  The exact locations were determined and marked on the site.

60. I have to say that Leung’s complaint under this item J10 is vague and not specific enough.  It is mixed with items J5-9 of the Invoices which are not disputed by him.  Leung now agrees to the experts’ assessment HK$500 for each outlet.  The experts had identified the locations of the outlets in drawing no. EM-01.  Leung has not produced any concrete evidence that this item J10 had not been done.  The experts had assessed this item of work to be worth HK$7,000 (ie $500 x 14 outlets).  I accept the same.

J:電器工程: 11. 衣櫃T5光管供電位(HK$9,800)

61. Leung’s complaint is that the T5 fluorescent tubes were replaced by LED lights which were supplied by him. Thus, Poon should not charge for T5 fluorescent tubes.  This item included 28 power supply switches and this was unnecessary because it was only one cabinet.  He only requested for one power supply switch.

62. Poon’s reply is that this item of work was completed according to drawing no LC-01_R3 and various drawings for cabinets including no IE-12_R5 and DT-07.  As to the number of switches, Poon says individual power supply switches were required for every door of the cabinet so that when individual cabinet door was opened, the LED lights inside would be switched on automatically.

63. Looking at this item’s description, Poon is not charging for T5 fluorescent tubes or LED lights.  So it is incorrect for Leung to say that Poon should not charge for T5 fluorescent tubes.  Leung’s allegation is misconceived.  The item is for 28 power supply switches.  The experts had assessed the number to be 28 at the unit price of HK$350 based on drawings no IE-12_R5 and DT-07.  Leung has not produced any concrete evidence to show that the power supply switches had not been installed.  I allow this item as per assessment by the experts.

代支: 1. 掹皮工程(HK$13,900)

64. Leung’s complaint is that the upholstery works were covered in the Quotation as item D2c and item D5a respectively for the sums of HK$30,000 and HK$5,000.  D5a was later changed from upholstery works to aluminum plates and so should be deducted.  The upholstery works in the daughter’s room were not covered by the Quotation. Leung is only willing to pay for the upholstery works in the daughter’s room at HK$3,100.

65. The upholstery works were completed as per Leung’s instructions and drawings including nos DT-07_R1, IE-10_R3, IE-04_R3 and DT-02.

66. The upholstery works had been identified and assessed by the experts in drawings DT-07_R1 (Master Bedroom牀頭: $400 x 24 = $9,600), IE-10_R3 (Master Bedroom牀邊: $400 x 3 = $1,200), IE-04_R3 (Daughter’s Room 1牀頭布: $1,500 x 1 = $1,500) and DT-02 (Daughter’s Room 2牀頭高柜: $400 x 4 = $1,600).  The total should be HK$13,900 as per the experts’ assessment.  The experts did not say this item duplicated with other items in the Invoices.  Leung has not produced any concrete evidence to show that this item of work had not been done.  I allow this item as assessed by the experts.

代支: 5. KDK抽風機(HK$2,720)

67. Leung in his witness statement dated 30 May 2013 states that he agrees to pay for this amount of HK$2,720 for 4 ventilation fans.  I do not understand why this is still an item disputed by Leung.  This item had also been assessed by the experts who also agreed that it should be HK$2,720.

主人房加改: 3. 電視機底玻璃面舖電白鋁片包工料(HK$2,000)

68. Leung admits this item had been done.  But he says that the materials were changed from glass to an aluminum plate.  This was provided by him and Poon should not charge for the same.  The charge for installation should have been included in item D5d of the Quotation with quoted price of HK$3,000.

69. Poon says the original tempered glass supplied by Leung was reflective.  Upon receipt of the apartment owner’s complaint, Leung instructed Poon to purchase a non-reflective glass to replace the one already installed.  It is incorrect for Leung to suggest that glass was replaced by an aluminum plate.  Poon further comment is that this item of work was completed by him on the site on or about 9 March 2011.

70. Despite the disagreement over the scope of works, the experts agreed that based on drawing no IE-08_R3, the size of the aluminum plate should be 1,600 x 2,400 mm and the assessed price should be HK$2,000.  Leung has not produced any concrete evidence to show that the aluminum plate was provided by him.  I allow this item as assessed by the expert.

窗簾殼後加: 1. 主人房、衣帽間及公主房加窗殼包油漆(HK$3,300)

71. Leung’s complaint is that this item is not in the Quotation.  He had never given instruction to Poon to do this item and so should not be responsible for paying the same.

72. Poon’s reply is that this item was requested by the Apartment owner and completed by Poon as per Leung’s instruction/confirmation on site on or about 8 March 2011.

73. The experts agreed that the total length of windows in the master bedroom, walk-in closet and daughter’s room no 2 was about 11 m.  The reasonable rate should be HK$300/m and the assessment was HK$3,300.  I accept that this item of work had been done.  But in cross examination, Poon agreed that it was the Apartment owner who instructed him to do this.  As I am not sure that this item was done with or without the instruction/confirmation of Leung, I do not allow Poon’s claim for this item.

網絡後加:1. 代買電腦配件包括路由器、電線分線器等及2. 電腦網絡線測試及安裝妥當人工2天(HK$2,000)

74. Leung’s complaint is that this item is not in the Quotation.  He had never given instruction to Poon to do this item and so should not be responsible for paying the same.

75. Poon’s reply is that this item was requested by the Apartment owner and completed by Poon as per Leung’s instruction/confirmation on site in about March 2011.

76. The experts said that there was no information to conclude this item had been done or not.  If it had been done, their assessment would be HK$2,000.  In view of this comment, I am not sure this had been done by Poon.  Poon also said in the course of cross examination it was the Apartment owner who instructed him to do this.  As I am not sure that this item was done with or without the instruction/confirmation of Leung (if it was done), I do not allow Poon’s claim for this item.

77. Taking away the last 2 disputed items, I accept that the other disputed items had been done by Poon and they are of the value of HK$136,520 based on the experts’ assessment.

5% discount

78. One of the issues I need to address is whether there was any agreement by the parties on the 5% discount.

79. Leung says the 2 sides agreed that there should be a 5% discount to the Quotation Price of HK$478,000.  This agreement was reached between Poon and Leung’s secretary Alice Ma orally on 29 September 2010. 

80. Poon says that Leung had asked for the 5% discount.  But he explained to Leung that the price quoted by him was already low and this was due to the friendship between Poon and Leung’s father.  Poon did not agree to Leung’s request.

81. I do not accept that there was any agreement on the 5% discount for the following reasons:-

(a)   I do not find it reasonable that an oral agreement would be reached by secretary Alice Chan on behalf of Leung. This is dubious especially when Alice Chan is not called as a witness to confirm this.

(b)  When Poon sent the Quotation to Leung’s assistant designer Roy Ma by e-mail on 2 October 2010, there was no mention of 5% discount in the e-mail or in the attached Quotation.  If an oral agreement had been reached earlier on 29 September 2010, one would expect Leung or Roy Ma to raise this upon receiving the Quotation.  But there is no document showing this.

Outstanding payment under 3 Invoices

82. Items under the 3 Invoices that are not disputed by Leung amount to HK$ HK$480,530.  I have found that out of the items that are disputed by Leung, he should pay HK$136,520.  The total amount that Leung should pay to Poon is HK$617,050 (ie HK$480,530 + HK$136,520).  Leung has already paid HK$400,000.  The outstanding amount due to Poon should be HK$217,050 (ie HK$617,050 – HK$400,000).

Alleged delay by the plaintiff

83. The Quotation states that Poon should complete the works stated therein within 60 working days.

84. Leung says the keys to the Apartment were given to Poon on 4 October 2010.  Poon should have completed the renovation works before mid December 2010.  The actual completion date was in late March 2011.  Poon had delayed for more than 3 months.

85. Leung points out the delay was caused by the followings:-

(a) The furniture ordered by Poon was of defective quality and time was spent on liaising with the supplier.

(b) The number of workers engaged by Poon was insufficient.

(c) Delay by Poon in carrying out of works.

86. As a result of Poon’s delay, Leung says the Apartment owner refused to pay him the agreed amount of HK$630,000 for the renovation works in full.  After negotiation, Leung and the Apartment owner settled their dispute at HK$449,000.  This means he has received HK$181,000 less than expected.  He is counterclaiming this loss against Poon.

Plaintiff’s explanation for delay

87. Poon’s position as stated in the Amended Statement of Claim is that the 60 working days period should be counted from time of receipt of all the design information and drawings from Leung. Poon says the design drawings were given to him on a belated and piece-meal manner throughout October 2010.  In cross-examination, Poon says up to 26 October 2010 he had received about 80% of the design drawings.  The last drawings given to him were nos. IE-22 and IE-23 dated 11 November 2010.

88. Poon explained that the delay in the completion of the renovation works was due to:-

(a) Late supply of design drawings by Leung.

(b) Resignation of Roy Ma in late November 2010 which slowed down the works in December 2010.

(c) Additional requirements and further changes instructed by Leung from time to time.  Most of the works carried out from mid-January 2011 onwards were related to additional and/or variation works instructed by Leung.

(d) Leung had delayed in the supply of decorative materials including light fittings, door locks, wallpapers and materials for fabric upholstery works.

Finding on the alleged delay

89. I am of the view that the 60 working days period should apply on the basis that Leung was able to provide Poon the necessary design drawings and materials timely so that the progress of works would not be interrupted.  I have the impression that Leung had delayed the supply of design drawings and materials.  This can be inferred from the design drawings nos IE-22 and IE-23 dated 11 November 2010 and the e-mail dated 7 January 2011 where Leung’s staff informed Poon of the requirements for upholstery materials.

90. In any event, the 60 working days period was based on the scope of works described in the Quotation.  Leung himself also agrees that upon the request of the Apartment owner, he had required Poon to carry out additional works outside the Quotation.  As can be seen from the 3 Invoices and the experts’ assessment, the scope of works actually carried out is much wider than what is described in the Quotation.  As such, Poon should be entitled to additional time on top of the 60 working days under the Quotation.

91. Unfortunately, the experts instructed by the parties had only assessed the value of the works done under the 3 Invoices but had not given any estimate for the reasonable time for completion of the works done.  In the absence of this time estimate, I am unable to conclude there was delay caused by Poon or not.

92. For the sake of argument, even if Leung can successfully prove there was delay on the part of Poon, he cannot produce sufficient proof that he had suffered a loss of HK$181,000.  He has not produced any documentary proof to show that the Apartment owner had refused to pay him as a result of the delay.  If this was due to the fault of Poon, I find it strange that Leung had not put down his complaint in writing to Poon.

93. I find that Leung’s counterclaim has not been made out.

Conclusion

94. In view of the above analysis, I order as follows:-

(a) Judgment on the claim be entered against the defendant that the defendant do pay the plaintiff the sum of HK$217,050.

(b) The defendant’s counterclaim be dismissed.

(c) Interest on the aforesaid judgment sum be awarded at judgment rate from the date of writ of summons until payment.

(d) There be a costs order nisi to be made absolute within 14 days that the defendant do pay the plaintiff the costs of this action including the costs of defending the counterclaim, to be taxed if not agreed, with counsel certificate.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

95. Lastly, I thank counsel for the plaintiff and counsel for the defendant for their assistance.  They have made thorough submissions to the court and sensibly narrowed down the issues in dispute in the course of trial.  It is sufficient for me to say that their points have been duly considered before reaching my decision.  It is unnecessary and counterproductive for me to set out each and every point taken by them.  I believe the above analysis sufficiently disposes the matter.