CHIN WING LOK, AMBROSE AND ANOTHER v. CHEUNG CHUI LUNG

DCCJ3573/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3573 OF 2000

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Judgment

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In November 1995 the Plaintiffs employed the Defendant to carry out decoration work on the Plaintiffs' newly rented office premises situated at Suite 1510, 15th Floor, Tung Ying Building, 100 Nathan Road, Tsimshatsui, Kowloon ("the Plaintiffs' premises"). There is no doubt that the Defendant completed the work but the Plaintiffs complain that the Defendant did not perform "in a proper workmanlike manner and/or failed to use good and proper materials".

2. Miss Yeung, counsel for the Plaintiffs, referred me to copious authorities on the duties of a contractor to perform in a proper workmanlike manner, etc. etc. In the context of this case I do not think the principles are of particular assistance to me. For instance, it is all very well to say that a car salesman has to deliver a car of merchantable quality, but if a plaintiff only contracted to buy and paid for a Spartan Citroen 2CV, he cannot expect to get a Rolls Royce Silver Shadow. As I see it, this case turns on the contractual specifications and actual performance - matters of fact.

The Particulars of Claim

3. According to the Amended Statement of Claim, these are the matters I have to consider : -

(a) The Defendant failed to erect reasonable sound proof wall partitions for the rooms.

(b) The Defendant failed to supply book-shelf planks with reasonable strength.

(c) The width of the clearance for entrances to each of the three rooms inside the Plaintiffs' premises was two and a half inches narrower than the agreed 32 inches resulting in grave delay in moving furniture into the rooms.

(d) Fictitious claim of HK$2,000 for a newly installed wooden door, with lock, hinches and paint as per the Defendant's invoice dated 8th December 1995.

(e) Fictitious claim of HK$7,000 for work not done, namely, item 3 on the Defendant's invoice dated 29th November 1995.

"4. By reason of the aforesaid failure of the Defendant to carry out the said decoration work in a workmanlike manner and/or failed to use good and proper materials, the Plaintiff's suffered loss and damage.

Particular of Loss and Damage

(a)	Costs of installing new wall partitions for the rooms	HK$17,500
(b)	Deficiency in door width leading to the suspension of work of two partners (time costs at HK$2,000 per hour for 2 eight-hour days)	HK$64,000
(c)	Proportional wastage of office overhead for Re-decoration work
(Additional electricity charges : HK$35 x 3 full days =		HK$105
Time lost by the Plaintiffs' staffs In the preparation for and follow-up of the re-decoration work at normal scale : HK1,000 x 2 hours = HK$2,000)		HK$2,105"

4. There is also a claim against the Defendant for nuisance because the Defendant bombarded the Plaintiffs with demands for payment of the balance of the contract sum. As can be expected, there was a counterclaim by the Defendant against the Plaintiffs for the outstanding balance. But the counterclaim has been settled out of court. I am, therefore, only concerned with the claim by the Plaintiffs.

The Evidence

5. Mr. Lee Kwok Keung, a certified accountant of the Plaintiffs firm of public accountants, is the only witness for the Plaintiffs. It is common ground that Mr. Lee acted for the Plaintiffs in negotiating and concluding the contract. It is the Plaintiffs' case that Mr. Lee handled the whole matter including the disputes during and after the decoration work on behalf of the Plaintiffs.

6. According to Mr. Lee, at the Plaintiffs' premises, on 21st November 1995, there were exchanges of views between he and the Defendant. Mr. Lee told the Defendant what the Plaintiff would like to have for the Plaintiffs' premises and "the Defendant would advise him the quotation for work." This meeting took about half an hour. At the conclusion of that meeting, the Defendant scribbled a written quotation on a piece of plain paper ("the 1st Quotation") The 1st Quotation is reproduced below :-

"1.	Partitioning 3 rooms	9,500
2.	3 sets of oak doors with frames, locks, paint (finish)	6,000
3.	Remove (and) relay all the carpet on the premises	9,800
4.	Add fluorescent light, each set	600
5.	Alter the ceiling, air-outlet, change the fluorescent light tray not to be done	7,000
6.	Change the plywood boarding	3,500
7.	Wallpapering the partitioned room part	8,500
8.	Plug/Socket each @380	90137532	Cheung Lung (Signature)
		27262708
9.	Change the wallpapers for the whole premises
	add 8, (illegible) 00 21/11/95
	10 days $44,900 plus item 8

Oak cabinet at the main entrance $9,600 ($1,200 x 8 ft.)"

7. On 29th November 1995, the Defendant attended the old office premises of the Plaintiffs ("the premises to be vacated") and presented Mr. Lee with a formal written quotation. According to Mr. Lee, there was a discussion for about 10 minutes on the decoration work to be done. Mr. Lee signed on the formal written quotation ("the 2nd Quotation") and handed to the Defendant the keys to the Plaintiffs' premises. The 2nd Quotation is as follows :-

(Logo ) FAR EAST DECORATION ENGINEERING CO.

FLAT B, 11/F, FOUR FIVE SIX HOUSE,

565-507 NATHAN RD, KOWLOON

TEL : 3-7262708

PAGER : 7638 2718

MOBILE PHONE NO. : 90137532

M. (27225052 Mr Lee)	WORK LIST Date : 29 November 1995

Work Room 1510, 15/F, Tung Ying Building, Nathan Road, Title : Tsimshatsui
Item	Description	Quantity	Unit Price	Total
1.	Use two-sided laminated wood panels which is 1" x 2" in grid as partitions to compartmentalize the space to 3 rooms, labour and material			9,500
2.	Open (sic) 3 doors including frames and locks, labour and material			6,000
3.	Demolish wall, alter the ceiling, relocated the fluorescent light tray, [relocate air outlet(s)], aluminum angle joint fixing, oak skirting etc.			7,000
4.	Change plywood boarding (oak)			3,500
5.	Wall papering the 3 newly partitioned rooms			8,500
6.	Remove the original wallpapers in the 3 rooms, demolish plaster, relaying new wallpapers			3,500
7.	Remove the original carpet, relaying a new carpet for the whole office			9,800
8.	Make a new shelf for documents with fire-resisting panels located at main entrance, oak back panel			9,600
9.	Add 2 plywood shelves			1,000
10.	Add 2 sets of fluorescent light @600 x 2			1,200
				59,600

Completion of the above 10 items of work including labour and material totaling HK$59,600.00. After negotiation between the respective persons-in-charge of both parties, it is agreed that a deduction of HK$3,000.00 is to be made as a discount. The Actual (amount) to be collected is 56,600 (that means, Hong Kong Dollars Fifty Six Thousand Six Hundred Only.)

For Additional jobs, (1. Each plug/socket outlet ON/OFF switch 380 2. Underfloor concealed tube (sic) outlet 550)

Handler : Cheng Lung (signed)
Signed : Cheng Lung (signed)	Signed : (Signature)

8. Both in his written witness statement and in evidence under oath, Mr. Lee said that at about 7 p.m. on 30th November 1995 he went to the Plaintiffs' premises. There, allegedly, Mr. Lee observed that the Defendant had already purchased 3 wooden doors for the three internal rooms to be created by partitioning to the Plaintiffs' premises. His "immediate reaction was that those doors were not suitable ....... because the width was obviously much narrower than those at [the premises to be vacated]". Mr. Lee "immediately told the Defendant the width of those 3 wooden doors were not sufficient and was not in line with what he had talked with him prior to the commencement of decoration work." The Defendant was told to change to wider wooden doors. Allegedly, the Defendant said that the width of the doors was acceptable. Upon insistence by Mr. Lee that the width of the 3 wooden doors was insufficient and that those doors must be replaced, the Defendant allegedly agreed that he would change the 3 wooden doors to normal size ones.

9. On the following day, Mr. Lee "specifically measured the width of the wooden doors at [the premises to be vacated]." The width was 32 inches. He immediately contacted the Defendant over his mobile telephone and informed him of the measurement of the doors (that is, 32 inches). He also informed the Defendant that he would need wooden doors of that width. The Defendant agreed to the request. At this juncture, Mr. Lee presumed that the Defendant would accordingly change the wooden doors pursuant to this measurement. In that afternoon, Mr. Lee attended the Plaintiffs' premises with Chin, one of the Plaintiffs, to check the progress of the Defendant's work. On this occasion, he did not see any wooden doors. Mr. Lee presumed that the Defendant had returned the original wooden doors or otherwise disposed of those doors.

10. On 9th December 1995, Saturday, Chin and Mr. Lee went to the Plaintiffs' premises to conduct the final check of the newly decorated premises. Mr. Lee's evidence is silent on whether he noticed anything wrong with the room doors which presumably had been installed.

11. On Sunday, the 10th December 1995, at about 3 p.m., the Defendant was present at the Plaintiffs' premises for some work when Mr. Lee and Chin were trying to move working desks into the partitioned rooms. For sure, the desks could not get through the room doors. The delivery workers allegedly suggested that since the decoration contractor (the Defendant) was still there, perhaps he (the Defendant) could trim the size of the desks a bit so that they could get through within the door-frames. Mr. Lee's evidence continued that the Defendant refused to trim the desks as suggested by the delivery workers.

12. For the following two days, Chin and Mr. Lee had to postpone all appointments of meeting clients at the Plaintiffs' premises as they did not have a proper office. It is asserted in Mr. Lee's witness statement and his testimony that as a result of the failure to move the working desks into the offices, both Chin and Mr. Lee were hardly able to do any chargeable work. On 13th December 1996, Wednesday, Chin asked a friend's father, one Mr. Poon ("Poon"), who was a retired carpenter/decorator to attend the Plaintiffs' premises. According to Mr. Lee's witness statement, Poon removed part of the door-frame of the rooms and moved the working desks into the rooms. However, according to Mr. Lee's evidence in court, the whole door frame of each room had to be dismantled. The door frames were put back in place after the desks had been moved inside the rooms.

13. After Chin and Mr. Lee had started to use their rooms, they noticed that the sound proofing of the partitioned walls was so appalling that sound proofing seemed to be non-existing. In the evening of Wednesday the 13th December 1995, the Defendant attended the Plaintiffs' premises and demanded payment of the balance of his contract sum. Mr. Lee refused to pay him because of the problem in relation to the width of the rooms and the newly discovered lack of sound proofing in the partitioned walls. On Thursday 14th December 1995, the Defendant went to the Plaintiffs' premises and reiterated his request for payment of the balance of the contract sum. Chin and Mr. Lee then demanded the Defendant to remedy the lack of sound proofing in the partitioned walls. The Defendant allegedly said that, according to his knowledge, partitioned walls for all offices were supposed to be empty in the void. Chin and Mr. Lee told the Defendant that he had to do the remedial work before they could pay him the balance of the contract sum. The Defendant refused to do any remedial work for the partitioned wall. During the next two weeks or so, the lack of sound proofing in the partitioned walls became intolerable. The Plaintiffs decided to employ an independent contractor to install sound proofing material into the partitioned walls. As this was remedial work and the Plaintiffs needed to have the problem fixed as soon as possible, although the quoted price of the contractor was on the high side, the Plaintiffs accepted such quotation and the work was finally done in the last weekend of 1995, that is, from 30th December 1995 to 1st January 1996. The sound proofing remedial work cost the Plaintiffs HK$17,500 which included remedial work required for an unusable book shelves built by the Defendant and a few other minor repairs.

14. Mr. Lee admitted that, apart from the work specified in the 2nd Quotation, the Plaintiffs asked the Defendant to do additional work. Particulars of the additional work are in a further document dated 8th December 1995 ("the 3rd Quotation") prepared by the Defendant. The 3rd Quotation is as follows :-

(Logo) FAR EAST DECORATION ENGINEERING CO.

FLAT B, 11/F, FOUR FIVE SIX HOUSE,

565-507 NATHAN RD, KOWLOON

TEL : 3-7262708

PAGER : 7638 2718

MOBILE PHONE NO. : 90137532

M. (27225052 Mr Lee)

WORK LIST Date : 8-12-95

Work Room 1510, 15/F, Tung Ying Building, Nathan Road, Title : Tsimshatsui
Item	Description	Quantity	Unit Price	Total
	Additional work is as follows :
1.	Make a new oak wood door with oakwood furnish, including lock and hinges, paint (finish)			2,000
2.	4 sets of Quartz Light for the sign board at main entrance			1,520
3.	Add 21 plugs/sockets outlets, change 4 spotlights with 4 ON/OFF switches; change 4 fluorescent lights with ON/OFF switches including labour and material, totaling 29 sets x 380 = 11,020			11,020
4.	Add 6 nos. quartz light transformers (3 rooms and with independent ON/OFF switches for the three rooms and the sitting rooms)			600
5.	Add ceiling framework, ceiling papers			1,500
6.	Change venetian blind for 2 rooms, add air outlet access panel, add plywood boarding with studs, plastic beads, etc.			800
				17,400
7.	Further addition of 2 sets of fluorescent light, including labour and material 600 x 2 = 1200			1,200
				18,640

Handler : Cheng Lung (signed)
Signed : Cheng Lung (signed)	Signed :

15. Regarding remedial sound proofing work, Mr. Lee produced a document from Yip Koon Wah Decoration Eng. Co. that reads :-

"YIP KOON WAH DECORATION ENG. CO.
2814 Kui Wo Hse, Tai Wo Est. Tai Po, N.T.
Tel 650 4721

No. 0190
28 December 1995

19 Tung Ying Mansion Room 1510 work

1. Remove plywood board and install glass wool anew (partition 3 rooms anew)

2. Wall paper anew.

3. Alter and repair ceiling light tray(s) and other work

Above labour and materials total HK Dollars Seventeen Thousand Five Hundred (HK$17,500)"

16. In relation to the additional work listed in the 3rd Quotation, Mr. Lee said that 3 doors were already provided under the 2nd Quotation, there was no need for a third door, thus item 1 in the 3rd Quotation was a fictitious charge. Mr. Lee also alleged that under item 3 in the 2nd Quotation, there was in fact no alteration of the ceiling, hence the sum of $7,000 for that item is not payable. Moreover, Mr. Lee at one stage asserted that the Defendant had not installed as many electricity plugs/sockets as charged for although this complaint, I believe, is not pursued after the parties counted the number of plugs/sockets in the Plaintiffs' premises during the site visit at the end of the trial.

17. The Defendant himself gave evidence. He confirmed that the 1st, 2nd and 3rd Quotations were issued by him. The Defendant's case is that Mr. Lee had very clear ideas and gave detailed instructions about what was to be done to the Plaintiffs' premises. The said Quotations were made in accordance with the orders of Mr. Lee.

18. In particular, in relation to the complaint of sound proofing, the Defendant said in evidence that Mr. Lee never mentioned the requirement of sound proofing, he (the Defendant) was not aware of the need for the standard of sound proofing which the Plaintiffs subsequently alleged had been expected. In relation to the room doors, the Defendant testified that Mr. Lee at first requested the Defendant to cannibalize a door left behind by the previous tenant of the Plaintiffs' premises. Thus the Defendant was only required to obtain 2 sets of complete door with frame and 1 set of door frame (for use with the old door). This arrangement was meant to save the cost of one door and the reference to "3 doors" in the 2nd Quotation in fact meant only the door frame for the third room door. The cost stated in the 2nd Quotation for "3 doors" already reflected the economy. However, later, when the Defendant pointed out to Mr. Lee that the old door left behind by the previous tenant did not match the new doors in colour, pattern or shade, Mr. Lee allegedly agreed that a new third door should be used (with the door frame already included in the 2nd Quotation). Hence there is this reference to and charge for the third door in the 3rd Quotation.

19. With regard to the complaint about the width of the room doors, the Defendant stated that Mr. Lee had not specified the dimensions of the room doors. The doors were not on site on 30 November 1995. Mr. Lee never complained about the doors being too narrow. When the desks arrived on 10 December 1995, the Defendant helped to move them into the rooms by manoeuvring the desks sideways round through the doors. There was no need to cut the desks or dismantle the door frames.

20. As to the book-shelf planks (referred to in the Quotation as boarding), the Defendant stated that the planks he supplied were 1 inch thick and were appropriate. The Defendant admitted that there were indeed minor defects in different components of the decoration work but they were all rectified by or about 10 December 1994 and these minor defects are not among the Plaintiffs' claims.

The Facts

21. Since each side puts forward a wholly different version of events, it is quite clear that the question of credibility must be resolved first.

22. It is my impression that Mr. Lee for the Plaintiffs was well-rehearsed with a number of key events that form the Plaintiffs' case. He was particularly precise with the dates. The Defendant, on the other hand, quite clearly was not so reliable with some dates. However, in other respects, the demeanour of all the witnesses is unremarkable.

23. In assessing credibility, it may be tempting to consider the background of the individual witnesses. For the Plaintiffs, Mr. Lee is a professional, a certified public accountant. On the other hand, the Defendant a decoration contractor is for sure much less educated. Moreover, the Defendant admitted that after the Plaintiff refused to pay the balance of the contract sum he put protest posters on the door of the Plaintiffs' premises and bombarded the Plaintiffs with a large number of fax demands for payment, so much so that he was warned by the police to desist from doing so. It is, therefore, arguable that the Defendant should be regarded as a comparatively less responsible witness. However, the court must guard against prejudice or discrimination on account of class or education. Also, although the court should not appear to encourage the kind of self-help tactics used by the Defendant to chase for account due, the Defendant explained that in late 1995 and early 1996 he was desperate because his workers were pressing for settlement of wages before the Chinese New Year for work done on the Plaintiffs' premises.

24. In the circumstances, I must examine more closely the evidence for objective (rather than impressionistic) basis to determine credibility. After doing so, I find that Mr. Lee's evidence is far from convincing. There are a number of instances where I consider Mr. Lee's evidence highly doubtful.

25. When giving evidence, Mr. Lee repeated several times that he relied on the professionalism of the Defendant and that he (Mr. Lee) did not have any experience nor the time to look into the details of the work to be done. Specifically, at the meeting on 29 November 1995 with the Defendant, Mr. Lee's evidence was that he did not go into the details of the 2nd Quotation; there was no lengthy discussion. However, this story is flawed in two respects. First, it is also Mr. Lee's evidence that before contracting with the Defendant and before buying new desks he took measurement of the door and ordered desks which according to his calculation would go through the door. If this is true, the fact that he had the presence of mind to care for the possibility of desks not being able to get through room doors is inconsistent with the other image of himself being inexperienced in the practicalities of office decoration and being too busy with accounting work.

26. Secondly, Mr. Lee's assertion that he paid scant attention before signing the 2nd Quotation is demonstrably incredible. Looking at the original 2nd Quotation, one finds the added words "relocate air outlet(s)" in Chinese characters in Mr. Lee's own handwriting. Mr. Lee not only spotted the omission in the 2nd Quotation of "air outlet" that was included in the 1st Quotation, he knew even more intimately what was the work to be done for air outlet(s) - "air outlet(s) to be relocated", not for instances "air outlets to be reconfigured" or "to be added". I have little doubt that, contrary to his own evidence, Mr. Lee went through the 2nd Quotation meticulously and he took care to check that the document spelt out in detail what the Defendant was expected to do for the Plaintiffs.

27. Returning to the issue of the width of the room doors, according to the Further and Better Particulars given by the Plaintiffs at the pleadings stage :-

"Answer

a) Prior to commencement of the decoration work, it was agreed between the Plaintiff and the Defendant that the space for room doors would be 32" in width. The Plaintiff then purchased working desks of about 31" in width anticipating the same would have no difficulty in entering the rooms. The space for room doors made by the Defendant were only about 28" in width resulting in the Plaintiff's newly purchased desks could not be moved into the rooms. This significantly suspended the operation of the Plaintiff's office as the rooms could not be used to work nor to meet clients without desks. This lasted for about 3 days until the Plaintiff sought assistance from a carpenter to dismantle the door frames concerned and to move the said desks into the rooms and then to re-assemble the said door frames."

By contrast, Mr. Lee's witness statement says that the width of doors actually installed were 29 1/2 inches wide. Mr. Lee in evidence in court suggested that when on 30th November 1995 he first saw the doors for the first time and noticed that they were not wide enough he immediately remonstrated with the Defendant. The following day, i.e. 1st December 1995, Mr. Lee allegedly took measurement of the main door of the premises to be vacated and got the figure of 32 inches. In fact the premises to be vacated were an open plan office with no rooms, no partitioning. With the measurement Mr. Lee then telephoned the Defendant and instructed the Defendant to install room doors having 32 inches clearance. Now, at this juncture, one should take a step back and ponder.

28. For someone like Mr. Lee who asserted that he had no experience with decoration work it is highly remarkable that on 30 November 1995 upon first sight of the room doors to be installed he immediately noticed that they were too narrow, too narrow by a few inches. Assuming Mr. Lee had eagle's eyes, what was the basis on which he considered that the room doors were too narrow? Well, he said on 1st December 1995 he measured the main door of the premises to be vacated and got the figure of 32 inches and told the Defendant. So, it is reasonable to infer that he had not taken any measurement before. It would also appear that Mr. Lee on the 30th November 1995 had not yet ordered the desks for the rooms. Since Mr. Lee on 30 November 1995 had not yet taken measurement for reference, had not yet ordered the desks, he had no reason to kick up a fuss about the room doors being too narrow. One must not forget that it is Mr. Lee's own evidence that he relied on the Defendant's professionalism/expertise on the details of the decoration work and he also stated in evidence that he thought there was a kind of standard (regarding dimensions) of doors. Why didn't Mr. Lee accept the room doors as he said he saw them on 30th November 1995 and proceed to order desks that would go through those [narrower] doors?

29. Besides, if Mr. Lee had not prior to 30th November 1993 instructed the Defendant to arrange for doors giving clearance for 32 inches, what right did he have to tell the Defendant to replace the doors that he said the Defendant had already got on 30th November 1995 with wider ones?

30. Now, it is also Mr. Lee's evidence that he had told the Defendant before 30 November 1995 what would be required for the width of the doors. If in fact before 30th November 1995 Mr. Lee had got specific measurement of 32 inches for width of room doors and had told the Defendant, why would Mr. Lee need to again on 1st December 1995 measure the main door of the premises to be vacated and gave the measurement to the Defendant by telephone? He could simply on the spot on 30 November 1995 blast the Defendant for not meeting the previously indicated specification of 32 inches for width of the doors. And, if measurement had to be taken obviously it should be by reference to the main door of the Plaintiffs' premises through which the new desks would have to negotiate, not the main door of the premises to be vacated.

31. In my judgment, Mr. Lee's evidence regarding specification for the width of the room door is unconvincing.

32. Mr. Lee's evidence about the difficulty with moving the desks into the rooms is even worse. In his testimony, Mr. Lee made it quite clear that the whole framework of each room door had to be dismantled in order to move the desks into the rooms. He said that this was done under the advice of and by an experienced, retired carpenter. This is inconsistent with his witness statement that only part of the door frame had to be removed. Moreover, the court, counsel and the parties went for a site visit of the Plaintiffs' premises. There, the Plaintiffs pointed out that the desks in use inside the rooms and the doors (with frame) were the ones they had trouble with. As a result of the site visit, the parties agree that in order to move those desks through those doors, all that has to be done is to take the doors off the hinges and remove one thin stopping edge (about half inch thick) on one side of the door frame. In the circumstances, it is incredible that the experienced carpenter allegedly relied upon by the Plaintiff to indeed get the desks into the rooms had to take the trouble of dismantling the whole door frame. I believe Mr. Lee in evidence exaggerated the Plaintiffs' case. Incidentally, the Defendant alleges that the desks that were in the rooms seen during the site visit were not the desks he helped to move.

33. According to Mr. Lee in the witness box, in order to have good sound proofing for the room partitioning, the original partitioning put up by the Defendant had to be taken down and new partitioning with glass wool stuffing added inside had to be put up. His evidence is that he actually observed for a while the contractor doing the work. This is consistent with the quotation from Yip Koon Wah Decoration Eng. Co. and the pleadings. However, at the site inspection, it was shown to the court and for all to see that glass wool stuffing could simply be added by taking off one side of the partition wall. The court was told that any part of one side of the partition wall could be removed right away for the court to see the glass wool inside. There was no need to dismantle the whole partition structure to put in sound proofing material. In fact, Mr. Lee's witness statement says that the Plaintiffs employed "an independent contractor to install the sound proofing material into the partition walls." So, again, Mr. Lee in the witness box exaggerated.

34. The alleged problem of plywood boarding for wall shelves was brought up to show poor workmanship on the part of the Defendant. Indeed, during the site inspection, the court noted that the boarding for the top shelves had to be given additional support in the middle of the length from underneath. However, it was also noted that whereas the boarding for the lower shelves were short pieces rested on and within a wooden framework left by the previous tenant, the top shelves were extra and placed above the old wooden framework. These top shelves, without additional support from underneath, span over six feet in length. One just have to look around the bookshelves in judges chambers and libraries to see the span of book shelves. Clearly a span of six feet without support underneath along the length would result in the boarding not being able to hold straight horizontally with its load. But, according to the quotations, the Defendant only undertook to provide the "boarding". The Defendant did not undertake to build an extension to head level of the waist high wall book shelves left by the previous tenant. In any case, the Plaintiffs got someone to solve the problem by putting up some sticks from the old wooden framework to support the top shelves.

35. Lastly, the Plaintiffs accused the Defendant of charging $7,000 for work under item 3 in the 2nd Quotation that was not in fact done. This accusation can be disposed of simply by reference to the fact that the Plaintiffs has paid into court (an amount which does not concern me) to settle the Defendant's counterclaim for balance of the contract sum and the Defendant has accepted such payment. In the circumstances, any claim for over-charging (or under payment) must fall by the way side. Nevertheless, to appreciate the true nature of the Plaintiffs' case in general, I propose to look into this particular item a little further. Work under item 3 includes "Demolish wall, alter the ceiling, relocate the fluorescent light tray, relocate air outlets, aluminum angle joint fixing, oak skirting, etc." The Plaintiffs' premises did have a brick wall that divided the place into roughly two halves. There can be no doubt that the Defendant did demolish this wall. This work must be the most laborious portion of item 3 and for this part of the work a substantial portion of the $7,000 is payable. It is true that the Defendant did not alter the ceiling, relocate the florescent light tray or relocate air outlet. But this is because the management of the building forbade any interference with the structure of the false ceiling. The prohibition became known only after the parties had agreed to do work in accordance with the 2nd Quotation. So it is not a case of the Defendant deliberately omitting to do the work. There is absolutely no question of the Defendant making a "fictitious" claim.

36. In the light of the foregoing, it appears abundantly clear to me that the Plaintiffs complaints against the Defendant about bad workmanship and poor materials are only make-believe.

37. In conclusion, I find the evidence of Mr. Lee unreliable. I believe the Defendant told the truth although he was mistaken on some minor details. Specifically, I find that the parties contracted on the terms as evidenced by the 2nd and 3rd Quotations, no more and no less, in circumstances as stated by the Defendant. I believe it was never within the contemplation of the parties herein that the Defendant should partition the rooms with level of sound proofing higher than that afforded by the materials agreed by the Plaintiffs. I reject the Plaintiffs' evidence that they had through Mr. Lee instructed the Defendant to provide room doors giving 32 inches clearance. In all other respects, I find that the Defendant had performed in accordance with the contract between the parties.

Liability

38. It follows from the findings of facts that the Plaintiffs' claim for breach of contract must fail.

39. As to the claim for nuisance, the Defendant had a genuine claim for balance of contract sum which has only recently been admitted, I see nothing wrong with the Defendant posting a couple of notices of demand on the door of the Plaintiffs' premises. It is not as if the Defendant splashed red paint on the door or put glue into the key hole. The Defendant did for a period of about one month bombarded the Plaintiffs with repetitions demands through fax communication. But, really, the Plaintiffs brought the bother upon themselves. I do not accept that the claim for nuisance is well founded.

Order

40. In the premises, the entire claim by the Plaintiffs is dismissed with costs to the Defendant to be taxed if not agreed. There is certificate for counsel.