LING MAN YIU RAYMOND t/a BUILD TECH ENGINEERING CO v. YAU LUEN METAL WORKS LTD

DCCJ 4198 & 5285/2019 (Consolidated)

[2023] HKDC 1161

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4198 & 5285 OF 2019

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(Actions consolidated by the Order of Master Maurice Lam dated
14^th April 2021)

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JUDGMENT

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1.  These consolidated actions concern disputes arising out of or in connection with a sub-contract (the “Sub-Contract”) by which the defendant engaged the plaintiff to supply and apply a fire protective coating system/fire resistance mastic coating system in a Biodiesel Plant project at the Tseung Kwan O Town Lot No 39 (the “Project”) for the defendant, which in turn was a sub-contractor to the main contractor of the Project, China Harbour Engineering Company Limited (“CHE”).

2.  In these actions, the plaintiff claims:-

(1)  the sum of HK$439,509.50 under the Sub-Contract; and

(2)  the value of a dishonoured cheque of HK$120,000 issued by defendant to the plaintiff dated 31 October 2013 (the “Cheque”) and interest accrued thereon pursuant to sections 57(a)(ii) of the Bills of Exchange Ordinance (Cap 19) from 31 October 2013 to the judgment date and thereafter at judgment rate until payment.

3.  The defendant counterclaims the sum of HK$267,198.48 (or HK$387,194.98 in the event the defendant is found liable under the Cheque) being the sum which the plaintiff owes to the defendant under the Sub-Contract.

4.  On 26 June 2023, the day before the trial was to commence, the plaintiff took out a summons to strike out part of the Amended Defence and Counterclaim filed on 2 June 2023 pursuant to the Order of Deputy District Judge Kenneth KY Lam dated 29 May 2023, on the basis that the amendments made by the defendant at §§9A, 13 and 17 exceeded the scope allowed by the learned Deputy District Judge in his judgment ([2023] HKDC 735) at §§20-23 which concern the propose amendments to the effect that the plaintiff’s “timely settlement” of payments to his sub-contractors being one of the defendant’s conditions of the delivery of the Cheque to the plaintiff.

5.  The defendant’s position is that amendments to the effect that the plaintiff’s settlement of payments to his sub-contractors being one of the defendant’s conditions of the delivery of the Cheque to the plaintiff were allowed on a fair reading of §§20-23.

6.  I dismissed the plaintiff’s summons with costs on 27 June 2023, for the following reasons:-

(1)  The Amended Defence and Counterclaim was filed on 2 June 2023, and the plaintiff filed his Reply on 9 June 2023. I note that the plaintiff sent a letter to the Deputy District Judge to seek clarification earlier. However, there is still no reasonable explanation why he only took out the summons the day before trial.

(2)  On a cursory reading of §§20-23 the judgment, they primarily take issue with the word “timely” but do not expressly take issue with the rest of the proposed amendment. Without determining which is the correct interpretation, it is sufficient for the present purpose to note that that §§20-23 are reasonably capable of giving rise to the interpretation advocated by the defendant.

(3)  In any event, I see no substantial injustice to the plaintiff, in particular given that even before the amendments were introduced, the defendant had adduced two witness statements which expressly made this point, to which the plaintiff also responded in his witness statement (at §28(6)). It cannot be said that the plaintiff was caught off guard by a point suddenly raised by the defendant without any warning.

A.  UNDISPUTED FACTS

7.  Much of the factual background is not in dispute between the parties, which is set out below in this section.

8.  The Sub-contract contains inter alia the following key terms:-

(1)  Clause 2 provides that the amount stated in the quotation is a provisional amount, and the actual area will be measured and calculated in accordance with the construction plan/drawing（報價表中工程量為暫定工程量，實際面積根據施工圖計算實量實度）;

(2)  Clause 3 provides that the total amount of works under the Sub-Contract is approximately HK$1,160,000;

(3)  Clause 5 provides that all the terms and standard of works are subject to the contract between CHE and the defendant（所有條款，收貨標準需根據大判與甲方簽訂合約為準）;

(4)  Clause 10 provides that the plaintiff shall provide all certificates and warranties after completion of works and receipt of all payments（所有證書及保證書乙方於所有工程完成及收妥所有糧款後發放）;

(5)  Clause 12 provides that 5% of each payment shall be withheld as retention, with 2.5% being returned the architect’s approval of the works and the remaining 2.5% to be returned after 14 months（每期糧單要扣起5%作為保固金，2.5%保固金於則師收貨發還，2.5%保固金於14個月滿發還）.

9.  On 9 August 2013, the plaintiff provided a Quotation No FM219/13 (the “FM219 Quotation”) to the defendant by email “to provide labour and material to touch up FM-900 on the structural steel” for the Project for HK$120,000.00. The quotation was accepted by the defendant by email dated 11 August 2013. On 21 September 2013, the plaintiff issued an invoice to the defendant in the sum of HK$120,000 for this work.

10.  On 9 September 2013, the plaintiff issued another quotation No FM225/13 (the “FM225 Quotation”) to the defendant for the provision of labour and materials to apply FM-900 for (a) 1 Hour FRP (Fire Resistant Protection) onto structural steel and touch-up work, and (b) 2 Hour FRP onto structural steel and touch-up work at the Project for HK$12,760.00. The FM225 Quotation was signed by the defendant and returned to the plaintiff. The plaintiff never issued an invoice for work carried out under the FM223 Quotation.

11.  The plaintiff further outsourced his work under the Sub-Contract to Seapark Engineering Company Ltd (“Seapark”) and Nam On Engineering Company Ltd (“Nam On”). The plaintiff failed to settle some of the payments due to Seapark and Nam On, which made complaints to the defendant, leading to the defendant’s direct settlement of sums owed by the plaintiff to Seapark and Nam On on 23 September 2013.

12.  In an email dated 21 September 2013, Lo La Tsung (“Ka Lo”) signing off as “Ka Lo” of the defendant requested the plaintiff to attend the defendant’s office on Monday, stating inter alia that “Please bring the fire protection certificate and we have the cheque ready for you to collect. If you cannot come to our office with following documents, you will be responsible for all the damages that will occur and we will charge for the administrative fee”.

13.  On 23 September 2013, the plaintiff and the defendant had a meeting at the defendant’s office:-

(1)  The plaintiff provided documents dated 18 September 2013 titled “Fireproofing Certificate” signed by the plaintiff to the defendant;

(2)  The defendant gave 2 post-dated cheques (ie a HK$50,000 cheque dated 30 September 2013, and the Cheque dated 31 October 2013) to the plaintiff.

(3)  The plaintiff and the defendant signed a document which was prepared by the defendant confirming that the defendant paid the plaintiff a total of HK$170,000 by the said post-dated cheques as payment for the plaintiff’s works carried out under the Project（“作為支付將軍澳地盤工程費”）.

14.  On the same date, the defendant made payments of HK$154,000 to Seapark and HK$278,280 to Nam On directly to settle fees owed by the plaintiff to them in the Project.

15.  On 30 October 2013, the defendant issued a letter to the plaintiff, stating that the HK$120,000 under the Cheque would only be released until P resolves issues of (1) accounting discrepancies, (2) HK$100,000 and administrative fees being withheld by CHE from the defendant as a result of the plaintiff’s breach of certain labour laws and regulations, and (3) proof of settlement of outstanding sums to Seapark and Nam On, both which continued to request the defendant for direct payment.

16.  On 31 October 2013, when the plaintiff presented the Cheque for payment, it was dishonoured for “PAYMENT STOPPED”.

17.  On 17 November 2013, the defendant issued an interim account statement (the “Interim Account”) to the plaintiff (which the plaintiff counter-signed). For the present purpose, it is sufficient to note that:-

(1)  The value of accumulated works is stated to be HK$2,206,359.50; and

(2)  It recognises the work carried out under the FM219 Quotation as HK$120,000.

18.  The Occupation Permit in respect of the Project was granted on 2 December 2013.

19.  In 2013, the defendant was charged with a series of industrial offences; it was convicted after trial and fined HK$46,500. The defendant’s appeal against the convictions was dismissed by the Court of First Instance on 6 November 2014 in HCMA 3/2014.

20.  On 28 January 2014, the defendant settled a claim for arrears of wages by workers for HK$61,330.00. The defendant wrote to the plaintiff, stating that it would deduct any fines and administrative fees in relation to the Labour Department Case: “LR-24-2013-1917/2022” in accordance with the terms of the Sub-Contract(“根據合約的條文扣回”). In this action, the plaintiff acknowledges that the defendant is entitled to deduct the sum of HK$61,330 from the amount due to the plaintiff but denies the defendant was entitled to deduct any fine/administrative fees under the Sub-contract.

21.  On 22 May 2014, the defendant issued a final account (the “Final Account”) to the plaintiff. The plaintiff did not countersign or indicate his agreement to such.

22.  Apart from the deduction of the sum HK$61,330 (see paragraph 20 above) which was accepted by the plaintiff, the key differences between the Interim Account and the Final Account are that:-

(1)  the accumulated value of works done by the plaintiff decreased from HK$2,206,359.50 to HK$1,893,002.20;

(2)  Deductions totalling HK$333,776.53 consisting of the following:-

(a)  Site Clearance in the sum of HK$2,500.00;

(b)  Sums fined by CHE in the sum of HK$6,100.00;

(c)  Labour Department Fines charged by CHE in the sum of HK$31,000.00;

(d)  Labour Department Fines charged by the defendant in the sum of HK$46,500.00;

(e)  Administration and Legal Fees for Labour Department Summons in the sum of HK$75,000.00;

(f)  D and CHE’s Administration Fees for Labour Department Summons in the sum of HK$60,000.00;

(g)  Legal Fees for Labour Department Summons in the sum of HK$70,000.00; and

(h)  Retention of HK$42,676.53.

23.  Notably, both the Final Account and the Interim Account recognise the work carried out under the FM219 Quotation as HK$120,000.

24.  According to the Final Account, the plaintiff owes the defendant a sum of HK$100,937.33 under the Sub-Contract.

25.  In this action, D produced an unsigned final account (the “Undated Final Account”) in which D makes further amendments to the Final Account, including the reduction of the work carried out under the FM219 Quotation from HK$120,000 to HK$60,000, and further deductions described as administrative charges paid to CHE for outstanding wages owed by the plaintiff to staff and administrative charges for making payments to Seapark and Nam On for the plaintiff etc (the “Deductions”). According to the Undated Final Account, the plaintiff owes the defendant a total of HK$267,194.48. The defendant’s case at trial is based on the calculations in the Undated Final Account.

B.  ITEMS IN DISPUTE UNDER THE SUB-CONTRACT

26.  To sum up, the items in dispute under the Sub-Contract are as follows:-

(1)  What is the value of accumulated works? The plaintiff says it should be HK$2,206,359.50 as stated in the Interim Account. The Final Account states this should be HK$1,893,002.20, while this was further revised down by HK$60,000 in the Undated Final Account by reason of the reduction of 50% of the value of work the FM219 Quotation.

(2)  Is the plaintiff entitled to payment of HK$12,760 for work carried out under the FM223 Quotation?

(3)  Is the defendant entitled to make any of the Deductions?

27.  The defendant also alleges that the plaintiff failed to provide “Proper Certificates” to the defendant. However, it is in fact common ground at trial that, insofar as the quantum/liability under the Sub-Contract is concerned, nothing really turns on this issue. Nevertheless, this issue is dealt with below for completeness.

B.1  The accumulated value of work done

28.  The defendant’s reliance on the Undated Final Account can be shortly dealt with. Mr Lo Kwok Wah (“Mr Lo”) and Ka Lo gave evidence for the defendant. Neither of them was able to explain when or how this Undated Final Account came about, save that it was prepared after the Final Account was issued. There is no explanation from the defendant as to any legal or factual basis why it was entitled to further modify the Final Account after it was issued in May 2014.

29.  On the other hand, the plaintiff relies on the amount stated in the Interim Account. It is accepted by counsel for the plaintiff, Mr Ng, that this being in the nature of interim account, the quantum of the work done may in principle be subject to revision in the final account which was yet to be issued.

30.  However, Mr Ng relies on the fact that the Interim Account was issued on 30 November 2013, which was just a few days before the issuance of the Occupation Permit on 2 December 2013, from which Mr Ng says an inference can be drawn that the plaintiff’s works must have been properly measured before the Interim Account was issued.

31.  With all due respect, I do not think such an inference can be drawn on that basis alone; while the proximity to the issuance of the Occupation Permit may suggest that the Project was completed or close to completion, it does not necessarily follow that the measurement and assessment of works of sub-contractors had been carried out.

32.  The plaintiff’s own evidence (which he gave in re-examination) in this regard is ambiguous. He said that the general practice was for CHE (as main contractor) to measure and assess the value of works done, which could take place before or after the defendant issued interim account statements. However, specifically in respect of the Interim Account, he did not say whether CHE carried out measurement before or after it was issued.

33.  The defendant’s witness Mr Lo’s evidence was that the quantum stated in the Interim Account was not final and subject to revision after the works were properly measured and assessed by CHE and the relevant consultants in the Project, and that even if any measurement had been done before the interim account statements were issued, the defendant tended to take a relaxed attitude in the preparation of the interim account statements, knowing that such could be adjusted in the final account.

34.  Normally in a construction project such as this, one would expect there to be documentary evidence such as reports, certificates, memos issued by various consultants and contractors/subcontractors involved in the project pertaining to the Interim Account and the Final Account. Indeed this was acknowledged by Ka Lo in his evidence at trial.

35.  Regrettably, neither party adduced any such documentary evidence. Assuming the plaintiff was not in possession of such documents, the defendant would likely have access to such documents as it would have needed these documents to substantiate its payment applications to CHE. The plaintiff could have applied for specific discovery against the defendant for such documents to substantiate its position that the value of accumulated work as stated in the Interim Account and not that of the Final Account should be the correct amount. If the defendant then refuses to provide such documents without any reasonable explanation, perhaps it would have been sufficient for this court to draw an inference against the defendant in such circumstances. However, this was not done.

36.  In these circumstances, the state of the evidence is highly unsatisfactory. There is no evidence before this court to determine which of the sums stated in the Interim Account and the Final Account should be preferred. I am left with no choice but to resolve this issue based on the burden of proof. Since the burden is on the plaintiff to prove his claim and he fails to substantiate the amount of the value of accumulated works as stated in the Interim Account, I shall adopt the amount which was accepted by the defendant in the Final Account under this head, ie HK$1,893,002.20.

B.2  The FM223 Quotation

37.  As for works under the FM223 Quotation, it is not disputed that it was signed and accepted by both parties. However, there is no documentary evidence or record that the works were actually carried out.

38.  More importantly, the payment terms of the FM223 Quotation were “30 days upon presentation of invoice”. Although the plaintiff said he called the defendant’s manager to ask for payment of this item, it is not disputed that the plaintiff never issued an invoice. Therefore, the plaintiff has failed to prove his claim in respect of the FM223 Quotation.

B.3  The Deductions

39.  Save for the retention money withheld, counsel for the defendant, Ms Leung, relies on Clause 5 of the Sub-Contract which she says shows the Sub-Contract was made in reference and subject to the contract (the “CHE Contract”) between CHE and the defendant. It is not clear to me whether the defendant’s case is in fact that terms of the CHE Contract were incorporated into the Sub-Contract by reference.

40.  Nevertheless, even assuming this is in fact the defendant’s case, it is bound to fail:-

(1)  The defendant has not pleaded what terms of the CHE Contract, if any, are incorporated into the Sub-Contract. It cannot be the case that all the terms of the CHE Contract (which necessarily encompass terms which are completely unrelated to works under the Sub-Contract) are incorporated.

(2)  It is trite that for terms in a separate document to be incorporated, the document is usually made available to the other party or at the very least reasonable notice of such a document or the terms should be given (see Chitty on Contracts, 34^th Edition, Vol 1, §§15-007-15-0011). The defendant has not pleaded how any terms of the CHE Contract were incorporated into the Sub-Contract. There is no evidence that the plaintiff was given a copy of the CHE Contract or notified that certain clauses which the defendant would seek to incorporate into the Sub-Contract. Indeed Mr Lo’s own evidence is that he himself did not even read the CHE Contract, whereas Ka Lo was not involved in the negotiation and signing of the Sub-Contract.

(3)  Moreover, for an onerous or unusual term to be incorporated, it should have been specifically drawn to the other party’s attention (Interfoto Picture Library Limited v Stiletto Visual Programmes Ltd [1987] 1 QB 433). If the defendant wishes to incorporate a term to the effect that it would be entitled to impose “administrative charges” which appear to be punitive in effect, it seems to me the defendant should have specifically drawn such a term to the plaintiff’s attention. Again there is no evidence that this was done.

41.  As to the retention, the defendant has not pleaded any basis for withholding such. On the face of clause 12 of the Sub-Contract, the remaining 2.5% of the retention money was to be returned after 14 months upon the approval of the works by the architect. With the Occupation Permit being issued in December 2013 and the Final Account in May 2014, it would appear that the period for which the defendant was entitled to withhold the retention money had long expired before the commencement of these actions. There is no evidence before me to suggest otherwise.

42.  That being the case, the defendant is not entitled to make the Deductions from the amount due to the plaintiff.

B.4  “Proper Certificates”

43.  The defendant alleges that the plaintiff failed to provide “Proper Certificates” to the defendant, but it has not pleaded what really constitutes “Proper Certificates” or any contractual basis for such “Proper Certificates” required by it.

44.  On the face of the Sub-Contract, the plaintiff is only obliged to provide the certificates after the completion of the works and upon being paid. The defendant does not allege that it suffered any loss or damage as a result of the plaintiff’s alleged failure to provide “Proper Certificates” which it may be entitled to set off or counterclaim against the plaintiff.

45.  Ms Leung for the defendant accepts that the plaintiff’s alleged failure to provide “Proper Certificates” does not impact on the assessment of the sum due to the defendant.

46.  Nevertheless, the defendant’s witnesses were adamant that “Proper Certificates” must be accompanied by reports issued by Tai Hing Hong, which were missing from those provided by the plaintiff.

47.  After the plaintiff commenced these proceedings in which the defendant disputed the validity of the plaintiff’s certificate, the plaintiff produced a letter dated 14 October 2019 which was on the face of it issued by Tai Hing Hong, confirming that P was an Approved Applicator for Taiwan Rainbow Firecut FM-900 Fire Resistance Coating. The defendant’s witnesses disputed the authenticity of this letter. According to Ka Lo, he made enquiries with Tai Hing Hong by phone after the commencement of these proceedings and he alleged he had reasons to believe the letter was not issued by Tai Hing Hong. However, there is nothing definitive to support his allegation that the letter dated 14 October 2019 was forged.

48.  There is also no evidence that the defendant ever requested the plaintiff to provide reports of Tai Hing Hong before the commencement of these proceedings. In the letter dated 30 October 2013 in which the defendant informed the plaintiff its decision to stop payment under the Cheque until certain conditions were met, the defendant made no mention of its alleged concern of the “Proper Certificates”.

49.  In the end, despite the parties spending considerable amount of time on this matter at trial, nothing turns on it for the purpose assessing the total amount due under the Sub-Contract, for the reasons that (1) the defendant did not plead the contractual basis on which it alleges “Proper Certificates” must be accompanied by reports issued by Tai Hing Hong, (2) on the face of the Sub-contract, no such requirement existed, and (3) in any event, Occupation Permit was issued and there is no evidence that the lack of Tai Hing Hong reports caused any problem to the defendant.

B.5  Amount due to the plaintiff under the Sub-Contract

50.  To conclude, the total amount due to the plaintiff under the Sub-Contract is:-

Item		Amount (HK$)
Accumulated works under the Sub-Contract		1,893,002.20
Less:	Deduction for works carried out by Hau Yu in lieu of the plaintiff (as accepted by the plaintiff)	140,000.00
Less:	Amount paid by the defendant under the Sub-Contract	1,458,280.00 __________
Total		294,722.20 =========

51.  If the plaintiff is also successful on his claim in respect of the Cheque, the sum of HK$120,000 should be deducted from judgment for the amount due under the Sub-Contract.

C.  THE CHEQUE

52.  The defendant’s pleaded case is that the Cheque was issued to the plaintiff on the conditions that (1) P supplied the “Proper Certificates”, and (2) settling payments to its subcontractors.

53.  The principles concerning dishonoured cheques are trite:-

(1)  a cheque is an unconditional order in writing, addressed by a person to his banker, signed by the person giving it, requiring the banker to whom it is addressed to pay on demand a sum certain in money to or to the order of a specified person, or to bearer. (Lam Tai Kwan v Lo Wai Kit [2007] 1 HKLRD 367 at §10)

(2)  Section 21 of the Bills of Exchange Ordinance (Cap 19) allows evidence to be led (other than as against a holder in due course) that there was no delivery by the defendant with the intention of transferring property in the instrument, or that the delivery was subject to the fulfilment of a condition suspending the operation of the instrument. (Lin Hsien Tseng v So Sin Mui Bonnie [2002] 4 HKC 532 at §19)

(3)  In other words, oral evidence is admissible where it seeks to prove that the cheque is not delivered operatively until the satisfaction of a condition. On the other hand, oral evidence is not admissible where the cheque is delivered operatively but subject to an oral agreement in defeasance of the drawer’s liability on the cheque. (Mak Yung Nin v Li Wing Yiu Samuel, Unreported, DCCJ 1965/2015, 28 October 2015)

C.1  Evidence concerning the alleged conditions

54.  The defendant’s two witnesses gave evidence as follows:-

(1)  Mr Lo’s evidence is that at the meeting on 23 September 2013, he informed the plaintiff that the Cheque was issued as payment for works done in the Project on two conditions. The plaintiff and the defendant signed a document prepared by the defendant confirming that the defendant paid the plaintiff a total of HK$170,000 by the said post-dated cheques as payment for the plaintiff’s works in the Project, in which no condition was mentioned. In this regard, Mr Lo said he instructed his colleagues that the Cheque was to be issued with the conditions and he did not know why the conditions were not mentioned in the document but he was certain that he told the plaintiff the conditions orally. Mr Lo admitted that his memory of that day was vague since it was many years ago but he was adamant that he must have informed the plaintiff of the said conditions.

(2)  Ka Lo was not present at the meeting on 23 September 2013 and had no personal knowledge of the matters discussed at the meeting. However, he was adamant that Mr Lo must have told him what had happened at the meeting as he would need to prepare documents according to Mr Lo’s instructions, and he sent letters to the plaintiff both before and after the said meeting. Ka Lo also did not explain why no conditions were mentioned in the document (which was prepared by the defendant and issued on the defendant’s letterhead) dated 23 September 2013 if indeed such had been insisted upon by Mr Lo at the meeting.

55.  The plaintiff denies any such conditions were mentioned on the day or at all.

56.  Even after taking the defendant’s evidence into account, I find that the Cheques were delivered unconditionally on the balance of probabilities:-

(1)  If it had been the case that Mr Lo had been adamant in his meeting with the plaintiff that conditions were attached to the Cheque as alleged, it would be surprising that such conditions were not stated in the document dated 23 September 2013 which was prepared under Mr Lo’s instructions;

(2)  Had it been the case that conditions were attached to the Cheque and not the other cheque of HK$50,000 which was delivered on the same date under the same cover document, it would be surprising that no differentiation between the two cheques was made in the letter;

(3)  In the letter dated 30 October 2013, the defendant stated that because various issues had emerged, payment under the Cheque would only be released upon the resolution of those issues（“由於出現以下之情況：… 因此貴司之十三萬支票將押後…直至解決以上問題才可放糧”）.

(a)  Coupled with the fact that no conditions were mentioned in the document signed by the parties dated 23 September 2013, this appears to me to be a clear indication that the Cheque was in fact delivered to the plaintiff operatively, but because certain matters which emerged after the delivery of the Cheque, the defendant then decided that the Cheque should not be honoured unless and until those issues were resolved.

(b)  Further, there is no mention of the “Proper Certificates” at all in this letter. Rather, the letter mentions two other matters which are unrelated to the alleged conditions as reasons for withholding payment (see paragraph 15 above).

57.  For the above reasons, the Cheque must be treated as having been delivered to the plaintiff operatively. As such, parol evidence relating to the alleged conditions is inadmissible.

C.2  The defendant’s liability

58.  Even assuming the conditions did exist as alleged by the defendant, there is no evidence to show that the plaintiff failed to comply with them:-

(1)  There is not a shred of evidence to show that the certificates provided by the plaintiff was not adequate, especially given that the Occupation Permit was issued in the Project. As I mentioned above, in the letter dated 30 October 2013 in which the defendant informed the plaintiff its decision to stop payment under the Cheque, the defendant made no mention of any concern about the certificates.

(2)  Although the defendant alleged that Nam On and Seapark made complaints that the plaintiff failed to settle their fees, no particulars as to the amount claimed, how or when the sums arose or when they fell due is provided, and there is no documentary evidence of such. Neither of the defendant’s witnesses was able to provide any information on these save for some vague allegation that there was some chatter or complaints on the site. If there indeed had been further incidents of failure by the plaintiff to settle their fees, it would be surprising that no evidence or further particulars is available.

59.  In these circumstances, it seems to me that even if the conditions did exist as alleged, the defendant is still liable under the Cheque.

D.  DISPOSITION

60.  I therefore give judgment as follows:-

(1)  The defendant does pay the plaintiff the sum of HK$120,000 due under the Cheque and interest on the sum from 31 October 2013 at 1% above HSBC prime rate and thereafter at judgment rate until payment;

(2)  The defendant does pay the plaintiff HK$174,722.20 which is due under the Sub-Contract together with interest from 22 June 2014 (one month from the date of the Final Account) at 1% above HSBC prime rate and thereafter at judgment rate until payment.

61.  I also make an order nisi that the defendant pay the plaintiff’s costs of the actions including all costs reserved, to be taxed if not agreed, with certificate for one counsel. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. The order nisi will become absolute unless either party takes out a summons to vary it within 21 days.

62.  Lastly, I thank Mr Ng and Ms Leung for their assistance.