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DCCJ 5744/2017
[2021] HKDC 1535
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 5744 OF 2017
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| BETWEEN |
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MO CONNIE |
Plaintiff |
and |
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LAM KIT YING trading as ONEM IDE COMPANY
formerly known as IMM DESIGN WORKSHOP |
Defendant |
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Before: His Honour Judge Harold Leong in Court
Date of Hearing: 21 September 2021
Date of Judgment: 21 December 2021
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JUDGMENT
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1. This is a claim for breach of contract regarding a renovation project (the “Renovation”) at Flat A, 18th Floor, Chester Court, 6-8 Kennedy Town Praya, Hong Kong (the “Premises”). The plaintiff is the occupier of the Premises and has engaged the defendant, an interior design company for the Renovation.
Defendant’s counterclaim
2. The defendant failed to attend the trial and in fact did not take part in the proceedings since around December 2020.
3. By Order of Master Mak at the Case Management Conference on 31 March 2021 (and under Order 25 rule 4(2)), the defendant’s counterclaim was provisionally struck out.
4. No application to restore the counterclaim has been taken out so I would order that the defendant’s counterclaim be dismissed with costs to the plaintiff to be taxed if not agreed.
Background
5. It is not in dispute that the plaintiff and the defendant signed a written contract (the “Contract”) for the Renovation for the consideration of HK$510,000 on or around 18 April 2017 (Trial Bundle A, pages 155-159).
6. The Contract specified that the Renovation should be completed within 90 days (commencing from “all drawings and materials being approved by client”) which should have been 8 September 2017.
7. Subsequent to the signing of the Contract, the plaintiff and Tony Ng (“Tony”) (on behalf of the defendant), further agreed orally on various variation works (the “Variation Contract”, both contracts be referred to as the “Renovation Contracts”).
8. Pursuant to the Renovation Contracts, the plaintiff has paid the defendant a total sum of HK$456,216.
9. The Renovation was not completed on 8 September 2017.
10. On 26 October 2017, Tony wrote a WhatsApp message to the plaintiff informing her that the defendant would hand over the Premises after painting work and cleaning up, and that the plaintiff should settle the outstanding balance of the Renovation Contracts (Trial Bundle A, pages 213 to 214).
11. The plaintiff did not settle the outstanding balance despite a chaser from Tony on 29 October 2017.
12. On 30 October 2017, the plaintiff’s solicitors wrote to the defendant stating that the plaintiff accepted the defendant’s repudiatory breach of the Renovation Contracts and terminated the same, alleging incomplete and defective works (Trial Bundle A, pages 222 to 227).
The parties’ cases
13. The plaintiff’s case is that the defendant has breached the Renovation Agreements by firstly, the failure to complete the Renovation within 90 working days (which was due to the defendant’s own fault), and secondly, breaching an implied term for ensuring a reasonable quality of material and workmanship, thus causing the plaintiff to suffer loss and damages.
14. The defendant’s case is that the delay was not due to the fault of the defendant and any alleged incompletion or defects were minor and could be rectified easily under the guarantee and maintenance periods stipulated under the Renovation Contracts, and it was the plaintiff who has wrongfully repudiated the Renovation Contracts on 30 October 2017.
15. The defendant, however, did not file and serve any witness statement nor attend the trial. The court therefore only heard the evidence from the plaintiff’s witnesses.
16. The plaintiff gave evidence that the Variation Contract was agreed within a few days of the signing of the Contract, and Tony has informed her that this would not cause any problem with the completion time because this was during the demolition work so measurements and design plans have not been drawn up as yet.
17. As for the delay, the plaintiff’s evidence was that the “gas leak” incident occurred on 20 April 2017 and it was fixed within a day so it would not have caused any delay.
18. In fact, the plaintiff’s witness statement gave account of a huge lists of incidence caused by the fault of the defendant during the Renovation, eg the delay in commencing demolition work, the use of electrical wires, copper pipes and drawer mechanism not to the specifications or manufacturer as requested by the plaintiff, the cracking of kitchen and toilet tiles, faulty measurements in the plans by the original designer, change of designer needing re-measurement etc.
19. The plaintiff also gave evidence that Tony orally agreed to the Variation Contract on 10 August 2017 for a consideration of HK$50,000. This was corroborated by the evidence from Mr Lee Man Chun, who was employed as an interior designer from 1 August to the middle of September 2017 by the defendant and who was involved with the Renovation.
20. I would accept such evidence.
21. Further, the court heard evidence from expert Ms Lau Shan La of Hong Kong Survey Limited who inspected the Premises on 27 November 2017 and produced an expert report (Trial Bundle B, pages 314 to 347).
22. Ms Lau has inspected all the items listed on the Renovation Contracts and gave an opinion on the degree (expressed in percentage) of completion on the day of inspection. From this, Ms Lau could calculate the actual value of each item of the completed work by the percentage of the quoted price of the work.
23. I need not go into details but Ms Lau gave an opinion that the work was overall about 80% completed.
24. I would also agree with the submission made by the plaintiff’s counsel that the defendant could not rely on the guarantee and maintenance periods clauses in the Renovation Contracts as a defence without first completing the Renovation.
25. Since the Renovation Contracts were for a total of HK$560,000, 80% of this would be HK$448,000. Since the plaintiff has already paid HK$456,216, I would accept that the plaintiff should have fulfilled her payment obligation.
26. Ms Lau opined that the difference would give a guide to the estimated costs of completing the Renovation. This comes to HK$112,000.
27. Ms Lau also provided a list of substandard works or works not in accordance with the contract and gave an estimation of the costs of rectification of defects. This came to around HK$60,000.
28. The plaintiff is not claiming the costs of completion and defect remedy based on Ms Lau’s estimations (HK$(112,000 + 60,000) = HK$172,000) but on the actual costs she paid to another contractor for doing such work. This came to HK$157,100 which was within the ballpark of the estimation given by Ms Lau. I would therefore accept this as the reasonable costs for completion and rectification of defects.
29. The plaintiff’s evidence was that she did not return to the Premises until 10 February 2018, after a delay of some 5 months from the expected date of completion of 8 September 2017.
30. As such, the plaintiff has incurred storage fees for her kitchen appliances, warehouse storage fees for various installations, subscription fees for broadband TV. The plaintiff has to live in another of her flat for 3 months which she could have rented out so she also claims a loss of rental income. The plaintiff also incurred other minor costs like replacing a damaged security chain and delivery charge for the shower door. Further, the plaintiff has to pay the surveyor for the report.
31. I would accept such claims as reasonable.
32. The plaintiff also claims HK$40,600 for “pest control and replacement of cabinet fittings and facilities in the bathroom”. She claims that there were insects due to the inferior quality of the materials used by the defendants. However, there was no support of such an allegation in the surveyor’s report so I would not allow this claim.
33. In conclusion, I find that the plaintiff is entitled to claim the following:-
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HK$ |
| (i) Repair costs |
157,100 |
| (ii) Surveyor’s fees |
12,000 |
| (iii) Storage fee for kitchen appliances |
5,060 |
| (iv) Re-delivery charge for shower door |
200 |
| (v) Damaged security chain |
320 |
| (vi) Warehouse storage fees |
3,000 |
| (vii) Broadband |
1,880 |
| (viii) Rental |
90,000 |
| Total: |
269,560 |
34. The court would make the following order:-
(i) Judgment be entered against the defendant with damages assessed at HK$269,560 with interests at half interest rate (4% per annum) from the date of the breach (26 October 2017) to the date of judgment, and thereafter at judgment rate (8%) until payment.
(ii) Costs of the action be to the plaintiff to be taxed if not agreed, with certificate for counsel.
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( Harold Leong )
District Judge |
Mr Francis Chung, instructed by Munros, for the plaintiff
The defendant was not represented and did not appear
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