COLLECTIONS INTERIOR LTD. v. KWONG YIN WING KOO TIMBER CO.

1994, No. CT47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. The plaintiff was the sub-sub-contractor in respect of joinery work on a construction project. The plaintiff sub-contracted part of this work to the defendant. The defendant's work, and all remedial work, was completed by 19 November 1994.

2. The plaintiff commenced proceedings against the defendant by writ issued on 21 December 1994. In its statement of claim, the plaintiff claims -

1. that the defendant did not carry out the work with all due care, skill or diligence or in a good and workmanlike manner or with good and proper materials so that the plaintiff suffered damages in the sum of $157,986.80;

2. that the plaintiff entrusted the defendant with the custody of some ironmongery goods and, by negligence in failing to keep the goods safely, the goods were stolen so that the plaintiff suffered damages in the sum of $39,029.96;

3. that the defendant omitted certain work valued at $193,506.14, $209,898 and $53,226; and

4. that the defendant is making unwarranted claims for payment from the plaintiff.

The defendant counterclaims for payment due under the contract.

3. The plaintiff called no witnesses other than Mr Leslie Pearce, an expert quantity surveyor. The defendant called Mr Gabriel Lam, an expert quantity surveyor, Mr Chan Tak On, the sole proprietor of the defendant, Mr Leung Kwong Tai, the defendant's supervisor on site, and Ms Chan Fung Yee, who produced the relevant documents.

4. There is absolutely no evidence, either directly from the plaintiff or through cross-examination of the defendant's witnesses, to support the plaintiff's claim for damages of $157,986.80.

5. The claim for $39,029.96 relating to the stolen ironmongery is equally unsupported by any evidence. The plaintiff's claim is based on negligence. There is not one shred of evidence on which to base such a case.

6. The starting point in examining the various other claims and counterclaims is the assessment by the two expert quantity surveyors. There is a large measure of agreement by these gentlemen.

7. As to the omitted items featuring in the plaintiff's claim, there are differences between the experts.

8. They are agreed on a deduction in respect of the revision of bathroom cabinets. This figure is $176,571.90.

9. As to the two other items, there is no difference on the aspect of valuation. They are agreed that, if the defendant is entitled to claim a deduction in respect of materials delivered on site before the instructions were changed, a reasonable amounts to allow are $83,719.20 and $21,290.40. Mr Pearce maintains that these deductions should not be allowed because there is no proof of delivery on the materials on site and because the defendant did not follow a "practice" of informing the plaintiff of its claim in good time so that the plaintiff could so inform its employer.

10. The defendant has produced documents that show beyond any doubt that the materials were delivered on site before the instruction was changed.

11. As to the alleged "practice", it is not pleaded, it has not been shown to bind the defendant so that it changes his contractual rights, it seems to be no more than a guideline used by quantity surveyors in assessing the value of work on site, and, in any event, if the plaintiff had been keeping an eye on what was going on, it would known that the materials in respect of the cancelled work had been delivered on site before the change of instruction. Accordingly, I reject the suggestion that this "practice" affects the defendant's rights in this case.

12. Regarding the items making up the defendant's counterclaim, the experts are in agreement save in respect of three items.

13. The first is related to laminated sheeting and lipping. Mr Pearce does not dispute Mr Lam's assessment if it so that the work concerned was done on site. I am satisfied on the defendant's evidence that the work was done on site; indeed there is no evidence to the contrary, and there is no reason to reject the evidence.

14. The second item concerns lipping to the basin cabinet. Mr Pearce disputes this item because he could not find evidence that the work was done. The evidence that the work was done is accepted by me and in accord with the probabilities.

15. The third item relates to some cornice moulding. Mr Pearce does not accept Mr Lam's assessment for two reasons; that there is no evidence that the unused material was delivered to the site and that the "practice" was not followed by the defendant. I have already dealt with the "practice". And there is reliable and convincing evidence that the material was delivered on site.

16. Accordingly, I find for the defendant in relation to the disputed items. The plaintiff's claims are dismissed. In this event, the amount due to the defendant by the plaintiff is $649,304.14. There will be judgment for the defendant in this sum, together with interest at the commercial bank rate plus 2% from 1 October 1993 until today, and thereafter at the judgment rate.

17. The matter of costs has not been argued by the plaintiff, although Mr Chow sought these on a common fund scale. I do not know who is responsible, whether the plaintiff itself or its solicitors, but this litigation seems to have been conducted by the plaintiff is a manner so casual and neglectful as be almost contumelious. The preparation for trial seems to have been conducted in a cavalier manner. Mr Shaw is not responsible for any of this. He was briefed only on Friday. That, in itself, is an extraordinary situation that calls for an explanation. He has done what he could with a hopeless case. I am inclined to think that the scale of costs should be on an indemnity basis. Accordingly, I make an order nisi that the plaintiff pay the defendant's costs of the claim and counterclaim on an indemnity basis.