MODERN DESIGN COMPANY v. LIM GEE LING, SHARON CLARA

DCCJ 4688/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4688 OF 2011

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JUDGMENT

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1.  On 8 October 2010, the defendant, Miss Lim Gee Ling, Sharon Clara (“Miss Lim”), signed an agreement for sale and purchase for a property known as Flat B, 5^th Floor, Elegant Garden, 18 Babington Path in Hong Kong (“the property”). The purchase was completed on 30 December 2010.

2.  It was Miss Lim’s wish to renovate the property intending to move into the property before the Chinese New Year.  At the introduction of her sister-in-law, in mid-October 2010, she contacted the plaintiff’s proprietor, Mr Yeung To Mun (“Mr Yeung”) on the renovation of the property.  She later engaged him to renovate the property in December 2010.

3.  As the defendant had only settled $140,000 of the plaintiff’s invoice of $240,900 for services rendered leaving a sum of $100,900 outstanding, the plaintiff claims against the defendant for the outstanding sum.

4.  The defendant counterclaims against the plaintiff for poor quality work and remedial expenses in the sum of $187,925. At his closing submission, Mr Hariman, counsel for the defendant, informed the court that the defendant is no longer pursuing the counterclaim against the plaintiff.  She maintains the defence that the plaintiff’s claim should be deducted in view of the defective work and poor execution of renovation at the property.  She claimed that upon the setting off of defective work, only an outstanding sum of $31,950 would be payable to the plaintiff.

The agreed issues of dispute

5.  The parties’ agreed issues of dispute are as follows:-

(a) Is the Chinese quotation dated 3 November 2010 a binding agreement between the parties?

(b) What is the value of work done by the plaintiff as per the agreed Scott schedule?

(c) Should the plaintiff be responsible for defects as complained by the defendant in the agreed Scott Schedule?

(d) If so, whether the defendant has rendered reasonable opportunity to the plaintiff to rectify the alleged defects?

(e) What is the amount of damages that the defendant has suffered?

The plaintiff’s case

6.  The defendant, Miss Lim, approached Mr Yeung in mid-October 2010 on the introduction of her sister-in-law for the renovation of the property.  The work was to commence immediately after Miss Lim’s obtaining vacant possession of the property on 30 December 2010.

7.  A floor plan was given to Mr Yeung and he was informed of the items to be renovated by Miss Lim.  After the work items were clarified, Mr Yeung gave Miss Lim a quotation for 10 items of renovation work at $210,000 on or about 4 November 2010.  Subsequently, Miss Lim informed Mr Yeung she accepted his quotation.

8.  On 20 December 2010, Miss Lim took Mr Yeung to inspect and take measurements at the property.  At the time of the visit, Mr Yeung gave Miss Lim the written quotation he had prepared on 3 November 2010. He was instructed to start work on 31 December 2010.

9.  Miss Lim told Mr Yeung that she wanted to move into the property before the Chinese New Year, therefore, renovation work should start on 31 December 2010, Mr Yeung agreed.  The majority of the renovation work was completed on 27 January 2010 and furnitures were delivered to the property on and after 27 January 2010.  Miss Lim moved into the property on 31 January 2010.

10.  After the Chinese New Year and on or about 12 February 2011, Mr Yeung received a call from Miss Lim asking him to send someone to touch up the skirting between the floor and wall with sealant and to clean up some of the windows at the property.  He agreed and sent his assistant Leung Chi Ming (“Ah Ming”) to the property.

11.  Ah Ming went to the property between 14 February 2011 and 16 February 2011 to perform the touch up work required by Miss Lim. These included: (1) fixing the lamp shade; (2) cleaning or touching up the paintwork damaged by the move of furniture into the property; (3) putting sealant between the floor and skirting; (4) re-enforcing 3 window handles with nails; (5) re-positioning the new TV cabinet.

12.  On 14 February 2011, Miss Lim told Ah Ming the master bathroom toilet was smelly, Ah Ming applied an extra putty coating over the water closet and drain connection.  He said he did not detect any foul odour at the time and that he found the bathroom floor dry and without any trace of leakages.

13.  On 15 February 2011, after fixing the window handles and repositioning the TV unit, he was asked by Miss Lim to help her solve the problem of poor drainage of the washing machine.  Miss Lim accepted his suggestion and an L shape pipe connection to a hard rubber hose that linked to a flexible rubber tube into the toilet was installed.

14.  On the same afternoon, he witnessed the delivery of two brand new toilets and their installations at the master and guest bathrooms replacing the existing ones.

15.  On 16 February 2011, after Ah Ming completed all sealant installations and touch up work at 1 pm,  Miss Lim told him the shower curtain rail at the master bathroom should be lowered and the electricity wiring of the mirror light should be hidden inside the wall.  Ah Ming informed her that since the work would involve removing and replacing wall tiles, she should talk to Mr Yeung about it.  He later informed Mr Yeung of Miss Lim’s requests.

16.  That evening, Miss Lim informed Mr Yeung that his services were no longer required.  She complained to him that his work was unsatisfactory because:-

(a) The master bathroom floor drain failed to drain properly;

(b) the shower curtain rail was too high;

(c) the paint was not ICI dulux paint;

(d) the master bathroom light had no off/on switch installed;

(e) the gap between the front door and the floor was too big.

17.  Mr Yeung offered to do the remedial work and fix the defects for her if she was not happy with the work but the offer was rejected by Miss Lim.  She told him she did not trust him and said she would pay him the balance and return his tools after she worked out the outstanding amount.  Thereafter, she refused to take his calls until 18 February 2011 when she told him to go the property and collect his tools the next day.  On 19 February 2011, Miss Lim returned the plaintiff’s tools at the foyer of the building of the property and gave Mr Yeung a cheque for $18,000 telling him that was the balance of his renovation work.  Mr Yeung refused to take the cheque but agreed to take over the tools.

18.  On 11 March 2011, Miss Lim faxed to the plaintiff a final calculation of its work with a balance outstanding at $26,015.  The plaintiff disagreed and sent its final invoice for $104,100 to Miss Lim with a complete list of work done and the variation work done.

The defence case

19.  It was Miss Lim’s evidence that she contacted Mr Yeung in or about October to November 2010 for the renovation work on her newly purchased property involving mainly the change of the flooring from wooden boards to tiles and repainting the property in January 2011.

20.  On 20 December 2010, Miss Lim and Mr Yeung visited the property for an inspection.  At the inspection, she specified the following renovation work:-

(i) painting of the walls, ceilings, doors and door frames;

(ii) replacing the wooden floor boards with new tiles;

(iii) removing the domestic helper’s bedroom wall to enlarge the kitchen;

(iv) removing kitchen cabinets, wardrobes and fixtures;

(v) installing water and drain pipes for the washing machine;

(vi) installing kitchen sink, fresh and waste water drain pipes;

(vii) painting doors;

(viii) painting guest bathroom wooden box (drains casing);

(ix) painting master bathroom;

(x) replacing master bathroom false ceiling;

(xi) checking and fixing water leakage in master bathroom;

(xii) removing previous owner’s movable furniture;

(xiii) fixing cracks in the master and guest bedrooms; and in addition,

(xiv) removing servant’s toilet.

21.  Miss Lim told Mr Yeung that a further inspection should be conducted after completion of the purchase to investigate the leakage in the master bathroom.  She also asked Mr Yeung to send her a quotation on the main work and a second quotation on the removal of the servant’s toilet.

22.  She said she was given on 22 December 2010 a preliminary quotation from Mr Yeung which was erroneously dated 3 November 2010. She also claimed, at that stage she had not yet decided if she would engage the services of the plaintiff; hence, the quotation was only a preliminary quotation subject to variations and changes pending further inspection of the property.  She insisted there was no agreement reached between the parties at that stage.

23.  Miss Lim claimed that the plaintiff failed to give her a quotation of the main works as requested by her; in spite of that, on 27 December 2010, she and the plaintiff had reached an oral agreement for the main work to be done.  Additional work included the master bathroom bathtub to be replaced by a shower unit and the wall of the bathroom to be restored according to the original building plan (“the list of work”).

24.  She claimed Mr Yeung agreed to revised the preliminary quotation according to the list of work agreed with a revised fee quotation and to commence the renovation work on 31 December 2010.

25.  She asserted that it was an express or implied term of the oral agreement that the renovation work would be carried out and completed in good or reasonable or merchantable quality in accordance with her specifications and requirements (“the implied terms”).

26.  Though the plaintiff commenced work on 31 December 2010, Mr Yeung failed to give a revised quotation on the list of work to Miss Lim.  On 3 January 2011, she learned the plaintiff failed to take out insurance coverage for the renovation work, she took out insurance coverage after Mr Yeung told her a coverage in the sum of $190,000 would be appropriate.

27.  Miss Lim further claimed that it was on 6 January 2011 after the start of the renovation work that detailed investigation of the false ceiling, windows and pipe work at the kitchen that the renovation work items were finalized.  She admitted there were frequent communications between Mr Yeung and herself as the work progressed.  She confessed that she lost confidence in Mr Yeung after he gave her a quote of $30,000 to reposition the gas meter at the kitchen when she later had it relocated for $2,795 by Towngas.

28.  Miss Lim agreed that she made two payments to the plaintiff, the initial payment was $50,000 and on 26 January 2011, she paid a second payment of $90,000 to Mr Yeung by cheque.  She refused to pay the sum Mr Yeung demanded because the work was not yet completed at the time.

29.  Miss Lim maintained that the plaintiff had failed to use the ICI paint she had specified.  It was to be the same white ICI paint she used in all her residences for the last 20 years, but the plaintiff had used a Nippon paint contrary to her instruction.  Furthermore, Miss Lim complained to Mr Yeung of the foul smell of human waste from the master bathroom toilet and the wrong type of mirror was installed.  Mr Yeung agreed to get them fixed after the Chinese New Year.

30.  After the Chinese New Year, she had chased up the plaintiff for the outstanding remedial works, but the plaintiff only sent Ah Ming to fix some of the problems which included the poor drainage at the master bathroom, two faulty windows, the smelly toilet, the unsecured connection of the washing machine to the servant’s toilet, the lack of wood board backing in the bathroom wall mirror and the insufficient electric voltage supply in the kitchen etc.

31.  In the end, she decided to engage another contractor to fix some of the problems including replacing the toilets in the two bathrooms and rewiring the kitchen.

Discussion

(a) Is the Chinese quotation dated 3 November 2010 a binding agreement between the parties?

32.  As with most renovation agreements without a formal written contract between a contractor and an employer in a procurement contract where the employer would supply the design and specification to the contractor to build, this is the case that the quotation would form the basis of the work to be performed, supplemented by additional and/or variation work.

33.  The employer, Miss Lim, in this case did not have the benefit of the assistance of a professional such as an architect, engineer, designer or a surveyor.  At the beginning, she had only required a few items of work done at the newly acquired property; however, after the work commenced, she became more demanding and further work items were added.

34.  With the 3 November 2010 quotation and Miss Lim’s engagement of the plaintiff in late December 2010, by the time the plaintiff commenced work at the property on 31 December 2010, it together with the adjustments formed the basis of the parties’ agreement.  It is by no means a signed agreement with expressed terms as in a formal written construction contract specifically drafted for the parties, it is, however, supporting evidence of the parties’ agreement.

(b) & (c) What is the value of work done by the plaintiff as per the agreed Scott Schedule?  And should the plaintiff be responsible for defects as complained by the defendant in the agreed Scott Schedule?

35.  Counsel for the plaintiff and the defendant confirmed there are 14 items of work disputed by the parties.  They are set out in the final updated Scott schedule of 26 February 2013.  I shall therefore turn to the disputed items set out in the updated Scott schedule (p 270 to 277 of bundle B) and deal with each of the 14 items in dispute.  As there was no expert report produced, my assessment is based completely on the evidence before the court, or the lack of it.

(i) Item 1 – removal of all floorboards and skirtings, kitchen cabinets, master bathroom tiles, bathroom fittings, wall between kitchen and servant’s bathroom and bathroom fittings and old furniture - $42,000.

36.  Miss Lim agreed to the payment of $42,000 but claimed that the plaintiff failed to remove all the wall tile in the kitchen and she had to pay Fu Keung (her new contractor) $1,500 to remove the tiles in order to install the kitchen exhaust hood.  The plaintiff disagreed, stating the exhaust hood was not a contract item.

37.  I have found above that the quotation dated 3 November 2010 with the adjustments formed the basis of the renovation agreement between the parties reached in late December 2010.  When Miss Lim orally agreed to engage the plaintiff as her renovation contractor, the quotation became the basis of the plaintiff’s contract though it was subject to additional and variation work.  Based on the quotation dated 3 November 2010, the installation of the exhaust hood was not an item of work for the plaintiff.  If Miss Lim had required the plaintiff to install a new exhaust hood in the kitchen, additional charges would be levied.  Since Miss Lim decided to engage a new contractor to install the exhaust hood she would be required to pay the new contractor.

38.  Miss Lim’s counterclaim is on the removal of the kitchen wall tiles that the plaintiff failed to remove.  She claimed the new contractor had to remove 3 layers of tiles to install the heavy exhaust hood. The plaintiff denied the old wall tiles in the kitchen were not removed before new tiles were laid.

39.  A large number of photographs taken by the plaintiff before and during the renovation had been produced at the trial.  Miss Lim also produced photographs of the property after the renovation on the defects she complained of.  From the plaintiff’s photographs taken during the renovation in early January 2011, the p 156 photograph and those at p 1186-1187 clearly showed bare concrete walls at the kitchen area.  Further, there is no valid reason for the plaintiff’s workmen to remove the tiles on part of the kitchen walls leaving other parts with old tiles before installing new ones in the kitchen.  The evidence of the defence claiming three layers of tiles in the kitchen area came from Miss Lim’s hearsay evidence from her new contractor, I cannot find from the defence photographs any evidence of three layers of tiles at the kitchen.  I accept the plaintiff’s evidence because it is supported by the photographs showing all the old tiles in the kitchen had been removed before the re-tiling work.  I allow the plaintiff’s claim of $42,000 without deduction.

(ii) Item 2 – Removal of old paint and plastering of ceilings and walls and replaster and paint in ICI emulsion paint - $47,500

40.  The parties agreed to a deduction of $2,500 from the $50,000 fee.  The plaintiff claimed Miss Lim was shown two colour charts from ICI and Nippon, the colour was chosen by her.

41.  Miss Lim however, claimed she was only shown the ICI colour chart and had chosen one of the white colour paint from the chart. She pointed out the plaintiff’s quotation specified the ICI paint.  She later found cracks and poor painting work in the ceilings and walls.

42.  She counterclaims for the sum of $73,500 for a complete replastering and painting job which would take 4 weeks to execute and alternative accommodations for herself during the execution.  It has not been done.  The plaintiff claimed the property was over 20 years old and cracks are bound to appear. 

43.  Miss Lim produced some photographs showing the cracks and stains on the walls and ceiling.  There was no plan produced indicating where these cracks appeared in the property.  In any event, they do not seem to be extensive and could be remedied locally.  As to the paint application using Nippon paint rather than ICI dulux paint, though the cost of the two brands are similar, Miss Lim claimed she had been using the same ICI white colour paint for 20 years and could recognize the colour the plaintiff use was different.

44.  If Miss Lim could recognize the same ICI paint that she had been using for the last 20 years, it is surprising that she was unable to pick it out from the current ICI colour chart in court.  She blamed it on the ICI colour chart which she said had been changed.  If that is so, either the particular white colour had changed or is no longer produced. Either way, she would only be able to find a shade closest to the shade she had been using for 20 years and not the same colour paint she had used before.

45.  According to the plaintiff’s evidence, after Miss Lim picked out the paint colour from the colour chart, the painter showed her a finished wall for approval and the painter Mr Chan claimed Miss Lim had approved the colour after white paint was added and shown to her on a freshly painted wall.

46.  Miss Lim produced photographs showing there were cracks and marks on the walls and ceilings that should have been covered and remedied.  The plaintiff should have been given an opportunity to perform the remedial work, but it was not given the opportunity to do so.  I would allow a deduction of $3,000 for the remedial work on the cracks and marks on the walls and ceiling.  I am not convinced that a total replastering of the property is required, only the parts with cracks would require remedial work. 

(iii) Item 3 & 4 - Plastering and tiling of the floor of the property and walls of the 2 bathrooms and kitchen - $77,000 & $3,500

47.  The plaintiff’s charge is $77,000 after deduction of the $3,000 agreed for part of the skirting being replaced by a hand paint job.  Miss Lim pointed out there should be a deduction of $10,600 for cancellation of the tiling of the servant’s toilet and removal of the wall.  She counterclaims the sum of $24,500 for the cost of replacement of fresh water tap, replacing the bathroom wall tiles after embedding the electric wiring for the master bathroom light, replacing the mirror in the bathroom and resurfacing the bathroom floor to correct the flow of the drains.  She also claimed that the kitchen electricity supply had to be redone to increase the voltage for her kitchen equipments which were all electric.

48.  The plaintiff disagreed with Miss Lim’s claim for she did not inform the plaintiff she would be using all electrical appliances in her kitchen.  The old exhaust hood was to be retained at the time of renovation and Miss Lim did not tell the plaintiff that the bathroom light replacement would be different from the old one and would not have a light switch on the lamp itself.

49.  There is no independent expert evidence from a surveyor or an engineer on whether the work done by the plaintiff was defective. In particular, to explain whether the toilet had a foul odour, if so, what was the cause of the odour?  Was there a leak in the toilet?  Was it due to poor installation or was it due to the degeneration of the old toilet fittings?  I find the defence has failed to establish the foul smell was caused by the plaintiff’s defective work.

50.  The plaintiff’s staff Ah Ming denied he could detect any foul odour, he had nevertheless covered the toilet connection with the sewage drains with a coating of putty.  On the next day, Miss Lim replaced both toilets in the two bathrooms even though the foul odour was said to be detected in the master bathroom only.

51.  Miss Lim complained there were less tiling after the servant’s toilet wall was removed.  I accept the plaintiff’s explanation that there were more area for painting to replace the tiled area, therefore the cost was about the same.

52.  Miss Lim also complained that the mirror had no wooden board backing, that it with a wooden board backing should not be mounted on a wooden frame but mounted onto the bathroom wall on the same level as the tiles.  I fail to understand Miss Lim’s requirement, if mirrors are to be mounted as tiles directly sealed onto the wall, no moisture would go to the back of the mirror anyway.  Besides, a mirror with wood board backing would increase the thickness of the mirror therefore it would not be levelled with the tiles next to it.  For the aforesaid reasons, I am not satisfied it is defective work.

53.  I also find the failure to install higher electricity voltage at the kitchen was probably due to poor communication of Miss Lim’s requirement for her kitchen and the master bathroom lighting requirement. I would allow the plaintiff’s claim of $77,000 and $3,500 and disallow the counterclaim sum charged by Fu Keung, Miss Lim’s new contractor, for the additional work.

(iv) Item 11 – Kitchen wiring, electricity and lighting outlets - $6,000

54.  The defence only agreed to pay $3,000 for the wiring and ducting because she claimed the plaintiff failed to install sufficient voltage separately to the kitchen for the electrical appliances at the kitchen.  The plaintiff claimed Miss Lim had never informed Mr Yeung of her electricity requirements at the kitchen.  The defendant claims she spent $12,000 on an independent increased voltage system for the kitchen and relocating two power sockets which required retiling of the kitchen wall.  Further, for the replacement of wiring of all existing sockets and installing an extractor fan at $10,000.

55.  Again, I find this was due to poor communications between Miss Lim and Mr Yeung.  The plaintiff had charge the sum of $6,000 for installing 12 power sockets, ceiling lights and a 30 AMP power system for the kitchen.  Had Miss Lim informed Mr Yeung her kitchen electricity requirement, the plaintiff would have taken her instructions accordingly.  The fault did not lie with the plaintiff, Mr Yeung was not told what kind of cooking hob or oven Miss Lim would use.  I accept he was not instructed to install the exhaust hood and other kitchen equipments.  Furthermore, to equip for a higher consumption of electricity, it would cost more than the $6,000 charged as Miss Lim’s new contractor charged her $12,000 for the work.  I would allow the $6,000 in full.  I disallow the defendant’s claim of $12,000 and $10,000 for rewiring and installation of a new extractor fan.  It was not part of the contract work item to replace the exhaust hood or replace the extractor fan.

(v) Item 15 – Installing new matching marble window sill at master bedroom, shower unit lip cover at master bathroom and marble door step - $1,200

56.  The plaintiff denied the existing marble sill was damaged by its workers, he said the hairline crack existed before the renovation and pure white marble tiles were used at the show unit because natural marbles are not pure white and have natural patterns.  The plaintiff also maintained that Miss Lim had requested for a beige marble door step.  The charges were $1,200.

57.  The defendant only agreed to pay $800.  The cracked marble window sill was replaced at $1,800 with a transportation charge of $160.  She counterclaims further for the replacement of the marble at the master bedroom, bathroom and main door at $800, making total claim of $2,760.

58.  Whether the old marble window sill crack was pre-existing is not known.  I find the defence failed to satisfactorily discharge the burden of proof that it was not pre-existing but was damaged by the plaintiff’s workers.  As to the use of white marble tiles instead of natural white marble at the master bathroom and the use of beige marble instead of green marble at the door, I find these were caused by poor communication of requirements by Miss Lim to Mr Yeung.  Had she asked to see the samples of the materials to be used she would have been shown the samples of the tiles and marbles and chosen the materials and marbles she preferred.  Though the choice of materials belonged to the employer, if Miss Lim failed to make the choice, she cannot blame the plaintiff for using the wrong materials or marbles.  I disallow the deduction claim and the replacement claim.  If she had complained to the plaintiff about it earlier, he would have taken remedial measures, but she had failed to even inform the plaintiff of these complaints after the renovation. 

(vi) Item 18 – False ceiling at corridor outside guest bathroom $1,000

59.  Miss Lim claimed she had asked the plaintiff to erect a wooden false ceiling, but the plaintiff had only erected a false ceiling with a wooden frame and gypsum ceiling boards.

60.  I find this was due to a misunderstanding on Miss Lim’s part of the materials of false ceilings.  She did not explain why she required the false ceiling should be erected in wood.  If the ceiling covered by the false ceiling was meant to be a storage area, it would make sense that a sturdy structure made of wood should be built.  If it was meant as a covering of the natural ceiling to match the level of the bathroom, and if Miss Lim failed to specify that the structure of the false ceiling should be in wood, it is unreasonable for her to blame the plaintiff for failing to erect a wooden false ceiling for her.  I allow the $1,000 claimed.

(vii) Item 20 – Light switches and sockets - $2,500

61.  Miss Lim claimed the plaintiff had failed to install wire ducting in the master bathroom for the mirror light.  She claimed a deduction of $450 because the switch for the mirror light was missing and an open duct had to be added.

62.  The plaintiff claimed that the original mirror light had a line switch, therefore, there was no requirement to install a light switch at the bathroom and Miss Lim failed to ask him to install it until after the bathroom tiles were laid in late January 2011.  Unfortunately, the mirror light Miss Lim purchased was found to have no light switch of its own, therefore a wiring tube was installed on the tiles to encase the wiring to the light switch at the door.

63.  Again, this was due to poor communication of Miss Lim’s requirement on the new mirror light, but the plaintiff should have clarified with Miss Lim if a light switch at the bathroom door would be required even though the mirror light may have a line switch.  I allow a deduction of $600 for the reinstallation of the light switch with embedded duct for wiring.

(viii) Item 23 – Master bathroom mirror $1,000

64.  See paragraph 52 above, the plaintiff’s claim is allowed in full.

(ix) Item 25 – Installing fresh water inlet and waste water outlet for the kitchen sinks, dish washer and washing machine - $4,500

65.  The defendant claimed the washing machine drainage outlet was poorly done as the connection to the hose leaked and fell off after use.  There was also no hot water pipe installed and the two original kitchen drain outlets had not been relocated.  She asked for a deduction of $2,000, in addition, she claimed the new outlet for washing machine was installed at $1,000.

66.  The plaintiff claimed the 2 original kitchen drain outlets had been relocated therefore the outlets have to be reinstalled.  As to the washing machine outlet, Mr Yeung claimed he did install the washing machine outlet, it was up to Miss Lim to connect the machine to the outlet with a rubber hose and hot water supply was not required for the washing machine.

67.  I am not satisfied the poor connection of the washing machine rubber hose to the toilet for drainage was caused by poor quality work on the plaintiff’s part, the plaintiff was only doing the job requested by Miss Lim.  Had there been better communications between the parties and had Miss Lim allowed the plaintiff to perform the remedial work this could have been resolved without incurring extra costs.  I also accept the evidence of Mr Yeung that the two kitchen drain outlets have been relocated.  I allow the $4,500 claimed in full.  I disallow the defendant’s counterclaim.

(x) Item 26 – Master bathroom fresh water inlet and waste water drain outlet installation - $4,500

68.  Miss Lim claimed a deduction of $3,000.  She claimed further that the gas geyser was not connected, as a result after she moved in, she was without hot water in her bathroom and she had to instruct the gas company to connect the gas supply.  Further, there was no change to the drainage in the bathroom.  The plaintiff claimed that it was not the contractor’s job to contact the gas company for gas supply, it was the employer job.  Because Miss Lim failed to call up the gas company to disconnect the gas geyser in the bathroom, the plaintiff’s plasterer had to dismantle the gas geyser to finish the tiling work and to reinstall it after tiling was done.  He also claimed the bathroom water inlet pipes and drains had been relocated.

69.  I accept the plaintiff’s explanation that its workers should not have touched the gas geyser and disconnected it, it was because time was pressing for the tiling work to be done that the plasterer had to dismantle the gas geyser and reinstall it.  This was due to the miscommunication of information and misunderstanding of the duty of the renovation contractor on Miss Lim’s part.  I allow the claim of $4,500 and disallow the gas connection charged by the gas company which Miss Lim had to pay anyway.

(xi) Item 27 – Repair of the cracks on the walls and beams - $2,000

70.  Miss Lim claimed a deduction of the sum of $2,000.  No reason was given except the earlier claim of cracks found on some of the walls.  Miss Lim did not make a separate assessment of this item.  As the cracks have been dealt with above, I allow this claim in full.

(xii) Item 30 – Installation of all lights - $1,000

71.  The plaintiff’s installation charge is agreed at $1,000.  However, Miss Lim claimed the corridor ceiling light required cleaning and adjustment which Fu Keung charged her $500 for.

72.  The plaintiff claimed the cleaning and adjustment work could have been performed by Ah Ming had Miss Lim included it in her list of remedial works in February 2011.  As she had failed to instruct Ah Ming to do so when it could have been done by the plaintiff, I disallow her counterclaim and allow the plaintiff s claim in full.

(m) Item 34 – Master bathroom shower rail installation - $400

73.  Miss Lim claimed the shower curtain rail was wrongly installed at a location higher than requested.  It required reinstallation and tile replacements.  The plaintiff disagreed claiming it was installed as designated by Miss Lim.

74.  On this item, even though the wrong location of the shower curtain rail would need to be addressed by the defendant, the defendant failed to give a breakdown of Fu Keung’s charges (item 1 of Fu Keung’s quotation at p 1021 of bundle 2), it is not possible for the court to make an assessment.  Furthermore, I am not satisfied the defendant has shown the fault was the plaintiff’s.  The claim of set off is not allowed, I allow the plaintiff’s claim in full.

(d) Whether the defendant has rendered reasonable opportunity to the plaintiff to rectify the alleged defects?

75.  If Miss Lim had allowed the plaintiff to do the remedial work and given the plaintiff more time to perform the renovation, allowing the renovation details and materials to be used to be clarified and chosen, the disputes would have been resolved without going to court.  As it was due to the failure to give full instructions and poor communications, I find the defendant is largely to blame.

76.  In conclusion, I find the dispute between the parties was mainly caused by a failure of communication and poor understanding of the details of renovation contractor’s work on the defendant’s part.  If she had engaged the assistance of an architect or a designer or a surveyor who could advise her properly, some of the mistakes could have been eliminated.

Payment Summary

Conclusion

78.  This case should never have been brought to a full trial as there was little or no law involved whatsoever.  The parties should have resolved their dispute by mediation.  It is further unfortunate that no surveyor report was produced and it should take 7 days of trial to resolve.

Interests

79.  Interests on judgment sum from date of writ to date of judgment at half judgment rate, thereafter at full judgment rate until full payment.

Costs

80.  Costs to follow the event.  The defendant to pay the plaintiff’s costs to be taxed if not agreed.