LIU KEITH CHE MING AND ANOTHER v. POON CHI SING t/a GOOD VIEW ORNAMENT

DCCJ 2421/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2421 OF 2010

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JUDGMENT

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1. In May 2009, the 1^st and 2^nd plaintiffs, Mr and Mrs Liu Chi Ming (“Mr and Mrs Liu”) purchased a property in Taikoo Shing known as Flat 28B and rooftop, Juniper Mansion, Taikoo Shing, Hong Kong (“the property”).  When the tenant moved out of the property in August 2009, Mr and Mrs Liu decided to renovate the property as their residence.

2. After obtaining a few quotations from contractors and interior design companies, Mr and Mrs Liu chose the defendant, Mr Poon Chi Sing (“Mr Poon”) to take up the majority of the renovation work.  Mr Poon’s work commenced on 4 August 2009 until 23 October 2009 when he handed over the property to Mr and Mrs Liu.

3. Mr and Mrs Liu were dissatisfied with the delay in completion of the renovation work; furthermore, they found the work performed by Mr Poon to be of poor quality and full of defects.  They now claim against Mr Poon for loss and damage suffered for the defects to be rectified and for the loss of use of the property during the period of delay in completion and for alternative accommodations during the rectification work, they further claim damages for the discomfort caused by the defective renovation work.  They are claiming a total sum of $826,230 from Mr Poon.

4. The defendant denies the renovation was poorly and unskilfully done or that it was performed without reasonable care.  He counterclaims against the plaintiffs for the balance of the agreed renovation charges in the sum of $149,130 with interest.

5. The plaintiffs rely on a joint single expert report dated 31 January 2011 on the quality of work performed by the defendant and the quantum assessed for rectification on 22 July 2011 with a supplemental assessment in April 2012.

Undisputed Facts

6. The defendant Mr Poon was introduced to the plaintiffs by their daughter who was a friend of Mr Poon’s daughter.

7. Mr and Mrs Liu consulted a number of interior design companies and obtained two other quotations for renovation work on the property in addition to Mr Poon’s.  They decided to engage Mr Poon to do the majority of the renovation work on the basis that Mr and Mrs Liu would purchase all floor and wall tiles, sanitary fittings, lighting equipments and door locks.  In addition, they would engage other contractors to provide and carry out the following installations:-

(a)  air conditioning;

(b)  kitchen cabinet unit;

(c)  aluminium sliding doors at the rooftop;

(d)  aluminium windows;

(e)  wooden furniture at the sitting area and cabinets at their daughter’s room.

8. On 4 August 2009, Mrs Liu and Mr Poon went to the management office of Taikoo Shing to make an application for interior design work to be conducted by Mr Poon’s firm Good View Ornament between 4 August 2009 and 30 September 2009.  The validity period was later extended to 10 October and then to 20 October 2009.  Mr and Mrs. Liu took possession of the property on 23 October 2009.

9. On 24 August 2009, Mrs Liu paid to Mr Poon a deposit in the sum of $100,000.  On 7 October 2009, she paid a further sum of deposit of $100,000 to Mr Poon.

10. Mr and Mrs Liu obtained an inspection report on the decoration work performed by Mr Poon on 12 November 2009 (“the Newrise report”).  The report was sent to Mr Poon on 22 December 2009.  A single joint expert report on the decoration work performed by Mr Poon was prepared by Mr Kenneth Chan on 31 January 2011.

The Plaintiff’s Case

11. The property is a penthouse unit on two floors; the upper floor on the rooftop is partly covered with an unroofed area used as a terrace garden.

12. The plaintiffs intended to move into the property with their two adult children after the tenant moved out in August 2009 and rent out their residential property in North Point.  Mrs Liu set about looking for interior design contractors for her family’s future home at the end of July 2009.

13. Mr and Mrs Liu engaged Mr Poon’s services after obtaining quotations from two other interior design companies because Mr Poon:-

(i)  was recommended by her own daughter who was a friend of Mr Poon’s daughter;

(ii)  claimed he had 30 years of renovation and decoration experience;

(iii)  claimed he had worked for many prestigious clients including Mr Li Ka Shing;

(iv)  claimed he had done work in over 30 properties in Taikoo Shing;

(v)  promised to complete the renovation work on or before 30 September 2009; and

(vi)  charged a fee between the two other contractors.

14. Mrs Liu said she decided to engage Mr Poon on 4 August 2009 after negotiations on his second quotation of 31 July 2009 upon deletion of some of the items and addition of other items.  They then attended the Taikoo Shing management office to lodge an application of interior decoration (p139 of bundle 2).  6 permits were given to Mr Poon and his workers allowing them access into the property between 4 August and 30 September 2009.  Mr Poon was given the key to the property on that day.

15. It is the evidence of Mrs Liu that the agreement between herself and Mr Poon was based on the revised 2^nd quotation (p134-135 of bundle 2) and an addition of 12 items of work set out in Mr Poon’s 4^th quotation dated 10 August 2009 for an additional sum of $90,500.  The parties later agreed to delete 3 items in the 4^th quotation consisting of item (2) erecting a brick wall at the master bedroom ($3,500), item (3) erecting a brick wall at son’s room ($6,000) and item (8) replacing the window grille at the rooftop ($1,500).

16. It was further agreed that Mrs Liu would purchase the tiles for the floor and wall while other bathroom fittings such as the water closets and bathtubs would be ordered by Mr Poon for Mrs Liu.

17. Mrs Liu was unhappy that Mr Poon was not able to produce drawings of the wooden cabinets despite repeated requests.  After they were built, she found the cabinets and wardrobes and the light boxes built by Mr Poon poorly designed and constructed.

18. Mrs Liu denied that Mr Poon’s work was delayed by her air-conditioning and aluminium door contractors.  She further asserted that all the revisions and additional works were settled by the end of August 2009, thus giving Mr Poon sufficient time to complete the renovation works on 30 September 2009.

19. Unfortunately, Mr Poon was not able to finish the work on 30 September 2009 and an extension to 10 October 2009 was agreed for Mrs Liu wished to move in on the next auspicious day on 13 October 2009.  Much to her displeasure, she discovered Mr Poon was not able to deliver the property on 12 October 2009, she had no choice but to apply for a further extension to 20 October 2009.  As a result, she could not vacate her flat in North Point and lease it out to tenants until she and her family could move into the property after 23 October 2009.

20. Mrs Liu further claimed that she had relied on Mr Poon to tell her the number of floor tiles required for the rooftop terrace, but Mr Poon miscalculated the number of tiles, as a result, she had to order more tiles on two occasions.

21. Mrs Liu admitted that she did not speak to Mr Poon about her dissatisfaction of his work because each time she talked to him about the work at the property he would complain to her and give her all kinds of excuses.  In the end, she just wished Mr Poon would leave the property.

22. Mrs Liu’s complaint of Mr Poon’s poor workmanship included the following:-

(i)  Painting work – the walls and ceilings at the property were cracked with hollow and uneven surfaces.

(ii)  Floor tiles – the wall and floor tiles were done poorly with cracks and uneven edges.

(iii)  Foot line – the skirting’s along the walls were done poorly with cracks appearing between the floor surface and the wall.

(iv)  Cabinets – the large cabinet partition between the master bedroom and the son’s room was poorly constructed and installed.  The doors of the cabinet in the son’s bedroom could not be closed and the cabinet partition is not soundproof.  There are cracks appearing between the top of the cabinet, the ceiling and the wall.

She relied on further details in the joint single expert’s report.

23. To facilitate rectification works at the property, Mrs Liu claimed her whole family would have to move out for a period of three months and alternative accommodations have to be found and paid for.

24. The plaintiffs are therefore claiming the following damages:-

(1)  rectification work by another contractor - $391,423;

(2)  materials wasted due to the defendant’s poor workmanship - $31,424;

(3)  alternative accommodation for 3 months - $239,100;

(4)  removal cost during period of rectification - $33,000;

(5)  loss of rental of North Point flat due to delay of 23 days - $17,633;

(6)  painting of the walls behind the kitchen cabinet - $50,000;

(7)  dismantling and re-assembling the new cabinet partition $13,650;

(8)  discomfort and inconvenience caused by defective work of the defendant $50,000

total damages claimed $826,230.

The Defence Case

25. It was Mr Poon’s evidence that Mr and Mrs Liu approached him on the renovation of the property in July 2009.  Mrs Liu had her own ideas for the renovation work she wanted done and the items she wanted him to carry out.  She told him she would make her own purchase of some of the building materials including wall and floor tiles.  At the early stage, he was not asked to build any furniture or cabinets.  After the first meeting on 23 July 2009, Mr Poon prepared a quotation on the items he was told to do and faxed it to Mr and Mrs Liu.

26. He informed Mrs Liu he would require 50% of the renovation fee to be paid upon completion of demolition and clearance work with the balance to be paid on completion of renovation work.  Though he did not specify it in the quotation sent to Mr and Mrs Liu, he had assumed the payment terms formed part of the agreement should Mr and Mrs Liu engaged his services.

27. Mr Poon claimed that the completion date of the renovation work was not discussed at the time.  He later received a call from Mrs Liu who told him his quotation was accepted.  When they attended the management office of Taikoo Shing to apply for a permit to conduct renovation work, she told him she would like to move in by the end of September.  At his suggestion, the expected completion date of 30 September 2009 was entered in the form.  He told Mrs Liu that he would complete his part of the renovation work by 30 September 2009 but he would have no control over the work of other contractors.

28. Work commenced on 4 August 2009 and he brought in a team of 11 workers with different expertise at different times and stages.  On or about 6 August 2009, after demolition work commenced, Mr Poon discovered that the two existing partition walls at the master bedroom were only supported by cabinets, a new wall would have to be erected if the cabinets were removed.  He also found the water pipes and electricity lines at the property had to be replaced because some of the electricity lines were loosely lying on the bottom of the floor tiles which was against building regulations.  Mr and Mrs Liu came up to the property to inspect and accepted Mr Poon’s recommendations.

29. Mr Poon also stated that Mr and Mrs Liu could not be contacted for instructions for a period of time in August.  When Mrs Liu came up to the property again, Mr Poon reminded her to tell him where she would like the water pipes and electricity sockets to be positioned and requested her to purchase the floor tiles.  It was not until sometime after 19 August 2009 that he was given a design sketch plan of the property with furniture and lighting outlets marked on the plan prepared by one “Décor Suite Interiors Ltd”.  She would orally amend the plans from time to time and give to him sketches with measurements of the furniture and cabinets to be built by him.  Mrs Liu would come to the property two to three times a week to inspect the work and discuss the details with him.  Sometimes, Mr Liu would be there too.  At these visits, they were attentive and would give new instructions and make suggestions.  It was on these visits that Mr Poon was told to add a new wardrobe and a book case.  The ‘L’ shape partition cabinet was also one of the items added.  In late September, they instructed him to construct a lamp/light box at each of their two children’s bedrooms.  In October, he was told to install marble window sills in the rooms.

30. Mrs Liu then told him that the management office had informed her the outgoing water pipes at the property had been altered by the previous owner against estate regulations, she was told to restore them to the original connections.  Further, the air conditioners were installed at unauthorised locations and had to be re-instated.  Mrs Liu instructed Mr Poon to do the pipework after which her air conditioning contractor would install the air conditioners.

31. In mid-September, Mr and Mrs Liu informed Mr Poon that they would ask another contractor to construct and install the four aluminium sliding doors at the upper floor of the property.  Mr Poon claimed the delay in the sliding door installation had delayed the completion of his renovation work.

32. As a result of the changes made and the additional work, he sent to Mr and Mrs Liu (“the Lius”) three further quotations with additional charges.  He claimed that in spite of his warning to Mrs Liu against poor quality tiles at discount prices, the tiles Mrs Liu purchased were found to be of inferior quality.  The two toilet bowls purchased by Mrs Liu were also of poor quality and one of them had to be replaced because it was found to be leaking after installation.  He said the Lius told him they were on a tight budget as a result of losses suffered at the stock market.

33. In mid-September 2009, Mr Poon informed Mrs Liu that it would not be possible to complete the renovation for occupation on 30 September 2009 because some of the work to be completed by other contractors had not been done.  He claimed she did not complain about the delay and agreed to extend the completion date at the management office.  He attributed the cause of delay to the Lius’ delay in notifying him the exact locations for the electricity sockets and waste and fresh water outlets. The electricity sockets and water outlet locations at the kitchen were dictated by the design of the kitchen cabinets and other furniture, but the kitchen unit contractor did not attend the property to take measurements until the end of August 2009.  The delay in the re-installation of the water pipes and air conditioners in compliance with the building management’s requirements was also a contributing factor.  As scaffoldings were required for the plumbing and air conditioning works, the management office’s approval and inspections before and after erecting the scaffoldings have to be obtained, these additional works further delayed completion of the renovation.  Furthermore, the tiling work in the bathroom could not start before the completion of the plumbing work.  For the same reason, the tiling work at the roof could not be done until the air condition ducts were installed and the scaffoldings removed.

34. Mr Poon further asserted that the tiles supplied by Mrs Liu were short in number resulting in delay to the tiling work.  When Mrs Liu asked him on 2 October 2009 the completion date for occupation, he told her as the aluminium sliding doors had not been installed, work at the upper floor and the staircase could not take place because of the dust and sand blowing into the property from the roof.  There was also no access up to the upper floor through the staircase when steps were not yet covered.  He claimed he was told by the sliding door contractor not to lay the tiles on the wall and floor of the upper floor before the doors were installed.  He told the Lius that he would require 15 days to finish the work after the doors were installed.  They accepted his explanations and did not complain about the delay.  They also agreed to chase up the aluminium door contractor to install the doors by 8 October 2009.  Unfortunately, the door contractor did not install the doors until the evening of 12 October 2009 and the installation was only completed on 13 October 2009.

35. Mr Poon’s team of workers completed the renovation work on 22 October 2009 and the property was cleared of debris on the same day.  At the time, the Lius thanked him for the work and complemented him on the cabinets he built.  He offered to return to check the property for scratch marks and bumps at a later date, Mrs Liu had also asked him to do some grouting work on the bathtub.  Even though the grouting work was not part of the contract works he had agreed to do it gratuitously.  It was a surprise to him when he mentioned it on the occasion he came across the Lius in early November 2009 that they turned him down.

36. Mr Poon said when he completed the works on 22 October 2009, the kitchen cabinet contractor had not yet installed the kitchen unit, the door at the daughter’s room had not been fitted as with the door of one of the cabinets in the living room by the other contractors.  He believed they were completed after 22 October 2009.  He also noticed from photographs disclosed in these proceedings, that aluminium windows were installed at the upper floor, they were not there on 22 October and the iron gate was removed after 22 October.  As he was not allowed to visit the property after that date, he claimed the scratch and bump marks at the property were caused after his handover on 22 October 2009.

37. When he contacted Mrs Liu a few weeks later to tell her he would be sending her an invoice for his work, she told him she would not accept it, her daughter then complained to him about his work.  On 22 December 2009, he received a letter from the Lius enclosing an inspection report from a company named Newise Contracting Limited prepared after an inspection of the property on 11 November 2009.

38. Mr Poon denied the Plaintiffs’ claim of 70 odd defects in the renovation work.  He believed the work conducted by the other contractors after his handover on 22 October 2009 was the major cause of the alleged defects while other defects were results of the degeneration of the pre-existing fixtures and fittings at the property.  He produced a large number of photographs of the property taken before and during the renovation work showing the pre-existing condition of the property.

39. He also alleged that due to the pre-existing condition and extra work added after the renovation work commenced, the delay in completion was inevitable and it was not caused by him.  Furthermore, his fees were clearly set out in his first to fifth quotations which Mr and Mrs Liu had agreed to and accepted.  As he was not allowed to return to the property to check and inspect the alleged defects, nor was he allowed to accompany the single joint expert on the day of inspection, he does not accept the plaintiffs’ allegations of defective work.

40. The defence counterclaims for the balance of the renovation fee in the sum of $149,130 with interest.

Issues in Dispute

41. The main issue of dispute is whether the defendant’s renovation work was defective and delayed in completion, if the work was, whether the defendant is liable to the plaintiffs, and what were their loss and damage.  The second issue is the defendant’s counterclaim.

42. In order to find out whether the defendant is liable, it is important to determine the following :

(A)  the scope of work the defendant was contracted to undertake;

(B)  whether the work was defective;

(C)  whether there was delay in completion; if so, whether it was caused entirely by the defendant or contributed by the plaintiffs;

(D)  if the defendant was liable, whether the plaintiffs suffered any loss and damage; if so, the quantum;

43. The parties have prepared an agreed Scott’s schedule of 43 pages.  I will refer to the items set out in the agreed Scott’s schedule in my consideration of the issues raised in paragraph 42 above.

Discussion

A.   The scope of contract work

44. The property is a 2400 square feet penthouse in Taikoo Shing which the Lius purchased in May 2009.  After the tenants vacated the premises at the end of July 2009, they invited Mr Poon to give a quotation for a number of items they wanted him to work on based on their instruction at an inspection of the property on 23 July 2009.  The first quotation from Mr Poon (“the 1^st quotation”) for the amount of $194,500 was sent to the plaintiffs on 29 July 2009.  The Lius, after discussing with Mr Poon, added new items and requested the defendant to give a second quotation (“the 2^nd quotation”).  The 2^nd quotation was sent to the Lius on 31 July 2009 for the price of $240,700.  After negotiations and selections, the Lius decided to accept Mr Poon’s 2^nd quotation and engaged him as their contractor for the renovation of the property based on the 2^nd quotation with certain adjustments.  They agreed on a tentative completion date of 30 September 2009 because Mrs Liu would like to move into the property at the end of September 2009.  Mrs Liu then applied for a permit for Mr Poon and his workers to work at the property between 4 August 2009 and 30 September 2009 at the Taikoo Shing estate management office on 4 August 2009 (p 139 of bundle 2B).

45. From the evidence adduced, I conclude the contract was a construction procurement contract with the employer supplying the design for the contractor to build or install providing no design ideas to the employer.  The employer, Mr and Mrs Liu did not engage the services of a designer or architect but relied on advice from design companies Mrs Liu consulted.  It is not a design and build contract as defined in paras 37-003 and 37-014 of Chitty on Contracts 31^st Ed but akin to a procurement contract described in para 37-013.  The evidence in support including the 4 August 2009 application for interior decoration work signed by both Mrs Liu and Mr Poon showed that Mr Poon was engaged as the renovation contractor by Mr and Mrs Liu on 4 August 2009 based on the 2^nd quotation as amended by the 3^rd quotation listing out the deleted items on 4 August 2009.  The amendment of the 3^rd quotation is in the form of an invoice/debit note on the deletion of 6 items of $41,200 (p 137 of bundle 2B).  These were items 7C, 7D and 7E at the bathroom, item 10 at the open plan kitchen on the upper floor, item 16 - the 72 inches wardrobe at daughter’s room and item 18 the wardrobe of 12.5 feet at the master bedroom.

46. It is important to note that under the 1^st and 2^nd quotations, Mr Poon was not required to undertake any electrical wiring work.  In fact, he was not asked to take it up until he started the demolition work and discovered the water pipes and electricity lines had to be replaced and a new brick wall had to be erected to replace the old partitioning cabinets at the master bedroom and the son’s room.  He told the Lius about the state of the premises and he was told to prepare the 4^th quotation on the 12 additional items.

47. On 10 August 2009, Mr Poon faxed to the Lius the 4^th quotation on the 12 additional items, it included the removal of the brick wall at the master bedroom replacing it with a new brick wall and the erection of a brick wall in the son’s room at the air conditioner area.  The remaining 9 items were at the upper floor including the re-tiling of the open area at the terrace, re-railing work, painting of the outer wall and replacing the aluminium window grille at the covered area, re-wiring of old power sockets, installing a power switch box at the upper floor and a high voltage main power switch box and replacing all electricity lines and installing 60 power points etc.  The total price for the additional work was $90,500 (p 141 of bundle 2B).  Soon after, the parties agreed to delete items 2, 3 and 8 of the 4^th quotation, taking $11,000 off. 

48. Mr and Mrs Liu apparently accepted Mr Poon’s 4^th quotation for Mrs Liu gave Mr Poon a floor sketch of the property with the locations of the power sockets on 16 August 2009 and he was given a deposit of $100,000 on 19 August 2009.

49. There is a disagreement between the evidence of Mrs Liu and Mr Poon over the installation of the aluminium doors at the upper floor as to whether it was Mr Poon who refused to install it or Mrs Liu who told him she had found another contractor specializing in aluminium doors.  Mrs Liu claimed Mr Poon had declined to take it up at an advanced stage of the renovation work and she had to find a contractor within a short time as a result.  As there was no reference to the installation of aluminium doors in any of the four quotations from Mr Poon, it could not have formed part of the contract work though Mr Poon may have agreed to look for a suitable contractor for the Lius.

50. In early October 2009, Mr Poon gave to the Lius a 5^th quotation setting out all the items of work he agreed to perform including the 10 new additional items.  This quotation in fact contained all 40 items of work Mr Poon had undertaken for the Lius under their agreement.  On the basis of this quotation being prepared and sent to the Lius, the contents of this quotation must be the scope of work agreed between the parties.  The Lius’ acceptance of the 5^th quotation is particularly reflected in the second $100,000 payment to Mr Poon on 7 October 2009.  Mr Poon claimed a final adjustment of all work done after completion was recorded in the 6^th quotation/invoice sent to the Lius in November 2009 at $349,130 through the Lius’ solicitors, it stated that after the deduction of the deposit of $200,000, the balance of $149,130 was outstanding. (p 150 bundle 2B)

B.  Whether the work was defective

51. The parties agreed to engage a single joint expert to report on whether there were any defects in the work performed by Mr Poon under schedules 1,2 and 3 of the statement of claim and the cause of defects.  The report was completed on 31 January 2011 (p 529 – p 532 of bundle 3) by Mr Kenneth Chan Jor Kin of KC Surveyors. A second report was prepared by Mr Chan on 22 July 2011 on the extent and assessed value of the decoration work at the property with clarifications and further comments on 17 February 2011, 28 February 2011, 17 March 2011 and 2 April 2012.

52. In Mr Chan’s first report, he said Mr Poon was not responsible for the uneven plastering because the painting work under the contract did not include re-plastering of the walls and ceilings.  However, he considered Mr Poon was responsible for the cracks and hollow plastering found at some areas of the ceilings and walls after Mr Poon’s touch up and paint work completed (p 516 para 5.6 of bundle 3).  He confirmed the quality of the tiles was acceptable but found the unevenness in the floor tiles “was due to the poor workmanship of the tile laying works carried out by the defendant” (p 516 para 5.11 of bundle 3D).  He also said that most defects at the property “were solely caused by the poor workmanship of the works carried out” by Mr Poon (para 5.12 at p 516 of bundle 3D).

53. Mr Chan set out in 3 schedules the paint work on the ceilings and walls at the property, the unevenness of floor tiles and the various other defects at the living room, bathrooms, bedrooms, staircase and rooftop area.  They are adopted in the agreed Scott’s Schedule in the same order.

54. Mr Poon disagreed with most of the findings of the single joint expert Mr Chan and raised a number of points in his defence.  He claimed Mr and Mrs Liu were monitoring the work progress all along and they did not complain about the work at the time neither did they complain about the delay or quality of the workmanship.

55. As to the other items of defective work set out in the 3 schedules in the statement of claim which the expert found Mr Poon to be liable, Mr Poon’s response is as follows :

Schedule 1

(1)  Unevenness in the painting of the walls and ceilings – (item 5 of 5^th quotation)

–   He is not liable for the uneven plastering on the walls.  There were pre-existing unevenness and hollow plastering in the wall and ceiling.  He was only contracted to paint the walls and ceilings not to do a total re-plaster job.  The cracks and hollow plaster appearing on the walls and ceilings were due to pre-existing conditions.

(2), (19) & (20) – Dissatisfactory polish in foot line – (item 13 of 5^th quotation)

–   He did not agree the workmanship was poor. In any event, it was not part of the agreement to fill up the cracks even if they existed.

(3-11), (13-18), (25-26), (28-32), (36-40), (43), (67), (70-75), (81-83) and (85) – Cracks or unevenness in the painting of the wall and ceiling – (item 5 of 5^th quotation)

–   It was not part of the contract work to re-plaster the ceilings and walls at the property.  A lot more work would be required to even out the walls and ceilings.

(12) – Stains or cracks on glazed sliding door –

–   He denied it was caused by him. He had taken protective measures by boarding up the glass doors and sealing the edges with tape before starting work.

(20) – Nail hole in foot line – (item 13 of 5^th quotation)

–   The holes were a necessary part of the skirting board installation process.  He had touched up the holes after the installation, he would have done further touch up work had the Lius requested it.  They did not do so.

(21) – Crack at handrail of the staircase – (item 14 of 5^th quotation)

–   He did not cause the crack, the cracked area shown in the photograph did not have any lacquer, indicating it was caused after he polished the handrail with lacquer.

(22-24) – Poor finishing at stair – (item 21 of 5^th quotation)

–   He did not put fillers in the joints between the cabinets or staircase and the floor; it was not part of the contract work.

(49-50) – Stains and crack on door – (item 15 of 5^th quotation)

–   He was contracted only to repaint the door.  He did not cause the crack or stain.

(51-65), (76-77), (88-89) – Unevenness between the floor tiles – (item 11 of 5^th quotation)

–   The tiles were purchased by the Lius.  He had informed Mrs Liu the quality of the tiles was poor and the edges were uneven, she told him to go ahead anyway.  He did not see anything wrong with the floor tiles at photos PR29, 30, 31, 38, 47 and 48.  In any event, Mrs Liu did not complain to him when the tiles were laid on 24 and 25 of September 2009.

(69) & (79) – Missing of opening for maintenance of the light boxes  – (item 34 of 5^th quotation)

–   The design was Mrs Liu’s. She requested a hidden opening, he had given her a drawing on the access for maintenance of the two light boxes.

(78) – Insufficient painting at cabinet – (item 40 of 5^th quotation)

–   He disagreed there was insufficient painting of the cabinets.

(86-87) – Cabinet door difficult to open and close – (item 40 of 5^th quotation)

–   He would have adjusted the hinges of the doors had Mrs Liu asked him to do so.  He had told her on completion he would touch up and make adjustments to all the work done by him.

Schedule 2

Living room –

(1) & (3) – Unevenness, cracking and roughness of roof terrace plastering and painting.  Most of the tiles have voids – (item 5 of 5^th quotation)

–   Same response as schedule 1 (1), (3) & (4).

(2) & (6) – Unevenness between floor tiles – (item 11 of 5^th quotation)

–   Same response as schedule 1 (51).

Bedroom –

(7) – Cracking, unevenness and roughness of the paint on the wall; poor plastering – (item 5 of 5^th quotation)

–   Same response as schedule 1 (1), (3) & (4).

(8) – Cabinet door is slanted and cannot be closed – (item 40 of 5^th quotation)

–   Same response as schedule 1 (86) & (87).

(9) – No maintenance access at the light boxes – (item 34 of 5^th quotation)

–   Same response as schedule 1 (69) & (79).

(10) – The cabinet partition between the rooms is slanted, the top is seriously slanted, and there are cracks where the air-conditioners are located – (item 40 of 5^th quotation)

–   The drawings of the partition cabinet were given to him by Mrs Liu.  She further requested him to build two boxes to encase the two air-conditioners.  He found the cabinets did not align with the two air-conditioner boxes because of the discrepancy between the drawings of the cabinets and the air-conditioner boxes.  He tried his best to adjust and align the cabinet partition by thickening the boards at the back of the wardrobe and cabinet.  The problem stemmed from the design and the drawings.

The staircase –

(11) – The stair is not properly made – (item 21 of 5^th quotation)

–   The defect was due to the structure of the staircase.  The contract work was to replace the old covers on the steps with new ones only.

(12) – The first step on the top is slanted – (item 21 of 5^th quotation)

–   Same response as (11) above

.

(13) – Unevenness of the plaster on the wall – (item 5 of 5^th quotation)

–   Same response as schedule 1 (1), (3) & (4).

Roof top –

(14) – The plaster and paint of the red light trough is uneven and rough

–   Not a contract item.  Mrs Liu asked him to paint the trough with the red paint she bought.  He did not charge for the extra work.

(15) – The wall tiles were not properly applied – (item 4 of 5^th quotation)

–   Not a contract item. Disagree with expert.

(16) – Unevenness between floor tiles – (item 24 of 5^th quotation)

–   Same response as schedule 1 (51).  The floor was uneven.

(17) – White grease stains on the floor – (item 24 of 5^th quotation)

–   Same response as (16) above.  The problem was caused by natural weathering.

(18) – Unacceptable renovation of the wall – (item 26 of 5^th quotation)

–   He denied there was any defect.  He painted 2-3 coats of sand paint over the roof top outdoor walls. The dirt could be removed by careful cleaning.

Schedule 3

(1) – Defects of cabinet partition wall of master bedroom and son’s bedroom – (item 40 of 5^th quotation)

–   Same response as schedule 1 (86) & (87).

(2) – Unevenness of the staircase – (item 21 of 5^th quotation)

–   Same response as schedule 2 (11).

(4) – Roof terrace tiles not properly laid with serious voids – (item 24 of 5^th quotation)

–   He disagreed with the expert.  The mosaic wall tiles at the terrace had to be retained under the contract, his work was to paint over the wall tiles and replace the old and loose tiles on the wall and the skirting only.  It would require considerable work if the roof water- proofing layer was removed and replaced before laying of new tiles, it was not part of the contract work. 

(5) – Plastering and painting are not properly applied – (item 5 of 5^th quotation)

–   Replastering was not a contract item.

(6) – Voids found on floor tiles – (item 24 of 5^th quotation)

–   He disagreed with the expert.

(7) – Balcony ceiling – (item 2 of 5^th quotation)

–   It was not a contract item.

(9) – Kitchen – unpainted wall behind the kitchen cabinet

–   It was not a contract item.

56. Mr Poon’s further response on the remedial work suggested by the expert was that the work referred to was not the contract work and he had offered to touch up the paint work of the wooden furniture he built but the offer was refused by the Lius.

57. The defects can be summarized and categorized as follows :

a)  unevenness of painting, with hollows and cracks on the walls and ceilings with poor plastering;

b)   poor finishing of foot line (skirting) and nail marks;

c)  stains or cracks on glazed sliding door;

d)  poor finishing of the stairs and crack at handrail;

e)  stains and cracks on the main door;

f)  unevenness of floor tiles;

g)  missing opening for maintenance of the two light boxes;

h)  poor painting work, slanting of the partition cabinet and difficulty in closing and opening of doors of cabinet; poor sound proofing of cabinet partition;

i)  poor painting work of red light trough and painting of the external walls at roof terrace;

j)  uneven floor tiles at roof terrace;

k)  other alleged defects.

a)  Unevenness of painting hollows and cracks of the walls and ceiling – (items 1, 3-5, 11, 13-18, 25-26, 28-32, 36-40, 43,67, 70-75, 81, 83 & 85)

58. According to the joint single expert Mr Chan’s report, the cause of the complaint was the poor quality of workmanship and uneven plastering.  In his opinion, remedial work would cost $68,661.72 (item 3 of expert’s supplemental report of 2 April 2012 at p 648 of bundle 3D).  The expert accepted that Mr Poon’s contract work did not include plastering and some of the defects would require replastering. Mr Poon claimed he had informed Mr and Mrs Liu that a proper painting work including removal of old paint and total re-plastering of the walls and ceilings of the property should be performed, but it was turned down by them.  I assume this accounts for the difference in the price under the contract of $48,000 and the valuation by the expert of $68,661.72.

59. If Mr Poon had informed the Lius of the poor condition of the walls and ceilings and the Lius refused to take his advice, he is not liable for the poor outcome.  On the other hand, if he was reckless and did not care about the condition of the walls and ceilings at the property before the painting work or failed to inform the Lius, he may he held liable for the cracks and uneven condition.  Even so, Mr Poon should have been allowed to return to do the touch up remedial work after the handover if the Lius were unhappy about the work.  As a build only contractor the warranty of ‘fitness for intended purpose’ is limited.  I refer to Chitty on Contract para 37-079 on the obligation of the ‘build only’ contractor:-

“The scope for the implication of a warranty as to fitness for intended purpose will vary considerably depending upon the nature of the express obligations of the contractor.  Where the express obligations of the contractor are broadly in the nature of “design and build” obligations, then there will be far greater room for the implication of the warranty as to fitness for intended purpose.  Where, however, the contractor is required to carry out work in accordance with detailed plans or a specification provided by another, then there is little room for the implication of the warranty.”

b)  Poor finishing of foot line and nail marks  – (items 2, 19-20)

60. In the expert’s opinion, the defects were due to poor quality workmanship and the skirting boards should be repolished at a cost of $2,100.  After reviewing the relevant photographs, I find the work was indeed poorly finished requiring touching up. I also find it hard to believe that the Lius had told Mr Poon there was no need to seal up the gaps and holes because the skirting would be covered by furniture.  Mr Poon should have done the touch up work before the handover.

c)  Stains or cracks on glazed sliding door  – (item 12)

61. Mr Poon denied he or his workers had caused the stains or cracks, claiming he had boarded up the doors and sealed the edges with tape.  The expert’s opinion was ‘poor quality of workmanship’, as Mr Poon’s contract did not extend to the doors, and the evidence is not clear whether they were caused by his workers or the other contractors after his handover, I therefore find he should not be held liable.

d)  Poor finishing of the stairs and crack at the handrail – (item 21-24)

62. Mr Poon denied the crack was caused by him, he claimed it was caused after the completion by other contractors.  As to the poor finishing of the steps on the stairs, he claimed it was due to the pre-existing defect of the staircase constructed by the developer because the unevenness was not there at the time of completion.  On the crack on the handrail, Mr Poon was contracted to give a lacquer varnish to the handrail, there was no clear explanation from the expert what could have caused the crack other than ‘poor workmanship’.  The photograph of the crack and broken veneer seems to suggest the handrail was hit by a hard object (p 306 photo 30 of Bundle 2B) which was not there on completion.  On that basis, I am not satisfied it was caused by poor workmanship that Mr Poon should be liable for the crack on the handrail.  As to the poor finishing of the steps on the stairs, it is clear the steps were slanted and the edges uneven.  I am satisfied the slanted steps and uneven edges were caused by poor workmanship.

e)  Stains and cracks on the door  – (item 49-50)

63. Mr Poon claimed that he had told the Lius that both the door and the frame should be replaced, but they had turned it down.  His contract work was only to varnish the door, he was later told to paint it in white colour.  As the door was fitted together by many pieces of wood, the white colour paint would show the joints of the pieces of wood on the door, he was told to spray‑paint the door in yellow colour paint instead.  He claimed he had sanded down the door and applied sealant to fill up the gaps before painting the door and there were no cracks at the handover.  He further claimed that after completion at handover, the door had a burglar chain which is missing in the expert’s report photograph and the door in the photo showed signs of the chain had been removed and the holes filled up.  It was not done by him.

64. After viewing the pre and post-renovation photographs of the door, I agree it is inevitable that gaps would show at the joints of the door after prolonged use in spite of the repainting work for it is an old door with the floral design joined together by different pieces of wood.  I accept the holes left by the removal of the burglar chain could not have been touched up by Mr Poon because he was told not to remove the chain.

f)  Unevenness of floor tiles  – (item 51-65, 76-77, 88-89)

65. Mr Poon claimed that the tiles purchased by the Lius were uneven at the edges.  He disagreed with the expert that the unevenness was due to poor quality of tile laying work.

66. After viewing the photographs of the areas with uneven indoor floor tiles, I agree with the expert that it was caused by poor workmanship.  Mr Poon should have levelled out the floor before the tiling work was performed.  I accept part of the floor tiles should be re-laid with 10% of the tiles to be replaced.

g)  Missing opening for maintenance of light boxes – (item 69 & 79)

67. Mr Poon claimed that the access for maintenance was to loosen the screws on the boxes.  The expert assessed a remedial cost of $1,050 to create an opening for maintenance.  I agree Mr Poon’s access method is not feasible for regular maintenance.  Remedial work on the boxes is necessary.

h)  Poor painting work and slanting of the cabinet partition, difficulty in closing and opening of the cabinet doors and poor sound-proofing – (item 78, 86 & 87))

68. The expert recommended adjusting the hinges and touching up the paint as a remedial measure at $1,050.  I agree it is a reasonable remedial measure and the hinges should be adjusted to be followed by paint touch up. 

i)  Poor painting work of red light trough and painting of the external walls at the roof top terrace – (items 14, 15 & 18)

69. It is clear from the photograph of the external wall at the terrace and the red light trough taken by the expert that the paint was poorly applied.  The greyish patches are clearly not dirt but evidence of poor painting work.  It should be repainted.

j)  Poor tiling work on roof terrace with voids and grease – (items 16 & 17)

70. The roof floor tiles were poorly laid.  Mr Poon claimed that the floor tiles were laid on top of old tiles because the Lius did not wish to damage the water-proofing of the roof.  The expert disagreed this could be done without removing the old tiles and water proofing the roof before new tiles were laid. Under items 23 and 24 of the 5^th quotation, the work included removal of the old floor and skirting tiles and reinforcing the water-proofing layer, it was part of the contract work.  Even though Mr Poon was told he should not disturb the existing water proof layer he should have removed the old tiles and reinforced the water proofing before laying the new tiles.

(k)  Other alleged defects

71. I find that the further allegations of : (1) Mr Poon failing to provide a drawing of wardrobes and cabinets to be unfounded as it was not an original contract item.  He claimed he had never done any drawings and would not agree to do so for any of his customers.  I accept that it was Mrs Liu who was to supply Mr Poon with the wardrobe and cabinet design drawings she wanted him to build. She clearly had her own ideas of what the wardrobe partition should look like for she had initially intended the wardrobes and cabinets to be built by another furniture contractor.

72. I further find it is unrealistic to expect a cabinet partition of the two bedrooms to be sound-proof.  Cabinets and wardrobes are by nature hollow and incapable of being sound-proof.  I accept Mr Poon’s explanation that it was not a term of his contract to erect a sound proof partition.

73. As to the unpainted doorway found after the metal gate was removed, it is obvious that if Mr Poon was not asked to remove the metal gate, he would not be able to paint the area covered by the gate.

74. As to the wall behind the kitchen unit, if the Lius had intended it to be painted even though it would be covered by the new kitchen unit, they should have clarified and requested the work to be done at the time when the painting work was executed.  Further, if it was part of the contract work, they would have raised it on 23 October when the property was handed over before the kitchen unit was installed, as it would not involve moving the kitchen unit if it was done at that time.  I am not convinced the remedial work would cost $50,000 because the cost of painting all walls and ceilings of the property charged by Mr Poon was only $48,000.  The quoted price reflected the standard and quality of the work contracted.

75. It is unfortunate that Mr Poon was not allowed to return to check and touch up after completion and the plaintiffs had failed to draw up a defects list (a usual practice in building and renovation projects) after completion for Mr Poon to execute.  Some if not all of the defects could have been rectified by Mr Poon and his workers if he was allowed to do so.  It is obvious the plaintiffs have failed to mitigate their loss and damage.

C.  Whether there was delay in completion

76. According to the evidence of Mrs Liu, Mr Poon agreed to complete the renovation work by 30 September 2009 and she had chosen an auspicious day to move into her new home.  Unfortunately, the property was only handed over to her on 23 October 2009.  The completion date was postponed twice and she had to amend the work application at the Taikoo Shing management office twice because of the delay.

77. There were 5 quotations issued showing deletions and additions to the contract work requested by the Lius after work started on 4 August 2009.  In all, there were 6 cancelled items and 19 new items added to the initial quotation.  Mr Poon’s evidence was, he had informed the Lius repeatedly when new items of work were added that the work could not be completed on 30 September 2009.  In particular, he referred to the master bedroom and the son’s bedroom wardrobe and cabinet which were only added in early October 2009.  He was to build them according to drawings given to him by Mrs Liu with specific measurements and design.  The wardrobe and cabinet were to be built by another furniture contractor before early October.

78. Mr Poon asserted that delays were also contributed by the Lius’ other contractors including the air conditioning and kitchen unit contractors who delayed in supplying the exact locations and dimensions of the air conditioners and the power sockets, fresh and waste water outlets.  Further delays were caused by the management office in approving the restoration and reconnection of water pipes, erecting the scaffoldings and the late delivery and short supply of wall and floor tiles purchased by the Lius.

79. The most significant delay according to Mr Poon was the aluminium door contractor because he could not start work on the upper floor indoor area as the painting and tiling work would be affected by wind and dust coming through the open doorway even though he had covered the doorway with plastic sheets.  Furthermore, the wall tiles adjacent to the aluminium sliding doors could only be laid after the doors were installed and walls in the upper floor were painted after the doors were in place.

80. He also blamed the air conditioning contractor for installation delay as a result of which, the work on the boxes encasing the air conditioning outlets was delayed.

81. Upon reviewing the issuing dates of the 5 quotations, the new items added such as the re-wiring of electricity lines, the main switch box installation and re-positioning of the water pipes and outlets, it is reasonable to expect there would be delay in completion of the renovation work by Mr Poon.  As the terrace aluminium doors were not included in any of the quotations, it can only be concluded that it was not a contract work item for Mr Poon.

82. Mrs Liu had gone to the management office to amend the date of completion of work twice.  This indicated that she knew and had agreed to the delay in completion.  This is particularly so when new items of work were added in early October after the original 30 September completion date, indicating the Lius expected and accepted there would be delay in completion.

83. On the aforesaid basis and that there were major additional items of work involving plumbing and electricity re-wiring, and further items of wardrobe and cabinets etc, a delay of 23 days is reasonably expected.

D.  Quantum of Damages

84. The single joint expert had prepared a valuation report on the work done by the defendant and a valuation of rectification work done or to be done by the plaintiffs in his second report of 22 July 2011 with a follow up supplemental valuation on 2 April 2012.  He gave an assessment of $300,600 of the work performed by Mr Poon. 

85. The expert did not assess the value of the removal work of the old brick walls, bathroom tiles and fittings, floor tiles etc, done by Mr Poon because the demolished items no longer existed at inspection.  He valued the rectification work required at $153,000. 

86. Mr Chan was appointed jointly by both parties under Order 38 rule 4A, his report is therefore an independent report.  Unfortunately, the defendant disagreed with the findings of the expert.  He claimed he was not permitted by the plaintiffs to be present at the expert’s inspection and the expert had not seen the condition of the property before the renovation or after the demolition work showing the condition of the plumbing and the electricity lines.

87. I do not accept the defendant’s reasons for rejecting the expert report, the inspection visit was attended by the defendant’s then solicitor to whom the defendant must have given full instructions.  It is also expected that he would have disclosed the photographs taken before and after the demolition to his own solicitors and his solicitors should have disclosed them to the expert before the inspection.  If Mr Poon failed to show those photographs to his solicitor at the time, he has only himself to blame.

88. In the notes of Order 38/4A/7 at p 776 of the Hong Kong Civil Procedure 2013, it stated :

“Weight to be given to a single joint expert’s report – In Coopers Payen Ltd v Southampton Container Terminal Ltd [2003] EWCA Civ 1223 (considered by Lam J in L v L, supra), the English Court of Appeal held that the evidence of a single joint expert should be assessed in light of all other evidence before the court. Clarke L.J. (para 41) accepted the submission that Peet v Mid-Kent Healthcare Trust (supra), did not establish that the evidence of the single joint expert must be accepted by the court. The court must take its own view of the expert evidence in the light of the other evidence. The assessment of the weight to be attached to the evidence of the single joint expert must depend on the circumstances of each case. Where a witness of fact gives evidence on an issue that is contrary to that of the single joint expert, the judge should make a considered choice as to which evidence to accept, but that it should be unusual to disregard the expert’s evidence.”

89. After careful consideration of the evidence adduced by both parties, the expert’s reports and the photographs of the property before, during and after renovation work by the defendant and the explanation of the defendant, I find the defendant to be liable for some of the defects due to poor workmanship.  I accept Mr Chan’s valuation of Mr Poon’s work and remedial work (p 648 of bundle 3D) with the exception of item 21 the handrail crack, item 7 the painting of the main door, and the stains after removal of the door chain.  As to item 3, the painting of the indoor walls and ceilings, I am not convinced the defendant’s work on the indoor painting of walls and ceilings should be completely disallowed because his contract work for $48,000 did not include replastering of all the walls and ceilings and not all the painted walls and ceiling have cracks.  He should have advised the Lius to agree to a full replastering job before painting.  It may be an implied term on the contractor to carry out his work using all proper skill and care (para 37-076 Chitty on Contract 31^st ed), on the other hand, based on the facts of the present case, I am not persuaded that the contractual duty of reasonable care owed by the defendant would give rise to a tortuous liability for negligence.  Had the plaintiffs allowed the defendant to conduct remedial touch up work on the property, some if not all of the defects would have been rectified. 

90. For the aforesaid reasons and under the principle of abatement, I would allow an award of $20,000 as a contribution to the $68,661.72 valued by the expert for repainting of the walls and ceilings.  On the 2^nd item of the expert’s valuation (at p 648 bundle 3D) on the retiling of the roof terrace, though Mr Poon was instructed not to disturb the water proofing of the roof, he had contracted to re-enforce the water proofing layer, he could not have done so without removing the old tiles.  I find he is responsible for a part of the cost of the retiling of the roof tiles.  I will allow the sum of $24,000 as contribution towards the cost of retiling.  As to the retiling of the areas of uneven floor tiles in the property referred to at para 60 above, remedial work on the hollow and uneven areas are required, I will allow a contribution of $12,000.  As to Item 6, I allow $800 for the remedial work on the steps of the staircase and disallow item 7.  The total sum Mr Poon is liable for under the expert’s valuation of rectification list on page 648 of bundle 3D is: $1,151.01 + 24,000 + 20,000 + 12,000 + 2,100 + 800 + 1,050 + 1,050 = $62,151.01  (see annex)

91. The expert prepared his valuation of retiling the uneven and hollow tiles at the property including the floor and roof tiles after taking into account that 10% of the materials would be replaced, therefore, I do not think the plaintiffs’ claim for wasted materials is justified.  It is to be noted that the costs of the retiling work exceeded the original $30,000 and $24,000 charged by Mr Poon.

92. I do not accept that the remedial work would require a period of three months to carry out when Mr Poon took only 2 months and 19 days to complete the renovation. Furthermore, the plaintiffs would not require alternative accommodations for the period when the remedial work is carried out because the property has 2 floors with an outdoor terrace, the painting and touch up work could be carried out in stages involving different parts of the property at different times.  I disallow this item and the cost of removal for the remedial work.

93. I further dismiss the plaintiffs’ claim for loss of rental of their North Point flat for I found the delay was reasonable given the nature and volume of additional work.

94. I have also found there was no agreement to paint the wall behind the kitchen unit as it was not a contract item, therefore, this item is not allowed.  As to the partitioning cabinet, in the expert’s opinion, the cabinets and the doors should be adjusted followed by paint touch up.  It has been dealt with under item 10 of his valuation at page 648 of bundle 3D and the annex.

95. As I have accepted the expert’s valuation of the remedial work above, there is no need for me to make further assessments on individual items save for those set out above at para 90 above and in the annex.  I found the plaintiffs’ claim for discomfort and inconvenience had not been satisfactorily proved.  In any event, they are relatively minor, the plaintiffs should have raised it with the defendant at handover and allowed him to rectify the defects immediately; as they failed to do so with the majority of ‘defects’ unrectified, they must have felt the condition tolerable.  This item is therefore not allowed.

96. As to the defendant’s counterclaim, I allow it as it was the balance of the contract price.  It shall be set off against the damages awarded above, leaving a balance of $86,978.99 as judgment on the counterclaim.

Interest

97. I allow interests on both the claim and counterclaim at half judgment rate from the date of writ to date of judgment, thereafter at judgment rate.

Costs

98. Costs shall follow the event.  Costs of the claim to the plaintiffs and costs of the counterclaim to the defendant to be taxed if not agreed with certificate for counsel.

Annex

Valuation of rectification works to be done by the plaintiffs

Contribution by the defendant: