HO KAM PUI v. LAM KONG YIN

HCA9944/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9944 OF 1997

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J U D G M E N T

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THE PLAINTIFF'S CLAIM

1. The plaintiff claims the sum of $205,610 from the defendant. The plaintiff is a decoration contractor. In June 1996, he was instructed by the defendant to decorate his flat in Repulse Bay. The defendant approached the plaintiff through the introduction of his former colleague. The defendant's flat is in a highrise building. It has two levels which are connected by an internal staircase. The flat is a large one by Hong Kong standards. It is about 3099 sq.ft.

THE QUOTATION

2. The plaintiff went to the flat where the defendant informed him the work that he would require to be done. Afterwards the plaintiff prepared a quotation for the work in the sum of $833,000. The work covered by the quotation included six items, namely :

(1) Woodwork, such as doors, door frames, clothing cabinets, staircase steps, floor skirts, ceiling mouldings, false ceilings, construction of a cockloft and false ceilings in the toilet;

(2) Demolition of wall and clearing debris. Construction of brick walls, plastering and the installation of tiles. The estimated area was 29 units (100 sq.ft. per unit);

(3) Removal and installation of aluminum windows of about 1,100 sq.ft. and three sets of aluminum balcony railings;

(4) Painting work - this included painting and installing wallpaper. The wallpaper would be supplied by the defendant;

(5) The installation of piping work;

The price of $833,000 did not include the electrical work.

3. The quotation was dated 4 June 1996. Subsequently on 13 June 1996, the defendant agreed to instruct the plaintiff to carry out the decoration work at $800,000. On the same day, the defendant paid $100,000 to the plaintiff. On 14 June 1996, the plaintiff commenced the decoration work.

4. The quotation set out in general terms the description of the work but it did not provide for the method of payment. It was agreed by the parties that the defendant would pay according to the progress of the work.

5. The quotation also did not provide for the completion date of the work. The plaintiff told the defendant that the work would take about two odd months. No deadline was imposed by the defendant. In view of the number of public holidays in June, he would do the work as quickly as he could. The defendant told him to work diligently and do it as quickly as he could.

WORKS NOT REQUIRED AND ADDITIONAL WORK

6. In the course of the work, the defendant did not require the plaintiff to carry out four types of work, namely, the aluminum window, the balcony railing, the staircase steps and the floor skirts. The plaintiff also carried out additional work for the defendant.

COMPLETION

7. The defendant completed the decoration work on 30 September 1996.

FINAL ACCOUNT

8. Thereafter the plaintiff rendered various invoices to the defendant. The final account that was rendered which included the additional work and the electrical work was for the sum of $205,610 now claimed by the plaintiff. This sum had taken into account $580,000 paid by the defendant. Of this sum, $540,000 was paid directly to the plaintiff while $40,000 was paid by the defendant to Mr Kwok, the electrical and water contractor with the approval of the plaintiff.

THE DEFENCE

9. The defendant agreed that the plaintiff had carried out decoration work in his flat. He, however, denied that the plaintiff is entitled to his claim. He alleged that the plaintiff had been in breach of contract in that :

(1) He failed to complete the decoration work within time. The plaintiff had agreed to complete the work on 31 July 1996.

(2) The plaintiff refused to carry out the four types of work, namely, the aluminum window, the balcony railing, the staircase steps and the floor skirts, resulting in the defendant instructing other contractors to carry out the work.

(3) The plaintiff had exaggerated his claim in relation to the actual work done.

(4) In respect of the electrical work of $119,520 claimed by the plaintiff, the defendant admitted that $112,570 was due but the balance was in respect of work not instructed by him.

(5) The defendant had carried out the work with defective workmanship, many of the works required rectification.

(6) Many of the additional works in fact come within the works described under the quotation and as such the defendant is not liable to pay for them. Of the additional work, the defendant only admitted the sum of $27,890.

(7) Apart from the sum $580,000, he had paid another $13,000 to another contractor of the plaintiff, namely, Mr Lam Shek Pai ("Mr Lam").

ASSESSMENT OF THE PARTIES

10. The impression I find of the plaintiff is that he was a straightforward man. He was certainly not sophisticated. While there were one or two unsatisfactory aspects of his evidence, as a whole, he gave a truthful account of the events that had taken place.

11. The defendant is an accountant by profession. Although he was initially represented by solicitors, he chose to conduct the trial himself. The impression I gained from his conduct of the case is that he was a clever person. Obviously, by reason of his profession, he was very good with figures. He was also a particular and patronizing person. He obviously had treated the plaintiff in a condescending manner. I also find that on many important issues he had not given truthful answers.

12. An indication of the mindset of the defendant can be found in the list of deductions which he prepared and discussed with the plaintiff and his contractors during the negotiation for payment long after the completion of the work. This list consisted many items of deduction which are extremely trivial and many of which were no longer pursued by him. His attitude then was to refuse to pay any further money to the plaintiff for his work.

13. The plaintiff had accommodated the defendant greatly. This was not because he had exaggerated his claim and therefore had to reduce them, but rather he made the reduction so that he could obtain the payment from the defendant as quickly as possible. His aim during the negotiation with the defendant at the end of 1996 was to obtain money from the defendant in order to pay the other contractors involved in the work. At one stage, he was even prepared to deduct the four items of work if the defendant was able to provide him with the receipts from his own contractors who carried out the work. However, the defendant was not prepared to discuss the matter further and left the meeting.

MY FINDING ON THE COMPLETION DATE

14. Before the defendant agreed to instruct the plaintiff, he had obtained three or four quotations from other contractors. These quotations were more expensive than that of the plaintiff - one quotation was for $1,000,000, another for $1,100,000. The time that would take for these contractors to complete the work would also be longer, the quickest one was two and a half months. The defendant chose the plaintiff because the plaintiff offered the lowest price and the quickest time to complete the work. The defendant argued that there was no reason why he would ask someone to carry out the work without any agreement as to the date of completion. Mr Mak, the expert instructed by the defendant, who is an authorised person and a surveyor stated that he had not come across a contract in which there was no provision for the date of completion.

15. While it would be odd if the parties had not discussed the time that would be required to complete the work, in this case, I accept the evidence of the plaintiff that there was no agreement that the work was to be completed at the end of July 1996. I accept his evidence that he had informed the defendant that the work would take about two odd months. He would try to work as quickly as he could and this was agreed by the defendant. This does not mean that the plaintiff could take as long as he like to complete the work. Afterall this is a lump sum contract (subject to questions of measurement on the brick work and the painting work which I would deal with later on), the plaintiff had stated that he needed to take into account the cost element as well. In my view the absence of an express agreement on the completion date is not as surprising as it may first appear. The quotation itself also did not provide for the payment terms. The plaintiff did not own a company. He worked on his own. The parties clearly had agreed to treat the decoration on an informal basis. While they understood the work would take about two odd months to complete, there never was any agreed completion date.

16. I do not accept the defendant's evidence that there was any agreement that the work was to be completed on 31 July 1996. The flat is a large one and the works that were required to be done were substantial. This involved demolition of walls and rebuilding new ones, rewiring and installing new water pipes, changing windows, balcony railings and installing floor boards. If the plaintiff had in fact stated that he could complete the work on 31 July 1996, my view is that the defendant would probably not have believed him because he knew full well that this could not be done in such a short time. He had received quotations from other contractors and the earliest time to complete the work was two and a half months. At that stage, the defendant was living in another flat of his in Repulse Bay. Although he stated that he intended to rent out the other flat, there really was no urgency to do so. He stated that he would only begin to let out the other flat after he had ascertained the progress of the decoration work in the flat. The absence of a firm agreement on completion is not that surprising.

17. In my view, the defendant accepted that the work would be completed in about two odd months but there was no firm agreement on when the work was to be completed. I accept the plaintiff's evidence that the contractor who installed the floor boards and other contractors instructed by the defendant interfered with the progress of his work, as a result, his work was not completed until 30 September 1996. There was no breach by the plaintiff

REASON FOR NOT DOING THE FOUR PIECES OF WORK : ALUMINIUM WINDOWS AND RAILINGS

18. The defendant painted the picture of the plaintiff being a dishonest contractor who deliberately provided a low figure for some items of work such as the aluminum window when in fact it would cost more and then demanded further payment from him as the work progressed. In my view, what the defendant said sounded hollow. He was not a naive or culpable person at all. I do not accept his evidence that the plaintiff had demanded an extra $100,000 for the aluminum windows. Subsequent to the quotation, the plaintiff provided a breakdown of the lump sum of $800,000. I find it was at the request of the defendant that the plaintiff provided the breakdown. The defendant, being such a particular person, obviously would want to know the details of each item of work. In the breakdown $85 was used as the unit price for the aluminum window. According to Mr Lee, the plaintiff's expert surveyor, the price of $85 was a reasonable price for aluminum window. This being the case, I could not see how it could possibly be argued that the plaintiff had deliberately understated the price for the aluminum window. I find that the only increase the plaintiff had asked was $10/sq.ft. for the strengthened glass windows. I find that the plaintiff had supplied the samples for the aluminum windows to the defendant but somehow the defendant chose to find another contractor for the construction of the windows and the railings.

FLOOR SKIRTS AND STAIRCASE STEPS

19. The defendant likewise instructed another contractor to install the floor skirting. The reason why the plaintiff did not install the floor skirting was because the defendant did not like the skirts provided by the plaintiff. I accept the plaintiff's evidence that previously he had provided samples of the skirt together with samples of the door which the defendant's wife had approved. The skirt and the door had to match one another. The skirt that the defendant wished to install was one with a strip of wood which he described as the "chicken beak" (雞嘴). I accept the plaintiff's evidence that this type of skirt had to be made from solid wood whereas the skirt provided in the quotation was made of plywood. As a result, the defendant was mistaken on his requirement. I further accept the plaintiff's evidence that the defendant told him to throw away the skirt.

20. The defendant further told the plaintiff that he would not require him to construct the staircase steps. The plaintiff did not charge for the skirt or the steps.

FLOOR BOARDS

21. Under the quotation, the plaintiff was not required to install the floor boards, the defendant had another contractor in mind. I accept the plaintiff's evidence that subsequent to the commencement of work the defendant asked him whether he would be prepared to install the floor boards for $60,000. The plaintiff declined because the price was too low.

PRICE AND PAYMENT

22. The four items of work constitute a substantial part of the contract. Their prices as shown in the breakdown are as follows :

Aluminum window	$93,500
Aluminum hand rail	$21,000
The wooden staircase steps	$42,000
The floor skirts	$24,000
Total	$180,500

This is almost 22% of the contract sum. If the plaintiff had actually refused to carry out these works, I would expect the defendant, who was such a demanding person, to take the drastic action of terminating the contract. He was simply not the type of person who would allow the plaintiff to play a trick on him. Instead, he continued to have the plaintiff worked on the decoration and continued with the progress payments. Leaving aside the separate payments to Mr Kwok and Mr Lam Shek Pai, the defendant had made the progress payments on the following dates :

13/6/1996	$80,000
27/6/1996	$100,000
11/7/1996	$150,000
4/8/1996	$70,000
24/8/1996	$80,000
16/9/1996	$60,000
	$540,000

Despite the plaintiff's alleged refusal to carry out work, the defendant continued to pay him in August and September 1996.

OTHER EVIDENCE

23. There was a huge aluminum window of 18 ft. by 20 ft. in the flat. It was submitted by the defendant that the plaintiff had deliberately constructed a cockloft in such a way as to prevent this large window to be removed by the defendant's own contractor. The defendant had obtained a quotation from another contractor to do the aluminum window at about $160,000. Because of the way in which the cockloft was constructed, only the bottom half of the window could be changed and eventually this contractor carried out the aluminum window work for the sum of $86,300. The defendant argued that the difference of the quotation from the aluminum contractor and the cost of the actual work done showed that the plaintiff had deliberately under-quoted the price of the aluminum work. As I had already stated, I do not accept the plaintiff had understated the price for the aluminum window.

24. I further do not accept the defendant's evidence that the plaintiff deliberately constructed the cockloft in such a way as to prevent him from removing the big aluminum window. The cockloft was constructed in accordance with the instruction of the defendant. It was an illegal extension and the area was used by one of his children as a bedroom.

PROBLEM OF THE RECEIPTS

25. PW1, Mr Yeung, transported building materials to the flat for the plaintiff. He was also responsible for removing the debris from the flat. One of the invoices issued by him was dated 3 August 1996 in which he claimed $2,700 for delivery of building material and clearing debris. On this invoice was written a claim for $20,000 being the cost of demolition and removal of air-condition system. Mr Yeung said that he had not claimed this sum.

26. The plaintiff denied that he had written this claim on the invoice. His evidence was that the demolition of the air-condition work involved two contractors. First, the contractor Kin Yip Engineering Company which removed the poisonous chemical from the air-conditioning unit. The invoice that was rendered was $3,500. Then there was another contractor Mr Mak Cheung who carried out the demolition of the air conditioning unit for $20,000. The plaintiff had paid Mr Mak $15,000. He was unable to locate Mr Mak afterwards and had not paid him the balance. There was a receipt for $20,000 purportedly issued by Mr Mak Cheung.

27. The plaintiff's evidence on this receipt was not satisfactory. Although at one stage he admitted that it was written by him, he had also denied that he wrote the receipt and eventually he admitted that he did not write the word "Cheung" on the receipt. The suggestion from the defendant was that the document was a forgery. It was falsely written in order to claim a sum of $20,000 relating to the demolition and removal of the air-condition unit.

28. I have to say the plaintiff's evidence on the receipt was unsatisfactory. However, I accept his evidence on who carried out the demolition of the air-condition unit and the cost involved.

29. I also find that the defendant paid $13,000 to Mr Lam with the approval of the plaintiff. While the plaintiff's evidence on whether he had approved the payment to Mr Lam was also somewhat unclear, the overall impression I find from the plaintiff's evidence is that he was a truthful witness. On important issues in this case, I find him to be credible. He readily conceded on items which should be deducted. His evidence on the receipts and on the payment to Mr Lam does not affect my assessment of the plaintiff as a credible witness.

THREAT BY A CONTRACTOR

30. There was evidence that a contractor by the name of Chan, who was a partner of the plaintiff had demanded the defendant to pay for the work and had threatened to set fire to his flat if he failed to do so. I accept that the plaintiff had not asked or encouraged Mr Chan to do so.

THREE INVOICES

31. After the completion of the work, the plaintiff had rendered three invoices to the defendant. The first one was dated 30 September 1996 for $332,710; the second one was dated 20 October 1996 for $228,310; and finally the third one on 3 November 1996 for $205,610. I accept the plaintiff's evidence that he reduced the claims in order to resolve the dispute between the parties. The defendant refused to pay for the work and there were discussions on how the matter was to be resolved.

FINAL ACCOUNT

32. The claim of $205,610 was made up of $673,720 being work done under the quotation plus $111,890 for additional work, and $119,520 for electrical work, less payment of $580,000.

THE DEFENDANT'S CHALLENGE

33. In respect of works done under the quotation, the defendant challenged four items, namely :

(1) brickwork and tiles;

(2) wallpaper and painting work;

(3) clothing cabinets; and

(4) false ceilings.

(1) Brickwork and tiles

34. Under the quotation, the brickwork and tile work were estimated to be 29 units or 100 sq.ft. per unit. The defendant said only 22 units were done. The plaintiff agreed that this was subject to final measurement. He stated that the actual brickwork done was 2,900 sq.ft. because there should be measurement of both of the walls that were built and also the tile works that were installed on the walls. This represented the actual work carried out by the plaintiff, but the defendant had treated that he had only done the tile works and not the construction of the walls. Further the defendant had failed to take into account the wall constructed in the study. The final claim was, however, based on 2,200 sq.ft. The reduction was made in order to accommodate the defendant because he wished to claim the money from the defendant smoothly. Based on 2,200 sq.ft. the plaintiff only charged $99,900 instead of $139,000 for 2900 sq.ft. The defendant wished to deduct another $39,304 from the claim which seems to be based on the difference 2900 sq.ft. and 2200 sq.ft. In my view, he is not entitled to do so as the plaintiff's claim is based on the reduced unit.

(2) Painting and wallpaper

35. The wallpaper and painting works were based on an estimate of 80 units or 8,000 sq.ft. The defendant contended that only 6,200 sq.ft of wallpaper and painting works were carried out and he wished to deduct $27,000 from the claim. Under the breakdown, the price for this item was $120,000. The actual charge by the defendant was $93,400. He accepted that the internal painting and wallpaper was about 6,000 sq.ft. However, in addition to that, the ceiling of the outside balcony and the iron grill had to be painted as well. The actual charge was based on about 7,000 sq.ft. I accept the plaintiff's evidence that there should not be further deduction of the charge for painting and wallpaper works.

(3) Clothing closets

36. Under the quotation, the total area of the clothing closets was 8 ft. x 2 ft. x 25 ft. The defendant contended that only 20 ft. of closet was made because the master bedroom closet was changed from an ordinary closet into a walk-in closet. The plaintiff stated that even with the walk-in closet, there were internal wood work for partitions and low cabinets. I accept the plaintiff's evidence that he had not overcharged for the cabinets.

(4) False ceilings

37. The plaintiff agreed that the parties initially agreed that he had to construct five false ceilings. However, at the end only three false ceilings were constructed. The false ceiling was not constructed in the daughter's bedroom because this would make the ceiling too low. In the master bedroom, ceiling mouldings instead of false ceilings were constructed. Both changes were done at the request of the defendant. But as the plaintiff had bought and cut the materials for the ceiling, the materials that were purchased for the other two ceilings were of no use and were discarded.

ELECTRICAL WORK

38. The defendant disputed that he is liable to pay for the work relating to the rewiring of the TV reception points in his flat. While he admitted that he had instructed the plaintiff to rewire the electrical lines in his flat, he said that he had not instructed either the plaintiff or Mr Kwok, to rewire the TV reception points. The complaint by the defendant was really that the reception of the TV signals was hazy, and he subsequently had to purchase an amplifier to improve the reception.

39. I accept the evidence of Mr Kwok that it was the defendant who gave instructions on the electrical works that had to be carried out in his flat. This is what one would expect from the defendant. The fact that the TV signals were badly received was not the reason for not paying for the rewiring of the TV reception points. Mr Kwok said the problem may be due to the TV reception unit of the building itself which he was not responsible.

40. The defendant complained about certain power points not being required. Mr Kwok was obviously an honest witness. I accept his evidence that he did the work with the instructions of the defendant and he had not overcharged the defendant. Mr Kwok had not been fully paid by the plaintiff and the defendant seemed to suggest that the real reason Mr Kwok gave evidence on behalf of the plaintiff was because he wished to get paid for his work.

41. Mr Kwok had frankly admitted that he would not attend court and gave evidence if he had been fully paid. I do not see any ulterior or sinister motive in Mr Kwok when he gave evidence for the plaintiff. Certainly I do not find that he had lied or tailored his evidence to suit the plaintiff's case.

CHANGING THE WATER PIPES IN THE FLAT

42. One of the requirements under the quotation was for the water pipes in the flat to be changed to copper pipes. Although it was not pleaded in the defence that the plaintiff had not changed the pipes, the defendant in cross-examination suggested that the pipes were not changed in the master bedroom. This was discovered in 1999 when he carried out repair to the master bedroom bath. I accept the evidence of the plaintiff and Mr Kwok that the pipes had been changed. What the defendant said was not pleaded or raised in his witness statement. There was no discovery of the so-called discovery by him of the failure to change the pipes.

ADDITIONAL WORK

43. The plaintiff rendered three invoices for additional work. I accept his evidence that they were rendered by him to the defendant on about the dates stated on them. Under the quotation, it was stated that if there was change to the work, the calculation had to be done by negotiation between the parties. The plaintiff agreed that he had not discussed the actual price with the defendant on the items specified in the three invoices. But he stated that the price stated in the three invoices was based on the cost of the work and also on the price in the quotation. I accept the plaintiff's evidence on the price of the various items he charged for the additional work.

44. The defendant's surveyor, Mr Mak, suggested that many of the items of additional work in fact should come within the description of work under the quotation. For example, the demolition of walls and building of new walls should come within the description of the brickwork in the quotation.

45. This, in my view, is a simplistic way of looking at things. Prior to the plaintiff preparing the quotation, the defendant had told him the types of work that were required in his flat. The three invoices represented works that were required by the defendant by way of change or addition subsequent to the preparation of the quotation. This being the case, the plaintiff is entitled to charge for those works. As to the argument that the brickwork should come within the estimated 29 units, in my view, the plaintiff had already made substantial concessions to the defendant on these measurements. The additional work should therefore be charged on top of the price charged by the plaintiff for the work under the quotation.

1) Invoice dated 20 August 1996

(1) I accept the plaintiff's evidence that the work relating to the servant quarter was required by the defendant after the plaintiff had commenced work.

(2) The work relating to the kitchen again was a new item of work.

(3) The opening of a wall in order to build the walk-in closet was an additional work. The defendant told the plaintiff to open the wall and to issue the bill later.

(4) The flower planter in the dining room. I accept the plaintiff's evidence that the defendant had only told him to fill up the flower planter in the master bedroom and sitting room. This was an additional work.

(5) Changing the door of the master bathroom toilet. I accept the plaintiff's evidence that this was not included in the original discussion.

(6) and (7) Removing the glass wall in the study and the filling up of the flower planter in the master bedroom. The plaintiff accepted that these two items should not be charged.

(8) Filling up the planter in the study room. I accept the plaintiff's evidence this item was an additional work.

(9) Filling up of the flower planter in the sitting room balcony. I accept the plaintiff's evidence that originally he was told to narrow the flower planter, but later on, he was told to fill it up. He only charged for the filling up of the planter.

(10) Repair of the wall tiles in the balcony of the sitting room. I accept the plaintiff's evidence that this was not included in the quotation. He was told to replace some existing old and broken tiles, and also tiles broken by the contractor removing and installing the railings to the balcony. He is entitled to the charge.

(11) Tiles works in various parts of the external wall of the flat. I accept the plaintiff's evidence that this was not discussed originally and he was subsequently asked to carry out the work.

(12) Ceiling mouldings in the master bedroom. This was not included in the original quotation. The quotation referred to fibre glass moulding whereas this moulding was made of wood and was ordered by the defendant.

(13) Book cabinet in the guest bedroom. I accept the plaintiff's evidence that he had completed building 25 ft. of clothing closet as required in the original quotation. This cabinet was additional work which he was entitled to charge.

(14) Moulding in the guest bedroom. I accept the plaintiff's evidence that after the plaintiff had installed the moulding in the guest bedroom in accordance with the sample approved by the defendant, the defendant's wife wanted another type of moulding to be installed. He is entitled to charge for this new moulding.

(15) Ceiling to the kitchen. I accept the plaintiff's evidence that this was not included in the original quotation and he is entitled to charge for it.

(16) and (17) Marble covers for various parts of the flat. The defendant agreed this was not in the original quotation. He only challenged the price of this work.

(18) Work relating to the walk-in closet. Plastering work was required on the walls so that wallpaper can be applied to the walls. The plaintiff is entitled to charge for this item.

(19) Tiles - external tile work outside the kitchen and work area. They are not included in the original contract and the plaintiff is entitled to charge for this.

2) Invoice dated 10 September 1996

(1) The construction of the brick wall in the dining room with the surface made of marble. I accept the plaintiff's evidence that originally the defendant instructed him to build a wooden divider. Later on it was changed to the brick wall. This item should not be included in the 29 units of brickwork for the reason I have indicated earlier.

(2) Repair of tiles. I accept the plaintiff's evidence that after the aluminum windows were installed, there were broken tiles and he was asked to repair the broken tiles by the defendant's wife.

(3) The glass panel. The defendant agreed that this was a subsequent work. He only challenged the price of $4,300. I accept the plaintiff's evidence that the defendant did not ask for the price of this work when he instructed the plaintiff to do the work.

3) Invoice dated 28 September 1996

(1) Clearing debris of $1,500. I accept the plaintiff's evidence that it was to clear the debris left behind after the contractor had removed the staircase steps.

(2) Drying racks and three hanging rods in master bathroom. The plaintiff in fact did not charge for the drying racks. He installed them for the defendant free of charge. The master bathroom hanging rods were agreed by the defendant.

(3) Change of the position of the gas outlet. I accept the plaintiff's evidence that he was instructed by the defendant to carry out this work.

(4) and (5) Supply of marble and installation in the washrooms. The defendant agreed these items but not on the price. I accept the plaintiff's calculation of the price.

(6) Purchase of external wall tiles and transport cost. The defendant agreed on this sum.

(7) Marble railing and wallpaper in the dining room. I accept the plaintiff's evidence that this work was carried out.

DEFECTIVE MATERIAL OR WORKMANSHIP

46. The defendant relied on the following defects :

(1) Breakage of one toilet bowl. I accept the plaintiff's evidence that he was merely asked by the defendant to sign for the receipt of the toilet bowl which was ordered by the defendant himself. His task did not include the inspection of the bowl.

(2) Wrong installation of the drying rack. I accept the plaintiff's evidence that he was not provided with the written instructions on how to install the drying rack. In any event, if the problem was merely due to the ropes, then I would expect this could be resolved by the defendant at little or no costs.

(3) Costs of new wallpaper to rectify the wrong pattern caused by the plaintiff. The plaintiff accepted that there were mismatching of the patterns of the wallpaper. The defendant is entitled to $629 as claimed.

(4) Installation of the TV reception points. I had already dealt with this problem.

(5) Telephone sockets not properly installed. I accept Mr Kwok's evidence that this item was properly installed.

FURTHER DEFECTS

(1) Mismatch of the patterns of the wallpaper. The plaintiff agreed that this was not acceptable, the sum of $6,000 was claimed. There was no challenge to this sum. I would allow this to be deducted.

(2) Wrong pattern of the floor tiles in the master bedroom. The complaint was not that the tiles were installed crookedly but rather the vertical lines of wall tiles did not match the lines of the floor tiles. Part of the problem of the non-alignment was because of the angle of two of the walls in the bathroom which was not in 90 degrees and hence it was not possible to have a straight line for both the wall and floor tiles. In any event, the matter is so trivial that I think the defendant and his expert were really exaggerating on this issue. The matter is hardly noticeable and I would not allow any deduction on this.

(3) Damage to the internal plastic surface of the built-in cabinets in the study room. These are defects. I would allow a deduction of $4,000.

(4) Scratches to the cabinet door in the guest room. The plaintiff agreed that this was not acceptable. I would deduct $4,000 from the claim.

(5) Holes drilled on the outside of the main door. The plaintiff stated that originally he had installed a metal stripe on the main door in order to match the pattern of the main doors of other units of the building. However, the defendant later required him to remove it. As a result, holes were left on the door which were then filled up. The holes were extremely small. The defendant was claiming a deduction of $12,000. In my view, only $2,000 should be deducted to take into account the aesthetic aspect of the door.

(6) Wrong holes drilled on the inside surface of the guest toilet door. There is some disputes on whether the hole was constructed too large or whether the surface was damaged. Again, this is a minor defect, I would allow a deduction of $1,000.

(7) Holes drilled into the flooring of the bedroom. I accept the plaintiff's evidence that he did not drill the holes. If there was any defect in the construction of the floor boards, it was done by the defendant's own contractor. No deduction should be made on this.

(8) Water seepage at the bath of the master toilet. The complaint is that the edge of the bath was not tightly sealed, as a result water seeped through the edge onto the floor. The defendant's expert stated that because the bath tub was made of soft material, a support need to be constructed underneath it. The defendant had not produced evidence that he actually installed the support when he dealt with the water leakage. In my view, some allowance should be made for the problem of leakage and I would allow $2,000.

(9) Inadequate fall in planter area in son's room. The complaint is that the planter that was filled up did not have adequate fall for the water to be discharged. I would allow a reduction of $2,000.

(10) Water seepage at the study area. I accept the defendant's expert evidence that the joint between the newly constructed wall and the existing wall was not tightly sealed and water leakage occurred. There should be a deduction of $6,000 as claimed by the defendant.

(11) Water leakage from the guest shower. The complaint is really on the absence of a rubber stripe which fills the gap between the door of the shower and the wall. The defendant claimed $8,000. This is an exaggerated amount. He had been using this shower since 1996. In my view, the matter could be easily remedied by installing a stripe. I would allow a deduction of $1,000.

(12) Damaged tiles and wrong holes on wall tiles in kitchen. These are really trivial defects. I would allow a deduction of $1,500 which was agreed by the plaintiff's expert.

(13) Damage tiles in the balcony area. $7,000 was claimed by the defendant. In my view, some area of the damage tiles could not be repaired due to the presence of the bolts fixing the rails near the edge of the wall. I would allow a deduction of $2,000 to replace some of the damage tiles.

(14) Despite the defendant's complaints about the defects, apart from the problem regarding water seepage, no rectification work was carried out by him since he moved into the flat in September 1996. If the defendant was really serious about rectifying the defects, he could have carried out the remedial work during the period when he remedied the water seepage. In my view, he has no real intention to do so and I would not allow any claim for substituted accommodation during the period of repair.

LOSS OF ENJOYMENT OF THE FLAT

47. I find that there was no agreement that the work was to be completed on 31 July 1996. The defendant is not entitled to this claim.

TOTAL DEDUCTION

48. The total deduction from the plaintiff's claim is $46,729.

		Deductions
$1,600		Agreed deduction from additional work
$629		Replace wallpaper (material)
$6,000		Replace wallpaper (labour)
$4,000		Damaged internal surface of cabinet
$4,000		Scratches to closet
$2,000		Holes in main door
$1,000		Hole in toilet door
$2,000		Seepage in master bathroom
$2,000		Fall in son's room
$6,000		Leakage in guest room
$1,000		Shower
$1,500		Replaced tiles
$2,000		Damaged tiles
$13,000		Payment to Lam Shek Pai
$46,729

DEBRIS CLEARED BY THE DEFENDANT

49. The defendant claimed that the plaintiff had not cleared the debris from his flat and he had incurred $6,800 to clear the debris. However, according to the receipt dated 30 September 1996 for $6,800, the description included the demolition of the wooden staircases, other miscellaneous items and transportation. The defendant had not adequately explained why the receipt was described in this way. I accept the plaintiff's evidence that he had cleared all the debris when he completed his decoration work. The defendant is not entitled to claim this sum from the plaintiff.

CONCLUSION

50. Accordingly, the plaintiff is entitled to the sum of $158,881 ($205,610 - $46,729). There shall be judgment to the plaintiff for this sum together with interest at judgment rate from the date of the service of the writ until payment. The plaintiff is entitled to costs nisi of the action. The plaintiff's own costs are to be taxed in accordance with Legal Aid Regulation.

51. The defendant's counterclaim is dismissed with costs to the plaintiff.