CHUA TIONG TUNG v. IP YING CHI

DCCJ 3243/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3243 OF 2006

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JUDGMENT

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1.  In this action, the Plaintiff claims from the Defendant a sum of HK $108,752, being the outstanding sum due under a verbal agreement made between the Plaintiff and the Defendant (“Agreement”), whereby the Plaintiff agreed to carry out at the Defendant's request landscaping work at Penny's Bay Development.  It is not in dispute that the Agreement was made between the parties in late December 2004 or early January 2005, and that the Plaintiff commenced work on about 3 January 2005, and completed such work on about 14 June 2005.

The Issues

2.  The dispute between the parties relates to two main issues before the court.  The first is whether the Agreement was for the Plaintiff and his workers to be paid on the basis of HK $600 per work shift, as is alleged by the Plaintiff, or whether the Plaintiff was to be paid on a lump sum basis at a figure of HK $330,000, as is alleged by the Defendant.  The second issue relates to the total payments made by the Defendant to the Plaintiff, and whether the amount due under the Agreement had been paid in full by the Defendant.  The Plaintiff claims that an amount of HK $108,752 is still outstanding and unpaid by the Defendant, whereas the Defendant denies this, and claims that full payment had already been made.

The Negotiations

3.  It appears from the evidence that the Defendant was approached by a company named Architectural Precast GRC Ltd. ("AP") some time in late December 2004 to do landscaping works at the Disney project known as Penny's Bay Development.  The Defendant emphasized that he was sought by AP because he was regarded in the trade as being professional, and that AP had wanted him to take on the project.  The main contractor engaged in the project was China State Construction Engineering Ltd., and AP was the subcontractor.  According to the Defendant, AP was a company within the New World group, and being part of a listed company, AP was reluctant to have a small size contractor to undertake the project.  Accordingly, the Defendant entered into the contract with AP in the name of Wah Wai Engineering Company ("WW") in order to undertake the landscaping works.  WW was a company owned by relatives of the Defendant.

4.   According to the Defendant's own evidence, when he was first approached by AP in relation to the project, he was told by AP that after AP had accepted the engagement for the project, the work could not be executed or continued because the contractor or person responsible had left.  It would appear that there was some urgency for the landscaping works in question to commence, and to be completed by the end of March 2005.  The Defendant accepted the engagement, and agreed with AP to execute the works required for the landscaping project for an agreed sum of HK $373,000.  This included the costs of installing "artificial rock work" at a unit price of HK $650 per meter for 500 square meters of work involved, and a sum of HK $48,000 for erecting 4 work platforms for the landscaping works in question.

5.  According to the Defendant, he approached the Plaintiff very shortly after the Defendant's meeting with AP and inquired with the Plaintiff as to whether he would be interested in doing the landscaping/artificial rock  work.  They visited the site, and according to the Defendant, he showed the Plaintiff some detailed drawings which he had obtained from AP, and explained to the Plaintiff the works which had to be carried out.  The Defendant's evidence is that he told the Plaintiff that he would subcontract the works to the Plaintiff at the total sum of HK $250,000, on the basis of HK $500 per meter in respect of the 500 square meters of work required to be executed.  He explained that as his agreement with AP provides for the Defendant to be paid at the rate of HK $650 per meter, giving a total price of HK $325,000, he was still expecting to make a profit – although all this was not disclosed by the Defendant to the Plaintiff.   The Defendant's evidence is that the Plaintiff said that he was not prepared to accept the work on the basis of HK $500 per meter, and so the Defendant proposed that the Defendant would himself be responsible for carrying out the works required for the installation of the 4 platforms, and the Plaintiff would be required to do the landscaping work only which would essentially require the Plaintiff to install and erect some artificial rock work at 4 locations at the site.  The Defendant's evidence is that this was finally agreed with the Plaintiff on the basis that all the terms and conditions contained in the agreement between the Defendant and AP would apply to the Agreement between the Plaintiff and the Defendant, including the condition that the agreed rate of payment of HK $500 per meter would be inclusive of the cost of all materials and tools required for the job, that the contract work would have to be completed by the end of March 2005, and that there would be a 12 months maintenance period by WW.  The Defendant also claims that it was agreed that the Plaintiff would commence work as soon as possible.

6.  The Plaintiff's evidence is that as soon as he had visited the site and been told of the works required for the project, he had told the Defendant that it was not a profitable job and that the Defendant was sure to make a loss.  The Plaintiff's evidence is that he was not prepared nor interested to work as a subcontractor in respect of the works, and that he was only prepared to assist the Defendant to carry out the works on the basis of providing workers and being paid for each day he and his workers would  be employed in the work.  The Plaintiff said that the Defendant had initially proposed to pay him HK $700 a shift, meaning that the Defendant and his workers would be paid HK $700 for each day's work.  However, after work had commenced, the Defendant said to the Plaintiff that he was not making a profit and the Plaintiff agreed to reduce the rate to HK $600 per shift.

The Agreement

7.  Having heard the evidence of the Plaintiff and the Defendant, and bearing in mind the work background of the parties and the Plaintiff in particular, I am not persuaded that the arrangement between the Plaintiff and the Defendant in late December 2004 and early January 2005 could be as formal as the Defendant purports.  I do not find it credible that given the limited education background of the parties and the Plaintiff in particular, the Plaintiff and the Defendant would have referred to the detailed drawings of the artificial rock work and the fixing details of the rock work and the buttress features when they first met and discussed the work on site.  The drawings were all in English and appeared complicated and technical.  The Plaintiff does not read or write English.  His skills were acquired on the job through years of work and experience.  I doubt that he would be going through the technical drawings in detail with the Defendant, as the Defendant alleges.  I also do not find it credible that at the first meeting on the site in late December 2004 or early January 2005, the Defendant had stipulated that the terms and conditions contained in his own contract with AP would apply to the Agreement made between himself and the Plaintiff.  In addition to the informality of the discussions which I find more credible, an important factor which I have borne in mind is that even on the Defendant's evidence, it was not until 15 March 2005 that the contract between AP and WW was finally drawn up and signed.  On balance, it is not likely that back in December 2004 and 30 January 2005, the Defendant would have introduced into his own verbal Agreement and urgent engagement of the Plaintiff the terms and conditions later set out in WW's contract with AP.  Accordingly, I do not find credible, and hence reject, the Defendant's assertions that the Agreement with the Plaintiff included the terms and conditions of the contract between WW and AP, and in particular the condition that the contract sum would include the cost of providing the tools and equipment required for the job, and that the works had to be completed by 30 March 2005.  Consistent with this finding is the fact that although the works were not in fact completed until 14 June 2005, no allegation of delay was ever raised by the Defendant.

Purported Agency

8.  The Defendant initially claimed in his Defence that when he  subcontracted the landscaping works to the Plaintiff, he was acting as agent for and on behalf of WW.  However, it was clear from his oral evidence given in court that he was in fact acting in his personal capacity in his negotiations with the Plaintiff.  The Plaintiff on his part maintained that the Defendant had approached him in his personal capacity, and had never told him that the Defendant was engaging him as agent of WW.  The Defendant acknowledged in his oral testimony that the Plaintiff did not know that WW was the subcontractor appointed by AP for the project; that he had directly approached the Plaintiff; and that AP had approached him (and not WW) to do the work and WW was only used as a nominal contracting party.  The Defendant's evidence is also clear that when he approached the Plaintiff, he informed the Plaintiff that he had accepted a Disney project.   It came as no surprise therefore that the Defendant abandoned the agency defence after evidence was completed and before closing submissions were made by the Defendant's counsel.  The assertions made in the Defence and in the Defendant's Statement were clearly contradicted by the Defendant's own evidence given in court, and this has further prejudiced the credibility of the Defendant's case in relation to his negotiations and agreement made with the Plaintiff.

Payment Terms

9.  It is claimed in the Defence that the Plaintiff had agreed to a total sub-contract sum of HK $250,000, and that this sum would be paid by W W to the Plaintiff "by phase to phase and according to the progress of the work".  In his oral evidence, the Defendant has gone on to say that he had agreed a "back to back" (the Defendant referred in his evidence to a "back and back") payment arrangement with the Plaintiff.  He explained that this meant that the Plaintiff would be paid only when the Defendant was paid.  This is different to the claim made in the pleadings, was not mentioned in the Defendant’s Statement, and was only raised by the Defendant at the end of his examination in chief.  Whilst it may make sense for the parties to agree that payment would be made in phases and according to the progress of the work, this is totally different to what the Defendant purports to establish in his evidence, that the Plaintiff would only be paid as and when the Defendant was paid.  I doubt that any construction worker would agree to such payment basis, and reject the Defendant's evidence in this regard.

10.  After hearing the witnesses and considering the evidence as a whole, I prefer the evidence of the Plaintiff that he only agreed with the Defendant to supply workers to carry out the landscaping work on the basis of being paid by shifts, at the rate of HK $600 per shift.  The Defendant sought to argue that he could not have agreed to paying on the basis of the workers’ shifts, as this would mean that he would not be able to control the expenditure on workers and hence the expenses of the contract.  He argued that it made more commercial sense for him to agree to pay the Plaintiff on a contract lump sum basis.  However, the evidence clearly shows that AP had approached the Defendant and the Defendant had in turn approached the Plaintiff in a rather extreme situation.  The person or party who had been in charge or had taken responsibility for the work in question had left the project, AP as subcontractor was obviously eager for the work to be completed, the Defendant seemed ready to oblige AP as it was part of a large group, and the work in question had to be urgently commenced and completed within a tight schedule.  The Defendant did not dispute in his evidence that the Plaintiff was a skilled worker in the field in question and the Defendant was naturally anxious to involve him as soon as possible.  Further, when the Defendant was questioned as to why and whether he would agree to engage the Plaintiff for the work in question, the Defendant had pointed out that he was still not expecting to make a loss on his own contract with AP, by virtue of the fact that he was still expecting to be paid HK $48,000 in relation to the installation of the 4 work platforms for the landscaping works.  Importantly, the Plaintiff's evidence was that each time he put additional workers on the job, he had to seek and did seek the Defendant's consent before so doing.  It is also the Plaintiff’s evidence that each month, he had submitted to the Defendant a summary of the number of shifts he and his workers had worked.

11.    Further, the contract between AP and the Defendant specifies that "skilled installation workers" would be paid HK $650 per day for "day work".  This seems to lend support to the fact that being paid HK $600 per shift, or HK $600 per working day as the Plaintiff argues this to mean, was a reasonable payment scale and a reasonable payment method.  Although the Defendant sought to argue that this clause in the contract with AP only applied to workers to be engaged for works which fell outside the scope of the contract, this does not appear to be convincing when the contract, read as a whole, relates only to landscaping and installation of artificial rock work.  The clause for "day work" at the rate of HK $650 per day clearly refers to "skilled installation workers", and can fairly be used as comparison.  In fact, the Defendant conceded in cross-examination that it was reasonable to pay HK$ 600 a day to a worker who knew how to do artificial rock work.

12.  Counsel for the Defendant tried to persuade me to accept that the Plaintiff had made up the payment by work shift basis, as opposed to the contract sum basis, in order to claim a larger amount from the Defendant.  However, the "fabrication" argument advanced by the Defendant’s counsel involved the Plaintiff making up a payment of HK $40,000 from the Defendant to the Plaintiff on 21 April 2005.  This does not make sense, as the Plaintiff pleads a cash payment of HK $40,000 having been made by the Defendant to him on 21 April 2005 which the Plaintiff gets credit for in these proceedings.  I cannot see the logic of this fabrication argument and have rejected it.

13.  Further, the Plaintiff has claimed in his Statement that the cash payments he had received from the Defendant, including the cash payment of HK $40,000 received on 21 April 2005, had been made to him by one Kong who (on the Defendant's evidence) is the owner of WW and the Defendant's relative, or by Kong's son (Leung), and the Defendant has not called Kong or Leung to give evidence to deny this if it were untrue.

14.   Against this background as outlined from paragraphs 3 to 13 above, I prefer and have accepted the Plaintiff's evidence as to the agreed basis of payment under the Agreement  being HK $600 per shift as meaning a day’s work by the Plaintiff and his workers.

Defendant's Payments

15.  On the second issue of whether the Defendant had made full payment of the remuneration payable to the Plaintiff under the Agreement, or whether, on the Plaintiff's case, a sum of HK $108,752 is still outstanding, the evidence evolved around whether a sum of HK $40,000 had been paid to the Plaintiff on 21 April 2005; and whether a sum of HK $30,000 paid by the Defendant to the Plaintiff on 10 May 2006 was for payment of the sum due under the Agreement, or whether the said sum of HK $30,000 was paid to discharge a separate personal debt due and owing from the Defendant to the Plaintiff outside the scope of the Agreement.

16.  According to the Plaintiff, by 28th June 2005, a total sum of HK $260,000 had been paid by the Defendant or on his behalf to the Plaintiff under the Agreement.  It is not in dispute that sums of HK $70,000, HK $80,000 and HK $70,000 were respectively paid by the Defendant to the Plaintiff around 30 March 2005, 18 May 2005 and 28 June 2005.  In dispute (and as alluded to in paragraph 12 above) is a payment of HK $40,000 made on 21 April 2005.  According to the evidence of the Plaintiff, the sum was given to him in cash at about 11 a.m. on 21st April 2005 by Ah Leung, the Defendant's nephew and the son of Kong.  The Plaintiff's evidence is that Leung told him that the Defendant had asked him to give him the money, and that such money was for paying the wages of the Plaintiff's workers.  The Plaintiff duly paid his workers with the money on the same day.  The Defendant denies that he had ever given the sum of HK $40,000 to the Plaintiff, and that he had ever asked Leung or Kong to give him the money.  Having heard the parties’ evidence, I see no reason for the Plaintiff to fabricate this payment and I accept his evidence.  As I have pointed out, it would have been easy for the Defendant to call Leung to deny making the cash payment to the Plaintiff, but Leung's evidence was never adduced.

17.  The Plaintiff's case, therefore, is that with the total payment of HK $260,000 made by the Defendant under the Agreement, a balance of HK $193,752 was outstanding at the end of June 2005.  According to the Defendant, he had throughout been chasing AP for payment of the balance of the sum owing from AP.  Without having been fully paid by AP, the Defendant obviously did not wish to make payment to the Plaintiff under the Agreement.  It also appears from the Defendant's evidence (paragraph 7 of his Statement of 13 February 2007) that he had been trying to negotiate with AP to get a higher payment under the contract between AP and WW, so as to get "a reasonable profit for WW". 

The Post-dated Cheque

18.  In the meantime, the Plaintiff was in turn chasing the Defendant for payment of the balance due under the Agreement.  The Defendant's evidence is that some time in or before November 2005, the Defendant was informed by AP that a payment would be forthcoming.  He mentioned briefly in his evidence that in November 2005, he had gone up to AP's office to discuss the outstanding balance of the sum due under the contract with AP which had been delayed for six months, and was told that a sum of HK $110,000 would soon be paid by AP.  The Defendant's evidence is that he then had a meeting with the Plaintiff.  It is the Plaintiff's evidence that at this meeting, the Defendant proposed a payment of HK $110,000 in full and final settlement of the balance still outstanding under the Agreement.  The Plaintiff said that he had had no alternative but to agree to this proposal, but asked the Defendant to issue a cheque for the sum of HK $110,000. The Defendant issued a postdated cheque for the said amount in the expectation that such sum would soon be received from AP.  He asked the Plaintiff to hold onto the cheque which was dated 2 December 2005 and to await the Defendant's call that the cheque could be presented. The Plaintiff acknowledged that the Defendant had asked him to wait for his call before presenting the cheque for payment.  However, when he failed to receive any call from the Defendant, he presented the cheque on and after its due date, and the cheque bounced. The Plaintiff's evidence is that since the cheque for HK $110,000 was dishonoured, he was no longer bound to accept the sum of HK $110,000 as a full and final settlement of the sum payable under the Agreement.

19.  After the cheque had been dishonored, it is not in dispute that the Defendant made a payment of HK $85,000 to the Plaintiff on 9 January 2006.  The Defendant maintains that this was in partial settlement of the sum of HK $110,000 payable under the cheque.

The Payment of HK $30,000

20.  It is also not disputed that the Defendant made payment of another sum of HK $30,000 to the Plaintiff on 10 May 2005.  According to the Defendant, this was his payment made "in full and final settlement" of all amounts outstanding under the Agreement, including the balance under the dishonoured cheque.  However, according to the Plaintiff, the sum of HK $30,000 was demanded by him from the Defendant and was paid and accepted in settlement of a personal debt which the Plaintiff claimed was owing by the Defendant to him.  The Plaintiff claimed that the sum had been lent by him to the Defendant at a time around Chinese New Year in 2003/2004.  The Defendant accepted that a sum of HK $30,000 had been paid by the Plaintiff to him in 2003/2004, but alleged that it was a repayment by the Plaintiff then of a sum which he the Defendant had lent to the Plaintiff when the Plaintiff had an investment in China.  The Plaintiff's answer to this was that the loan relating to his investment in China had already been repaid by him to the Defendant, and the HK $30,000 paid by him to the Defendant in 2003/2004 was a separate loan extended by him to the Defendant.

21.  In support of his claim that the payment of HK $30,000 on 10 May 2005 was the Defendant's repayment of a separate personal loan from the Plaintiff, and not by way of payment of any sum owing under the Agreement, the Plaintiff adduced in evidence a tape recording of a discussion held at a meeting on 10 May 2006, when the Plaintiff visited the Defendant's flat with a few friends for the purpose of demanding payment of the balance due under the Agreement.  The Plaintiff claims that as evidenced by the tape recording, the Defendant admitted in the course of the meeting on 10 May 2006 that he owed the Plaintiff a separate personal debt of HK $30,000.  The Defendant has withdrawn his initial objection to the tape recording and the transcript of the recording being admitted in evidence.  The Defendant only seeks to argue that the recording is not complete, that the transcript is an edited transcript with parts of the conversation omitted, and that the parts of the transcript which have been omitted contain materials that assist the Defendant's case.  The Defendant also claims that there were discussions at the end of the meeting on 10 May 2006 which were not contained in the recording, and which allegedly assist the Defendant’s case.

22.  The transcript was first disclosed by the Plaintiff when he filed his Statement in January 2007.  From then until trial, the Defendant has not been seen to demand through his solicitors to inspect or to be given the original tape recording for the purpose of producing his version of the complete transcript.  The Defendant has only been able to produce on the first day of trial a summary of three parts of the transcript where he claims conversations were omitted, and of what had been discussed in the missing parts.  The Defendant has not informed the court of the details or even the substance of the discussions at the end of the meeting and how they assist the Defendant's case, save that the Defendant had indicated that the payment of HK $30,000 was in full and final settlement of all the indebtedness under the cheque for HK $110,000.  If there were indeed parts of the discussion on 10 May 2006 which were not contained in the tape recording and which support the Defendant's case, it would have been easy for the Defendant to recount the details instead of just claiming that the recording was incomplete.

23.    I have considered the transcript of the tape recording, including the Defendant's summary of the parts which he claims were missing from the recording.  I would point out that my findings made in the preceding parts of this Judgment were based on the parties' Statements and their oral testimony in court.  I do not regard the transcript to be the only or even material evidence in relation to the payments made, or the sums alleged to be payable under the Agreement. 

24.  It is however clear from the transcript, including the Defendant's summary of the alleged missing parts, that the Defendant accepted (albeit grudgingly) that he owed the Plaintiff a separate personal debt of HK $30,000.  He agreed to make repayment of the debt of HK $30,000.  The Defendant claims in evidence that he had agreed to make the payment of HK $30,000 in full and final settlement of the balance due under the cheque which he had issued for the sum of HK $110,000, and hence in full and final settlement (“一筆勾銷”) of all the indebtedness under the Agreement.  However, on the Defendant's own case, the only sum outstanding under the Agreement as at 10 May 2005 was HK $25,000, if his case of the Agreement being on a lump sum basis, and the lack of a payment of $40,000 is true.  The payment of HK$25,000 or the intended payment of HK$30,000 to be made will be in full discharge of all indebtedness, and need not be a “full and final settlement” as the Defendant insisted. The Defendant's case in relation to the tape recording of the discussions on 10 May 2005 therefore contradicts his case that the Agreement was for payment of a lump sum of HK $330,000.  His assertion that his intention was to pay the Plaintiff an additional amount of HK $5,000 as interest does not improve his case.

25.  The Plaintiff's stance is that although the Defendant claims in the recorded conversation that his payment of the sum of HK $30,000 was in full and final settlement of the further sums still outstanding under the Agreement, the Plaintiff never acknowledged nor accepted such full and final settlement in the discussion.  The Plaintiff claims that when the Defendant used the words 一筆勾銷 "for settlement of everything", he meant it to be in discharge or in settlement of their friendship, as it was clear from the transcript that the Defendant was grudging in his acceptance of the personal loan of HK $30,000 which the Plaintiff had insisted on the Defendant repaying.

26.  I accept the Plaintiff's evidence that the sum of HK $30,000 paid by the Defendant to the Plaintiff on 10 May 2005 after the meeting at the Defendant's flat was for repayment of the Plaintiff's personal loan to the Defendant, and not as payment of the sums owing under the Agreement.  The Defendant's attempt to make the payment of HK $30,000 to be in full and final settlement of the balance due under the Agreement was not agreed to or accepted by the Plaintiff on 10 May 2005.  Accordingly, the total payment made by the Defendant to the Plaintiff under the Agreement is HK $345,000.

Payment Due Under Agreement

27.  Having ascertained the agreed rate of payment as being HK $600 per shift of one working day, and having ascertained the total payment made by the Defendant to the Plaintiff, the remaining question is the total sum outstanding under the Agreement and still to be paid by the Defendant. 

28.  The Plaintiff claims that the sum payable under the Agreement on per shift basis is HK $445,800, on the basis of 743 shifts worked.  The breakdown of the 743 shifts is set out in paragraph 7 of the Plaintiff’s Statement.  The onus is on the Plaintiff to establish this.  In this regard, the Plaintiff has adduced various documents in evidence, including: (1) his own rough notes or calculations of the number of shifts his workers had worked from January to May 2005; (2) records which show the individual workers and the numbers of shifts they had worked on the days in question from January to June 2005; as well as (3) documents signed by the workers by way of acknowledgment that they had received wages for the number of days on which they had worked on the site.  For ease of reference, I will refer to the first category of documents as "Plaintiff's Notes" (which appear on pages 92 and 93 of the trial bundle); the second category of documents as "Monthly Forms" (which appear on pages 87 to 91, and 94 to 95 of the trial bundle); and the third category of documents as "Signed Receipts" (which appear on pages 96 to 100 of the trial bundle). 

29.  The Signed Receipts are in a standard form, with the name of the construction site, the name of the main contractor of the project, the name of the subcontractor (AP), the project of the design and installation of the artificial rock work all printed, and the period of work to be completed.  They were obviously designed by the main contractor for use by all workers at the construction site. The Defendant claims that the Signed Receipts were completed and signed by the workers not for the purpose of recording the number of shifts they had worked for the Plaintiff, but were required as a matter of trade practice to confirm that workers of subcontractors had in fact received their wages, before payment was to be made to the main contractor or the subcontractor in question, or for the purpose of claiming such payment to the main contractor or subcontractor.  The Plaintiff on his part claims that these constitute independent records which support his claim of the number of shifts worked by his workers.

30.    The Monthly Forms show the names of different workers and the days of the month, with marks being made against the name of the worker and the day on which he had worked.  The Monthly Forms for May and June 2005 bore the initials of the foreman who, on the Plaintiff's evidence, was the person supervising the site on the days in question, and confirming the number of workers who had worked on the material days concerned.  The Plaintiff explained in evidence that the foreman on the construction site was not the same throughout the entire period, and hence, a particular foreman would not be able to confirm the number of workers who had worked on the site on the days when the foreman was not present to supervise.  Hence, only the records for 17 to 31 May 2005, and from 1st to 14 June 2005 had been initialed by a foreman.

31.  Counsel for the Defendant has pointed out that there are discrepancies between the names of the workers shown in the Monthly Forms and the Signed Receipts.  I consider the differences in the Chinese characters in the names ( 蔡忠團/蔡中田； 商建色/商建鍚；蔡清平/蔡清萍； 李祖栖/李祖獅 ) as small inconsistencies which can be ignored.  Construction workers such as the Plaintiff are not highly literate, and it is not likely that they would be pedantic in relation to these records used at the construction site.  Taking into consideration the Defendant's evidence in relation to how the Signed Receipts were put to use, and bearing in mind the Plaintiff's evidence that the Defendant had brought onto the site some workers of his own, and that in any event there were many different workers on site, it is possible that the Signed Receipts included the names of workers who were not brought onto the site by the Plaintiff.  The fact that the Signed Receipts had additional names which were not included in the Monthly Forms cannot be taken to mean that the Monthly Forms are not accurate.  The Plaintiff himself explained that AP had certified more shifts than his own records, because the foreman on site would not know which workers were brought on to the site by the Plaintiff and which were brought by the Defendant, but he had only included in his claim the shifts of his own workers and not those of the Defendant’s workers.  In any event, in view of the purpose for which the Signed Receipts were prepared and used, I have referred to and used the Monthly Forms and the Plaintiff's Notes when considering the number of shifts worked by the Plaintiff and his workers. Only the workers named in the Monthly Forms were considered in counting the number of shifts worked by the Plaintiff's workers. 

32.  For the sake of completeness on the issue of the Signed Receipts, and in order to deal with submissions made by counsel for the Defendant in relation to the discrepancies in the number of shifts recorded in the Signed Receipts and in the Monthly Forms for February and March 2005, it is clear that the Signed Receipts on page 96 of the trial bundle cover the period from 21 February 2005 to 20 March 2005 only.  The Signed Receipts on page 97 of the trial bundle can only be construed to mean the record of shifts worked from 21 March 2005 to 31 March 2005.

33.  Looking at the Plaintiff's Notes, it would appear that they were rough notes and records made by the Plaintiff as an aide-memoire to claim for payment in respect of the number of workers who had worked on the project under the Agreement.  They are largely consistent with the records of shifts worked as recorded in the Monthly Forms.  The Monthly Forms are more complete records, showing the different workers who had carried out work, and the exact day on which the worker had worked.  Counsel for the Defendant has referred to various inconsistencies appearing in the Plaintiff's Notes and the Monthly Forms, in relation to the number of workers who had worked on 10 January 2005, and from 24 to 28 February 2005.  Since the Monthly Forms are more comprehensive, I generally prefer and have used the records contained in the Monthly Forms, save for the instances referred to in the following paragraph.

34.   One aspect of the Monthly Forms which counsel for the Defendant has attacked is the record of the number of workers who had worked on 20 January 2005 and 20 February 2005.  On the Monthly Forms for these two months, a line appears across the entries for 20 January 2005 and 20 February 2005, and counsel for the Defendant submits that the line indicates that the entries have been crossed out such that the nine shifts recorded to have been worked by six workers on those days should be ignored.  However, it is not clear from the Monthly Forms that the lines which appear were made manually by way of deletion.  The Plaintiff's Notes show that five workers had worked on 20 January 2005 and four workers had worked on 20 February 2005.  On balance, I accept that there were five shifts worked on 20 January 2005 and four shifts worked on 20 February 2005.

35.  The total number of shifts recorded in the Monthly Form for January 2005 is 63.  This is the number stated in paragraph 7 of the Plaintiff's Statement as being his own record of the shifts worked in January 2005, but he also states in paragraph 7 of his Statement that he will only claim 61 shifts for January 2005.   I will allow 61 shifts accordingly.

36.  The total number of shifts recorded in the Monthly Form for February 2005 are 86, including the four shifts worked on 20 February 2005.

37.  The total number of shifts recorded in the Monthly Form for March 2005 is 315, as claimed by the Plaintiff.

38.  The total number of shifts recorded in the Monthly Form for April 2005 is 161, as claimed by the Plaintiff.

39.  Counsel for the Defendant challenged some of figures written manually at the bottom of the Monthly Form for May 2005.  In particular, he queried the number of shifts worked by 李祖栖 (Lee).  In this regard, I have checked the last column on the right of the Monthly Form for May 2005.  This is headed "Day workers total number", and the total number only takes into account the one shift worked by Lee.  The total number of shifts for May 2005 is accordingly 84, and tallies with the rest of the entries made in the body of the Monthly Form for May 2005.

40.  In relation to the Monthly Form for June 2005, the entries show a total of 30 shifts worked, but the foreman who initialed on the form only confirmed 28 shifts. As indicated in paragraph 7 of the Plaintiff's statement, he claims only 28 shifts for June 2005.

41.  The total number of shifts worked from January 2005 to June 2005 is therefore 735.  At the rate of HK $600 per shift, the total sum payable under the Agreement is HK $441,000.  Deducting the sum of HK $345,000 paid, the balance outstanding is HK $96,000.

Reimbursement Claim

42.  In addition, the Plaintiff claims reimbursement of a sum of HK $7,952, being the cost of materials which, according to his evidence, he had purchased on the Defendant's behalf and which the Defendant had agreed with him that repayment would be made at the end of the project when accounts are settled.  The Plaintiff's evidence is that the sum was spent on the purchase of welding machine, welding sticks, wiring and other items, and that the invoices and supporting documents had all been submitted to the Defendant.  The Plaintiff claims that the Defendant had never disputed his liability for reimbursement, nor had he queried the items purchased, until commencement of these proceedings.  The Defendant's defence is that the conditions of the contract between HP and WW include the provision that the contract sum includes the cost of materials, and that such condition had been incorporated into the Agreement.  I have already rejected this contention.  I will allow the plaintiff to recover the sum of HK $7,952 as claimed.

Award

43.  Judgment is accordingly entered in favor of the Plaintiff for the total sum of HK $103,952, with interest at judgment rate from the date of the Writ until the date of payment.  There will be an order nisi, to be made absolute within 14 days, that the costs of the action be borne by the Defendant, with certificate for counsel, to be taxed if not agreed.