KONE ELEVATOR (HK) LTD v. SENFIELD LTD.

CACV 216/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 216 OF 2002

(ON APPEAL FROM DCCJ 4544 OF 2001)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

Introduction

1. This is an appeal by the defendant from the judgment of Deputy Judge Yu of the District Court which was handed down on 6 February 2002. The Judge entered judgment for the plaintiff in the sum of $256,250 with interest and costs and dismissed the defendant's counterclaim.

Representation

2. On 13 February 2003, the defendant's former solicitors obtained leave from Cheung JA to cease to act for the defendant in this appeal. On the same day, the defendant applied to Master B Kwan for leave to allow its director, Mr Choy Bing Wing (referred to below) to represent it in this appeal. Leave was refused. When this appeal came up for hearing before us on 18 February 2003, Mr Choy made an oral application to us for him to represent the defendant in this appeal. We told him that we had no jurisdiction to entertain the application. We proceeded to ask if an application would be made for the appeal to be adjourned. He told us that since the defendant could not be represented by him he had no right to represent the defendant to make any application, let alone one for an adjournment. He told us that he would leave the court, and accordingly he left on his own accord.

3. This is an appeal from the District Court. Section 65 of the District Court Ordinance, Cap 336 provides that

"Subject to the provisions of this Ordinance, every appeal from the Court [the District Court] to the Court of Appeal shall be brought in such manner and shall be subject to such conditions as are prescribed by the Rules of the High Court (Cap. 4 sub. leg.)."

4. Order 5, rule 6 of the Rules of the High Court ("RHC") reads as follows:

"6. (1) Subject to paragraph (2) and to Order 80, rule 2, any person (whether or not he sues as a trustee or personal representative, or in any other representative capacity) may begin and carry on proceedings in the High Court by a solicitor or in person.

(2) A body corporate may not begin or carry on any such proceedings in the Court otherwise than by a solicitor except-

(a) as expressly provided by or under any enactment; or

(b) where leave is given under paragraph (3) for it to be represented by one of its directors.

(3) (a) An application by a body corporate for leave to be represented by one of its directors shall be made ex parte to a Registrar and supported by an affidavit, made by the director and filed with the application, stating and verifying the reasons why leave should be given for the body corporate to be represented by the director, and in particular setting out such facts and matters as demonstrate that the body corporate could not, for lack of resources or for other good reasons, otherwise be heard in the proceedings.

(b) The relevant resolution of the board of the body corporate authorizing the director to appear on its behalf if leave is granted shall be exhibited to the affidavit.

(4) No appeal shall lie from the order of the Registrar under paragraph (3) giving or refusing leave.

(5) Leave given by a Registrar under paragraph (3) may be revoked by the Court at any time.

(6) No appeal shall lie from an order of the Court revoking leave given by a Registrar."

5. Sub-rule (2) of Order 12, rule 1 of the RHC allows a defendant in an action begun by writ to acknowledge service of the writ and give notice of intention to defend by a person duly authorized to act on its behalf. However, sub-rules (2A), (2B), (2C) and (2D) of Order 12, rule 1 of the RHC are respectively in terms identical to those in sub-rules (3), (4), (5) and (6) of Order 5, rule 6 cited above. It is clear from these two rules of the RHC that a body corporate in any High Court proceedings cannot, unless with leave of a Registrar, bring or carry on proceedings except by a solicitor. The decision of the Registrar in such an application is not appealable, although if he grants leave, the Court can revoke the leave.

6. The term of "the Court" used in sub-rules (2), (5) and (6) of Order 5, rule 6 of the RHC, and similarly in sub-rules (2C) and (2D) of Order 12, rule 1, unless the context otherwise requires, means the Court of First Instance (see Order 1, rule 4(2) of the RHC). In view of the absence of any rule conferring power on the Court of Appeal on representation of a body corporate, we consider that the term should include both the Court of First Instance and the Court of Appeal. Some support of this construction can be found from the wording of sub-rule (1) of Order 5, rule 6 where the term "High Court" is used, and the use of the term "the Court" in the sub-rules that follow sub-rule (1) may therefore be referable to the High Court.

7. There is no provision in the RHC allowing the Court of Appeal to review the decision of a Registrar where he has refused leave to allow a director to represent a body corporate. The necessary implication, in the context of the two rules of the RHC, is that decisions on the subject of representation of a body corporate in proceedings in the High Court is to be decided by a Registrar. It is only where he has granted leave that the Court of First Instance or the Court of Appeal may revoke such leave. The Court of Appeal therefore does not have jurisdiction to entertain any application for such leave, or entertain any appeal from a Registrar's refusal of such leave.

8. Even if "the Court" in sub-rules (2), (5) and (6) of Order 5, rule 6 were construed, against our view, as meaning only the Court of First Instance, the defendant's position would not be improved. No appeal shall lie from the decision of a Registrar giving or refusing leave. But, under this construction, only the Court of First Instance, and not the Court of Appeal, may revoke the leave granted by a Registrar. The Court of Appeal would have no jurisdiction on this subject whatsoever.

9. My construction of our rules that the Court of Appeal has no jurisdiction one way or another in granting such leave or in reviewing the refusal of such leave by a Registrar is further reinforced by the fact that the English Rules of the Supreme Court make different provisions. Order 5, rule 6 of the RSC can be found in The Supreme Court Practice 1999, Vol 1, p 34, as follows:

"6. (1) Subject to paragraph (2) and to Order 80, rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the High Court by a solicitor or in person.

(2) Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor."

10. The practice in England is summarised in the notes in para 5/6/3 on the same page. The relevant part of the notes states:

"What may be exceptional circumstances justifying the exercise of the court's discretion to allow a company director to appear on behalf of his company was considered Radford v Freeway Classics Ltd [1994] 1 B.C.L.C. 445 by the Court of Appeal. Fairness and good sense require that those who trade in the privileged position conferred by incorporation should be subject to constraints in the interests of their potential creditors. One of the constraints and part of the price that has to be paid for this privilege is the rule that a limited company cannot act save through legal advisors. Though this rule can be overridden by the court's inherent power to allow any advocate to appear for a litigant, the possibility that the company might have a good defence, the conduct of the plaintiff in the litigation, and damage to the director's reputation caused by the litigation going by default were all advanced as 'exceptional circumstances' but were rejected by the court ..."

11. It is to be noted that while the English courts have inherent power to allow any advocate to appear for a litigant, it is clear to us that as far as representation of limited companies is concerned, because of the provisions of the two rules of the RHC referred to above, any such power that the Court of Appeal may have must be abrogated to the provisions of the rules, especially where no provisions are made to govern the exercise of such powers by the Court of Appeal. Otherwise, these rules would not need to be complied with and could be easily flouted.

12. We now turn to deal with the merit of the appeal.

Facts

13. By an agreement dated 25 November 1998 made between the plaintiff and the defendant, the plaintiff agreed to supply and install one lift at the defendant's premises in Wellington Street, which the defendant planned to use as a restaurant ("the contract"). The agreed price was $600,000, which would be paid in parts at various stages as set out in the contract. The delivery and installation schedule was also provided for in the contract, and a total of 26 weeks, ending on 26 May 1999 was given for the completion of the work.

14. The lift to be provided under the contract was a lift without a machine room, and was called, under a trademark, "MonoSpace" lift. Ordinary lifts installed in Hong Kong usually need a machine room to house the machines, and it was the absence of the machine room for the lift under the contract that gave rise to the present dispute between the parties.

15. Relating to the installation of a lift in the building, Regulation 9A of the Building (Construction) Regulations, Cap. 123 provides as follows:

"(1) Where a building is to have a lift or escalator installed in it-

(a) the building shall be designed and constructed; or

(b) where the building already exists, it shall be altered, so as to provide adequate-

(i) structural strength;

(ii) space;

(iii) protection;

(iv) access; and

(v) ventilation,

for the safe operation, maintenance and inspection of the lift or escalator, as the case may be."

16. In July 1993, the Building Authority also issued a "Code of Practice on the Design and Construction of Buildings and Building Works for the Installation and Safe Use of Lifts and Escalators 1993" ("the BA Code"). The relevant part of the foreword of the BA Code states:

"As a general rule, compliance with the provisions promulgated herein may be deemed to satisfy the requirements of Building (Construction) Regulation 9A. The Building Authority may, however, accept other standards or provisions if he is satisfied that they are capable of equivalent performance."

17. Clause 3.11.1 of the BA Code provides:

"The machine and its associated equipment shall be in a special room, comprising solid walls, ceiling and door and/or trap."

18. In respect of the installation of lifts, the Electrical and Mechanical Services Department ("EMSD") also issued a "Code of Practice on the Design and Construction of Lifts and Escalators" ("the EMSD Code").

19. Clause 2.1 of the EMSD Code provides:

"Lift machines, their associated equipment and pullies, shall be accessible only to authorised persons (for maintenance, inspection, testing and rescue) and therefore they shall be in a room, comprising solid walls, ceiling and door and/or trap."

20. As the MonoSpace lift to be installed under the contract was one designed without a lift machine room, the plaintiff applied to the EMSD for modification and/or exemption from clauses 2.1, 5.12.8 and 8.5.1 of the EMSD Code. Clauses 5.12.8 and 8.5.1 were required to be exempted also because of the absence of the machine room. By a letter of 9 April 1999, the EMSD in response stated, inter alia, as follows:

"Since this MonoSpace lift installation has no machine room, it is obviously not in compliance with the relevant requirements of the Code of Practice of Building Works for Lifts and Escalators (Building Code), the authorised person should apply for the modifications from the Building Authority."

21. The authorised person and structural engineer for the defendant's project was Mr Choy Bing Wing of Bing Choy & Associates. Mr Choy Bing Wing was the only person who gave evidence before the Judge on behalf of the defendant. By a letter dated 2 February 1999, the Building Authority approved the building plans in respect of the defendant's premises submitted by Bing Choy & Associates. The letter specifically states:

"12. Your attention should be drawn to the provisions of a lift machine room for the proposed lift."

22. Regarding the plaintiff's work at the premises, Mr P F Tsoi was the representative of Bing Choy & Associates. Upon the receipt of the letter of 9 April 1999 from the EMSD, the plaintiff requested Mr P F Tsoi to assist in order to comply with the requirement of the EMSD that "the authorised person should apply for the modifications from the Building Authority". On 19 April 1999, Mr P F Tsoi sent a fax message to the plaintiff, covering a copy letter of 16 April 1999 from Bing Choy & Associates to the Building Authority, which applied for the modifications for the use of the MonoSpace lift in the building works at the defendant's premises.

23. It seemed that the Building Authority had not responded to this letter. Nor had the EMSD changed its view on the requirement. When PW2, a senior project engineer of the plaintiff, gave evidence before the Judge, he said that he had followed up with Mr P F Tsoi on numerous occasions about response from the Building Authority but with no result. He was later told that the letter of the 16 April 1999 had been withdrawn from the Building Authority. On the other hand, the authorised person Mr Choy Bing Wing, who gave evidence before the Judge on behalf of the defendant, said that he had never signed the letter of 16 April 1999 nor had he applied for the modifications as requested by the plaintiff and as advised by the EMSD. He took the stance that both the EMSD and the Building Authority were mistaken to require any exemption or modification of the BA Code or the EMSD Code relating to the installation of the lift, because the MonoSpace lift did not have a machine room. He told the Judge that the requirement was "nonsense". Despite the stance taken by him, as the authorised person, however, in his testimony and in his witness statement, there was no mention that he had ever told the plaintiff, the EMSD or the Building Authority that they were operating under a mistake. The earliest that the authorised person notifying the Building Authority that modification was not required for the MonoSpace lift because no room for housing the machine and pulley was necessary was by a letter dated 16 February 2000. By that letter, the authorised person also requested the EMSD Director to issue Form 26 immediately, which was necessary for the plaintiff to obtain Form 5 certifying the completion of the lift work. Thereafter, correspondence followed between the authorised person and the Building Authority, and the authorised person supplied relevant documentation for clarifying to the Building Authority that the MonoSpace lift did not require any machine and pulley room, which documentation had been supplied by the plaintiff to Bing Choy & Associates. At the end, on 23 June 2000, the EMSD issued Form 26 to the plaintiff.

24. In the meantime, in April 1999, Mr P F Tsoi gave instructions to the plaintiff to build metal scaffolding inside the lift shaft for the installation of the lift. In July 2000 the lift had been completely installed. However, by a letter dated 20 July 2000 addressed to the plaintiff, the authorised person terminated the contract. The letter stated:

" On behalf of Tsui Wah Restaurant, I notify you as follows.

Due to the long delay in completion of the said lift by you, I now notify you that you have repudiated and breached the contract by failing to complete the works within 26 weeks after 24/11/98, as expressly provided in the contract. By reason of the same, your continuing repudiation can no longer be tolerated and is hereby accepted.

The contract therefore is now terminated. You are required to dismantle and remove the incompleted lift installation away from the site within 4 weeks from the date of this letter.

We reserve all rights in the matter."

25. Following certain correspondence between the plaintiff and the authorised person, the lift was dismantled and removed by the plaintiff at the end of August 2000.

The action and the judgment

26. By this action, the plaintiff claimed that the contract had been wrongfully repudiated by the defendant, which repudiation the plaintiff accepted, with the resultant claim for damages. The plaintiff also pleaded in paragraph 7 of the Statement of Claim that there was an implied term of the contract that the defendant shall do all that is necessary on its part to bring about completion of the works in accordance with the time schedule set out in the contract.

27. The defendant denied liability and alleged by paragraph 18 of its defence that the plaintiff failed to complete the works on or before the scheduled date of completion as provided for in the contract. This plea was based on the allegation that was made in paragraph 17 of the defence that "it was a fundamental term of the agreement that time for completion of the works is of the essence of the agreement." The defendant also raised a counterclaim against the plaintiff for damages for breach of the contract to be assessed, and also the return of the part payment of $390,000 from the plaintiff.

28. The Judge dealt with the issues raised by the parties. He said:

"22. It is the Plaintiff's case that the Defendant had failed to perform its implied obligation 'to do all that is necessary on its part to bring about completion of the works.' Counsel for the Plaintiff relied on a passage of Keating on Building Contracts (7th ed.) and submitted further that the Defendant is also liable for any breach of his authorized person in doing what is necessary on his part to bring about completion. There is no objection to this point of law from the Defendant.

23. Anyway, very strangely, the Plaintiff waited and waited until DW1 [the authorized person] finally wrote the letter in February 2000. PW2 said he had orally requested Mr. Tsoi for the response from Building Department. And the Defendant waited without any action. They had a lift in their restaurant that could not be used and it seems that they were not eager to use it. This strange background take me to evaluate on the issue whether there had been a delay on the part of the Plaintiff on completion amounting to a repudiation that the Defendant may accept and terminate the contract."

29. The Judge then dealt with the allegation that time was of essence of the contract. He said:

"26. The contention of repudiation is originally based on time is of the essence. However, at the final submission, the Defence Counsel conceded that they could not really argue the time is of the essence, as it is not provided in the contract. He then proceeded to argue that there had been unreasonable delay on the part of the Plaintiff which justified the termination. Unfortunately, this alternative claim had never been pleaded in the defence. Parties are bound by their pleading and I see no reason how the Defendant could begin to argue that there is an unreasonable delay.... "

30. The Judge continued:

"28. And in any event, given the background I have analyzed above, one cannot interpret the delay as unreasonable. The undisputed evidence of PW2 is that he did go after Mr. Tsoi, the representative of DW1's firm in this project for the response from the Building Department. There is no response from DW1 or Mr. Tsoi from the evidence of the Defendant. There is a duty on DW1 as the agent of the Defendant to co-operate with the Plaintiff to bring about the completion of the works. The delay is on the part of DW1.

29. That being the case, I come to one and only one conclusion that the Plaintiff is not in fundamental breach of the contract. The Defendant by the issuance of their said letter expressed a clear intention not to be bound by the said contract and was accepted by the Plaintiff when they removed the lift. The Defendant is in breach and the Plaintiff is therefore entitled to recover damages from the Defendant."

Liability

31. Grounds 1, 2, 3, 4 and 5 of the grounds of appeal challenge the Judge's conclusion that the defendant or the defendant's agent were under contractual obligations to write to or liaise with the Director of the Buildings Department. Especially, the Judge's conclusion was wrong and inconsistent with his findings that:

(a) it was not the defendant's agent's duty to obtain EMSD's approval;

(b) the requirement of a machine room is not a statutory requirement and a MonoSpace lift did not require a machine room to operate it safely, wherefore, Regulation 9A was satisfied; and

(c) the EMSD had been in error, were mistaken and/or acted over cautiously.

32. It is also contended that it was not the contractual duties of the defendant or its agent, the authorised person, to accede to the EMSD's mistaken request, or correct the EMSD's mistake, or to satisfy the EMSD that the lift could operate safely without a machine room. Rather, it was the plaintiff which was under contractual obligations to satisfy the EMSD that the lift could operate safely without a machine room and process all necessary approvals, including correcting any mistake of the EMSD in the process. The plaintiff should have resolved the matter on its own initiative and efforts with the EMSD, without seeking the assistance of the defendant or its agent. It is also contended that the Judge erred in law in holding that the delay would only entitle the innocent party to damages and not to termination of the contract. He should have held that the delay of unreasonable extent or duration was capable of constituting a repudiatory breach that might be accepted by the innocent party, i.e., the defendant, entitling the defendant to terminate the contract. It is further contended that the Judge ought to have found that the plaintiff was wholly or mainly contractually responsible for and caused the delays which were unreasonable in duration and extent.

33. First, it cannot be gainsaid that time was not of essence of the contract, according to the terms of the contract. Indeed, the defendant's counsel before the Judge did not argue otherwise. Apart from the lack of provisions in the contract to state that time was of the essence, there was a provision in the contract dealing with liquidated damages for delay, which stated:

"The liquidated and ascertained damages shall be 0.50% of our contract sum per week and a maximum limit of 10% of our contract sum."

34. Secondly, the only pleaded ground for the defendant to terminate the contract was in paragraph 18 of the defence that "the plaintiff failed to complete the works on or before the scheduled date of completion." As the Judge had clearly made known in his judgment, long and unreasonable delay on the part of the plaintiff to complete the work was not pleaded. In all the circumstances of this case, unless time had been made of essence of the contract, the delay on the part of the plaintiff in completing the works and in obtaining approval from the EMSD, would not justify the defendant terminating the contract. The termination of the contract by the defendant through the authorised person's letter dated 20 July 2000 was unjustified.

35. However, in the letter of 20 July 2000 and in the final submissions of counsel for defendant before the Judge, long delay and unreasonable delay was raised. The Judge held that there was no unreasonable delay in the circumstances of this case. The circumstances were that when the EMSD raised the absence of the machine room as being a non-compliance of the "Building Code" and advised that modification should be sought by the authorised person from the Building Authority, the plaintiff sought assistance from the authorised person, the defendant's agent. Mr P F Tsoi of the authorised person then notified the plaintiff that the authorised person had sent a letter dated 16 April 1999 to the Building Authority, but for some reason unknown to the plaintiff, either that letter was never sent by the authorised person or that letter had been withdrawn. The plaintiff continued to seek assistance from Mr P F Tsoi and eventually the authorised person wrote to the Building Authority who caused EMSD to grant the exemption from compliance with the relevant clauses of the EMSD Code and the BA Code relating to the absence of the machine room in June 2000. It was about a month later that the defendant through its authorised person terminated the contract.

36. If the authorised person or the defendant was under no obligation to seek the modification from the Building Authority, the authorized person could or should have refused the plaintiff's request, but he had not. His representative represented to the plaintiff that the letter of 16 April 1999 had been sent. The letter was either withdrawn or it was never sent. Eventually, starting from February 2000, it sent further letters to the Building Authority which caused the Building Authority and the EMSD eventually to accept that it was a proper case for the non-compliance of the BA Code and the EMSD Code relating to the absence of the machine room. This must have the effect of leading the plaintiff on to the belief that the authorised person was in the course of seeking the necessary modifications from the Building Authority, as advised by the EMSD in its letter dated 9 April 1999. Any delay in obtaining the modifications should, fairly and properly, be treated as being caused by the authorised person as the agent for the defendant in all the circumstances. Looking at it another way, the delay in the plaintiff's obtaining Form 26 in such circumstances, without more, could not justifiably be used by the defendant as a ground for it to terminate the contract.

37. Moreover, time not being of essence of the contract, the defendant could not have been allowed to treat the non-completion of the works by the contractual time as a breach so serious as being a cause for the contract to be terminated, in other words, a repudiatory breach. The defendant could have made time of essence or relied on unreasonable delay if it had given notice to the plaintiff to complete within a reasonable time, but it had not. Instead, the authorised person through his representative Mr P F Tsoi had acceded to the plaintiff's request for assistance to deal with the modification as suggested by the EMSD. As pointed out by the Judge, Mr Tsoi did not give evidence before him to refute PW2's evidence in this respect. The authorised person had allowed the matter to drag on without notifying the plaintiff to complete by any time, let alone within any reasonable time. All of a sudden, when the Building Authority and the EMSD had agreed to the non-compliance with the relevant parts of their Codes, the defendant relied on the contractual time for completion having long expired to require the plaintiff to remove the lift. As time provided for in the contract was not of essence and had not been made to be of essence in the circumstances, the defendant was neither entitled nor justified to terminate the contract. The act on the defendant's part to terminate the contract and ask the plaintiff to remove the lift must be treated as repudiating the contract and the plaintiff was entitled to accept it and did so by removing the lift eventually.

38. In the circumstances of the facts of this case, the Judge was correct to hold that the defendant and its agent, the authorised person, had failed to perform their obligation "to do all that it is necessary ... to bring about the completion of the works." The Judge was fully entitled to give judgment for the plaintiff. None of the grounds of appeal raised has the effect of persuading us that the judgment was wrong.

Damages

39. Grounds 6 and 7 of the grounds of appeal challenge the Judge's award of damages. The plaintiff's claimed damages consisted of three parts:

(a) The balance of the contract price, being $600,000, less $390,000 having been paid, and less $30,000 as the value for the scrap of the lift removed from the defendant's premises, as demanded by the defendant by its authorised person's letter dated 20 July 2000.

(b) The sum of $60,000 for the cost of dismantling and removal of the lift.

(c) The sum of $16,250 for building the metal scaffolding as instructed by Mr P F Tsoi.

40. Ground 6 of appeal contends that there was no sufficient evidence upon which the Judge could conclude that the plaintiff had suffered the loss and damage as claimed, or that the residual value of the lift was only $30,000. It contends that the Judge was wrong in accepting the bare assertion of PW2 and in effectively treating PW2's evidence as expert opinion. It contends that the Judge ought to have held that the plaintiff was only entitled to nominal damages.

41. In his judgment, the Judge pointed out that the defendant had not pleaded that the plaintiff had failed to mitigate damages. He also pointed out that PW2's evidence on the scrap value of the lift as removed had not been challenged by the defendant in cross-examination. The Judge accepted the evidence of PW2 that the plaintiff had basically completed all the installation work of the lift and he continued:

"On the Plaintiff's side, I have PW2 who is an engineer in the employ of the Plaintiff's company and is experienced in the lift industry. He has been handling this contract. He has made an assessment that had not been cross-examined. And I have no evidence to challenge or dispute his assessment from the Defendant. On the balance, I accept his evidence."

42. Whilst sometimes the scrap value of machines can be subject to expert opinion, as the defendant had not pleaded the plaintiff's failure to mitigate damages in its defence, and had not challenged PW2's evidence on the scrap value in cross-examination, we consider that the Judge could not be criticised for accepting PW2's evidence on the scrap value as being the only amount that should be properly deducted from the contract price in the assessment of damages.

43. There is also force in the submission of Ms Teresa Cheng SC, for the plaintiff, that if it was the defendant's case that PW2's evidence was opinion evidence, objection should have been made at the time when the evidence was given, but there was no such objection.

44. Regarding the costs for dismantling the lift and for the building of the metal scaffolding, again the defendant contends that the Judge should not have accepted PW2's evidence because it was not an expert opinion. We are of the view that these two items of damages are not necessarily matters for expert opinion. Again the Judge pointed out that PW2's evidence on these two items had not been challenged in cross-examination. Before the Judge, there was a letter dated 21 May 1999 from the plaintiff to the defendant stating that the best price they quoted for the erection, dismantling and renting of the metal scaffolding inside the lift shaft was $16,250. There was no challenge to this price as there was simply no response to the letter. There was also a debit note issued by a Gold Wings Engineering Company to the plaintiff dated 1 November 2000 for labour charge to dismantle the lift at $18,000.

45. The Judge accepted that the $60,000 for the dismantling of the lift and its removal included the charges of the sub-contractor for $18,000. The balance represented the wages of the safety officer, supervision, administration and transportation costs. The Judge continued:

"And the street where the Defendant's restaurant was located required loading and unloading after office hours, and hence more expensive transportation. The sum also represented their administration costs. PW2 confirmed all these figures are correct."

46. We do not see anything wrong with the Judge's allowing all these items of damages as claimed by the plaintiff.

Conclusion

47. For the above reasons, we dismiss the appeal.

Costs

48. At the hearing, Ms Cheng asked us to make an order of enhanced costs, one on an indemnity basis. She relied on the following circumstances in support. Upon the defendant's former solicitors ceasing to act, those instructing her wrote to advise the defendant to apply for leave to allow its director to represent it in the appeal. When Master B Kwan refused the leave sought by the defendant, the defendant did not appoint solicitors to represent it, and the plaintiff and its legal representatives were obliged to file skeleton arguments and attend this Court.

49. We are not satisfied in the circumstances of this case that any order for costs other than the normal one should be made. We make an order that the defendant do bear the plaintiff's costs of this appeal, on a party and party basis.