SHING LOK PLUMBING ENGINEERING COMPANY LTD v. FULL WIN BUILDING SERVICES LTD

DCCJ 6860/2020

[2024] HKDC 191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6860 OF 2020

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JUDGMENT

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1.  This is the trial hearing of the plaintiff’s action for a building contract.

2.  The plaintiff alleges that it was a sub-contractor of the defendant for waterpipe installations carried out in the development project (“the Project”) at Kai Ching Estate, Kai Tak Site 1A Phases 1 and 2, Hong Kong (“the Site”) in 2016 for HK$2,494,200 (“the Agreement”).

3.  The Agreement itself was based on a written quotation for the details of the work requested by the defendant, which the plaintiff had given to the defendant but which the parties had not signed.

4.  There was also an alleged variation of works (referred to as 5 variation orders given by the defendant to the plaintiff) at a total sum of HK$117,000 (“the Variation Works”).

5.  The plaintiff’s case is that it has carried out and completed the works under the Agreement and the Variation Works. The defendant has so far paid HK$1,613,250 to cover the wages of the plaintiff’s workers, leaving a balance of HK$880,950 under the Agreement and the payment for the Variation Works unsettled. Therefore, the plaintiff claims HK$997,950 against the defendant.

6.  The defendant filed a Defence through solicitors. However, it has been acting in person and has been absent since the case management conference and pre-trial review hearings. The case has been set down for a 2-day trial. The defendant is absent from the trial today.

7.  The defence put forward by the defendant's manager was that he could not recall any conversation in which the plaintiff was engaged as the defendant’s sub-contractor. The defendant had no record of entering into the Agreement with the plaintiff, no record of instructing the plaintiff to carry out the Variation Works, and no record of the payments made to the plaintiff. It is of note that the defendant has not made any positive averment in its Defence, other than bare denials.

8.  I am satisfied that the plaintiff has proved its case at trial. Mr Law Chung Lok, the director of the plaintiff, gave evidence in court. Various documents have been produced, and I accept them in support of the plaintiff’s case, such as the written quotation marked “completed” for each category of work done, the wage records of the plaintiff’s workers who carried out the works at the Site, and the bank passbook showing the defendant’s payments for those wages.

9.  Mr Yuen on behalf of the plaintiff submits that even though the defendant denies the parties have signed an agreement, the plaintiff’s offer to perform work for the Project as a sub-contractor was accepted by the defendant by conduct. He relies on Brogden v Metropolitan Railway (1877) 2 App Cas 666.

10.  I accept Mr Yuen’s submission. Brogden v Metropolitan Railway is the authority for the proposition that the actual conduct of the parties may establish a binding contract between them, although the agreement has not been formally executed by either party.

11.  Also, in Keating on Construction Contracts, 11^th edn (2021), para 2-047, the learned authors state:

“Acceptance can be by conduct showing an intention to accept the terms of the offer. It is a question in each case as to whether conduct, known to the offeror, shows such an intention. Conduct will amount to an acceptance if it is clear that the offeree did the act in question with the intention of accepting the offer.”

12.  I have no doubt that the Agreement was an agreement by conduct and that the plaintiff, in carrying out the installation works, has acted with the intention of accepting the terms as a sub-contractor under the Agreement and the Variation Works. I accept the evidence of the plaintiff’s witness. I also find that the defendant was in breach of those agreements.

13.  I grant judgment in favour of the plaintiff.

14.  The defendant shall pay to the plaintiff the sum of HK$997,950 with interest at the judgment rate from the date of Judgment until payment, together with costs of the action with a certificate for counsel, and such costs to be taxed if not agreed.