DAI TIM KEUNG v. HO WING KEUNG

DCCJ 5016/2018

[2023] HKDC 577

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5016 OF 2018

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JUDGMENT

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1.  This case concerns a dispute arising out of a contract of renovation work at 63A Peak Garden, Tai Po, New Territories, Hong Kong (the “Property”) between the plaintiff, an occupier of the Property and the defendant, a contractor in the business of renovation and decoration works.

Background

2.  There is no dispute that the plaintiff engaged the defendant to carry out renovation work on the Property (according to a list setting out the items of work, Trial Bundle 3 page 481-482) pursuant to an agreement around August 2017 for a lump sum of HK$600,000 (the “Agreement”). There was no breakdown of items and rates in the Agreement.

3.  The plaintiff has paid a total of HK$400,000 to the defendant. Renovation work commenced around September 2017.

4.  It is also not in dispute that the plaintiff has also sought additional and variation of the scope of work during the relevant time.

5.  There is a dispute between the parties as to whether there was an agreed completion date. However, it would appear from various chat group discussions that there was concern about the progress of the renovation work: for example, the plaintiff was chasing the defendant for individual quotation for each item of furniture and the defendant was chasing the plaintiff for his decisions and approval of various designs of such furniture before providing a quotation.

6.  On 9 March 2018, the plaintiff sent a letter titled (as I translate) “Termination of Renovation Work Agreement” which stated:

“I, Dai Tim Keung, now formally offer you, Ho Wing Keung, the contractor for renovation work of 63A Peak Garden, Tai Po, to terminate the renovation work on the above property.”

7.  The letter also set out 4 reasons for termination (which can be summarized as “faults in the work”, “delayed in progress”, “failure to provide quotations”, and “being out of communication”). The plaintiff provided an ultimatum for the defendant to reply by 14 March 2018. (Trial Bundle 3, page 537)

8.  On 16 March 2018, the defendant replied via WhatsApp (as translated):

“Mr. Tai, received your notification to terminate the renovation work at the property, it is accepted, no problem.” (Trial Bundle 5, page1077)

9.  The defendant subsequently vacated the Property on or around 23 March 2018. The plaintiff engaged another contractor and the renovation work was completed in around mid-October 2018.

The parties’ pleaded cases

10.  The plaintiff’s pleaded case is that the defendant was in repudiatory breach and claims:

a.  return of HK$238,400 being overpayment of quantum of the defendant’s non-completed work on quantum merit basis (the completed work being valued at HK$161,600);

b.  rectification costs of defective work of HK$244,200; and

c.  loss of rental income of HK$108,000.

11.  The plaintiff’s loss of rental income claim concerns his allegation that the parties have agreed on a completion date of 30 April 2018 and due to the repudiatory breach by the defendant, there was a delay of completion of some 5.5 months. But for this alleged breach, the plaintiff would have moved in earlier and rented his other flat out. The claim is based upon monthly rental value of HK$18,000 and this sum has been agreed between the parties (Trial Bundle 3 page 530-531). The plaintiff is claiming 6 months’ loss of rental income HK$18,000 x 6 = HK$108,000.

12.  The defendant’s pleaded case is that any delay was caused by the plaintiff’s instructions for variation and additional works and failure to finalised designs, and also that, under the circumstances, the defendant was not given any opportunity to rectify any defects. The defendant denies any claim for overpayment, rectification costs and loss of rental income and counterclaims for HK$201,060 being outstanding sum payable by the plaintiff under the Agreement (and subsequent additional and variation work) and / or on quantum merit basis as listed in the First Schedule and Second Schedule (Trial Bundle 1, page 32-35a).

Repudiatory breach

13.  The court will first deal with the issue of repudiation.

14.  The court agrees with Mr. Leo Wong, counsel for the plaintiff (“Mr. Wong”), that this question is only relevant to the plaintiff’s claim of loss of rental income.

15.  There is a dispute where there was an initial oral agreement for completion date to be “within 4 months”. I am of the view that this dispute is not important given that subsequent WhatsApp messages on 21 and 22 January 2018 show certain discussions between the plaintiff and defendant regarding completion (Trial Bundle 5, page 904 – 905):

a.  On 21 January 2018, the plaintiff informed the defendant that (as translated):

“In order to coordinate with moving in time, the helper I have employed earlier will be arriving within this week. She has not got her own room and we four have to live together, so we hope that we could move in to Tai Po soon.”

b.  On 22 January 2018, the plaintiff wrote (as translated):

“…You should calculate and reserve workers to give me time. It is difficult for me to accept if the work could not be completed before 30 April 2018. I have not purchase furniture. I also have to choose a date to move in. Looking back at my account records, the work started in early September when it was very hot. If it is complete in April, it has already used 8 months!”

c.  The defendant replied on the same day (as translated):

“Understood and acknowledged. After the finalisation of the design drawings, the work will progress very quickly. There should be no problem for completion before end of April.”

d.  The plaintiff has agreed to this (as translated):

“Then everyone is happy. But must not condense or rush the work. We should start to hold tight on the timing.”

16.  It is therefore clear from these conversations that any promise on the part of the defendant on completion date “before 30 April 2018” was conditional upon “finalisation of the design drawings” because “the work will progress very quickly” after this.

17.  Looking back to the earlier history of this renovation, in late November 2017, the defendant provided the engineering drawings for the wooden furniture from the PRC factories (the “Engineering Drawings”, some of which are enclosed in Bundle 6, page 1238-1259). However, the plaintiff found that they were too crude and unclear and he could not decide whether the furniture was suitable (in court, the plaintiff claimed that he could not “visualise” the products from these drawings). The plaintiff therefore asked the defendant to find a suitable person to assist and the defendant introduced “Kelvin”, a freelance interior designer.

18.  There is dispute as to the role (and fees, if any) of Kelvin in the renovation project but from the WeChat communications and documents disclosed, it is clear that Kelvin has produced hand-written sketches, hand-written revisions on the Engineering Drawings, his own original design drawings (“Original Design Drawings”, Trial Bundle 6 page 1285 - 1308) and computer-generated 3D Drawings (“3D Drawings”) etc..

19.  The Original Design Drawings are clearly very detailed elevations and plans of various designs for e.g. the yoga room cabinet, the living/dining room red wine cabinet, the master bedroom make-up desk, the study document cabinet and the two toilets etc. These drawings are very different from the Engineering Drawings containing precise dimensional measurements, minute design details and specifications (e.g. 2 proposed patterns on the make-up desk, Trial Bundle 6, page 1293-1294) and options for materials (e.g. glass, mirrors, wood, marble) and lightings etc.

20.  From the WeChat messages, it is clear that Kelvin has been in regular contact the plaintiff and his wife. The Original Design Drawings and 3D Drawings were sent by Kelvin to the plaintiff and his wife from around late December 2017 to 5 March 2018, receipt of which were acknowledged by the plaintiff or his wife.

21.  In paragraph 21 of his witness statement (Trial Bundle 1, page 88), the plaintiff claimed that, at the meeting between him, his wife, the defendant and Kelvin on 24 February 2018 at the Property, he and his wife have “finalised the decision” on all wooden furniture and requested the defendant for a quotation for “all remaining items” and “effect drawings” (which may mean the 3D Drawings), and that the work must finish by 30 April 2018. The plaintiff claimed the defendant did not provide a “direct” answer to such requests.

22.  From the WeChat messages around that the time, it is also clear that the plaintiff has been chasing the defendant to provide various quotations on individual items (Trial Bundle 5, page 1012 (on 12 February 2018), page 1057 (on 24 February 2018), page 1063, 1064 and 1065(all on 27 February 2018), page 1067 - 1071 (all on 2 March 2018), 1073 (on 4 March 2018) etc.)

23.  In particular, the plaintiff’s WeChat message on 2 March 2018 made it clear that he had (as translated) “many times ask that the wooden furniture be made individually by batches” that he wanted to wait for such “quotations” but “please pay attention, design fee and drawing must be separately and individually listed out, and not to be mixed up. Also, construction time and material should also be clearly listed.”

24.  However, it is of note that the defendant did reply to the plaintiff as early as on 13 February 2018 that (as translated) (Trial Bundle 5, page 1015):

“I will liaise with Kelvin to give you the once-overall quote to you.”

25.  It is also the defendant’s evidence that he has informed the plaintiff to finalise all the design work by Kelvin as soon as possible (paragraph 22 of the defendant’s witness statement, Trial Bundle 1, page 118). During the trial, the defendant identified the two records of voice messages in the WeChat group dated 22 February 2018 as his such messages to the plaintiff.

26.  Further, the defendant also claims that he has arranged the meeting on 24 February 2018 at the Property so that the plaintiff and his wife could finalise all the design work and other details of the renovation work. However, the plaintiff was unable to finalise Kelvin’s designs and in fact suggested alterations and request for new work for both Kelvin’s work and the roof shed (e.g. new hanging cabinet, false ceiling design etc.). (paragraphs 22 to 26 of the defendant’s witness statement, Trial Bundle 1, page 118-121)

27.  In particular, according to the defendant, at the end of the meeting, the plaintiff repeatedly asked the defendant to provide individual quotes for various items, and the defendant reiterated that the plaintiff would need to finalise all the designs and renovation details before he could contact the PRC factory to consider the entire purchase of raw materials and to ensure quality of material and colour and consistency of quotation. He informed the plaintiff that it would be impractical to quote for individual items. (paragraph 27 of the defendant’s witness statement, Trial Bundle 1, page 121)

28.  It is of note that none of the Original Design Drawings showed any final decision on choice of colours, materials, lighting options etc. More importantly, during the trial, the plaintiff admitted during cross-examination that he had all along only confirmed the design of the Daughter’s Room.

29.  As such, it is clear that the plaintiff was not truthful in his witness statement. In fact, he and his wife have not “finalised the decision” etc. at this meeting on 24 February 2018 as alleged.

30.  From this stage onwards, the plaintiff and the defendant were at cross-purposes: the plaintiff continued to chase the defendant for quotation without finalising the designs, and the defendant insisted that the plaintiff needed to finalise the designs first before he could take them to the PRC factory for an overall quotation.

31.  Thus, they were at loggerheads: the plaintiff refused to finalise the designs and the defendant refused to provide quotations.

32.  By 4 March 2018, the plaintiff gave the defendant an ultimatum (Trial Bundle 5, page 1073):

“…I am still waiting for your quotation? You have to give me latest by tomorrow. I have been waiting for over a week. Before you give me a proper quotation please momentarily stop all work on Tai Po 63A, until quotation contract can be properly approved.”

33.  When the plaintiff sent the letter on 9 March 2018 claiming repudiatory breach and termination of the renovation work agreement, he put forward the reasons as faults in the work, delayed progress, failure to provide quotation, being out of communication.

34.  Putting the reason of “faults in the work” aside at this stage, I am of the view that the remaining three reasons were not proper basis to establish repudiation of the agreement by the defendant.

35.  As stated above, from the WeChat conversation on 22 January 2018, I found that any promise on the part of the defendant on completion date “before end of April” was conditional upon “finalisation of the design drawings”.  Thus the defendant had all along made it clear that the plaintiff would need to finalise the design first and there was no promise that the defendant would need to provide quotations for each individual design items before the plaintiff finalise the design.

36.  I would also accept the explanation from the defendant during the trial that it was unreasonable and, indeed, not practicable to seek any quotation on individual items when the design had not been finalised.

37.  To get a quotation under such circumstances as requested by the plaintiff (i.e. listing quotation for each individual item without a finalised design), the defendant would need to approach the PRC factory seeking quotations on each and every possible variation of designs of each item: i.e. uses and combinations of every possible variation of material within all the Original Design Drawings of marble, wood, glass, mirror, stainless steel, paint and lightings etc., all at a yet undetermined quality and quantity.

38.  Indeed, I would question how the defendant could possibly specify the construction time of each “undecided” item under the circumstances: how could one begin to speculate how long it would take for construction of each individual item when the materials and design of such has not even been finalised? How could the defendant be asked to source for the availability of each possible option of raw materials rare or common, cheap or expensive, for amounts yet undetermined?

39.  It is therefore self-evident that the plaintiff’s request was impractical, if not totally impossible and in any case a complete waste of time and effort for the defendant.

40.  In addition, I also accept that it is not reasonable to seek quotation on each individual items: prices of materials as well as construction of the items were clearly affected by the economy of scale. It is common sense that the costs of constructing each item of furniture on an individual basis would bound to be more costly than constructing all the furniture in the same factory when the shared raw materials could be purchased in bulk etc. As such, to construct each item individually in different batches as suggested by the plaintiff would not make sense in terms of time, effort and costs, not to mention the difficulty of controlling quality and consistency across such different “batches”.

41.  Therefore, I find it entirely reasonable for the defendant to maintain that the plaintiff would need to finalise the designs before he obtained a once-overall quotation, as he stated on the WeChat on 13 February 2018.

42.  Considering the evidence before me, I do not accept the plaintiff’s claim that the defendant has not given a “direct” answer to his request for quotation during the meeting on 24 February 2018. The defendant’s version of the events was far more reasonable and likely: the defendant must have been stating his position to the plaintiff repeatedly: that the plaintiff has to finalise all the designs (as well as all the remaining details of the renovation work) before he could possibly provide a once-overall quotation.

43.  Thus, I find the plaintiff totally unreasonable to maintain his request for quotations under the circumstances. The plaintiff could not reasonably base the grounds of repudiation on delay of progress of renovation work and / or failure to provide quotations on the part of the defendant.

44.  As for the “failure to communicate” ground, since the parties were at loggerheads with the plaintiff unreasonably insisting to seek quotations, there was really nothing more that the defendant could contribute to that conversation (whether he was sick and off-work or not during the relevant time) given that he must have made his position loud and clear on many occasions. The plaintiff could not reasonably use this as a ground of “repudiation” on the part of the defendant.

45.  As for the ground of “frequent fault and delay in rectification”, I would agree with the defendant that the defendant was not given any opportunities to remedy many of the alleged defects and faulty workmanship before the plaintiff’s request for termination of the renovation work. Given that I do not accept the other grounds of repudiation, this allegation, even if entirely true and not exaggerated (both in terms of number and occurrence), could not be a reasonable stand-alone ground of repudiation on part of the defendant. Any fault existing at the time of termination, the circumstances of the occurrence and any reasonable costs of rectification should be for the consideration in quantum.

46.  Instead, I find the plaintiff in repudiatory breach of the renovation agreement himself by his “ultimatum” on 4 March 2018 WeChat message insisting upon an unreasonable demand for quotation (without finalising all the designs) before work could proceed. His position was further confirmed by his letter dated 9 March 2018. The defendant accepted the plaintiff’s repudiatory breach on 16 March 2018 by his WeChat reply.

47.  As such, I would not allow the plaintiff’s claim for loss of rental income.

Quantum of the defendant’s completed work

48.  There is no dispute that this was a lump sum contract and there cannot be any dispute that the renovation work done by the defendant was not at the stage of “practical completion”: the renovation works done were far from being “completed free from patent defects other than ones to be ignored as trifling”: Mariner International Hotels Ltd v Atlas Ltd (2007) 10 HKCFAR 1.

49.  The renovation agreement did not specify the rate and prices to be used in valuation of each varied works. As such, a claim of quantum meruit would arise: Sandra Christelle & Jackie Laujin v Professional Property Care (HK) Limited [2018] HKDC 1061.

50.  As for the assessment of a reasonable sum of work done, there are no rigid guidelines “although it is clear that the contractor should be paid a fair commercial rate for work done in all the relevant circumstances.” (Chitty on Contracts 34^th Ed. Vol II paragraph 39-179, page 705)

51.  As the basis of his counterclaim, the defendant submitted the First Schedule and the Second Schedule listing each item in the renovation work and listing the value of the item if 100% completed and the value of the work actually completed.

52.  Mr. Wong argued that this breakdown was unsubstantiated and arbitrary, and further that the defendant had not adduced any evidence on actual labour and material costs. In his closing submission, Mr. Wong made it out as if this was almost fatal to the claim for quantum meruit.

53.  I am of the view that this cannot be the only way for the court to assess the valuation of work done in a fair and reasonable way. What constitutes a “fair” and “reasonable” valuation must be applied by the court on a case by case manner, and circumstances of the case such as complexity of the work, value of the contract, size and organisation of the parties involved, practicality, time and cost proportionality must be factors taken into consideration.

54.  This was a simple renovation agreement of a sum of HK$600,000 (plus some other addition and variation work) involving a single property with the defendant who appeared to be a “one-man band” contractor. Under the circumstances, I cannot accept that failure to provide any evidence of labour, material costs or market rate must mean that the court should deem that the work done was only of “nominal” value, or that the court could not look at the actual evidence of work done, hear the evidence from all parties and their experts, including any disputes as to the basis and methodology of the experts’ opinion, and to apply a certain degree of logic and common sense in order to assess a fair and reasonable valuation.

55.  I will follow, as the experts did in the first two joint reports, the order of items as listed in the First Schedule and the Second Schedule (as attached to the Re-re-amended Defence and Counterclaim, Trial Bundle 1, page 30-35a).

56.  The plaintiff has instructed Mr. Chung Wai Hoi (“Mr. Chung”) and the defendant has instructed Ir. Wong Tsz Kin, Francis (“Ir. Wong”) as their respective experts. They have submitted 3 joint expert reports all together: a joint expert report, a supplemental joint expert report and a further joint expert report addressing on the issue of source of water to the fish pond.

57.  There is no dispute that the experts have jointly inspected the Property on 25 June and 13 August 2019. There was also a single inspection by Mr. Chung on 3 July 2019.

58.  These inspections were done after the completion of all renovation work by the replacement contractor, Rainbow Decoration Engineering Limited (“Rainbow”) at a costs of HK$221,700 including rectification of alleged defects (Trial Bundle 3, page 500). The experts also obtained information regarding the work done by the defendant (and any dispute on such) from the plaintiff and the defendant who were present during the joint inspections. Rainbow has also provided a set of photographs and video showing the state of the Property before it started work, as well as its own assessment of the valuation of the defendant’s completed work at HK$161,000 (Trial Bundle 3, page 499).

Original quotation items

A: Ground level garden items

Item A1:

59.  A1 1) is water-work for the fish pond. The work would require installing water pipes and electricity supply from the property out to the fish pond and for such to be embedded underneath the garden floor tiles. There was no dispute that this was done. Further, the work also involved supplying and connecting a water pump. There is a dispute whether this was supplied: the plaintiff claimed that Rainbow supplied it, but the defendant claimed that although he did not install the pump, he had purchased it, tested it and then stored it in the kitchen area. There is also a dispute of the installation of a MCB panel (circuit breaker) by Rainbow. The defendant claimed that this was not necessary and not in the original agreement.

60.  The respective experts also disagree on the market rate of item A1: Mr. Chung rated it as HK$10,000 but deducted half of it (i.e. HK$5,000) on account of the plaintiff’s version of events (i.e. no pump, no MCB panel); Ir. Wong rated it as HK$6,000 but deducted HK$700 as the price of the water pump (i.e. HK$5,300).

61.  I am of the view that whatever the methodology and assessment employed by each expert, their assessments were not far apart and the court will take a broad-brush approach and take the middle position to value this as HK$5,150.

62.  There is no dispute that A1 2) fish pond lighting was provided by the plaintiff and installed by Rainbow; and that A1 3) water pipe for car wash was cancelled. Thus, the defendant did not work on these items and so no value should be awarded.

63.  Item A1 4) was for water-work for sprinkler system on the slope. The only dispute was whether the leakage at a joint was the defendant’s responsibility and the value should be deducted for defect.

64.  I note that such water leakage was not mentioned in Rainbow’s list of rectification work (Trial Bundle 3, page 500). As such, this might likely be not related to quality of work but perhaps damage at a later stage. In any case, since I find that it was the plaintiff who was in repudiatory breach, if this was an obvious defect, without the plaintiff’s breach, the defendant would have been rectified it without charge.

65.  Both experts agreed that this item should be HK$8,000 if completed without defect. I find this reasonable and would award this sum.

66.  A1 5) was for excavation work for water pipes to be buried and for the surface to be re-tiled. Both experts agreed that this was completed. Mr. Chung value this as HK$8,000 but Ir. Wong valued this as HK$14,000. Again, I will take the broad-brush approach and take the mid-point value of HK$11,000.

Item A2:

67.  A2 1) and 2) concerns building the fountain and L-shape planters, both works were completed.

68.  A2 3) concerns water-proofing work for the fish pond. Mr. Chung says that he could not assess the water-proofing status. A2 4) concerns with installing tiles but there is no dispute that such work was unfinished. Rainbow completed such work.

69.  Both experts agreed that the completed value of A2 should be HK$55,000.

70.  However, I note that Mr. Chung deducted the entire costs of work for the fish pond and planter quoted in the Rainbow invoice (Trial Bundle 3, page 500) from this sum and suggest that the value would only be HK$1,000. This is clearly unreasonable given that the costs of work quoted by Rainbow included water pump and lighting which are already addressed in A1.

71.  Even on a common sense approach, the value of physically building a fish pond and planter, as well as doing (some at least) water-proofing and partially tiling it cannot reasonably be assessed to worth only HK$1,000.

72.  Further, there is also complaint that 3 tiles on the wall feature became loose. However, as the plaintiff was in repudiatory breach, the defendant was not given the opportunity to rectify such defects which he would likely have done should he be allowed to complete the renovation work.

73.  I also accept the defendant’s evidence that it was the fault of the plaintiff because he had decided to purchase the tiles himself but only purchased the exact size needed without allowing for any wastage (e.g. tiles that could not be used because they were on the edge of a surface and needed to be partially cut). This meant that the tiling could not be completed in one go: the defendant would need to re-order another batch and to recall the worker to do the tiling another day, thus increasing the time and costs.

74.  I would also take in account that planter did not have a drainage and Rainbow had to put it in.

75.  Having considered all the evidence including the photographs showing the state of the fish pond and the planter, and the culpability of each party, I would use a common sense approach and value the work completed by the defendant on A2 as HK$45,000.

Item A3:

76.  Both experts that agree this item was not completed and therefore has no value.

Item A4:

77.  Both experts agree that this was partially done and that the work done (just demolition work) should be HK$5,000. I see no reason to disturb this valuation.

78.  The dispute concerning whether there was a subsequent change of plan by the plaintiff for a sliding door installed by Rainbow instead of a folding door as agreed with the defendant is not relevant to the issue of value of completed work, which was just demolition of the old existing doors.

Item A5:

79.  Both experts agree that this item was not completed and therefore has no value.

B: Ground level living room

Item B1:

80.  This is work for various internal electric wiring and provision for various sockets in the living room. Both experts agree that the value of totally completed work would be HK$5,000. However, both experts also agreed that the defendant had only “buried” wirings in the walls etc. without providing proper conduits for such wirings. The defendant fairly conceded that this was his fault and failure to supervise the work properly.

81.  As this was concealed wiring, it would not likely have discovered even if the defendant was allowed to complete the renovation work, so it would arguably not likely be found as a defect to be corrected by the defendant free of charge under the circumstances.

82.  As such, I think it is reasonable that the remedial / rectification work should be paid by the defendant.

83.  There were also some disputes as to the specifications for the 2 floor electric sockets. The plaintiff claim that these sockets were installed slightly above floor level and therefore needed to be replaced. The defendant argued that the original plan was that these sockets were next to the sofa so it would not matter but then the plaintiff decided to re-position the sofa so there was a need to reinstall the sockets. In any case, only 3 sockets were done by the defendant.

84.  It would appear that Rainbow was charging HK$35,000 for all such work, including the rectification work to hack off the wirings inside the wall and re-install wirings with conduits.

85.  However, Mr. Chung appeared not to allowing this sum. He rated the work completed at HK$1,200 but the remedial work was HK$1,500, making this –HK$300. I would accept this assessment on the basis that if the work was done properly by the defendant, it would be worth HK$5,000. But these were only partially completed which also required rectification so it appeared reasonable that the remedial (or re-doing) work would cost HK$5,300 and not HK$35,000 which would be 7 times the value of the original work.

Items B2, B3, B4 and B5:

86.  These were costs for various furniture which were not constructed as agreed by both experts. There should be no value.

C: First floor

87.  These are for furniture and fittings for the family room, guest bedroom and bathroom, and study room which were not constructed by the defendant so there should be no value.

D: Second Floor Master bedroom

Item D1:

88.  This was for the dressing cabinets which were not constructed by the defendant so there should be no value.

Item D2:

89.  These are for work inside the Master washroom. The experts agreed that the total completed work would be valued at HK$58,000.

90.  D2 1) concerns with demolition of the Master bathroom and both experts agreed that this was completed. Mr. Chung opined that the value was HK$11,600 and Ir. Wong opined HK$12,000. I will take the mid-point of HK$11,800.

91.  D2 2) was for a newly made aluminium ceiling for the bathroom. The expert agreed that the original ceiling was retained. The defendant gave evidence that the original ceiling was re-installed after the tiling work. I note that the experts assessed the costs of this item around HK$5,800 to HK$6,000, I would think that since there should only be the labour of the re-installation, HK$2,000 should be the reasonable value.

92.  D2 3) was for construction of a sink cabinet. This was not done so there was no value.

93.  D2 4) was for the re-tiling of the bathroom and construction of a shower area. The value if completed would be HK$34,800 (Mr. Chung) or HK$37,000 (Ir. Wong). There is no dispute that the shower area was completed and the bathroom was tiled and the toilet bowl was installed.

94.  The plaintiff bought the marble-patterned tiles for installation by the defendant. However, the plaintiff was not happy about the patterns of the tiles (which were random marble patterns) after installation and also that he had bought 15 tiles too many, purportedly based on the defendant’s calculation. The defendant argued that this was because the plaintiff originally wanted a bath chair covered by the tiles which was cancelled. I agree with the defendant that since it was the plaintiff who bought and supplied the tiles, he cannot blame the defendant for any dissatisfaction about what he chose to buy.

95.  As for the extra 15 tiles, again, I am of the view that the plaintiff should bear the ultimate responsibility since he bought them himself. In any case, the plaintiff did make use of the extra tiles for flooring outside the bathroom. (Trial Bundle 2, page 199)

96.  The plaintiff also complained about the workmanship of the installation of tiles (e.g. hallow sounding tiles) which was disputed by the defendant, citing the cause as a demolished wall adjacent to the bathroom. In any case, if this was a defect in workmanship, I think it likely that the defendant would have the opportunity to rectify that if the plaintiff did not commit repudiatory breach.

97.  As such, I find that this work was substantially completed and put the value at HK$35,900 (the mid-point of the experts’ assessments).

Items D3, D4, D5, D6 and D7

98.  These items were not constructed so there was no value.

Item E: painting

99.  No painting was done so there was no value.

Item F: Protection and cleaning

100.  These items were for protection panels and cleaning after completion. The completion value would be HK$6,000. I am of the view that the defendant was asked to leave the property before completion so minimal, if any, cleaning was done. There was also a dispute as to whether protective panels were used for the whole house and of cause, there were no documentary evidence of the exact amount. I would think that some work had been done so presumably some protective panel must have been used. I would agree with Mr. Chung and put the value of such at HK$1,500.

G: Roof

101.  None of the items under this was carried out by the defendant due to new instructions from the plaintiff so there was no value under this.

H: Miscellaneous

102.  Items H1-H3, H5-H11 under this were not carried out by the defendant. Item H4 was subject to new instructions from the plaintiff. There was no value under this.

103.  The sub-total of value of items under the original quoted agreement should be HK$(5,150 + 8,000 + 11,000 + 45,000 + 5,000 – 300 + 11,800 + 2,000 + 35,900 + 1,500) = HK$125,050.

Subsequent re-quotation items for roof structure

104.  Items G1 to G4 were not completed by the defendant (but later by Rainbow) except some work in the areas for installing ventilating fans. Both experts agree that the value should be HK$1,800 and I accept this assessment.

105.  Item G5 was for the variation for the roof structure to be a bigger worship room including installing 4 electric sockets and 2 lighting sockets. But I am of the view that the installation of sockets appeared to be a duplication of Item G1 and G2.

106.  As for the construction of the roof structure, it is not in dispute that the defendant has completed the steel frames and most of glass panels have been installed. I am also of the view that most of the waterproof material were installed.

107.  It was not in dispute that the defendant had installed normal glass instead of tempered glass panels for the structure. The plaintiff subsequent engaged Rainbow to re-installed tempered glass (amongst others work on the roof structure) which was invoiced at HK$58,000.

108.  There was no evidence that the parties did agree to install tempered glass panels for the roof structure before the court. The plaintiff’s wife mentioned in WeChat the agreement for the use of double-glazed windows on both rooms on the roof and questioned whether only the west facing window had double-glazing glass panels on 18 January 2018 (Trial Bundle 4, page 895-896). The defendant’s case is that he thought a single glass panel has enough strength and that he had suggested to the plaintiff and his wife using double-glazing on west facing window for insulation purposes (paragraphs 31 and 32 of the defendant’s witness statement, Trial Bundle 1, page 122)

109.  The issue therefore must be whether tempered glass panels needs to be installed as a matter of necessity (e.g. due to compliance with safety regulations or laws or any industrial standard) so that it would be a matter of an implied term of the agreement.

110.  The issue of implied term was not pleaded or pursued by the plaintiff, and there is no evidence before the court of any such safety regulations or laws showing the necessity for tempered glass under the circumstances of this case.

111.  In fact, Ir. Wong opined that: “Regarding changing plain glass by the plaintiff, there is no rule that using tempered glass on windows is (a) compulsory. Practice Notes APP-37 can be referred to.” (Trial Bundle 2, page 366) This was not challenged by the plaintiff. Mr. Chung only opined so far that: “it is reasonable to install tempered glass” (Trial Bundle 2, page 366). Thus I find that although it might be deemed reasonable to install tempered glass, there is no evidence that it was necessary to do so, or that, for example, the glass installed by the defendant was unfit for purpose or not of merchantable quality etc.

112.  Another dispute concerns the plaintiff’s allegation that the door of the worship room was “improperly installed” because it has to be opened inwards thus causing water to drip indoors if the door was open in the rain.

113.  However, the plan of the roof structure (including the direction of the door opening) was showed to the plaintiff as shown in the WhatsApp messages on 23 November 2017 and 30 December 2017 (Trial Bundle 3, p. 619-620, 630-631) and the plaintiff did not object to it. This design was therefore part of the agreement and was not a defect.

114.  Further, even if it was true there were defects like ceiling sealant or window frame not fitting well, these would have likely been rectified by the defendant had there not been a repudiatory breach of the plaintiff in terminating the agreement.

115.  I would therefore agree with Ir. Wong’s opinion that the value under this head should be HK$142,000. Rainbow’s subsequent work costing HK$58,000 were substantially improvement work on the original agreed designs and therefore should not be deducted from the value.

116.  Thus, the sub-total for value of items under the subsequent re-quotation should be HK$(1,800 + 142,000) = HK$143,800

Additional items

117.  Item A6 concerns with demolishing a curb under an existing window. This was completed but there was a slight variation of assessment of value: HK$2,000 (Mr. Chung) and HK$2,300 (Ir. Wong). I will take the mid-point of HK$2,150.

118.  Item A7 concerns with demolish of a wall. This was completed but there is a dispute on whether it was a “relatively simple” job (Mr. Chung) or whether it was complicated by “extra care for protection by timber board” (Ir. Wong) was required, so there was a difference in value: HK$1,000 (Mr. Chung) or HK$4,500 (Ir. Wong). There is little evidence to support either views so I would take the broad-brush approach at the mid-point of HK$2,750.

119.  Item A8 concerns dismantling a fence which was done. There is a dispute in value: HK$1,000 (Mr. Chung) and HK$2,000 (Ir. Wong). I will take the mid-point of HK$1,500.

120.  Item A9 was for the construction of a stainless steel and glass door. The experts agree that the cost was HK$6,000 but Mr. Chung deducted HK$1,800 because it was not installed by the defendant but by Rainbow subsequently. However, I do not agree that failure to install the door should be seen as a defect to be rectified: the defendant would have most likely installed it had there not been a repudiatory breach of the plaintiff in terminating the agreement. I would therefore put the value of this at HK$6,000.

121.  Item A10 concerns constructing two lighting sockets on the ground floor on the side of the front door. These were completed. There is a dispute in value: HK$1,600 (Mr. Chung) and HK$2,800 (Ir. Wong). I will take the mid-point of HK$2,200.

122.  Item B6 concerns demolishing a wall in the maid’s room. This was completed. There is a dispute in value: HK$2,000 (Mr. Chung) and HK$4,300 (Ir. Wong). I will take the mid-point of HK$3,150.

123.  Item B7 concerns dismantling a cabinet in the ground floor washroom. The plaintiff could not remember whether the defendant or Rainbow did it but the defendant claimed he completed it. In any case, the plaintiff claimed that only one washroom cabinet (either in the ground floor the first floor or second floor toilet) was demolished. There is no other supportive evidence either way. I will address this issue when addressing Item C8 in paragraph 128 below.

124.  Item B8 concerns with installing 3 lightings outlet for the living room ceiling. Again, the defendant failed to use electrical conduit which both experts agreed as necessary. The plaintiff had to hack off the wiring area to re-do the work. Both experts agree that this work, if properly competed, should be valued at HK$4,200. I agree with Mr. Chung that there is no value for the work done by the defendant and, in addition, the rectification should cost HK$1,500. This item should be –HK$1,500.

125.  Item B9 was for the construction of an engraved marble tablet for worship. This was constructed by the defendant but the plaintiff was not satisfied because he allegedly found uneven word setting etc. Rainbow subsequently constructed a replacement which was invoiced for HK$4,200.

126.  Mr. Chung assessed the value of a completed marble tablet at HK$3,000 but there was no value because of the word spacing problem. But Ir. Wong assessed this at HK$7,500.

127.  There is no evidence from any expert on word font and spacing regarding whether there was a defect in the construction. However, I am of the view that any defect would have likely been rectified by the defendant had there not been a repudiatory breach of the plaintiff in terminating the agreement. I think a reasonable value of this should be HK$4,200.

128.  Items C8 and D8 concern with demolishing a cabinet in the first floor and another one in the second floor washroom. As with paragraph 123 above, the plaintiff claimed that only one cabinet was dismantled. Mr. Chung assessed the value at HK$2,000 (for dismantling one cabinet) and Ir. Wong assessed the value at HK$9,900 (for dismantling three cabinets). With little more than bare assertions from each party, I will take a broad-brush approach and value it at the mid-point of HK$5,950.

129.  Items D9 and D10 concerned with cost of installing ventilators (purchased by the plaintiff) in the second floor Daughter and Master washrooms respectively. These were completed. There was a dispute in value: HK$4,000 (HK$2,000 for each installation: Mr. Chung) and HK$10,000 (HK$5,000 for each installation: Ir. Wong). Mr. Chung did not give any grounds for his assessment but Ir. Wong opined that in additional to labour costs, 150mm diameter concrete core holes and exhaust ducts needed to be constructed. I will take the mid-point of HK$7,000.

130.  Item E3 concerns with the costs of removing 7 doors for repainting. Mr. Chung argues that the plaintiff did not request the doors to be removed and alternatively, they should be reinstalled before handing the site back to the plaintiff.

131.  However, I accept Ir. Wong’s opinion that it is a normal practice to dismantle the doors from the doorway for re-painting. This was the defendant’s practice. But for the plaintiff’s repudiatory breach to terminate the agreement, the defendant would have completed the re-painting and re-install the door. If Rainbow had chosen to reinstall the doors before repainting, it would be a matter of Rainbow’s own practice and not a question of defect to be rectified. I would value this work at HK$1,500.

132.  Item G6 concerns with work on widening the two discharge points on the roof in order to fit a newly laid drain pipe. The dispute is whether one or two were done. Mr. Chung claimed that during the inspection, only one drain hole was found in the open area of the roof and no drain hole was found in the worship room. I note that both experts seemed to have taken photographs of just one drain pipe in the open area of the roof (Mr. Chung: Trial Bundle 2, page 218 Fig. 92 and 93, Ir. Wong: Trial Bundle 2, page 346 photo 18). The experts agree that the value of one drain hole is HK$1,250 so I will allow this.

133.  Item H4 concerns with purchasing and installing 8 air-condition units. Both experts agree that the completed value of this item should be HK$120,000.

134.  There were two main disputes. The plaintiff complained about uneven levelling of the installed units (i.e. on slightly different heights on the wall) both on the first floor and the ground floor (the latter only raised by the plaintiff’s witness, Mr. Wong Cheng Keung of Rainbow (“WCK”).  The plaintiff also claimed that 7 out of 8 units were found not working after the termination of the agreement.

135.  Rainbow’s invoice showed HK$26,000 for claimed rectification under this item.

136.  As to the uneven levels of the units on the first floor, Ir. Wong explained that “a general rule of installation…is to leave a gap of 150mm from the ceiling for ventilation. The new contractor installed close to the ceiling level did not comply with the requirement.” (Trial Bundle 2, page 374)

137.  From the photograph (e.g. Trial Bundle 2, page 346 Photo 19), there is a clear difference in the ceiling heights between the installed area of the two unis and there is also a window in the “study” area which meant that the unit could not be installed any lower.

138.  Mr. Chung raised, for the first time during that trial, that for these units, there was only a need to leave a gap of 30mm. He did not make this comment previously in any reports and also did not provide any manufacturer’s documents to support this.

139.  Even taking the plaintiff’s complaint to the highest, I find that this complaint is a matter of cosmetic / aesthetic concern and of a defect.

140.  As for the uneven levelling of the units on the ground floor, this was also raised for the first time during trial. The defendant explained that one unit was installed lower so to be covered by the wine cabinet (design drawing in Trial Bundle 2, page 329). However, the plaintiff subsequently changed his mind about the location of the unit. I accept this explanation and so cannot see how the defendant should bear costs of relocating the unit.

141.  I further note that the plaintiff appeared to have accepted the installation of the units on 18 January 2018 and asked the defendant for an invoice (WhatsApp message, Trial Bundle 3, page 635), which would appear to support that the plaintiff did not have any complaint regarding the locations and levels of the installed units.

142.  As for the claimed malfunctioning of some of the units, the defendant claimed that he had tested all the units and had sealed them for dust-proofing. WCK has produced a photograph showing a bent copper pipe in one of the units which he claimed suggested bad workmanship during installation. However, I accept that this photograph was taken after the unit was disassembled and I agree with Ir. Wong’s opinion that the copper pipe was really soft and malleable so might likely be damaged during the dismantling process. Thus, I find that there is insufficient evidence to show that the defendant’s installation of the units was defective.

143.  In any case, I also think that any such problems with the units or the positioning would have likely be rectified by the defendant had there not been a repudiatory breach of the plaintiff in terminating the agreement.

144.  As such, I would accept Ir. Wong’s opinion in assessing the value of this item as HK$120,000.

145.  Item H12 concerns with 20 additional electric sockets. The experts agree that the completed value should be HK$16,000. However, it is agreed that the defendant failed to fit the electric wire inside conduits so any work needs to be re-done by hacking off the wiring area. I agree with Mr. Chung that there is no value to the defendant’s work in this area.

146.  Thus, the sub-total of value of work for additional items should be HK$(2,150 + 2,750 + 1,500 + 6,000 + 2,200 + 3,150 – 1,500 + 4,200 + 5,950 + 7,000 + 1,500 + 1,250 + 120,000) = HK$156,150.

Costs of design drawings and design fees

147.  This is one of the major area of dispute between the parties.

148.  There is no dispute that plaintiff agree to instruct Kelvin, an interior designer, around December 2017. The defendant claimed that the plaintiff has agreed to a design fee of around HK$50 to $80 per square feet but this was denied by the plaintiff. I note that these are bare assertions either way without any supportive documentations. Kelvin was also not called as a witness at the trial.

149.  However, it was clear from the huge volume of messages that the plaintiff and his wife had plenty of exchanges with Kelvin, and Kelvin has also produced many Original Design Drawings (of various cabinets, desks, toilet plans etc.), a high resolution computer generated 3D perspective image of the daughter’s room, and 3 other computer generated images showing various perspective, as well as other drawings.

150.  The basis of the plaintiff’s dispute to the claim of any design fee were that there was no agreement on any sum or scope of design service, that the design has not materialised so the plaintiff has not received real benefit, and that the design fall short of a complete design with many outstanding details to be decided.

151.  The plaintiff also claimed that he and his wife already had the “concept” of the design and denied any requirement for any interior design service.

152.  However, I found that the plaintiff and his wife, at best, would only have come up with general description of his needs and style. It was clear from the numerous messages with Kelvin and the defendant that he had the habit of keep sending photographs of interiors he encountered which he liked.

153.  It would have been impossible for the plaintiff or his wife to produce any of the Original Design Drawings or computer generated images etc. Kelvin produced such drawings after numerous communications and meetings with the plaintiff and his wife. It was clear that the design drawings would be the ones to be sent to the furniture manufacturers once details were finalised and approved, which the plaintiff never did.

154.  Further, it is also clear that from the photographs taken by the experts show that various aspects of Kelvin’s design were adopted in the property, e.g. the wine cabinet, the cabinet and bed in the helper’s room and the design of the daughter’s room. I am not convinced that the plaintiff could fairly claim that he has derived no real benefit from Kelvin’s work.

155.  Of course, the plaintiff has himself on several occasions ask for quotation of design fees separate from construction fees:

“Chris, can I have within these 2 days a formal quotation: 1. Wooden furniture (please list each item individually) 2. Corridor, garage roof, front door additional canopy 3. Horse drawing special feature wall 4. The total design drawing fee up to now” (WeChat message on 24 February 2018, as I translate, Trial Bundle 5. Page 1057)

“Wooden furniture price should have a basis very early on, you have talked about price per feet for coverings or no coverings, and I have repeatedly said that they could be constructed in batches. Now I wait for your quotation. But please pay attention, design fee and drawing must be separately and individually listed out, and not to be mixed up. Also, construction time and material should also be clearly listed.” (WeChat message on 2 March 2018, as I translate, Trial Bundle 5 page 1068)

156.  Having repeatedly asked for separate quotation for design and design drawing fees, it is of course disingenuous for the plaintiff now to deny this claim. It is also unreasonable to suggest that “the design fall short of a complete design with many outstanding details to be decided” when it was the plaintiff himself who failed to finalise the “outstanding details”.

157.  In fact, from the messages, one does get the impression that the plaintiff was intending to take Kelvin’s design drawings to other contractors outside to see if he could obtain a lower quotation, much like what the plaintiff did when he first obtained the quotation for the renovation from one decoration company for HK$670,000, and then took that quotation (with a list of items to be done) to the defendant who quoted a lower price of HK$600,000. One may suspect that this is the modus operandi of the plaintiff: he has insisted to request for separate quotation for design fees and costs of construction of each individual items so that he might pay only for the design fee, and then seek other outside contractors for the lowest possible construction costs for each individual item. Of course, as explained in paragraphs 36 to 41 above, the request was totally impractical and unreasonable.

158.  As such, the plaintiff has clearly agreed to instruct Kelvin and obtained benefit from his design work, and has all along prepared to pay for it. The fact that there is a dispute whether there has been an agreement on the exact amount of fees does not mean that the court cannot assess the fee on the basis of quantum meruit (Keating 10^th ed., paragraph 4-032).

159.  The court need not discuss here all the minute disputes regarding many aspects of Kelvin’s work but will take in overall account of the amount of discussions between the parties including numerous chatroom messages and meetings, the amount of designs drawings etc. produced, and the end-products now shown the plaintiff’s property, and take a sensible broad-stroke approach as to the reasonable value of such work.

160.  For Item I(1) High resolution 3D drawing, I would allow HK$2,900 which is the mid-point of the assessment between the experts.

161.  For Item I(2), Mr. Chung assessed as HK$2,000 as the appropriate value “if the plaintiff had to pay” and Ir. Wong assessed the value as HK$8,400. I would again take the mid-point of HK$5,200.

162.  For Item I(3), the defendant’s claim of HK$105,000 was based upon the alleged agreement of HK$50 per square feet and the house was 2,100 square feet. However, the plaintiff denies any such agreement and there was no supportive document, other than bare assertions from both sides. What is obvious is that the plaintiff did ask for “up-to-date design fees” in his WeChat message on 24 February 2018.

163.  Overall, I have taken into account that the design process is not complete but I agree with Ir. Wong’s opinion that “after termination of the contract, the plaintiff instructed the new contractor to reproduce the furniture which are rather similar to the interior design drawings” (Trial Bundle 2, page 376). Clearly, the plaintiff’s claim that he did not use the design by the defendant and Kelvin at all is not credible.

164.  Mr. Chung suggested that if the defendant was entitled to charge the plaintiff design fee, the value should be HK$63,000 (Trial Bundle 2, page 377). Ir. Wong assessed the value at HK$105,000 which was “within general design rate and consider reasonable”. I would take the mid-point and assess value at HK$84,000. However, I estimate that the design process was only 80% complete so a reasonable value would be HK$84,000 x 80% = HK$67,200

165.  Thus, the sub-total under costs of design drawings and designs fees is HK$75,300.

Water supply to the fish pond

166.  Both experts were requested to produce a further joint expert report on this matter. The issue was whether there was a defect in the connection of water supply to the fish pond (also referred to as the “fountain”) in that the water supply was taken from a public water source (before the water meter of the Property) thus risk being found guilty of the offence of “unlawful taking of water” under paragraph 29 of Cap. 102 Waterworks Ordinance.

167.  Both experts agree that the taking of the water by the water supply pipe to the fish pond was connected before the water meter of the Property (Trial Bundle 3, page 385).

168.  Water-works to the fish pond is the first item under A1 on the defendant’s First Schedule in the Re-re-amended Defence and Counterclaim (Trial Bundle 1, page 30). The defendant himself pleaded that this work was completed. He has also pleaded the water flow was tested by installation of the water pump and this is accepted by the court (see paragraph 58 above).

169.  Of course, there is no evidence that this water-works was disturbed by Rainbow: its rectification work quotation does not mention any water-works (except to install a water pump) or alteration of water-pipe connections to the fish pond / fountain (item 1, Trial Bundle 3, page 493). And of course, if the water flow was fine, there was no reason for Rainbow to disturb the water pipes. 

170.  There is a dispute of whether the plaintiff has prior knowledge and has approved this connection. I find that this is mere speculation on part of the defendant and in any case, it was the defendant’s responsibility to ensure that his work was not defective (or even illegal) and he should not have done so even with the instruction of the plaintiff. In any case, I find that it is more probable that the problem with the water supply connection was only discovered around 3 August 2022 when the plaintiff employed a plumber to repair a broken tap at the fish pond (paragraphs 2-4 of the plaintiff second supplemental witness statement, Trial Bundle 1, page 107-108)

171.  As such, this is clearly a defect which is “latent” (much like the lack of electrical conduits for electrical wirings buried in the walls of the Property) which would unlikely be discovered and rectified even if the defendant was allowed to complete the renovation of the Property.

172.  Ir. Wong gave two scenarios for the costs of rectification at HK$5,000 or HK$10,000 (Trial Bundle 3, page 392-393). I think the average costs would therefore be HK$7,500 according to him. Mr. Chung put the costs at HK$32,500 (Trial Bundle 3, page 403-9 – 403-10). I will again take a broad stroke approach and put the costs of rectification at the mid-point of HK$7,500 and HK$32,500, or HK$20,000. This should be deducted in the counterclaim so it should be –HK$20,000.

Conclusion

173.  The court accesses that a reasonable value of the defendant’s work on the basis of quantum meruit should be HK$(125,050 + 143,800 + 156,150 + 75,300 - 20,000) = HK$480,300.

174.  Given that it is not in dispute that the plaintiff has already paid HK$400,000 to the defendant, the sum the plaintiff still owes should be HK$(480,300 - 400,000) = HK$80,300.

Comment

175.  Whilst the court appreciates that this was a 7-day trial with many disputes involving very minute details of renovation work, counsels should also bear in mind time-costs proportionality to the size of the claim and should not burden the court with voluminous closing submissions documenting almost every disputes and quoting numerous legal precedents.

176.  The plaintiff’s closing submissions amounting to 315 paragraphs and 54 pages is already quite excessive, but this pales in comparison to the defendant’s 413 paragraphs and 128 pages (not including two hard files of 21 case precedents in additional to 18 already submitted with the opening submissions)!

177.  Counsels are reminded that they should apply common sense to summarise their cases to condense and emphasise mainly on their strongest arguments in their submissions: recapping all minute details of disputes and advancing every imaginable argument, weak or strong, is clearly of no assistance to the court. Cases are often won by one or two strong arguments, and never by one hundred weak ones!

178.  This will be a matter of taxation of costs should there be a dispute in the future.

Order

179.  I would therefore make the following order:

a.  The plaintiff’s claim be dismissed;

b.  The defendant’s counterclaim be allowed for the sum of HK$80,300;

c.  There be interest on the counterclaim sum from the date of the defendant’s acceptance of the repudiatory breach (i.e. 16 March 2018) to the date of this judgement at half-judgement rate, and thereafter at Judgement rate until full payment; and

d.  There be a cost order nisi for the costs of this action be to the defendant to be taxed if not agreed, with Counsel’s certificate granted.