PANG YAU SHING GLENDY AND ANOTHER v. SANO ENGINEERING LTD

DCCJ61/2013

CIVIL ACTION NO 61 OF 2013

--------------------

--------------------

---------------------

JUDGMENT

----------------------

1.  This is a claim brought by the plaintiff for breach of contract in relation to the renovation of a residential premises.

BACKGROUND

2.  The 1^st and the 2^nd plaintiffs (“P1” and “P2”) are wife and husband respectively and the registered owners of the premises situated at Flat C, 10^th Floor, Block 2 Seaview Garden, 1 Tsing Yung Street, Tuen Mun (“the Premises”).

3.  The defendant is a limited company in the business of providing decoration and renovation services.

4.  At the material time of the case:-

(a) Mr Tong Wai Tak (“Tong”) was the majority shareholder of the defendant with 85% shareholding. He was also one of the three directors of the defendant;

(b) Ms Ngai Ho Yan (“Ngai”) and Mr Tong Kwok Fai who is Tong’s son (“Tong Junior”) were the other two directors of the defendant; and

(c) Ngai also worked for the defendant as its sales representative.

5.  By a Chinese contract dated 7 March 2012 (reference no. N-07012A), the defendant was engaged to provide 61 items of renovation works (“the Original Works”) on various parts of the Premises (“the Contract”). 

6.  The Contract provides, inter alia, that: (i) contract price was at HK$328,000; (ii) the price for electrical installations would be subject to actual number of articles installed by the defendant; and (iii) the defendant was to commence the Original Works on 12 March 2012 and to complete them within 2 months, ie on 11 May 2012 (“the Completion Date”).

7.  On 7March 2012, pursuant to the Contract, by way of deposit, the plaintiffs paid the defendant a sum of HK$98,400.  It is common ground that, throughout the period of 7 March 2012 to 17 May 2012, the plaintiffs have paid the defendant a total sum of HK$308,200.

8.  Sometime between 12 March 2012 and late March 2012, the defendants commenced the Original Works at the Premises. 

9.  On 16 April 2012, after repeated complaints made by P1, Tong, for and on behalf of the defendant, signed a Chinese document entitled “客戶保障” (“Customer Protection”)(“the Declaration”) which contained the following clauses:-

(a) 根據N-070312A工程合約，本公司會在2012年05月11日完成所有工程， 得到客人簽署完工紙為實;

[According to Contract N-070312A, our Company will complete all works by 11 May 2012. Works will only be considered complete when signed by the Customer]

(b) 如有延誤每日賠償1000元;

[If there is any delay, there will be compensation of $1,000 per day]

(c) 所有工程保養18個月, 如有任何關於工程問題（包括防水工程）而引致客人有任何損失或賠償全部由成龍工程有限公司負責賠償。（不包人為損壞）

[All Works are guaranteed for 18 months. If there is any problem regarding the Works (including the water proof work) which leads to any loss or damage to the Customer, Sano Engineering Limited will be responsible for any compensation (not including damage caused by human error)].

10.  It is common ground that, on various occasions after 7 March 2012, the defendant further provided 5 items of works in addition to the Original Works, namely: (i) installing pipes at the external of the Premises （做屋外水喉(銅喉))；(ii) re-installing flooring and waterproof layer at bathroom (重做廁所地台連防水); (iii) installing speakers’ cable(喇叭線) x 4; (iv) installing single wire (獨立線) x 1; and (v) installing earth wire (水線) x 7 (“the Additional Works”).

11.  Further, it is not in dispute that during the work in progress, the defendant “re-did” 2 items of the Original Works, namely: (i) removing certain tiles on the walls of the kitchen and bathroom and putting on new ones; and (ii) repainting the walls of the master bedroom and the ceilings of the Premises (“the Re-doing Works”).

12.  On 22 August 2013, the plaintiffs’ expert, Mr Stewart Wong (“plaintiffs’ expert”) and the defendant’s expert, Mr Tsim Chai Nam (“defendant’s expert”) attended the Premises for a joint inspection.  Thereafter, a joint expert report, a supplemental joint expert report and a 2^nd supplemental joint expert report were filed on 15 November 2013, 27 March 2014 and 22 September 2014 respectively for the purpose of this trial (collectively, “the Joint Expert Reports”).

The plaintiffs’ case

13.  It is the plaintiffs’ case that the entire agreement between the parties is partly written and partly oral.

14.  The plaintiffs allege that the written part is contained in and/or evinced by the Contract and the Declaration, whereas the oral part is evinced by:-

(a) Tong’s oral agreement to act in accordance with the plaintiffs’ instructions in the following terms:-

(i) Every part of the Premises, whether hidden by furniture and/or fixtures or not, has to be renovated and decorated.  The hidden part should be renovated with the same standard as the exposed part;

(ii) In particular, all the walls in the kitchen and bathroom should be retiled and all other walls inside the Premises should be repainted regardless of whether the same is hidden by furniture and/or fixtures or not;

(iii) All the planks used for building furniture must be of smooth surface on each and every side;

(iv) Save and except the bottom of the furniture facing the ground, the other 5 surfaces of all the furniture, including the front, top, right, left and back thereof, should be made of the same wooden materials with smooth surfaces. The drawers of the furniture should also be of smooth surface and covered with plastic laminate;

(v) The furniture have to be more durable, strong and sturdy, and that 18mm plywood would be used; and

(vi) The waterproof renovation work of the bathroom and windows of the Premises must be completed properly (collectively, “Plaintiffs’ Alleged Oral Agreement”).

(b) The Additional Works agreed to be done; and

(c) The Re-doing Works agreed to be done (collectively, “Plaintiffs’ Alleged Agreement”).

15.  As such, the plaintiffs claim that the Completion Date does apply to all the Original Works, the Additional Works and the Re-doing Works (collectively, “the Works”).

16.  In essence, the plaintiffs’ case is that, (i) the defendant did not complete the Works on or before the Completion Date; (ii) the defendant did not render its service with reasonable skill and care; and (iii) the Works done were defective.  Hence, the defendant was not only in breach of the express terms of Plaintiffs’ Alleged Agreement, but was also in breach of certain implied terms.

17.  Those implied terms which the defendant has allegedly been in breach of have been pleaded in §§14-15 of the re-re-amended statement of claim as follows:-

“14. Further, by virtue of Sections 15 and 16 of the Sales of Goods Ordinance (Cap.26) of the Laws of Hong Kong, there are implied conditions of the Agreement that the materials and furniture supplied by the Defendant shall:-

(a) correspond with the descriptions specified in the Agreement;

(b) be of merchantable quality; and

(c) be fit for the purpose for which the materials and furniture were purchased.

15. Further, by virtue of Section 5 of the Supply of Services (Implied Terms) Ordinance (Cap. 457) of the Laws of Hong Kong, there is an implied term of the Agreement that the Defendant shall carry out the service with reasonable care and skill.”

18.  The plaintiffs further claim that, as a result of the defendant’s breach of Plainitffs’ Alleged Agreement, they had to engage another contractor to re-do the Works, and thereby incurred additional costs for rectification work, pest treatment and alternative accommodation.

19.  Hence, the plaintiffs claim against the defendant for damages in total sum of HK$666,116 under the following heads:-

(a) Diminished value of the Works: HK$52,661;

(b) Costs of rectification by Everart Decoration Co (“Everart”): HK$328,455;

[Alternatively, costs for repair of defective windows and costs for pest treatment if the court does not grant damages in relation to these 2 items under the general head of costs of rectification];

(c) Damages for inconvenience and discomfort: HK$100,000; and

(d) Damages/compensation under the Declaration: HK$185,000 (HK$1,000 per day from 12 May 2012 to 13 July 2012 (63 days in total) and from 1 August 2014 to 30 November 2014 (122 days in total));

[or alternatively, HK$63,000 (HK$1,000 per day from 12 May 2012 to 13 July 2012 (63 days in total)].

The defendant’s case

20.  On the scope of agreement between the parties, the defendant denies that it has, through Tong or any other person, made the oral agreement as alleged by the plaintiffs.  The defendant’s case is that, the entire agreement consists of:-

(a) the Contract;

(b) the following matters orally agreed between the parties prior to the Contract, namely:-

(i) the outer surfaces of the planks used for furniture would be finished with wood grain laminate sheet; whereas the inner surfaces would be finished with white plastic laminate;

(ii) 18 mm plywood boards（六分夾板）would be used for making furniture; and

(iii) the design and dimensions of the fixed furniture were as per the 3-dimensional drawings of furniture (“the 3-D Drawings”) (collectively, “Defendant’s Oral Agreement”); and

(c) the 3-D Drawings (collectively, “Defendant’s Alleged Agreement”).

21.  In essence, the defendant’s case is that it has completed all the Original Works and delivered vacant possession of the Premises to the plaintiffs on or before the Completion Date.  What remained to be done was merely touch-up work.

22.  On the Additional Works and Re-doing Works, the defendant alleges that they were all out of the scope of the entire agreement between the parties and that they constituted a separate contract.  As such, the Completion Date of the Contract has no relevance to this separate contract.

23.  On quality of the Works, the defendant’s case is not one of blanket denial.  Save that the quality of various items of the Works are in dispute, the defendant, through its expert, in the Joint Expert Reports, conceded that certain defects do exist in 11 items of the Works done.

24.  The defendant claims that the plaintiffs’ failure to pay the balance of the Contract evinced an intention not to be bound and the plaintiffs thereby repudiated D’s Alleged Agreement.  As such, the defendant was entitled to terminate the agreement upon the acceptance of such repudiation and to counter-claim for the balance of the Contract. 

ISSUES TO BE DECIDED

25.  The issues I have to decide in this case are:-

(a) What are the terms of the agreement entered into between the plaintiffs and the defendant for the provision of decoration and renovation works and furniture at the Premises (“the Agreement”);

(b) Whether the defendant was in breach of any of the express and/or implied terms of the Agreement;

(c) The appropriate amount of damages if the defendant is found to be liable;

(d) If the defendant was found not in breach, whether the plaintiffs’ failure to pay the balance of the Contract evinced an intention not to be bound and thereby repudiated the Agreement; and

(e) If so, the appropriate amount of damages if the plaintiffs are found to be liable. 

THE TRIAL

26.  At the trial, the plaintiffs called two witnesses, Madam Pang Yau Shing Glendy, ie P1 and Ngai.  The defendant called two witnesses, Lam Chun Pang (“Lam”), a worker who was responsible for part of the painting and tiling works done in the Premises, and Tong.

27.  The Joint Expert Report had been produced for the purpose of the trial. Hence, the experts of both parties were not called to give evidence in court as ordered by the court at the case management stage of the proceedings.

DISCUSSION

(I) Terms of the Agreement

28.  It is common ground that the Contract is valid and binding between the parties, and thus constitutes part of the Agreement. 

29.  On one hand, the plaintiffs claim that, in addition to the Contract, the Declaration and Plaintiffs’ Oral Agreement also form part of the Agreement.  On the other hand, the defendant claims that the Contract, Defendant’s Oral Agreement and the 3-D Drawings together form the whole of the Agreement.

(a) Oral Terms

30.  What are the oral terms agreed between the parties ultimately would turn on my assessment of the credibility of the relevant witnesses.

31.  First, I accept the evidence given by P1 in its entirely in this regard.  In my view, she is an honest and reliable witness who has tried her best to tell the court the truth in regard of her dealings with the defendant.  I do not find the defendant’s submission on P1’s credibility convincing, as it emerged from her cross-examination, P1 and the defendant had a different understanding of the meaning of a “入牆櫃” (“Built-in cupboard”), and most importantly, in my judgment, inconsistencies on peripheral matters do not affect her credibility overall.  On the other hand, I find the defendant’s witness, Tong, an evasive and not truthful witness.  His evidence in this regard is largely selective, self-serving and inconsistent with some of the documentary evidence.

32.  I would prefer the evidence given by P1 over the evidence given by Tong.  In particular, I accept P1’s evidence that, during the period between 2 February 2012 and 7 March 2012, the defendant had on various occasions, through Tong, orally agreed to her requests in the following terms:-

(a) Each and every part of the Premises (whether hidden or not) has to be renovated and decorated, and the hidden parts should be renovated with the same standard as the exposed parts;

(b) All the walls in the kitchen and the bathroom should be retiled, and all other walls in the Premises should be repainted, regardless of whether the same is hidden by furniture/fixture;

(c) All the planks used for building furniture must be of smooth surface on each and every side;

(d) Save and except the bottom part of furniture facing the ground, the other 5 surfaces of all the furniture, including the front, top, right, left and back thereof, should be made of the same wooden materials with smooth surfaces.  The drawers of the furniture should also have a smooth surface. In summary, the defendant, through Tong, agreed with the plaintiffs that the 5 outer surfaces of furniture will be finished with wood grain laminate, and the inner surfaces will be finished with white plastic laminate;

(e) The furniture have to be more durable, strong and sturdy, and that 18mm plywood would be used; and

(f) The waterproof renovation works in relation to the bathroom and the aluminum windows of the Premises must be completed properly.

33.  In this regard, Ngai’s evidence was to the same effect, and I accept that too.

34.  The defendant’s solicitor endeavored to criticize and undermine Ngai’s credibility during her cross examination by relying on the fact that she was previously arrested by the police for alleged misappropriation of the defendant’s money.  In both his written opening and closing submissions, the defendant’s solicitor also drew the court’s attention to this matter.

35.  With respect, I do not see how this is relevant.  It is a fundamental principle that under our criminal justice system, that a person is innocent until proven guilty.  It is clear that Ngai, although previously arrested by police (as she frankly admitted), was not even charged for the alleged offence. I simply do not see how an allegation on its own can affect her credibility.

36.  I further accept that the plaintiffs’ case in this regard is inherently more probable than the defendant’s case and it tallies with common sense for the following reasons:-

(a) I accept P1’s evidence that the plaintiffs might need to re-locate the furniture in the Premises in the future. This is plainly within the contemplation of any reasonable household done.  Otherwise, it would be aesthetically awkward if the unpainted parts of the wall (which were originally hidden by furniture) are exposed after furniture relocation, and/or if the furniture is re-located to a place where its unfurnished part at the back would be exposed; and

(b) I also accept P1’s evidence that she would and she did place ornaments or other objects on the top surface of the furniture, hence it is necessary for it to be smooth so that she could clean or wipe the surface without easily injuring herself.

37.  Given the above, in my judgment, it is more likely than not that the plaintiffs would raise and the defendant would agree to the terms as I have found in §32 above.

38.  Further, I reject the defence raised by the defendant, namely, it is a usual practice in the renovation industry that any hidden part of the walls (either by false ceilings or furniture) need not be painted or tiled for the following reasons:-

(a) I accept Ngai’s unchallenged and uncontradicted evidence that she has never been told of the “usual practice” by Tong throughout the 4 years that she worked for the defendant; and she has never heard of the “usual practice” being discussed between the parties;

(b) In Lam’s cross-examination, he admitted that there was no such “usual practice” in the industry that walls hidden by false ceilings need not be tiled; and

(c) Tong was contradictory in his evidence in first saying that he had informed the plaintiffs of the “usual practice”, and later admitted in his cross-examination that, “呢啲嘢冇可能逐樣講”.  (“these are things that cannot be spoken item by item.”)

39.  Hence, I am satisfied that, on balance, the “usual practice” alleged by the defendant is unlikely to be true.  Even if it is true, the plaintiffs were not fully informed by the defendant, and thus were not in a position to be able to agree to it.

(b) The Additional Works

40.  I accept that the parties have orally agreed that the defendant would carry out the Additional Works during the work in progress and they are additional terms intended by the parties to be incorporated to the Contract.

41.  First, it is undisputed that the defendant had carried out the Additional Works during the work in progress despite the fact that they were not included in the Contract.  The only logical and reasonable inference is that the parties had reached an agreement orally for the provision of those works.  The said oral agreement shares the same subject matter with the Contract and manifests the parties’ intention to expand the scope of the renovation works done in the Premises.  As such, viewing from the surrounding circumstances of the case, it forms part of the Agreement.

42.  There is no evidence as to when the oral agreement in relation to the Additional Works was reached.  I therefore agree with the plaintiffs’ submission that, it is unnecessary for me to decide whether the parties have also agreed that the Additional Works had to be completed on or before the Completion Date, or whether there was any express or implied variation in this regard.  The reason is that, the plaintiffs have agreed that all the Additional Works have been completed on or before the Completion Date, and hence they are not relying on that as the cause of the defendant’s delay in completion.

(c) The Re-doing Works

43.  I accept P1’s evidence that, after the plaintiffs’ repeated complaint and demand, Tong agreed, on behalf of the defendant, to re-do 2 items of the Original Works, namely:-

(a) removing all the existing tiles on the walls of the kitchen and bathroom and putting on new ones; and

(b) repainting the walls of the master bedroom and the ceilings of the Premises.

44.  In my view, this oral agreement also forms part and partial of the Agreement as it clearly touches upon the same subject matter of the Contract, and the 2 items which had to be re-done are clearly within the scope of the Contract.

45.  However, as I accept P1’s evidence that the plaintiffs’ request to re-do these 2 items were not made until late April 2012 or the beginning of May 2012, I find it unreasonable to hold that the Completion Date would apply to the Re-doing Works.  The reason is that, upon being dissatisfied with the 2 items of work done by the defendant, the plaintiffs, by making request to re-do the said items, impliedly waived the applicability of the Completion Date to these 2 items and allowed a reasonable time for these 2 items to be re-done.

(d) The Declaration

46.  In my view, the Declaration is valid and binding between the parties, whether it forms part of the Agreement or whether it is a separate enforceable agreement on its own.

47.  First, it is trite that a person is prima facie bound by what he had signed.  This position has been clearly expounded on in Chitty on Contracts, 31^st Ed. Vol. 1 para 12-002:-

“Where the agreement of the parties has been reduced to writing and the document containing the agreement has been signed by one or both of them, it is well established that the party signing will ordinarily be bound by the terms of the written agreement whether or not he has read them and whether or not he is ignorant of their precise legal effect.”

48.  It is common ground that the Declaration was signed by Tong, on behalf of the defendant, on 16 April 2012.  The defendant is therefore prima facie bound by it whether or not Tong has read the content of the Declaration and whether or not he was ignorant of its precise legal effect.

49.  In his cross-examination, Tong alleged that the Declaration was drafted by Ngai and/or P1, and it was Ngai who persistently requested him to sign on it.  In my view, whoever drafted the Declaration is immaterial, what is material is the fact that Tong had indeed signed on the Declaration.  I find it hard to accept that Tong, who has over 30 years of experience in the renovation industry, would sign on a document of such nature without first fully understand its effects.

50.  Further, I reject the defendant’s contention that the Declaration is void or voidable and therefore does not form part of the Agreement on the grounds of lack of consideration and/or the key term being unconscionable.

51.  The defendant’s solicitor cited Stilk v Myrick [1809] 170 ER 1168 in support of his argument.  He relied on the principle that a contracting party cannot use his promise to perform, or his actual performance of, a pre-existing obligation as consideration for a new promise in his favour by his opposite contracting party, and as such, some fresh consideration is required.

52.  In my view, while the principle in Stilk v Myrick cited by the defendant’s solicitor is no doubt correct, the defendant’s solicitor did not in any way address the court as to, whether, in the factual circumstances of the case, there was any fresh consideration on the part of the plaintiffs in exchange for the additional terms as contained in the Declaration, which was signed on behalf of the defendant by Tong.

53.  In my judgment, clearly there is.

54.  It is an established principle that the courts “may regard an act or forbearance as consideration even though the promisee “did not consciously realize that [he was] subjecting himself to a detriment and [was] giving consideration for the [promisor’s] undertaking” or even though it was not the object of the promisor to secure it”: see Chitty on Contracts, 31^st Ed. Vol. 1 para 3-010.

55.  Hence, in the present case, I regard the plaintiffs’ forbearance to complain about the Works done up till 16 April 2012, as valid consideration in exchange for the defendant’s promises as contained in the Declaration.

56.  The defendant’s solicitor also sought to argue that the key term, namely, “根據N-070312A工程合約, 本公司會在2012年05月11日完成所有工程，得到客人簽署完工紙為實” of the Declaration was unconscionable in that “完成所有工程” was defined by “得到客人簽署完工紙為實”.

57.  In short, the defendant’s solicitor’s argument is that, if this term were a valid term, the plaintiffs would be entitled to claim $1,000 per day from the defendant as long as they have not signed their acknowledgement of completion.

58.  I find this argument wholly unfounded. I do not see why the plaintiffs, both being reasonable people, would deliberately withhold their acknowledgment of completion if the Works had truly been completed to their satisfaction.  To do so, they would not only bring inconvenience to themselves, but would also have to incur extra costs for alternative accommodation.  That in my view would completely defeat the purpose of renovating the Premises in the first place.

59.  I also find that the amount of $1,000 per day for any delay after the Completion Date is reasonable, and therefore such amount is not penalty but as reasonable estimate of loss/compensation to the plaintiffs.

60.  In this regard, the plaintiffs’ counsel relied on the principle of affirmation and quoted Chitty on Contracts, 31^st Ed. Vol. 1 para 24-003 and para 24-004 to support the plaintiffs’ contention that the Declaration has been affirmed by the defendant in its letter dated 8 August 2012 to the plaintiffs, and therefore it is binding as between the parties.

61.  The principle of affirmation is concerned with situation where there was a breach by a party, and the innocent party thus acquired a right to either affirm the contract or to accept the repudiation and thereby rescind the contract.  If the innocent party elects to affirm the contract, his/her right of rescission is lost: see Cheshire, Fifoot & Furmston on Law of Contract, 16^th Ed, p 363.  It follows that, upon affirmation, the contract will still be treated as valid and binding as between the parties.

62.  As I have found that the Declaration is valid and binding in the first place, for being supported by consideration and not unconscionable, I turn now to consider whether the Declaration has been affirmed by the defendant.

63.  In my view, when faced with the plaintiffs’ alleged breach of non-payment of the final balance, the defendant had a right to accept the plaintiffs’ alleged repudiation and thereby rescind the Agreement altogether, and then sue for damages. However, they did not do so.

64.  In my view, the letter dated 8 August 2012 from the defendant to the plaintiffs in which it was stated, inter alia, that “實際完工期是6月13日遲5天, 應扣5000元給客人” (“The actual date of completion was on 13 June, a delay of 5 days; ought to deduct $5,000 in favour of the client”) is an affirmation of the Declaration for the following reasons:-

(a) It is obvious that the basis of the calculation of HK$5,000 was derived from the Declaration (HK$1,000 per day);

(b) Tong had full knowledge of the facts leading up to the creation and signing of the Declaration, and the legal right to choose whether or not to affirm the Declaration, nevertheless chose to affirm the Declaration by giving effect to the rate of compensation as specified in it via the letter dated 8 August 2012; and

(c) The said letter was clearly communicated to the plaintiffs, as such, the defendant’s election became irrevocable, and the Declaration remained binding on the parties.

(e) The 3-D Drawings

65.  I reject the defendant’s submission that the 3-D Drawings do form part and partial of the Agreement.

66.  The matter was never put to P1 during her cross-examination by the defendant’s solicitor, and the document itself clearly shows that the parties did not intend it to be valid and binding upon them as many of the measurements contained therein were stated with question marks. I am of the view that the 3-D Drawings were merely for illustration purpose only.

(f) Implied Terms

67.  The existence of the implied terms as pleaded by the plaintiffs was not in dispute, and I accept they are the implied terms which are applicable in the present case.

(II) Breach of the Express and/or Implied Terms

68.  I now would turn to deal with whether the defendant was in breach of any of the express and/or implied terms of the Agreement.

(a) Whether the defendant was late in completion?

69.  It is undisputed that, both under the Contract and the Declaration, the Original Works had to be completed on or before 11 May 2012.

70.  As I have indicated above, it is unnecessary for me to decide whether the Completion Date also applies to the Additional Works, as the plaintiffs are not relying on the delay in Additional Works as a cause of the delay in completion.  There is no need for me to discuss further on this matter.

71.  I have also indicated above that, in my view, the completion date for the Re-doing Works was impliedly varied by the parties and a reasonable time should be allowed for their completion.

72.  Viewing from the evidence, the parties have agreed in their “Agreed Schedule setting out Works carried out by the defendant after 11 May 2012” (“the Agreed Schedule”) that the works carried out by the defendant after the Completion Date were as follows:-

“(1) 合約項目42

被告人公司為原告人進行以下工程:

(A) 主人房天花重上油漆

(B) 仔房重上天花油漆

(C) 廳重上天花油漆

(2) 其他工程

(A) 鋁窗水線

(B) 啦叭線

(C) 修理床邊

(D) 修理鋁窗

(E) 所有木櫃執修

(F) 多次油漆執手尾

(G) 安裝全屋窗簾, 富貴簾

(H) 重新安裝廚房窗花一對”

73.  In addition to the above, the defendant’s solicitor submitted that, according to the evidence of Tong and Lam, the bathroom flooring re-installation work and the re-painting of the master bedroom with a paint of a different colour were all commenced in mid May 2012.

74.  However, in Lam’s cross-examination, he said he could not remember when the re-painting of master bedroom was completed, and he confirmed that the bathroom flooring re-installation work was completed on or before 11 May 2012.  In reply to the question from the bench as to what works he had carried out in the Premises after 11 May 2012, he said he could not remember.

75.  In any event, the plaintiffs are not relying on the delay in these works as a cause of the delay.  I therefore find that it is unnecessary for me to rule on when exactly did the defendant complete these works, suffice to say is that the parties do not dispute these works were eventually completed.

76.  Hence, I find that, on the issue of delay in completion, the only relevant item of Re-doing Works left for the court’s consideration is the re-painting of the ceilings in the Premises.

77.  The defendant, in its letter dated 8 August 2012 to the plaintiffs, admitted that all the Works (including the re-painting works and the replacement of tiles on the bathroom floor) were completed on 13 June 2012, with the touch-up works completed on 13 July 2012.

78.  Tong, in his cross-examination, sought to explain the reason why he stated 13 June 2012 as the completion date in the letter.  He said such date was a deliberate invention of his, so that by stating the defendant was 5 day late in completion (excluding: half day of Saturdays, full day of Sundays, 6 days for re-installation of bathroom work, 3 days for re-painting the ceilings of the Premises, and 5 days for re-painting of the wall of the master bedroom), he could reduce the total outstanding amount by HK$5,000 in order for his claim against the plaintiffs for the balance to fall under the jurisdiction of the Small Claims Tribunal.

79.  I do not accept that. If that was truly Tong’s intention, he could have simply waived any amount above $50,000 in his small claim action, or, he could have simply stated that the defendant was 5 days late in completion and thereby reduced $5,000 in total.  There is simply no need for every minute detail as stated in the defendant’s letter.  Tong’s account on this matter is plainly unbelievable.

80.  Hence, I accept that, by the letter dated 8 August 2012, the defendant admitted and acknowledged that the completion only took place on 13 June 2012, and all the touch up works were completed on 13 July 2012.

81.  The question that the court then has to decide is, whether one month, ie the period from 13 May 2012 to 13 June 2012, is a reasonable time for the re-painting of ceilings of the Premises.  Judging from the fact that the whole renovation of the Premises was agreed to be completed within 2 months only, the mere re-painting of ceilings, in my view, should require no more than 3 days, as admitted by the defendant in its letter dated 8 August 2012 to the plaintiffs.  The defendant’s delay in completion therefore would run from 15 May 2012 to 13 June 2012, ie 30 days in total.

82.  As I have already stated in para 44 above, the fact that P1 demanded the defendant to re-paint the ceilings of the Premises and accepted the defendant’s carrying out of the actual re-painting, she impliedly varied the completion date of such work by conduct.  Otherwise, she could have left the painting works as it was, and then claimed against the defendant for damages for defective works done, just like other alleged defective items in the present case.

83.  Hence, in my view, the reasons why the colour of the ceilings was changed and who recommended the choice of colour are irrelevant and immaterial, and I will not delve into it.

(b) Quality of works done / service

Undisputed Defects

84.  I will first deal with the defects that are not in dispute.  As I have said, the defendant’s case is not one of blanket denial.  The defendant’s expert, in the Joint Expert Reports, has admitted the existence of certain defects in the furniture or works done by the defendant, which the plaintiff’s counsel has helpfully summarised as follows:-

(a) Defect in the drawers chest at the master bedroom;

(b) Defect in the marble laid on the window board;

(c) Defect in the blind which required repairing;

(d) Water seepage between faucet and basin due to inferior workmanship, and the timber basin cabinet required total replacement;

(e) Poor workmanship of the timber frame of the table support;

(f) Timber light trough at the living room required repair;

(g) Defects in the TV cabinet;

(h) Defects on the front door of the Premises;

(i) Many of the wiring and sockets in the Premises required replacement due to use of wrong colour cables and the cables were not wired in conduits;

(j) Electrical work has not been completed at the Premises; and

(k) Water seepage from the window frames into the Premises, which, according to the defendant’s expert, was often caused by poor workmanship.

85.  I accept the plaintiffs’ submission that the defects as stated in para 84(d), (i) and (k) above are particularly serious and the existence of all the said defects together results in a breach of the implied conditions under sections 15, 16(2) and 16(3) of the Sales of Goods Ordinance (Cap.26) (“SOGO”) and section 5 of the Sales of Services (Implied Terms) Ordinance (Cap. 457) (“SS(IT)O”) for the following reasons:-

(I) First, the plaintiffs’ counsel cited Farnworth Facilities Ltd v Attryde [1970] 2 All ER 774, pp 777e-778b and 779 c-d to support that the 11 defects as stated in para 84 above are a “congeries of defects” which justify a finding of a failure to correspond with description in breach of s 15 SOGO since they are defects in various aspects of the Works and have an impact on the fundamental and general quality of the Works as a whole;

(II) I accept that.  The above defects cannot be taken by itself separately.  In particular, the incomplete and improperly done electrical work together with water seepage problems basically rendered the Premises uninhabitable;

(III) Hence, I also agree with the plaintiffs’ submission that the defects as stated in para 83(d), (i) and (k) above are serious defects in quality which go to the root of the Agreement and clearly affect its description: Pinnock Bros v Lewis and Peat Ltd [1923] 1 KB 690, pp 696 – 697;

(IV) Second, I further accept that, by reason of the existence of the undisputed defects, the quality of the Works is of such a quality that a reasonable man (acting reasonably and after full examination) would not accept in performance of his offer to buy: Bristol Tramways v Fiat Motors (1910) 2 KB 831, p 841 adopted in Grace Garments Ltd v Tajmahal’s Ltd [1974] HKLR 239;

(V) The fact that even the defendant’s expert would not offer full value for those undisputed defective works done by the defendant is significant;

(VI) Applying the principle in Grace Garments Ltd v Tajmahal’s Ltd [1974] HKLR 239 as cited by the plaintiffs’ counsel, even if the undisputed defective works were still of some value or were of some use for the purpose which they were intended, that does not render them “merchantable” or of adequate use.  As such, in my judgment, the defendant was in breach of the implied condition under section 16(2) of SOGO for failing to supply goods of merchantable quality; and

(VII) I agree with the plaintiffs’ submission that, by reason of the existence of the undisputed defects, the defendant is in breach of the implied conditions under s 16(3) of SOGO and s 5 SS(IT)O respectively, for failing to supply goods which are reasonably fit for the purpose for which the materials and furniture were purchased, and for failing to carry out the service with reasonable care and skill.

Other Defects

86.  The other defects, which the parties’ experts are unable to agree upon, concern various alleged defects regarding the making of the furniture, the electrical works and the principal works as categorized in the Joint Expert Reports.  The particulars of which were summarised by the plaintiffs’ counsel in Schedule A of his Re-Re-Amended Statement of Claim.

87.  Both parties rely on their respective expert’s opinion in the Joint Expert Reports on the quality and value of works done by the defendant.  The joint expert report filed on 15 November 2013 (“1^st Report”) contains 2 sections, namely, “(A) Particulars of Agreement between both Experts on the “Works””; and “(B) Particulars of Disagreement between Mr Stewart Wong and Mr Tsim Chai Nam”.  Both experts also set out their assessment methodology, and their CVs were attached.

88.  The supplemental joint expert report filed on 28 March 2014 (“2^nd Report”) contains a few amendments and additions to the 1^st Report, and the 2^nd supplemental joint expert report filed on 22 September 2014 (“3^rd Report”) contains the experts’ comments on the issue of water seepage from the aluminum windows installed by the defendant.

89.  There is no attack on the expertise of both parties’ experts, and I am satisfied that both of them are qualified to give expert evidence in this trial.  Ultimately, my findings on this issue depends on how much weight I attach to each side’s expert’s evidence. I state at the outset that I prefer the plaintiffs’ expert’s opinion for the following reasons:-

(a) First, the defendant’s expert’s observations are clearly inconsistent with the documentary evidence:-

(i) P1 adduced 80 pages of samples of dead fleas that were caught by her in the Premises between 2 September 2012 and 18 November 2013 (“Dead Fleas Sample”).  The dead fleas found were taped on A4 papers and arranged in chronological order, with dates, times and locations of the fleas found written nearby by P1;

(ii) During the joint inspection held on 22 August 2013, the plaintiffs’ expert observed the existence of fleas in various locations, and such observation was repeatedly stated in the Joint Expert Reports;

(iii) However, despite the above, the defendant’s expert stated, “no live insect was found”, in the Joint Expert Reports. Unless the defendant’s case is that P1 was making up the evidence in this regard and the plaintiffs’ expert deliberately lied to support the plaintiffs’ case, I find that the defendant’s expert opinion in this regard shows that he was selective and biased, thus his evidence is unreliable; and

(iv) Other than the flea problem, the defendant’s expert’s opinion on defects in relation to window frames in the Premises is once again inconsistent with the objective documentary evidence, namely, the photos taken in the Premises. The defendant’s expert denied there was any defect in the window frames but the photos clearly show the otherwise.

(b) Second, the defendant’s expert failed to show his impartiality by going too far to speculate on the source of the fleas, which is a matter clearly not within his expertise; and

(c) Third, I accept the plaintiffs’ submission that the plaintiffs’ expert has better credentials than the defendant’s expert.  This is supported by the fact that his expert evidence has been accepted in various reported cases by the court over the 15 occasions he was engaged in to give evidence as an expert, whereas the defendant’s expert has only been engaged in 3 reported cases and his expert evidence has only been accepted in one of those cases.

90.  On the other hand, I find the plaintiffs’ expert’s opinion to be objective and largely consistent with the photos taken in the Premises.  As the photos adduced by the plaintiffs are self-explanatory and objective evidence that reflects fairly the state of the works done by the defendant, I accept them in full.

91.  As I have rejected the defendant’s expert evidence for being tainted with bias, I do not think it is necessary for me to go through each and every item in dispute.  Suffice to say it that, judging from P1 evidence, the plaintiffs’ expert’s opinion in the Joint Expert Reports and, most importantly, the objective documentary evidence in the present case, I am satisfied that the plaintiffs have proved, on balance of probabilities, that the alleged defects did exist in the Works done by the defendant in the Premises.  I summarize and categorize them briefly as follows:-

(a) Poor quality of all the furniture made and/or provided by the defendant:-

(i) inferior timber materials were used which resulted in weak support and flea problem; and

(ii) poor workmanship;

(b) Defective installation and/or poor workmanship of all glass windows in the Premises:-

(i) uneven lengths of window handles;

(i) gaps between the sides of the window sashes and the window frames, which resulted in water seepage problem during rainy days; and

(ii) multiple unusual screw holes on the window sashes in the living room, master bedroom and bathroom.

(c) Electrical works not properly done:-

(i) wires were not in conduit (contrary to Code of Practice 15E(d)(f) and wiring regulation);

(ii) wirings on light trough were not protected in flexible metal conduits (contrary to Code of Practice 15E(e) and wiring regulation); and

(iii) failing to use new color cables for wirings to socket and lights) contrary to new colour cables regulations).

92.  The existence of the above defects rendered the defendant in breach of the express terms of the Agreement as I have found above, as well as the implied conditions under the SOGO and the SS(IT)O.

Flea Problem

93.  Apart from the defective works done by the defendant, the plaintiffs also complained about the flea problem, which they alleged, was brought into the Premises by the wooden furniture made and provided by the defendant.

94.  The defendant denied the flea problem in its entirety and sought to rely on the defendant’s expert’s opinion that he did not see any live insects on the day of Joint Inspection.  Further, the defendant contended that even if the fleas did exist, which it denied, they must have come from other sources, not from the wooden furniture made or provided by the defendant.  I have no hesitation to reject the defendant’s submission in this regard.

95.  First, I accept P1’s evidence that:-

(a) There was no flea in the Premises prior to the commencement of the Works;

(b) After the defendant commenced the Works, flea problem began in or around June 2012;

(c) The flea problem persisted even after 2 pest control services rendered by Rentokil on 11 July 2012 and 18 July 2012;

(d) The flea problem had seriously affected the daily living of the plaintiffs;

(e) Up to 28 May 2014 (when P1’s witness statement was taken), fleas were still often found in different areas of the Premises (especially on the surface of the wooden furniture); and

(f) The plaintiffs had to incur expenses on pest control during the subsequent renovation carried out by Everart in August 2014.

96.  Second, P1 was able to provide the court with ample and overwhelming evidence to support her account of the flea problem.  For instance, the 80 pages of Dead Fleas Sample was very telling, one could hardly imagine how disgusting and frustrating it was to live in the Premises with these countless fleas.

97.  Third, in its letter dated 23 August 2012 to the plaintiffs, the defendant acknowledged the fact that Mr Leung Kwok Chu (“Leung”), the contractor of the Works, had on 5 July 2012 taken away 2 samples of flea from the Premises and allegedly brought them to the factory in China for further investigation.  In the same letter, the defendant also stated that it had arranged 2 times of pest control for the plaintiffs on 11 July 2012 and 18 July 2012.  In my view, this is clear evidence that the defendant did have notice and/or knowledge of the existence of fleas in the Premises.

98.  Fourth, even after the day of Joint Inspection, insects and fleas were still found in the Premises.  In particular, the defendant’s surveyor’s report prepared by Assured Reliance (HK) Ltd (“ARL”) after its site inspection at the Premises on 29 August 2012, admitted that insects were found in the Premises, and photos were taken accordingly.  Not only that, the plaintiffs’ expert has conducted another inspection in the Premises in early September 2012, and once again, he found fleas and other insects in the wooden furniture.  Photos of those insects were also taken.

99.  By reason of the above, I am satisfied that it is more likely than not that the flea problem was brought into the Premises by the defendant through the wooden furniture and/or material that they provided to the plaintiffs.  Hence, I find that the defendant is in breach of the implied conditions under the SOGO and the SS(IT)O.  Clearly, they are fundamental breaches which go to the root of the Agreement.

(III) Quantum of Damages

100.  As I find the defendant to be liable, I now turn to assess the quantum of damages that I shall award to the plaintiffs as a result of the defendant’s various breaches.

Diminished value of the Works

101.  Both experts stated their respective assessment on value of works done by the defendant in the Joint Expert Reports: the plaintiffs’ expert’s assessment on the total value of the Works done by the defendant is HK$255,539, while the defendant’s expert’s assessment is HK$334,280.

102.  As evinced by the receipts issued by the defendant or its related company, it is undisputed that the plaintiffs had paid to the defendant a total amount of HK$308,200 for the Works.

103.  As I have explained in detail above the reasons why I prefer the plaintiffs’ expert evidence and reject the defendant’s expert evidence, for the same reasons, I further accept the plaintiffs’ expert valuation of the Works done by the defendant.

104.  Adopting the plaintiffs’ expert’s assessment, the actual value of the Works done by the defendant would worth HK$52,661 less than the amount that the plaintiffs had paid for.  Judging from the seriousness of flea problem and the congeries of defects as I have found as a matter of fact, I find the plaintiffs’ experts assessment to be reasonable and appropriate in the circumstances of the case.  Hence, I find the defendant liable for HK$52,661, being the difference between HK$308,200 and HK$255,539, under this head.

Costs of rectification by Everart

105.  Under this head, the plaintiffs claim a total sum of HK$328,455 for rectification works done by another contract, Everart.  As submitted by the plaintiffs’ counsel, it is no doubt correct that even if the Works are of some value (HK$255,539 as assessed by the plaintiffs’ expert), it does not mean that the plaintiffs would have to accept the Works in their defective state and be debarred from rectifying the defects: see Grace Garments Ltd v Tajmahal’s Ltd [1974] HKLR 239.

106.  The plaintiffs are clearly entitled to rectify the defective works.  However, the amount of costs of rectification this court would allow must be subject to the principle of reasonableness and necessity.  Even if the defendant is liable for its defective Works, as I have found, it does not necessarily mean that the plaintiffs are free to incur any costs of rectification as they wish without limitations.

107.  Pursuant to the 2 invoices from Everart to the plaintiffs dated 30 November 2014 and 16 February 2015 respectively (“Invoice A” and “Invoice B” respectively), the plaintiffs have paid Everart a total sum of HK$406,875 for their rectification works done in the Premises, which commenced in August 2014 and was completed in December 2014.

108.  The plaintiffs has sensibly waived and excluded a total sum of HK$78,420 for costs of items which they regarded either as an upgrade of items under the Agreement, or items which were not included in the Agreement.  I agree this is the proper course to take.  Had the plaintiffs not expressly waived and excluded these items, I would not allow them in any event.

109.  The gist of the plaintiffs’ submission for damages under this head is that the court should allow the amount of HK$328,455 (being HK$406,875 – HK$78,420) in full because, apart from items 9, 15 and 20 of Invoice A, the defendant’s solicitor did not challenge the reasonableness or necessity of the items contained in the invoices issued by Everart during the cross-examination of P1.

110.  I agree that the defendant’s solicitor has failed to put to P1, during her cross-examination, a great deal of matters in the defendant’s case, and therefore he is not entitled to submit on those areas in his closing submissions.  Only items 9, 15 and 20 of Invoice A have been asked, and P1 was able to provide a reasonable explanation as to why these items required replacement.  I accept P1’s evidence that:-

(a) In relation to item 9, the bathroom door installed by the defendant was not fitting properly, and the door could still be opened even when it was locked;

(b) In relation to item 15, the toilet bowl had to be dismantled and re-installed as a result of the removal of floor tiles in order to fix the water seepage problem from the basin of the bathroom; and

(c) In relation to item 20, the re-installation of flooring on the kitchen was necessary because there was problem with the electrical works and some of the electrical wires were buried under the flooring of the kitchen.

111.  The plaintiff’s expert evidence in this regard largely supports P1’s account.  However, in relation to Item 9, he was of the opinion that the bathroom door merely required repair but not replacement, and the estimated cost for repairing the bathroom door is HK$500.  I agree.  The plaintiffs could not justify why a replacement of the door, changing it from a normal door to a sliding door, was reasonable and necessary while their own expert only recommended the appropriate course to take was to repair it.  I would therefore only allow HK$500 for this item.  Since this amount has already been accounted for as one of the items under the head of Diminished Value of the Works, to allow it under this head would be a double counting of damages.

112.  In relation to item 15 of Invoice A, the plaintiffs’ expert was of the opinion that the costs for replacement and repair of the toilet bowl would be HK$1,200.  I agree with this amount.  Again, since this amount has already been accounted for as one of the items under the head of Diminished Value of the Works, to allow it under this head would be a double counting of damages.

113.  In relation to item 20 of Invoice A, the plaintiffs’ expert suggested a total replacement of all the electrical works but he was silent on the need for re-installation of flooring on the kitchen.  However, as I accept that some of the wires were buried under the floor of the kitchen, to effect a complete replacement, the re-installation of flooring on the kitchen was reasonable and necessary.  I would therefore allow HK$3,000 as claimed under this item.

114.  I do not agree with the plaintiffs’ submission that by reason of the fact that the defendant’s solicitor failed to challenge and/or was not entitled to challenge the reasonableness and necessity of the other items (excluding those items expressly waived by the plaintiffs and items 9, 15, 20 which have been dealt with above), the court should grant the amount in full claimed by the plaintiffs.

115.  Even if the defendant’s solicitor was not allowed to make submissions on these items due to the fact that he failed to put his case, the court still has to determine what is the reasonable and necessary cost of rectification for each and every item.  I now turn to consider each of them accordingly.

(a) Item 1 (Invoice A) – 全間廳房牆身天花剷底批灰油防潮漆連護牆漆 (HK$20,000)

In my view, the complete re-doing of painting works in relation to all the walls and ceilings of the Premises is not justified.  The plaintiffs’ expert was only of the opinion that “cracks appear at ceiling paint finish of dining area” and “cracks appear at ceiling paint finish of light trough”.  He was also of the opinion that “the labour for touching paint finish” would cost HK$1,690 in total to rectify the defects.  Since there was no evidence to suggest other defects existed in relation to the painting works, I find the amount of HK$1,690 reasonable and I would allow it.  This has again been included under the head of Diminished Value of the Works, hence no extra award is required.

(b) Item 2 (Invoice A) –全間搭棚7000元

In my view, this would be required in any event for the rectification works to be carried out. I allow it in full, i.e. HK$7,000.

(c) Item 3 (Invoice A) – 廳位新造U形，房直位燈槽上T5管下連LED燈  (HK$8,760)

The plaintiffs’ expert found that the timber light trough in the living room was not safely installed and required replacement.  As I have found the defendant liable for such defect and awarded damages under the head of Diminished Value of the Works, I need not make a separate award.

(d) Item 4 (Invoice A) – 全間廳房拆無縫地板新鋪地台磚連腳線（磚料另計）(HK$15,260)

The plaintiffs’ expert found that there were some gaps left at corners between the floor tiles and skirting in the living room which required touching up, and assessed the labour cost for repair to be HK$300.  This is again a minor defect which does not justify the complete replacement of all the floor tiles and skirting of the living room.  As I have already allowed that sum under the head of Diminished Value of the Works, I need not make a separate award.

(e) Item 5 (Invoice A) – 全間廳房窗台拆連新鋪雲石面窗台石 (HK$7,500)

The plaintiffs’ expert evidence is that there was an unreasonable odd-looking patch on the marble which was laid on the windowsill of the small room.  There was no evidence suggesting that there were defects in the windowsill marbles in other area of the Premises.  In my view, this is only a minor defect and clearly a complete demolition and re-laid of marbles is not justified.  I would therefore only allow the replacement of the defective marble in the small room, and allow 30% of this item, ie HK$ 2,250.

(f)   Item 6 (Invoice A) – 廁所牆身起連新鋪牆身磚(磚料另計) (HK$11,500)

There is no evidence of any defects concerning the tiles on the bathroom wall.  No award is made.

(g) Item 7 (Invoice A) – 廁所地台起連新鋪地台磚 (磚料另計) (HK$2,100)

I accept P1’s evidence that the removal and re-installation of floor tiles in the bathroom is reasonable and necessary for the repair of water seepage problem. Accordingly, I allow HK$2,100 for this item.

(h) Item 11 (Invoice A) – 新造電掣x 38(HK$18,240)

It is clear from the Joint Expert Reports that all electrical works done by the defendant needed replacement, hence I allow this item in full, ie HK$18,240.

(i) Item 12 (Invoice A) – 全間更換銀鋁綠片鋁窗連3個冷氭窗 (HK$28,050)

The Joint Expert Reports and photos attached therein showed that the windows in the Premises were defectively installed and has caused water seepage problems.  The plaintiffs’ expert recommended that the rubber strips should all be replaced; the positions of the window sashes should be re-adjusted; and water seepage test should be carried out after the reinstatement works.  On top of the value assessed by the plaintiffs’ experts for replacement of all window lock handles, which I have already allowed under the head of Diminished Value of the Works, he was of the view that extra costs of HK$10,400 is required to repair the above window problems.  I allow that sum only.  I disallow the full sum claimed by the plaintiffs since I am not convinced that it was necessary to change all the glasses of the windows.

(j) Item 14 (Invoice A) – 廁所拆連新造雲石面洗面盆木柜 (龍頭另計)(HK$5,000)

It is undisputed that the timber basin cabinet was dampened and damaged as a result of water seepage between the faucet and basin due in inferior workmanship.  As I have already allowed the costs of replacement for this item under the head of Diminished Value of the Works, I need not make a separate award.

(k) Item 16 (Invoice A) – 廁所新造白鋁假天花連2支led燈 (拆連裝回浴室寶) (HK$2,400)

The plaintiffs’ expert was only of the view that the heater was not installed by the defendant, and therefore assessed the cost for such installation to be HK$485.  There was no defect in the plastic false ceiling originally installed by the defendant, and I see no reason to justify the necessity to change the it into white aluminum false ceiling together with 2 LED lights.  This is clearly an upgrade of the original works, and I will not allow the sum claimed.

(l) Item 18 (Invoice A) – 廚房拆上下柜900元

As I have found liability against the defendant on the issue of flea problem, and that is clearly a fundamental breach of the Agreement, I find it reasonable and necessary for the demolition of the upper and lower kitchen cabinet.  I allow this sum claimed.

(m) Item 19 (Invoice A) – 廚房新造仿石面單星盆灶基木柜 (10呎) (HK$11,800)

The original kitchen cabinet with basin was one of the wooden furniture seriously affected by the flea problem. Although the plaintiffs’ expert’s opinion is to claim for pest treatment, given the persistence of the flea problem even after 2 attempts of pest control, I find it reasonable and necessary for the plaintiffs to demolish the infected wooden furniture and replace them with a new one.  I therefore allow HK$11,150 (being HK$11,800 (the sum claimed under this item) less HK$650 (the sum that I allowed under the head of Diminished Value of the Works)).

(n) Item 21 (Invoice A) – 廚房牆身起連新鋪绩牆身磚 (磚料另計) (HK$13,300)

There is no evidence of any defects concerning the tiles on the kitchen wall. No award is made.

(o) Item 22 (Invoice A) – 廚房新造雙面膠板木吊柜 (14呎) (HK$9,800)

For the same reason as stated in paragraph 115(m) above, I allow HK$7,300 (being HK$9,800 (the sum claimed under this item) less HK$2,500 (the sum that I allowed under the head of Diminished Value of the Works)).

(p) Item 24 (Invoice A) – 裝修後清潔2500元，衣櫃鏡一幅350元，浴池玻璃980元，鋁抽手60元x12隻=720元，電掣大掣面補價2000元

I allow the cleaning fee, as this is, in my view, reasonable and necessary cost to incur for the rectification works.  I also allow the costs of electrical switch for the reasons given above in paragraph 115 (h) above.  I disallow the costs for aluminum handle for it has been accounted for in the sum that I awarded to the plaintiffs under the head of Diminished Value of Works in relation to defective windows.  I disallow also the costs of the wardrobe mirror and the bathtub glass, as there was clearly no basis for such claim.

(q) Item 25 (Invoice A) – 大門，廚房，廁所拆連新造雲石吸咀 (HK$900)

I disallow this item as there was no evidence to support this claim.

(r) Item 26 (Invoice A) –走廊新造假天花連飯廳位封平假天花連裝LED約6支 (HK$6,600)

I disallow this item as there was no evidence to support this claim.

(s) Item 27 (Invoice A) – 兩房（掩門），大門（實心）更換焗漆門連框，廚房框（鋁摺門）更換（鎖另計）連拆閘，大門木紋補價2500元

The plaintiffs’ expert opined that all defects relating to the doors in the Premises could be rectified by repairing work.  In particular, the costs for repairing the main door would be a lump sum fee of HK$1,500.  I agree that amount is reasonable.  As I have already allowed that sum under the head of Diminished Value of the Works, I need not make a separate award.

(t) Item 29 (Invoice A) – 全間拆傢俬什物，假天花連天花線 (HK$4,800)

I allow this claim in full as this is, in my view, reasonable and necessary cost to incur for the rectification works.

(u) Item 30 (Invoice A) – 更換屋內電掣總箱 (連水氣掣) 連供應WR1 FORM (HK$4,800)

I allow this claim in full for the reasons given above in para 115 (h) above.

(v) Item 32 (Invoice A) – 廁所熱水爐拆連裝回，廚房拆連裝回抽油煙機，焗爐，洗衣機，煮食爐 (HK$2,000)

I disallow this item as there was no evidence to support this claim.

(w) Item 2 (Invoice B) – Drhine BB-82109Y 門頂 (HK$250)

I disallow this item as there was no evidence to support this claim.

(x) Item 7 (Invoice B) – 窗簾 (HK$1,200)

The plaintiffs’ expert opined that the blind in the master bedroom was slanted to one side and required repairs.  Cost for repair was assessed at HK$300.  As I have already allowed that sum under the head of Diminished Value of the Works, I need not make a separate award.

(y) Item 8 (Invoice B) – 廚房鋅盆 (HK$370)

I disallow this item as there was no evidence to support this claim

(z) Item 9 (Invoice B) – 龍頭 (HK$2,400)

This item relates to Item 14 (Invoice A) above, and for the same reason I disallow it.

(aa) Item 11 (Invoice B) – 神檯櫃白底玻璃 (HK$400)

I disallow this item as there was no evidence to support this claim.

(bb) Item 12 (Invoice B) – 沿室玻璃三角架 (HK$360)

I disallow this item as there was no evidence to support this claim.

(cc) Item 13 (Invoice B) – 清洗冷氣機 (HK$1,500)

I disallow this item as there was no evidence to support this claim.

(dd) Item 14 (Invoice B) – 代購磚料 (HK$12,835)

As I have allowed the costs for removal and re-installation of floor tiles in the bathroom (Item 7 – Invoice A), I will accordingly proportionate the costs for purchasing the tiles material and allow 20% of the sum claimed under this item, ie $2,567.

116.  As I have allowed the costs for repairing the defective windows and pest treatment, I do not need to deal with the plaintiffs’ alternative claim in regards of these two items.  By reasons stated above, I find that the defendant is liable for HK$79,007 in total under this head.

Damages for inconvenience and discomfort

117.  As I have found liability against the defendant for the flea problem in this case, there is no doubt that the plaintiffs will be entitled to general damages for inconvenience and discomfort they suffered.

118.  I agree with the plaintiffs’ submission that there is no scientific way of translating inconvenience and discomfort into a sum of money, and the damages awarded had to be a conventional sum: see So John & Anor v Lau Hon Man & Ors [1993] 2 HKC 356.

119.  While considering the amount of damages to be awarded to the plaintiffs under this head, I take into account the following matters:-

(a) P1’s evidence that the flea problem started in June 2012 and lasted until the commencement of the rectification work by Everart in August 2014; and

(b) P1 and the plaintiffs’ expert’s evidence that fleas were found in all the wooden furniture made and/or provided by the defendant.

120.  Given the duration and extensiveness of the flea problem, I have no hesitation to find that the plaintiffs did suffer substantial inconvenience and discomfort for a period of 2 years and 2 months.

121.  Although there is no comparable authority which concerns inconvenience and discomfort cased by flea problem, I accept the plaintiff counsel’s submission that the extent of inconvenience and discomfort in this case is comparable to those brought by water seepage of moderate to serious extent. In particular, I accept that they are both persistent nuisance to daily living and affect the use of the dwelling.

122.  Hence, taking into account the authorities submitted by the plaintiffs’ counsel are both more than a decade ago, I would take into account the factor of general inflation and allow general damages of HK$100,000: see Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456; Chung Che Sum v Dong Sai Ming, DCCJ 21504/2001 (unreported, 15 February 2007).

Damages under the Declaration

123.  As I have found above that the defendant’s delay in completion would run from 15 May 2012 to 13 June 2012, ie 30 days in total, I find the defendant to be liable of HK$30,000 (30 x HK$1,000) under this head of damages.

124.  Suffice to say is that HK$1,000 per day for the defendant’s delay is a contractual sum agreed between the parties.  In my view, this amount is reasonable and represents a genuine pre-estimate of loss that the plaintiffs would suffer as a result of the defendant’s delay.

CONCLUSION

125.  In conclusion, for the reasons stated above, I find the defendant liable for breach of the express and implied terms of the Agreement in this case.

126.  I therefore would enter judgment in favour of the plaintiff in the sum of HK$261,668 as I have assessed above, which is made up as follows:

a. Diminished value of the Works	$52,661
b. Costs of rectification by Everart	$79,007
c. Damages for inconvenience and discomfort	$100,000
d. Damages under the Declaration	$30,000
	$261,668

127.  There will be interest for the above sum at 1% above prime rate from date of breach, ie 11 May 2012 to date of judgment and thereafter at judgment rate.

128.  Costs will follow the event.  I make a costs order nisithat the defendant shall pay the plaintiffs costs of this action (including costs previously reserved, if any), such costs to be paid on a party and party basis, to be taxed if not agreed with certificate for counsel.  The order nisi will become absolute unless the parties apply within 14 days from the date of this judgment to vary the same.