ERGO DECORATION CO. LTD. v. FDC (FULUM) DESIGN & GINEERING CO.LTD.

HCA3583/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3583 OF 2003

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J U D G M E N T

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1. This is the hearing of the action by the plaintiff for money owing for work done pursuant to contract and pursuant to the oral request of the defendant.

2. The work had been done by the plaintiff at the request of the defendant.  They entered into a contract and the amount of work done was less than what was stated in the contract, therefore the contractual claim under the written contract was in fact smaller than what was stated in the contract.

3. The claim of the plaintiff really consists of three figures.  The figure of $629,709.00 which is the revised contractual sum as referred to by Mr Li Kai Ping in his Revised Witness Statement at paragraph 16a.  The second sum is the sum of $161,984.00 which is referred to by Mr Li as the additional work in his Revised Witness Statement at paragraph 16b, and the third figure is the sum of $1,380,083.00 referred to by him in his Revised Witness Statement at paragraph 16c.  These three sums less the undisputed amount already paid by the defendant of $1,249,933.50 makes up the amount now claimed by the plaintiff in the sum of $921,842.50.

4. The hearing took place today in the absence of the defendant.  The defendant was previously represented by solicitors but the solicitors came off the record after the pleadings had closed.  The defendant, although notified, chose not to appear at the hearing today. 

5. There are really two issues raised in the pleadings by the defendant.  The defendant had in fact filed no relevant witness statement but the points are well covered by the plaintiff’s witnesses in their witness statements. 

6. The two points are these.  The defendant says that the amount under the additional works could not be claimed because there was a clause in the written contract which stipulated that quotations must be approved in writing.  This unfortunately did not took place because there was a conversation between the parties whereby, due to the urgency of the matter, the plaintiff was asked to do the work and was told by the defendant to forget about written quotations to get that done quickly and “I’ll make sure you get paid”. 

7. The other defence that was raised by the pleadings is that there was a penalty provision on the per diem delay basis of $20,000.00 per day.  That penalty provision can only apply if everything went well.  Everything did not go well because, throughout the period and right towards the end, the defendant was revising the plans and giving new orders.  No delay clause can survive such additional instructions being given.  This point is covered, I think, in paragraph 17 of Mr Li’s Revised Witness Statement.

8. I therefore find that there is no substance in any of the two pleaded defences of the defendant.  I find that I am satisfied that the claim of the plaintiff has been well made out. 

9. I therefore give judgment to the plaintiff in the sum of $921,842.50.  There will be interest on the judgment sum from the date of the writ at 2% above prime.  The plaintiff must also be given the costs of the action.  The counterclaim must also be dismissed.