CHUNG WAH HONG (HK) ENGINEERING LTD v. UNISTRESS BUILDING CONSTRUCTION LTD

DCCJ 1217/2023

[2026] HKDC 896

IN DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1217 OF 2023

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BETWEEN

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JUDGMENT

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I. INTRODUCTION

1.  This is a straightforward case of Plaintiff’s claim (“P’s claim”) for workdone.

2.  The Defendant (“D”) was the main contractor of a construction project entitled “Lok Wo Sha Residential Development, Ma On Shan, N.T. - Senorama (馬鞍山住宅建造工程，星漣海)” (“Project”).

II. BACKGROUND

3.  D accepted the quotations both dated 1 August 2018 ref. PE-SB-180801-001 (“Ql”) and PE-SB-180801-002 (“Q2”) submitted by the Plaintiff (“P”), by way of a written sub-contract ref. LWS/UBC0331/SC/P-058 dated 3 August 2018, which was signed by P and D on 10 August 2018 (“the Sub-Contract”).

4.  Under the Sub-Contract, P was one of D’s sub-contractors for Project, responsible for “Repair of Scratched / Dented Glass Panel (玻璃花痕修復工程)” (“the Original Sub-Contract Works”). The Original Sub-Contract Works involved scratches removal works to the internal face of glass panels only.

5.  The Sub-Contract was a re-measurement contract in the sum of HK$1,967,420.00.

6.  P commenced the Original Sub-Contract Works in or about August 2018. Shortly after that, D asked P to submit quotation for scratches repair removal works to the external face of glass panels. P submitted quotation dated 19 August 2018 ref. PE-SB-180819-001 (“Q3”). D instructed and ordered P to carry out the works and P completed so.

7.  It is alleged that D subsequently asked P to submit further quotations for scratches repair removal works to the external face of glass panels at various stages. It is alleged that P submitted further quotations, with details as follows:-

Date	Quotation ref.
21.09.2018	PE-SB-210918-001 (“Q4”)
05.10.2018	PE-SB-051018-001 (“Q5”)
09.11.2018	PE-SB-181109-001 (“Q6”)
09.11.2018	PE-SB-181109-002 (“Q7”)
09.11.2018	PE-SB-181109-003 (“Q8”)
09.11.2018	PE-SB-181109-004 (“Q9”)

8.  It is alleged that after P’s submissions of Q4 to Q9, D instructed P to carry out the works and P completed so. All scratches repair removal works to the external face of glass panels were outside the scope of the Original Sub-Contract Works, are collectively termed as the Variation or Extra Works.

9.  From August 2018 to January 2019:-

(1) P submitted 18 nos. of Invoices (“INVl to INV18”) to D;

(2) D issued 12 nos. of Payment Certificates (“IPCl to IPC12”) to P; and

(3) D made total payments of HK$7,481,064.00 to P.

Summary of P’s Invoices, D’s Payment Certificates and Payments can be found in Appendix I to P’s Closing Submissions.

10.  P alleges that:-

(1) D failed to comply with Payment terms of the Sub-Contract, namely, to settle payment 30 days within cut-off date (申請出糧每月一次，糧款於截數日後三十日內付清) and/or to settle payment 30 days after application (月尾入單，30天內找數) since about November 2018 and continued to do so;

(2) As in or about mid-January 2019, D had failed to settle payment of about HK$2.3million under INV5 and INV6 in breach of Payment term of the Sub-Contract; and

(3) P alleged it had incurred costs under INV7 to INV9 which would later be assessed by D in the amount of about HK$520,000.00.

11.  Against the aforesaid background, a meeting was initiated by Mr Ho Yung Ngai of D (“Mr Ho”) to be held on 15 January 2019 with Mr Tang Wing Kit Stephen of P (“Mr Tang”) and Mr Au Yeung Kwok Leung of D (“Mr Au Yeung”). Subsequently, P offered 8% discount on its invoices starting from INVl0 dated 26 January 2019 up to INV18 dated 1 December 2019.

12.  As the quantities of the Original Sub-Contract Works and the Variation/ Extra Works completed by P (termed as “the Completed Works” by experts of P and D) are not in dispute; the Court only has to determine two issues:-

(1) The unit rates to be adopted for the Extra Works Works:-

(a) The unit rates in P’s Q3-Q9 [P’s case]; or

(b) The hand-written unit rates in D’s Quotation no.3 (“DQ3”) [D’s case];

(2) Whether the 8% discount offer remains in force.

III. P’S CLAIM AND D’S DEFENCE

THE AMENDED STATEMENT OF CLAIM

13.  In the Amended Statement of Claim, P pleads that by way of two (2) quotations both dated 1 August 2018 ref. PE-SB-180801-001 and PE-SB-180801-002 respectively (collectively referred to as “Quotations”). Mr Stephen Tang (“Mr Tang”) of P, as per the request of Mr Wesley Ching, Project Manager of D (“Mr Ching”), submitted the Quotations for the removal of scratches on internal side of glass for a project entitled “Lok Wo Sha Residential Development, Ma On Shan, N.T. - Seanomara 1 (馬鞍山落禾沙住宅建造工程,星漣海)” (the “Project”) under which D was the main contractor. The works referred to in the Quotations are generally and collectively described as “Repair of Scratched / Dented Glass Panel (玻璃花痕修復工程)” (the “Works”). The Quotations were subsequently accepted by D by way of a written sub-contract ref. LWS/UBC0331/P-058 dated 3 August 2018, which was signed by P and D on 10 August 2018.

14.  Given the above, P submits that the Sub-Contract has been entered into between Parties. Under the Sub-Contract, D agreed to engage P as its sub-contractor for the repair of scratches to the internal side of glass panels and P agreed to carry out and complete the Works for D in Project. The Sub-Contract sum was HK$1,967,420.00 (the “Sub-Contract Sum”).

15.  P pleads the Express Terms of the Sub-Contract and avers that both the Quotations and the Sub-Contract ref. LWS/UBC0331/P-058 dated 3 August 2018 formed part of the Sub-Contract. As expressly stated in the Sub-Contract, the Sub-Contract was a re-measurement contract. It was further pleaded that the Sub-Contract contains Payment term, namely “100% of monthly progress payment based on actual work done” and “付款辦法 - 申請出糧每月一次,糧款於截數日後三十日內付清” respectively in English and Chinese (collectively referred to as the “Payment Terms”).

16.  P also pleads Implied Terms of the Sub-Contract as a matter of law or in order to give effect to business efficacy thereto that:- (1) D shall not do anything to hinder or prevent P’s due performance under the Sub-Contract; (2) D shall act fairly, reasonably and expeditiously in the review, assessment and settlement of P’s invoice of any kind; (3) D shall do all such things as may be necessary to enable P to complete the Works; and (4) Additional works should be paid for as variations where such works are necessary but has not been expressly provided for in the Sub-Contract or where D orders such work which it knows or has been told, that will cause extra costs.

17.  As to Commencement and Completion of the Works, P pleads that in or about early August 2018, a Site Agent of D called “波叔” (“D’s Site Agent”) instructed Mr Tang to commence the Sub-Contract Works and P did so. It is P’s pleaded case that during Progress of the Works and under the instruction of D’s Site Agent, P has submitted timely and progressively site record photos (before and after completion of the Works) and detailed site records of the Works to D’s site representatives for checking and confirmation. These site record photos and D’s representative’s confirmatory records are listed and appended as Schedule 1 to the Statement of Claim – Lists of Site Record Photos (執修前﹑後 相片紀錄) and D’s Representatives’ Signed Records (地盤確認紀錄). P pleads that it had duly and satisfactorily completed the Works in accordance with the Sub-Contract on 12 November 2019.

18.  As to the Supplementary Quotations for Variations/ extra works, P pleads that during the course of the Works, D instructed P to carry out various additional works. These additional works for removal of scratches to the external face of glass panels were unrelated to removal of internal glass scratches and therefore not within the original scope of the Works under the Sub-Contract (these are collectively referred to as “Variations” / “Extra Works”).

19.  P pleads that at the requests of Mr Ho Yung Ngai, Quantity Surveyor of D (“Mr Ho”) and Mr Ching, P submitted further seven (7) quotations during Period between 19 August 2018 and 9 November 2018 respectively (the “Supplementary Quotations”) for the Variations/ Extra Works.

20.  It is P’s pleaded case that D breached the Sub-Contract and Outstanding Payment Due and Payable by D to P under the Sub-Contract as follows:- (1) in or about November 2018, in breach of Payment Terms, D has failed and/or refused to assess, certify and pay P for the completed Works including the Variations Works in a timely manner in respect of its invoice nos. 3 and 4 which were submitted by P on 9 October 2018 and 20 October 2018 respectively; and (2) in or about December 2018 to mid January 2019, in breach of Payment Terms, D even stopped Payment assessments and thus made no payment to P in respect of its invoice nos. 5, 6 and 7 which were submitted by P on 12 November 2018, 25 November 2018 and 8 December 2018 respectively.

21.  P pleads that in or about the third week of January 2019, MrHo verbally requested MrTang to consider offering certain percentage of discount on all P’s invoices from January 2019 onwards. In return, MrHo informed MrTang that D’s top management would facilitate Payment process and would settle the outstanding payment to P as soon as possible (“D’s Representation”). P pleads that in reliance upon D’s Representation, P has offered 8% discount on its invoices starting from invoice no. 10 dated 26 January 2019 up to invoice no. 18 dated 1 December 2019 and P avers that its 8% discount was conditional upon D’s Representation being true. Alternatively, the statements made by MrHo were representations which induced P to offer 8% discount.

22.  P pleads it has since discovered that D’s Representation was untrue in that the late and/or short payment issues remain unresolved despite P’s 8% discount offer. Further and alternatively, P submits in the absence of speedy assessment and payment by D, there was no consideration for P to make the 8% discount and as such 8% discount was not ever agreed and accepted by D. Or alternatively, D’s Representation was false and P is entitled to revoke the 8% discount and P shall rely upon Section 3(1) of the Misrepresentation Ordinance, Cap. 284. It is pleaded that as of today, D has still failed and/or refused to assess, certify and make payments according to Provisions of the Sub-Contract.

23.  P pleads that excluding the 8% discount and adjusting the arithmetical errors above-mentioned, these invoices show a net total sum / value of HK$9,062,019.00 for the completed Sub-Contract Works and under the Sub-Contract, P so far has received twelve (12) payments from D for a total sum of HK$7,481,064.00.

24.  P’s claims that in reliance upon its quantum expert’s assessment, (based on Pro-Rata Rates Assessment without 8% discount offer) an outstanding payment due under the Sub-Contract is HK$3,689,486.00 (the “Outstanding Payment”). Wrongfully in breach of the Sub-Contract, D has failed and/or refused to settle the Outstanding Payment. The Outstanding Payment of HK$3,689,486.00 remains outstanding and payable. In light of the jurisdiction of District Court, P’s claim for the Outstanding Payment is limited / capped at HK$3,000,000.00. P further pleads it is entitled to claim interest on the sum(s) found due pursuant to Sections 49 and 50 of District Court Ordinance (Cap. 336) at a rate and for such period as the Court shall deem fit.

25.  And P claims at in Prayer: - (1) The Outstanding Payment in the sum of HK$3,000,000.00 due and payable by D to P under the Sub-Contract; (2) Alternatively damages for breach of the Sub-Contract; (3) Interest on sum found due pursuant to Sections 49 and 50 of District Court Ordinance (Cap. 336) at a rate and for such period as the Court shall deem fit; (4) Costs; and (5) Further or other relief.

26.  One more matter, P pleads that during Progress of the Works, P has duly submitted to D progressively eighteen (18) invoices in the total sum of HK$9,049,129.00. There was an Arithmetical error of HK$12,890.00 are found in P’s invoices. After correction of the errors, the total sum of the eighteen (18) invoices is HK$9,062,019.00 and payments received by P totalled HK$7,481,064.00.

THE AMENDED DEFENCE

27.  As in Defence, D pleads that the sub-contract ref LWS/UBC0331/SC/P-058 (the “Written Sub-Contract”) expressly provides that “報價單烈明之條款需附合本分判合約條款,如有不一致將以本分判合約為準。”.

28.  Further, D pleads the following express terms provided under the Written Sub-Contract: -

(a) Clause 2a of page 2 of the Sub-Contract provides that:- “乙方是無論工程數量,皆以實量實度的方式承造本合約所指定的工程。最終皆以甲方或業主所核准的數量為準。...”

(b) Clause 6c of page 2 of the Sub-Contract provides that:- “本合約工程乃單價工程(Schedule of Rates),合約總額以最後工程完成數量實量實度計算及須業主批核準為準則。”

29.  D also pleads that Sub-Contract also contains the following terms, implied as a matter of law and/or to give business efficacy to the Sub-Contract and/or reflect Parties true common intention that:-

(a) P shall not do anything to hinder or prevent D’s due performance under the Sub-Contract;

(b) P shall carry out the Works at the site expeditiously, economically and in accordance with the Sub-Contract;

(c) P shall act fairly, reasonably and expeditiously in the submission of any invoice/ payment applications; and

(d) P shall do all such things as may be necessary to enable D to perform the Sub-Contract.

30.  D further pleads that save and except where it is admitted that in or about early August 2018, 波叔, Site Agent of D, instructed MrTang to commence the Works, paragraph 9 of the Statement of Claim is not admitted.

31.  D avers that since the commencement of the Works, each of the invoices/ payment applications provided by P did not contain accurate and/or sufficient information and/or supporting documents, including, without limitation, site record photos and detailed site records of the Works, and D had to correct the invoices and/or request for more information from P.

32.  D pleads that on or about 19 August 2018, P submitted a supplementary quotation ref. PE-SB-180819-001 (“Supplementary Quotation”), namely Q3 that contains unit rates for glass repair work at the external face of the façade and glass railings. Upon Parties’ discussion, the unit rates in the Supplementary Quotation were amended. The Supplementary Quotation (as amended) was signed and agreed by Parties.

33.  It is pleaded that the unit rates agreed in the Quotations and the Supplementary Quotation (as amended) (“the Agreed Unit Rates”) covered all the Works performed by P. P’s entitlement under the Sub-Contract shall be calculated according to and/or with reference to the Agreed Unit Rates together with the additional 8% discount pleaded hereinbelow.

34.  Thereafter, P purportedly submitted 6 additional quotations (“Unsigned Quotations”) between 21 September 2018 and 9 November 2018. The Unsigned Quotations and the unit rates therein were never signed and/or agreed by D.

35.  D avers that: -

(a) As to Payment method, payment is based on actual work done by P and actual measurement/assessment by D.

(b) Since the commencement of the Works, it had been Practice between P and D that after P submitted the invoices/payment applications, D would assess the actual work done and revert the assessed amount to P for its further confirmation, and payment would only be made to P once it confirmed the assessed amount.

(c) D repeats paragraph 9 hereinabove. As a result of P’s failure to provide invoices/payment applications with accurate and/or sufficient information and/or supporting documents, extra time had to be spent by D before reverting the assessed amount to P. D avers that any late reverting to P was solely caused by the extra time that had to be spent on checking and correcting the invoices/payment applications provided by D.

(d) P had confirmed the assessed amounts (which were less than what were claimed in its invoices/payment applications) each and every time and accepted all 12 payments from D.

(e) Detailed breakdown of 12 payments showing claimed amounts vs. paid amounts after assessment, totaling HK$7,481,064.00.

Payment	Invoice Ref.	Claimed amount (HK$)	Paid amount after assessment by D and confirmed by P
1	EP0608	205,200.00	195,000.00
2	EP0617	535,200.00	515,190.00
3	EP0620	779,000.00	554,460.00
4	EP0625	1,647,900.00	1,192,280.00
5	EP0634	1,597,890.00	1,554,880.00
6	EP0648	833,977.00	791,368.00
7	EP0654 EP0659 EP0666	711,212.00	518,860.00
8% Discount Offer applied to below
8	EP0673	849,524.32	731,717.00
9	EP0679 EP0682 EP0688	1,122,128.60	918,229.00
10	EP0705 EP0715	129,120.16	102,553.00
11	EP0694 EP0731	384,800.12	366,869.00
12	EP0763	45,935.60	40,258.00
Total:		8,841,887.80	7,481,064.00

(f) D therefore avers that D had assessed, certified and honour all payments according to Provisions of the Sub-Contract and denies any breach of the Sub-Contract.

36.  D admits that P offered 8% discount on its invoice starting from invoice no. 10 dated 26 January 2019 up to invoice no. 18 dated 1 December 2019; and that during Progress of the Works, P had submitted to D eighteen invoices

37.  D avers that the 8% discount was mutually agreed between P and D. As there was no non-payment on Part of D and late payment through the fault of D and no breach of the Sub-Contract, the consensus on Discount should not be revoked. Further, D avers that P had waived its right to revoke and/or is estopped from revoking Discount offer by applying Discount offer in the subsequent invoices, and accepting all payments made by D. It is inequitable to allow P to revoke Discount offer.

IV. AGREED LIST OF ISSUES

38.  (i) Whether the 8% discount offered by P was valid:

(a) Whether P is entit1ed to revoke the 8% discount offer due to the alleged misrepresentations on Part of D.

(b) Whether the 8% discount offer was unenforceable for want of consideration.

(c) Whether P was estopped from revoking the 8% discount offer.

39.  (ii) Whether the following unit rates were agreed by Parties:-

(a) the unit rates in P’s Quotations Nos.3 to No.9 (see Schedule 1) [P’s version] / the unit rates in P’s Quotations Nos. 4 to No.9 (see Schedule 1) or

(b) the hand-writing unit rates in Quotation No.3 [D’s version]

V. REVISED JOINT LIST OF UNDISPUTED FACTS

40.  Extract is made of the List of Undisputed Facts as follows: The Original Sub-Contract was a re-measurement contract for the agreed Sub-Contract sum of HK$1,967,420.00. P commenced the Sub-Contract Works in or about early August 2018. Apart from the original scope of the Sub-Contract Works, variations (additional/ extra works) were ordered and instructed by D.

41.  Including Q1 and Q2, P submitted to D a total of 9 nos. of quotations, details of the other 7 quotations are as follows:-

Date	Quotation ref.
19.08.2018	PE-SB-180819-001(“Q3”)
21.09.2018	PE-SB-210918-001 (“Q4”)
05.10.2018	PE-SB-051018-001 (“Q5”)
09.11.2018	PE-SB-181109-001 (“Q6”)
09.11.2018	PE-SB-181109-002 (“Q7”)
09.11.2018	PE-SB-181109-003 (“Q8”)
09.11.2018	PE-SB-181109-004 (“Q9”)

42.  The scope and quantity of Sub-Contract Works and variation/ extra works completed by P were as stated in P’s invoices.

43.  P had submitted to D a total of 18 nos. of invoices, details of which are as follows:-

No.	Date	Invoice ref.
1	27/08/2018	EP0608-180827-001 to 005
2	27/09/2018	EP0617-180927-001 to 008
3	09/10/2018	EP0620-181009-001 to 006
4	20/10/2018	EP0625-l8l020-001 to 011
5	12/11/2018	EP0634-181112-001 to 010
6	25/11/2018	EP0648-181125-001 to 006
7	08/12/2018	EP0654-181208-001 to 003
8	22/12/2018	EP0659-181222-001 to 003
9	07/01/2019	EP0666-190107-001 to 002
10	26/01/2019	EP0673-l 90126-001 to 007
11	22/02/2019	EP0679-190222-001 to 004
12	13/03/2019	EP0682-l 90313-001 to 003
13	06/04/2019	EP0688-190406-001 to 002
14	28/04/2019	EP0694-190428-001 to 004
15	05/06/2019	EP0705-190605-001 to 002
16	03/07/2019	EP0715-190703-001
17	29/08/2019	EP0731-190829-001 to 002
18	01/12/2019	EP0763-191201-001 to 002

44.  P offered 8% discount on its invoices from invoice No.10 dated 26 January 2019 up to invoice No.18 dated 1 December 2019.

45.  P received 12 payments from D for a total sum of HK$7,481,064.00. D issued 12 nos. of Payment Certificate, details of which are as follows:-

No.	Cut Off Date (截數日期)	Review Date (地盤覆核日期)
1	27/08/2018	01/09/2018
2	27/09/2018	10/10/2018
3	09/10/2018	27/10/2018
4	20/10/2018	02/11/2018
5	02/11/2018	26/11/2018
6	25/11/2018	10/12/2018
7	27/12/2018	01/02/2019
8	26/01/2019	18/02/2019
9	31/03/2019	26/04/2019
10	30/06/2019	15/07/2019
11	28/08/2019	11/10/2019
12	12/11/2019	19/12/2019

46.  Outside of the undisputed facts, it is noted even though Payment method in the Original Subcontract was for monthly application “付款辦法 - 申請出糧每月一次,糧款於截數日後三十日內付清”, and P submitted two payment applications for the months of October and November of 2019.

VI. FACT WITNESSES

48.  P had one fact witness, namely Mr Tang Wing Kit Stephen (“Mr Tang”) and he filed 2 witness statements:- (1) his Witness Statement ( Tang WS) of 18/06/2024; and (2) his Supplemental Witness Statement (Tang SWS) of 18/02/2025 are his evidence in-Chief.

49.  D had two fact witness, namely Mr Wong Cheuk Lun (“Mr Wong”) and Mr Au Yeung Kwok Leung (“Mr Au Yeung”). Mr Wong filed 2 witness statements:- (1) his Witness Statement of 18/06/2024 (Wong WS) ; and (2) his Supplemental Witness Statement (Wong SWS) are his evidence in-Chief. . Mr Au Yang also files his witness statement dated 29/07/2004 (Yang WS), his evidence in-Chief.

Tang Wing Kit (Mr Tang)

50.  It is Tang’s evidence he joined P (P) in 2016 and was involved in the subcontract between P and D and he dealt in his WS the following: (1) Information in relation to the Sub-Contract; (2) Payment Terms of the Sub-Contract; (3) Commencement and Completion of the Works; (4) Supplementary Quotations for Variations; (5) P’s instruction to work on Sundays and Public Holidays and the agreement for 15 day payment period; (6) P’s payment applications and discount induced by D; (7) D breach of Payment Terms and the 15- day payment; and (8) P’s entitlement.

51.  It is Mr Tang’s evidence he submitted two quotations to P (at the request of Mr Wesley Ching, Project Manager of P) that was later accepted by a written sub-contract LWS/UBC0331/SC/P-058 duly signed by P and D dated 10 August 2018 (at C/3). Mr Tang referred to the quotation Q1 at C/1 and Q2 at C/2 which were for the removal of scratches to the internal side of glass panels (室內). Q1 was amended with the amended version at C/1-1 with the following in handwriting “All qty by remeasurement” , “月尾入單, 30天內找數”, “Amount $ 1,439,200, $528,220 and Total Amt $ 1,967,420”. Q2 was likewise amended with the amended version C/2-1with the additional words “ optional item”, “All qty by remeasurement” , “月尾入單,30天內找數”. Payment Terms of the Sub-Contract contain the same payment terms as in C/1-1 and C/2-1. Mr Tang says D’s Site Agent “波叔” instructed Mr Tang to commence work in early August 2018 which was completed on 12 November 2019.

52.  Mr Tang also wrote in his WS what he described as “Supplementary Quotations for Variation”. He said he was shown by D’s Site Agent “波叔” a number of sample glass scratches at the external faces of glass panels (“室外”) based on which P submitted quotation Q3 to QS MrHo. Q3 was dated 19 August 2018 at C/28. Mr Tang wrote that Difference is the need to use gondola. Mr Tang in Court alleges he gave the quote Q3 based on the limited number of samples shown to him and as the external work progressed, he was instructed to carry out remedial work that were “different and far more serious” than the scratches on the samples. So, for external work, in addition to quotation Q3, P issued further quotations Q4 to Q9: Q4 dated 21/9/2018; Q5 dated 5/10/2018; Q6- Q9 all dated 9/11/2018.

53.  Mr Tang at para 28 of his WS alleges that he recalls “at the requests of Mr Ho and Mr Ching” he “managed and submitted a total of 7 quotations”. There is no evidence of MrHo and Mr Ching, nothing in the WhatsApp messages, requesting P to issue further quotations Q4-Q9.

54.  Mr Tang at para 24 of his WS wrote: on 21 September 2018 “因應地盤經理要求復修大廈幕牆外吊船花痕波不斷增加, 經過本公司與貴公司商量討論現在更新報價” “please find the quotation from file and sign back”. In fact, this is based on screen cap of a message from Mr Tang to Mr Ho at C/235. It seems to be a unilateral submission of a revised quote Q4 to the Site QS. D did not sign back Q4.

55.  At para 27 of his WS, Mr Tang wrote that he understood assessment of payment “shall be based on unit rates contained in the supplementary quotations. …”. This is a matter central to P’s case which D denies. In fact, following Q3, the quotation for extra work, for remedial work to the external face of glass panels, Q3 was amended by D and the amended version is at C/28-1, in which rates for 1 “欄河玻璃外花(吊)” was amended and Payment terms on the quotation crossed out in its entirety.

56.  Q3 as amended was signed by Wesley Ching of D dated 21 August 2018 and the signature of Stephen Tang also appeared for P. This then is the accepted version of Q3 for the carrying out of external work. At Court, MrTang alleges this amended Q3 was not communicated to him. This allegation is important for the finding of this Court, that is, whether this is to be believed.

57.  At para 29 of Tang’s WS, he wrote on or about 10 October 2018, he agreed to increase the workforce and work on Sundays and Public Holidays and “in return requested Mr Ching’s help to assist with P’s cash flow by allowing 15-day payment instead of 30 days. The relevant WhatsApp message of 10/10/2018 to Mr Ho is at C/231, it reads: “早安, 由於交樓地盤要求十人及假期上班，現在15天到要上一次單，麻煩你幫我跟貼啲invoice， 我司全力配合執行任務”. This message and others together cannot be taken as D’s agreement to 15-day payment as alleged in return for 10 workmen working on holidays.

58.  On payment applications and payments, Mr Tang alleges at para 35 that D had not provided to P the breakdown of payments / mark up assessments. So, he was unable to correlate P’s invoices and D’s corresponding payments. Further it is alleged there was delay in the making of interim payments to P.

59.  Mr Tang at para 49 of his WS says that about 3^rd week of January 2019 Mr Ho verbally requested him to offer “a certain percentage discount on P’s Invoices” in return for D’s top management facilitation of Payment process: (1) settling IPC-4 and IPC -5; (2) timely certification and payment in according to Payment Terms of 30 days; (3) promise of 15-day payment upon P’s invoices, collectively (D’s Representations). Then there was the “Special Payment Discount Meeting” on 15 January 2019 with Mr Au Yeung and Mr Ho of D. At para 50 of Tang’s WS, Tang admitted he was called to collect payment for IPC4 and IPC 5 on 25 January 2019 and at para 52, Tang alleges P offered an 8% discount for P’s Invoice No. 10 onwards in reliance on D’s representations. Tang says at para 55 of his WS that notwithstanding Discount, D had not speed up Payment assessment and settlement. Tang says at para 60 that by excluding the 8% discount, invoices 1-18 would result in work done in a net total sum of HK$9,062,019 and taking into account of HK$ 7,481,064 already received, would leave a sum due and payable by D to P of HK$1,580,955.00.

60.  Tang in his SWS also sought attack the accuracy of Mr Wong’s evidence in his SWS and to advance following main points: (1) at para 5 that the P’s Invoices as amended named as IPC-1 A to IPC-12 A were not available to P during Progress of the works and were only available in D’s LOD; (2) at para 7(2) that Mr Wong had not explained how Q3 as amended and signed was delivered to P; (3) at para 8(1) that Q3 as amended did not cover all external glass scratches removal works; (4) at para 8(3) that Q3 was based on the samples shown by D’s site agent to Mr Tam and that Mr Wong had ignored the increase in quantity and density of scratches.

61.  Mr Tang also suggested Mr Ho was not Person who signed-off the unapproved rates, rather it was it was Mr Wan Ho Yin and another unknown site QS of D. The last point is that P did not during the currency of the works revealed there was a contra charge of HK$16,500.00 and alleged at para 25(5) that the contra charge was to make up for the difference between the Assessment Table sum and IPC -12.

Au Yeung Kwok Leung (Mr Au Yeung)

62.  MrAu Yeung is the Quantity Surveying Manager of D since March 2015. He says other than Q1, Q2 and Q3 no further quotations had been accepted. It is MrAu Yeung’s evidence that P was asked to give a discount due to: (1) the quantities of scratches on glass exceeded what D expected; (2) the quotations were higher than market (reference is drawn to the ‘Ebotech quotation‘) . At the 15 Jan 2019 meeting, MrHo and MrAuyeung explained and asked P to consider giving D a discount. It is Mr Au Yeung’s evidence at para 10 is that “there was no mention that Discount would facilitate the top management of D to approve payment certificate or that D would speed up processing and settling of payment”. It was by Mr Tang’s WhatsApp message of 17 January 2019 that P agreed to provide the 8% discount to D .

Wong Cheuk Lun (Mr Wong)

63.  Mr Wong is a Director and Head of the QS Department of D and he gave evidence as to Payment method and practice of D. His evidence is that since the commencement of the works about August 2018 Practice had been after P submitted invoices/payment applications, D would assess and revert the assessed amount to P for its further confirmation and payment would only be made once P confirmed the assessed amount. Mr Wong says he was responsible for approving the assessed amount and in Process, the QSs would first check quantities and unit rates together with supporting documents provided by P. P’s payment applications are at C/35 to C/115 and D’s payment advice (分配工程付款書) at C/116-C/218 with P’s invoices being checked and rates marked up). There were 12 payment advices. For example, for payment advice No.1 C/116-C/122, Payment advice is at C/116, showing the sum to be paid as $195,000, with the marked up of P’s Invoices which at C/122 showing the last of marked up invoices and the total of $195,000 with the chop of P and signed. On the face of each payment advice at the top right are shown: (1) 截數日期; (2)地盤覆核日期; (3) 建議付款日期; (4) 到期付款日期; and at the bottom are shown the approval sequence in boxes for signatures : (1) 由地盤QS的製表; (2) 地盤經理的覆核; (3) 承判商的簽署: (4) QS 部門的覆核; (5) 工程部的覆核/批核 由 GM/director 簽署; (6) 最后由董事批核.

64.  It is Mr Wong’s evidence that he was told that P had failed to provide accurate and sufficient information and D’s site staff requesting for information resulted in extra time for checking. As to the assessed, Mr Wong says that he was told by colleagues that each of the 12 assessments, in which the assessed amount was less than the assessed amount, was accepted by P. At para 13 of his WS, Mr Wong exhibited a table that relates each invoice and claimed amount to the amounts actually paid to P. The invoices were shown to total $ 8,841,887.80 and the amounts paid totaled $ 7,481,064.00.

65.  In his SWS, it is Mr Wong’s evidence at para 4 that P’s quotation PE-SB-180819-001 for repair work to the external façade Q3 was, after discussion between Parties, amended, and the amended Q3 was then signed by P (C/28-1). At para 7, it is his evidence that the later 6 quotations Q4-Q9 were neither signed nor accepted by D. Mr Wong says at para 9 that internal procedure required that any additional unit rates or any amendment to agreed unit rates must be approved by Mr Wong and neither Mr Wesley Ching nor Mr Ho Yung Ngai had the authority to agree rates. In his SWS, Mr Wong also dealt with “the Assessment Table” in which it has recorded assessment of work done covering Period 22/9/2018 to 12.11.2019 (DLOA item 5 at C/1059-C/1081). MrWong noticed 2 instances of the unit rates adopted being deviated from the agreed rates: at para 8, one of instance of adopting wrong unit rate for internal scratches and another instance of rates wrong unit rate for external scratches. Mr Wong’s evidence in his SWS was attached by Mr Tang in his SWS.

VII. EXPERTS

66.  Pursuant to paragraph (3) of the Order of Madam Registrar Soong dated 12 March 2024, upon the joint application of P’s and D’s solicitors by way of consent summons, leave was given for Parties to adduce expert evidence on quantum, each one quantity surveyor, on the following issue: “the total value of the completed sub-contract works by P as calculated in accordance with the methodology under the subcontract” with the following directions: (1) that P’s expert shall be Mr Chan Hon Chuen (Dr Chan) and D’s expert shall be Mr Ivan Cheung (Mr Cheung) ; (2) that the experts shall exchange provisional reports; (3) that the experts shall meet on “without prejudice” for Purpose of preparing a joint expert report; (4) that the joint expert report shall state issues which the experts have reached a common opinion and issues which they have failed to reach consensus and the reasons for disagreement.

67.  A Joint Report on Quantum was prepared dated 02/01/ 2025: 5 options were considered in which 4 options were based on quotations submitted (“the Agreed Options”) while the 5^th option (by Dr. Chan) was based on pro-rata rates (the “Disagreed Option”)

68.  The experts agreed that options 1(a), 1(b), 2(a) and 2(b) based on quotations Q1 to Q9 or Q1 to Q3 only would provide the Court with the alternative assessment of the total value of the completed works on a figures-as-figures basis, subject to the Court’s findings as to factual and legal issues.

69.  Mr Cheung and Dr Chan have reached agreement on the valuation of the options 1(a), 1(b), 2(a) and 2(b), however, Dr Chan considers that Pro-rata rates assessment as another means of establishing the total value of the completed works.

70.  Under option 1(a) based on Q1-Q9 (without Q3 item1 discount) would result in an assessed value of the completed works in the value of HK$ 9,671,146.00 (before 8% discount) and $ 9,441,540.48 (after 8% discount).

71.  Under option 1(b) based on Q1 - Q9 (with Q3 item1 discount) would result in an assessed value of the completed works in the value of HK$ 9,655,556.00 (before 8% discount) and $ 9,425,950.48 (after 8% discount).

72.  Under option 2(a) based on Q1-Q3 (without Q3 item1 discount) would result in an assessed value of the completed works in the value of HK$ 7,728,890.00 (before 8% discount) and $ 7,553,466.80 (after 8% discount).

73.  Under option 2(b) based on Q1-Q3 (with Q3 item1 discount) would result in an assessed value of the completed works in the value of HK$ 7,701,930.00 (before 8% discount) and $ 7,526,629.20 (after 8% discount).

74.  Under Disagreed option of pro-rata rates assessment method proposed by Dr. Chan, based on internal glass scratch removal rates and certain assumptions such as the use of gondola would result in an assessed value of the completed works in the value of HK$ 11,170,550.00 (before 8% discount) and $ 10,868,846.00 (after 8% discount).

75.  It is noted that Mr Cheung considers at para 4.3 of the Joint Report that the quotations Q1 and Q2 for internal face and Q3-Q9 for external face of glass panels have already provided Parties with a basis for determining the total value of the completed works as calculated in accordance with the methodology under the Sub-Contract. I agree with the view of Mr Cheung. Q1 to Q9 are quotations made by P, in short, rates P offered, and it is unnecessary for Dr. Chan to concoct another so called Pro-Rata Rate Assessment, which in his assessment would result extra time of 50% over time needed for such works to be carried out on firm ground (see para 5.29 of the Joint Report). Plainly, Pro-Rata Rates does not assist the Court. Dr Chan purports this under Definition of Variations and Practice Notes for Quantity Surveyors published by HKIA. In the first place, the Sub-Contract was for removal of scratches to the internal face of glass panel upon P’s quotations which was amended by D resulting in the Sub-Contract, with a contract sum of HK$1,967,420 based on re-measurement. As for removal of scratches to the external face of glass panels, it was not a variation of the Sub-Contract No. LWS/UBC0331/SC/P-58, but Extra Work outside of the Sub-Contract, separately quoted by Q3-Q9 or separately quoted by Q3 at Hearing Bundle C/28 and accepted by D after Q3 was amended at C/28-1. It is P’s argument that C/28/1 was not communicated to it. This is central to the assessment and resolution of this case. This is not a case of extra work being ordered without any quotation (i.e. rates), which may result in the need to estimate fair rates for the purpose of assessment of the value of work done based on quantum meruit.

76.  It is important for experts to be reminded of their duties of impartiality and due observance of their overriding duties to the Court. (see para 45 of Lam Kit Yee v. Lam Suk Lam DCCJ 3115/2011, citing Principles on expert evidence in Chinachem Charitable Foundation Ltd v Chan Chun Chung paras 483-493, 498 and 500 per Lam J (as he then was). This is a reminder not to be a hired gun by advocating for the party that appointed the expert.

77.  I find against Disagreed Option of using Pro-rata rates assessment method proposed by Dr. Chan. What are left are the Agreed options 1(a), 1(b), 2(a) and 2(b).

VII. DISCUSSION

78.  I have given due consideration to all the documents before me, including the opening and closing submissions of the parties and the oral evidence of fact witnesses given in Court. Even though I am aware of all the arguments, I shall, in the paragraphs below, only deal with matters/issues that are relevant, and material to the outcome of this case.

79.  As it will be apparent from my findings below, it will be unnecessary for me to make conclusive findings with regard to the Payment terms of the Sub-Contract, for if the remedial work to the external face of glass panels is outside of the scope of the Sub-Contract as P pleads (see para 18 above for P’s pleaded case), it may be termed as Extra Work, payment of which would not be governed by the terms of the Sub-Contract.

80.  Further, the agreed list of issues do not require me to make any findings as to terms of payment for Extra Work outside of the Sub-Contract nor whether D had failed, refused nor paid P for the completed works. P in its arguments draw reference to Note No 3 and Note no 9 of Q3 which, in fact, had been crossed out in the Q3 amended version. In fact, from the record of approved payment advices, there was no continuing undue refusal or delay to certify or make monthly payments to P. It is the evidence of Mr Tang at page 109 line P to page 110 line B of the transcript:-

“問：如果你睇27-6，上面第三項，9月13號佢哋出咗第一次payment畀你，係咪？

答：係。

問：跟住去到下面10月24號，出咗第二個payment畀你。

答：係。

問：跟住下面11月19--11月9號，最底嗰個，出咗第三次payment畀你。跟住下一版，去到11月26號，cheque number 4，出咗第四次payment畀你。

答：係。

問：我咁樣講啱唔啱，其實我哋見到由你開工開始喇，9月、10月、11月，其實11月出咗兩次嘞，個payment嗰個進度都唔算差嘅，你同唔同意我講法？

答：係。

問：咁所以至少去到11月尾嘅話呢，其實你哋就住payment方面唔係真係有咩嘢大嘅投訴，你同唔同意我講法？

答：係。”

81.  It will be also unnecessary for me to deal with and make definitive conclusive findings as to the alleged agreement for 15-day payment which is background to D’s Representation as alleged by P, upon which P agreed to make 8% discount to the future invoices from invoice No. 10. In fact, there is no WhatsApp message that records such an agreement. And P’s pleaded case as to D’s Representation does not include 15 day payment. See D’s Representation as pleaded by P at para 21 above. It reads: D’s top management would facilitate Payment process and would settle the outstanding payment to P as soon as possible (“D’s Representation”).

82.  The first issue to determine is whether Q3, the amended version at C/28-1 was agreed. The amended version of Q3 was chopped and signed by MrTam. I notice that Q3 at C/28 was not signed, even though it was chopped with the chop of P. In Court, it was alleged by P that it had sent a version that was chopped and signed for the D’s signature, but P did not, up to this moment, discover the alleged version. It is the Submissions of P’s Counsel at page 11 line G to J of the transcript:-

“MR CHUNG: ... to the defendant. When the quotation was sent to the defendant, I think there’s no dispute that the quotation has been -- had already been signed by the plaintiff.

COURT: The C28 is not signed.

MR CHUNG: Yes, because the -- according to the evidence of Mr Tang, the plaintiff cannot now retrieve the original Q3; they can only retrieve the softcopy of Q3, …”

So there is no evidence of a signed version of Q3 sent to D.

I note that it was D’s practice to review quotations and revise such as to Q1 and Q2, which resulted in the knocking out of the payment terms of Q1 and Q2, to be substituted by the Sub-Contract payment terms for internal work (LWS/UBC0331/SC/CWH-58 at C/3 to C/27). In fact, in a WhatsApp from Mr Ho to Mr Tang dated 3 August 2018, it was written: “Agreement 等老細簽名，今日比你”. This shows that P knew the necessity and process of getting D’s agreement to P’s quotation Q3, it sent to D. In view that D did not sign back Q3 (p’s version) and lack of contrary evidence to Q3 as amended and signed, unless Q3 as amended was invalid, the rates in Q3 as amended should be the agreed rates for the valuation of remedial work to external face of glass panels.

83.  In relation to Q3, it is noticed that by way tender/quotation strategy, P quoted in the following manner:

“1) 欄河玻璃外花(吊)

每面：HK$2,200.00

全花：HK$3,800.00

(包3個150MM內圓花痕, 第4點每點HK$400)

(以1米後觀察Eye level收貨)

2) 室外大玻璃修復(吊)

每面：HK$2,200.00

全花：HK$4,800.00

(包3個150MM內圓花痕, 第4點每點HK$400)

(以1米後觀察Eye level收貨)

3) 室外玻璃(幕牆)大梗玻璃花痕修復(吊)

每面：HK$2,700.00 (1-3)個波

(包3個150MM內圓花痕, 第4點每點HK$500)

每面：HK$6,800.00 (7-15)個波

每面：HK$9,000 (15)個波以上全花

(以1米後觀察Eye level收貨)

4) 室外大梗玻璃崩點修復(吊)

每面：HK$2,700.00

(每件包三點崩粒, 第4點起每點$500)

5) 假如同一件玻璃有花痕及崩點, 修補崩點

每點室外HK$800

每點室內HK$600”

84.  As can be seen, for instance for 1), the rate for remedial work to scratches to the external face of balcony glass (represented by the character 吊) was quoted: (1) based on 3 scratches within a radius of 150MM) at HK$ 2,200.00, (2) for each additional scratch (outside of 3 scratches) at an addition of HK$400 per scratch, subject to a cap of HK$3,800.00 (全花). The quotation comprehensively covered all removal of scratches and dents to the external face of: (1) balcony glass scratches; (2) large glass panels scratches; (3) curtain wall scratches; (4) dents to large glass panel; (5) rates for the removal dents to glass surface with both scratches and dents based an addtion rate for each dent. Hence Q3 covers all the situations envisaged necessary for the pricing of remedial work to the external face of glass panels.

85.  P could have quoted different base rates that cover with different radius, with different number of scratches within each radius, with or without addition for scratches outside the agreed base number, with or without caps. I agree how P structured his quote was a matter of pricing strategy evidence of Mr Tang at page 93 line S to T of the transcript:-

“問：咁當然呢個係你嘅定價策略，啱唔啱？

答：係。”

And how P quoted was different from that of Ebotech at C/1106-C/1107 that was based on the sizes of the glass panels only and in fixed sums.

86.  P argues firstly he had not seen the amended version of Q3 amended at C/28-1, and secondly P priced upon the limited samples scratches to glass (external) shown to him. This is incredible and is not believed.

87.  Any contractor before making a quote would have visited the site and carryout due diligence by examining sufficient number of glass panels to satisfy himself as to the scratches (external) before quoting. At that stage, the project had been completed pending removal of scratches and P could attend site to inspect and find out. There was no issue of access. Further P, by then, had quoted for remedial works to internal side of glass panels in Q1 and Q2 and would have had inspected. There was no issue of the P being prevented from inspecting external scratches. Further, there is no evidence of what the Site Agent had shown to Tang. If D quoted only on the samples shown, it was not specifically stated in Q3.

88.  It is sheer fantasy that P had not been given the amended version of Q3. Firstly, P would not have carried out the works without knowing at what rates he would be paid. Secondly, P would have asked whether the rates he quoted were agreed, and if amended, asked for a copy of the amended version of Q3. Thirdly, throughout, Mr Tang had text messages (WhatsApp messages) to Mr Auyeung Kwok Leung, Mr Ho Yung Ngai, Mr Wesley Ching and Wan Ho Yin starting from 3/8/2018 (C/221-274) and it is not realistic that had P not been given a copy of Q3 signed by D, P would just march on without asking for it by communicating to D’s staff named above. In fact, MrTang agreed at page 107 line S to page 108 line D and line H to I of the transcript that the amendment at C28-1 was agreed:-

“問：冇。好嘞，我哋睇番嗰個嘅報價，C28-1，左上角就住第一個item，佢每面嗰個花痕由2,200鈫，劃咗，之後變做2,090鈫，跟住全花嗰度呢，原本係3,800鈫，而家就變咗3,610鈫，其實呢個係咪就係當時何先生問你畀個折扣喇，你就答佢「好喇，咁我哋畀個折扣」，而呢度其實就係啱啱5個per cent，百分之五嘅折扣，係咪咁樣？

答：呢刻入面佢係有，有提及過嘅。

問：即係你同...

答：Discount我係有提及過嘅，係。

問：有提及過...

答：呢個5個per cent。

問：...5個per cent discount，係咪？

答：係，係，係，係，係，係。

…

問：咁所以呢個5個per cent discount呢，其實你哋公司都同意嘅，只不過你唔知點解佢喺呢度寫上去，你嘅意思係咁樣，係咪？

答：係。”

89.  Further, it is alleged that P had never received the assessments of his invoices that resulted in the Payment Advice (分判工程付款書) No 1 to No. 12 (C/116- C/218). It is P’s case that it had only received the top sheet of Payment advice No 4 and No 5 (C/219 and C/220). As assessment, certification and payment for work done should have been foremost on P’s mind, would P not have asked the site QS that Tang had constant contact as what amounts had been assessed and certified and based on what rates and quantities.

90.  In the circumstances, I find against P’s arguments that it had not received a copy of Q3 as amended, and further against P’s contention that P had never received any assessment of his invoices. I find that Q3 as amended was agreed by the parties.

91.  As for Q3 to Q9, P’s pleaded case is that the quotations were made at the requests of MrHo and MrChing

92.  I find there is no evidence that Q4-Q9 were made at the requests of Mr Ho, site QS and Mr Ching. Q4 to Q9 were made from 21 September 2018 to 9 November 2018. See paragraph 47 above.

93.  In a WhatsApp message dated 21 September 2018 from Mr Tang to Mr Ho under the heading “Quotation of CWHE-SB-180819-001 (Q3), it was written: “因應地盤經理要求修復大廈幕牆外吊船花痕波素不斷增加, 經過本司與貴司商討現更新報價. Please find the quotation from the file and sign back”.

94.  In another WhatsApp dated 6.11.2018 from Mr Tang to Mr Ho, it was written: “因應地盤老總要求復修，大廈特大幕牆 (T3-B&D 單位複式主大梗幕牆) 外吊船花痕 若60波, 經本司與貴司商討,現更新報價, 為方便施工, 請盡早批核.” Attached to this message was Q5 - CWHE-SB-051018-001.pdf (1.7 MB). Clearly, Q5 was sent by MrTang to MrHo unilaterally. It is D’s case Q4 to Q9 were not agreed/ approved. Further, it is also obvious that D could not have requested Q6-Q9 that were all dated 9 November 2018.

95.  It is noticed that Q5 (C/30) was about 室外玻璃(幕牆)玻璃花痕修復(吊): (1) 30波- HK$21,000.00; (2) 31-45波- HK$24,000; (3) 46-60波- HK$27,000.00; (4) 60波以上全花 – HK$31,000.00.

96.  The quotations at Q4 and Q5 are at clearly a higher rate than that agreed rate at Q3 for the same item. At Q3 (amended version), 15波以上全花 was capped at HK$9,000.00.

97.  In the circumstance, as there is no countersigned agreed Q4 to Q9, and it is operable based on Q3 as amended, there was no need nor reason for D to request for Q4 -Q9. Further, upon the evidence of D’s witness MrWong that he had not approved Q4 to Q9. It is the evidence of MrTang at page 99 line U to page 100 line C of the transcript:-

“MR LAI：第四個報價單。

問：有個位置就畀客人簽名嘅，係咪？

答：係。

問：咁呢個報價單係預咗客人簽番嚟先至確認嘅，係咪？

答：係。

問：其實你喺嗰個電郵嗰度亦都有要求佢哋簽番返嚟，啱唔啱？

答：係。”

I find that Q4-Q9 not agreed. And I also find that the unit rates at Q3 (amended version) agreed.

98.  On the matter of the 8% discount, it is the evidence of MrAu Yeung that there was no mention that that a discount would facilitate top management approval of payment certificate or speed up settling of payment at the January Meeting which he had attended. Importantly, the word “facilitate” according to the Concise Oxford dictionary means “make easy or less difficult”. It does not connote any undertaking. I have reviewed WhatsApp messages between Mr Tang and Mr Ho, in which Mr Tang in respect of 上糧單 (C/239) and certification (C/240) and between Mr Tam and Mr Ching about payment (C/258). There was no WhatsApp message that recorded the alleged Representation by D.

99.  By a WhatsApp message to Mr Au Yeung of 17 January 2019 (C/263), Mr Tam offered 8% discount on future invoices in these words: “至於新未上單的, 扣減多8%, 我司期盼大家一起共度難關”.

100.  In the circumstance, P’s offer to reduce 8% was gratuitous, as there had not been agreement that it was for the consideration of facilitation of the payment process. There was no WhatsApp message that recorded the alleged Representation by D. And it is Mr Au Yeung’s evidence, which I accept, that at the 15 January Special Meeting, there was no mention that discount would facilitate D’s top management to approve payment certification or that D would speed up processing and settling of payment.

101.  Even if I am wrong and had there been the alleged D’s Representation, D had not been in breach as payment of IP No. 4 and No. 5 were made a few days after 15 January. In fact, if I find for the D’s representation, the 8% discount would not be liable to be clawed back.

102.  Given the nature of the 8% discount was gratuitous, I find it can be clawed back.

103.  I find for option 2(b) of the Expert’s Joint Report applicable, which would result in an assessed value of the completed works in the sum of HK$7,701,930.00 (before 8% discount).

104.  P has received 12 payments from D in the total sum of HK$7,481,064.00 (item 14 of the Revised Joint List of Undisputed Facts).

105.  Therefore, the remaining amount payable by D to P is therefore HK$220,866.00.

VIII. CONCLUSION

106.  I order that D shall forthwith pay to P the sum of HK$220,866.00.

107.  Save for the above, P’s claims (1) to (5) in the Prayer of P’s Statement of Claim are dismissed.

108.  As D has been successful in defending P’s claim in the amount HK$3 million, I order that cost shall follow the event with P being liable for D’s costs, on party to party basis, to be taxed if not agreed with certificate for one counsel.

109.  It remains for me to thank the parties’ counsel for their useful assistance.