FACE MAGAZINE MARKERTING LTD v. INNOVATIVE GIFT & PREMIUM (HK) LTD

DCCJ 1754/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.1754 OF 2012

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J U D G M E N T

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Introduction

1.  FACE Magazine Marketing Limited (“P”) claims for damages (HK$141,696) arising out of defective quality lunch box sets supplied by Innovative Gift & Premium (HK) Ltd (“D”).  Allegedly the lunch boxes would stain the contents after microwaving.  D denies liability and counterclaims the outstanding balance of HK$156,450 and the costs of quality tests of HK$5,200.

Background

2.  P is the marketing company of FACE Magazine (“the Magazine”) and D is a company carrying on the business of sourcing gift and premium items.

3.  P has previously contracted with D for the supply of tailor-made items, such as umbrellas, headbands, scarves and beach bags, which were all sold in conjunction with the Magazine. 

4.  On 21 December 2011, Sharon Ip of P telephoned Kenny Fung of D and to purchase tailor-made lunch box sets with spoon and fork.  It was P’s corroboration project with a local brand, in which the lunch box sets would be sold in conjunction with an upcoming issue of the Magazine.

5.  Parties dispute the specification of the lunch box mentioned by Sharon during the above telephone conversation.  It is P’s case that Sharon told Kenny the lunch box must be microwavable (可以用微波爐叮飯).  Kenny denied Sharon mentioned microwavable lunch box in the first place but she requested for “PP” lunch box only, i.e. the material of the lunch box be PP plastic.

6.  Various communications followed between P and D regarding the design, unit price, packaging price, design format and production schedule of the lunch box set.

7.  In March 2012, D provided P with a total of four lunch box set samples.  Parties agreed that D would undertake to provide a laboratory test report of the product and to prepare a printed warning notice and/or usage instructions relating to the use of the lunch box.

8.  On 21 March 2012, P informed D that they have approved one of the samples, and P requested D to prepare a written sales confirmation for the purchase of 21,000 sets of the approved lunch box set at the price of HK$14.9 per set for the total sum of HK$312,900.00.

9.  On or around 5 April 2012, P signed the written sales order dated 21 March 2012. P paid half of the contract price of HK$156,450.00 on 17 April 2012 and D then delivered the lunch box sets to P on 19 April 2012. 

10.  On 25 April 2012, the lunch box sets were sold in conjunction with issue 257 of the Magazine at the package price of HK$42.00.

11.  Immediately thereafter, P received complaints from readers regarding the discolouration of the lunch box sets after microwaving resulting in staining the food inside.

12.  As a result, P carried out a recall exercise to recall the lunch box sets and provided a full refund of HK$42.00 to each returned lunch box set.

13.  On 28 May 2012, P commenced the present proceedings.

The Plaintiff’s Case

14.  At the outset, P has made known to D that the lunch box sets were for sale in conjunction with the Magazine and the particular purpose for microwave oven use which constituted express terms and/or conditions of the contract of sales between the parties.

15.  P relies on the Sale of Goods Ordinance (Cap 26) (“the Ordinance”), and there is an implied condition that the lunch box sets supplied are of merchantable quality and are reasonably fit for purpose.

16.  The lunch box sets, which discolour after microwaving and contaminate the food inside, are not of merchantable quality. Since P has relied on D’s skill and judgment, D is in breach of the express term under the contract for sale and/or implied term under the Ordinance of fitness for its particular purpose, i.e. unfit for microwave use.  (P’s counsel has conceded to abandon the contention of breach of implied conditions of sale by description and sale by sample.)

17.  Since P has sold the lunch box sets together with the Magazine, P claims for damages for consequential losses arising from defective lunch box sets supplied by D.

The Defendant’s Case

18.  P did not make known to D that the lunch box sets were for sale in conjunction with the Magazine, nor the particular purpose of microwave oven use.  Thus there is no such express / implied term that the lunch box sets should be fit for the particular purpose of microwave oven use.

19.  D relies on 4 quality test reports by 2 testing agents to establish that the lunch box sets are not defective as they have passed certain tests and no discolouration problem was found.

20.  As P has examined the lunch box sets, and if there are any defects, they ought to have been revealed by P’s examination.  Thus P is estopped and precluded from relying on any defects.

21.  D is not in breach of the contract but P is in breach by failing and refusing to pay D the balance of the contract sum.  Hence, D is entitled to the damages of the counterclaim as pleaded.

22.  If in any event damages are awarded to P, the award should be capped by the “return of the deposit” agreed orally between the parties.

Issues

23.  According to the pleaded case of each party, the main issues of the present case are summarised as follows:

(i)   whether the subject lunch box sets are microwavable;

(ii)   whether P had made known to D the particular purpose of microwave oven use when placing the order of the lunch box sets and thus whether the fitness for such particular purpose be an express / implied condition of the contract;

(iii)   any effects of the acceptance of the goods by P;

(iv)   which party is in breach of the contract;

(v)   any oral agreement as to limitation of D’s liability; &

(vi)   quantum of the claim / counterclaim.

The Quality of the Goods

24.  Regarding the alleged staining problem of the lunch box sets after microwaving, P sought to adduce expert evidence by the Summons taken out on 14 November 2012 and eventually upon parties’ Consent Summons filed on 22 November 2012, Registrar Lui on 23 November 2012 granted leave to P to call Dr Lam Chi Chung to give expert evidence and to compile an expert report.  This is the only expert direction and Dr. Lam is thus the only expert witness in this case.

25.  Apparently D has elected not to adduce any expert evidence.  However, D seeks to rely on 4 test reports conducted by 2 different testing agents to establish that the quality of the lunch boxes is up to certain standard and stain free.

26.  Those test reports adduced by D are not expert evidence.  The makers of those reports are not called to give evidence in court to adopt the reports and as a result there is no evidence to explain the purpose, testing criteria, methodology, and the tests results.  Therefore D’s test reports are regarded as hearsay evidence with no weight attached and hardly could they be used to challenge or contradict the expert evidence of Dr Lam. 

27.  Besides, there are 2 other test reports prepared by another testing agent known as “SGS” on the samples of the goods dated 10 April 2012 and the second one dated 30 April 2012 requested by P after receiving complaints from the end-users.  P concedes that those SGS test reports are not relied on but only relies on the expert evidence from Dr Lam.  The makers of the reports are not called to give evidence in court either and by the same token I attach no weight on those SGS reports.

28.  Mr Cheung for D in his opening submissions suggested that the lunch box would normally not discolour if used properly but the discolouration may happen after microwaving at extreme conditions such as at temperature over 120°C or when microwaving with excessively oily food.  Mr Cheung sought to raise additional issues such as whether it is a term of the contract that lunch box should be fit for the purpose up to 120°C only and if discolouration happens at temperature exceeding 120°C, D should not be liable.

29.  However, the above issues have never been pleaded by D.  Mr Cheung then applied for leave to amend the Amended Defence and Counterclaim which I refused right away as such late application for amendment was simply unjustifiable.

30.  Dr Lam confirmed all three lunch boxes samples taken randomly from the bulk of the goods did have staining problem which he stated in his expert report that “blue colour migrated from [the lunch box] to [the food] after microwave oven cooking for 5 minutes by a high power mode.” 

31.  Dr Lam recorded the temperature of the fried rice in the lunch box after microwaving at 98.8°C.   Mr Cheung challenged Dr Lam that he should take the temperature at the contact point of the food and the bottom of the lunch box instead of the centre of the food.  Dr Lam confirmed his method was the universally accepted practice. 

32.  Mr Cheung also attempted to confirm from Dr Lam his theory of “no discolouration below 120°C”.  However, Dr Lam dismissed the temperature inside the microwave oven was as high as 120°C but maintained that the temperature in the lunch box while microwaving would generally not exceed 100°C no matter how oily the food was. Further, the material of the lunch box – “PP plastic” would deform if the temperature exceeds 120°C.  Since the lunch box did not deform during the test, Dr Lam confirmed the temperature has not reached 120°C. 

33.  Mr Cheung in his closing submission still could not relinquish his challenge to Dr Lam’s expert evidence by criticising Dr Lam’s test “fell short of the professional standard one would have expected” and is “of limited relevance, if any” which the court should attach “little weight”. No doubt such accusation is serious, but Mr Cheung’s last attack on Dr Lam was indeed made without any evidential basis, not to mention the absence of any opposing expert evidence.  I find that such criticism is totally unfounded and unfair.

34.  After considering the expert evidence of Dr Lam, I accept his evidence with full weight attached.  I find that the tested lunch boxes did stain the food inside after microwaving under the conditions of Dr Lam’s test which are the normal microwaving conditions.  Therefore, I find that the lunch boxes do not fit for the purpose of microwave oven use.

Any Particular Purposes of the Goods Made Known to the Defendant

35.  Even I find that the staining problem does exist, the next major factual dispute to be resolved is whether Sharon of P did tell Kenny of D the lunch box must be microwavable at their initial contact.  Despite P’s emphasis of the microwavable use of the lunch box, it is undeniable that the parties’ email correspondence and the Sales Order signed on 5 April 2012 do not expressly mention the lunch box should be microwavable.  This is also Mr Cheung’s main attack on Sharon during the cross-examination.

36.  When cross-examined of the lack of written description of “microwavable” lunch box, Sharon referred to the accompanying instructions note inside each lunch box set which did mention the instructions for microwaving.  It is common ground that the note was prepared by Kenny.  It is the P’s case that the inclusion of such instructions for microwaving is a result of the agreed microwavable purpose of the lunch box.

37.  Kenny denied the above purpose having been made known to him and his note describing the microwaving procedures was just coincident, as he copied the contents from the internet after searching for lunch box usage instructions.

38.  Sharon also attributed to Kenny’s suggestion of the material PP plastic which Kenny assured her that such material would be fit for microwave oven.  As the written sales order has included the material description as PP plastic, it was her understanding that it meant the lunch box should be microwavable.

39.  On the day before trial, P sought to adduce an audio recording of the telephone conversation of Sharon and Kenny on 25 April 2012, which consented by D eventually.  The telephone conversation took place after receiving complaints of the staining problem of the lunch box after microwaving.  Sharon and Kenny were discussing the follow up of the aftermath on the phone.  

40.  Sharon repeated many times during the conversation that she had told Kenny the lunch boxes had to be microwavable on “day one” but Kenny failed to protest at all that Sharon did not say so.  P submits that the Kenny’s failure to protest is an acquiescence of P’s assertion of what Sharon said at the initial contact.  Kenny on the other hand explained that he was so troubled by the incident and worried too much on the likely serious consequences.  He claimed he was then on the verge of nervous breakdown and thus failed to respond sensibly to the Sharon’s allegation.

41.  To begin with, I deal with Kenny’s oral evidence that Sharon in fact specifically asked for “PP” lunch box in the first place.  Kenny also added that initially he did not know what PP plastic was but later he came to know that PP plastic was a common material for manufacture of microwavable products. 

42.  All along D has maintained that the goods are free from defects of staining and if the lunch boxes do stain it was due to the improper use only.  By making such assertions, D has in effect put up a positive case of the goods are indeed microwavable.

43.  On the other hand, Kenny has adduced his supplemental witness statement which provides the market price of ordinary non-microwavable lunch box at around $15 each. 

44.  If D was not asked to supply microwavable lunch boxes in the first place, it would be quite unlikely that D would on his own initiative arrange for the manufacture of microwavable goods which are supposedly more expensive than non-microwavable ones.

45.  It is common ground that Kenny’s allegation of Sharon’s request for PP lunch boxes at the initial contact only came in when he was in the witness box and such assertion has never been mentioned in his witness statement, or pleaded by D.  If the alleged PP plastic specification is not a recent fabrication, it is inconceivable that D would have missed out this important issue in the pleadings and Kenny’s witness statement. 

46.  Besides, it is equally inconceivable that it is just coincident for Kenny to prepare a lunch box instruction for microwave oven use in the absence of any specific order of microwavable lunch box by P. 

47.  In light of the above and on balance of probabilities, I find that Kenny has tailor-made his evidence so as to rationalize the irony of the defence case and thus he is not an honest and reliable witness.  I reject his version of his conversation with Sharon when making the deal.

48.  I prefer Sharon’s evidence and find that P has made known to D that the lunch boxes must be microwavable but without mentioning the material of PP plastic at the initial contact.  I also accept that it is Kenny who told Sharon that the appropriate material for microwavable purpose should be PP plastic and P has relied on D’s skill or judgment to adopt D’s suggested material.

Breach of Contract

49.  Section 16(3) of the Ordinance reads as follows:

“(3) Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment.”

50.  In light of the above finding in paragraph 48, I find that the above section 16(3) applies in the present case and there is an implied condition that the lunch boxes sold by D to P should be fit for the purpose of microwave oven use which has been made known to D.

51.  In view of the above, I also find that the lunch boxes supplied by D do not fit for the particular purpose of microwave oven use due to the staining problem of the lunch boxes after microwaving.  Therefore, D is in breach of such implied condition.

Acceptance of Goods

52.  According to paragraph 20 of the Amended Defence and Counterclaim, it is D’s case that P is estopped and precluded from relying on any defects, as P has examined the lunch box sets, and if there are any defects, they ought to have been revealed by P’s examination. 

53.  It appears that D has misconceived the legal effect of acceptance of goods.  It is trite law that a buyer who accepts the goods loses the right to reject them only but he is not estopped from relying on the defects to claim damages.  Since P has fairly abandoned the remedies of rejection of the goods and the return of the deposit, it is not necessary to deal with this issue further.

Any Oral Agreement as to Limitation of the Defendant’s Liability

54.  Kenny made the first draft of the limitation of liability clause in the Sales Order dated 21 March 2012 (or referred as “Sales Order A” in the Amended Defence and Counterclaim) under the “Remarks” section stipulating that the maximum damages payable by D was the return of the deposit paid: “供貨方最高賠償額為退回訂金”.

55.  Kenny signed the Sales Order and sent it to Sharon by email on 22 March 2012. On the same day, Sharon replied to Kenny by email and confirmed the following 5 matters: (i) the item of the sales order, (ii) quantity, (iii) buffer, (iv) price and (v) delivery date but she did not confirm the limitation of liability clause by this email and expressly deferred signing the sales order until all things are confirmed:

“Sales order confirmation will be signed after all items had confirmed. (Included the spoon & fork, Warning notice and packing)”

56.  From 2-5 April 2012, parties were negotiating the outstanding matters such as limitation of liability and liquidated damages or the so-called “penalty clause” as follows. 

57.  On 2 April 2012, Sharon sent her revised “Sales Order A” to Kenny.  Sharon has deleted the limitation of liability clause (“供貨方最高賠償額為退回訂金”) and revised the three “penalty clauses”.

58.  On 4 April 2012, Kenny emailed Sharon, and said that the penalty was too harsh, and preferred “the maximum compensation” limited to the refund for deposit only.

59.  Sharon then replied Kenny by email on the next day, i.e. 5 April 2012 at 10:32 hours, in which Sharon refused to cancel the penalty clauses, and insisted on delivery by 23 April. 

60.  Later, at 14:37 hours on 5 April, Kenny replied Sharon by email attached with a revised sales order in which Kenny put back a limitation of liability clause: “maximum penalty is just refund of deposit to FACE only” under the “Delivery Terms and Conditions” with proposed liquidated damages clauses for late delivery.

61.  At 15:29 hours on the same day, Sharon replied by email in which she again deleted the limitation of liability clause and counter-proposed the liquidated damages for late delivery.

62.  At 17:44 hours on the same day, Kenny emailed the final version of the Sales Order on which parties signed later that day and it is referred as “Sales Order B” in the Amended Defence and Counterclaim.  This final version basically adopted Sharon’s proposal in her preceding email at 15:29 hours, ie without the limitation of liability clause.  Regarding return of deposit by D, clause (III) under the “Delivery Terms & Conditions”  just states:

“Later than 23-Apr-2012 (Mon) 11am: FACE may reject the goods and IGP need to refund the deposit.”

63.  According to Kenny, on 5 April 2012 he and Sharon had heated argument over the telephone regarding the liquidated damages for late delivery and the limitation of liability clause.  Kenny even threatened to stop the production if D would be liable for damages exceeding the amount of the deposit.  Sharon finally conceded in the same telephone conversation that D’s liability be limited to the return of the deposit, in return for carrying on the production by D. Later that day, the Sales Order B was finalised and Kenny delivered to P by hand the Sales Order B signed by him with 4 sets of sample.

64.  Therefore, it is D’s case that parties have reached an oral agreement during a telephone conversation on 5 April 2012 to adopt the limitation of liability clause as appeared on Sales Order A.  However, the finalised Sales Order B, signed by both parties, did not incorporate such clause and hence it has failed to put (if any) oral agreement into writing. 

65.  Having considered the above, I find that Kenny’s evidence is unbelievable.  If parties have reached such oral agreement to limit D’s liability, it is inherently improbable that Kenny would fail to incorporate it in the finalised Sales Order B.  I therefore reject his evidence that parties have reached any agreement to limit D’s liability.

66.  Besides, D pleads the following in paragraph 10 of the Amended Defence and Counterclaim:

“The Sales Order B contained all the terms and/or conditions of the contract agreed between the Plaintiff and the Defendant, …”

67.  Hence, Mr Ho for P rightly pointed out that the parol evidence rule would prevent D from presenting extrinsic evidence to contradict or add to the written agreement Sales Order B, which D claims to contain all the terms and/or conditions of the contract.

68.  Therefore, D’s assertion of any oral agreement to limit its liability is doomed to fail in any event.

QUANTUM

Uncontested Expenses of the Recall Exercise

69.  Since I have found liability against D, I now assess the damages of P’s claim.  First of all, I will deal with the less controversial items.  Save and except for the labour costs of P’s own staff and the costs of the refund which are disputed by D, all other expenses of the recall exercise, such as advertising fees, security guards, transportation, rent, bank charges and miscellaneous expenses, are agreed by D subject to the finding of liability.

70.  Mr Cheung for D submitted that the total of the above uncontested expenses is $18,346, but Mr Ho for P submitted a sum of $18,000 only, less than Mr Cheung’s sum.  The benefit of the discrepancy should be given to D and hence I award $18,000 to P for the costs of the recall exercise other than the refund and P’s own staff costs.

Refund to Readers

71.  It is common ground that P recalled a total of 6,058 lunch box sets and refunded the full price of $42, ie the package price of the magazine plus the lunch box, for each returned lunch box.  P claims 6,058 × $42 = $254,436 under this head.

72.  Mr Cheung for D submitted that the damages should be measured according to s.55(2) & (3) of the Ordinance. They read as follows:

“(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

 (3) In the case of breach of warranty of quality, such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.”

73.  Mr Ho for P cited the following passages from McGregor on Damages which discussed the measure of damages under sections 53 and 54 of the Sale of Goods Act 1979, the corresponding provisions of our sections 55 and 56 of the Ordinance.

74.  The measure of damages discussed at §20-058:

“Section 53(2) is framed in terms of the first rule in Hadley v Baxendale, excluding the element of the defendant’s knowledge of special circumstances; section 53(3) states the normal measure of damages under the first rule in the case of breach of warranty of quality, but it would appear to be equally the normal measure for other breaches of warranty, such as those in relation to description and fitness; section 54 brings in the second rule in Hadley v Baxendale, and in appropriate cases will displace section 53(2) and (3) and allow increased damages”

75.  The consequential losses at §20-068 reads as follows:

“The consequential losses over and above the normal measure of damages are likely to be more numerous in cases of breach of warranty than in cases of non-delivery and delayed delivery. The reason is this. Where there is non-delivery or delayed delivery the breach is in the nature of things immediately obvious to the buyer, and consequential losses only arise where there is no market available to him in which he can buy other goods against his use or resale. Where there is breach of warranty the breach frequently neither is nor ought to have been obvious to the buyer on delivery of the goods, and consequential losses may arise not only because of the absence of an available market but because, before the breach is discovered, some further damage occurs through use of the goods either by the buyer or by other parties, including the buyer’s sub-buyers.” (emphasis added)

76.  Since it is common ground that the net price of the Magazine is $10 per copy, Mr Cheung contends that the price of the Magazine should be deducted from the package price.  Mr Cheung also suggests the reasonable selling price of the lunch box should be around $20 having taken into account of the price marked up by 20%.  According to the evidence of Kenny, the market price of a non-microwavable lunch box is about $15.  Thus, the damages should be $(20 −15) × 6,058 = $30,290.

77.  The above submission and in particular the 20% marked up price is not D’s pleaded case nor supported by any evidence.  Besides, if the damages are to be measured according to s.55 of the Ordinance, the loss of difference in value of the goods should not be restricted to those recalled (6,058 pieces), but the quantity of the entire contract, i.e. 21,000 pieces should be counted.

78.  Further, it is not in dispute that the copyright of the design of the lunch box set belongs to a third party, and that the lunch box set can only be sold in conjunction with the specific issue of the Magazine.   Hence, the lunch box sets cannot be sold elsewhere.  I accept the evidence of Jennifer Lam that there is indeed no market for the subject lunch box sets and they are of no resale value.  Therefore, D’s evidence of about $15 market price for a non-microwavable lunch box is irrelevant.

79.  In fact, Mr Cheung for D accepts the damages for some of the expenses of the recall exercise subject to the issue of liability as discussed in paragraphs 69–70 above which can be regarded as an implicit approval of the recall exercise.  I fail to see the D’s basis for contesting the damages for full refund to the readers who returned 6,058 lunch boxes.  Especially, D has never pleaded anything to contest the full refund of the recall exercise, save and except for a general denial of liability for any loss or damage suffered by P in paragraph 23 of the Amended Defence and Counterclaim. 

80.  Further, there is no evidence adduced by D to challenge the recall exercise in particular the refund.   Apart from cross-examining Jennifer Lam on the breakdown of the package price of $42, Mr Cheung has even failed to put to the P’s witnesses that P should not be entitled to damages for the full refund but just part of it as suggested by Mr Cheung.

81.  According to Jennifer Lam’s evidence, full refund of $42 was offered to readers in order to “compensate the inconvenience caused to the readers”.  D did not adduce any evidence to protest on this point nor Mr Cheung challenged Jennifer during cross-examination, thus it would not be open for D to challenge it at the closing submission.

82.  In light of the above passages from McGregor on Damages and the evidence, I find that the nature of the refund to the readers is no different from the claims of the operating costs of the recall exercise, as both are “consequential losses” under the ambit of s.56 of the Ordinance.

83.  In the circumstances, P is therefore entitled to damages of $254,436 incurred for the refund of 6,058 lunch box sets.

Labour Costs of the Plaintiff’s Own Staff

84.  P claims $25,800 for the amount of labour costs of the P’s own staff deployed to work for the recall exercise.  Jennifer Lam under cross-examination confirmed that the labour costs only involved P’s own staff without the employment of extra temporary staff and she further admitted that there was no breakdown of the sum of labour costs.

85.  However, the cross-examination of Jennifer Lam can at most cast doubt on P’s case in this regard.  In the absence of any evidence to the contrary and Mr Cheung’s failure to put to Jennifer Lam that P is not entitled to such labour costs at all, I cannot see any reasons not to accept the Miss Lam’s evidence on balance of probability.  Hence, I allow such sum in full.

Counterclaim

86.  As Mr Ho for P has put the case fairly before the Court by making the concession in his opening submission that the damages payable to P ought to be set off against the balance of the contract of the sale of $156,540, this outstanding balance representing the major part of the counterclaim is no longer a live issue and it is not necessary to deal with it further.  Mr Ho’s effort is much appreciated.

87.  In light of the above decision on liability, the remaining counterclaim of $5,200 for the costs of D’s quality tests is dismissed.

Conclusion & Order

88.  For the above reasons, the award of damages to the plaintiff is summarised as follows:

1.     Costs of refund (6058 sets at $42/set)	$254,436.00
2.     Labour costs of the recall exercise	$25,800.00
3.     Advertising & other costs of the recall exercise	$18,000.00
4.     Set off	($156,540.00)
Total:	$141,696.00

89.  Therefore, I order that judgment be entered in favour of the plaintiff against the defendant in the sum of $141,696.00 with interest at half judgment rate from the date of the writ to the date of judgment and post-judgment interest at judgment rate until payment.

90.  Since the defendant is still liable to pay the plaintiff damages after set-off, I make an order nisi that the costs of this action be to the plaintiff, to be taxed if not agreed, with certificate for counsel.