LO HING KWONG (1995) & CO. LTD. v. ACTION DESIGN CO. LTD.

DCCJ4336/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4336 OF 2002

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JUDGMENT

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1.This is an Order 14 summons taken out by the Plaintiff against the Defendant. The Plaintiff claims against the Defendant for 1) $109,904.00 being the balance of the contract sum for renovation work in respect of the tennis courts and the multi-purpose court in the Hong Kong University Sports Centre. 2) $12,400.00 being the costs for the addition work for leveling of the ground of the multi-purpose court. 3) $17,800 being the costs for the additional work for leveling the ground of the tennis court. 4) $18,224 being the balance of the 2nd contract sum for additional work for artificial turf at the Cricket Practice Court in the Hong Kong University Sports Centre.

2.The Defendant in the affirmation of Tang Hing Wai put forward the following points :-

1) Plaintiff delayed in completing the 1st contract.

2) The 1st contract included the leveling of grounds and that the Defendant had not agreed to pay for the extra works.

3) The 2nd contract related to the same site under the same contract.

3.Under the 1st contract the Plaintiff submitted the quotation on the 16th August 2001 which included the following terms :-

1) Supply of material was one month after receipt of confirmation order.

2) Work was scheduled to be completed on or before end of December 2001.

3) Defendant should pay 20% deposit upon order confirmation and 40% of the contract price within 2 weeks of delivery of materials.

4.On 21st August 2001 the Defendant by letter agreed to accept the offer subject to :-

1. "The whole of the works should follow our master working programme. Liquidated damages may be imposed at the rate of HK$7,500.00 per day of delay."

2. Plaintiff was required to submit the relevant construction drawings, shop drawings and material samples to the university for approval prior to ordering and installation.

5.The Defendant also exhibited a letter from Hong Kong University accepting the tender submitted by the Defendant on 6th June 2001. In the letter it was stated that in respect of the tennis court and the multi-purpose court the commencement date was 16th July 2001 and completion date was 16th September 2001.

6.The Invoice by the Plaintiff for the 1st deposit of 20% issued on the 24th August 2001 was paid by the Defendant on 24th September 2001. This is well after the schedule completion date of 16th September 2001 stipulated in the Hong Kong University's letter to the Defendant. Further on the 2nd November 2001 by letter to the Plaintiff, the Defendant confirmed that the tennis court was ready for "NOVA" tennis coating.

7.It lies ill in the mouth of the Defendant to say that the Plaintiff had delayed because 1) the initial deposit paid by the Defendant was on 24th September whereas according to the Hong Kong University's letter completion date was 16th September 2001. 2) Besides there was never any complaint by the Defendant nor from the University. The project had been completed without imposing any liquidated damage of $7,500.00 by the University. I can only say that to raise this sort of allegation for the 1st time in opposition to this Order 14 summons is illogical and defied all common sense.

8.As to the leveling of the courts, the Plaintiff's quotation was only for the application of coating in the existing asphalt surface.

9.By letter dated 19th October 2001 from the Plaintiff to Defendant, the Defendant agreed to pay extra costs to patch up the uneven level and parking area. The Plaintiff quoted $12,400.00 and the Defendant acknowledged the work had been completed on 22nd October 2001. The Plaintiff sent the invoice for that amount to Defendant on the same date.

10.On 17th November 2001 by letter the Plaintiff informed the Defendant that their Mr. Otto Mak appointed them to look after de-boarding area of the court as the condition of the concrete slabs were unacceptable for receiving artificial turf. The Plaintiff in that letter also stated that they had submitted their quotation for the extra work on 12th November 2001. On 19th November 2001 the Defendant acknowledged the completion of work. On 7th December 2001 the Plaintiff send the invoice to the Defendant.

11. There was no reply from the Defendant stating that those extra works were included in the contract. Despite the Plaintiff's reminders in respect of those invoices, the Defendant had not disputed those demands. It was the 1st time that the Defendant through Tang Hing Wai denied that there were agreements in respect of those extra works. This is a bare allegation without any evidence to support such allegation.

12. As to the 2nd contract, the Defendant said it was closely connected with the works carried out under the 1st contract and that the work was also in the same site.

13. The quotation for the 2nd contract was in respect of additional works of artificial turf at cricket practice court. It was unrelated to the 1st contract though within the same site. It was sent by the Plaintiff to the Defendant on 27th August 2001 almost 10 days after the 1st quotation. By letter dated 29th September 2001 the Plaintiff thanked the Defendant for their confirmation dated the 27th September 2001.

14. It is clear and unambiguous that this is a different contract. Further the Defendant had paid 20% deposit in respect of this 2nd contract.

15. The Plaintiff has therefore contradicted the bare allegations of the Defendant by documents. Those bare allegations are unconvincing, unbelievable and frivolous. They have not condescended upon particulars nor had they sufficient facts to convince me that there are triable issues.

16. In the circumstances there be judgment for the Plaintiff in the summons claimed together with interests from 1st December 2001 at 1% + prime rate until judgment and thereafter at judgment rate until payment in full. Costs to the Plaintiff.