NGUYEN THI KIM v. BRISFULL LTD

DCCJ 8504/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 8504 OF 2001

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(Consolidated pursuant to the Order made by Mr. Acting Registrar S. Kwang
in Chambers on 10 October 2001)

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JUDGMENT

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PLAINTIFF'S CLAIM

1. The Plaintiff is the sub-contractor of the Defendant. She claims against the Defendant for :-

1) $80,000 being the balance the Defendant owed her in respect of the contract for cleaning aluminum frames in Shek Yam Estate.

2) $223,165.05 being the balance the Defendant owed her in respect of the contract for removing plastic wrapping papers and applying paste at Shek Yam Estate.

3) $104,180 being the balance the Defendant owed her in respect of "water testing" (in fact it was testing leakage of windows) at Site 62 Junk Bay.

4) $12,000 for additional services rendered for re-testing water leakage of windows.

DEFENCE

2. The Defendant admits the first two claims but disputes the third and forth items.

3. The Defence in respect of the 3rd or 4th item is that the Plaintiff had agreed with the Defendant to take up water testing of 8 blocks at the construction site at Junk Bay at $1,100 per floor. The Plaintiff promised to provide 2 workers to work at each block and the work commenced on 11/9/00.

4. However on 11/9/00 instead of providing 16 workers only 12 workers attended the site. The Plaintiff also did not provide sufficient workers to work at the site on the subsequent 2 days i.e. 12th and 13th September. There were complaints about insufficient workers, the quality of work was not good and the workers were late at work.

5. The Plaintiff informed the Defendant that she could not provide sufficient workers and asked the Defendant to take back 4 blocks to which the Defendant agreed subject to the Defendant deducting costs incurred for hiring additional workers to perform the work. As a result the costs incurred by the Defendant far exceeded the contract price. The Defendant therefore counter-claimed the amount spent on additional work and set off against the 2 sums the Defendant owed the Plaintiff under the first two items of the Plaintiff's claim.

6. The Defendant also claimed that the re-testing was part and parcel of the water-testing contract.

THE ISSUES

1) Whether the Defendant agreed to take back the 4 blocks i.e. the 4th, 5th, 6th and 7th blocks on 13/9/00 and thereby discharged the Plaintiff's obligation in respect of those 4 blocks.

2) Whether re-testing was part and parcel of the water-testing agreement.

3) Whether the Plaintiff had completed her work in respect of the 1st, 2nd, 3rd and 8th blocks.

4) Whether the Plaintiff was in breach for stop working on 25/11/00.

5) Damages.

THE AGREEMENT BETWEEN THE PLAINTIFF AND DEFENDANT ON 13/9/00

7. According to the Plaintiff she started work on 11/9/00. On 12/9/00 at 5 p.m. after work a Mr. Tsang from Defendant told her to work only at the 1st, 2nd, 3rd and 8th blocks and the Defendant would take back the other 4 blocks. Tsang further told the Plaintiff to hire workers who could understand and speak Cantonese.

8. On 13/9/00 at 5 p.m. she went to the Defendant's office and asked why they had to take back 4 blocks. She was told that there was no need to ask questions about those 4 blocks. She said she had worked on the other 4 blocks. She was told she would be paid for the work that was done. She was also told that the work involved working at a height, it was dangerous, good communication was needed, as she hired Vietnamese, there was a communication problem.

9. The Defendant's case is that they had to take back the 4 blocks because the Plaintiff did not provide sufficient works on the 11th, 12th and 13th of September and that the workers were always late and that the quality of work was not good.

10. Mr. Wong Wai Keung the site supervisor said that on 11/9/00 he and Cheung Po Sang the project coordinator waited until 9:15 a.m. for the Plaintiff and her workers, only 12 turned up so they worked on only 6 blocks. 12th and 13th September again there were insufficient workers and site foreman of Shui On complained to him of insufficient workers, poor quality of work and late in reporting for duty.

11. On 14/9/00 he was told the 4th, 5th, 6th and 7th blocks were taken back by Defendant because Plaintiff could not provide sufficient workers.

12. The Plaintiff thereafter continued to provide insufficient workers and the Defendant was forced to engage more replacement workers in blocks 1, 2, 3 and 8.

13. Mr. Tsang Kwong Fai the project manager said that on 9/9/00 the Plaintiff went to his office to discuss the work in respect of water testing with him and Mr. Cheung Po Sang. He and Cheung expressly told her that the work had to comply with the standard and the procedure of the Hong Kong Housing Authority. He showed and gave the Plaintiff a copy of the extract of the testing procedure issued by the Housing Authority.

14. On 10/9/00 he prepared a written agreement and asked the Plaintiff to go to his office to sign on the agreement but she did not turn up.

15. On 11/9/00 he was informed only 12 workers turned up. On 12/9/00 he was told by Cheung that there was not enough workers turned up.

16. On 13/9/00 he was told by Wong that the foreman of Shui On complained about insufficient workers and workers were late in reporting for duty and that the quality of work was poor.

17. He telephoned the Plaintiff and asked her to go to his office to discuss the situation. The Plaintiff replied that she could not find sufficient workers and requested the Defendant to take back 4 blocks. He therefore had an urgent meeting with his colleagues and the Defendant acceded to the Plaintiff's request. He relayed the decision to the Plaintiff and reminded her that under the water testing agreement the Defendant could claim against the Plaintiff for loss and damage.

18. Between 16 September 2000 to 16 October 2000 there was no improvement and he continued to receive complaints from Wong. The situation remained unchanged. He was forced to engage more replacement workers to work in blocks 1, 2, 3 and 8 and informed the Plaintiff that the Defendant could claim for the extra costs.

19. Cheung Po Sang the project coordinator of the Defendant said that on 9/9/00 the Plaintiff went to the Defendant's office where she was told by Tsang and himself about the nature of work and the necessity to comply with the Housing Authority's standard and procedure.

20. On 11/9/00 he and Wong waited for the Plaintiff who turned up at 9:15 a.m. There were only 12 workers.

21. On 12/9/00 he was informed by Wong that there was insufficient workers. He telephoned the Plaintiff immediately.

22. On 13/9/00 he received a call from Wong concerning the complaint by Shui On about insufficient workers and poor quality of work. Again he immediately telephoned the Plaintiff.

23. On 13/9/00 after a meeting in the company he telephoned the Plaintiff to inform her of their decision to take back the 4 blocks and reminded her the Defendant would claim for all loss and damage.

24. Thereafter he continued to receive complaints and the Defendant was forced to engage more replacement workers to work in blocks 1, 2, 3 and 8.

25. The evidence from the Defendant is not too convincing. Apart from the 1st day when there were 4 workers short from the Plaintiff, there was no record as to how many workers the Plaintiff provided for the subsequent days. The 3 witnesses did not say how many turned up on the next two days. Mr. Wong the supervisor said they had security guards to register the workers from the Plaintiff their work permit and time of arrival yet there was no record produced to show how many of the Plaintiff's workers turned up and their time of arrival.

26. All the three witnesses said that there were insufficient workers. These are bare allegations not substantiated by evidence.

27. Cheung said that when he received complaints about insufficient workers and their quality of work he immediately telephoned the Plaintiff. This could not be true. I accept the Plaintiff's explanation that she did not carry her mobile phone at work. She had to work on the scaffolding it would be extremely dangerous for her to hold the hose and talk on the phone at a height.

28. Although Mr. Tsang said he showed and explained to the Plaintiff a copy of the extra of testing procedure and further elaborated at paragraph 7 of his witness statement. What he said he explained was not the testing procedure. The work involved one worker holding a hose and the other holding a water pressure meter and tap and splash water at the distance and position indicated by the personnel from the Housing Authority and supervisors. No special technique was required. No doubt verbal instructions had to be given as to how to carry out the job when they first started the job and communication might be required while they were performing the job. Not all Vietnamese can understand instructions at once. There might have been some communication problem at the start.

29. On 16/10/00 Wong certified that the Plaintiff had completed test on 98 floors out of 160 floors. This means the Plaintiff had completed a substantial amount leaving 62 floors yet to be tested. It was a good indication that the Plaintiff had steady progress and had supplied sufficient workers. Further it was the Defendant's evidence that they only sent workers to work on the 1-3 and 8th blocks since 20/11/00. Had the Plaintiff provided insufficient workers since the work started the Defendant would have send extra workers to work in those blocks much earlier than 20/11/00. This again showed that the Defence witnesses had not been frank. On balance I do not find that the Defendant had to take back the 4 blocks because the Plaintiff did not supply sufficient workers, or because of the poor quality of work. It is more probable as the Plaintiff said that Mr. Tsang suggested there was communication problem at the start.

30. As to whether the Defendant had told the Plaintiff that she had to be responsible for loss and damage incurred, Tsang at paragraph 10 of his witness statement said that on 10/9/00 he prepared a written contract and asked the Plaintiff to go to his office to sign but the Plaintiff did not turn up. Then after the urgent meeting to take back the 4 blocks on 13/9/00 he at paragraph 16 of his statement said that he relayed the decision to the Plaintiff and further reminded the Plaintiff that under the agreement the Defendant could claim against the Plaintiff for all loss and damage incurred. This could not be true because Tsang agreed that the written agreement was not shown nor explained to the Plaintiff.

31. Cheung said that during the meeting Tsang was doing most of the talking and he might not know everything but Tsang did talk the Plaintiff about the terms of the agreement that if she could not find sufficient workers the company would hire other people to complete her work and the Plaintiff would be responsible. This again is untrue because Tsang agreed that the terms of the agreement were not explained to the Plaintiff.

32. I also doubt the truth in Cheung's statement paragraphs 13 and 14 in view of the fact that the agreement was not explained to the Plaintiff. There was no evidence that Cheung knew of the written agreement, so it was not possible that he could have told the Plaintiff about it even before the meeting. If Tsang had told the Plaintiff about their decision and reminded the Plaintiff of the terms it would not be necessary for him to tell the Plaintiff again.

33. Even according to the written agreement Clause 5 the Defendant had to give written notice to demand improvement and if after 48 hours there was still no improvement the Defendant could take back and terminate the job without further notice. Clause 5 had not been complied with.

34. From the evidence I find that it was not the Plaintiff who asked for the Defendant to take back the 4 blocks. On the contrary, it was the Defendant who took back the 4 blocks from the Defendant. The Defendant being a rather uneducated and unsophisticated person had no alternative but to accept. The Plaintiff is therefore not liable to the Defendant for whatever expenses incurred by the Defendant in respect of works in blocks 4 to 7.

Re-Testing

35. In the oral testimony of the Plaintiff she said that there was no agreement about re-testing. Mr. Ng Man Lung, witness for the Plaintiff, in the statement filed in the Small Claims Tribunal he did not mentioned anything about re-testing. In the Plaintiff's statement to the Small Claims Tribunal she claimed that the Defendant agreed to give an extra $200 per floor only because the job required working at a height and difficult to perform.

36. I am of the view that re-testing is part and parcel of the water-testing work. The Plaintiff's claim under this head cannot be sustained.

HAD THE PLAINTIFF COMPLETED THE JOB

37. I accept that the Plaintiff had finished the water-testing work in respect of the 4 blocks she worked latest by 15/11/00 because by 16/10/00 she started re-testing work on 16/11/00. However in view of my finding that the re-testing was part and parcel of the water-testing work I find the Plaintiff had not finished her work.

WAS THE PLAINTIFF IN BREACH OF THE AGREEMENT

38. The Plaintiff on 15/10/00 went to the Defendant's office to ask for payment but the Defendant's reply was that they would pay on 5/11/00.

39. On 5/11/00 the Plaintiff and Mr. Ng Man Lung went to the Defendant's office but the Defendant's officer said they did not have money yet. After 5/11/00 she went to the Defendant's office many times but the company said that they did not have money to pay and she would be informed when the payment was ready.

40. On 25/11/00 she went with a group of workers to the Defendant company to ask for wages. She saw Cheung and Tsang. They asked her why she brought so many people up to the office. Cheung acted fiercely and told the Plaintiff that they did not know when they could pay. Plaintiff told Cheung that if they did not pay she and her workers could not do the work. In reply Cheung said that if she did not do the work let it be, they had a few hundred thousand with the Plaintiff and they would ask somebody else to do the work and deduct the amount.

41. Under such circumstances the Plaintiff ceased to work.

42. It is a term of the contract that there should be periodic payments. In breach of that term the Defendant had failed to pay. The situation is not as counsel for the Defendant submitted that the Defendant failed to pay just once. I accept the Plaintiff's evidence that she had continuously at request for payment in vain. For her to continue the work it is essential that she had to pay her workers. Because of the failure by the Defendant to pay she could not engage workers to continue the work. In the premises I find the Defendant was in breach and the Plaintiff was justified and forced to stop work. The Plaintiff therefore is not liable for any expenses incurred after she ceased to work.

DAMAGES

43. Since I find that the Plaintiff was not in breach on the 13/9/00 when the Defendant took back the 4 blocks nor was the Plaintiff in breach for stopping work on 25/11/00 the Plaintiff is not liable to the Defendant for the expenses incurred by the Defendant.

44. The Plaintiff had completed 2 floors on each of the block in blocks 4, 5, 6 and 7 she is therefore entitled to $(4 x 2 x 1,100) = $8,800 in addition to her entitlement in respect of blocks 1, 2, 3 and 8. However in view of my finding that re-testing is part and parcel of the water-testing agreement, the Plaintiff had not finished her work. She said she had completed re-testing on 60 floors by the time she quit. She is not entitled to be paid in full. She had performed substantially. I assess that she must have performed at least 85% of her work in the absence of any evidence from either party as to how many more floors needed re-testing. There was a partial payment of $71,820. Based on the above assessment the Plaintiff is entitled to $(176,000 x 85/100) - 71,820 + 8,800 = $86,580.

45. In the premises there be a judgement for the Plaintiff in the sums of :-

1) $80,000 for the cleaning of aluminum window with interests at 1% above prime per annum from 15 October 2000 until judgment and thereafter at judgment rate.

2) $223,165.05 for applying paste to Phase III of Shek Yam Estate with interests at 1% above prime per annum from 15 October 2000 until judgment and thereafter at judgment rate.

3) $86,580 for the water testing work with interests at 1% above prime per annum from 25 November 2000 until judgment and thereafter at judgment rate.

4) Counter-claim dismissed.

5) Order nisi : Costs to the Plaintiff in respect of both the Plaintiff's claim and the Counter-claim. Certificate for Counsel.

The Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.