KOT CHI KIU t/a KONG TONG INTERNATIONAL TRADING CO. v. SPEED TOP CONSTRUCTION & ENGINEERING CO. LTD.

DCCJ 6165/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6165 OF 2002

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REASONS FOR DECISION

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This is an 0.14 application by the Plaintiff for summary judgment in respect of 10 contracts in which the Plaintiff agreed to install kitchen and /or toilet tops.

2. Before the hearing the parties agreed that the Plaintiff would not in this hearing persue all claims for additional works nor for the 2nd contract i.e. Nga Ying Chan contract and the 3rd contract i.e. Laguna contract. The Plaintiff issued the writ on 3/10/02 and took out the present summons on 24/10/02.

3. In respect of the 1st contract i.e. the Tseung Kwan O contract the Plaintiff claims $8,948.80 being the retention money which was due and payable in January 2002 but the Defendant settled that amount in 2/1/03. Since the contract sum had been settled the only outstanding issue is just a matter concerning costs.

4. As the Defendant had settled that amount on 2/1/03 before the hearing the Plaintiff is not entitled to the costs in respect of the hearing for O.14 summons but only up to the date the Plaintiff accepted payment i.e. 2/1/03.

5. As to the 5th contract i.e. the Tai Tong contract the amount in dispute is only $700. The Plaintiff claims that the Defendant had wrongfully deducted $700 from the retention money in respect of this contract.

6. The defence is that the Plaintiff failed to carry out rectification work. The Plaintiff asserted that he had carried out the rectification work in 1/02. There was no further communication concerning the rectification work being unsatisfactory nor was there any evidence being produced by the Defendant concerning the $700 being incurred. This is a bare assertion. There is no defence in respect of this $700. The Plaintiff is entitled to judgment in respect of $700 under the Tai Tong contract.

7. In respect of the Mercury contract the Plaintiff claims that the Defendant is not entitled to deduct $2,500 from the retention money. The defence is that the Plaintiff had opened gaps larger than required on the desk tops and it had to supplied materials to fill in the gaps. This is an issue on facts which cannot be tried on an O.14 summons.

8. The Defendant had settled the 4th and 5th stage payments on 15/10/02. The retention money in respect of this contract is only $1,261.20. I give Defendant leave to defend in respect of the defects in this contract in the sum of $1,261.20 with costs in the cause.

9. Apart from the 2nd, 3rd, 5th and 6th contracts, all other outstanding amounts had been settled. In the premises the Plaintiff is entitled to costs up to the respective dates of payment.

Order : 1) Judgment to the Plaintiff in the sum of $700 under the Tai Tong contract with costs and interests at 1% above prime per annum from date of writ to judgment and thereafter at judgment rate. Certificate for Counsel.

2) Leave to defend in respect of the 2nd and 3rd contracts i.e. the Nga Ying and Laguna contracts, additional works and $1,261.20 under the Mercury contract with costs in the cause. Certificate for Counsel.

3) Costs to the Plaintiff in respect of the other contracts up to date of settlement.