PETRUS BREED, t/a PETRUS BREED RENOVATIONS v. LES BOULES LTD

DCCJ3243/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3243 OF 2010

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JUDGMENT

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1.  In these proceedings, the plaintiff claims against the defendant for payment for work and services rendered in the sum of HK$161,800, and payment of reimbursement in the sum of HK$45,450, the total amount being $207,250 ($161,800 + $45,450). The defendant denies the claim and alleges that the plaintiff failed to complete the outstanding work and to remedy the defects in the renovation works done, thereby causing the defendant to engage other contractors to complete the outstanding works and to remedy the defects. As a result, the defendant suffered loss and damages. It counter-claims against the defendant for HK$390,171.

The plaintiff’s evidence

2.  In the summer of 2009, the plaintiff was asked by Mr Christophe Bernard Guy Rene Bonno (“Mr Bonno”) of the defendant, whom he had known for years, to fix the ceiling of a bar he owned.  Mr Bonno was pleased with the work done by him.  Then he asked the plaintiff if he was interested in building a new bar for him.  They had 2 meetings thereafter.  On 6 September 2009, after the second meeting, he received an email from Mr Lacroix (engaged by the defendant as the architect and project manager on this project), with 2 floor plans with a description based on which he was asked to give a price. 

3.  On 14 September 2009, after the third meeting, Mr Lacroix told him that the defendant had decided that they wanted him to build the new bar.  They had some discussion on the price to build the new bar but no decision could be reached between them.  Then Mr Lacroix asked him to send them a figure.  On 17 September 2009, the plaintiff sent the defendant a rough estimate of the building cost.  In the estimated cost of $850,000, he added a note that it was a rough estimate only, because many design details of the project were still unknown to them, and that the final price would change.  On 22 September 2009, he received an email from the defendant, saying that they accepted his estimate.

4.  On 27 September 2009, the concrete floor contractor started to remove the old floor after he had paid the deposit out of his own funds.  On 4 October 2009, he received the first payment of HK$150,000 from the defendant.  On 16 October 2009, he received the 2^nd payment, in the sum of HK$150,000.  By 22 December 2009 he received a total of $600,000.

5.  On 18 October 2009, Mr Lacroix sent him an email, saying that he would like to speak to the plaintiff on the budget of the project.  On the following day he had a meeting with Mr Lacroix. Mr Lacroix told him that the defendant had changed their spending limit from $850,000 to $700,000.  He asked Mr Lacroix what would change in the design or building process to allow for this.  Mr Lacroix said, ‘Nothing’.  He said, “Don’t worry; the money will come back at the end.  They lost an investor”.  He further said they would not build certain things they needed, like the covering of the soil pipes.  They would build those things after the project had been finished, and then the plaintiff could charge them extra to get the $150,000 back.  Mr Lacroix then started to write down some numbers on a piece of paper. He asked the plaintiff how much he would spend on wood?  He said that he did not know since he did not have full design drawings yet.  Mr Lacroix kept on pushing him for numbers.  So finally he said, “Yeah, maybe around 60,000”.  So Mr Lacroix wrote down 60,000, and he did this for a few more items.  Then they had a discussion on the matter of money to be spent.  Mr Lacroix made some estimates.  The total came to around $550,000, and then Mr Lacroix said that he would have $150,000 for the bars.  Mr Lacroix wrote this down, making the total $700,000.  After this Mr Lacroix asked the plaintiff for a kickback, saying that he did not like to ask for it, but that it was the regular practive in Hong Kong.  The plaintiff replied, “Don’t they (the defendants) pay you for your work?”  Mr Lacroix “Yes, but not for the time I spend on-site”.  The plaintiff refused to pay.

6.  During the course of the project, there was a lot of ambiguous communications from the defendant.  The plaintiff tried to build things, following a fine line between Mr Lacroix’s overly intricate and complicated designs and Mr Bonno’s fast and cheap approach while maintaining his own standard of quality and without compromising on safety and durability.  Mr Lacroix decided to speed up the building process; he hired a different contractor to build the 2 bars and the cabinets.  He decided to “deduct” $150,000 from the initial spending limit for these items.  So only $550,000 was left to build the place.

7.  In late November the plaintiff stopped working for one day because he had not received payment after he had made numerous requests to the defendant.  In early December he stopped working again because of lack of payment.  By then the outstanding had reached over $100,000.  He had a meeting with Mr Bonno.  He told Mr Bonno that he did not trust Mr Lacroix, because of the kick back incident, and that he would not go back to work until he got paid.  Mr Bonno asked him, “Do you trust me?”  The plaintiff said that he did trust him.  Then he said, “Trust me you will get your money”.  So the plaintiff decided to trust him, to go back to work and deal with the money matter later on.

8.  On 19 December 2009, the plaintiff had a meeting with Mr Bonno.  When he asked for more money because he had cash flow problems Mr Bonno said, “Who hasn’t”.  Then Mr Bonno asked about his holiday plan.  By then the outstanding had risen to over $150,000.  The plaintiff had worked for 10-11 weeks almost every day and evening.  He had no holiday plans but since Mr Bonno had cash flow problems he decided to take 2 weeks off to give him time to make some money over the holiday.  He cleared the site, stained all the raw wood so the place was safe and looked finished and he stopped working on 22 December.

9.  On 25 January 2010 the plaintiff received an email reply from Mr Bonno on another payment request, which stated, “You’ll get it but I’ll find it excessive, specially the hour as you lying!”  But he never got his money.  Things started to be delivered which were not considered to be part of his responsibility: lights, tables and chairs, soil and sand for the courts, a pounding machine.  Each time the defendant called and asked if he could pay the balance.  They never left a cheque for payment; so he paid these out of his own funds.  This amounted to $45,450.  On 26 January 2010 he received from Miss Chow Wai Yin (“Miss Chow”) of the defendant an email in which she acknowledged that they would reimburse the plaintiff these costs but they never did.

10.  On 6 January 2010 the plaintiff sent an email to the defendant, setting out in details the demand for payment of the sum HK$207,250.  On 31 January 2010, he sent out an email to Miss Chow in respect of the hours worked on the project. 

11.  The defendant called three witnesses to testify on its behalf.  They are Mr Bonno, Mr Lacroix and Miss Chow.

The evidence of Mr Bonno

12.  He is a director of the defendant. On 22 September 2009, on behalf of the defendant, he accepted the rough estimate for the renovation works made by the plaintiff and confirmed that the defendant would engage the services of the plaintiff as the building contractor of the renovation works on the basis of the estimate.  The essential terms of the agreement include, the following:-

(a)   the plaintiff was to act as the building contractor undertaking the renovation works under the direct supervision of Mr Lacroix, Mr Masson (a director of the defendant) and himself;

(b)   the renovation works would be carried out by the plaintiff (and/or his employees and/or sub-contractors) whilst Mr Lacroix was responsible for works related to design and/or planning. A liquor licensing consultant, Ms Iris Wu, was also hired for the purpose of making and processing applications to the licensing board;

(c)   the plaintiff’s scope of work would be performed in accordance with the requirements of the initial layout plan as drawn and amended (pursuant to the specifications and/or requirements of the licensing board) by Mr Lacroix;

(d)   the plaintiff was to be primarily responsible for tasks which include, but are not limited to:-

(i)   electrical work, tiling of the bar front and around the bar, drainage work, building bar counter with sink;

(ii)   construction of the DJ booth;

(iii)   cleaning and painting of the G/F floor;

(iv)   installation of the G/F toilet;

(v)   any other remaining renovating works to be completed by the plaintiff under the agreement.

13.  The renovation works were commenced on 2 October 2009.  During the course of the renovation works, the licensing board made various requests which resulted in subsequent amendments of the initial layout plan on or around October 2009, and such amendments were made by Mr Lacroix accordingly.  The delay to the undertaking and/or progress of the renovation works and/or the expected completion deadline of the end of November 2009 did not result from the said amendments.

14.  Save cosmetic and/or minor amendments required by the licensing board, the full and finalized version of the relevant layout plan was delivered to the plaintiff on 31 October 2009.  Then the plaintiff sent him and Mr Masson an email on 2 November 2009 to confirm “the final finish date of everything estimated to be around the third or fourth week of December (2009)”.  But the plaintiff did not complete the outstanding renovation works at the end of December 2009.  This constituted a breach of the terms of the agreement.  The defendant first became aware of issues of delay and/or defective quality of the plaintiff’s work on or around mid-October 2009 when, amongst other things:-

(a)   daily (or almost daily) visits to the work site by him revealed the seriousness of inaction and lack of progress of the plaintiff’s work in light of the expected completion date of November 2009;

(b)   on 7 November 2009, he received reports forwarded by Mr Lacroix dated 7 October 2009, 14 October 2009, 21 October 2009, 28 October 2009, 4 November 2009 and 6 November 2009.  The reports contain repeated statements such as “the team of Peter doesn’t follow the date …… they are only 2 on the site most of the time” which confirm the plaintiff’s non-compliance with the stipulated time requirements in accordance with the agreement;

(c)   on 8 November 2009, Mr Masson sent an email to the plaintiff indicating that they did not tolerate the delay of the work up to 8 November 2009; and

(d)   on 12 November 2009, he received reports forwarded by Mr Lacroix dated 10 November 2009 which stated that “the contractor (the plaintiff) cannot respect the date …… (t)he architect found a contractor to finish the work of the cabinet and the counter of the bar …… the quotation of (the plaintiff) must be reviewed down.”

15.  The plaintiff failed to perform in a timely and/or satisfactory manner with regards to the following renovation works in relation to:-

(a)   The bar counter (upstairs and downstairs);

(b)  The air conditioning (which was installed but the plaintiff later admitted to stealing an important component of all 6 units of air-conditioner);

(c)   The electricity (only partially installed and/or dysfunctional);

(d)   The toilet (decorations incomplete and/or dysfunctional);

(e)   The finishings (work on which was not commenced at all);

(f)   The main door entrance (work on which was not commenced at all).

16.  When he attended the work site, he found that the plaintiff employed insufficient number of support employees and/or sub-contractors to assist him in completing the renovation works in a timely manner.  It was later discovered by the defendant that the plaintiff had employed insufficient number of relevant personnel at the work site to carry out the plaintiff’s scope of work.  Such work took so long because the plaintiff failed to pay those workers which he was due to pay out from the $150,000 deposit he had received from the defendant.

17.  On 13 November 2009, a meeting was held with the plaintiff to discuss the escalating dispute arising from the delay caused by the plaintiff.  At the said meeting:-

(a)   the defendant demanded a breakdown of the outstanding work to be carried out by the plaintiff and the time and costs of completing the same; and

(b)   the defendant further confirmed and the plaintiff acknowledged that the final layout plan (delivered to the plaintiff on 31 October 2009) was final and conclusive and have been approved by the licensing board.

18.  On 14 November 2009, Mr Lacroix sent an email to the plaintiff attaching a provisional list of outstanding tasks to be completed before 21 November 2009.

19.  On 15 November 2009, another meeting was held with the plaintiff where they further discussed the outstanding renovation works to be completed by the plaintiff.  Following the said meeting, the plaintiff sent an email 15 November 2009, to him, Mr Masson and Ms Chow stating “not everything listed on his provisional list can be done by the 21^st (of November).  Some suggestions are …… to leave the ceilings in the toilet as they are till electric and ventilation works are done, and tiles on the bar areas should be done after the bar is installed. Focus will be put on finishing (in the following order), the toilets, the ceiling above the main stairs, the ceiling structure in the basement, the DJ booth.  If time permits work will be done on the soft and the storage wall. Please inform if a different working order is desired.”  In the said email, the plaintiff also provided the defendant with the revised estimated costs of $700,000 - $750,000.  The defendant considered a final and realistic figure for the reasons that the final layout plan had been fully furnished and accepted by the defendant.

20.  On 18 November 2009, Mr Lacroix sent an email to the plaintiff to confront the plaintiff for engaging insufficient number of staff on the work site and causing delay to the performance of the renovation works.

21.  A meeting with the plaintiff took place on 1 December 2009.  On the same day, a summary of the meeting with a list of outstanding jobs of the plaintiff was sent to the plaintiff.  However, the plaintiff never completed the list.  Thereafter, the plaintiff failed to give the defendant any updates on the progress of the outstanding renovation works.  In fact, no further work was carried out by the plaintiff from 22 December 2009 onwards.  As such, the plaintiff is estimated to have only completed 50% to 60% of his scope of renovation works under the agreement on or around 22 December 2009.

22.  On 25 December 2009, he sent an email to the plaintiff to express his frustration with the delay of the renovation works over a period in excess of 2 months and the fact that despite the serious nature of the said delay and the missed completion deadline, as amended by the plaintiff in his email dated 2 November 2009, ie end of December 2009, the defendant had elected to go on an extended holiday over Christmas 2009.

23.  The following consideration was paid by the defendant to the plaintiff for the partially completed renovation works in the following amount and on the following date:-

(a)   $150,000 on 4 October 2009;

(b)   $150,000 on 16 October 2009;

(c)   $100,000 on 26 October 2009;

(d)   $100,000 on 14 November 2009.

(e)   $50,000 on 1 December 2009; and

(f)   $50,000 on 16 December 2009.

The evidence of Mr Lacroix

24.  It is his evidence that the works was expected to be completed in or around the end of November 2009.  He was informed that, after receiving a quotation of costs of the rough estimate of the works ranging from $800,000 to $850,000 from the plaintiff on 7 September 2009, the defendant confirmed that it would engage the services of the defendant.

25.  He made complaints against the plaintiff since the very beginning of his engagement for the works.  The plaintiff lacked time management and caused the defendants to engage subsequent contractors to complete the unfinished works of the plaintiff and to remedy the plaintiff’s defects.  On 2 November 2009, he had a conversation with the plaintiff, notifying him of the defendant’s requests as to the works and noted the plaintiff’s replies.  On 3 November 2009, he sent an email to all parties to report the above.  In order to mitigate the delay caused by the plaintiff and to finish the works according to the timeline without further delay, he hired an additional worker for the plaintiff’s team to assist with the performance of the plaintiff’s tasks (namely, to clean the site and to assist with the works as required).  He also instructed an additional independent contractor to commence work on the following:-

(a)   the cabinet;

(b)   the bar counter;

(c)   the wall finishing behind the bar on the ground floor;

(d)   the wooden part used to contain the air conditioner;

(e)   the glass plastic wall on the ground floor according to liquor licensing regulations.

26.  On 6 November 2009, he complained to the plaintiff via email as the plaintiff asked one of the additional workers to stop working on another task which he asked him to finish on 3 November 2009.  Consequently, the plaintiff has caused undue delay on the progress of the works.

27.  He enclosed in an email dated 15 November 2009 a provisional list which he provided for the plaintiff.  All remaining tasks that the plaintiff was asked to finish was listed therein, with the deadline being 21 November 2009.  On the same day the plaintiff sent an email stating that “not everything listed by Stephane on his provisional list can be finished by the 21^st (of November)”.

28.  On 1 December 2009, Ms Chow sent an email to the plaintiff, attaching an urgent “to do list” for the plaintiff’s attention and requested the plaintiff to provide details of the completion date for the tasks listed therein.

29.  From 2 December 2011 onwards the plaintiff started sending a daily update on progress and finances.  In an email dated 11 December 2009, he restated all the tasks in which the plaintiff did not follow his plan.  He had to find other contractors to finish the works accordingly.

The evidence of Miss Chow Wai Yin (“Miss Chow”)

30.  She is the accountant of the defendant.  On 13 November 2009, she initiated a work meeting with Mr Masson, Mr Bonno and the plaintiff, because they were very concerned with the delay of the works and they never received any details of payment such as itemized bills from the plaintiff.  They wanted to clarify the reason of the delay and demanded a detailed breakdown of the costs incurred by the plaintiff.  They also wanted to re-affirm the completion date of the works and to make a realistic estimation of the total construction costs.  In particular, she asked the plaintiff to give her a realistic estimation of the total construction costs and at the same time provide a schedule as to when he would finish the whole project.  The plaintiff agreed to revert as soon as possible on the estimated total construction costs and verbally agreed to complete all the construction work before Christmas 2009. 

31.  On 15 November 2009, the plaintiff reverted by email, purporting estimated total construction costs at HK$700,000 to HK$750,000 with a rough breakdown.  This was considered to be a final and realistic estimation for the completion of the works, which would be by the end of December 2009.

32.  The defendant subsequently accepted the revised estimate total construction costs.  Since the email on 15 November 2009, the construction progress was still very slow and she still did not get any further information on the cost breakdown other than the rough estimate.  She therefore proposed another meeting on 1 December 2009 for further discussion.  Her email of 1 December 2009 was sent out with a to-do-list for the plaintiff, listing all the tasks to be followed up, and she requested the plaintiff to input the costs related to each specific task and to provide a deadline for himself to comply.  The plaintiff did not comply with her requests, despite sending over emails to report what he did during the day.  However she still did not know the exact completion date and the total costs for the works.  The defendant paid the sum of $600,000 to the plaintiff by 6 installments, namely, $150,000 on 4^th October, $150,000 on 16^th October, $100,000 on 26^th October, $100,000 on 14^th November, $50,000 on 1^st December and $50,000 on 16^th December.  The said sum paid was equivalent to or about 80-85% of the revised estimate total construction costs of $700,000 to $750,000.

33.  On 20 December 2009, she received an email from the plaintiff in which he said that he would work until 21 December 2009 and then go on holiday afterwards.  This was in contradiction with the agreement on 13 November 2009 in which the plaintiff purported to finish the entire construction works before Christmas.  Since 22 December 2009, the plaintiff abandoned the works despite the fact that the construction was still largely incomplete.

34.  On 13 January 2010 she received an email from the plaintiff attaching an invoice of HK$803,837.  On 31 January 2011, the plaintiff sent her an email stating that he had made an error in adding his working hours and the total sum of the invoice should be HK$807,250 instead.  The plaintiff also indicated in the email he was not required to do any more work on the work site as he saw another contractor (which the defendant alternatively hired to complete the plaintiff’s unfinished works) working on the work site a week before.  By then, they had paid a total of HK$600,000 to the plaintiff.

35.  By an email dated 4 February 2010 she refused and further challenged the plaintiff’s demand for payment of HK$803,837, or alternatively HK$807,250, as he had overcharged for the number of working hours and the work done and materials supplied by the plaintiff were defective in quality which did not qualify further payment of the said invoice or alternatively the amount of $600,000 already paid to the plaintiff.  She further counterclaimed against the plaintiff for the defendant’s loss and damage suffered as a consequence of the plaintiff’s breach of contract.  Subsequently the plaintiff reinstated his demand for payment in further correspondences with her.

Analysis of evidence

36.  The defendant argues that the payment for the renovation works was based on a contract sum. In its email dated 25 December, 2009 to the plaintiff, the defendant said, “Anyway, we cannot check your hours and we never agreed to pay you based on your hours.  … … … …  Its based on a contract sum, its the industrial practice.” The plaintiff submits that the contract entered into between him and the defendant was on a labour and materials cost basis.  The email sent to him by Mr Masson on 25 December 2009 states, inter alias, “you have not been able to give us the cost per item.” “we have already paid for the following items: the air conditioning, the electricity, the toilet, the wooden floor and the finishings.  However these items have not been finished by you …….”  “We do not agree to pay the wages of your workers or yourself for the two months of delay”.  If it were a contract for an entire sum, there would be no necessity for the defendant to pay by the items.  If it were a contract for a lump sum, there would be no necessity to pay wages to the plaintiff and his workers.  Clearly the plaintiff’s pay was not based on a contract sum.  It was based on the hours of work done and materials supplied.  So the plaintiff was working for payment on a labour and material basis. 

37.  Under paragraph 17 of his witness statement, Mr Bonno states, ‘On 17 September 2009, the plaintiff provided the defendant with a quotation of costs titled “Rough Estimate” of the renovation works with estimated total costs of the work ranging from $800,000 to $850,000’.  Under paragraph 20 of his witness statement, Mr Bonno included the essential terms of the agreement.  But the essential terms do not include, expressly, the rough estimate of $800,000 to $850,000.  This rough estimate is not expressed in such a way that this sum would be charged by the plaintiff as a contractual sum for the work/services and materials provided by the plaintiff.  If it were a contractual sum, it would not be termed “rough estimate”, and it would be a fixed sum, instead of an estimate ranging between “$800,000 to $850,000”.  The defendant stated that it was the practice of the industry that the plaintiff’s pay was based on a contract sum.  The defendant’s version was not supported by evidence of any industrial practice.  I reject its evidence in this respect.  I accept the plaintiff’s version.

38.  In paragraph 42 of his statement Mr Bonno stated that the plaintiff failed to give to the defendant updates on progress of the outstanding renovation work after the meeting on 1 December 2009.  But the plaintiff sent 7 emails to the defendant over the next 3 weeks to update on the building progress and to ask for a priority list of what to finish first so that they could continue with their liquor licence application.  The seven emails were sent on 2, 3, 4, 7, 8, 14 and 19 December 2009, to Mr Bonno and Miss Chow, which gave them a daily report on the progress of the renovation work.  But no one ever gave him a list.  In paragraph 24 of the witness statement of Mr Lacroix he said that the plaintiff started sending a daily update on progress and finances from 2 December 2009.  This simply contradicts the statement of Mr. Bonno in this regard.  So what Mr Bonno said in his statement is simply untrue.

39.  In paragraph 48 of his statement Mr Bonno claimed that it was impossible to reach the plaintiff and therefore they felt that he had abandoned the job.  The plaintiff sent emails on 29 December 2009, and had a meeting on 6 January 2010.  So what Mr Bonno said in paragraph 48 is incorrect.

40.  It is the plaintiff’s evidence that he needed to get paid the outstanding before he could continue with his work.  He received the email dated 25 December 2009, stating that they would not pay him for his labour charges for November and December.  He stopped working because the defendant failed to pay him on time.  Under cross-examination, Mr. Lacroix admitted that one of the defendant’s investors had withdrawn from the defendant.  The payment on 1 December 2009 dropped to $50,000, from $100,000 paid on 14 November, 2009.  The last payment on 16 December, 2009 was also $50,000.  The decrease in the amount of payment reflects that the defendant had some problem in cash flow.  This must be due to the fact that an investor had withdrawn, thereby causing the amount of capital investment to shrink.  In the email dated 18 October, 2009, Mr. Lacroix said that he would like to speak to the plaintiff on the budget of the project.  On the next day they met.  Then the budget came down from $850,000 to $700,000.  This must bedue to the loss of one investor.   It is not disputed that the plaintiff made payment for materials on behalf of the defendant in the sum of $45,450.  This is due to the fact that the defendant did not leave with the plaintiff any cheque for such payment at the site.  This must be due to cash flow problem.  So a result the plaintiff had to make payment first.  The defendant agreed to reimburse him for this amount.  But it never did.

Alleged justification for non-payment

41.  The first justification for non-payment was the delay for November and December 2009, as stated in the email of 25 December 2009.

42.  The next justification for non-payment was that the number of hours he worked on the place could not possibly be right.  He sent them his detailed hour count.  There is no reply from the defendant that the hour count is incorrect.  Indeed the defendant did not keep hour count in relation to the plaintiff’s work.  Next, the defendant complained that the amount he charged per hour was too high.  In early February 2010 the plaintiff had a meeting with the defendants and Ms Chow.  He explained that he always charged this rate.  When he did the job for Mr Bonno in the summer of 2009 he charged the same rate.  He might charge a little more than some others but he was more skilled.  But he thought of faster ways to build things and he work harder.  Also he did not charge for travel time or lunch time or overtime when he worked evenings or weekends, and he always worked those times.  He stressed again that all that was charged were hours actually worked on the job and materials used on the job.  That the invoice represented a fair price for what was built. 

43.  On 4 February 2010 he received an email, stating, “You will not be getting any more payment from us”.  On 7 April 2010 he had a meeting with the Mr Bonno and Ms Chow the accountant.  At the meeting she said, “Let’s forget about the first part, that’s done.  A lot went wrong but let’s now just focus on the part after 15 November 2009 and the numbers you gave in that email”.  At that meeting they told him that they thought the numbers given in the email of 15 November 2009 were final.  He told them that the email clearly stated it was a list of estimated, not fixed, and cost yet to come, and that he actually was not that far off from the costs mentioned there.  In a later email she said she would suggest a number to the defendant, which she did, and then they replied that they would not pay him cost, which is all he was charging them, and they did not owe him anything because it was all on a contract basis.  He called Ms Chow and asked whether the email meant they were or were not going to pay him.  After a few days she replied that they were not going to pay him.

Extended building time

44.  There was never a fixed finishing date.  The first desired finishing date was 19 October 2009.  This was 15 days after he had received the deposit, which marked the start of the project, and 15 days before he received the last technical drawing, electrical plan, from Mr Lacroix.  This date was mentioned at the first meeting, in early September. When he got the first layout plan and gave them the estimate more than 10 days had passed. 

45.  This is also the date the defendant used to calculate the delay in the email sent to him 2 days after the start of Christmas break.  In this email the defendant stated their original alleged justification for non-payment, because of the delay of 2 months.

46.  When he was asked to give a realistic finishing date he gave the end of December as a date.  Mr Bonno then mentioned that he missed the completion deadline on 25 December 2009 which was still a week away from the end of December.  With the week they lost due to payment delay and private parties, that gave them 2 weeks.  The things still to be finished in the list of the 7 January 2010 email are the points 3, 4, 5, 7, 14, 18, 19, 20 which would take less than 2 weeks to finish.

Changes in design

47.  The original layout plan received 6 September 2009 were two floor plans with a description.  Once they started building he started to receive new drawings by email.  On 1 October 2009 he received new drawings with changes.  On 3 October 2009 he received more new drawings with more changes.  For the next few weeks he received new drawings on an almost daily basis, each time the design and/or the layout of the bar changed.  Most changes were additions which would require extra time and cost to build.

48.  On 1^st November he received the final set of design drawings.  The last drawing still missing was the full electrical drawing which he received on 4^th November.  The changes were extensive.  The office changed from being a sandwich panel wall structure on the floor, to a raised platform with storage underneath and with a curved laminate wall with cut out light slots and storage racks inside.  The floor changed, instead of tiling around the petanque courts they had to raise the whole floor so the courts seem sunken into the floor and then make cover panels for the courts.  The floor finishing became intricate hardwood parquet. A DJ booth was added; a shower was added; a build-in sofa with veneered storage boxes on wheels were added; storage under the stairs was added; 3 layers of decorative ceiling boxes/panels, all veneered and with curved edges, were added.  In the upstairs toilets the floor standing toilet type was changed to a wall hanging type, the standard taps were changed to electrically powered, infra red motion sensor activated taps.

49.  On a Saturday he was told that on the following Saturday there would be a private party.  On Friday they spent the whole day preparing the site, temporarily putting up sliding doors in the toilets, wiring aircons, laser taps, moving supplies and tools etc.  Then on the Friday afternoon at around 6 pm Mr Masson showed up, saying that the party had been cancelled on the previous Monday but nobody had informed them.  So they lost 2 working days.  During the building process the private parties caused them to lose 5 working days; another 2 were lost due to lack of payment.

The expected completion date

50.  In paragraph 40 of his witness statement, Mr Bonno states that the defendant accepted the completion date to be the end of December 2009.  But in the email of 25 December 2009, he claimed the delay in excess of 2 months.  This means that the deadline was 2 months before 25 December 2009.  That would be 25 October 2009.  This is inconsistent with the completion date at the end of December 2009.  Mr Masson sent an email on 8 November 2009 saying that they had already accepted: “with two weeks late until 1^st November”.  So according to him, the work would be finished by 15 October 2009.

51.  On 2 November 2009, the plaintiff sent an email saying that a realistic finishing date would be around the 3^rd or 4^th week of December 2009 if no more changes or additions were made.  To this the plaintiff never received an objection from the defendant.  So the defendant must have accepted this as a realistic completion date. 

Inconsistencies in the defendant’s defence

52.  The defendant claims that the renovation was only 50-60% done on 22 December 2009.  Yet on 17 December 2009 a group email was sent to all the “friends of Petanque” to announce the opening of the Bar 2 days later, on 19 December 2009.  If the renovation was only 50-60% done, how could the Bar be opened 2 days later.

53.  I find that the plaintiff is an honest witness.  I accept his evidence.  His evidence is credible, and supported by documentary evidence.  I reject the defendant’s evidence in so far as it contradicts those of the plaintiff.  I dismiss all the counterclaims. 

54.  It cannot be argued that the pay of the plaintiff was on labour and material basis.  He and his workers did work in November and December 2009.  There was no evidence to show that the numbers of hours worked are not incorrect, and that the hourly rate was unreasonably high or excessive.  Accordingly I enter judgment in favour of the plaintiff in the sum of HK$207,250, with interests, at judgment rate, commencing from 20 September 2010, until satisfaction. 

55.  One of the items (item (iv)) of the defendant’s counterclaim is the damages in the sum of HK$20,000 in respect of 6 units of PCB (air-conditioner components) stolen by the plaintiff. Paragraph 27 of the defence and counterclaim states:-

“Further, as witnessed by a worker of the fire services engineer and later admitted by the plaintiff himself to Mr Bonno during a telephone on 30 March 2010 that the plaintiff stole an important component of all 6 units of air-conditioner from the work site claiming that he did that to protect himself as the defendant did not pay him.”

56.  In his amended defence to counterclaim, the plaintiff states:-

“Paragraph 27 of the defence and counterclaim is denied. The remote control was handed back to the air-conditioning contractor. A few days later the air-conditioning contractor removed the circuit boards… … … ….”

57.  He made a statement of truth regarding the amended defence to the counterclaim.  There is no reply to the plaintiff’s amended defence to the counterclaim.  If the defendant did not agree with the amended defence to the counterclaim, the defendant should have put in a reply to the defence to the counterclaim.  On the materials pleaded in the pleadings, I simply cannot make a finding that the defendant can prove a prima facie case against the plaintiff on this item.  So I dismiss this item of claim.

Costs

58.  I make an order nisi for costs, to be made absolute in 14 days’ time, that the defendant do pay the plaintiff the costs of these proceedings, to be taxed if not agreed.