YOU’S KITCHEN LTD v. LAM KWOK KWONG formerly t/a STAR BRIGHT ENGINEERING & INSTALLATION CO

HCA 1962/2015

[2020] HKCFI 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1962 OF 2015

________________________

BETWEEN

(by original action)

BETWEEN

(by counterclaim)

________________________

________________________

REASONS FOR JUDGMENT

________________________

A. INTRODUCTION

1.  This is an action based upon breach of contracts by the defendant and the plaintiff is suing for damages. The plaintiff is a sub-contractor who has entered into a series of contracts with the defendant for installation of kitchen cabinets at various construction sites.

2.  By reason of the 1^st and 2^nd plaintiffs’ (by counterclaim) absence at the Pre-trial Review on 16 October 2019, the Counterclaim in these proceedings was provisionally struck out by the court pursuant to Order 25, rule 1C(2) of the Rules of the High Court (“RHC”).  There has not been any application to restore the Counterclaim.  The court was therefore not concerned with the Counterclaim at trial.  As such, the plaintiff (by original action) and the defendant (by original action) shall be referred to herein simply as “the plaintiff” and “the defendant” respectively.

3.  The plaintiff initially claimed breaches of contracts by the defendant in respect of 4 different construction sites, namely (1) 33 Seymour Road (“Seymour”); (2) Double Cove at 8 Wu Kai Sha Road; (3) Forest Hill at 31 Lo Fai Road; and (4) Estrada de Sete Tanques in Macau (“Seven Lake”).  The claims in respect of Double Cove and Forest Hill had been settled and the trial only concerned Seymour and Seven Lake.

4.  On the first day of trial the defendant failed to turn up.  Pursuant to Order 35, rule 1(2) of the RHC, I proceeded to conduct the trial in the absence of the defendant.

5.  To prove its case, the plaintiff called 3 witnesses to give evidence, namely, Wong Tsz Ham (“Ms Wong”), Tsang Wai Yung (“Mr Tsang”), and Wong Wan Mang.  Their evidence was not contested at trial

6.  At the end of the trial, I make an order in the following terms: –

(1) Judgment in favour of the plaintiff against the defendant in the sum of HK$2,181,415.

(2) The defendant do pay to the plaintiff interest on the said sum of HK$2,181,415 at the rate of 1% above HSBC’s Best Lending Rate per annum for the period from the date of Writ (27 August 2015) until Judgment, and thereafter at the Judgment Rate until full payment.

(3) The costs of the original action be paid by the defendant to the plaintiff, such costs are to be taxed if not agreed.

7.  Reasons for Judgment were reserved, which I now give.

B. BACKGROUND FACTS AND THE PLAINTIFF’S CLAIM

B.1 The Seymour Project

8.  On or about 22 May 2014, the plaintiff issued a quotation in respect of kitchen cabinet installation at Seymour.  The plaintiff’s quotation was that base/wall cabinets were installed at HK$200 per foot and tall cabinets were quoted at HK $400 per foot.  There were in total 39 floors in the Seymour Project and each floor had 3 units (ie Units A, B, and C).

9.  In about early June 2014, the defendant confirmed with Ms Wong of the plaintiff that the plaintiff would be engaged as sub-contractor in the Seymour Project based on the quotation.

10.  It was also agreed that the defendant would have to pay periodically based on the actual amount of work done.

11.  Installation works commenced for the Seymour Project on or about 4 June 2014 and were largely completed by December 2014, at which time an on-site measurement of the installation was done (the “December Measurement”).  The December Measurement was as follows: –

Residential Unit	Wall/Base Cabinet per unit (in feet)	Tall Cabinet per unit (in feet)
A	33	6.5
B	29	4
C	26	4

12.  Apart from the agreed installation work, the defendant had from time to time requested various additional works – referred to as variation orders – which the defendant agreed to pay for.

13.  On the basis of the December Measurement and the various variation orders, the plaintiff issued invoices to the defendant based on the agreed fees for the installation and reasonable fees for the variation orders.

14.  The defendant however did not honour the contractual bargain and attempted to negotiate a reduction in sums charged in the invoices.  The plaintiff agreed to a reduction on the basis that the defendant would make prompt payments.  However, despite various reductions in the plaintiff’s fee, the defendant did not make full payment for work done at Seymour.

15.  Based on the December Measurement and the agreed quotation, the defendant is required to pay the plaintiff a sum of HK$912,600.

16.  Based on the invoices issued to the defendant in respect of 11 variation orders (VO1 to VO11) at Seymour, the defendant is further required to pay the plaintiff a sum of HK$752,020.

B.2    The Seven Lake Project

17.  In about June 2014, the defendant agreed to engage the plaintiff to carry out kitchen cabinet installation works at Seven Lake.  Similar to the Seymour Project, it was also agreed that the defendant would have to pay periodically based on the actual amount of work done.  However, work only commenced at Seven Lake in about mid-November 2014. Seven Lake has 31 floors and each floor has 8 residential units (ie Units A to H).

18.  In about December 2014, the defendant agreed with the plaintiff that the unit price for base/wall cabinet would be HK$250 per foot and tall cabinets would be HK$500 per foot for an overseas project in Macau.

19.  Eventually, of the 240 set of kitchen cabinets required to be install, 213 were installed with 27 left uninstalled. The contract price for the installed cabinets is thus claimed as follows: –

Residential Unit	Quantity installed	Price per Unit	Total price
A	31	$11,125	$344,875
B	31	$9,500	$294,500
C	31	$11,000	$341,000
D	29	$12,625	$366,125
E	28	$12,625	$353,500
F	20	$11,125	$222,500
G	21	$9,625	$202,125
H	22	$11,125	$244,750
		Total:	HK$2,369,375

20.  In about February 2015, the plaintiff agreed to carry out additional installation work of bathroom cabinets at the price of HK$400 per cabinet as a variation order.  Eventually, the plaintiff completed installation of 708 bathroom cabinets at Seven Lake.  Apart from the agreed installation work, the defendant had further from time to time requested various other variation orders which the defendant agreed to pay for.  In total, the plaintiff claims the sum of HK$425,020 under 3 variation orders (VO15 to VO17) at Seven Lake. 

21.  On or about 20 April 2015, the defendant refused to make interim payments to the plaintiff to cover work already done in accordance with the parties’ contractual bargain.  The plaintiff temporarily suspended work and informed the defendant that it would resume the work when the defendant made interim payments to cover work already done in accordance with their contract. 

22.  The defendant, however, refused to make further payments and informed the plaintiff that the plaintiff was not allowed to return to complete the work.  The defendant had failed and/or refuse to make payments to the plaintiff in accordance with the work actually done, and is in breach of contract.

23.  Between June 2014 and April 2015, the defendant had made the following interim payments (under both the Seymour Project and Seven Lake Project) to the plaintiff: –

Date	Amount
20 June 2014	$200,000
4 August 2014	$100,000
22 September 2014	$100,000
23 October 2014	$100,000
1 November 2014	$30,000
29 November 2014	$500,000
15 January 2015	$400,000
February 2015	$97,600
4 February 2015	$350,000
10 April 2015	$400,000
Total Interim Payment	HK$2,277,600

24.  The total claim of the plaintiff under the Seymour Project and the Seven Lake Project is HK$2,181,415, being the total contracted amount minus the interim payments already made.

C.      ISSUES AT TRIAL

25.  To prove the plaintiff’s case under the Seymour Project, the plaintiff had to prove: –

(1) The agreed unit price of the work that was envisaged under the Seymour Main Contract (ie installation of kitchen cabinets excluding any variation orders).

(2) The amount of work that was actually done under the Seymour Main Contract.

(3) The amount of the claim under the Seymour Main Contract given (1) and (2) above.

(4) The agreed price of the work done under VO1 to VO11, if no price had been agreed what is the reasonable price.

(5) The amount of work done under VO1 to VO11.

(6) The amount of the claim under VO1 to VO11 given (4) and (5) above.

26.  As to the plaintiff’s case under the Seven Lake Project, the plaintiff had to prove: –

(1) The agreed unit price of the work that was envisaged under the Seven Lake Main Contract (excluding any variation orders).

(2) The amount of work that was actually done under the Seven Lake Main Contract.

(3) The amount of the claim under the Seven Lake Main Contract given (1) and (2) above.

(4) The agreed price of work done under VO15 to VO17, if no price had been agreed what is the reasonable price.

(5) The amount of work done under VO15 to VO17.

(6) The amount of the claim under VO15 to VO17 given (4) and (5) above.

27.  After giving credit for the interim payments made by the defendant, the plaintiff claimed the outstanding amount.

D. THE SEYMOUR MAIN CONTRACT

D.1 The agreed unit price of HK$200/HK$400 per foot

28.  The plaintiff’s pleaded case on the agreed unit price is that base/wall cabinet and tall cabinet were HK$200 per foot and HK$400 per foot respectively.  The unit prices were based on a quotation sent by the plaintiff to the defendant on 22 May 2014, which was subsequently agreed by the defendant in early June 2014.

29.  Ms Wong’s evidence (which I accept) and the documentary evidence in this regard is in line with the plaintiff’s pleaded case.

30.  In the defendant’s Defence, the defendant averred that the unit prices had not been agreed.

31.  However, on the uncontested evidence of Ms Wong, I hold that the plaintiff had discharged the burden in showing that the agreed unit price was in fact HK$200 and HK$400 per foot for base/wall cabinets and tall cabinets respectively under the Seymour Main Contract.

D.2 Amount of work done

32.  The plaintiff’s pleaded case for the amount of work actually done is as follows: –

Residential unit	Type of cabinet	Quantity executed in each residential unit	Total floors	Actual quantity executed
A	Wall/base cabinet	33	39	1,287
B	Wall/base cabinet	29	39	1,131
C	Wall/base cabinet	26	39	1,014
Sub-total:				3,432
A	Tall cabinet	6.5	39	253.5
B	Tall cabinet	4	39	156
C	Tall cabinet	4	39	156
Sub-total:				565.5

33.  This was based on a final measurement taken of the actual quantity of work done in about December 2014.

34.  Ms Wong’s evidence is again in line with the plaintiff’s pleaded case, where Ms Wong said: –

(1) There were in total 39 floors and each floor had 3 units, namely Units A, B, and C;

(2) The work was largely completed by December 2014 and the December Measurement was taken (see: paragraph 11 above).

35.  In the defendant’s Defence, the defendant denied the December Measurement.  However, in light of the uncontested evidence of Ms Wong, I find that the December Measurement and the figures therein have been proved by the plaintiff.

36.  As can be seen from Ms Wong’s evidence, the total work done under the Seymour Main Contract is to multiply the figures in the December Measurement by 39 floors.  The total work done would be 3,432 feet of base/wall cabinets and 565.5 feet of tall cabinets.

D.3    Quantum under the Seymour Main Contract

37.  The pleaded case of the plaintiff claims a sum of HK$912,600 as follows: –

Type of cabinet	Actual quantity executed	Unit price	Total price
Wall/base cabinet	3,432	HK$200	HK$686,400
Tall cabinet	565.5	HK$400	HK$226,200
		Total:	HK$912,600

38.  This follows arithmetically as the court accepts that the unit price and the amount of work done were proved, and the plaintiff has proved its claim under the Seymour Main Contract in the sum of HK$912,600.

E. THE SEYMOUR VARIATION ORDERS

E.1 Reasonable price for work done

39.  By its pleadings, the plaintiff claimed against the defendant under 11 VOs regarding the Seymour Project summarized as follows: –

Variation Order number	Amount
1	HK$164,190
2	HK$118,950
3	HK$101,400
4	HK$36,400
5	HK$2,500
6	HK$5,400
7	HK$10,400
8	HK$126,000
9	HK$82,880
10	HK$86,400
11	HK$17,500
Total VO amount	HK$752,020

40.  There is no dispute that the price for the work to be done under VO1 to VO11 had not been agreed prior to completing the work.  In the circumstances, the plaintiff correctly pleaded that there was an implied term in the Seymour Contract that was based on market rates where a price could not be determined by methods provided for in the contract.  The effect of the implied term is that when the price had not been fixed in the contract, there would be an implied term to pay a reasonable price for the work done.

41.  The parties were under no illusions that the variation work was to be provided gratuitously.  The plaintiff was expected to be paid.  The failure to specify the price is clearly not fatal to a completed contract, particularly when the work was in fact carried out by the plaintiff in the expectation of being paid.

42.  In line with the plaintiff’s case pleaded in the Reply, Ms Wong’s evidence is that it was all along agreed that: –

(1) The plaintiff should perform the additional work as requested by the main contractor;

(2) The plaintiff should, to the best of its ability, carry out instructions given by the on-site project manager of the main contractor;

(3) After the plaintiff had completed the additional work, the plaintiff should issue an invoice to the defendant; and

(4) The plaintiff would be paid by the defendant for the additional work performed.

E.2    The amount of work done under the Seymour Variation Orders

43.  After the plaintiff had carried out the various variation orders, the plaintiff issued invoices to the defendant based on the amount of work that was actually done.  In an email dated 8 May 2015, a letter to the defendant was attached which clearly stated that the invoices for the variation orders were work done in accordance with the instructions given by the on-site manager of the main contractor: –

“9.) 後加工程賑單早已電郵給貴司，理應由貴司跟Kitchen (Pro) Limited [main contractor] 對賬，而本司只會跟貴司對賬，本司給予貴司的後加工程賬單內已仔細列明，請依照本司賬單繳付費用。

(本司向貴司所收取的後加工程賬單均經由地盤管工指示去做)”

44.  The relevant invoices for each variation order were contemporaneous documents (issued before these proceedings), which could be easily checked by the defendant on site.  There is simply no reason, and none was proffered by the defendant, why the plaintiff would issue invoices for work that it had not in fact done when it issued the invoices prior to these proceedings.  Viewed in this way, the relevant invoices are a record of what was done by the plaintiff. 

45.  In the circumstances, I agree the court should find that the plaintiff had carried out the work as indicated on the relevant invoices, or alternatively, an inference can be drawn to that effect.

46.  What remains is to identify the relevant invoices with the different variation orders as claimed by the plaintiff.

E.2.1      Variation Orders 1 to 7

47.  The evidence of Ms Wong is that the plaintiff had issued various invoices to the defendant on 15 April 2015.  She further clarified in examination-in-chief that the invoices sent on 15 April 2015 included the invoices that cover VO1 to VO7, being the invoices at pages 405, 407 and 409 of the Trial Bundle.

E.2.2 Variation Orders 8 to 11

48.  On 8 May 2015, the plaintiff sent an email to the defendant where invoices for VO8 to VO11 were attached.   

49.  There is no dispute that these invoices were sent to the defendant on 8 May 2015.  At paragraph 17 of the defendant’s Defence, he admitted to have received the relevant invoices on 8 May 2015, which included the invoices for VO8 to VO11, as follows: –

Invoice No.	Date	Particulars	Amount	Corresponding VO reference
YK1432	14.04.2015	Additional works	$126,000	VO 8
YK 1440	14.04.2015	Labour costs of some rectification work	$86,400	VO 10
YK 1454	20.04.2015	Club House, 49/F, Units A & B and 50/F & 51/F Unit A	$49,420	VO 9
YK 1455	20.04.2015	Variation Order for Club House, 49/F Units A & B and 50/F & 51/F Unit A	$33,460	VO 9
YK 1463	05.05.2015	Order of aluminium sheets	$17,500	VO 11

E.3    Quantum for Seymour Variation Orders

50.  While the defendant alleged in his Defence (in extremely general terms) that various invoices contained sums charged unreasonably, the defendant had never condescended on particulars as to which invoices or which items on the invoices were said to be unreasonable. The unreasonableness of the sums in the invoices remains a bare assertion, particularly in the absence of any evidence.

51.  It is important to note that even in the defendant’s own email on 5 May 2015, the defendant did not allege that the sum charged for any variation order was unreasonable.  In a letter to the plaintiff that was attached to the email of 5 May 2015, the defendant did not allege that the variation orders were unreasonable, but simply stated that they needed to be confirmed with the main contractor.

52.  It also appears that the defendant had tendered the plaintiff’s invoices to the main contractor for the main contractor’s assessment.  By an email from the main contractor to the defendant dated 7 July 2015, the main contractor replied to the defendant as to the sums the main contractor was willing to pay in respect of the variation orders – this covers invoices for VO1 to VO8 and VO11.  It is however important to note that: –

(1) The plaintiff was not privy to the contractual bargain between the main contractor and the defendant, which constituted a distinct contract from that between the plaintiff and the defendant; 

(2) The plaintiff was therefore left in the dark as to the reason why the main contractor approved or disapproved of various sums.  For example, the plaintiff is unable to determine whether certain items should be included in the main kitchen cabinet installation contract between the defendant and the main contractor, or whether there was specific agreement between them in respect of the individual variation works;

(3) In the circumstances, I agree the defendant’s acceptance of any assessment by the main contractor is irrelevant to the contractual position between the plaintiff and the defendant.

53.  Importantly, what is relevant, however, is that the defendant appears to have submitted the plaintiff’s various invoices directly to the main contractor without any adjustment on the basis of the figures being unreasonable.  Had the defendant thought any of the figures in the invoices unreasonable, he would unlikely to have submitted the same to the main contractor.

54.  I accept as submitted by the plaintiff that the correct inference is that the sums charged by the plaintiff in the invoices were reasonable.

55.  In the circumstances, I hold that the total reasonable amount claimed under VO1 to VO11 is as follows: –

Variation Order number	Amount
1	HK$164,190
2	HK$118,950
3	HK$101,400
4	HK$36,400
5	HK$2,500
6	HK$5,400
7	HK$10,400
8	HK$126,000
9	HK$82,880
10	HK$86,400
11	HK$17,500
Total amount:	HK$752,020

F. THE SEVEN LAKE MAIN CONTRACT

F.1 The agreed unit price

56.  The plaintiff’s pleaded case of the agreed unit price was: (1) base/wall cabinet at HK$250/foot, and (2) tall cabinet at HK$500 per foot, which was agreed to by the defendant in December 2014.  The plaintiff has further sent the corresponding agreed quotations to the defendant on 7 March 2015 (the “Seven Lake Quotations”).

57.  I agree Ms Wong’s evidence and the documentary evidence in this regard is in line with the plaintiff’s pleaded case: –

(1) Ms Wong stated that the work for Seven Lake project commenced in about mid-November 2014, and it was only at around that time that the defendant agreed with Mr Tsang (on behalf of the plaintiff) that the unit price would be HK$250 and HK$500 for wall/base cabinet and tall cabinet respectively.  Mr Tsang also confirmed the same by his evidence.

(2) Importantly, it was Ms Wong’s evidence that she had issued quotations to the defendant on 7 March 2015 (ie the Seven Lake Quotations) and these quotations reflected the parties’ agreement.  There is no evidence from the defendant to contradict Ms Wong’s evidence, or to show that the Seven Lake Quotations did not in fact accord with the parties’ agreement.

(3) There is no dispute that the defendant had received the Seven Lake Quotations on 7 March 2015.  This was pleaded at paragraph 31 of the Defence confirming receipt of a quotation YK 1425 for a sum of HK$2,485,580.

58.  On the evidence, the contractual bargain of the parties in respect of unit prices for each unit from A to H were embodied in the Seven Lake Quotations which can be summarized as follows: –

Description	Price per Unit
Residential unit A	HK$11,125
Residential unit B	HK$9,500
Residential unit C	HK$11,000
Residential unit D	HK$12,625
Residential unit E	HK$12,625
Residential unit F	HK$11,125
Residential unit G	HK$9,625
Residential unit H	HK$11,125

59.  In the defendant’s Defence, the defendant denied that the price for work under the Seven Lake Main Contract had been agreed.  However, on the uncontested evidence of Ms Wong, I hold that the plaintiff has discharged the burden in showing that the agreed unit price was in fact HK$250 and HK$500 per foot for base/wall cabinet and tall cabinet respectively and more importantly the Seven Lake Quotations represented the contractual bargain of the parties in respect of the Seven Lake project.

60.  The defendant also pleaded in the Defence that the plaintiff was in breach of the Seven Lake Contract by instructing all the workers of the plaintiff to cease carrying out the work at Seven Lake. Regardless of what legal consequence this might have on the plaintiff’s claim, the defendant’s allegation of the plaintiff’s breach of contract must fail on the facts: –

(1) Ms Wong’s evidence was clear that it was agreed between the parties that periodic payments were required in accordance with the quantity of work done.  In a project of sizeable magnitude, this is hardly surprising, and Ms Wong’s evidence is not contested;

(2) The defendant had failed to keep up with such periodic payments; and

(3) The plaintiff therefore had made it clear that the plaintiff would continue to perform the Seven Lake Contract upon being paid the agreed periodic payments by the defendant.

F.2    The amount of work done

61.  The plaintiff’s pleaded case on the amount of work actually done is as follows: –

Residential unit	Total units	Remarks
A	31	5th to 12th floors 14th to 36th floors
B	31	5th to 12th floors 14th to 36th floors
C	31	5th to 12th floors 14th to 36th floors
D	29	5th to 12th floors 14th to 34th floors
E	28	5th to 12th floors 14th to 33rd floors
F	20	8th to 11th floors 14th to 27th floors 35th to 36th floors
G	21	6th to 11th floors 15th to 27th floors 35th to 36th floors
H	22	6th to 11th floors 14th to 27th floors 35th to 36th floors

62.  This was based on a record produced by the main contractor as at 20 April 2015, which was the date on which the plaintiff was denied access to further performance of the work.

63.  Ms Wong stated that of the 240 sets required to be installed, only 27 sets were not completed.  According to the records of the main contractor: –

(1) 10 sets of cabinets in Unit F were not completed.

(2) 9 sets of cabinets in Unit G were not completed.

(3) 8 sets of cabinets in Unit H were not completed.

64.  Therefore, the plaintiff’s pleaded case on the amount of work done was in fact consistent with the main contractor’s record.

F.3    Quantum under the Seven Lake Main Contract

65.  The plaintiff, having established that: (1) the unit prices in the Seven Lake Quotations represented the parties’ contractual bargain, and (2) the actual amount of work done was in accordance with the main contractor’s record, the total amount of the claim under the Seven Lake Main Contract can be quantified as follows: –

Residential unit	Actual quantity executed (units)	Price per Unit	Total price
A	31	HK$11,125	HK$344,875
B	31	HK$9,500	HK$294,500
C	31	HK$11,000	HK$341,000
D	29	HK$12,625	HK$366,125
E	28	HK$12,625	HK$353,500
F	20	HK$11,125	HK$222,500
G	21	HK$9,625	HK$202,125
H	22	HK$11,125	HK$244,750
		Total:	HK$2,369,375

G. THE SEVEN LAKE VARIATION ORDERS

66.  By its pleadings, the plaintiff claimed against the defendant under 3 VOs (ie VO15, VO16, and VO17) regarding the Seven Lake project as follows: –

Variation Order number	Amount
15	HK$283,200
16	HK$33,800
17	HK$108,020

G.1 Variation Order 15

67.  Variation Order 15 relates to the installation of bathroom cabinets. 

68.  The unit price for installing the bathroom cabinets has in fact been agreed.  According to Ms Wong’s uncontested evidence, the agreement after negotiation was HK$400 per cabinet. 

69.  During examination-in-chief, Ms Wong fairly clarified that the amount claimed under VO15 and mentioned at paragraph 62 of her witness statement in relation to the bathroom cabinet installation should only be HK$283,200.  This is because the plaintiff only installed 708 bathroom cabinets out of 914.  In a letter to the defendant from the plaintiff dated 8 May 2015, the plaintiff had already told the defendant that it had only installed 708 bathroom cabinets.

70.  The computation of the claim under VO15 is thus HK$400 x 708 bathroom cabinets, amounting to HK$283,200.

G.2 Variation Order 16

71.  VO16 relates to labour cost charged for various works done.  An invoice for this sum was sent to the defendant by the plaintiff on 18 April 2015. 

72.  In the defendant’s email of 5 May 2018, the sums stipulated under VO16 were mentioned by the defendant, when suggested values were put up by the defendant.  It can be noted that the entire sum of HK$33,800 was accepted by the defendant.  There was no allegation that this sum was in any way unreasonable.

G.3 Variation Order 17

73.  The plaintiff’s claim under VO17 may be summarized as follows: –

Unit	Price
A	HK$24,410
B	HK$3,100
C	HK$24,410
D	HK$2,900
E	HK$2,900
F	HK$23,650
G	HK$3,000
H	HK$23,650
Total:	HK$108,020

74.  The invoices covering VO17 was sent to the defendant on 17 April 2015. 

75.  The valuation of many of the items under VO17 was in fact in line with the defendant’s own valuation. It is to be noted that:

(1) The item “開生口孔, 貼封邊” valued at HK$450 by the plaintiff was valued by the defendant at HK$300 as seen from the email dated 5 May 2015;

(2) The item “油煙機櫃頂做收口” valued at HK$130 by the plaintiff was the same given by the defendant in his email dated 5 May 2015;

(3) The item “吊櫃底加保護” valued at HK$100 by the plaintiff was the same given by the defendant in his email dated 5 May 2015; and

(4) The item “改底担2條” valued at HK$50 by the plaintiff was the same given by the defendant in his email dated 5 May 2015.

76.  It can be seen that the plaintiff’s valuation for many items did not markedly differ from the defendant’s own valuation.  On a whole, it cannot be said that the plaintiff’s valuation was unreasonable. 

77.  Having established that the invoices recorded the actual amount of work done, the unit prices on the invoices were multiplied by the number of floors for which work was done.  I accept the invoiced sum of HK$108,020 is a reasonable sum which is now claimed under VO17.

78.  In the circumstances, I accept the total amount allowed under VO15 to VO17 should be HK$425,020.

Variation order number	Amount
15	HK$283,200
16	HK$33,800
17	HK$108,020
Total amount:	HK$425,020

H. CONCLUSION

79.  For the reasons set out above, the plaintiff has proved its entitlement to the following sums: –

Seymour Main Contract	HK$912,600
Seymour Variation Orders (VO1 to VO11)	HK$752,020
Seven Lake Main Contract	HK$2,369,375
Seven Lake Variation Orders (VO15 to VO17)	HK$425,020
Total:	HK$4,459,015

80.  There is no dispute that credit must be given to the defendant’s interim payments that were made in respect of the Seymour and Seven Lake projects as follows: –

Date	Amount
20 June 2014	HK$200,000
4 August 2014	HK$100,000
22 September 2014	HK$100,000
23 October 2014	HK$100,000
1 November 2014	HK$30,000
29 November 2014	HK$500,000
15 January 2015	HK$400,000
February 2015	HK$97,600
4 February 2015	HK$350,000
10 April 2015	HK$400,000
Total:	HK$2,277,600

81.  Accordingly, I gave judgment in favour of the plaintiff in the sum of HK$2,181,415 (being HK$4,459,015 – HK$2,277,600), together with interest thereon and costs of the original action as set out in paragraph 6 above. 

82.  I express my gratitude to counsel for the plaintiff for his helpful assistance in this matter.