SHARP ACE LTD. v. LI PING WAH PETER

HCA 6746/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6746 OF 1998

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J U D G M E N T

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1. The plaintiff in this action claims the balance of an amount due for work done and materials supplied in the renovation carried out to the residence of the defendant at Flat A, 12th Floor including roof garden, Tower 3, Grand Court, No. 12 Ho Man Tin Hill Road, Kowloon ("the premises"). The amount claimed is HK$212,850.00. This is based on a revised quotation in writing ("the revised quotation") that is alleged to have been accepted by the defendant verbally before the plaintiff commenced work in July 1997. The amount in the invoice issued to the defendant on 30 December 1997 ("the invoice") after completion of work was HK$582,850.00, which was made up of the amount in the revised quotation being HK$516,700.00 and the additional work carried out in the sum of HK$66,150.00. Prior to the issue of the invoice, the defendant had paid HK$370,000.00 in total. There was left outstanding the sum of HK$212,850.00 which the plaintiff seeks to recover in this action.

2. The defendant has disputed liability on the following grounds:

(1) It is denied that the defendant had accepted the price in the revised quotation. The defendant alleges that the parties had agreed a contract sum in the amount of HK$500,000.00.

(2) The additional works were not requested or authorised by the defendant.

(3) There was delay in completion of the works in that the plaintiff had failed to complete the works within the two months in the summer holidays, i.e. July and August 1997, and in any event by early September 1997, as agreed.

(4) The work done was defective and of poor or sub-standard quality. The defendant has a set-off and counterclaim for defective work in the sum of HK$321,620.00.

The background

3. The plaintiff company has carried on business in construction, decoration and interior design. Its major shareholder and the director who runs the company is Mr. Wu Wing Chi. He supervised the project for the renovation of the premises with a foreman employed by the plaintiff. The renovation work related to the kitchen on the 12th Floor and the roof garden. The building where the premises are located had the occupation permit issued in October 1981.

4. Some time in March 1997, the defendant approached Mr. Wu and asked him to prepare a quotation for the project. It was in about May 1997 that Mr. Wu got round to a site inspection and his staff prepared the plans and drawings. In June 1997, he sent a written quotation to the defendant ("the 1st quotation") and the total amount stated therein was HK$560,100.00. This was followed by the revised quotation referred to earlier. The difference in price between the two quotations was due to the changes made to the quantity of work, the design and the materials used.

5. One notable change that was made to the quotation related to the canopy in the roof garden. In the 1st quotation, provision was made for an aluminium canopy with unbreakable plastic and the structure was in a curved shape. In the revised quotation, this was altered to an aluminium canopy with a sloping roof made of tempered glass. In the invoice sent to the defendant after the completion of work, under the section for additional works, the aluminium canopy was changed to an electric louvre roofing system ordered from Australia. It is the defendant's case that notwithstanding the change, the plaintiff had not asked for an upward adjustment of the price. Further, if the plaintiff had sought an increase in price, the defendant would not have agreed to change the canopy in that way.

6. There is dispute between the parties as to when the work had commenced. According to the plaintiff, work had commenced the day after a down payment of HK$100,000.00 was made. It is not in dispute that that sum was paid on 24 July 1997. The defendant's account was that work had already started in early July and the payment of HK$100,000.00 was not in the nature of a down payment but was for work that had been carried out in part.

7. As for the completion date, there is also dispute about that. Mr. Wu gave evidence that this took place at the end of October 1997 and remedial works were carried out as requested by the defendant in November 1997. The defendant's evidence was that he had given verbal warnings to the plaintiff of defective works and delay in completing the works in September, October and November 1997. However, no remedial work was carried out to the defects and the plaintiff had simply ceased to carry out any further work in about mid November.

8. The defendant received the plaintiff's invoice in early January 1998. As no payment was received from the defendant, the plaintiff instructed solicitors to send a letter of demand on 30 March 1998. The defendant replied by a letter of his solicitors dated 3 April 1998 in which the grounds for disputing liability that I have set out earlier were mentioned with the exception of the allegation that the additional works were not authorised by the defendant. The writ was issued on 29 April 1998.

The expert evidence

9. The defendant had initially engaged an interior contractor, Pado Contracting Co. Ltd. ("Pado") to provide expert reports on the costs of the remedial work to be carried out. Pado provided a quotation in June 1998, an expert report in January 2000 and a supplemental report in May 2000. At the trial, the defendant did not rely on the expert reports of Pado although the photographs taken by Pado were adduced as evidence, without any objection from the plaintiff. A curious feature about the Pado reports is that the contractor was asked to give an opinion not only on the cost of the remedial work but also an evaluation of a fair and reasonable price for each and every item of work done by the plaintiff. The subsequent expert engaged by the defendant, Mr. C. W. Lui, who is a registered professional surveyor of the quantity surveying division, was also asked to do the same exercise apart from giving a cost estimate of the remedial work. This aspect of the opinion rendered by the experts of the defendant has no bearing at all to the issues in this case on the pleadings. The question relating to the amount charged is quite simply what was the price agreed between the parties because it was accepted on both sides that there was an agreement as to the price for the items in the revised quotation, and in respect of the alleged additional work whether this was authorised by the defendant. There is no question of the court making an assessment of what is a fair and reasonable price that the plaintiff is entitled to charge.

10. An order was made in January 2001 in which the expert witnesses to be called were limited to two on each side. The defendant was given leave to file two expert reports obtained in December 2000 and the plaintiff was to file its expert report within 14 days of the order. At the trial, the defendant called as expert witnesses Mr. Lui and Mr. K. K. Chan, who had provided a report on water leakage in the premises. The plaintiff challenged if Mr. Chan is properly qualified to give expert evidence on this, as Mr. Chan is not a registered professional surveyor of the building surveying division but is registered in the quantity surveying division like Mr. Lui. The plaintiff's legal advisers had no prior knowledge of Mr. Chan's professional qualifications as his curriculum vitae was not provided until he was called to give evidence and he only gave the information in cross-examination that he was not registered in the building surveying division. The expertise of Mr. Chan would be dealt with later in the judgment.

11. The plaintiff did not file any expert report within the time as provided in the order in January 2001. It was only on the first day of the resumed hearing in August 2001 after the case was adjourned part heard in July 2001 that the plaintiff made a belated application to put in expert evidence to deal with water leakage in the premises. By that time, the plaintiff had closed its case and the defendant was being cross-examined. I rejected the plaintiff's application as no good reason was shown why the order of the court in January 2001 was not complied with.

12. Other than Mr. Wu and the defendant, the only witnesses were the defendant's two expert witnesses. I turn to consider the grounds of defence relied on by the defendant.

The alleged agreed price

13. On the copy of the revised quotation produced by the defendant, the total figure of HK$516,700.00 was deleted and the figure of 480,000 was written below. According to the defendant, the alteration on that copy was made by him when he received the revised quotation from Mr. Wu as he took the view that HK$480,000.00 was a more reasonable figure. The defendant alleged that Mr. Wu did not agree stating as his reason that the defendant had required the plaintiff to complete the works in two months' time. The defendant then took into account the time factor and suggested a figure of HK$500,000.00 as the contract sum, which was accepted by Mr. Wu. The defendant did not, however, write down the agreed figure of HK$500,000.00 on his copy of the revised quotation.

14. Mr. Wu admitted that he took the revised quotation with the drawings to the defendant and there was bargaining as to the price. He said that the defendant had merely asked for a reduction without giving a specific figure and he did not agree to any reduction. According to Mr. Wu, the only concession he made was to the amount and time of the stage payments. It was written on the revised quotation that the 1st payment should be 40% of the total contract sum and that would have been HK$206,680.00. Further, the 2nd payment of 30% was to be made 15 days after the commencement of work and the 3rd payment of 20% on completion of work, leaving the balance of 10% to be paid 30 days after completion. After negotiation with the defendant, Mr. Wu agreed to accept HK$100,000.00 as the 1st payment and that the subsequent payments could be made with regard to the progress of work instead of on the dates as provided in the revised quotation. The defendant then accepted the price in the revised quotation and work was carried out on that basis.

15. Mr. Wu gave evidence that it was only after the invoice dated 30 December 1997 was issued to the defendant that the defendant had requested him to reduce the price to HK$470,000.00 or HK$480,000.00. Again, he had refused to reduce the price. This would be in early January 1998 as he remembered that he had immediately attended on the defendant after the invoice was issued seeking payment. He admitted there was another occasion when he had a discussion with the defendant about the invoice during which the defendant complained to him that the plaintiff had failed to complete the work and remedy the defects to the defendant's satisfaction and that the defendant had incurred expenses to remedy the defects. At that meeting, the defendant offered to set off the expenses to remedy the defective work against the balance of the contract sum payable to the plaintiff and proposed to pay HK$100,000.00 in full and final settlement. Mr. Wu turned down this offer.

16. I have no hesitation in accepting the evidence of Mr. Wu, whose evidence I find generally reliable. The defendant is an unsatisfactory witness. He gave contradictory evidence and the position taken by him on certain matters is quite simply unrealistic and defies logic. I find that the defendant had accepted the price as stated in the revised quotation. I regard the defendant's evidence on this as incredible and the reasons he gave for not writing down the alleged agreed figure are just unconvincing. If the parties had indeed agreed on the price of HK$500,000.00 as alleged, there was no reason why the defendant should not have written down this figure on his copy of the revised quotation.

Additional works

17. Items 27 to 34 in the invoice related to the additional works. Of these items, there was no charge for items 32 and 33. It is the plaintiff's case that none of these items were covered in the revised quotation. It was stated at the end of the revised quotation that if there were any alteration or addition in the works these items would be charged separately. According to Mr. Wu, for the additional works, he had given the defendant a rough figure when the defendant gave instructions for such work to be done on the understanding that the exact figure to be charged would be calculated later. I accept the evidence of Mr. Wu on this generally, as the parties' agreement that additional works would be charged separately is borne out by the statement in the revised quotation I have mentioned. I turn to consider each of the items in dispute.

Item 27

18. Item 27 was for the additional price incurred in the sum of HK$28,650.00 due to the change from the aluminium canopy of tempered glass to the electric louvre ordered from Australia. The defendant's case is that other than this item, he had not requested the plaintiff to vary any item of work or to do additional work. He maintained that he is not liable to pay for additional costs for this item of work, which he authorised because when he instructed Mr. Wu to change to the electric louvre, Mr. Wu did not tell him there would be any increase in price due to the change. Further, the defendant had thought that the electric louvre should cost about the same as the aluminium canopy for which the plaintiff had quoted a price of HK$65,000.00.

19. According to the evidence adduced by the plaintiff, the electric louvre was ordered from Zephyr Engineering Ltd.("Zephyr"), a local agent of the Australian supplier, at HK$50,000.00 and this price had included the cost of installation by Zephyr. A metal frame was required to support the louvre and this was ordered from a local company, Four Seas Stainless Steel Engineering Co. ("Four Seas") at HK$36,000.00. On top of that, the plaintiff had incurred costs of HK$2,500.00 for the installation of additional electric wiring and sockets. The total cost came up to HK$88,500.00. The total amount for this item appearing on the invoice was HK$93,650.00, made up of HK$65,000.00 and HK$28,650.00, which included an element of profit for the plaintiff in the sum of HK$5,150.00.

20. When Mr. Wu was cross-examined, it was put to him that the defendant did not introduce Zephyr to him. However, when the defendant was cross-examined, he admitted that he had given the name of Zephyr to Mr. Wu when he had the idea of changing the aluminium canopy to an electric louvre, which he read about in an advertisement, and he had asked Mr. Wu to contact Zephyr. He claimed he had no idea the louvre was manufactured in Australia and denied that Mr. Wu had given him any verbal quotation for this. He admitted that the louvre was installed at around October 1997 but claimed that he did not know why it was delivered late or that this was the second louvre delivered by Zephyr in that an earlier delivery was found unsuitable, as this did not correspond to the colour specified by the defendant. He agreed that the late delivery of the louvre was one reason why there was delay in the completion of the works.

21. I find the defendant's evidence evasive and inconsistent. His assertion that he did not know the louvre was manufactured in Australia or why the louvre had arrived late did not have the ring of truth about it. If he was anxious for the works to be completed by the end of the summer holidays or in September, and the louvre had not been installed until October, one would have expected him to find out from the plaintiff why Zephyr could not make prompt delivery and would have learned about the source of the louvre even if he had not known about this earlier. I also think it inherently improbable that Mr. Wu did not give the defendant a verbal quotation when the defendant proposed changing to an electric louvre, bearing in mind that this is a substantial and costly item in the quotation. There is simply no rational basis for the defendant to think that the louvre would have cost much about the same as the aluminium canopy. I find the defendant liable to pay the price of the louvre as an additional work requested by him and for which he had agreed with the plaintiff that the exact price was to be calculated subsequently.

Item 28

22. This item in the invoice related to the dismantling of ceramic tiles of 4 inches by 8 inches by the side of the roller shutter on the roof and replacing the tiles with green flat stones (青板石) for a surface area of 300 sq. ft. In the invoice, the plaintiff had omitted to type in the Chinese character of "井" which bears the meaning of 100 sq. ft. in the trade. It is not challenged that the surface area of the work in item 28 covered an area of 300 sq. ft. and the defendant also admitted eventually that the laying of green flat stones was done with his consent, after shifting his ground in cross-examination whether consent was given. However, he alleged that the work described in item 28 (for which HK$21,000.00 was charged) was already covered by item 25 in the invoice (for which HK$20,000.00 was charged). The work as described in item 25 related to the using of Italian bricks (意大利磚面) to decorate the surface of the existing low external walls up to the wall at the water tank on the roof. Even on the wording in the invoice, the description of the material used in item 28 is quite different from the material used in item 25.

23. Mr. Wu pointed to a photograph in the bundle (being D95) as showing one of the low external walls on the surface of which the plaintiff had laid decorative bricks being the work done as stated in item 25 of the invoice. The defendant also admitted in cross-examination that this was correct and pointed to another photograph in the bundle (being D90) showing the other external wall facing the side of the street for which the work in item 25 was done. One can readily see that the decorative bricks on the surface of the low external walls are completely different from the green flat stones shown in other photographs. Notwithstanding the difference in description and in appearance, the defendant maintained in his evidence that to him, Italian bricks and green flat stones meant the same thing.

24. The defendant had also alleged that item 28 was not an additional work but was remedial work of not more than 10 pieces of wall tiles damaged by the plaintiff's workers and that these tiles were in an area just below the sliding door of the storeroom leading to the roof. This just cannot be right as it was stated in item 28 that the surface area of the wall for which green flat stones were laid was 300 sq. ft. It is very clear from the photographs in the bundle (see D110 and D186) what work was done to which of the walls being the work referred to in item 28.

25. I accept Mr. Wu's evidence. The defendant's shifting evidence on this is risible. I am satisfied that the work in item 28 was an additional item of work not included in item 25 as alleged by the defendant and the defendant is liable to pay for the item as charged in the invoice.

Item 29

26. This related to the flower beds placed between the external wall built by the developer and the existing internal wall built by the defendant and for which the plaintiff had charged HK$7,600.00. The defendant gave evidence that he was not informed about this work beforehand and hence he should not be liable. Further, it was suggested to Mr. Wu in cross-examination that this item was covered by item 17 of the invoice (which related to flower beds of high and low levels finished with flat stones of a rusty colour for which the plaintiff had charged HK$38,000.00) and/or item 22 (which related to the laying of soil and the plantation in the flower beds for which the plaintiff had charged HK$30,000.00).

27. It was stated in the invoice that the gap between the external and internal walls was to be covered with stainless steel sheets initially and they were changed to flower beds. Mr. Wu's evidence was that the defendant requested him to place flower beds in the gap and he produced an invoice from Four Seas showing that the plaintiff was charged HK$6,400.00 for these flower beds made by Four Seas. The flower beds in item 29 were made of stainless steel basins. I reject the defendant's evidence that the change was made without his consent. The flower beds in item 29 were of a wholly different finish and could not have been covered by item 17, which related to flower beds made of flat stones of a rusty colour. Item 22 did not relate to the provision of flower beds. I find that the defendant is liable to pay for this additional work as invoiced.

Item 30

28. This item was partly for the additional planting of flowers in the flower beds being item 29 and in front of the water tank, and partly for the moving of the existing plants from the premises of the defendant to his neighbour's premises on the roof when the renovation work on the roof was carried out. The total amount charged was HK$6,000.00. The plaintiff had produced an invoice from its sub-contractor showing that the plaintiff was charged HK$8,000.00 for the additional planting of flowers. It was suggested to Mr. Wu in cross-examination that the additional planting of flowers was covered by item 22 in the invoice and that he should not have charged for the moving of the plants to neighbouring premises as that was incidental to the work carried out.

29. I have found that the flower beds in item 29 were additional work not covered by any item in the revised quotation. The planting of flowers in such flower beds would also be additional work not covered by the planting work in item 22. As for the moving of the existing plants to neighbouring premises, Mr. Wu explained that the place to which the plants were removed as specified by the defendant was some 40 to 50 feet away whereas he could have removed the plants to a nearer place if it had not been for the defendant's request. I accept Mr. Wu's explanation. I find that the defendant is liable to pay for this item as charged.

Item 31

30. This related to the supply and installation of an exhaust pipe and filter in the kitchen and the charge was HK$1,100.00. According to the defendant, he did not request the plaintiff to install these items although he was aware of their installation. He accepted that these items were not mentioned in the revised quotation and the amount of the charge in the invoice is reasonable but asserted that he is not liable to pay because there used to be an exhaust pipe and filter in the kitchen before the decoration and these items were shown in the sketches made by the plaintiff. Hence, the plaintiff should provide these items to him free of charge, as the defendant would seem to imply, and he does not regard this as additional work for which he is liable to pay.

31. This amply demonstrated the unreasonable stance taken by the defendant in this matter. I find that he is liable to pay for item 31.

Item 34

32. This was for the supply and installation of stainless steel racks and towel rails in the sum of HK$1,800.00. They were not in the revised quotation. The defendant accepted that the amount charged is reasonable but alleged it was not additional work because these items had been shown in the sketch provided by the plaintiff. I reject his reasons and find that he is liable to pay for item 34.

33. In summary, I find that the defendant is liable to pay for the additional works as charged in the invoice in the total sum of HK$66,150.00.

Delay in completion

34. It is pleaded in the Re-amended Defence and Counterclaim that the defendant had specifically requested the plaintiff to complete the works within two months in the summer holidays, i.e. in July and August 1997, and in any event in early September 1997 so as not to affect the studies of the defendant's children and that the plaintiff had accepted it was a pre-condition of the agreement to complete the works within the time as requested. This allegation is inconsistent with the letter of the defendant's solicitors dated 3 April 1998 in which it was alleged that the plaintiff had represented that the job "would definitely be completed by the end of September or early October 1997 the latest" and it was on that representation that the defendant had engaged the plaintiff to carry out the work.

35. It was put to Mr. Wu in cross-examination that he had agreed to complete the works before the end of the summer holidays in 1997. Mr. Wu admitted that he had agreed to complete the works in the kitchen before the end of the summer holidays but as regards the works on the roof, he had told the defendant that this would depend on the weather, as the plaintiff could not proceed with the work whenever it rained. He had only given an estimate to the defendant, not a promise, that the project would be completed by the end of September 1997. Work on the kitchen was completed in August 1997 but the work on the roof was delayed due to the change to an electric louvre, the late delivery of the louvre by Zephyr, other variations and additional work requested by the defendant and the rainy days.

36. I accept Mr. Wu's evidence. I find there was no contractual promise on his part that the entire works including the work on the roof would be completed by a specific time. In any event, no loss or damage has been pleaded by the defendant as a result of the alleged delay.

The counterclaim for expenses actually incurred

37. Before I consider the counterclaim for the costs of remedial work which has not been done, I will deal with the counterclaim for expenses actually incurred for the alleged remedial work that had been carried out. There are three such items.

The gardening works

38. This is a claim for HK$16,370.00 being expenses incurred by the defendant when another contractor was engaged in November 1997 to carry out gardening works on the roof. It was alleged that the contractor was engaged to carry out the gardening works left uncompleted by the plaintiff. An invoice from the contractor for the amount claimed was produced.

39. I fail to see how this was defective work or work left uncompleted by the plaintiff. The plaintiff had produced photographs showing the condition of the plantation in the roof garden when the plaintiff left the site on completion of work. From what I understand of the defendant's evidence, he was not happy with the plantation and he got another contractor to plant more flowers to give a look of exuberance in the roof garden. I reject the counterclaim for this item.

The filter system in the fish pond

40. An invoice was produced showing that the defendant had engaged another contractor to install a filter system in the fish pond and to carry out consequential works in December 1997 and was charged HK$14,000.00. The initial allegation in the pleading was that the filter system installed by the plaintiff was "damaged". This was changed to an allegation that the filter system "did not work" and so was replaced by the defendant. I note that the plaintiff had charged HK$9,500.00 for the filter system of the pond and connected works. The defendant admitted in his evidence that when the pond was completed, the plaintiff had tested the filter system in the defendant's presence and it was then working normally.

41. The defendant also said in cross-examination that he did not tell the plaintiff about the defect of the filter system because this was only discovered after November 1997 and he had by then given final warning to the plaintiff that he would engage another contractor to complete the unfinished work or to remedy the defects if the plaintiff did nothing. He contradicted himself in re-examination and stated that he did inform the plaintiff of the problem with the filter system and that the plaintiff had sent a master to inspect but the problem was not rectified.

42. I also reject the counterclaim for this item as the defendant has failed to establish that the replacement of a more expensive filter system was due to any defective work of the plaintiff. His evidence on this, as in many other aspects in this case, is unsatisfactory and contradictory.

The kitchen countertop

43. In February 1998, the defendant engaged another contractor to repair and replace the Corian countertop in the kitchen, which was broken, and it was alleged that this was due to the plaintiff's poor workmanship. The cost incurred was HK$1,250.00.

44. The defendant gave evidence that the crack in the countertop had only appeared in February 1998, about half a year after this was installed by the plaintiff. I am not satisfied on the evidence that this was due primarily to defective workmanship of the plaintiff. I also reject the counterclaim for this item.

Other allegations of defects

45. The counterclaim for the costs of remedial work, which has not been carried out, has been amended twice. At first, the amount claimed was HK$143,900.00, based on a quotation given by Pado in June 1998. Later, the amount claimed was amended to HK$186,866.00, based on a supplemental report of Pado in May 2000. Eventually, the defendant did not rely on the opinion of Pado and he retained Mr. Lui, who is a registered professional surveyor of the quantity surveying division, to give an estimate of the cost of remedial works that ought to be carried out. On the basis of Mr. Lui's report, the amount claimed in this respect was amended to HK$290,000.00.

46. A substantial part of the cost for remedial work as estimated by Mr. Lui was for the re-roofing of the whole roof garden, the complete replacement of the water proofing system and the knock-on effect of associated items due to the opening up of the entire roof. It is the defendant's case that such remedial work was required due to leakage in the premises because of defective workmanship of the plaintiff in carrying out water proofing work on the roof. Mr. Lui's expert opinion was limited to giving a cost estimate of the remedial work. For the necessity and extent of the remedial work, Mr. Lui relied on the opinion of Mr. Chan, whom Mr. Lui had understood was a building surveyor but whose expertise is challenged by the plaintiff. Mr. Chan also gave an expert opinion on the cause of the leakage in the premises.

47. Before I consider each item of alleged defect for which the cost of remedial work is claimed, it is pertinent to note that for three years, the defendant had not carried out any remedial work to these items. What happened was that the defendant and his family had moved out in July 2000. From about September or October 2000, renovation work was carried out to the three buildings in Grand Court by the incorporated owners. The ceramic tiles on the external walls were replaced, the pipes of the buildings including the pipes on the roof of the premises were replaced, and the lift lobbies were renovated. In about 2001 March, the defendant carried out renovation to his own premises and the extent of the renovation could be described as a complete overhaul of the premises. No doubt, he found it convenient to do so at a time when the buildings in Grand Court were undergoing extensive repairs. The photographs of the premises taken by the parties in June 2001 shortly before the commencement of trial showed that most of the fixtures and fittings in the premises were removed, the kitchen, the toilets and the roof garden including the internal walls were demolished and the premises looked like a construction site. The defendant claimed that he had moved out of the premise due to defective work of the plaintiff in respect of the water proofing system, the gas pipe and the electric switch box. I find that the reason for moving out was primarily due to the extensive renovation to the buildings and to the defendant's own premises and that the alleged defects were relatively minor.

48. Whether the alleged defects were substantial or relatively minor, as I have found, I would still need to consider whether the defendant is entitled to recover from the plaintiff the cost for rectifying them. For that, I would need to address these questions, namely, what was the defect found, whether the defect was due to defective work of the plaintiff, what was the extent of repairs required, and what would be the reasonable cost of the repairs.

49. I set out the various items of alleged defects for which Mr. Lui had given a cost estimate of remedial work in his report:

(1) water leakage and related works;

(2) plugging of the gas pipe;

(3) floor drain in the kitchen;

(4) re-positioning of the stove;

(5 leakage in the sink cabinet;

(6) uneven doors of a cabinet; and

(7) dismantling of the green flat stones and replacement of wall tiles.

50. I will deal with each item in the order set out above.

Water leakage

51. I wish to mention at the outset that I attach no significance to the leakages found in the premises when Mr. Wu and later the defendant went there to take photographs in late June 2001 shortly before the trial. As I have mentioned above, the ceramic tiles of the external walls and the pipes of the buildings were being replaced and work had commenced in September or October 2000. The building in which the premises are situated had been left in an unprotected state for some time because of the renovation work and water could easily have seeped into the exposed cracks when it rained. I find on the evidence that there was no actual leakage or dripping of water through the roof to the floor below before the extensive renovations were carried out to the buildings in Grand Court.

52. The defendant alleged that when the pond in the roof garden was constructed and was first filled up with water in October or November 1997, water had dripped through the floor slab to the master bedroom below. He immediately complained to Mr. Wu about the leakage and after repairs were carried out by the plaintiff's workers, there was no more leakage but there were water marks in the ceiling of the master bedroom.

53. Mr. Wu denied that the defendant had complained to him of leakage from the fish pond. According to Mr. Wu, in about November 1997, the defendant had only complained to him of water marks on the ceiling of the master bedroom. Prior to the commencement of work, Mr. Wu had not inspected the ceilings of the bedrooms to see if there were signs of leakage or water marks as the bedrooms were not within the scope of his work and his work was limited to renovation of the kitchen and the roof garden. On receiving the defendant's complaint, he sent a master to carry out repairs. The source of leakage was located and that was in outer surface of the existing internal wall on the roof, which was not built by the plaintiff. A hole was drilled in the internal wall, water proof glue was applied and then water proof cement. The wall paper on the ceiling of the master bedroom was repaired. This work was done as part of the remedial work required by the defendant shortly after the completion of the works by the plaintiff and at no additional cost to the defendant. Mr. Wu had also informed the defendant of the source of leakage that had caused the water marks. I accept Mr. Wu's evidence on this and reject the defendant's evidence about there being leakage from the pond when it was filled with water. I find that prior to the extensive renovations to the buildings in Grand Court, there were only some water marks in the ceiling of the master bedroom.

54. The defendant also alleged that water marks were found in the ceiling of another bedroom in the premises since about mid 1998. This alleged defect was not pleaded in the Defence filed in June 1998 or in the Amended Defence filed in May 2000. Photographs were taken by Pado on the defendant's instructions in June 1998 and on two occasions in January 2000. These photographs showed water marks only in the ceiling of the master bedroom. The first photographs showing water marks in the ceiling of another bedroom were the photographs in Mr. Lui and Mr. Chan's reports taken in December 2000. I reject the defendant's evidence and find that the water marks in the ceiling of another bedroom had only appeared after January 2000.

55. I turn to the question if the water marks were due to the defective workmanship of the plaintiff in the water proofing works on the roof. This is where the expert opinion of Mr. Chan comes in.

56. Mr. Chan noted that the locations of the water marks in the ceilings of the master bedroom and another bedroom were close to the pond and the flower beds where water would be found. He observed efflorescence at the joints of the floor tiles close to one of the flower beds. There were also water marks at the store room on the roof and plaster and paint in the store room had peeled off. From these observations, Mr. Chan concluded that there was a failure of the water proofing system on the roof and he is of the opinion that a complete replacement of the water proofing system is required by removing all the existing finishes to the structural slab and walls and re-applying the water proofing system. Mr. Chan is of the view that as the plaintiff was responsible for water proofing works to the roof floor tiles, the flower beds and the pond, the plaintiff should be responsible for the failure of the water proofing system.

57. This last point is not correct in that the plaintiff did not carry out water proofing work on the entire roof area. There was an area of about 30 to 35 cm between the external wall of the roof built by the developer and the existing internal wall built by the defendant for which the plaintiff did not carry out water proofing work. It would appear that the purpose of the internal wall was to form a screen to hide the water pipes that ran along the inside of the external wall. The plaintiff was not required to demolish the internal wall in the renovation. Without demolishing the internal wall, water proofing work could not be done to the gap between the external wall and the internal wall. There was no discussion between the parties if water proofing work should be done up to the inside of the external wall or just up to the inside of the internal wall, as the plaintiff had done. I find that the defendant knew or must have known that there would be no water proofing work to the area between the two walls, as the internal wall was not required to be demolished. I further find that the plaintiff was not responsible for the lack of water proofing work in that area.

58. There would appear to be other possible causes for the water marks in the ceilings of the master bedroom and another bedroom in the premises not attributable to defective workmanship of the water proofing work carried out by the plaintiff. I have mentioned the absence of water proofing in the gap between the walls on the roof. It was found by the plaintiff when repairs were carried out in November 1997 that there was a source of leakage in the outer surface of the internal wall, which was again not the plaintiff's responsibility. Other possible causes of leakage were canvassed in the cross-examination and re-examination of Mr. Chan and they were as follows: water flowing through the floor slab into the area below; bursting of hidden pipes; water flowing out from cracks or openings into the area below; seepage from the external wall; water moving along the pipes and going through the floor slab and down to the area below; and water condensation.

59. Mr. Chan had not carried out any testing of the structure, any opening up or exploration of concealed areas, or a flooding test to determine the cause of leakage or water marks, notwithstanding that the defendant had told him, as he had noted in his report, that there would be water dripping at the ceiling of the master bedroom whenever the pond was filled up with water. He opined that he was not asked to investigate the source of leakage but the cause of it. This does not appear to me to be a meaningful distinction here. Mr. Chan had no knowledge of the extent of water proofing work actually done by the plaintiff. His opinion that the water marks were due to failure in the water proofing work done by the plaintiff was based apparently on the location of the water marks and the existence of efflorescence at the some of the joints of the floor tiles.

60. Mr. Chan had sought to exclude all other possible causes for the water marks in his evidence and I have considered his explanations. He also claimed he did not see any water mark on the internal wall, in explaining why he had excluded leakage between the external and internal walls as a possible cause of the water marks. He did not mention any of these matters in his expert report notwithstanding that they would be of material importance to his deduction and conclusion. I find this highly unsatisfactory. In view of a number of unsatisfactory features about his evidence, I have reservations if he had indeed made the observation regarding the internal wall as claimed. I am left in doubt if his thought process was reached after mature and careful consideration or whether he had only applied his mind to it when he was questioned in an attempt to justify the conclusion in his report. I regret to say that I do not find Mr. Chan's evidence sufficiently cogent or convincing so as to adopt his opinion and find that the water marks were due to defective work of the plaintiff.

61. As mentioned earlier, Mr. Chan is not registered as a professional surveyor in the building surveying division. He was registered as a professional surveyor in the quantity surveying division in 1994 or 1995. The expertise of a building surveyor is the diagnosis of defects in buildings. Mr. Chan has never taken any assessment of professional competence test in order to be registered as a professional surveyor in the building surveying division. He had not given evidence before as an expert on defects in a building. Whatever expertise he has acquired in building surveying would have come from his working experience with Chesterton Petty, which he joined in 1990 and he is currently a director of building consultancy. Building condition surveys is one of his job responsibilities but it is unclear from his personal profile what is the extent of his experience in building surveying.

62. According to Mr. Chan, he had inspected the premises for slightly over an hour in December 2000, about eight months before the trial. He was questioned by Mr. Lawrence Ng, counsel for the plaintiff, on a number of noticeable features about the premises and about the photographs taken on his inspection and he was unable to recall if he had seen or noticed these features. He could not remember the louvre system, which was a big and conspicuous structure on the roof, and it was shown in the photographs of Mr. Lui taken four days earlier. He could not remember that the lift to the premises has two doors opposite to each other and they would open simultaneously, which is an unusual feature. The floor plan drawn by him showing the premises and the lift lobby is incorrect in that it showed a lift with one door opening. He could not remember whether there was any water in the pond notwithstanding a photograph was taken of the pond and he had inspected the pond, including the bottom, to see if there were any cracks in it. He gave evidence initially that there was no scaffolding on the roof when he inspected the premises. When he was shown the photographs taken by Mr. Lui showing there was scaffolding in place, he said he could not remember notwithstanding that he would have to walk up close to the wall which had scaffolding erected if he had taken one of the photographs in his report. He gave confusing and erratic evidence about the photograph showing the interior of the store room. As a result, I am quite unable to attach significance to his finding of water marks in the store room and his opinion as to the cause of such water marks.

63. It was submitted by Mr. Ng for the plaintiff that either Mr. Chan had not inspected the premises at all or that his evidence is so discredited that it should be rejected in total. I would not go so far as Mr. Ng has asked me to do. I do find that Mr. Chan had inspected the premises but it was a cursory inspection and that his report was produced within a short time, as admitted by him. I do not accept Mr. Chan's explanation that he had not noticed or could not remember various conspicuous features because his attention was focussed on water leakage.

64. In summary, Mr. Chan's expert opinion does not inspire confidence. I am unable to accept his opinion that it was less than 50% likely that the water marks in the ceilings of the two rooms were due to sources of leakage between the external and internal walls, an area which was not the responsibility of the plaintiff, as I have found. The defendant, who has the burden of proof on this issue, has failed to establish on the balance of probabilities that the water marks were due to the defective work of the plaintiff and not any other cause.

65. Mr. Chan had also recommended in his report a complete re-roofing of the whole area for the water proofing system to be re-applied. He did not explain why the interior of the roof garden which had the louvre system over it and no water marks were found in the premises below should be re-roofed. I fail to see the necessity of the extent of the re-roofing work as recommended, even if the plaintiff should be liable for defective work in the water proofing system.

66. As I have found against the defendant on this, a very substantial part of the estimated cost of remedial works in Mr. Lui's report, being the cost of re-roofing and associated works due to the knock-on effect, is not recoverable.

Plugging of the gas pipe

67. Mr. Lui estimated an amount of HK$2,700.00 to be incurred for the proper plugging of an unused gas pipe in the kitchen. I am not satisfied on the evidence the plaintiff should be responsible for this, assuming that the work had not been done properly in that it should have been carried out by the gas company. I accept Mr. Wu's evidence that he had informed the defendant that the defendant should make an application to the gas company for proper alterations to be made to the gas pipe. As the defendant had not done so, the plaintiff's workers had merely restored the gas pipe to its existing state when they completed the re-tiling of the kitchen walls.

Floor drain in the kitchen

68. Mr. Lui estimated HK$1,700.00 to be incurred for exposing an existing floor drain outlet which was covered up by the plaintiff. Mr. Wu explained there was a floor drain outlet in the maid's room which was adjoining the kitchen so there was no need to expose the other drain outlet. Neither the defendant nor Mr. Lui had known about the drain outlet in the maid's room. I accept Mr. Wu's explanation.

Re-positioning of the stove

69. This was due to the defendant's complaint that one of the stoves was placed too close to the wall and he could not place a wok on it so he would require the stove to be re-positioned. Mr. Lui estimated HK$16,400.00 for this item. According to Mr. Lui, the defendant had told him that he could not use a large wok on this stove. Mr. Lui thought that it would be possible to use a smaller wok on it. I also note that there were two stoves. If a large wok could not be placed on the stove near to the wall, I do not see why it could not have been placed on the other stove. I fail to see any basis for making the plaintiff liable for this item.

Leakage in the sink cabinet

70. Mr. Lui estimated HK$1,300.00 for making good the leakage in the sink cabinet and the replacement of rusty hinges. He did not verify if the rusty hinges were due to any leakage in the sink cabinet, there being no water in the sink when he inspected. Mr. Wu had explained that there was no leakage and that the water found outside the bottom of the sink cabinet was due to condensation. This seems to me a possible explanation. I am not satisfied that the cause of the rusty hinges was due to leakage and defective workmanship as alleged.

Uneven doors of cabinet

71. One of the cabinets in the kitchen had a pair of uneven doors. To rectify this, Mr. Lui estimated a sum of HK$4,500.00. According to the plaintiff's design sketch, a space of 800 mm should be reserved next to this cabinet for a refrigerator. It was alleged by the defendant that when the cabinet was built, he discovered that the space reserved for the refrigerator was less than 800 mm so he informed Mr. Wu and the plaintiff's workers had to alter one of the doors of the cabinet to make room for the refrigerator thereby resulting in asymmetrical doors. Mr. Wu denied that a space of 800 cm next to the cabinet had not been reserved when the cabinet was built. He explained that there was a main switch box that was housed in the cabinet and there was a pillar behind the switch box of the same width. The cabinet was fitted with pull-out racks of a fixed width. Because of the measurement of the switch box and the racks, this had resulted in a narrower door for one of the doors of the cabinet. I accept the evidence of Mr. Wu. I am not satisfied on the evidence there was defective workmanship of the plaintiff.

Dismantling of green flat stones and replacement of wall tiles

72. Mr. Lui estimated HK$20,000.00 for this item on the basis that it was necessary to replace all the green flat stones on the walls as recommended by Mr. Chan. His estimate of HK$20,000.00 was based on the original price as charged in the plaintiff's invoice. This is not correct as Mr. Lui had taken item 25 in the invoice to be the price for laying green flat stones. As I have found earlier, item 25 had nothing to do with the laying of green flat stones. If Mr. Lui was minded to base his cost estimate on the plaintiff's invoice, he should have taken item 28 and the charge for this item was HK$21,000.00.

73. I reject this claim for a number of reasons. One of the photographs taken by Mr. Chan in December 2000 showed that some green flat stones were missing on the wall. It was alleged by the defendant that these flat stones had fallen off and he had told Mr. Chan about it. Mr. Chan tapped the flat stones with a hammer at random and there was a hollow sound. He inspected the area on the wall where there were no flat stones. He came to the conclusion that cement sand backing had not been fully applied to the back of the flat stones and no preparation work was carried out to the background to provide key for the cement backing. That was why some of the flat stones had fallen off. Hence, Mr. Chan recommended that all the existing flat stones on the wall should be hacked off and re-laid with tiles in a proper manner.

74. According to the defendant, three flat stones had fallen off in 1998 to 1999. This alleged defect was not particularised in the Defence or in the Amended Defence in May 2000. Pado had taken many photographs of the alleged defects pointed out by the defendant and there were a number of photographs of the walls laid with green flat stones. There was no photograph taken by Pado showing any flat stone had fallen off. The defendant said he could not remember if he had told Pado about this when photographs were taken on three occasions. I reject his evidence as incredible.

75. It is clear from the photographs taken in June 2001 that the walls covered with green flat stones had been replaced with ceramic tiles of the same kind as the tiles for the external walls of the building. This was part of the renovation work carried out by the incorporated owners in replacing the tiles of the external walls. Scaffolding was erected on the roof when Mr. Chan carried out his inspection in December 2000. One of the photographs taken by Mr. Lui four days earlier showed some broken tiles on the floor and that some one must have been carrying out chiselling work on the walls of the roof. Mr. Chan accepted that it was possible that renovation work had been carried out on the roof when he inspected the premises but he did not notice this at the time. He also acknowledged that it was possible that the flat stones missing on the wall had been hacked off.

76. I am not satisfied on the balance of probabilities that some of the flat stones had fallen off the wall due to the defective workmanship of the plaintiff. I decline to attach weight to Mr. Chan's opinion as his observation, deduction and recommendation might well have been influenced by the information from the defendant that some flat stones had fallen off. In any event, even if there were defective workmanship of the plaintiff, the defendant has suffered no loss and damage as the walls covered with flat stones were replaced with ceramic tiles as part of the renovation work of the building undertaken by the incorporated owners.

77. In summary, I find that the defendant has failed to establish his counterclaim for expenses actually incurred and for the cost of remedial work that had not been carried out.

Conclusion and orders

78. The defendant has failed to establish any of the grounds on which he has disputed liability. I give judgment for the plaintiff in the sum as claimed being HK$212,850.00 with interest thereon at 12% per annum from the date of the writ being 29 April 1998 to the date of judgment and thereafter at judgment rate until full payment. The counterclaim is dismissed. I make an order nisi that the plaintiff is to have the costs of this action, to be taxed if not agreed.