LAU KIN SAU t/a KIN SUN DECORATION & ENG. CO. v. HUNG MAU DESIGN & CONTRACTING LTD

DCCJ 4689/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4689 OF 2013

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J U D G M E N T
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1. This is a claim for outstanding payment allegedly due under work contracts made between the parties. The Plaintiff is an individual carrying on business of construction / design works in Hong Kong. The Defendant is a limited company carrying on business of interior decoration as a contractor.

Facts not in Dispute

2. Parties have agreed that the following matters are not in dispute:-

(a) The Defendant had on numerous occasions sub-contracted works out to sub-contractors in Hong Kong and that the Plaintiff was one of its sub-contractors since about May 2006;

(b) Between June 2006 and November 2009, the Defendant had carried out works under instruction of the Defendant;

(c) After completion of works the Plaintiff issued invoices to the Defendant;

(d) The Plaintiff demanded Mr Ho Ka Yu (“Mr Ho”) of the Defendant to settle the amount of $769,379;

(e) On or about 19July 2010, the Defendant offered payment of $85,000 in settlement of the alleged outstanding invoiced amount of $769,379;

(f) A cheque in the sum of $77,646 was sent by the Defendant to the Plaintiff on 21August 2013.

(g) Having taken away invoices subject to time bar, at trial there were 37 numbers of Invoices Nos. 526 to 600 (except 552 and 584) (“Disputed Invoices”) in the amount of $472,393 for the court to determine.

Plaintiff’s Case

3. Mr Hon counsel acted for the Plaintiff.  In his witness statement, Mr Lau, the Plaintiff, said that the typical process for issuing a work order would involve a site visit, followed by a verbal quotation for the works to be done, excluding material costs.  For some projects, a lump sum quotation was not feasible.  In such cases, and for finishing works of existing projects, a verbal quotation for daily wages will be given.  Otherwise, a written confirmation of the verbal quotation is usually issued.  After the construction job was completed, Mr Lau would prepare invoice to be issued to the Defendant with itemised charge and / or代工單listing the wage of the casual workers employed plus cost for any additional finishing work.  The Defendant then settled the invoice but in most circumstances, the invoices were not paid in full.

4. According to Mr Lau there were basically two types of agreements stemming from the different natures of work:-

(a) Fixed price agreement: the parties would agree on a lump sum for a particular piece of work in that the Defendant would need to pay the agreed sum when the Plaintiff completed the agreed work (“Fixed Price Items”); and

(b) Unit rate agreement: the parties would agree on the unit rates (be it by measurement in sizes / lengths or man-day or per piece of work) and that when the Plaintiff completed the work, the Defendant would need to pay the Plaintiff according to the finished product or the actual man-day incurred (“Unit Rate Items”);

5. In respect of the Unit Rate Items, the Plaintiff contended that the content in the invoices accurately reflected the agreed rate as well as the finished product and / or the actual man-day incurred.

6. The Plaintiff’s evidence was that for Invoices Nos. 525, 529, 532 (items 3-6), 533, 534 (all items except 3.1, 3.2, 5.2, 7.1, 7.2, 8.1, 9.2, 10.1, 10.3 and 13), 535, 536 (items 2-5), 537 (all items except 2.1, 3.1, 5.2, 6.1-6.6, 6.7.1, 6.9.1, 6.10, 6.11.1, 6.12-15, 8.1.1, 8.2.2, 8.2.3, 8.3, and 10), 538, 540, 541 (items 1.1, 1.8-13, 3.1-4), 542, 543, 553 (all items except 5), 554 (Subsequent items 1-2), 556, 558 (items 1-2 泥水,油漆,大油, and item 3.14), 563 (items 1 and 2), 567, 571, 574, 576 (items 2.1, 2.5,2.6, 3-5.2), 581 (items 1, 3, 5 and 7), 582 (items 1.6, 2.1-2.5 and 4.1), 584, 588, 589, 594 and 600 (items 2 and 3) are all Fixed Price Items whereas the remaining are Unit Rate Items.

7. The Plaintiff’s evidence was also that for the Fixed Price Items, there will not be any unit price quoted on the invoices.

Defendant’s Case

8. The Defendant was represented by Mr Lam, counsel, at trial.  The Defendant’s case was that all but two invoices (Invoice Nos. 536 and 563) were Unit Rate Items and in those circumstances, actual payment would be subject to measurement and quality of the finished product and man-day incurred.  Mr Lam on behalf of the Defendant said that there were basically 2 types of works which the Defendant would get involved, painting work and non-painting work.  It was also said that there needed not be any agreement on such kind of work.  The unit rate was more or less standard and the wages for workers were also set down by the trade.  So the final payment would be dependent on the quantity of works finished.  

9. In the witness box, Mr Ho on behalf of the Defendant said that when there was a site for works to be carried out, Mr Ho of the Defendant would call Mr Lau and check whether there was any change on the unit rate he charged, if not he would just ask Mr Lau to get on to the work.  There would not be written or oral quotation.  The work would be measured after it was finished as there was his staff attending the site checking the work every day.

10. Further, the Defendant alleged that the invoices did not accurately reflect the works done and / or the rates agreed.  The Defendant sought to rely on assessment carried out by Mr Ho as marked on the invoices as evidence of what was agreed between the parties and / or the works done by Plaintiff.

The Issues

11. The Parties agreed at the conclusion of the trial that issues to be modified as follows:-

(1) Whether the parties reached any agreement at all;

(2) If the answer to (1) is yes, then whether it was a Fixed Price Item or a Unit Rate Item;

(3) If the answer to (1) is no, then what is the entitlement of the Plaintiff, if at all;

(4) If the answer to (2) is Fixed Price Item, whether the Plaintiff had completed the item as agreed;

(5) If the answer to (2) is Unit Rate Item, whether the Plaintiff had completed the item as recorded on the invoice (including the agreed rate and actual work done);

(6) If the answer to (5) is no, what were the agreed rate and / or actual work done.

Overall Observations on credibility of Witnesses

12. On behalf of the Defendant, Mr Lam criticized Mr Lau for not giving credible and reliable evidence.  He referred to Mr Lau’s saying that parties would agree on the price to be paid before commencement of works including those on unit rates basis, for such items, Mr Lau said that the quantities would also be agreed beforehand.  Mr Lam said that when put under cross-examination, Mr Lau however agreed that he would not have known the final price of work done until completion because there might be additions or omissions (加減數) to be accounted for.  Mr Lam said that the Plaintiff’s evidence was therefore clearly contradictory.

13. In fact, Mr Lau had said in his witness statement when a lump sum quotation was not feasible, there would be verbal quotation for daily wages (paragraph 6 / page 19 of bundle).  Even if he had said what Mr Lam had pointed out Mr Lau could have referred to payments outside the agreed price for the agreed scope of works.  Mr Ho himself agreed that he would sometimes allow payment for additional works or even for remedy works caused by error or mistake committed by the Plaintiff.

14. Mr Lam submitted that when the Plaintiff alleged that there were written quotations submitted to the Defendant after oral agreements for some projects, the Plaintiff did not produce even one single written quotation to support his allegation at trial.  In reply, Mr Hon said that the quotations were not produced because the Defendant objected to their being produced at a date close to commencement of trial.  No inference could be drawn that there were no such written quotations.  I agree with Mr Hon that in the circumstances of the present case, where no quotations had been produced, it was not conclusive that there had never been quotations prior to works commenced.  

15. Mr Lam also commented that it was difficult to reach agreement prior to commencement of work.  Taking Invoice No. 595 as an example, he said, the Plaintiff’s claimed amount was made on number of labourers working each day.  The number of days was stated in the invoice and the number of night-shifts was also stated therein.  It is difficult to conceive that the parties had agreed on the number of workers before commencement of works when the number of workers on each working day fluctuated.  It was also difficult to conceive that the parties could have foreseen the number of night-shifts before commencement of works when the figures of day-shift did not match with those of night-shift.  It is submitted that it was more likely that those night-shifts were overtime works which could only be ascertained after the completion of the work.  This rendered Mr Lau unreliable.

16. In reply, Mr Hon said that it had been admitted by the Plaintiff that Invoice No. 595 was a Unit Price Item and the agreement between parties covered only the daily rate of workers.  He argued that Mr Lau’s evidence should be accepted.  I agree with Mr Hon on his observation. 

17. Mr Lam further commented that given the continuous relationship between the parties and the facts that the Defendant gave interim payments to the Plaintiff and the Defendant had paid over $2 million on those 62 invoices, it was natural for the parties to proceed with the works before agreeing on a fixed price for every item of works to be done, especially for repairs, additional or minor works.  On this basis, Mr Lam said that there was no agreement on price for most of the invoices.

18. I could not agree with Mr Lam on this and this would be further discussed below.  In fact in his witness statement Mr Ho had set out the usual practice in paragraph 5:-

“There was no written agreement between the Plaintiff and the Defendant for every piece of painting work carried out by the Plaintiff.  It was agreed and it was the usual course of dealings between the parties that:-

(1) When the Defendant wanted the service from the Plaintiff, I would verbally request the Plaintiff to carry out painting work in a project;

(2) The Plaintiff would give an estimate fees quote for painting work to the Defendant.  It may be built up by unit price per square feet, a lump sum or;

(3) The Plaintiff and the Defendant will negotiate the fees;

(4) If the fee was agreed between us, the Defendant would formerly instruct the Plaintiff to commence the painting works on site.”

19. Further under cross-examination, Mr Ho said when he called Mr Lau to do a job, he would ask whether there was change in the unit rate.  These showed that there were agreements on the price even the agreement may not be expressly mentioned and in detail.  At least the unit rate was to be agreed.  

20. Further Mr Lam submitted that price for painting work needed no agreement before hand because the price for a worker was more or less fixed by the trade.  In those circumstances, the dispute might be on man/day, that was in the opinion of the Defendant, the work had taken more time than reasonable.  The dispute between parties as mentioned include whether there was agreement on a fixed price for the whole project as opposed to unit rate or as the Defendant had alleged, there no agreement at all.

21. General speaking, I find it when the Defendant said that there was no agreement on price before commencement of works, it agreed that there was tacit agreement on the unit rate or daily wages.  I find it not believable that there could be no agreement on price of any kind before commencement of works.  I accept that there were agreed price either on unit rate or on lump sum.  

22. As to how disputes were to be settled between parties, Mr Ho said if there were disputes on quantity of work done, he would ask the Plaintiff to go to the site to take measurement again.  Regarding invoices now under dispute in these proceedings, the Plaintiff refused to take measurement.  If the dispute were on man/day then parties would sit together to check their own records.  Most man/day works were 代工.  There were two types of 代工, one was for remedy work, that was to make good defects committed by the Plaintiff; the other was for added work.  He said that the Plaintiff would not get paid for remedy work.  The Plaintiff might or might not get paid for added work either.  The worker was already paid for the day, even if he was asked to do some extra work, it was not always necessary to pay the worker.  But most of the time the Defendant would pay them something.  All in all he had a final say on payment after work finished.  I shall consider this assertion when considering the invoices.

Three Versions of Invoices

23. There are three versions of invoices produced for trial by the parties.  The version produced by the Plaintiff was called the 1^st Marked-Up Version.  The other produced by the Defendant was called the 2^nd Marked-Up Version.  In fact there was one further version produced by the Plaintiff that might have been the back up of the invoice he sent to the Defendant.

24. The Defendant said that the 2^nd Marked-Up Version invoices were sent to the Plaintiff together with cheques for payment.  The explanation of the Defendant on the 2^nd Marked-Up Version was that they were contemporaneous records.  It was said that when an invoice was submitted for payment, the invoice would first be inspected or examined by the project team who had checked the work and they would mark the invoice to show the quantity and the quality of work done.  Their first calculation would be submitted to Mr Ho for approval.  Mr Ho said that there might be another version of invoices which did not carry the calculations and remarks but were sent to the account department for settlement of payment with the Plaintiff and that was the 1^st Marked-Up Version.  Mr Ho could not explain why they had been sent to the Plaintiff.

25. It was however the Plaintiff’s case that the 2^nd Marked-Up Version invoices were never received before trial and they were only recent fabrications made to suit the Defendant’s case in these proceedings.  They should not be considered by this court.  On the other hand the 1^st Marked-Up Version invoices were sent to Mr Lau when the parties had dispute over payments in these invoices back in 2009.

26. I have viewed the two versions.  I could see that there were questions raised by Mr Ho and answer given by his staff on the 2^nd Marked- Up Version.  I accept that Mr Ho had been assessing the invoices for payment.  I would consider them.  As to how much weigh I shall give to them, it would depend on the quality of the remarks given for example whether they were supported or contradicted by other evidence before me.  I bear in mind that Mr Ho had said in court that the assessment was done on his experience.  I also bear in mind that he also said that if there was dispute on colour of the painted work by the client, Mr Ho would pay the cost of paint for the Plaintiff and pay perhaps half the workers charge.  He said that even if it was wrong on the side of the Plaintiff, the Defendant would still exercise discretion to pay the Plaintiff something.

How the Issues should be Determined

27. There were altogether over 60 invoices in the claim.  Upon abandonment on some due to their being time-barred, there remained a total of 37 invoices to be tried.  There was no objective evidence put forward to assist the court in assessing the value of work done because the works were finished years ago.  No raw data, records, plans or material had been adduced by either side to assist the court. Evidence produced included testimony of witnesses and the 3 versions of same set of invoices.

28. While the Defendant had set out brief explanation for adjustments on the invoiced amount in the Defence and in Mr Ho’s witness statement they had not been dealt with by Mr Lau, the Plaintiff.  It is unfortunate.  Although the Plaintiff had the right to respond to the Defendant’s assertion in the witness box as suggested by Mr Hon, this is certainly a case where the Plaintiff’s response should be dealt with before trial commenced.  In particular when it was obvious that the trial dates (4 days) set down had not taken into consideration that the Plaintiff would have to deal with each disputed item of charge in each and every invoice in the witness box.

29. In the end, witnesses for both sides were asked to comment and were cross-examined on some of the invoices but not all.

30. By a letter sent by its lawyer, the Defendant had disputed the claim of the Plaintiff and had given brief reasons for not paying the invoices.  It was said that they were assessment made by the Defendant for problems classified into 4 categories:-

(1) Invoices were already partially or fully settled;

(2) Invoices referred to projects not contracted by the Defendants;

(3) Invoices failed to take into account material charge; and

(4) Charges were exaggerated or repeated without supporting particulars.

31. Mr Lau denied the first two complaints.  As to material charge, Mr Lau said he would have to pay the material first and then would list them out in the invoice to get paid at the end.  As to the complaint on exaggeration of charge, Mr Lau said that the Defendant was not entitled to unilaterally declare there was overcharge and resolve to pay at a discounted price.

32. There were as set out in the above 6 issues.  On the first day of final submissions, Mr Hon submitted that this court was to rule on all 6 issues in each invoice or each disputed item in the invoices.  I have made it clear to counsel that from the evidence before me and their submissions, both at the opening and closing of the case, they might not have tendered sufficient assistance to the court to make that kind of ruling.  They were directed to file further submissions to assist the court.  On the returned day counsel put in a Joint Submission of the Plaintiff and the Defendant.  Mr Hon clarified his position that this court could take a more broad-brush approach in deciding which parties’ evidence was to be accepted.  He said it was for me to decide at the end of day whether those disputed items were actually agreed beforehand, either by fixed price or unit rate; or it was as suggested by the Defendant that there was no agreement on price at all, it was for the Defendant to assess after work was done.

33. The approach suggested by Mr Lam was this.  The disputes would be boiled down to whether the court was to believe the Plaintiff that everything had been agreed before hand or believe the Defendant, that after work was done the Defendant carried out assessment.  But then Mr Lam named more than a few invoices which needed special attention because the adjustments therein were not due to excessive unit rate but performance or for other reasons.

34. Having said that I am of the view that it is not the case that the Defendant should pay whatever amount put up by the Plaintiff by way of an invoice.  For invoices where unit rates were agreed, the quantity of work must be finally measured.  Further the works must be finished at the end to the agreed standard before full payment would be paid.  In the circumstances, when reasons were given by the Defendant as to why the disputed items were adjusted, I shall assess those reasons against known circumstances to see whether they are valid.

35. By the Joint Submission, the parties’ positions on all disputed items were set out in a table.  After considering submissions of counsel and the evidence before me, I shall review each and every invoice bearing in mind all 6 issued raised but I do not intend to give my finding specifically on each issue.  I shall also consider all evidence available before me. 

36. I also make it clear that I would not take into account of further payments made on 21 August 2013 by the Defendant (“Further Payment”) in the course of considering the assessment of the disputed items.  It shall be accounted for after I have made a ruling on the disputed items (see paragraph 183).

Invoice No. 526 (pages 201 and 244)

37. The invoice stated a total of $16,600.  Mr Lau said this was a Fixed Price Item as there was agreement on a lump sum to be paid upon completion of work.  Mr Ho said that there was no quotation and no agreement on price.  He in particular said that the works in this invoice was to carry out remedy works to cure defects.  Quotations could not be issued before hand because works could only be ascertained at site as pointed out by client.  He found charge for items 2, 4, 5 and 6 therein excessive.  His assessment of this invoice was $13,900.  Since the Defendant had paid $13,900, the Plaintiff’s entitlement in the final account was nil.

38. Mr Lau said that he could not agree with the alterations marked by Mr Ho.  He said there was quotation and he made the invoice according to the quotation.  When being cross-examined by Mr Hon, Mr Ho said that the invoice was submitted on the basis that $800 for a man/day for skilled worker but $500 for odd job workers.  He was not cross-examined on the items which were adjusted.

39. After hearing Mr Ho, I do not accept his saying that his calculation was based on man-day rate.  If that was the case, Mr Lau would have written that on the invoice and Mr Ho would have written it down on the invoice as remarks.  I also see that the alterations on the 2^nd Marked-Up Version at page 201 was not same as that on the 1^st Marked-Up Version at page 244.  At the 1^st Marked-Up Version only 1 item was adjusted by reduction of $300 although the final amount was also $13,900.  I accept the evidence of Mr Lau that this is a fixed price order.  I find that there was no acceptable reason to justify the reduction of the invoiced amount from $16,600 to $13,900.  The Defendant should therefore pay the balance of $2,700.

Invoice No. 530 (pages 91, 202 and 245)

40. The invoice stated a total of $58,140.  The Defendant adjusted it to $50,000.  The Mr Ho said that there was agreement on the unit rate and the final payment was subject to final measurement at the conclusion of works.  Mr Ho further said that material at the costs of $8,000 provided by the Defendant shall be deducted from the invoice.  His assessment on this invoice was therefore $50,000.  Since the Defendant had paid $50,000, the Plaintiff’s entitlement in the final account was nil.  Mr Lau said he agreed material costs to be deducted but did not agree that $8,000 or $8,140 should be deducted.

41. As could be seen from another copy of the same invoice at page 245 produced by the Plaintiff, the 1^st Marked-Up Version, the deduction was challenged by the Plaintiff.  The answer given by the Defendant was that the Plaintiff should calculate by himself.  There was no evidence produced to prove except there were remarks seems to have been put down by Mr Lau stating that the costs could not have been $8,000 which was excessive for “40件石膏板x 10 + 隔音綿 2卷、C槽、苦力費$10 1件石膏板”.

42. In his witness statement, Mr Lau admitted that the material cost should be borne by him and that he assessed it to be $4,300.  I accept Mr Lau’s opposition to the material cost to be at $8,000 when the Defendant had produced no proof.  I accept figure suggested by Mr Lau which is $4,300.  In my judgement there is an outstanding payment for $3,840 ($8,140 – $4,300).

Invoice No. 531 (pages 203 and 246)

43. The invoice stated a total of $2,450.  In court Mr Lau said that there was oral quotation made and he would not accept the deduction by $650.  Mr Ho said there was no quotation on this invoice as this was repair works for Invoice No. 530 and final cleaning of the site.  They would not know about the nature and quantity of work until they arrived at site.  He said that the amount of $850 for a cleaning worker in item 1 was excessive.  The rate of cleaner was $500 per man-day and the Plaintiff should at most charge half man-day for item 2 as it was works to repair defects which should be cured by the Plaintiff, normally no extra pay would be given, but the Defendant exercised discretion to pay the Plaintiff some money.  The Plaintiff was paid $500 instead of $800.  A total of $650 was deducted from the invoice.  The final assessment on this invoice was $1,800.  Since the Defendant had paid $1,800, Mr Ho said that the Plaintiff’s entitlement in the final account was nil.  There was no cross-examination of Mr Ho on the particulars of this invoice.

44. On the face of the invoice, item 1 was not unit rate but Mr Lau did not tell how he had made up the charge of $850 for cleaning except that there was an agreement. I accept Mr Ho’s saying that there was no quotation or agreed price for the works under item 1.  I find that it was meant to be an item to be charged by man-day.  In fact I also accept Mr Ho’s that the rate for an odd job worker to clean the venue was 500 per day.  I also find that cleaning the site was such a standard work procedure and it is not improbable that there was no express agreement on the price.  But Mr Lau was ordered to do the job on the tacit understanding that such work would be carried out at normal rate.  I accept that item 2 was touching up works of items 7 and 8 of Invoice No. 530 and I accept the reasons given by Mr Ho for the reduction.  I find that the invoice had been fully settled and the outstanding balance was nil.

Invoice No. 532 (pages 204 and 247)

45. The invoice stated a total of$10,800. Mr Ho said that this was a repair order and there was no quotation.  The charge for item 1 at $2,000 was excessive and without substantiation.  He would at most allow one man-day for a plumber to carry out the work of searching for the source of leakage at the rate of $800 per man-day.  The charge under item 7 in the amount of $1,600 for management or supervision should also be deducted from the invoice, since they should have been included in the price of other items.  The invoice was assessed at $8,000 by Mr Ho.  Since the Defendant had paid $8,000, Mr Ho said that the Plaintiff’s entitlement in the final account was nil.

46. Mr Lau said there was a quotation made on basis on man-day for both items.  He agreed that the rate for man-day should be $800.  As he went there with a senior worker, 2 of them spent two days for item 1, there should be 4 man-day.  As they were instructed to carry out other items, item 1 was reduced to 2.5 man-day.

47. From the evidence of Mr Lau, I find that he only quoted number of workers to attend the work but did not agree on the time to be spent on the item.  I am of the view that if there was dispute on time spent, evidence should be produced by the Plaintiff.  There was no such prove.  Same principle applies for item 7.  Charge for supervisor of works are not usual especially when Mr Lau himself was at site to find out the source of leakage and charged the Defendant, he should prove extra time spent on supervision.  As there was no such evidence before the court, I accept adjustment of the Defendant.

48. I accept the evidence of Mr Ho and allowed the reductions.  I find that the invoice had been fully settled.

Invoice No. 533 (pages 205 and 248)

49. The invoice stated a total of $167,000.  There were 15 disputed items under this invoice.  Mr Ho said that items 1, 10 and 11 of the original 12 items of works and items 1, 2, 3, 4, 8, 9, 10, 11, 14, 16, 18 and 19 of the alleged 19 items of additional works were excessive.  He had adjusted the asked amount and this invoice was assessed at $120,000.  Since the Defendant had paid $120,000, the Plaintiff’s entitlement in the final account was nil.

50. Mr Lau said that there were quotations for the original items and the added items in this invoice.  He said that item 1 of the original works was painting works and he made quotation for unit price and he also measured the size of the site painted.  His quotation was $9.5 per square foot and there was 3,200 square feet.  Mr Ho agreed with Mr Lau on this.  His saying was that Mr Lau had skipped one work procedure i.e. (剷底) so he should only be paid $7 per unit.  Further the painted area was 2,500 sq ft. and not 3,200 sq ft as claimed by the Plaintiff.  Mr Ho said that the other disputed items under the original works (items 10 and 11) and items 1, 2 of the added work were Fixed Price Item where agreement had been reached for payment at conclusion of work.  There were oral quotations on items 3, 4, 8, 10, and 11 of the added work on man-day.

51. I am of the view that in principle adjustment could be made at the conclusion of the works subject to performance and measurement.  I however notice that not all the remarks for the adjustment marked on the 2^nd Marked-Up Version appeared in the 1^st Marked-Up Version at page 248.  I notice that the 1^st Marked-Up Version bore the remarks upto 21 January 2009 and was verified by Mr Ho on 19 January 2009, the 1^st Marked-Up Version was quite clean and did not bear the reasons of why item 1 was to be adjusted.  Further there was no evidence on why it said that the measurement was 2,500 sq ft instead of 3,200 etc.  I do not accept such adjustment.  There was no explanation as to why and on what basis adjustments were made 9 months after the invoice was submitted.

52. For items 10 and 11, I accept evidence of Mr Lau that these two items were Fixed Price Items.  As there were no reasons given on why these two items should be reduced in witness statement or on the invoice, the adjustment was not proved to be reasonable or valid.

53. For items 1 and 2 under added works, remarks on the 1^st  Marked-Up Version was that it was included and there were fault on the part of the Plaintiff that the claimed amount for these two items were crossed out.  There was no explanation on the part of the Defendant on how it had come to this conclusion.  I do not accept the adjustment.

54. I also accept that item 3 was an added item and more probable than not that there was fixed price quotation given be it orally.  In the circumstances, the Defendant could not adjust payment under this item, especially when there was no explanation.

55. For items 4 and 5 of the added works, the Defendant had adjusted the amount from $3,600 to $2,500 and the reason marked on the two items was that the two items should be carried out at the same time.  Be that as it may there was no reason why $1,100 was to be deducted.

56. Item 8 was crossed out without any reasons marked on any version of the invoice.  I do not accept this adjustment.

57. As to item 9 of the added works, the Defendant refused to pay $4,500 as claimed saying that it was included.  There was no evidence as to which item or invoice it was included under. Even if item 9 referred to the same iron racks under item 5 of the original works where the works was to fix and secure some metal racks, they did not seem to be same kind of work.  I do not accept the deduction.

58. Items 10 and 11 of the added works were clearly items charged on wages.  I see remarks made by staff of the Defendant probably at a time closer to completion of such works on items 10 and 11 and they also appeared in the 1^st Marked-Up Version.  It is however difficult to tell whether the adjustment tallied with those remarks made by the staff and there was no adjustment marked on the 1^st Marked-Up Version.  I do not accept the adjustment.  

59. For items 16, 17 and 19 of the added works I accept the adjustment as they were supported by contemporaneous notes made by staff which also appeared on the 1^st Marked-Up Version at page 248.  I accept that a sum of $4,800 [$2,500 + $1,800 + $500] was to be deducted under these 3 items.

60. I also notice that there were remarks made by Mr Lau on the 1^st Marked-Up Version saying that there was outstanding payment for $20,000.  From the remarks, he had received $120,000.  In that sense, he accepted final payment of $140,000.

61. In the circumstances, although I find that I could not accept most of the adjustment for reasons given above, I find that weight should be given to the Plaintiff’s remarks saying that there was balance of $20,000 not yet paid.  I find that there is still outstanding balance of $20,000 to be settled.

Invoice No. 534 (page 206)

62. The invoice stated a total of $199,008.  There were remarks at the top margin of the invoice saying that the quotation of the Plaintiff as on 14 December 2007 was only for $116,228; that the other items were added after the quotations, that the Defendant could not claim those amount from the client, that the Plaintiff had failed to include all items in his quotation.  The added items were 1.2, 1.3, 1.4 and 1.6; items 3.3, 3.4 and 3.5; items 7.2, 7.3 and 7.4, items 8.2, 8.3, and 8.4.  Further 9.2 and 9.3 should not be 1 of item 9, sub-item 3 of item 10, items 11 and 12 were excessive.  The assessment on this invoice was $140,000.  Since the Defendant had paid $120,000, the Plaintiff’s entitlement in the final account was $20,000.

63. Mr Lau said that there was only oral quotation when there were added works.

64. On this invoice, I accept the Defendant’s saying there was a quotation and there were items added because some particulars had been given by the Defendant.  I also accept the Defendant’s adjustment on those other items where it was said to be excessive.  For example item 11, $5,000 was claimed for protective works and cleaning, taking $500 per day for odd job workers, it seems this was for 10 man-day.  I agree this was excessive.  Having considered the whole of the invoice, I accept the adjustment to $140,000.  There is still a balance of $20,000 not yet settled.

Invoice No. 535 (pages 99 and 208)

65. The invoice stated a total of $14,850 for repair works.  Mr Ho said there was no instruction given to the Defendant to carry out these items.  Since the Plaintiff was not able to provide any proof that the works were completed, this invoice was invalid.  It was the Defendant’s case that the Plaintiff’s entitlement was nil.

66. The Plaintiff’s evidence was that the work was done pursuant to the instructions of the Defendant.

67. There was no 1^st Marked-Up Version.  Mr Hon said that it was rare and unusual that the works would be carried out without instructions at all, especially when there were quite many items of work at various location.  It would have amounted to trespassing.  The Defendant further said that it would be unusual if directions were given to them by the client direct, but this was not the Plaintiff’s case.

68. The difficulty for the Plaintiff is that there was another version under same invoice number produced by him at page 99 but there were only 3 items in it and the total amount was $7,400 instead of $14,850.

69. Another difficulty is that the 2^nd Marked-Up Version which was relied on by the Plaintiff was not signed.  Further there was no 1^st Marked-Up Version which could be a good proof that the invoice had been received earlier by the Defendant.

70. Mr Hon said that neither party can better their case on this apart from their own assertion, the fact that it was not tendered earlier did not mean that the Plaintiff had not done the job.  I am of the view that these general remarks could not tackle the problem faced by the Plaintiff.  The dispute on whether there were instructions for the works to be carried out should on balance be resolved in favour of the Defendant.  I find that there is no outstanding balance under this invoice.

Invoice No. 536 (pages 100, 209 and 249)

71. The invoice claimed a total amount of $10,640.  The Defendant said that there was oral quotation of Mr Lau that the job be done for $7,000.  This was supported by markings on the invoice saying that the oral quotation of Mr Lau was $7,000 and that quoted sum should be the total sum of the invoice.  Further the invoice could be calculated as $800 per man-day x 8 man-day + $600 material and other costs = $7,000.  Mr Ho therefore said that the assessment on this invoice was $7,000.  Since the Defendant had paid $7,000, the Plaintiff’s entitlement in the final account was nil.

72. There were also remarks saying that there was oral quotation of $7,000 on the 1^st Marked-Up Version.  Further there was a version produced by the Plaintiff at page 100 saying that “FULL PAYMENT $7,000”.  Mr Lau gave an explanation that if the Defendant settled other invoices, he would not sue for balance of this invoice.  I do not accept his explanation.  Such saying was too vague.  He did not mention which particular invoice was to be paid by the Defendant to satisfy him to forbear the balance of this invoice.  Further, he did not say that this had been conveyed to the Defendant.  There were outstanding balance on many other invoices but it was not stated thereon as “settled” or “fully paid” of “full payment”.  On balance, I find that the Plaintiff was satisfied with the payment made by the Defendant.  I accept the Defendant’s saying that there was no outstanding amount under this invoice.

Invoice No. 537 (pages 210-211 and 250-251)

73. The invoice claimed a total of $238,335.  The Defendant said that some items were not covered by quotations, for example, items 6.4, 6.5, 6.10 and 6.10.2.  It was however said that item 8.1.1 was supported by quotations on unit rate.  Charge on many other items was excessive and some were not quoted before works commenced and should be deleted.  The assessment on this invoice was $177,885 and reasons were set out on the 2^nd Marked-Up Version which were in fact same as that appeared on the 1^st Marked-Up Version. Since the Defendant had paid $177,885, the Plaintiff’s entitlement in the final account was nil.  

74. Mr Lau’s evidence on this invoice was that all items had been quoted and all were in lump sum, not on man/day.

75. On this invoice, I accept Mr Ho’s reasons on the adjustment which were detail and not unreasonable.  Further there were no inconsistencies between the two Marked-Up Versions.  Moreover, when Mr Lau said that all items under the invoice were lump sum and not by man-day there were however items on unit rate, for example item 2.2, item 6 and item 8 etc.

76. I accept the Defendant’s case and find that that there was no outstanding balance under this invoice.

Invoice No. 538 (pages 212 and 252)

77. The invoice stated a total of $35,724.  The Defendant said that there was no quotation given prior to commencement of works.  Further items 12 and 15 were part and parcel of the original scope of works.  Items 2, 3, 4, 5, 6, 7, 9 and 11 were excessive.  The assessment on this invoice was $24,930.  Since the Defendant had paid $24,930, the Plaintiff’s entitlement in the final account was nil.

78. The Plaintiff’s case is that there was a quotation on lump sum with some being Fix Rate Items to be charged by man/day.  They were items 3.1, 3.2, 9, 10 and 14.

79. Mr Hon submitted that under cross-examination in respect of this invoice, upon perusing the invoice copy at page 138, Mr Ho was adamant that there was no quotation given by the Plaintiff prior to the commencement of work, hence, there was no agreed price between the parties.  However, on another copy of the invoice, i.e. page 212, the Defendant agreed that the writing “報價只是$27,700 – (30/5/08) 後加數人客未必同意/接受” was made by him or his staff.  This completely destroyed the Defendant’s claim that except Invoices Nos. 536 and 563, all other invoices were Unit Rate Items.

80. Mr Hon further said that the lack of unit price in the invoices sits well with the Plaintiff’s evidence that those invoices and / or items were Fixed Price Items.  The Plaintiff’s evidence is that for the Fixed Price Items, there will not be any unit price quoted on the invoices.

81. I could see that there were remarks at the bottom of the 2^nd Marked-Up Version at page 212.  They said:-

“* Quoted price was only $27,700, added items may not be agreed / accepted by client”

“* now pay only 90% of quoted price = 24,930”

“bal: HK 2,770 was crossed out”

82. There were remarks also on the items and the respective amount showing alterations and deletion.  For some items, explanation was given in support but not to all. For example items 2.1, 2.2, 6, 11 were adjusted but without reasons except that there were remarks at the bottom say that the client may not pay the added items.  I have read the copy of the same invoice produced by Mr Lau at page 252.  Although they bore same remarks at the bottom, there were no markings against individual items and the final amount was not adjusted.  I find this version more reliable on the fact that there was quotation on $27,700.  As there was nothing to show why the quoted price should not be paid in full, I find that the Defendant should pay $27,700 to make up to the quoted price.

83. As to the added items, the Defendant did not say that they were not done, it was said that the client may not settle the same, I do not think the burden of non-payment if it really happened at the end should be put on the Plaintiff.  Further the remarks were not supported by the 1^st Marked-Up Version.  I find that the Defendant should pay the Plaintiff the invoice as stated, i.e. $10,794 ($35,724 – $24,930).

Invoice No. 539 (pages 213 and 253)

84. The invoice stated a total of $39,625.  The Defendant agreed that there was quotation given on item 1 and item 4.  Item 1 was lump sum and item 4 was on unit price subject to measurement.  He said that item 4 was overcharged for $3,000 after measurement and item 6 should not be charged at all since it was the Plaintiff’s fault.  The assessment on this invoice was $35,035.  Since the Defendant had paid $35,035, the Plaintiff’s entitlement in the final account was nil.

85. Mr Lau said that there was quotation for this invoice and he remembered that for item 6, he was asked to open a hole in ceiling for another team of electrical workers to run the cable.  His job was to open a hole only.  He said he had to do it twice because the electrical workers could not find the cable through the first hole.  He had to make good the first and then open another one and then make good again.  He said it was not his fault.  I find that item 6 should not be totally deleted even if it was the Plaintiff’s fault, at least he should be paid for the first hole he made and made good.

86. On the other hand, I accept that item 4 was on unit rate and therefore the Defendant could measure the quantity at the completion of work.  I accept the adjustment on item 4.

87. In the circumstances, I find that there was balance of $1,600 not paid.

Invoice No. 540 (page 214)

88. The invoice stated a total of $4,800.  The Defendant said that the original claim by the Plaintiff was $11,900 when the invoice amounted only to $4,800.  It was also said that the Plaintiff had damaged the power source of the building and therefore the Defendant was required to engage another contractor to assist in repairing.  The invoiced amount was $4,800.  A sum of $4,000 was deducted from this amount for works to dismantle and reinstall the aluminium cladding.  The assessment on this invoice was therefore $800.  

89. Mr Lau said that there was no damage caused to the aluminium cladding.  It had to be demolished to cater for his work to change the lamps and the same should be re-installed after his work.  He had already informed the Defendant.  He said that he should not be responsible for such charge.  No deduction should be allowed.

90. I accept the version of the Plaintiff.  In fact if there was such dispute, the sum of $4,000 should not be deducted from the original claim but to be put up in counterclaim.  I accept that he outstanding amount under this invoice is $4,800 as this invoice had not be settled.

Invoice No. 541 (pages 216 and 254)

91. The invoice stated a total of $134,772.  The Defendant said that sub-items 8, 11 and 13 of item 1, sub-items 1 and 5 of item 2, sub-items 1 and 5 of item 3 were overcharged.  Sub-items 5, 6, and 10 of item 1, sub-items 6, 7 and 8 of item 3 should not be charged since they were due to the Plaintiff’s co-ordination problem.  Further, due to the Plaintiff’s lack of sufficient workman, the Defendant had to engage a third party to assist in carrying out plumbing works and the resulting charge of $9,780 should be deducted from the invoice.  The assessment on this invoice was round-off to $95,000.  As the Defendant had paid $95,000, the Plaintiff’s entitlement in the final account was nil.

92. In Court, Mr Ho further said that only a few items had quotations before works commenced, they included items 1.2, 1.3, 1.4 and item 1.7.  He said for those other items not within the expertise of the Plaintiff he would let him do the works first and then to assess the price.  He said this was only fair for the Plaintiff as he did not want him to quote too low a price.  I could not accept such saying.  This is unusual.

93. Moreover I do not see the proof or justification for reduction of $9,780 marked on the invoice.  And I see that there were calculations or re-assessment given by the Plaintiff at page 255 that the painting work should be $31,750, wood work should be $23,280, the miscellaneous items were not adjusted and maintained to be $8,521 as invoiced.  I accept the re-assessment made by the Plaintiff.  I have gone through the part of the invoice concerning electrical work which the Plaintiff had done no re-assessment.  I noticed that some items were deleted without a reason marked on the invoice or otherwise for example sub-item 1.10.  For some other items, there was no reason given for reduction of fees for example sub-items 1.8 and 1.11 and 1.13.  Further I could not agree with certain adjustment. For example, under item 1, electrical work: sub-items 5 and 6 were deleted.  I am of the view that even if it was the fault of the Plaintiff that the work had to be done twice, the Plaintiff should be paid once.  Further I find that Defendant should pay for items purchased by the Plaintiff on their behalf under item 1.14.

94. For the above reason, I do not allow the assessment appeared on this part of the invoice as the Defendant had failed to prove justification for the same.  I have already refused Mr Ho’s saying that there were items without quotation because they were not within the expertise of the Plaintiff.  The total charge under electrical work should therefore be $57,971.  Total sum under this invoice is therefore $121,522 ($57,971 + $23,280 + $31,750 + $8,521).  Since the Defendant had paid $95,000, there is still balance of $26,522 not yet settled.

Invoice No. 542 (pages 108 and 218)

95. The invoice claimed a total of $8,400.  The Defendant said that there was no instruction given to the Defendant to carry out these items.  Further the Plaintiff was unable to provide any proof that the works were completed.  This invoice was invalid.  Therefore, the assessment on this invoice was nil.

96. Mr Lau said that this was added item to Invoice No. 538 and there had been oral quotation.

97. For this item, I accept Mr Ho’s saying that this had not been received until it was sent together with the letter before action dated 15 July 2008.  I see from both versions at page 108 and 218 that the invoice was not signed nor sealed.  I could see that it happened to several invoices as well.  But in the light of the complaint of Mr Ho that there was no proof provided by the Plaintiff that works had been done, I find that there is no outstanding balance in this invoice.

Invoice No. 543 (page 219)

98. The invoice stated a total of $2,150.  The Defendant’s case was that item 1 was duplicated with Invoice No. 541.  The assessment on this invoice was $1,300.  In court Mr Ho said there were no quotations and no instruction for this one.  The Plaintiff’s entitlement in the final account was $1,300.

99. The Plaintiff said that it could not have been a duplication of Invoice No. 541 because they were of different addresses.

100. It could be seen that there are some remarks at the top of the invoice written by Mr Ho on 19 August 2008, same day he received this invoice.  The remarks said this: “問Ken何時做的，誰叫做的?” (translation: when this was done and who gave instructions for these to be done).  There were remarks written by the side of the questions.  The writing next to the first question could not be seen.  The writing next to the second question reads “steven” (work done when doing works at House No. 82”).

101. Seems the questions were answered by the staff of the Defendant.  I have gone through the items in Invoice No. 541, I did not see any listed items them for works done in House No. 36, I do not accept the saying that it was an duplicated item of Invoice No. 541.  I find that the Defendant has to pay $850 under item 1.  Since the defendant had not settled any part under this invoice, the outstanding is $2,150.

Invoice No. 552(page 220)

102. The invoice originally stated $37,250.  At trial Mr Lau confirmed $35,250 should be the full amount of the Plaintiff was entitled invoice.  Since the Defendant had paid $35,250, the Plaintiff’s entitlement in the final account was nil.  This was agreed by the Plaintiff.

Invoice No. 553 (pages111, 221 and 256)

103. The invoice stated $5,180.  The Defendant said that the invoice was first received on 31 March 2011 together with the letter before action.  Further there was no instruction given to the Defendant to carry out these items.  The Plaintiff did not provide any proof that the works were completed.  This invoice was invalid. Therefore, the assessment on this invoice was nil.

104. Mr Lau said that there were quotation on this invoice and he himself personally passed this invoice to Mr Ho.

105. There was a record of a copy of same invoice being sent from the Defendant to the Plaintiff.  This copy was produced by the Plaintiff at page 256.  It could be seen that the date of the fax was on 20 April 2009.  The message appeared at the right top corner.  It said “此張我司從沒收過，故煩請開此張發票及蓋印傳回本司，謝!” (translation: our company had not received this, please issue a signed and sealed invoice, thanks!)

106. The title of the document was amended from “quotation” to “invoice” apparent by staff of the Defendant.

107. From the remarks appeared at the bottom saying not yet settled probably written by the Plaintiff, I accept that this should have meant to be an invoice and the staff of the Defendant was to put the record right by amending the title from “quotation” to “invoice”.  And as it was not signed nor chopped, the Defendant asked the Plaintiff to do the same.

108. In the light of long lapse of time, I find it suspicious when Mr Lau said that he remembered he had passed this particular invoice to Mr Ho in person.  Further if it was passed to Mr Ho direct, it would be unlikely that Mr Lau would not be asked to sign and seal the invoice.  With the above remarks and my finding on the evidence given by both parties, I accept that the Defendant had not received a signed and sealed copy as they had requested, page 221, still an unsigned copy was received by the Defendant until 1 April 2011.

109. In the circumstances, I find that the Plaintiff has failed to prove this invoice.  There is no outstanding balance thereunder.

Invoice No. 554 (page 222)

110. The invoice stated $62,200.  The Defendant said that the Plaintiff should not have charged $4,000 under item 1 as added works for painting.  It was the view of the Defendant that the re-painting was due to poor co-ordination of the Plaintiff.  Payment for this item should be taken away because according to the client, the workers got the colour wrong and the place had to be repainted.  The assessment on this invoice was $58,200.  Since the Defendant had paid $58,200, the Plaintiff’s entitlement in the final account was nil.

111. Mr Lau said that it was the client who asked to change the colour and not due to their fault.

112. Mr Ho had said that in general when there was dispute as to who got the colour wrong, they would pay the Plaintiff the cost and some fee as a discretion.  I find that the Defendant should pay half the item, that is $2,000.

Invoice No. 556 (page 223)

113. The invoice stated $3,500.  The Defendant said that items 3 and 4 were incomplete and the Plaintiff did not follow the client’s instructions.  This invoice was therefore invalid.  The assessment in the circumstances on this invoice was nil.  In court, Mr Ho explained that this was follow-up order to be carried out by the Plaintiff to rectify unsatisfactory work carried out earlier.  No further payment should be justified.

114. Mr Lau said that he did finish the work.

115. The remarks appeared on the invoice include against item 1, “13/1/2009 demolish false ceiling in garage”; against item 2 “glue injection”,  the amount of these two items were checked.  There were also remarks at the right top corner saying that “the company had not received fees yet”.

116. There was no contemporaneous remarks saying that these were follow-up work to make good defects; there were remarks saying that money had not been received that means the company had charged the client.  I do not accept Mr Ho’s saying that simple works like items 3 and 4 would be left incomplete and that Mr Lau would still be given works after that day until at least November 2009.  I do not accept that the Plaintiff should receive no payment for this invoice.

117. The Defendant should pay the Plaintiff $3,500 for this invoice.

Invoice No. 558 (page 224)

118. The invoice stated $135,225.  The Defendant said sub-item 1 of item 2 and sub-item 4 of item 3 were overcharged.  The assessment on this invoice was $100,000.  Since the Defendant had paid $100,000, the Plaintiff’s entitlement in the final account was nil.

119. From the invoice, it was written by Mr Ho against the amount charged for item 3.1 that “grossly excessive, and no breakdown” (離譜又唔breakdown) the stated amount of $64,600 was reduced to $29,800 ($3,725 x @8 = $29,800).  Quantity at item 3.5 was adjusted from 14.5 to 14 and the amount was adjusted from $6,525 to $6,300.

120. Plaintiff’s case was there was quotation: fixed price for item 2.1 and unit rate on item 3.4.  He said he did not agree to the adjustment.

121. On this invoice, the major adjustment was on item 2.  It was for painting work for the whole house including the ceiling and the walls.  It was true that the Plaintiff did not give the measurement for the charge of $64,800.  On the other hand, the Defendant gave measurement, 3,725 ft at unit rate of $8 per sq ft.  I accept the Defendant’s saying that the agreement on painting was more often by unit rate and then his staff would measure the painted area or he would do it by making reference to the floor plan.  I accept that the Defendant gave information and particulars on the adjustment.  I accept the adjustment of the Defendant.  The other adjustment was minimal.  I accept the adjustment made by the Defendant.  I find that there is no outstanding balance for this invoice.

Invoice No. 563 (pages 225 and 257)

122. The invoice stated $13,500.  The Defendant said the Plaintiff had charged double (計錯雙重) for item 2.  Therefore, the assessment on this invoice was $10,500.  Since the Defendant had paid $10,500, the Plaintiff’s entitlement in the final account was nil.

123. In court, Mr Ho said that “代工” very often means works to remedy defects.  Cheaper workers would be employed mainly for touch up works.  He said there was agreement on a fixed price for $3,000.

124. The Plaintiff gave no specific reply to this but maintained that there was quotation given for a fixed price of $6,000.

125. Mr Ho explained that there was double counting or duplication.  He said that there was oral agreement on lump sum $3,000 for painting the wall but then he claimed double.  The 1^st Marked-Up Version did not state the reason for adjustment.  I accept Mr Lau’s evidence.  I find that there is an outstanding balance of $3,000 to be paid under this invoice.

Invoice No. 565 (page 226)

126. The invoice stated $11,700.  The Defendant said that Lines 3 and 4 were general labourers’ charges and should be deducted by $300 as they were odd job workers. Lines 10 and 11 were about remedying defects and should be deducted by $2,400. The assessment on this invoice was $9,000.  Since the Defendant had paid $9,000, the Plaintiff’s entitlement in the final account was nil.

127. The Plaintiff gave no specific reply to this but maintained the claim as set out in the invoice.

128. From the 2^nd Marked–Up Version of the invoice, two were reduced for cheaper workers’ rate.  It was also added “odd job workers”, wage reduced from $400 to $250 for half day.  The other two items crossed out were said to be finishing works done (手尾), a total of $2,400 were deducted from this invoice.

129. I accept the adjustment on item 3 and 4 from worker to odd job worker.  I also accept Mr Ho’s deleting the two items for their being finishing work.  I find that there was no outstanding amount owed to the Plaintiff under this invoice.

Invoice No. 566 (page 227)

130. The invoice claimed $43,160.  The Defendant said that quantities of items 1, 2, 3, 4, 9, 11 and 13 were overstated.  The assessment on this invoice was $41,000.  Since the Defendant had paid $41,000, the Plaintiff’s entitlement in the final account was nil.

131. The Plaintiff gave no specific reply to this except that the agreement was on unit rate.

132. Mr Ho said that there was quotation for this invoice and that was made on basis of unit rates.  Such works would be subject to measurement at site before payments could be finalised.  From the invoice, it could be seen that the “overstatement” was caused by whether double sockets (孖蘇) should be multiplied by 1.5 reflecting more work involved than a single socket.  The adjustment was basically in this aspect and the location of sockets was reduced from 78.5 as stated on the invoice to 70.  The amount was however adjusted from $37,500 to $38,500.  Apparently there was an increase rather than a reduction.  I do not think the Plaintiff should have any complaint on this.

133. There was another adjustment.  It said item 13 should count 3 man-day for $2,500 instead of 5 man-day for $5,600 as originally stated.  Mr Ho said that this was overall compensation upon discretion.

134. I have considered the whole of the invoice.  I accept the adjustment made by Mr Ho.  I could see that the invoice was dealt with rather promptly.  The invoice was submitted on 15 Aril 2009.  The first payment was made on 21 April 2009 and the invoice was verified on 2 June 2009 together with final payment made on the same day.  Further there was increase of payment in sockets.  I could not say that the invoice was not dealt with seriously and the remarks were put down as an excuse to cut payment.  I am satisfied that the payment had been fully settled under this invoice.

Invoice No. 567 (pages 228, 258 and 259)

135. The invoice stated $30,500.  Mr Ho said items 1 and 2 were overcharged.  The assessment on this invoice was $23,000.  Since the Defendant had paid $23,000, the Plaintiff’s entitlement in the final account was nil.

136. There was no adjustment marked on the 1^st Marked-Up Version at page 259.  The only remarks were “to deduct cost of tools of Lee sir $4,650).  There was another remarks at page 258 asking that the items should be clearly set out for client to understand.  Then there were adjustment at the 2^nd Marked-Up Version.  I agree with the observation of the Defendant that there was no breakdown on the two charges.  I accept the figures put down by the Defendant as I accept that there would be site inspection to check the work done.

137. I find that there is no outstanding balance under this invoice.

Invoice No. 571 (pages 229, 260and 120)

138. The invoice stated $31,670.  The Defendant said that items H36-4 should not be charged but no reason was given.  Further it was said that H27-5 and H27-6 should not be charged because they were included under item 1 of H27.  The assessment on this invoice was $29,570.  Since the Defendant had paid $29,570, the Plaintiff’s entitlement in the final account was nil.

139. The Plaintiff gave no specific reply to this but that it was a Fixed Price Item.

140. There was yet another version of this invoice produced by the Plaintiff at page 120.  The Defendant’s highlight was the word “full payment”.

141. Mr Lau said that he would forego the balance if the Defendant paid other invoices.  I do not accept such saying.  There were outstanding balance on many other invoices but it was not stated thereon as “settled” or “fully paid”.  I am of the view that the Plaintiff was satisfied with the part payment.  There should not be any outstanding balance under this invoice.

Invoice No. 574 (pages 230, 231, 261 and 121)

142. The invoice stated $16,900.  Items 3 and 4 were overcharged.  The assessment on this invoice was $15,000.  Since the Defendant had paid $15,000, the Plaintiff’s entitlement in the final account was nil.

143. The Defendant produced 2 versions of this invoice at pages 230 and 231.  It was said that the version at page 231 was produced to the Defendant’s lawyer by the Plaintiff.  It was emphasised by Mr Ho that the remarks made by the Plaintiff as settled (已清) means the Plaintiff accepted the paid amount as full payment.  It was submitted that the Plaintiff was satisfied with the payment of $15,000.

144. The Plaintiff relied on same explanation given under Invoice No. 571 to reply to this.

145. I have the same holding as in Invoice No. 571that I am of the view that the Plaintiff was satisfied with the part payment.  There is no outstanding balance under this invoice.

Invoice No. 576 (pages 232, 262 and 122)

146. The Plaintiff stated $44,500.  The Defendant said that quantities of items 1 and 2.2 were over stated.  Further items 2.3, 2.4 and 2.6 were overcharged.  The assessment on this invoice was $41,055.  Since the Defendant had paid $41,055, the Plaintiff’s entitlement in the final account was nil.  It was further said that from the version produced by the Plaintiff at page 122, there was a remark saying “cleared”.

147. For same reason set out under Invoice No. 546 at paragraph 139, I find that the Plaintiff was satisfied with the payment made.  There is no outstanding balance.

Invoice No. 579 (pages 234 and 263)

148. The invoice stated $8,960.  The Defendant said item 5 (work supervision and car) should not be charged.  The assessment on this invoice was approximately $8,000.  Since the Defendant had paid $8,000, the Plaintiff’s entitlement in the final account was nil.  In court Mr Ho said that there was no quotation for this item 5.

149. The Plaintiff gave no reply to this except that it was a Unit Rate Item.

150. The two Marked-Up Versions were the same.  The deleted item was for management of works and car.  Car cannot be on unit rate and I accept that supervision work was included.  I agree with the adjustment.  I find that there was no outstanding balance.

Invoice No. 580 (pages 235 and 264)

151. The invoice stated $5,599.  Mr Ho said that item 3 shall not be charged; item 2 was overcharged and it should be only $1,000.  There were also remarks at the bottom saying that material costs at $779 had been paid.  The assessment on this invoice was $4,200.  Since the Defendant had paid $4,200, the Plaintiff’s entitlement in the final account was nil.

152. The Plaintiff version on items 2 and 3 was that they were on unit rate.  Item 3 was in fact material cost.

153. There were remarks at the bottom of page 264 confirming that the material cost of $779 would be paid by cheque no. 929744.  This remark was amended on the 2^nd Marked-Up Version that the cheque number was deleted and “另出” was added, so from the amended remarks it seems this item would not be paid under this invoice.  Further on the 2^nd Marked-Up Version there were remarks which did not appear in the 1^st Marked-Up Version.  It said “(0.5 man-day + 0.5 man-day) x $800 + material.  The total was adjusted from $1600 to $100 and then the material costs of $799 was crossed out.  Apparently, the material costs was put under item 2 and was reduced from $799 to $200.  No reason was given.  I do not accept the adjustment.  I find that there was outstanding of $1,399.

Invoice No. 581 (pages 236 and 265)

154. The invoice stated $18,260.  The Defendant said that item 6 should not be charged and the charges under items 2 and 3 were overcharged.  The assessment on this invoice was $15,000.  As the Defendant had paid $15,000, the Plaintiff’s entitlement in the final account was nil.

155. The Plaintiff gave no specific reply to this except that item 3 was fixed price work and items 2 and 6 were unit rate.

156. I read the invoice.  I found that the adjustment had not been fully explained.  For example, item 3, 1 man/day was allowed to paint 8 doors and no reason was given for not allowing cleaning charge (item 6) when date and time were marked against the item by staff of the Defendant.

157. In my judgement, the Defendant should pay the balance of $3,260.

Invoice No. 582 (pages 237 and 267)

158. The invoice stated $27,800.  The Defendant said that quantity of item 2.1 were overstated and was overcharged.  The assessment on this invoice was $23,600. Since the Defendant had paid $23,600, the Plaintiff’s entitlement in the final account was nil.

159. The Plaintiff said that this was Fixed Price Item.

160. On the invoice it was said that item 2.1 should be adjusted from $7,200 to $3,000.  Remarks were put down as 60 sq ft x @5) (it should have been 600 sq ft x @5).  I could see that question had been raised with this invoice that whether there were items duplication of charge 1.4 and 2.7 and finally the items had not been adjusted.  I accept the adjustment made by the Defendant.  I find that the invoice had been seriously dealt with and the adjustment was not made as an excuse to cut the charge.  I find that there was no outstanding balance on this.

Invoices No. 584, 594 and 595

161. The 3 invoices should be dealt with together to see a fuller picture of works done and invoices issued.  The 3 invoices were all concerned with renovation work at W Square 5/F.  Invoices were issued on different date.

Invoice No. 584 (pages 238 and 268)

162. The invoice stated $121,500. According to the Defendant, there had been payment of $110,000.  The outstanding balance of $11,500 was admitted.  The outstanding balance is therefore $11,500. 

Invoice No. 594 (pages 241 and 270)

163. The invoice stated $37,000.  Mr Ho said items 2, 3, 4 and 7 had already been included in Invoice No. 584.  These were follow-up works from Invoice No. 584 and there should not be additional payment.  The assessment on this invoice was $19,000.  The Defendant had paid $18,500, the Plaintiff’s entitlement in the final account was $500.

164. The Plaintiff gave no reply to this but that the disputed items were Fixed Price Items, but according to the Schedule, there was $500 paid as this invoice during negotiation, the outstanding was there for $18,000.

165. Mr Ho said that the works were for W Square 5/F under Invoice No. 584.  Those works under Invoice No. 594 were separately carried out at different stages because there was delay caused by the developer in putting up the loudspeakers.  He agreed that there were 18 spots to be painted.  But he said such works were not additional but included in Invoice No. 584.  There was no extra worker sent to do the work at a later stage. 

166. I am of the view that item 2 of Invoice No. 584 was for the walls and the ceiling but not small items like racks for loud speakers.  Some other small items had been listed out in items 3 and 4 in Invoice No. 584 which include “全場天花線、風咀木線、新造手掃漆；全場框、圍身、腳線、新造手掃漆”.  Loud speaker racks were not included.  More importantly, the 1^st Marked-Up Version at page 270 bore no similar remarks on the items and amount but there were remarks at the bottom saying that first payment could be released on 19 November 2009 and second payment could be released on 14 July 2010.  It was further said there was balance of $18,500.  This remark was amended to $500 in the 2^nd Marked-Up Version.

167. Further it was stated in Invoice No. 594 that it was for items added before 12 October.  It could be seen that the final payment for 584 was made on 5 October 2009.  So the works were probably carried out after the issue of Invoice No. 584.  I am satisfied that these were added items and should be paid additionally.  The Defendant should be liable to pay the outstanding balance.  Since the Defendant had paid $18,500 ($500 paid on 21 August 2013 not yet accounted for), it is liable to pay $18,500.

Invoice No. 595 (page 242)

168. The invoice stated $67,200 for 84 man-day, working from these figures, the Plaintiff charged $800 per man-day.  Mr Ho said in his witness statement that remedying defects should not be charged.  He said according to his records, the estimated man-days shall be 25.5 and the unit rate was $800 per man-day.  The assessment on this invoice was $20,400.  Since the Defendant had paid $20,400, the Plaintiff’s entitlement in the final account was nil.

169. Mr Lau said there was agreement on unit rate and that was for wages of workers.

170. There were remarks written on the invoice.  They include (i) this is duplication of 595 (additional marking said 594), (ii) need to be broken down, (iii) work to remedy defects should not be invoiced, (iv) difficult for Ben to verify, only take responsibility of 25.5 man-day @800 = $20,400.  At the bottom there were remarks saying “can pay 1^st payment HK$20,400 19/11/2009 Balance HK$46,800”.

171. In my view, the remarks made by the Defendant seem to be inaccurate and contradictory.  The remarks at the bottom saying that “1^st payment should be settled” and “balance of HK$46,800” did not correspond with the remarks at the margin saying that “only prepared to take responsibility of 25.5 man-day @800 = $20,400.  I accept the Defendant’s saying that the items under this invoice was for remedy works which were carried out after 12 October upto 15 November.  If there were additional works included, no particulars had been given by the Plaintiff.  I agree with the Defendant’s saying that there was no breakdown stated in this invoice, even if it was for remedy work, it should provide some particulars of works done.  In the circumstances, I agree with the Defendant that it was difficult to verify.  I do not think there was sufficient evidence put before me to assess the appropriate sum.  As the burden is on the Plaintiff to prove, I do not find that there is outstanding payment due under this invoice.

Invoice No. 588

172. The invoice claimed $11,200.  Mr Ho said item 1 was overcharged.  The assessment on this invoice was $9,000.  Since the Defendant had paid $9,000, the Plaintiff’s entitlement in the final account was nil.  As could be seen from the remarks made on the invoice, the adjustment was made in item 1.  There were pencil markings saying 600ft²x @8-, the adjustment was from $7,000 to $4,800.

173. The Plaintiff gave no reply to this but that it was a Fixed Price Item.

174. Again this is painting work.  Although the Plaintiff said it was fixed price work, no particulars were given.  On the other hand, there was measurement given by the Defendant.  I accept the adjustment.  I find that there was no outstanding balance.

Invoice No. 589 (pages 240 and 269)

175. The invoice claimed $20,100.  The Defendant said the invoice was without detailed breakdown.  Mr Ho said that items 1 and 2 were overcharged.  The assessment on this invoice was $17,000.  Since the Defendant had paid $17,000, the Plaintiff’s entitlement in the final account was nil.

176. The Plaintiff gave no reply to this.

177. I could see remarks made at the right margin of the invoice.  It was a record of conversation with Ken (Mr Lau): “the cost for 10/F (item 2) $7,500 for window, $2,500 for scaffolding, $1,800 for painting. For 3/F and R/F (item 1 and item 3) $5,500 for pipes, $1,200 for painting, $1,800 for scaffolding, Ken said deduct $1,200. 12:55.”

178. All I could say is that the Plaintiff agreed to take away $1,200 from item 1 and item 3 together.  The Defendant however deducted $1,100 from item 1 and without consent of the Plaintiff deducted $2,000 from item 2.  There was no reason given as to why $2,000 should be taken from item 2.  I allow $1,200 to be taken from this invoice and made the final amount to $18,900.  Since the Defendant had paid $17,000, there is still a balance of $1,900 outstanding, and the Defendant should pay the same.

Invoice No. 600 (pages 243 and 272)

179. The invoice claimed $31,300.  The Defendant said items 1, 2 and 3 were overcharged. The assessment on this invoice was $18,000.  Since the Defendant had paid $18,000, the Plaintiff’s entitlement in the final account was nil.

180. The Plaintiff said that item 1 was unit rate and items 2 and 3 were fixed price.  The Defendant said there was no agreement.

181. There were two versions of this invoice.  The 1^st Marked-Up Version was not adjusted.  Remarks there on said that “1^st payment could be paid at $15,000, 2^nd payment could be made $3,000 Balance: HK$13,300”.

182. I accept that Mr Ho had the final say and could make final assessment.  I accept that items 2 and 3 were fixed price and the Defendant could not adjust the amount at its will.  I do not allow the adjustment.  As to item 1, since this was a unit rate agreement, I accept the Defendant could adjust the payment after viewing the whole of the circumstance on man-day.  I allow adjustment on item 1 from $20,000 to $11,200.  The total amount due under this invoice was $22,550, since a sum of $18,000 had been paid, outstanding amount of $4,550 shall be paid by the Defendant.

Conclusion

183. For reasons given in the above, I find that the Defendant is liable to pay the Plaintiff a sum of $142,015.  The Plaintiff should give account for $34,100 received under Further Payment (particulars set out in SCHEDULE attached).  There be interests from 15 April 2011 (14 days after the formal demand by letter) at HSBC prime rate plus 1% from today.  Interest thereafter runs at the judgment rate until full payment of $107,915 ($142,015 – $34,100).  There also be interest for $34,100 from 15 April 2011 to payment of the same on 21 August 2013 at HSBC prime rate plus 1%.

184. On costs, I consider that there were invoices abandoned by the Plaintiff but only after they had been dealt with by the Defendant in Mr Ho’s witness statement; I also consider that the Plaintiff has not been successful on the full amount he claimed; I make no order as to costs.  This is an order nisi to become absolute unless there is application to vary the same within 14 days.

SCHEDULE

Invoice Nos. 367 – 525

Invoice No.	Initial outstanding ($)	Further Payment made on 21 August 2013 ($)	Alleged Outstanding after Further Payment($)	No Ruling on Outstanding[1]
367	8,855	8,375	480	-
368	5,042	-	5,042	-
369	9,900	-	9,900	-
370	14,671	-	14,671	-
375	1,500	-	1,500	-
378	9,500	9,500	-	-
379	10,200	-	10,200	-
381	12,393	3,000	9,393	-
383	55,510	10,000	45,510	-
384	86,900	-	86,900	-
393	5,900	-	5,900	-
394	2,825	-	2,825	-
500	750	-	750	-
502	13,521	-	13,521	-
503	13,363	9,971	3,392	-
505	4,600	-	4,600	-
507	4,250	-	4,250	-
508	9,976	-	9,976	-
510	3,500	-	3,500	-
512	5,000	2,700	2,300	-
518	3,100	-	3,100	-
522	8,130	-	8,130	-
523	1,900	-	1,900	-
524	2,700	-	1,700	-
525	2,000	-	2,000	-
Sub-total:	295,986	43,546	251,440

Invoicesbetween Nos. 526 – 600

Invoice No.	Initial outstanding ($)	Further Payment made on 21 August 2013 ($)	Alleged Outstanding after Further Payment($)	Court’s Rulingon Outstanding ($)
526	2,700[2]	-	2,700	2,700
530	8,140	-	8,140	3,840
531	650	-	650	0
532	2,800	-	2,800	0
533	47,000	-	47,000	20,000
534	79,008	20,000	59,008	20,000
535	14,850	-	14,850	0
536	3,640	-	3,640	0
537	60,470	-	60,470	0
538	10,794	-	10,794	10,794
539	4,590	-	4,590	1,600
540	11,900	800	11,100	4,800
541	39,772	-	39,772	26,522
542	8,000	-	8,000	0
543	2,150	1,300	850	2,150
552	-	-	-	0
553	5,180	-	5,180	0
554	4,000	-	4,000	2,000
556	3,500	-	3,500	3,500
558	35,225	-	35,225	0
563	3,000	-	3,000	3,000
565	2,700	-	2,700	0
566	2,160	-	2,160	0
567	7,500	-	7,500	0
571	2,100	-	2,100	0
574	1,900	-	1,900	0
576	3,445	-	3,445	0
579	960	-	960	0
580	1,399	-	1,399	1,399
581	3,260	-	3,260	3,260
582	4,200	-	4,200	0
584	11,500	11,500	-	11,500
588	2,200	-	2,200	0
589	3,100	-	3,100	1,900
594	18,500	500	18,000	18,500
595	46,800	-	46,800	0
600	13,300	-	13,300	4,550
Sub-total:	472,393	34,100	438,293	142,015

[1] Claims under Invoices Nos. between 367 – 525 abandoned

[2] Initial Outstanding Balance should be $2,700, it was mistakenly stated as $1,700 in the Schedule prepared by the Plaintiff.