LEUNG KAM CHUEN T/A WING LEE METAL WORKS CO v. KWOK SHING CATERERS (HOLDING) LTD T/A NEW GARDEN CITY RESTAURANT

IN THE COURT OF APPEAL

1986, No. 154
(Civil)

BETWEEN

LEUNG KAM CHUEN trading as WING LEE METAL WORKS CO.

Plaintiff
(Appellant)

and

KWOK SHING CATERERS (HOLDING) LTD. trading as NEW GARDEN CITY RESTAURANT

Defendant
(Respondent)

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Coram: Hon. Yang, J.A., Power & Hunter, JJ.

Date of hearing: 15th January, 1987.

Date of delivery of judgment: 15th January, 1987.

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JUDGMENT

______________

Yang, J.A.:

1. By a decision of the 16th July 1986, Deputy Judge Cruden gave judgment for the plaintiff for $95,590 being the balance of the priceof work done and materials supplied by the plaintiff for the kitchen of the defendant company’s restaurant. The judge also gave judgmentfor the defendant company on their counterclaim for the sum of $55,800 being cost of remedial work necessitated by the failure ofthe plaintiff to carry out his work in a good and workmanlike manner and by the plaintiff’s failure to supply materials fit or suitablefor the defendant company’s purpose. The one sum was set-off against the other in the result that judgment was entered for the plaintifffor the balance of $39,790. There was no order made as to costs.

2. The plaintiff appeals against that part of the decision which relates to the counterclaim and costs. The defendant company did notappear at the hearing of the appeal.

3. At all material times the plaintiff carried on business as a metal works company with expertise in ventilation and refrigerationengineering. He undertook to equip the whole kitchen of the defendant company’s restaurant including ventilation and refrigerationinstallations. The defendant company relied on his expert knowledge, and the plaintiff accepts that he agreed and warranted thatthe work done and materials supplied should be suitable for a restaurant at the premises shown to him. In the event the ventilationand refrigeration systems were found to be inadequate, thereby necessitating remedial work to be carried out by another firm.

4. It is argued on behalf of the plaintiff in this appeal that the plaintiff’s warranty only extended to “a minimal standard” requiredfor “a restaurant” and not necessarily to the defendant company’s restaurant the special requirements of which were never madeknown to the plaintiff. This argument ignores the evidence that in agreeing to equip the whole kitchen the plaintiff was given allthe requirements of the kitchen. It follows that he had knowledge of the type of kitchen the defendant company desired for his business.This ground must fail.

5. The next ground of appeal is that on the evidence only two of the four refrigerators for storing meat were underpowered whereas thecost of remedial work was for four refrigerators. Though the evidence on the issue was scanty and confusing, the judge was entitledto find, as he did, that all four refrigerators were unsuitable. Accordingly, I do not accept the argument that the defendant companyin expending $55,800 for four refrigerators had acquired something more. It is further argued that there are two items within thesum of $55,800 – one being $1,000 for installation of an open-air shelf and the other being $1,800, for connecting a motor to a smallrefrigerator – which should not be allowed as these smaller sums were incurred entirely for the defendant company’s own benefit andnot attributable to any defective work done by the plaintiff. Whilst there may be some substance in this argument in the light ofthe evidence, it was not an issue that was canvassed in the court below and we are not disposed to consider it at this late stage.

6. Finally, it was argued, on the strength of Nicholson v. Little (1956) 1 W.L.R. 829, that as the plaintiff was forced to come to court for his money and as he did in the event obtain judgment for part of the sum claimed,he should have his costs. Costs is a matter which falls entirely within the trial judge’s discretion. Unless it has been shown thathe was wrong in principle, we cannot interfere. The result of the case is that the defendant company had effectively won on the contestedissues. In all the circumstances it seems to be just to both parties that no order for costs be made.

7. The appeal is dismissed.

T.L. Yang
Justice of Appeal

Power, J. :

I agree.

(N.P. Power)
Judge of the High Court

Hunter, J.:

I agree.

(D.S. Hunter)
Judge of the High Court

B. Chain (Lawrence Ong & Chung) for Appellant/Plaintiff

Peter M.C. Lo (M.K. Lam & Co.) for Respondent/Defendant