LUK KA MING t/a TIN MUK ENGINEERING CO v. YKK AP HONG KONG LTD

LUK KA MING t/a TIN MUK ENGINEERING CO v. YKK AP HONG KONG LTD

Plaintiff's claims for the outstanding balance and for variation payments were dismissed because the plaintiff failed to prove that the main contractor had paid the defendant (a prerequisite under the payment and retention clauses) and failed to substantiate the variation claim with proof that any extra payment received corresponded to the variation claim; defendant's counterclaims failed for lack of particulars and causation except for reimbursement of the employee compensation insurance premium which was proved and awarded.

Citation
LUK KA MING t/a TIN MUK ENGINEERING CO v. YKK AP HONG KONG LTD
Parties
Plaintiff (sub Contractor): Luk Ka Ming trading as Tin Muk Engineering Company; Defendant (sub Contractor to Main Contractor Hip Hing): YKK AP Hong Kong Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
9 August 2007
Case Number
DCCJ3516/2004
Procedural Posture
Civil Contract (sub Contract Dispute) / Judgment Delivered (district Court)
Outcome
All of the Plaintiff's claims dismissed. Defendant's counter-claims dismissed except for successful claim for reimbursement of employee compensation insurance premium. Judgment entered for Defendant in that sum.
Legal Topics
Retention Money, Payment Terms, Variations and Re Measurement, Defects Liability, Counterclaims and Contra Charges, Costs and Interest
Source Language
EN
Contract Law Construction Law Civil Procedure Retention Money Payment Terms Variations and Re Measurement Defects Liability Counterclaims and Contra Charges +1 more

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Parties

Luk Ka Ming trading as Tin Muk Engineering Company

Plaintiff (sub Contractor)

YKK AP Hong Kong Limited

Defendant (sub Contractor to Main Contractor Hip Hing)

Procedural Posture

Civil Contract (sub Contract Dispute) / Judgment Delivered (district Court)

Legal Issues

  1. 1 Whether retention monies were payable to plaintiff before defendant received payment from main contractor
  2. 2 Whether plaintiff proved entitlement to variation payments under re-measurement and notification clauses
  3. 3 Whether plaintiff was liable for alleged defective works causing broken glass and water leakage

Ratio Decidendi

Plaintiff's claims for the outstanding balance and for variation payments were dismissed because the plaintiff failed to prove that the main contractor had paid the defendant (a prerequisite under the payment and retention clauses) and failed to substantiate the variation claim with proof that any extra payment received corresponded to the variation claim; defendant's counterclaims failed for lack of particulars and causation except for reimbursement of the employee compensation insurance premium which was proved and awarded.

Court Disposition

All of the Plaintiff's claims dismissed. Defendant's counter-claims dismissed except for successful claim for reimbursement of employee compensation insurance premium. Judgment entered for Defendant in that sum.

Orders

  • Judgment entered for Defendant for reimbursement of employee compensation insurance premium in the sum of HKD 37956.89
  • Plaintiff to pay Defendant HKD 37956.89, with interest at judgment rate from 5 October 2004 until satisfaction