Kwon v. Kang Date:, 2012 BCPC 1

Citation: Kwon v. Kang Date: 20120105 2012 BCPC 0001 File No: 1033028 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BYUNGKYU KWON dba HANA INTERIOR CLAIMANT AND: EUN SIL KANG DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP B. CORNISH Appearing on their own behalf: Byungkyu Kwon Appearing on their own behalf: Eun Sil Kang Place of Hearing: Vancouver, B.C.

Date of Hearing: December 7, 2011 Date of Judgment: January 5, 2012 A corrigendum was released by the Court on January 10, 2012; the corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] In this action, the Claimant, Mr. Byungkyu Kwon says that he entered into a verbal contract with the Respondent, Ms. Eun Sil Kang, pursuant to which he was to be paid certain monies for the provision of renovation services at the office of the Korean Times newspaper in Vancouver.

He further claims that he was not paid in full for these services and brings this Action for the balance claimed to be owed. Background [ 2 ] This matter originally came before me on May 4, 2011, when some exploratory discussions were held to determine if the matter could be settled. On that date, however, it became clear that there was considerable disagreement between the parties regarding both the terms and scope of their agreement. In addition, English was not the first language of either party.

In the end result, the matter was adjourned to the next available date for an Expedited Trial and an Order made that the Claimant attend with an interpreter. [ 3 ] The trial was set for December 7, 2011. On that date, the Claimant did not attend with an interpreter but did bring a friend to assist him. Ms. Kang, however, did bring a certified interpreter, who graciously agreed to assist the Court by translating for both parties. The Claimant’s Position

[ 4 ] In his Notice of Claim, the Claimant says that he was asked and agreed to provide renovation services on September 8, 2010. He began work on September 10, 2010 and then on September 12, 2010, Ms. Kang asked that he perform some additional work including: painting, and making new desks and newspaper stands. He further says that at that time, Ms. Kang promised to pay for all materials and labour costs. He claims to have worked September 10 -17 and 19 – 22, 2010 and says that he reported the costs daily but that Ms.

Kang did not pay the full amount of his final invoice. [ 5 ] More detail is provided in the Claimant’s Trial Statement in which he says that the original agreement of September 8 was to include building new walls, an entrance door and storage - all for a lump sum cost of $2,000.00. With respect to the events of September 12, 2010 it is claimed that on that date, Ms. Kang also asked him to paint the office for which he suggested a price of $1,500.00. In response, Ms. Kang said she wanted a cheaper price and the Claimant agreed he would “do his best”. The Trial Statement also claims that on September 16, 2010 Ms .

Kang asked the Claimant to build six desks and reference is made to an "estimated value of $1,500.00". The next day, a further request was made to build eight newspaper stands, in respect of which, the Trial Statement references "an estimated value of $1,200.00". [ 6 ] After receiving these four different requests, the Claimant says that he and Ms. Kang made a new agreement which is described as follows: "total payment should cover both of the material costs (over $2,000.00) and labour. I told her my labour is $300/day (working overtime)".

In essence, the Claimant's position is that on September 17, 2010 the parties changed their original fixed price agreement to one in which the Defendant agreed to pay the Claimant $300.00 per day for his labour, in addition to the cost of all materials. [ 7 ] The Claimant acknowledges payment of $1,000.00 by Ms. Kang on each of September 15 and 20, 2010. He claims that he finished the work on September 22, 2010 and sent an invoice for a total of $6,102.80 (comprising labour in the amount of $3,900.00 for both the Claimant and a helper, and material costs of $2,202.81).

After crediting the $2,000.00 received, the invoice balance was $4,102.80. Copies of the invoices for materials totaling $2,202.81 were attached to the Trial Statement. While the invoices detailed the materials purchased, none of them referenced the specific job site either by way of address or otherwise. [ 8 ] On September 27, 2010 the Claimant says Ms. Kang moved into the newly renovated office space and paid him a further $1,000.00.

Thereafter, he says he requested payment of the balance but was told that "she had no money and would pay later". [ 9 ] In his oral evidence, the Claimant affirmed the truth of the facts referenced in his Trial Statement. He also stated that while he told Ms. Kang the painting would be extra, they made no agreement as to how much extra.

He similarly stated that when the parties agreed to change from a fixed price contract to one which would include all labour and material costs, he specified his daily labour rate of $300.00 but did not specify what the likely overall cost of the project would be but did provide Ms. Kang with day to day cost totals.

The Defendant’s Position [ 10 ] In her Trial Statement, the Defendant agrees that an initial verbal agreement was made on September 8, 2010 for the provision of renovation services but says that those services included not only the items referenced by the Claimant but also the painting of the office – all for a fixed price of $2,000.00. She further agrees that she later asked the Claimant to construct some desks and newspaper stands which were not included in the fixed price. In this regard, she says that the Claimant advised that he could get desk tops from Ikea's clearance

section for $50.00 each and that he could make the newspaper stands for about $40.00 each. While the parties agree upon the number of newspaper stands (eight), they disagree on the number of desks (or as the photographs depict, desk dividers). The Claimant alleges a total of eight were requested while the Defendant says only two. [ 11 ] The Defendant says that after paying the Claimant the agreed upon sum of $2,000.00 he presented her with an invoice for an additional $4,102.80 on September 24, 2010 and when she refused to pay this amount the Claimant abandoned the premises unfinished and in a mess.

Photographs of the premises were attached to the Trial Statement and depict what clearly appears to be an unfinished and messy job site. Since the Defendant needed to move into the newly renovated premises as soon as possible, she says that she offered to pay the Claimant an additional $1,000.00 in full and final satisfaction of his invoice on the condition that he clean up the job site - which he did on September 28, 2010.

Notwithstanding this agreement, she says the Claimant continued to ask her for payment of his invoice and ultimately commenced this Action. [ 12 ] In her oral evidence, the Defendant confirmed that the original fixed price agreement included not only constructing the walls, door and storage space but also painting and she specifically denied having any discussion or making any agreement that she would pay the full material and labour costs for any of this work.

She also denied that the Claimant provided her with the day to day costs of the project reiterating that there was no need for him to do so since their agreement was for a lump sum fee of $2,000.00. The only extra work the Defendant acknowledged was the desks and newspaper stands. On that issue, her evidence was that the Claimant told her that he had found materials that were inexpensive and she recalls the sum of “about $60.00” being discussed. She denied having any discussion about potential labour costs but says she "thought she would give him $500.00".

Later, after he had abandoned the project she agreed to pay him $1,000.00 for the extras ( ie desks and newspaper stands) and clean up. Discussion [ 13 ] As in any Action, the onus is on the Claimant to prove his case.

Thus, in order to succeed with his claim the Claimant must establish that the parties abandoned their original fixed price contract of September 8, 2010 and instead, on September 17, 2010 the Defendant agreed to pay him $300.00 per day for his labour in addition to the cost of all materials. [ 14 ] As noted above, the Claimant’s assertion of a new agreement is flatly denied by the Defendant and there are no corroborating witnesses and little documentary evidence to assist in determining which version of events is more likely. In short, the case rests heavily on the credibility of the parties.

In such circumstances, the Courts have consistently referred to the following statement in Faryna v.

Chorny, (BC CA), [1951] B.C.J. 152 (C.A.) as authoritative: “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions.” [15] In this case, both parties agree that there was originally a fixed price contract for $2,000.00. In addition, although denied by theDefendant, the Claimant says that when he suggested a price of $1,500.00 for the painting, the Defendant wanted a cheaper price.

Fromboth of these facts, I infer that the Defendant was concerned about the price of the renovation. [16] With respect to the specific circumstances which existed immediately prior to September 17, 2010 both parties agree that workhad commenced on the 10th and thus, that the project was presumably well under way. By that time, the total material costs, accordingto the invoices produced by the Clamant, were $1,972.67, and (using the Claimant’s costing of $300.00 per day) labour costs werealready $2,100.00.

Thus, if I accept the Claimant‘s assertions that he told the Defendant what his daily rate was and provided her withthe daily cost of materials she would have been aware on September 17, 2010 that the total labour and material costs already incurred asof that date, were just over $4,000.00, ie. double the amount of the original fixed price agreed to by the parties. [17] When the totality of the evidence is considered, it is difficult to accept that the Defendant would have limited her costs for thebulk of the renovation work (ie. construction of the walls, door and storage areas) to a maximum of $2,000 and then seven days latervoluntarily agree to pay double that amount for the labour and material costs incurred to date, in addition to future costs.

The allegationthat the Defendant voluntarily entered into such an agreement, in my view, defies both common and commercial sense. [18] While a more plausible scenario may have been that the Defendant agreed to pay labour and material costs for “extras” to thefixed price agreement ie. the desks, newspaper stands and perhaps the painting, the Claimant specifically denied that this was the case and instead insisted that the parties entered into a whole new agreement on the 17th which replaced their original fixed price agreement.

For the reasons given above, I cannot accept that this conclusion is, in the words of Faryna v. Chorny, one which “is in harmony with thepreponderance of probabilities which a practical and informed person would recognize as reasonable in that place and in thoseconditions” and I do not accept the Claimant’s evidence in this regard.

In the end result, the Claimant has not, on the evidence,established the existence of the new agreement made on September 17, 2010 which constitutes the whole basis of his claim for anadditional $3,000.00 over and above that already paid by the Defendant and as such, the Claim is dismissed. ___________________ Barbara Cornish Adjudicator CORRIGENDUM – Released January 10, 2012 The cover page of Reasons for Judgment filed in the Provincial Court Registry on January 5, 2012, should reflect the following: HerWorship B. Cornish. My Reasons for Judgment is amended accordingly.