Housewise Construction v. Double Double Restaurant Date:, 2013 BCPC 80

Citation: Housewise Construction v. Double Double Restaurant Date: 20130409 2013 BCPC 0080 File No: 24905 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HOUSEWISE CONSTRUCTION LTD., dba SEGAL DISPOSAL CLAIMANT AND: DOUBLE DOUBLE RESTAURANT & WONTON LTD. DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP BRIAN WALLACE Appearing for the Claimant: Samuel Au Appearing for the Defendant: Man Kam Wong Place of Hearing: Richmond , B.C. Date of Hearing: April 5, 2013

Date of Judgment: April 9, 2013 [ 1 ] The Claimant seeks from the Defendant liquidated damages for breach of contract, payment for delivery and removal of a garbage bin, and costs, totalling $2583.24. [ 2 ] The Defendant’s principal, Mr. Ma Kim Wong, signed a contract with the Claimant on June 22, 2012 for garbage disposal services. The contract consists of a front page, which the parties complete, and printed Terms and Conditions on the reverse.

The fact that this contract is for a 4 cu. yd. bin is handwritten on the front of the contract, apparently having been specifically addressed and agreed to in negotiations. [ 3 ] The Terms and Conditions are set out in small, dense print on the reverse side.

They include, “This agreement is for a term” of 60 months, and, “Solid waste based on 50 Kgs per yard unless otherwise specified in “special instructions.”” The 4 cu. yd. bin at 50 kg. per yard means the bin’s weight capacity is 200 kg. [ 4 ] On July 4 2012, Man Kam Wong, by letter drafted by his son, (Ringo) Ho Wong, purported to nullify the contract because the parties had agreed orally that the term was to be for 3 years and the bin’s weight capacity was to be 400 kg. [ 5 ] At the hearing, both Man Kam Wong and Ringo Wong testified that the reference in the letter to “three (3) years” was in error and the oral agreement was for a 2-year term.

Man Kam Wong also confirmed the assertion in his letter that the weight capacity agreed upon was 400 kg. Ringo Wong did not hear his father’s entire negotiation on June 22 with Mr Au, the principal of the Claimant, but recalls his father was concerned about being charged extra for overweight bins and expressed the concern to Mr. Au. [ 6 ] Mr. Au denied in his testimony that there had been any discussion about either a 2-year term or about weight, and said that Mr.

Wong had been interested mainly in a low price. [ 7 ] When the Claimant delivered a bin to the Claimant’s premises around the end of July, at the time the service was scheduled to commence, the Defendant refused to accept it. [ 8 ] By letter dated August 13, 2012, the Claimant refused to accept the Defendant’s version of the contract and advised the Defendant that the Defendant could either honour the written contract or terminate it by paying nine months service fees. [ 9 ] By commencing this action the Claimant has elected to treat the Defendant’s conduct as termination of the contract. [ 10 ] Ringo Wong candidly admitted to having heard only part of the discussion between his father and Mr.

Au. However, his evidence is consistent with his father’s and inconsistent with that of Mr. Au. I prefer Mr. Wong’s evidence. [ 11 ] The two terms at issue are important, yet they are not prominent in the contract. Rather, they are found on the back of the page, in a difficult to read font-size, in complex prose, and among terms not intended to be addressed in negotiations. The difficulties are exacerbated here because English is not Mr. Wong’s first language. I am satisfied that Mr.

Wong did not intend to agree to them. [ 12 ] I am satisfied that the Defendant was induced to sign the contract by the Claimant’s oral promise that the term was for two years and that the weight capacity was 400 kg. Therefore, the Claimant cannot rely on the contrary words on the back of the printed- form contract. The claim is dismissed. ______________________ Brian J. Wallace, QC Adjudicator